Michelle Beckley Kidd v. Commissioner, Ssa

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MICHELLE BECKLEY KIDD,
Plaintiff - Appellant,
v.
COMMISSIONER, SSA,
Defendant - Appellee.
No. 21-1363
(D.C. No. 1:20-CV-01357-LTB)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Michelle Beckley Kidd appeals from the district court’s order denying her
application for Social Security disability insurance benefits. Exercising jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
I. BACKGROUND
In her initial application for benefits, Ms. Kidd alleged she was disabled
beginning December 31, 2011, through December 31, 2015, and sought benefits for
* 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 This order and judgment is not binding precedent,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.
FILED
United States Court of Appeals
Tenth Circuit
August 2, 2022
Christopher M. Wolpert
Clerk of Court
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those years. Following a hearing, the administrative law judge (“ALJ”) determined
that she was not disabled and denied benefits. The Appeals Council reversed and
remanded for the ALJ to consider Ms. Kidd’s residual functional capacity (“RFC”).
On remand, Ms. Kidd amended the alleged onset date to December 17, 2013.
The ALJ conducted a second hearing. Using the five-step sequential
evaluation process, 1 the ALJ determined Ms. Kidd had the following severe
impairments: “depression; anxiety; sleep apnea; asthma; obesity; hypertension;
neurogenic bladder; irritable bowel syndrome; carpal tunnel syndrome; a history of
congenital spina bifida with chronic back pain; and, status-post multiple surgeries
(2007-2010) for a vascular malformation.” Aplt. App., Vol. 3 at 70 (boldface
omitted). The ALJ further noted “that in October 2015 [Ms. Kidd] sustained a left
rotator cuff tear, which was surgically repaired on November 18, 2015. She
subsequently underwent physical therapy . . . between January and June 2016, as well
as [physical therapy and a series of injections] for problems with her left knee,”
1 The Social Security Administration employs a five-part sequential evaluation to
determine whether a claimant is disabled.
(1) The claimant must establish she is not engaged in substantial gainful activity.
(2) The claimant must establish she has a medically severe (a) impairment or (b)
combination of impairments.
(3) The ALJ must determine whether any medically severe (a) impairment or (b)
combination of impairments is equivalent to any of the impairments listed in
the regulation that preclude substantial gainful employment. If listed, the
impairment is presumptively disabling.
(4) The claimant must establish her impairment prevents her from performing her
past work.
(5) The Commissioner must show the claimant has the residual functional capacity
to perform other work in the national economy.
See 20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748, 750-53 (10th Cir. 1988).
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which developed in December 2015. Id. at 71 (citation omitted). Although the ALJ
found that the knee and shoulder impairments were not severe because they did not
meet the duration requirement, the ALJ considered them and their resulting
limitations in assessing Ms. Kidd’s RFC.
At step four of the five-step sequential evaluation process, the ALJ found that
Ms. Kidd retained the RFC to perform a range of light work, with the following
limitations relevant to this appeal: sit for six hours and stand and/or walk for six
hours in an eight-hour workday; a stand/stretch option such that she could sit or stand
at a workstation, provided she could remain on task and not be off task more than
10% of the time; frequently push or pull with both arms; occasionally operate foot
controls with her right leg and frequently with her left leg; occasionally climb ramps,
stairs, balance, stoop, kneel, crouch, and crawl; occasionally lift overhead within
18 inches to the front and sides of the body with her left arm and frequently lift in all
other directions; no exposure to cold or hot temperature extremes; occasional
exposure to wetness, humidity, and excessive vibration; no exposure to coarse
vibration with her left arm; and occasional exposure to environmental irritants, such
as fumes, odors, dusts, and gases.
At step five, the ALJ found Ms. Kidd was not disabled because there were a
significant number of jobs in the national economy that she could perform. The
Appeals Council denied review, the district court affirmed, and Ms. Kidd appeals.
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II. DISCUSSION
On appeal, Ms. Kidd asserts the ALJ (1) failed to include appropriate
limitations based on central sleep apnea in assessing her RFC, (2) misinterpreted the
duration requirement for her knee and shoulder impairments, (3) erred in discounting
the opinion of an examining medical consultant, and (4) erred in finding that her
reported symptoms were inconsistent with the medical evidence.
