Morrison v. Barnhart , 144 F. App'x 740 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 15, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TED G. MORRISON,
Plaintiff-Appellant,
No. 04-1510
v. (D.C. No. 03-RB-1318 (PAC))
(D. Colo.)
JO ANNE B. BARNHART,
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , McKAY , and PORFILIO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff appeals from a district court order affirming the Commissioner’s
decision to deny social security disability insurance benefits. We examine the
record as a whole to determine whether that decision is supported by substantial
evidence and adheres to applicable legal standards, though the scope of our review
is limited to the issues preserved and presented on appeal. Chambers v. Barnhart ,
389 F.3d 1139, 1142 (10th Cir. 2004). Plaintiff contends that he should have been
found disabled under the listing for affective disorder (in particular, depression),
20 C.F.R. Subpt. P., App. 1, § 12.04, 1 based on findings of his treating physician,
Dr. Gerd Leopoldt, which he argues were improperly rejected. We affirm for the
reasons explained below.
There are two sets of criteria, specified in paragraphs A and B of § 12.04,
which must be met before a claimant may be found disabled under this listing. 2
The criteria in paragraph A “substantiate medically the presence of a particular
mental disorder,” while those in paragraph B describe “functional limitations that
are incompatible with the ability to do any gainful activity.” 20 C.F.R. Subpt. P.,
App. 1, § 12.00(A). The presence of a depressive disorder requires the medically
documented persistence of at least four of the nine characteristics specified in
1
Citations herein to the Code of Federal Regulations are to those regulations
in effect at the time of the administrative law judge’s decision in April 2002. See
Branum v. Barnhart , 385 F.3d 1268, 1271 n.2 (10th Cir. 2004).
2
Plaintiff does not contend that he qualifies under the alternative criteria set
out in § 12.04(C).
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§ 12.04(A)(1)(a)-(i). This prerequisite does not appear to be in dispute; the ALJ
acknowledged that, “[o]n the basis of claimant’s treating psychiatrist’s progress
notes, the claimant’s depression is characterized by an appetite disturbance with
change in weight [ id. , sub. (b)], sleep disturbance [ id. , sub. (c)], decreased energy
[id. , sub. (e)], difficulty concentrating or thinking [ id. , sub. (g)], and feelings of
guilt or worthlessness [ id. sub. (f)].” R. Vol. II, at 16; see id. at 187 (report from
Dr. Leopoldt reflecting above findings symptoms and also including “Psychomotor
agitation or retardation [ § 12.04(A)(1)(d)]”).
The focus of this appeal is, rather, on the functional criteria in paragraph B
of the listing. To be deemed disabling, a depressive disorder substantiated under
paragraph A must result in at least two of four specified limitations:
1. Marked restriction of activities of daily living; or
2. Marked deficiencies in maintaining social functioning; or
3. Marked deficiencies in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. Subpt. P., App. 1, § 12.04(B). Doctor Leopoldt found that plaintiff’s
disorder satisfied limitations 2, 3, and 4. See R. Vol. II, at 189. Thus, plaintiff
would meet the listing unless two of Dr. Leopoldt’s findings were rejected. 3
3
Plaintiff does not contend that he satisfies the limitation in § 12.04(B)(1).
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In fact, the administrative law judge (ALJ) rejected all three salient findings
by Dr. Leopoldt, holding that plaintiff did not meet any of the § 12.04(B) criteria.
The critical question here, therefore, is whether the ALJ gave “‘specific legitimate
reasons’ for doing so.” Watkins v. Barnhart , 350 F.3d 1297, 1301 (10th Cir. 2003)
(quoting Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996) (further quotation
omitted)). If at least two of Dr. Leopoldt’s findings were properly rejected,
plaintiff’s challenge to the denial of benefits must fail.
