Romo v. Berryhill ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 5, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DARLENE ROMO, a/k/a Darlene Sigala,
Plaintiff - Appellant,
v. No. 17-1354
(D.C. No. 1:16-CV-02248-WJM)
COMMISSIONER, SOCIAL SECURITY (D. Colo.)
ADMINISTRATION,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, EID, and CARSON, Circuit Judges.
_________________________________
Darlene Romo appeals the district court’s judgment affirming the
Commissioner’s denial of her application for social security disability insurance
benefits. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and
we affirm.
I. Background. Ms. Romo applied for disability insurance benefits in 2011,
asserting she was disabled due to cervicalgia; cervical fusions; chronic low back
*
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 This order and judgment is not binding precedent,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.
pain; spondylolisthesis; nerve pain; bulging disc in low back; depression; high blood
pressure; and chronic pain. An administrative law judge (ALJ) ruled she was not
disabled in 2012, but her case was remanded on appeal. Romo v. Colvin,
83 F. Supp.3d 1116, 1122 (D. Colo. 2015). While the remand was pending,
Ms. Romo returned to work, first part-time and then later full-time. On remand, a
second ALJ held a hearing and issued a new decision in October 2015, finding
Ms. Romo not disabled for the closed period between May 20, 2010 (the date she
alleged her disability began), and September 30, 2013 (the date she returned to
full-time work).
The ALJ applied the five-step sequential evaluation used to assess social
security disability claims. See 20 C.F.R. § 404.1520(a)(4) (describing five-step
analysis). He found that Ms. Romo had not engaged in substantial gainful activity
during the relevant period, and that she suffered from the following severe
impairments: disorder of the cervical spine, disorder of the lumbar spine, and
affective disorder. But he determined these impairments did not meet or medically
equal any of the conclusively disabling impairments in the Listing of Impairments
found at 20 C.F.R. Part 404, Subpart P, App. 1.
The ALJ then defined Ms. Romo’s residual functional capacity (RFC). He
concluded that she had the RFC to perform sedentary work, as defined in 20 C.F.R.
§ 1567(a), with certain restrictions: she must have the option to alternate sitting and
standing at will, at a job that can be performed in either position without regard to
time spent in either position; she can only occasionally bend, squat, or kneel; she
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cannot climb ladders or scaffolds; she can only occasionally perform work that is
over chest-level; she cannot not operate foot or leg controls; and she can only
perform unskilled work.
The ALJ independently assessed the three relevant medical source opinions in
making his RFC determination: an August 2010 opinion from treating physician
Dr. Leppard that Ms. Romo had extreme limitations, including that she could sit
and stand for less than an hour at a time and needed frequent breaks; a June 2011
opinion from treating physician Dr. Cutter that Ms. Romo could stand for less than
two hours, walk for about two hours, and sit for approximately four hours with
frequent rest breaks; and a July 2011 opinion from state agency consultative
physician Dr. McElhinney that Ms. Romo could perform a range of light work with
up to four hours of standing/walking and up to six hours of sitting with normal breaks
and postural changes. The ALJ determined that Ms. Romo’s RFC was more limited
than opined by Dr. McElhinney, but less limited in some areas than opined by
Drs. Leppard and Cutter.
Based on his RFC determination, the ALJ concluded Ms. Romo could not
perform any of her past relevant work. But based on testimony from a vocational
expert, the ALJ determined that there was work Ms. Romo could perform in the
national and regional economy, specifically, the unskilled jobs of document preparer,
lens block gauger, and call out operator. Thus, he determined that Ms. Romo was not
disabled. The Appeals Council found no basis to change the ALJ’s decision, and the
district court affirmed the Commissioner’s decision. This appeal followed.
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II. Discussion. “Our review is limited to determining whether the
Commissioner applied the correct legal standards and whether the agency’s factual
findings are supported by substantial evidence.” Knight ex rel. P.K. v. Colvin,
756 F.3d 1171, 1175 (10th Cir. 2014). “Substantial evidence is more than a scintilla,
but less than a preponderance.” Id. (internal quotation marks omitted). “A decision
is not based on substantial evidence if it is overwhelmed by other evidence in the
record.” Id. (internal quotation marks omitted). “In conducting our review, we may
neither reweigh the evidence nor substitute our judgment for that of the agency.” Id.(brackets and internal quotation marks omitted).
Ms. Romo raises four issues on appeal: (1) whether the ALJ applied correct
legal standards in determining the weight given to the opinion of Ms. Romo’s
treating physician; (2) whether the ALJ applied his own opinion, rather than adhering
to the medical opinions of the treating and examining physicians; (3) whether the
ALJ applied correct legal standards in assessing Ms. Romo’s credibility; and
(4) whether the ALJ’s decision is supported by substantial evidence.