A. Standard of Review
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quotations omitted). “[T]he threshold for such evidentiary sufficiency is not high.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. It requires more than a scintilla, but less than a preponderance.” Lax,
489 F.3d at 1084 (quotations omitted).
“We consider whether the ALJ followed the specific rules of law that must be
followed in weighing particular types of evidence in disability cases, but we will not
reweigh the evidence or substitute our judgment for the Commissioner’s.” Id.
(quotations omitted). Thus, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings
from being supported by substantial evidence.” Id. (quotations omitted).
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“[T]he failure to apply proper legal standards may, under the appropriate
circumstances, be sufficient grounds for reversal independent of the substantial
evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014)
(quotations omitted). But the failure to apply the proper legal standard requires
reversal only where the error was harmful. Cf. Shinseki v. Sanders, 556 U.S. 396,
409 (2009) (placing the burden to show harmful error on the party challenging an
agency’s determination).
B. Analysis
With the foregoing standards in mind, we address Ms. Kidd’s four assertions
of error.
1. Central Sleep Apnea
Ms. Kidd maintains the ALJ failed to include appropriate limitations based on
central sleep apnea in the RFC. We disagree.
In 2010, Ms. Kidd was diagnosed with both obstructive and central sleep
apnea. Initially, she used a continuous positive airway pressure machine and oxygen
at night, but she continued to have unrefreshing sleep and nocturnal gasping. In early
2013, she tried an Adaptive Servo Ventilation machine (ASV) for a few days, but
decided not to use it because it exacerbated her pulmonary hypertension and caused
chest pain. Eventually, Ms. Kidd began using a bi-level positive airway pressure
machine (BiPAP) and nighttime oxygen, which resulted in some improvement.
Richard Carson, M.D., performed a consultative medical examination in
October 2014. He noted Ms. Kidd’s chief complaints as back pain, sleep apnea, and
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stomach issues. He wrote that Ms. Kidd “has been diagnosed with sleep apnea, both
central and obstructive,” and because she gets only a few hours of sleep each night,
she reports “feel[ing] tired all the time and has difficulty concentrating.” Aplt. App.,
Vol. 7 at 36 (emphasis added). Although Dr. Carson was aware of Ms. Kidd’s
diagnosis and complaints of chronic fatigue, he did not list any limitations related to
sleep apnea.
In August 2017, David Wallack, M.D., also performed a consultative medical
examination. He noted that Ms. Kidd had been diagnosed with “[s]leep apnea,
central.” Id., Vol. 10 at 61. She reported “trouble falling asleep, . . . trouble staying
asleep,” and being “tired and forgetful.” Id. Like Dr. Carson, Dr. Wallack listed no
limitations based on sleep apnea.
At the first administrative hearing in September 2017, Ms. Kidd testified she
had “severe central sleep apnea, and [her] sleep is just horrific.” Id., Vol. 3 at 109.
As a result, she said she was foggy, had difficulty concentrating, and typically slept
three hours during the day.
Medical expert Steven Golub, M.D., testified at the second administrative
hearing in June 2019. He said Ms. Kidd had been diagnosed with both obstructive
and central sleep apnea and used a BiPAP machine and supplemental oxygen at
night. When the ALJ asked about environmental limitations relative to Ms. Kidd’s
impairments, Dr. Golub said she should have “only occasional exposure to
pulmonary irritants and probably no exposure to extreme cold.” Id. at 176.
Ms. Kidd’s attorney asked about the “likely adverse effects of . . . sleep apnea.” Id.
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at 186. Dr. Golub explained that Ms. Kidd suffered primarily from central sleep
apnea, and “there are multiple possible effects from [central] sleep apnea, but . . .
essentially, what it can do is [it] can cause increased pulmonary hypertension . . .
[and] shortness of breath on exertion. [T]hat’s why I included . . . exposure to
irritants—pulmonary irritants, [and to] also avoid certain temperatures.” Id.
at 186-87. Dr. Golub also acknowledged that sleep apnea can cause fatigue but did
not identify any fatigue-related limitations.
Incorporating the limitations testified to by Dr. Golub in the RFC, the ALJ
found that Ms. Kidd “should not have exposure to temperature extremes of cold/hot”
and “could have [only] occasional exposure to environmental irritants such as fumes,
odors, dusts and gases.” Id. at 74 (boldface omitted).
Ms. Kidd maintains the ALJ should have included other limitations in the
RFC, namely chronic fatigue and her need to sleep for several hours during the day.
