Fannin v. Commissioner, SSA

F
                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 24, 2021
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 JAMES FLOYD FANNIN, JR.,

       Plaintiff - Appellant,

 v.                                                          No. 20-7027
                                                   (D.C. No. 6:18-CV-00337-KEW)
 COMMISSIONER, SSA,                                          (E.D. Okla.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
                  _________________________________

      James Floyd Fannin, Jr., appeals from an order of the district court affirming

the Social Security Commissioner’s denial of his application for supplemental

security income and disability insurance benefits under the Social Security Act.

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                   BACKGROUND

      Fannin is 45 years old. He has a high school education and past work

experience as a press operator, thermal machine operator, delivery driver, truck

driver, surface cleaner, and correctional officer. He alleged he became unable to

work beginning November 25, 2010, due to depression, anxiety, and diabetes. In

February 2016 Fannin filed for disability and disability insurance under Title II and

for supplemental social security income under Title XVI of the Social Security Act.

See 42 U.S.C. § 401–34 (Title II); 42 U.S.C. § 1381–85 (Title XVI).1 The state

agency denied his claim initially and on reconsideration, so Fannin appeared before

an administrative law judge (“ALJ”) who conducted a hearing in May 2017.

      In her written decision, the ALJ followed the five-step sequential evaluation

process the Social Security Administration uses to review disability claims.2 She



      1
        This appeal stems from Fannin’s third application for disability benefits
under the Social Security Act. He previously applied, unsuccessfully, in December
2010 and May 2012.
      2
          We have described the five-step process as follows:

               Social Security Regulations mandate that the ALJ who
               determines a claim for benefits under the Social Security
               Act follow a five-step evaluation: (1) whether the claimant
               is currently working; (2) whether the claimant has a severe
               impairment; (3) whether the claimant’s impairment meets
               an impairment listed in appendix 1 of the relevant
               regulation; (4) whether the impairment precludes the
               claimant from doing his past relevant work; and
               (5) whether the impairment precludes the claimant from
               doing any work. If at any point in the process the
               [Commissioner] finds that a person is disabled or not
                                           2
considered medical records from, inter alia, state agency psychologist Dr. Matthew

Turner, Ph.D., who reviewed Fannin’s medical records related to treatment for his

mental health and completed a Mental Health Residual Functional Capacity

Assessment (“MRFCA”).

      In section I of the MRFCA, Dr. Turner opined Fannin showed “moderate[]”3

limitations in “[t]he ability to complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent

pace without an unreasonable number and length of rest periods.” Aplt. App. vol. 2

at 143. Dr. Turner wrote “see below” in the space requesting a narrative explanation

of those limitations. 

Id.

 In section III, Dr. Turner’s narrative explanation stated

Fannin “retain[ed] the ability to understand, remember and carry out detailed but not

complex instructions, make decisions, attend and concentrate for extended periods,

accept instructions [and] respond appropriately to changes in routine work setting.”

Id.

      At the hearing, the ALJ mirrored the language from Dr. Turner’s report in the

hypothetical she posed to a vocational expert:



             disabled, the review ends.

Trimiar v. Sullivan, 

966 F.2d 1326

, 1329 (10th Cir. 1992) (citation, footnote, and
internal quotation marks omitted).
      3
         The agency defines a “[m]oderate” limitation in mental functioning in a work
setting as one in which the claimant’s “functioning in this area independently,
appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 12.00.F.2.c.
                                           3
             [A] younger individual with the work background and
             education as indicated, who . . . hypothetically, has no
             exertional limitations, and is able to understand,
             remember, and carry out detailed, but not complex
             instructions, make decisions, attend and concentrate for
             extended periods, accept instructions, frequently interact
             with co-workers, supervisors, and the public, and respond
             to changes in routine work settings. Would this individual
             be able to do any of this person’s past work?

Id. at 81

–82. The vocational expert responded such an individual would be able to

perform Fannin’s past work as a delivery driver, truck driver, and surface cleaner.

She further opined such an individual could work as a laundry worker, hand

packager, or stocker.

      Based in part on the opinions of Dr. Turner and the vocational expert, at step

four the ALJ found Fannin “is capable of performing past relevant work as a delivery

driver, truck driver, and surface cleaner.” 

Id. at 175

. She also found, at step five,

“[i]n the alternative, considering [Fannin’s] age, education, work experience, and

residual functional capacity, there are other jobs that exist in significant numbers in

the national economy that [Fannin] also can perform,” including laundry worker,

hand packager, and stocker. 

Id. at 175

–76. The ALJ therefore concluded Fannin had

not been under a disability, as defined under Title II or XVI of the Social Security

Act. After exhausting his administrative remedies, Fannin filed a civil action seeking

review under 42 U.S.C. §§ 405(g) and 1383(c)(3). The district court affirmed the

ALJ’s decision, and Fannin appeals.




                                            4
                                    DISCUSSION

      We review the district court’s decision de novo, applying the same standards

as the district court. See Hendron v. Colvin, 

767 F.3d 951

, 954 (10th Cir. 2014).

We therefore review the decision of the ALJ to determine whether substantial

evidence supports her factual findings and whether she applied the correct legal

standards. See 

id.

 “[T]he threshold for such evidentiary sufficiency is not high.”

Biestek v. Berryhill, 

139 S. Ct. 1148

, 1154 (2019). Substantial evidence is “more

than a scintilla.” Glass v. Shalala, 

43 F.3d 1392

, 1395 (10th Cir. 1994). “We do not

reweigh the evidence or retry the case, but we meticulously examine the record as a

whole, including anything that may undercut or detract from the ALJ’s findings in

order to determine if the substantiality test has been met.” Flaherty v. Astrue,

515 F.3d 1067

, 1070 (10th Cir. 2007) (internal quotation marks omitted).