A. Weight Given to Treating Physician. A treating physician’s opinion is
generally entitled to controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2).
When evaluating the opinion of any medical source, the ALJ must consider:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
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performed; (3) the degree to which the physician’s opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal quotation marks
omitted). The ALJ must provide reasons for the weight assigned to a treating
physician’s opinion that are sufficiently specific for subsequent reviewers to
understand the weight given and the reason for that weight. Id.The ALJ determined that Dr. Leppard’s August 2010 opinion should be given
little weight for the closed period under consideration. The ALJ provided several
reasons for this finding: (1) Dr. Leppard ceased treating Ms. Romo in May 2010—
before the start of Ms. Romo’s disability onset date—and had no additional
information about Ms. Romo’s functioning when she issued her August 2010
opinion; (2) there is no indication in her records that Ms. Romo was ever asked to
perform any of the functional activities described in Dr. Leppard’s opinion;
(3) Dr. Leppard’s avoidance-of-squatting is unsupported by objective findings and
the consultative examiner observed Ms. Romo squat without pain; (4) Dr. Leppard’s
lumbar findings are inconsistent with her prescribed pain medications and the fact
she did not limit Ms. Romo’s use of foot controls and driving; and
(5) Dr. McElhinney gave his expert opinion that the functional limitations suggested
by Dr. Leppard were not consistent with her objective findings, see SSR 96-6p, 1996
WL 374180, at *2 (July 2, 1996) (“State agency medical and psychological
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consultants are highly qualified physicians and psychologists who are experts in the
evaluation of the medical issues in disability claims.”)
Ms. Romo argues the ALJ’s assessment that Dr. Leppard’s opinion was
inconsistent with other medical records is error; indeed, she argues the opinion was
so consistent with all other medical source information that it was entitled to
controlling weight. The record does not support her assertion. For example,
Ms. Romo asserts Dr. Leppard’s opinion that she had to avoid squatting was
consistent with the opinion of Dr. Cutter. It is not. Dr. Cutter examined her in
August 2011—during the relevant period, unlike Dr. Leppard—and conducted an
extensive objective evaluation of Ms. Romo, unlike Dr. Leppard. Dr. Cutter not only
did not opine that Ms. Romo had to avoid squatting; to the contrary, she noted that
Ms. Romo used good body mechanics when she squatted to pick up something she
had accidentally dropped. Dr. Cutter opined that Ms. Romo did not require an
assistive device to walk, sat comfortably, arose spontaneously and unaided from a
seated position with only mild discernable discomfort; and tests to assess nerve
irritation in the lower back were normal.
The record supports the additional reasons given by the ALJ for giving
less-than-controlling weight to Dr. Leppard’s opinion, namely that that there is no
indication in Dr. Leppard’s record that she ever performed functional assessments to
support the functional analysis in her opinion, and that Dr. Leppard did not treat or
examine Ms. Romo during the relevant period to assess disability.
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Ms. Romo challenges the ALJ’s determination to give partial, moderate weight
to the opinion of consulting examiner Dr. McElhinney, but only little weight to
Dr. Leppard’s opinion. She argues it was clear error for an ALJ to give greater
weight to a consultative examiner than to a treating physician. She misstates the law.
It is true that an ALJ should, in general, give greater weight to the opinion of a
treating physician than to that of a consultant or non-examining physician,
see Langley, 373 F.3d at 1119, but “[i]n appropriate circumstances, opinions from
State agency medical and psychological consultants . . . may be entitled to greater
weight than the opinions of treating or examining sources.” See SSR 96-6P, 1996
WL 374180, at *3. Dr. McElhinney’s opinion was based on a review of Ms. Romo’s
complete case record, in contrast to Dr. Leppard’s, which was based on examinations
outside of the relevant time period. The ALJ gave specific, legitimate reasons for the
weights he gave to the medical source evidence, which are legally sufficient and
supported by substantial evidence in the record.
B. ALJ Medical Judgment. Ms. Romo argues the ALJ substituted his own
medical judgment, rather than adhering to the medical opinions of Drs. Cutter and
Leppard. An “ALJ overstep[s] his bounds [when he enters] the province of
medicine.” Miller v. Chater, 99 F.3d 972, 977 (10th Cir. 1996). Dr. Cutter opined in
relevant part that during an eight-hour workday Ms. Romo could only sit for four
hours, and only stand or walk two hours. The ALJ concluded that these functional
limitations were not supported by objective evidence in Dr. Cutter’s examination,
which showed that Ms. Romo had no paraspinal tenderness and had a full range of
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motion, full strength, and only slight sensation loss. Ms. Romo argues this
demonstrates that the ALJ substituted his medical judgment for that of Dr. Cutter.