After reviewing all the evidence, the ALJ determined there were either no limitations
based on central sleep apnea or only those identified by Dr. Golub. Substantial
evidence supports this finding. We thus affirm.
2. Duration Requirement
Ms. Kidd argues that the ALJ misinterpreted the duration requirement for her
knee and shoulder impairments. We conclude that any such error was harmless.
In October 2015, Ms. Kidd injured her left rotator cuff. In November, she had
successful left shoulder surgery and was referred to physical therapy. On December
1, she experienced pain and swelling in her left knee and visited the emergency room.
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On December 3, an orthopedist diagnosed Ms. Kidd with a meniscus tear and primary
osteoarthritis. She was treated conservatively with cortisone injections, physical
therapy, home exercises, and a knee brace.
In January 2016, Ms. Kidd completed a report as part of her benefits
application indicating that she cooked and cleaned for her three sons and her
husband; drove her children to sporting events and games; did household chores,
such as laundry, light cleaning, and planting flowers; and shopped for groceries. In
February, she reported a “[m]oderate activity level,” including walking and
exercising several times a week. Id., Vol. 10 at 105. At a physical therapy
appointment in early March, Ms. Kidd said that the injections were “starting to help
overall.” Id. at 37. By mid-March, she said that her shoulder felt “‘amazing,’” id. at
84, and her knee felt “‘great,’” id. at 30. Thereafter, Ms. Kidd had mostly minimal
knee and shoulder complaints. By the end of physical therapy treatments in
September, she had met her goals and was able to manage her symptoms on her own.
Records from a visit to a pain management clinic in November note that her pain
medications “continue to be tolerated well and [are] efficacious.” Id., Vol. 11 at 68.
The ALJ determined that the knee and shoulder impairments “are not
considered severe medical impairments that more than minimally affected [Ms.
Kidd’s] ability to work for the requisite duration of at least 12 continuous months on
and before [Ms. Kidd’s] date last insured.” Id., Vol. 3 at 71. 2 In other words, the
2 The term “date last insured” refers to the last date on which Ms. Kidd met the
insured status requirements of the Social Security Act. See 42 U.S.C. § 423. The
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ALJ interpreted the duration requirement to mean that an impairment is not
considered severe unless it existed for twelve continuous months before the date last
insured.
The Commissioner concedes the ALJ likely errored because there is no
requirement that the entire twelve-month period predate the date last insured for an
impairment to be deemed severe. Instead, it is enough that an impairment, expected
to last twelve continuous months arose before the date last insured. See 20 C.F.R.
§ 404.1509 (requiring that an impairment last or be expected to last 12 continuous
months to be considered severe); 42 U.S.C. § 423(d)(1) (defining “disability” as the
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months”).
Despite the ALJ’s apparent misinterpretation of the duration requirement, the
Commissioner maintains that Ms. Kidd “cannot meet her burden to show that she was
prejudiced by this mistake.” Aplee. Br. at 26. We agree because the ALJ included
limitations in the RFC based on the shoulder and knee impairments.
ALJ found, and the parties agree, that Ms. Kidd’s “earnings record shows that [she]
has acquired sufficient quarters of coverage to remain insured through December 31,
2015 (hereinafter ‘the date last insured’).” Aplt. App., Vol. 3 at 68. Thus, to be
entitled to a period of disability and disability insurance benefits, Ms. Kidd was
required to establish disability on or before December 31, 2015, the date last insured.
See Flaherty v. Astrue, 515 F.3d 1067, 1069 (10th Cir. 2007) (requiring a claimant to
establish the onset of disability before the expiration of her insured status).
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The regulations require an ALJ to consider the combined impact of all
impairments, including non-severe impairments, when assessing a claimant’s RFC.
See 20 C.F.R. § 404.1545(a)(2) (“We will consider all . . . medically determinable
impairments . . . including [a claimant’s] medically determinable impairments that
are not ‘severe’ . . . [in] assess[ing] [a claimant’s] residual functional capacity.”).
“Thus, the failure to find a particular impairment severe at step two is not reversible
error when the ALJ finds that at least one other impairment is severe.” Allman v.
Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). See also Smith v. Colvin, 821 F.3d
1264, 1266-67 (10th Cir. 2016) (finding the ALJ’s failure to treat claimant’s shoulder
impairment as severe at step two to be harmless error when the ALJ considered the
shoulder impairment in assessing the claimant’s RFC). Here, as in Allman, there was
no reversible error because the ALJ found several severe impairments at step two,
and went on to include the knee and shoulder impairments and their resulting
limitations in assessing the RFC.