Initially, Dr. Leopoldt provided his findings merely by circling criteria listed
in a form letter, without giving any supporting explanation. 4
R. Vol. II, at 187,
189. This was particularly problematic in that the fairly superficial and generally
positive comments in his treating notes, see id. at 190-215, did not translate to the
severe limitations he indicated on the letter. At the January 2002 administrative
4
It appears that Dr. Leopoldt was working from a form incorporating an
outdated version of § 12.04, which was revised, in conjunction with a general
revision to the § 12.00 regulations, over a year earlier. See 65 Fed. Reg. 50746(Aug. 21, 2000). However, a comparison between the 2000 and 2001 versions
reveals that, while there were some changes in wording, the basic terminology of
the § 12.04(B) criteria was retained. Moreover, neither party has mentioned this
discrepancy much less argued that the analysis of Dr. Leopoldt’s report and the
ALJ’s rejection thereof is materially affected by it. As will be seen, the ALJ’s
reasons for rejecting Dr. Leopoldt’s findings (and hence the focus of plaintiff’s
arguments on appeal) relate to broad deficiencies in the rationales Dr. Leopoldt
gave for his findings, not the precise wording of the findings themselves. We
shall, therefore, likewise focus on the rationales stated for Dr. Leopoldt’s findings
and not engage in a detailed, sua sponte parsing of the language used in those
findings in relation to the revised regulation.
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hearing, the ALJ noted the need for substantiation/clarification of the conclusory
findings reflected in the letter, and plaintiff’s attorney secured an extension to
obtain the information, see id. at 272-73, 306-07, 310-11. Asked to explain the
basis of his findings, Dr. Leopoldt handwrote cursory comments on a letter
reciting the § 12.04(B)(2)-(4) criteria he had previously circled. Id. at 28.
As noted above, Dr. Leopoldt found plaintiff had marked deficiencies in
maintaining social functioning. “Marked” here “means more than moderate but
less than extreme;” it signifies a limitation that “interfere[s] seriously with your
ability to function independently, appropriately, effectively, and on a sustained
basis.” 20 C.F.R. § 12.00(C). “Social functioning,” in turn,
refers to your capacity to interact appropriately, effectively, and on a
sustained basis with other individuals. Social functioning includes
the ability to get along with others, such as family members, friends,
neighbors, grocery clerks, landlords, or bus drivers. You may
demonstrate impaired social functioning by, for example, a history of
altercations, evictions, firings, fear of strangers, avoidance of
interpersonal relationships, or social isolation. You may exhibit
strength in social functioning by such things as your ability to initiate
social contacts with others, communicate clearly with others, or
interact and actively participate in group activities. We also need to
consider cooperative behaviors, consideration for others, awareness of
others’ feelings, and social maturity. Social functioning in work
situations may involve interactions with the public, responding
appropriately to persons in authority (e.g., supervisors), or
cooperative behaviors involving coworkers.
Id. , § 12.00(C)(2).
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When asked to substantiate his finding on this point, Dr. Leopoldt wrote the
following notation: “withdraws socially–interacts mainly with family–very guarded
[with] strangers.” R. Vol. II, at 28. The ALJ, however, noted that “Dr. Leopoldt’s
progress notes reflect the claimant [who is a Mormon minister] is able to give
blessings to fellow church members at the hospital”; that plaintiff “participates in
activities with his son such as elk hunting and playing guitar”; and that plaintiff
“reports that he gets along with other family members and usually visits with
family or friends every two weeks.” Id. at 16 (citations omitted). In addition, the
ALJ had previously noted that plaintiff “is active in his church” and “is able to
assist his wife with her transcription business by picking up tapes and delivering
the typed notes.” Id.
On appeal, plaintiff contends the ALJ “did not give specific and legitimate
reasons for discounting Dr. Leopoldt’s opinion” but, rather, merely “gave blanket
statements.” Aplt. Br., at 5. Actually, the points noted by the ALJ are much more
specific than the bald generalizations offered by Dr. Leopoldt, and they derive
from plaintiff’s own statements. Indeed, plaintiff acknowledged additional social
activity that the ALJ did not include in his summary, such as weekly shopping and
talking with family and friends by phone three to four times a week. Id. at 67-68.
