Wilson v. Barnhart , 82 F. App'x 204 ( 2003 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    DEC 5 2003
    UNITED STATES COURT OF APPEALS
    FOR THE TENTH CIRCUIT                     PATRICK FISHER
    Clerk
    BECKY C. WILSON,
    Plaintiff-Appellant,
    v.                                                   No. 03-5026
    (D.C. No. 01-CV-961-M)
    JO ANNE B. BARNHART,                                 (N.D. Okla.)
    Social Security Administration,
    Commissioner,
    Defendant-Appellee.
    ORDER AND JUDGMENT            *
    Before TYMKOVICH , HOLLOWAY , and ANDERSON , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant 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
    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    This order and judgment is not binding precedent, except under the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-appellant Becky C. Wilson appeals from the district court’s order
    affirming the Social Security Commissioner’s denial of her application for
    disability insurance benefits under the Social Security Act. We exercise
    jurisdiction under 
    42 U.S.C. § 405
    (g) and 
    28 U.S.C. § 1291
    . We affirm.
    I.
    Plaintiff alleges that she has been disabled since September 1997 as a result
    of herniated cervical and lumbar disks and related back and leg pain. On July 1,
    1999, Wilson filed an application for disability benefits, and eventually obtained a
    hearing before an administrative law judge (ALJ). In a decision dated January 23,
    2001, the administrative law judge denied plaintiff’s application, concluding that
    while her herniated disks constitute a severe impairment that prevents her from
    performing her past relevant work, a sufficient number of jobs that she can
    perform exist in the national economy. Specifically, the ALJ found that plaintiff
    retains the residual functional capacity (RFC) to perform light work so long as
    she is able to alternate sitting and standing every forty-five minutes, and that she
    is therefore capable of working as a cafeteria cashier, self service gas station
    attendant, toll booth attendant, and small town taxi operator.
    In November 2001, the Appeals Council of the Social Security
    Administration denied plaintiff’s request for review of the ALJ’s decision.
    Plaintiff then filed a complaint in the United States District Court for the
    -2-
    Northern District of Oklahoma. In November 2002, a magistrate judge, sitting by
    consent of the parties under 
    28 U.S.C. § 636
    (c)(1), entered an order affirming the
    ALJ’s decision. This appeal then followed.
    II.
    “To qualify for disability benefits, a claimant must establish a severe
    physical or mental impairment expected to result in death or last for a continuous
    period of twelve months which prevents the claimant from engaging in substantial
    gainful activity.”   Thompson v. Sullivan , 
    987 F.2d 1482
    , 1486 (10th Cir. 1993)
    (citation omitted). The Commissioner has established a five-step sequential
    evaluation process for determining whether a claimant is disabled.       
    Id.
     (citations
    omitted).
    Here, the ALJ denied benefits at step five.   1
    At step five, when a claimant
    has established that he has a severe impairment which prevents him from
    returning to his past relevant work, “the burden shifts to the [Commissioner] to
    show that the claimant retains the residual functional capacity to do other work
    that exists in the national economy.”     
    Id. at 1487
    . The ALJ found that the
    1
    The analysis of the first four steps required the ALJ to make the following
    findings about the claimant’s condition: (1) that she was not currently engaged in
    substantial gainful activity; (2) that the she had a severe impairment; (3) that she
    was not, however, conclusively disabled; and (4) that she could not return to her
    past relevant work. See Thompson , 
    987 F.2d at 1487
    ; 
    20 C.F.R. § 404.1520
    (a)-(e)
    (2000).
    -3-
    Commissioner met this burden, and therefore ruled that plaintiff is not entitled to
    disability benefits.
    We review the ALJ’s decision only to determine whether his factual
    findings are supported by substantial evidence and whether he applied the correct
    legal standards.   See O’Dell v. Shalala , 
    44 F.3d 855
    , 858 (10th Cir. 1994).
    “Substantial evidence is such relevant evidence as a reasonable mind might accept
    as adequate to support a conclusion.”     
    Id.
     (quotation omitted). In making the
    substantial-evidence determination, we neither reweigh the evidence nor
    substitute our judgment for that of the ALJ.         See Thompson , 
    987 F.2d at 1487
    .
    In addition, “[t]he scope of our review . . . is limited to the issues the claimant
    properly preserves in the district court and adequately presents on appeal.”       Berna
    v. Chater , 
    101 F.3d 631
    , 632 (10th Cir. 1996).
