608 F. App'x 566
10th Cir.2015Background
- Elizabeth Duncan, former daycare master teacher, underwent bilateral carpal and cubital tunnel surgeries in 2009 and was diagnosed with diabetic peripheral neuropathy and cervical degenerative disc disease; she applied for SSDI alleging disability beginning October 18, 2009.
- ALJ held hearings, ordered EMG/NCS testing, received a May 2011 consultative EMG/NCS (showing mild right carpal tunnel and bilateral lower extremity sensory neuropathy but no radiculopathy), and considered a September 2011 cervical MRI (showing marked degenerative disease and a syrinx).
- ALJ found severe impairments (diabetes with neuropathy, mild bilateral carpal tunnel, cervical degenerative disc disease, osteoarthritis, hypertension, hyperlipidemia, major depressive disorder), but not presumptively disabling under the listings.
- ALJ discounted claimant credibility, adopted an RFC limiting Duncan to a restricted range of sedentary work, found she could not do past relevant work, but—relying on VE testimony—found other jobs existed nationally; Appeals Council denied review.
- District court affirmed; Tenth Circuit reviewed for substantial evidence and legal error and affirmed the Commissioner’s denial of benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ failed to develop the record / violated due process by not ordering further consultative exams or medical-source statement | Duncan: ALJ should have ordered additional testing and a medical-source statement regarding EMG and MRI findings to determine RFC | Commissioner: ALJ ordered EMG/NCS, considered results and existing clinical evidence; additional consultative testing was discretionary and unnecessary | Affirmed — ALJ adequately developed the record; existing tests and prior examinations sufficed to assess RFC |
| Whether ALJ improperly weighed medical opinions (Drs. Trinidad and DePaula) | Duncan: ALJ ignored or insufficiently explained weight given to treating/examining physicians and should have recontacted Dr. Trinidad to clarify “repetitive” | Commissioner: ALJ discussed and gave appropriate (non-controlling) weight; disability and RFC opinions are reserved to Commissioner and not controlling; no clear work-limiting opinion from DePaula to weigh | Affirmed — ALJ sufficiently explained weight for Trinidad and properly treated DePaula’s records; recontact unnecessary |
| Whether claimant met or equaled Listing 1.04A (spinal disorder) | Duncan: MRI and clinical findings show nerve-root compromise meeting Listing 1.04A | Commissioner: EMG/NCS showed no radiculopathy; claimant bears burden to prove all listing criteria; no medically acceptable test proving required nerve-root compression | Affirmed — ALJ’s brief step-three treatment was harmless error; substantial evidence shows listing not met and claimant failed to establish all criteria |
| Whether ALJ’s hypothetical to the VE and step-four/five findings omitted limitations (e.g., no prolonged overhead gazing; superficial contact) and whether VE jobs conflict with DOT | Duncan: Sedentary hypothetical omitted “no prolonged overhead gazing” and limited social contact; VE jobs require significant people contact per DOT | Commissioner: Sedentary hypothetical built on earlier hypotheticals that included those limits; DOT descriptions (and VE testimony) show at least two identified jobs are consistent with limited/socially superficial contact | Affirmed — omission was harmless; VE testimony and DOT descriptions support availability of alternative jobs |
Key Cases Cited
- Lax v. Astrue, 489 F.3d 1080 (10th Cir. 2007) (explaining five-step sequential disability evaluation)
- Hawkins v. Chater, 113 F.3d 1162 (10th Cir. 1997) (ALJ duty to develop the record and when consultative exams may be required)
- Branum v. Barnhart, 385 F.3d 1268 (10th Cir. 2004) (ALJ’s responsibility to ensure an adequate hearing record)
- Fischer-Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005) (step three — burden to show impairment meets or equals a listing)
- Sullivan v. Zebley, 493 U.S. 521 (1990) (claimant must show all criteria of a listing are met)
- Hackett v. Barnhart, 395 F.3d 1168 (10th Cir. 2005) (interpreting DOT "People" component and VE/DOT consistency)
- Wilson v. Astrue, 602 F.3d 1136 (10th Cir. 2010) (standards for reviewing credibility findings)