      Fannin challenges the ALJ’s decision in two respects. First, he contends the

hypothetical the ALJ propounded to the vocational expert did not adequately account

for the notations Dr. Turner made in section I of the MRFCA, resulting in improper

findings at steps four and five of the sequential evaluation. Second, he argues the

ALJ did not sufficiently consider or adequately explain the weight she gave to

Dr. Turner’s opinion. We reject each contention.

      1.     Appropriateness of hypothetical propounded to vocational expert

      Fannin argues the ALJ erred in propounding a hypothetical to the vocational

expert that encapsulated Dr. Turner’s conclusions in section III of the MRFCA but

not his remarks in section I. But the Social Security Administration’s Program

                                           5
Operations Manual System (POMS) characterizes section I as “merely a worksheet to

aid in deciding the presence and degree of functional limitations and the adequacy of

documentation [that] does not constitute the RFC assessment.” SSA POMS

DI24510.060 (bolding omitted). Challenges to whether an ALJ assessment of

residual functional capacity incorporate limitations in section I ask “the wrong

question. . . . We compare the administrative law judge’s findings to [Dr. Turner’s]

opinion on residual functional capacity, not [his] notations of moderate limitations.”

Smith v. Colvin, 

821 F.3d 1264

, 1269 n.2 (10th Cir. 2016).

      Dr. Turner included a narrative explanation in section III for his findings of a

moderate limitation in section I by concluding Fannin “retain[ed] the ability to

understand, remember and carry out detailed but not complex instructions, make

decisions, attend and concentrate for extended periods, accept instructions [and]

respond appropriately to changes in routine work setting.” Aplt. App. vol. 2 at 143.

This conclusion is consistent with his section I remarks that Fannin exhibited

“moderate”—that is, “fair,” see 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.F.2.c—

“ability to complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods,” Aplt. App. vol. 2 at 143, so the ALJ

did not err in conveying Dr. Turner’s Section III conclusion to the vocational expert.

      Even if it were possible to view Dr. Turner’s opinion or the ALJ’s findings

derived from it with more skepticism, to do so would require us to reweigh the



                                           6
evidence, which exceeds the scope of substantial-evidence review. See Glass,

43 F.3d at 1395

. We therefore reject Fannin’s first challenge to the ALJ’s decision.

      2.     Consideration of medical source opinions

      Fannin also argues the ALJ did not provide adequate justification for giving

Dr. Turner’s opinion partial weight. The ALJ concluded Dr. Turner’s opinion “was

persuasive at the time it was issued. However, evidence presented at the hearing

level, including mental health treatment notes . . . and [Fannin’s] testimony, supports

additional social limitations.” Aplt. App. vol. 2 at 174. Fannin contends the ALJ

“failed to explain exactly what it was in the newly admitted evidence of record and in

Claimant’s testimony that required elimination of the moderate limitations [described

in section I of the MRFCA],” Aplt. Opening Br. at 31, but in doing so he misreads

the ALJ’s decision.

      The ALJ did not eliminate the moderate limitations Dr. Turner noted in section

I of the MRFCA; she accounted for them by relying on Dr. Turner’s narrative

explanation for those limitations in section III. But while Dr. Turner opined Fannin

had “[n]o” social interaction limitations, Aplt. App. vol. 2 at 143, the ALJ concluded

Fannin could only “frequently” interact with coworkers, 

id. at 171

. Substantial

evidence supports this more restrictive RFC assessment, which favored Fannin.

      Relatedly, Fannin asserts the ALJ failed to adequately explain the reasons for

the weight she gave to Dr. Turner’s opinion because she did not discuss the factors in




                                           7
20 C.F.R. § 404.1527 or § 416.927.4 But the ALJ need not “apply expressly each of

the six relevant factors in deciding what weight to give a medical opinion.” Oldham

v. Astrue, 

509 F.3d 1254

, 1258 (10th Cir. 2007). The ALJ discussed factor 2, “the

nature and extent of the treatment relationship,” by recognizing Dr. Turner was a

“non-examining” source, Aplt. App. vol. 2 at 173; factors 3 and 4, “the degree to

which the physician’s opinion is supported by relevant evidence,” and “consistency

between the opinion and the record as a whole,” by finding Dr. Turner’s opinion was

persuasive when rendered but superseded in part by subsequent record evidence, 

id.

at 174

; and factor 5, “whether or not the physician is a specialist in the area upon

which an opinion is rendered,” by noting Dr. Turner was a psychologist, 

id. at 173

.

The ALJ decision was therefore “sufficiently specific to make clear to any

subsequent reviewers the weight [she] gave to the . . . opinion and the reasons for that

weight.” Oldham, 

509 F.3d at 1258

 (internal quotation marks omitted).



      4
          Those factors are:

               (1) the length of the treatment relationship and the
               frequency of examination; (2) the nature and extent of the
               treatment relationship, including the treatment provided
               and the kind of examination or testing performed; (3) the
               degree to which the physician’s opinion is supported by
               relevant evidence; (4) consistency between the opinion and
               the record as a whole; (5) whether or not the physician is a
               specialist in the area upon which an opinion is rendered;
               and (6) other factors brought to the ALJ’s attention which
               tend to support or contradict the opinion.

Goatcher v. U.S. Dep’t of Health & Hum. Servs., 

52 F.3d 288

, 290 (10th Cir. 1995).

                                            8
                            CONCLUSION

We affirm the judgment of the district court.


                                    Entered for the Court


                                    Joel M. Carson III
                                    Circuit Judge




                                    9

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