Mileto v. Commissioner, SSA ( 2022 )


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  • Appellate Case: 21-1403     Document: 010110788792        Date Filed: 12/23/2022       Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                           Tenth Circuit
    FOR THE TENTH CIRCUIT                          December 23, 2022
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    SANDRA MILETO,
    Plaintiff - Appellant,
    v.                                                           No. 21-1403
    (D.C. No. 1:20-CV-01866-KMT)
    COMMISSIONER, SSA,                                            (D. Colo.)
    Defendant - Appellee.
    _________________________________
    ORDER AND JUDGMENT *
    _________________________________
    Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges.
    _________________________________
    Sandra Mileto appeals from the district court’s decision upholding the denial by
    the Commissioner of Social Security of her application for disability insurance benefits.
    Exercising jurisdiction under 
    28 U.S.C. § 1291
     and 
    42 U.S.C. § 405
    (g), we affirm.
    I. Background
    Ms. Mileto filed for benefits in May 2018, alleging disability based on both
    physical and mental impairments. Her application was initially denied, after which an
    ALJ held a de novo hearing in October 2019. The ALJ issued a decision in November
    *
    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). 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    is not binding precedent, except under the doctrines of law of the case, res judicata,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. See
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Appellate Case: 21-1403     Document: 010110788792         Date Filed: 12/23/2022       Page: 2
    2019 finding Ms. Mileto not disabled under the Social Security Act. The Appeals
    Council denied Ms. Mileto’s request for review, thereby rendering the ALJ’s decision the
    final agency decision for purposes of judicial review.
    A. Medical Records and Opinion Evidence
    Ms. Mileto alleged that she was disabled beginning in June 2017 due to Raynaud’s
    disease, 1 neck and back problems, and depression. She had cervical spine surgery in
    2000 after a car accident, and another car accident in April 2013 resulted in severe
    frostbite to her hands and feet. She reported residual pain and temperature sensitivity in
    her hands and feet, which was treated with neuropathic pain medication.
    In 2016, Ms. Mileto underwent a neurological workup, electromyography study,
    CT scan, and nerve conduction studies. The results indicated “that the tingling and nerve
    symptoms are from the frostbite versus from a cervical or nerve issue in the nerve
    pathway,” and that there was “no evidence of dynamic instability” in her cervical spine.
    R. vol. II at 310. The progress notes reported that Ms. Mileto was “very happy” with the
    results and that she would continue to take pain medication for her hands. 
    Id.
    For her general healthcare needs Ms. Mileto went to Peak Vista Community
    Health Center, where she frequently received treatment from Richard White, a physician
    assistant, for hand pain and other ailments from 2016 to 2019. For example, in
    November 2016 she reported neck pain and stiffness for which Mr. White recommended
    1
    Raynaud’s disease or Raynaud phenomenon is defined as “spasm of the
    digital arteries, with blanching and numbness or pain of the fingers, often
    precipitated by cold.” Raynaud phenomenon, Stedman’s Medical Dictionary (27th
    ed. 2000).
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    muscle relaxers, applying heat to the affected area, and gentle stretching. She also saw
    Mr. White twice in August 2017 concerning “moderate” symptoms of anxiety and
    depression, R. vol. II at 336, and low back pain. Throughout the treatment records, Mr.
    White assessed Ms. Mileto with Raynaud’s disease. Mr. White completed a residual
    functional capacity (RFC) questionnaire in September 2019 in connection with Ms.
    Mileto’s disability claim. He opined that Ms. Mileto had several limitations, including:
    she could lift no more than 10 pounds; she could use her hands, fingers, and arms for
    only 5 to 10% of the workday; she could stand or walk less than two hours total and
    could stand continuously for no more than five minutes at a time; and she would miss
    work four or more days per month.
    In August 2018 Ms. Mileto visited Dr. Ashley Schinske for a physical evaluation
    in connection with her disability claim. Ms. Mileto showed a normal, symmetric gait and
    normal range of motion throughout except for some limitation in her neck. Although she
    had mild discomfort with motion of her neck and low back, she had no discomfort in any
    other joints. Dr. Schinske observed an inconsistency between Ms. Mileto’s ability to use
    and tolerate pressure to her hands during examination, as opposed to “her ability to do the
    same during general observations during [the] interview.” R. vol. II at 387. She also
    observed that although Ms. Mileto refused some neurological evaluation of her hands and
    feet due to pain, her writing sample was consistent with adequate fine motor skills.