    In this appeal, plaintiff claims the ALJ erred by: (1) rejecting the opinions
    of her treating physicians regarding her residual functional capacity; (2) failing to
    find at steps two and three that she suffers from a severe mental impairment that
    meets or equals the mental disorder listing for Somatoform Disorders, listing
    12.07; (3) failing to perform a proper credibility analysis regarding her subjective
    complaints of pain; and (4) failing to propound a proper hypothetical question to
    the vocational expert.
    -4-
    A. Treating Physicians’ Opinions
    “An ALJ is required to give controlling weight to a treating physician’s
    well-supported opinion, so long as it is not inconsistent with other substantial
    evidence in the record.”     Drapeau v. Massanari , 
    255 F.3d 1211
    , 1213 (10th Cir.
    2001). Conversely, “a treating source’s medical opinion . . . will not be entitled
    to controlling weight if substantial, nonmedical evidence shows that the
    individual’s actual activities are greater than those provided in the treating
    source’s opinion.” SSR 96-2p, 
    1996 WL 374188
    , at *4 (July 2, 1996).
    An ALJ “may reject a treating physician’s opinion outright only on the
    basis of contradictory medical evidence and      not due to his or her own credibility
    judgments, speculation or lay opinion    .” McGoffin v. Barnhart , 
    288 F.3d 1248
    ,
    1252 (10th Cir. 2002) (quoting     Morales v. Apfel , 
    225 F.3d 310
    , 317 (3rd Cir.
    2000)) (emphasis in    McGoffin ). And “[w]hen an ALJ decides to disregard a
    medical report by a claimant's physician, he must set forth specific, legitimate
    reasons for his decision.”    Drapeau, 
    255 F.3d at 1213
     (quotations omitted).
    1. Dr. Royal
    Dr. Royal is a pain management specialist, and he is board certified in
    internal medicine and anesthesiology.     See Aplt. App., Vol. 2 at 289. Plaintiff
    saw Dr. Royal for treatment of her back and neck injuries, and the related pain
    and other limitations, on eighteen occasions between November 1997 and
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    November 2000.     Id. at 185-88, 245-64, 310-11. In his medical records,
    Dr. Royal reported that plaintiff was suffering from “known L4-5 and L5-S1
    discogenic disease and L5-S1 facet arthropathy and known cervical discogenic
    disease at C5-6 with C5 radiculopathy . . . and L5-S1 disc herniation.”      Id. at 311.
    In November 2000, Dr. Royal completed a residual functional capacity form
    stating that: (1) plaintiff has a lumbar disk herniation and spondylosis, and these
    conditions cause muscle spasms, tenderness, and decreased range of motion;
    (2) plaintiff has a cervical disk herniation and radiculopathy, and these conditions
    cause sensory abnormalities and muscle spasms; (3) plaintiff’s symptoms are
    credible; (4) plaintiff needs to lie down frequently; (5) plaintiff “is likely to be
    frequently absent from work due to pain”; (6) during an eight-hour work day,
    plaintiff is limited to sitting for three hours, standing for two hours, and walking
    for one hour; and (7) plaintiff “is unable to perform gainful employment even
    with accommodation and is likely to remain in this capacity for the foreseeable
    future.” Id. at 305-07.
    The ALJ rejected Dr. Royal’s opinion that plaintiff is unable to work,
    finding that this opinion is inconsistent with Dr. Royal’s own medical records.     2
    2
    The ALJ also found that Dr. Royal’s opinion is inconsistent with the
    description of plaintiff’s daily activities that she provided during the hearing
    before the ALJ. See Aplt. App., Vol. 2 at 19. We do not need to address this
    aspect of the ALJ’s decision, however, because we conclude that the ALJ’s
    (continued...)
    -6-
    Id. at 19. We conclude that the ALJ’s finding that Dr. Royal’s opinion is
    inconsistent with his medical records is supported by substantial evidence in
    the record.
