Parise v. Astrue

Filing 920101130

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

N o v e m b e r 30, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

M A R I A N K. PARISE, Plaintiff-Appellant, v. M I C H A E L J. ASTRUE, Commissioner o f Social Security, Defendant-Appellee. N o . 10-3062 ( D . C . No. 5:08-CV-04140-JAR) ( D . Kan.)

O R D E R AND JUDGMENT *

B e f o r e TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and G O R S U C H , Circuit Judge.

Marian K. Parise appeals from a judgment of the district court affirming the C o mmi s s i o n e r ' s denial of her application for Social Security disability benefits a n d supplemental security income benefits. Exercising jurisdiction under 2 8 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y to grant the parties' request for a decision on the briefs without oral a r g u me n t . See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore o r d e r e d submitted without oral argument. This order and judgment is not binding p r e c e d e n t , except under the doctrines of law of the case, res judicata, and c o l l a t e r a l estoppel. It may be cited, however, for its persuasive value consistent w i t h Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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I. M s . Parise claimed disability as of July 2005, due to diabetes, high blood p r e s s u r e , and problems with her back, hip, and leg. Following the administrative d e n i a l of her claim, an administrative law judge (ALJ) conducted a hearing in J u n e 2008. In his decision, the ALJ found that Ms. Parise retained the residual f u n c t i o n a l capacity (RFC) to perform her past relevant work, and thus concluded she was not disabled. The Appeals Council denied her request for review, making t h e ALJ's denial of benefits the agency's final decision. The district court a f f i r me d . O n appeal, Ms. Parise contends that the ALJ erred: (1) by failing to find t h a t her back, hip, and leg problems were severe impairments at step two; (2) in e v a l u a t i n g the effect of her back, hip, and leg problems on her RFC at step four; a n d (3) in evaluating her credibility. II. " O u r review of the district court's ruling in a social security case is de n o v o . " Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Under this s t a n d a r d of review "we independently determine whether the ALJ's decision is f r e e from legal error and supported by substantial evidence." Id. (internal q u o t a t i o n marks omitted). "Substantial evidence is such relevant evidence as a r e a s o n a b l e mind might accept as adequate to support a conclusion. It requires

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mo r e than a scintilla, but less than a preponderance." Id. (internal quotation ma r k s omitted). "In reviewing the ALJ's decision, we neither reweigh the e v i d e n c e nor substitute our judgment for that of the agency." Bowman v. Astrue, 5 1 1 F.3d 1270, 1272 (10th Cir. 2008) (internal quotation marks omitted). A. A t step two of the five-step sequential evaluation process, the ALJ d e t e r mi n e s whether the claimant has a medically determinable severe impairment o r impairments. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also W a l l , 561 F.3d at 1052. An impairment is severe if it significantly limits a c l a i ma n t ' s physical or mental ability to perform basic work activities. See 2 0 C.F.R. §§ 404.1521, 416.921; see also Wall, 561 F.3d at 1052. Once an ALJ d e t e r mi n e s that the claimant suffers from one or more medically determinable s e v e r e impairments, he moves to the next step in the sequential evaluation p r o c e s s . Although the ALJ found that Ms. Parise had the medically determinable s e v e r e impairments of obesity and hypertension at step two, she argues that the A L J erred in failing to find that her back, hip, and leg problems were also severe i mp a i r me n t s and should have been considered such at step two. We disagree. As we explained in Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2 0 0 7 ) , once the ALJ finds that the claimant has any severe impairment, he has s a t i s f i e d the step two analysis: "The ALJ . . . made an explicit finding that [the

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c l a i ma n t ] suffered from severe impairments. That was all the ALJ was required t o do in that regard." Because the ALJ found that Ms. Parise had two medically d e t e r mi n a b l e severe impairments, his failure to find her back, hip, and leg p r o b l e ms were severe impairments, is not grounds for reversal. B. T u r n i n g to Ms. Parise's next argument, she contends the ALJ's erred in its s t e p - f o u r analysis. The ALJ found that she had the RFC to perform light work, a n d thus retained the ability to perform her past relevant work as a production w o r k e r . Her overarching argument is the assertion "that her RFC prevents her f r o m engaging in her [past relevant work.]" Aplt. Opening Br. at 17. She also a s s e r t s the ALJ "failed to make the detailed findings required by the regulations a n d rulings at step four." Id. Once an ALJ finds a severe impairment at step two, unless he finds the i mp a i r me n t equal a Listing at step three, he proceeds to step four. See 20 C.F.R. § § 404.1520(e), 416.920(e); see also Williams v. Bowen, 844 F.2d 748, 751 ( 1 0 t h Cir. 1988). Step four is comprised of three phases: In the first phase, the ALJ must evaluate a claimant's physical and me n t a l . . . (RFC), and in the second phase, he must determine the p h y s i c a l and mental demands of the claimant's past relevant work. In the final phase, the ALJ determines whether the claimant has the a b i l i t y to meet the job demands found in phase two despite the me n t a l and/or physical limitations found in phase one. At each of t h e s e phases, the ALJ must make specific findings.