    Based on her evaluation and in contrast to Mr. White’s opinion, Dr. Schinske opined that
    Ms. Mileto could lift and carry 20 pounds occasionally and 10 pounds frequently;
    occasionally perform postural activities such as bending and crouching; occasionally
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    perform activities such as grasping and fingering; and had no limitations in her ability to
    sit, stand, or walk.
    In addition, Ms. Mileto was examined by Dr. LeAnna DeAngelo, PhD, a licensed
    psychologist, for a psychological evaluation in connection with her disability claim. Dr.
    DeAngelo reported that Ms. Mileto initially presented as friendly and smiling. But she
    gradually became quite upset when discussing past traumatic experiences, so Dr.
    DeAngelo then decided to ask only the questions necessary to complete her evaluation.
    Dr. DeAngelo reported that Ms. Mileto exhibited mild impairment in delayed memory
    but normal immediate memory, and that her concentration was within normal limits. Dr.
    DeAngelo opined that Ms. Mileto had marked impairment in her ability to perform
    complex tasks and complete an average workday without interruption from psychological
    conditions, and mild to moderate impairment in her other work-related mental abilities.
    B. Administrative Proceedings and District Court Judgment
    Ms. Mileto’s claim was denied initially and by the ALJ after an administrative
    hearing. The ALJ followed the five-step sequential evaluation process for the
    consideration of disability claims. See Wall v. Astrue, 
    561 F.3d 1048
    , 1052 (10th
    Cir. 2009) (summarizing steps). The ALJ found that Ms. Mileto possessed the RFC
    to perform light work. Citing testimony of a vocational expert that Ms. Mileto could
    perform work existing in significant numbers in the national economy, the ALJ
    concluded at step five of the sequential evaluation process that she did not satisfy the
    definition of disability.
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    The Appeals Council then denied Ms. Mileto’s request for review, making the
    ALJ’s decision final for purposes of judicial review. See 
    20 C.F.R. § 422.210
    (a).
    Ms. Mileto appealed the agency decision to the district court, which affirmed it.
    Ms. Mileto timely appealed, arguing the ALJ improperly weighed the opinions of Mr.
    White and Dr. DeAngelo.
    II. Discussion
    We review the ALJ’s decision to determine whether substantial evidence in the
    record as a whole supports the ALJ decision and whether the ALJ applied the correct
    legal standards. See Hendron v. Colvin, 
    767 F.3d 951
    , 954 (10th Cir. 2014).
    “Substantial evidence” is “such relevant evidence as a reasonable mind might accept
    as adequate to support a conclusion.” Richardson v. Perales, 
    402 U.S. 389
    , 401
    (1971) (internal quotation marks omitted). This “threshold . . . is not high.” Biestek
    v. Berryhill, 
    139 S. Ct. 1148
    , 1154 (2019). “Evidence is insubstantial if it is
    overwhelmingly contradicted by other evidence.” O’Dell v. Shalala, 
    44 F.3d 855
    ,
    858 (10th Cir. 1994). We may neither reweigh evidence nor substitute our judgment
    for the Commissioner’s. See Hendron, 767 F.3d at 954.
    Under the revised regulations applicable here, the ALJ does “not defer or give any
    specific evidentiary weight, including controlling weight, to any medical opinion(s) . . .
    including those from [the claimant’s] medical sources.” 
    20 C.F.R. §§ 404
    .1520c(a),
    416.920c(a). Rather, the ALJ considers the persuasiveness of those opinions using five
    factors: supportability; consistency; relationship with the claimant; specialization; and
    other factors such as “a medical source’s familiarity with the other evidence in a claim.”
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    Id.
     §§ 404.1520c(c), 416.920c(c). The most important factors are supportability and
    consistency. See id. §§ 404.1520c(a), 416.920c(a).
    Ms. Mileto argues the ALJ erred in his RFC determination. This argument is
    based on Ms. Mileto’s specific contention that the weight the ALJ afforded the opinions
    of Mr. White and Dr. DeAngelo was not supported by substantial evidence. We disagree.
    A. The ALJ’s Evaluation of Mr. White’s Opinion
    We hold the ALJ did not err in finding that the limitations identified by Mr. White
    were not supported by objective medical evidence. In support of his opinion on Ms.
    Mileto’s RFC, Mr. White largely cited her subjective complaints of numbness and neck,
    hand, and foot pain. 2 But “[a] claimant’s subjective allegation of pain is not sufficient in
    itself to establish disability.” Thompson v. Sullivan, 
    987 F.2d 1482
    , 1488 (10th Cir.
    1993) (“Before the ALJ need even consider any subjective evidence of pain, the claimant
    must first prove by objective medical evidence the existence of a pain-producing
    impairment that could reasonably be expected to produce the alleged disabling pain.”