We disagree. The ALJ simply determined that Dr. Cutter’s sitting, standing, and
walking limitations were not supported by objective evidence, which is a legitimate
basis for the ALJ to afford the opinion less weight. See 20 C.F.R. § 404.1527(c)(3)
(explaining that opinion supported by objective findings are generally entitled to
more weight).
Ms. Romo also argues the ALJ substituted his own medical opinion when he
discounted Dr. Leppard’s opinion because Dr. Leppard never asked Ms. Romo to
perform any functional activities. Ms. Romo argues it was up to Dr. Leppard to
determine what activities would likely cause Ms. Romo’s pain. Again, we disagree
with Ms. Romo’s characterization of the ALJ’s ruling, which was simply a factual
statement that Dr. Leppard’s medical records did not contain objective support for
her functional limitation opinion, which is, as noted, a legitimate basis for the ALJ to
afford the opinion less weight. See id.C. Credibility Determination. Ms. Romo next challenges the ALJ’s analysis
in assessing the credibility of her subjective complaints of disabling pain. Ms. Romo
testified at her first hearing that because of her chronic daily pain, she could only sit
for 10 to 15 minutes and could only stand for 20 minutes. At her second hearing, she
testified that her pain has not changed since before she returned to full-time work.
The ALJ questioned the credibility of her subjective complaints of pain in part
because Ms. Romo was able to return to a full-time, semi-skilled job after the closed
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period with the same impairments and the same levels of pain as alleged during the
closed period.
“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) (internal quotation marks
omitted). An ALJ must consider such factors as a claimant’s daily activities;
attempts to find relief; the type, effectiveness and side effects of medication; and
factors that precipitate and aggravate the symptoms. Hamlin v. Barnhart, 365 F.3d
1208, 1220 (10th Cir. 2004). “[F]indings as to credibility should be closely and
affirmatively linked to substantial evidence.” Cowan, 552 F.3d at 1190 (internal
quotation marks omitted).
Ms. Romo argues the ALJ’s credibility determination was legally flawed
because no medical source questioned her honesty and Dr. Cutter specifically found
Ms. Romo to be honest and trustworthy. But “subjective symptom evaluation is not
an examination of an individual’s character.” SSR 16-3p, 2016 WL 1119029, at *1
(Mar. 16, 2016) (eliminating the use of the term “credibility” for subjective symptom
evaluations). Ms. Romo also argues the “mere fact” she was able to return to work
for nine months does not support discounting her subjective description of her
symptoms. Aplt. Opening Br. at 31. But the ALJ did not base his evaluation on the
“mere fact” that she returned to work, but also specifically noted her daily activities
at that job, which is a relevant factor for the ALJ to consider.
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The work history of a claimant is another relevant factor in evaluating a
claimant’s pain testimony. 20 C.F.R. § 404.1529(c)(3) (in evaluating pain symptoms,
the ALJ “will consider all of the evidence presented, including information about
your prior work record”). Ms. Romo undoubtedly has chronic pain, but “[t]o be
disabling, [the] pain must be so severe, by itself or in conjunction with other
impairments, as to preclude any substantial gainful employment.” Brown v. Bowen,
801 F.2d 361, 362-63 (10th Cir. 1986) (internal quotation marks omitted). The evidence
that Ms. Romo was not precluded from substantial gainful employment even with the
same impairments and pain levels as in the period under consideration is, therefore, a
relevant consideration. See Cowan, 552 F.3d at 1191 (“The ALJ found that
Mr. Cowan previously worked with these impairments, which suggests these
conditions would not currently prevent work.” (internal quotation marks omitted)).
We find no error in the ALJ’s evaluation of Ms. Romo’s subjective descriptions of
her symptoms.
D. Substantial Evidence. Ms. Romo’s final claim of error is a general
assertion that the ALJ’s decision is not supported by substantial evidence. But her
arguments here simply repeat her previous arguments that the ALJ erred in the
weight he assigned to the medical source testimony. Ms. Romo is essentially asking
us to reweigh the evidence, which we may not do. We conclude from our review of
the record that the ALJ applied the correct legal standards in evaluating the medical
source opinions and that substantial evidence supports the ALJ’s stated reasons for
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the weight given to those opinions. We also conclude that substantial evidence in the
record as a whole supports the ALJ’s factual findings.
Judgment affirmed.
Entered for the Court
Allison H. Eid
Circuit Judge
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