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W i n f r e y v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (citations omitted). Although it is not entirely clear from the briefing, Ms. Parise appears to argue t h a t the ALJ erred at all three phases of his step-four evaluation. Thus, we a d d r e s s each phase separately. In determining the claimant's RFC at phase one, the ALJ is required to c o n s i d e r all of the claimant's impairments, including impairments that are not s e v e r e . See 20 C.F.R. §§ 404.1545, 416.945; see also Wilson v. Astrue, 602 F.3d 1 1 3 6 , 1140 (10th Cir. 2010). In making his RFC determination, the ALJ c o n s i d e r e d Ms. Parise's severe impairments along with her non-severe i mp a i r me n t s , including her back, hip and leg problems. The ALJ's decision c o n t a i n s a discussion of the medical evidence he considered in finding that she r e t a i n e d the RFC to perform light work. Although Ms. Parise does not directly r a i s e the issue, our review of the record indicates that the RFC determination is c o n s i s t e n t with the medical evidence, and thus, the ALJ's finding is supported by s u b s t a n t i a l evidence. A s to the findings at phases two and three, Ms. Parise argues that "the ALJ e r r e d in finding that she could return to her [past relevant work] because he did n o t make specific findings regarding the demands of her [past relevant work]," A p l t . Opening Br. at 17, and the ALJ "improperly relied on vocational expert [] t e s t i mo n y as the sole basis for his conclusion that Parise's impairments did not

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p r e c l u d e the performance of her [past relevant work]," id. The ALJ's decision states: [ ] The claimant is capable of performing past relevant work as a p r o d u c t i o n worker. This work does not require the performance of w o r k - r e l a t e d activities precluded by the claimant's residual f u n c t i o n a l capacity (20 CFR 404.1565 and 416.965). The claimant has past relevant work as a production worker (DOT N o . 706.687-010) light/svp-2 . . . . In comparing the claimant's r e s i d u a l functional capacity with the physical and mental demands of t h i s work, the undersigned finds that the claimant is able to perform i t as actually and generally performed. A p l t . App. at 25. The Dictionary of Occupational Titles # 706.687-010 (4th ed. 1 9 9 1 ) explains that the job of production worker is light work and describes the d e ma n d s of the job. Thus, the ALJ's phase-two findings are adequate. And there i s no merit to the argument that the ALJ relied solely on the vocational expert's t e s t i mo n y (VE) for his conclusion at phase three that Ms. Parise could perform h e r past relevant work as a production worker. The decision does not mention the V E ' s testimony ­ to the contrary, this conclusion was reached by the ALJ after c o mp a r i n g the demands of her previous relevant work with her RFC. C. The ALJ concluded that Ms. Parise's "allegations [of disabling pain, f a t i g u e and weakness] are not credible to establish a more restrictive residual f u n c t i o n a l capacity than [a restriction to light work]." Aplt. App. at 25. Ms. P a r i s e asserts that the ALJ erred in his credibility analysis. We disagree.

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" C r e d i b i l i t y determinations are peculiarly the province of the finder of fact, a n d we will not upset such determinations when supported by substantial e v i d e n c e . " Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). After examining t h e record as a whole, we are persuaded that the ALJ's credibility findings are c l o s e l y and affirmatively linked to substantial evidence. In his decision, the ALJ wrote nearly a page about the evidence he c o n s i d e r e d in reaching his conclusion that Ms. Parise's allegations were not c r e d i b l e . The decision speaks for itself, and we list just a few of the ALJ's f i n d i n g s , which include: (1) the lack of any medical treatment typically a d mi n i s t e r e d for pain; (2) the lack of any prescription medication for pain relief; a n d (3) the lack of any medically prescribed assistive device. See Hargis v. S u l l i v a n , 945 F.2d 1482, 1489 (10th Cir. 1991) (holding that among the factors t h a t an ALJ should consider when evaluating the credibility of pain testimony are t h e levels of medication and attempts to obtain relief). The ALJ's findings are c l o s e l y and affirmatively linked to substantial evidence, and we cannot disturb t h e m on appeal. See Bowman, 511 F.3d at 1272 (holding that "we neither reweigh t h e evidence nor substitute our judgment for that of the agency") (internal q u o t a t i o n marks omitted).

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T h e judgment of the district court is AFFIRMED. E n t e r e d for the Court

T i mo t h y M. Tymkovich C i r c u i t Judge

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