    (citations omitted)). The ALJ’s finding was an appropriate application of the
    supportability factor. See 
    20 C.F.R. § 404
    .1520c(c)(1) (supportability examines how
    closely connected a medical opinion is to the objective medical evidence).
    The ALJ also found Mr. White’s opinion inconsistent with Ms. Mileto’s exam
    findings, which generally reflected few abnormalities. In addition, Dr. Schinske reported
    2
    On one part of the form, Mr. White identified Raynaud’s disease as the basis
    for his opinion that Ms. Mileto has significant limitations with reaching, handling, or
    fingering. But the ALJ noted that there was no objective evidence of Raynaud’s
    disease and that all testing had been negative.
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    that except for cervical limitations, Ms. Mileto showed a normal, symmetric gait and
    normal range of motion with little to no discomfort. Mr. White’s opinion was also
    inconsistent with the results of a neurological workup, electromyography study, CT scan,
    and nerve conduction study—all of which were normal and included findings that Ms.
    Mileto showed normal range of motion. The ALJ’s findings were supported by
    substantial evidence in the record as a whole and appropriately applied the consistency
    factor. See 
    20 C.F.R. § 404
    .1520c(c)(2) (persuasiveness of a medical opinion correlates
    with its degree of consistency with evidence from other medical sources).
    Ms. Mileto argues that the ALJ inappropriately substituted his own medical
    judgment in finding Mr. White’s opinion inconsistent with Ms. Mileto’s “conservative
    treatment history.” R. vol. I at 29. She contends that Ms. Mileto’s “medical providers’
    decision to proceed with non-intrusive medical treatments does not translate to non-
    severe limitations.” Opening Br. at 27. While the severity of a physical impairment does
    not necessarily correlate with the intrusiveness of a course of treatment, see Shaw v.
    Chater, 
    221 F.3d 126
    , 134-35 (2d Cir. 2000), we discern no error where, as here, the ALJ
    identified additional reasons, supported by substantial evidence, for finding Mr. White’s
    opinion unpersuasive. See Burgess v. Astrue, 
    537 F.3d 117
    , 129 (2d Cir. 2008)
    (conservative treatment regimen may support the Commissioner’s conclusion that a
    claimant is not disabled if that fact is accompanied by other substantial evidence in the
    record).
    In short, the ALJ’s evaluation of Mr. White’s opinion was supported by substantial
    evidence in the record as a whole.
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    B. The ALJ’s Evaluation of Dr. DeAngelo’s Opinion
    Dr. DeAngelo opined that Ms. Mileto was impaired in her mental abilities. She
    asserted that Ms. Mileto’s psychological conditions impaired her ability to perform
    complex tasks and complete an average workday without interruption, and that she had
    mild to moderate impairment in her other work-related mental abilities. Considering the
    supportability and consistency factors, the ALJ found that Dr. DeAngelo’s opinion was
    not persuasive. We hold that the ALJ’s finding is supported by substantial evidence.
    First, the ALJ found Dr. DeAngelo’s opinion inconsistent with the normal
    mental-status examination findings of Ms. Mileto’s treating providers. Although the ALJ
    acknowledged that the treatment records reflect that Ms. Mileto occasionally appeared
    tearful, anxious, or irritable, she repeatedly demonstrated normal memory, insight, and
    judgment. Accordingly, the ALJ found that while Ms. Mileto’s anxiety or irritability
    would preclude her ability to perform complex or detailed tasks, “the relative normalcy of
    her mental status exams . . . demonstrate that she is able to perform simple tasks that can
    be learned in 30 days or less, consistent with unskilled work activity with routine tasks
    and simple decision-making and non-production type work.” R. vol. I at 28. This
    finding is supported by substantial evidence in the record.
    Second, the ALJ found that Dr. DeAngelo’s opinion that Ms. Mileto has marked
    mental limitations was not supported by her own mental-status examination findings. See
    White v. Barnhart, 
    287 F.3d 903
    , 907 (10th Cir. 2001) (affirming ALJ’s disregard of
    treating physician’s opinion because of discrepancies between physician’s opinion and
    observations during examination). In particular, Dr. DeAngelo observed that Ms. Mileto
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    was friendly and smiling with full range of affect, and that she displayed normal
    immediate memory, mathematical ability, concentration, and judgment and reasoning.
    Again, the ALJ’s finding resulted from an appropriate application of the consistency
    factor and is supported by substantial evidence in the record.
    III. Conclusion
    For the foregoing reasons, the judgment is affirmed.
    Entered for the Court
    Harris L Hartz
    Circuit Judge
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