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Lull v. Colvin

United States Court of Appeals, Tenth Circuit

September 11, 2013

KITTY S. LULL, Plaintiff-Appellant,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration[*], Defendant-Appellee

D.C. No. 4:11-CV-00403-PJC) N.D. Okla.

Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior Circuit Judge.


Wade Brorby Senior Circuit Judge

Kitty S. Lull appeals from a district court order, issued by a magistrate judge under 28 U.S.C. § 636(c), affirming the Commissioner's decision to deny her claims for social security disability and supplemental security income benefits. We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and affirm.[1]


Ms. Lull alleges disability since March 21, 2008, due to depression, post-traumatic stress disorder, hypertension, diabetes mellitus, gastroesophageal reflux disease, irritable bowel syndrome, a ruptured disc in her lower back, bilateral shoulder problems, a crush injury of the left foot, and heel spurs. The magistrate judge thoroughly described the medical and psychological evidence; accordingly, we need not do so here. We discuss below the evidence pertinent to the issues presented for our review.

Ms. Lull requested and received a hearing before an administrative law judge (ALJ) at which she was represented by counsel. Ms. Lull and a vocational expert (VE) testified. The ALJ determined that Ms. Lull could not perform her past relevant work, but she could perform other work that existed in substantial numbers in the national economy. The ALJ found that Ms. Lull had the residual functional capacity (RFC) to perform light work as defined in the applicable regulations, "limited by no repetitious interaction with the general public or coworkers, and confined to simple, uncomplicated tasks with routine supervision." Aplt. App. Vol. 2 at 16. Consequently, he denied benefits at step five of the five-step sequence for determining disability. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (summarizing steps). The Appeals Council denied review and the district court affirmed.


"We independently review the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence . . . ." Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011). Ms. Lull advances two arguments on appeal.[2] First, she contends that the ALJ failed to properly consider the medical-source evidence by disregarding an opinion that she could sit for less than six hours in an eight-hour work day and by failing to account for inconsistencies in the psychological evaluation forms. Second, Ms. Lull argues that the ALJ disregarded the testimony of the VE.

Medical-source evidence

Brian Boggs, M.D., completed a Physical Residual Functional Capacity Assessment form on which he indicated that Ms. Lull could "sit (with normal breaks) for a total of less than about 6 hours in an 8-hour workday." Aplt. App. Vol. 3 at 404. Ms. Lull therefore argues that she cannot perform light work because light work requires "sitting most of the time, " 20 C.F.R. §§ 404.1567(b), 416.967(b) (defining "light" work). But the VE testified that of the three "light" jobs she identified as appropriate for Ms. Lull, only one—office helper—required significant sitting. The other two jobs—merchandise marker (over one million in the national economy) and laundry classifier (506, 000 in the national economy)—would require "standing for typically longer periods [than] sitting [or] changing positions or lifting, " Aplt. App. Vol. 2 at 58. Ms. Lull does not challenge the VE's evidence that the number of jobs for the two non-sitting classifications exist in significant numbers in the national economy. Accordingly, the sitting limitation indicated by Dr. Boggs did not affect the ALJ's determination at step five that Ms. Lull had the RFC to perform a significant number of jobs that existed in the national economy.

Next, Ms. Lull asserts that the ALJ failed to account for the inconsistencies in the state agency reviewers' opinions concerning her abilities to maintain concentration, persistence, or pace. Two parts of the psychological evaluation documents form the basis of this argument: the Psychiatric Review Technique (PRT) and the Mental Residual Functional Capacity Assessment (MRFCA). On the PRT, Ms. Lull's ability to maintain concentration, persistence, or pace was indicated as "moderate, " Aplt. App. Vol. 3 at 382, while on the MRFCA, several abilities were indicated as "markedly limited:" "[t]he ability to understand and remember detailed instructions, . . . [t]he ability to carry out detailed instructions, [and] [t]he ability to interact appropriately with the general public, " id. at 386-87. Ms. Lull's other abilities on the MRFCA were listed as "not significantly limited, " including her "ability to maintain attention and concentration for extended periods." Id. at 386. Although Ms. Lull concedes that "the PRT form and the MRFCA form are two different forms for two different purposes, " she argues that the "limitations should be the same on each form." Aplt. Opening Br. at 20.

The PRT is used to assess mental impairments for purposes of steps two (identifying severe impairments) and three (rating severity for the listings). See generally 20 C.F.R. §§ 404.1520a, 416.920a. It addresses the B and C criteria of the listings for mental impairments, using four categories of limitation stated in the B criteria: restriction of activities of daily living; difficulties in maintaining social functioning; difficulties in maintaining concentration, persistence, or pace; and episodes of decompensation. See Aplt. App. Vol. 3 at 382.

The MRFCA, on the other hand, addresses twenty specific mental functions relevant to the vocational determinations required at ...

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