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Rivera v. Colvin

United States Court of Appeals, Tenth Circuit

October 20, 2015

ANITA RIVERA, Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.

D.C. No. 1:13-CV-01890-WJM (D. Colo.)

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT [*]

GREGORY A. PHILLIPS CIRCUIT JUDGE

Anita Rivera appeals the district court's order upholding the decision of an administrative law judge (ALJ) to deny her application for social security benefits. We affirm.

I. Background

Rivera applied for disability insurance benefits and supplemental security income. She claimed that, beginning June 1, 2007, she became unable to work due to anxiety, depression, social phobia, and mental distress. Following a hearing, the ALJ found that Rivera was not disabled within the meaning of the Social Security Act and denied her application. The district court affirmed the ALJ's decision.

On appeal, Rivera argues the ALJ erred when he denied her application. Specifically, she claims the ALJ improperly weighed the opinions of two psychiatrists and posed inadequate hypothetical questions to a vocational expert (VE). We reject these claims in turn.

II. Standard of Review

The applicant in a social security case bears the burden to prove a qualifying disability. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). While we review the district court's ruling de novo, Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009), our review of the ALJ's decision is limited to determining whether the ALJ correctly applied the law and whether substantial evidence supports the ALJ's findings, see Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014). Evidence is substantial if a reasonable mind might accept it as adequate to support a conclusion. Wall, 561 F.3d at 1052. "It requires more than a scintilla, but less than a preponderance." Id. (internal quotation marks omitted). "[E]vidence is not substantial if it is overwhelmed by other evidence in the record." Id. (internal quotation marks omitted).

We do not reweigh the evidence before the ALJ or substitute our judgment for the ALJ's. Knight, 756 F.3d at 1175. Likewise, where the evidence supports contrary findings, we will not disturb the ALJ's choice between them even if we would have made a different decision. Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).

Finally, we review only issues that were properly preserved in the district court and adequately presented on appeal. Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011).

III. The ALJ Properly Weighed the Psychiatrists' Opinions

After Rivera applied for social security benefits, she met with psychiatrist Stuart Kutz, who conducted a mental status examination. Dr. Kutz diagnosed Rivera with panic disorder with agoraphobia, post-traumatic stress disorder, depressive disorder, a history of alcohol dependence, and cannabis abuse. He concluded that "[r]elative to a competitive work setting throughout the day, [Rivera's] attention/concentration, persistence and pace in task completion, and social adaptation all would be moderately to markedly impaired. Her understanding and memory seem perhaps mildly to moderately impaired." Aplt. App., Vol. 2 at 359.

A few weeks later, Dr. Arthur Lewy, a psychiatrist with Disability Determination Services (DDS), reviewed Dr. Kutz's report and the rest of Rivera's available records. He concluded that, despite her impairments, Rivera could understand and remember simple instructions, tolerate brief interactions with the public, "accept supervision ...


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