In particular, the ALJ found that “due to [Ms. Kidd’s] . . . knee impairment . . .
and ongoing back issues . . . she should [be] permitted a stand/stretch option, such
that she could sit or stand at the work station[,] provided that she could remain on
task and not be off task more than 10% of the time.” Id. at 79. “Moreover, . . .
because of [Ms. Kidd’s] back and knee problems,” the ALJ found that “she could
operate foot controls no more than occasionally with the right lower extremity and
frequently with the left lower extremity.” Id. And because of the knee impairment,
the ALJ found that she could only “occasionally climb ramps and stairs and
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occasionally balance, stoop, kneel, crouch and crawl.” Id. at 79-80. The ALJ
incorporated these limitations in the RFC.
The ALJ also found that limitations regarding Ms. Kidd’s shoulder impairment
were appropriate. “Of note, this includes restrictions on reaching, pushing and
pulling with the left upper extremity due to a left shoulder injury and related surgery
that occurred just prior to [Ms. Kidd’s] date last insured.” Id. at 76. The ALJ noted
that “Dr. Golub . . . concede[d] that due to [Ms. Kidd’s] shoulder impairment which
was present at the time of her date last insured, she likely would have been limited to
occasionally reaching overheard and occasionally reaching forward and to the sides
more than 18 inches.” Id. The ALJ also found that Ms. Kidd “should . . . have no
exposure to coarse vibration with the left upper extremity.” Id. at 79. Once again,
the ALJ incorporated these restrictions in the RFC.
Ms. Kidd’s argument that the ALJ directed Dr. Golub to ignore Ms. Kidd’s
knee impairment lacks record support. We have carefully reviewed the transcript
from the June 2019 hearing. Although some questions and answers could have been
more precise, the ALJ asked Dr. Golub whether he found anything in the record to
support any significant limitations based on Ms. Kidd’s knee impairment during the
relevant period—December 17, 2013, through December 31, 2015. Dr. Golub
testified that he did not. 3
3 Ms. Kidd’s attorney could have but did not question Dr. Golub about any
limitations based on the knee impairment or ask him to clarify his testimony. See
Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (“[I]n cases . . . where the
claimant was represented by counsel at the hearing . . . the ALJ should ordinarily be
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We conclude that the ALJ’s apparent misinterpretation of the duration
requirement was harmless because the ALJ found other severe impairments at step
two and considered the limiting effects of the knee and shoulder impairments in
assessing Ms. Kidd’s RFC.
3. Dr. Wallack’s Opinion
Ms. Kidd contends the ALJ improperly discounted Dr. Wallack’s opinion. We
disagree.
Dr. Wallack performed a consultative medical examination in August 2017.
Based on his findings, he opined that Ms. Kidd could sit for only thirty minutes at
one time without interruption for a total of four hours in an eight-hour workday,
stand for only thirty minutes at one time without interruption for a total of four hours
in an eight-hour workday, and walk for only five minutes at a time for a total of forty
minutes in an eight-hour workday. He also opined that Ms. Kidd could only
occasionally balance and stoop; never climb stairs, ramps, ladders, or scaffolds; and
never kneel, crouch, or crawl. According to Ms. Kidd, these limitations should have
required a finding of disability at step five.
An examining doctor’s opinion “may be dismissed or discounted” if the ALJ
properly evaluates it under 20 C.F.R. § 404.1527(c) and provides “specific,
entitled to rely on the claimant’s counsel to structure and present claimant’s case in a
way that the claimant’s claims are adequately explored, and the ALJ may ordinarily
require counsel to identify the issue or issues requiring further development.”
(quotations omitted)).
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legitimate reasons for rejecting it.” Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir.
2012) (quotations omitted). “Supportability,” a factor used to evaluate medical
opinions, means “[t]he more a medical source presents relevant evidence to support a
medical opinion, particularly medical signs and laboratory findings, the more weight
[the Commissioner] will give that medical opinion.” § 404.1527(c)(3).
The ALJ discounted Dr. Wallack’s opinion primarily because it did not
address Ms. Kidd’s limitations as they existed during the relevant period—December
17, 2013, through December 31, 2015. The ALJ noted that Dr. Carson’s 2014 report
stated it “was based on examination findings during the relevant period.” Aplt. App.,
Vol. 3 at 81. By contrast, Dr. Wallack examined Ms. Kidd in August 2017. His
opinion was based on examination findings made twenty months outside the relevant
period.