Moreover, while under treatment by Dr. Leopoldt, plaintiff noted a three-month
attempt to work at a wood shop, on a team assembling pre-fab materials, and did
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not suggest any difficulty getting along with coworkers or supervisors; rather,
physical difficulties ended this effort. Id. at 84-85, 206-08, 248, 255, 269-70.
In an attempt to bolster Dr. Leopoldt’s finding, plaintiff emphasizes that he
did not attend his father’s funeral “because he could not handle it emotionally,”
and that he had had some “difficulty with his daughter.” Aplt. Br. at 5. The
former singular episode says little if anything about response to more routine
stresses and was recited in a progress note otherwise reflecting that plaintiff’s
condition was “responding” to treatment and that his “affect [is] brighter,” id. at
203. Similarly, references to various difficulties encountered by plaintiff’s
daughter occur in notes indicating that he was “not manifestly depressed,” id. at
204 (where plaintiff reports daughter dropped out of school); that he “continues to
do well” and has an “affect [that] remains bright,” id. at 196 (where plaintiff
reports concern about daughter, who appears depressed), and that he is “doing well
generally” with a “bright, pleasant” affect, id. at 192 (where plaintiff reports
daughter had been assaulted) – none of which reflect a serious impairment of his
ability to cope with what undoubtedly were difficult family circumstances. More
generally, by the disability onset date and thereafter, Dr. Leopoldt’s notes
consistently reflect a stabilization of plaintiff’s condition and do not suggest a
detrimental effect on his social functioning.
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In sum, Dr. Leopoldt’s finding that plaintiff’s depression disorder gave rise
to marked deficiencies in social functioning was based on conclusory statements
contrary to the doctor’s own records and relevant facts recited by plaintiff himself.
On the record before us, the ALJ was free to reject Dr. Leopoldt’s opinion. Cf.
Hackett v. Barnhart , 395 F.3d 1168, 1174 (10th Cir. 2005) (affirming ALJ’s
rejection of treating psychologist’s opinion regarding marked impairment of
claimant’s capacity for interpersonal interaction for similar reasons).
Doctor Leopoldt’s basis for finding repeated episodes of decompensation
consists of conclusory and unwarranted speculation from an inaccurate factual
premise. He explained his finding by noting “frequent job changes in
past – despite being mostly menial jobs – can’t handle stressful situation.” Id. at
28. Plaintiff’s reported job history from 1983 to 1995, however, included only
four employers over this twelve-year period, with the last job continuing for a span
of nearly seven years. Id. at 76. That is not an unstable employment record.
Further, plaintiff took the last position with Wal-Mart because it was a “better job”
than working as a lube technician, id. at 84; only quit the Wal-Mart job when his
physical limitations made it impossible for him to perform, id. at 69, 84; and, as
discussed above, attributed the failure of his later work attempt at the wood shop
to his physical limitations, not depression. Thus, plaintiff’s own explanation of
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his work history undercuts the speculative inference drawn by Dr. Leopoldt that
his job changes were necessitated by reactions to stress.
Moreover, Dr. Leopoldt’s treatment notes do not indicate that plaintiff’s
depression would repeatedly leave him unable to handle common workplace
stresses. He never reported any recommendation against working, and at various
points he noted plaintiff’s engagement in work and work-like activities with no
suggestion that it had caused or would cause deterioration in plaintiff’s condition
or decompensation during the activity. See, e.g. , id. at 197 (conducting blessings
for church members in hospital), 198 (helping wife with transcription business by
making pickups and deliveries), 207-08 (working at wood shop).
Accordingly, we cannot say the ALJ erred in rejecting Dr. Leopoldt’s
opinion regarding decompensation for lack of support in the record. Given that
conclusion and our similar holding with respect to the social-functioning factor,
which together preclude a favorable determination under the listing for depression,
plaintiff cannot prevail on the basis of the particular challenge he has raised on
this appeal. We consequently need not reach the other § 12.04(B)(3) criterion
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disputed here, regarding plaintiff’s ability to maintain concentration, persistence,
or pace.
The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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