Moreover, the ALJ found that “many of the limitations opined by Dr. Wallack
in August 2017 are attributable to . . . impairments, [that] just recently began to cause
[Ms. Kidd] problems,” or “were not present” in December 2015. Id. at 80. For
example, Ms. Kidd told Dr. Wallack in August 2017 that she was in pain and could
only walk two blocks. But in February 2016—closer to the relevant period—Ms.
Kidd reported walking and exercising three to four times a week, and by March her
knee was doing great. Also unavailing is Ms. Kidd’s argument that Dr. Wallack’s
opinion “clearly related back to the time before the date last insured [because the
knee impairment] was no worse and no better by 2017.” Aplt. Opening Br. at 47.
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To the contrary, the evidence showed that during the twelve months following
December 2015, Ms. Kidd’s knee condition improved.
The Commissioner concedes that the ALJ mistakenly stated that Ms. Kidd did
not report any knee problems to Dr. Wallack. But the ALJ’s misstatement was
harmless because limitations found in August 2017 is not probative of any significant
limitations during the relevant period.
4. Consistency of Statements
Ms. Kidd challenges the ALJ’s statement that her “medically determinable
[knee and sleep apnea] impairments could reasonably be expected to cause some of
the alleged symptoms[,] . . . [her] statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record.” Aplt. App., Vol. 3 at 75. We conclude
that substantial evidence supports the ALJ’s credibility analysis.
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial evidence.”
Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (quotations omitted). We
will uphold the ALJ’s findings as long as they are “closely and affirmatively linked
to substantial evidence and not just a conclusion in the guise of findings.” Id.
(quotations omitted). When considering a claimant’s allegations regarding
symptoms, an ALJ considers factors such as the objective medical evidence, daily
activities, effectiveness of medication, and treatment other than medication used to
relieve symptoms. 20 C.F.R. § 404.1529(a), (c).
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Here, the ALJ acknowledged Ms. Kidd’s complaints that her knee was painful
and prevented her from walking more than a few blocks and that her sleep apnea
caused fatigue, fogginess, and difficulty concentrating. But in discounting the
intensity, persistence, and limiting effects of these symptoms, the ALJ pointed to
objective medical evidence and Ms. Kidd’s own testimony indicating her knee and
apnea conditions improved with treatment. The ALJ also noted that shortly after
Ms. Kidd’s insured status expired in December 2015, she reported daily activities
that included taking care of her three children, tending to basic chores (albeit with
assistance), shopping, and other activities.
To support her position, Ms. Kidd makes four arguments.
First, she disputes the ALJ’s assessment that an October 2012 treatment note
from Christopher A. Trojanovich, M.D., who wrote that Ms. Kidd was a “‘full time
mom,’” included “no subjective indication that [she] was unable to work on the basis
of her medical complaints.” Aplt. App., Vol. 3 at 78. Ms. Kidd argues this statement
predates the relevant period. But the ALJ cited this evidence in evaluating the
consistency of Ms. Kidd’s complaints that she suffered chronic back pain from
surgeries that occurred before the alleged disability onset date, the last of which was
in 2010. The ALJ’s reference to the treatment note had nothing to do with her knee
or sleep apnea.
Second, Ms. Kidd argues that her central sleep apnea significantly deteriorated
between Dr. Trojanovich’s October 2012 treatment note and her alleged onset of
disability in December 2013. But again, the ALJ’s evaluation of sleep apnea was not
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based on Dr. Trojanovich’s note. It was based on evidence that her apnea improved
after she started using the BiPAP machine.
Third, Ms. Kidd also challenges the ALJ’s finding of “questionable treatment
compliance” for sleep apnea. Id. But treatment notes from 2014 and 2015 indicating
that she had stopped using the ASV machine supported this finding.
Fourth, Ms. Kidd complains that the ALJ, in evaluating her symptoms,
considered a treatment note from February 2016 indicating that she walked and
exercised three to four times a week and had hobbies of crocheting, photography, and
camping. We need not address this argument because the ALJ did not consider these
activities and hobbies in evaluating her symptoms.
We reject Ms. Kidd’s argument that substantial evidence fails to support the
ALJ’s credibility determination.
II. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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