    To begin with, Dr. Royal’s medical records indicate that there is no
    evidence of any significant spinal stenosis or neural foraminal encroachment in
    plaintiff’s lumbar spine, and that she suffers from only a mild radiculopathy in
    her cervical spine.   Id. at 187, 257, 258, 259, 260, 262, 263. Dr. Royal’s records
    also indicate that there is no evidence of any significant neurological deficits in
    plaintiff’s upper or lower extremities.   Id. at 245, 246, 247, 248, 249, 252, 255,
    257, 258, 310. In addition, while Dr. Royal reported that plaintiff had
    “a somewhat stiff posture of the neck and decreased range of motion in the neck
    and the low back,” he also reported that she had “relatively fluid arm and leg
    movements.” Id. at 251, 252.
    We also note that, in November 1997, plaintiff informed Dr. Royal that
    “[s]he is able to [do] daily routine activities at home, such as the laundry,
    vacuuming and dishes, . . . [and] continues to try to enjoy social activities, but has
    curtailed that somewhat.”     Id. at 260-61. Importantly, there is no indication in
    Dr. Royal’s medical records that plaintiff’s ability to perform such activities
    2
    (...continued)
    reliance on Dr. Royal’s and Dr. Herman’s medical records was a sufficient basis,
    standing alone, for rejecting Dr. Royal’s opinion.
    -7-
    deteriorated in any significant respect during the time he treated her. To the
    contrary, Dr. Royal’s records indicate that plaintiff responded reasonably well to
    his treatment, and it appears that her pain and other limitations were stabilized
    under his care.
    In November 1998, plaintiff reported to Dr. Royal that she was “doing
    somewhat better . . . [and] now doing some volunteer work and feels that getting
    out of the house and pushing herself is going to be helpful to her.”     Id. at 251.
    In January 1999, Dr. Royal reported that, while plaintiff was “rather medication
    dependent to remain functional,” she “continues to do reasonably well. She is
    certainly functional . . . [and] continues to be upbeat about the future and being
    able to get back to perhaps even working.”         Id. at 249. In September 1999,
    although plaintiff had to increase the dosage of her pain medication, she told
    Dr. Royal that she was “functional.”     Id. at 246. In December 1999, Dr. Royal
    reported that plaintiff was “doing well . . . and remains quite functional, although
    at a lower level than normal.”    Id. at 245. Finally, in March and June 2000,
    Dr. Royal reported that plaintiff “denies any new symptomatology. She states she
    is doing well, but would like to have a little better control of her muscle spasms
    and perhaps improvement in her sleep.”       Id. at 310, 311.
    During this same time period, plaintiff was also seeing Dr. Herman,
    a family practitioner.   Id. at 285. Dr. Herman’s medical records confirm that
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    plaintiff responded positively to the treatment she received from Dr. Royal.
    In December 1998, Dr. Herman reported that plaintiff was taking narcotics to
    alleviate her pain, and he stated that she had “decreased pain and . . . no other
    problems.” Id. at 207. In August 1999, Dr. Herman reported that plaintiff’s
    chronic pain was “well controlled” and she had “no complaints.”        Id. at 200.
    In October 1999, Dr. Herman reported that plaintiff “continues with Dr. Royal
    for her chronic pain and is doing well. At this time she is not back to work, but
    she is having days where she is functioning at a fairly high level.”    Id. at 199.
    In July 2000, Dr. Herman again reported that plaintiff “continues to see Dr. Royal
    and is doing well.”   Id. at 300.
    Based on the information contained in the medical records of Dr. Royal and
    Dr. Herman, we hold that the ALJ did not err in determining that Dr. Royal’s
    opinion that plaintiff is unable to work is inconsistent with other substantial
    medical evidence in the record. Thus, the ALJ properly rejected Dr. Royal’s
    opinion.
    2. Dr. Dubriwny
    Dr. Dubriwny is board certified in psychiatry and neurology.       Id. at 284.
    On September 30, 1999, Dr. Dubriwny completed a Mental Status Form in which
    he: (1) diagnosed plaintiff as suffering from a “pain [disorder] associated [with]
    psychological and organic factors”; and (2) concluded that plaintiff’s “chronic
    -9-
    pain prohibits entering into work structure.”         Id. at 190. As the ALJ noted,
    however, Dr. Dubriwny examined plaintiff only once, in September 1997.                Id.
    at 19, 191-93.
    The ALJ concluded that because Dr. Dubriwny had not examined Plaintiff
    since 1997, his opinion of her condition was entitled only to limited deference.
    Given the other, contradictory evidence in the record the ALJ then rejected
    Dr. Dubriwny’s conclusion that Plaintiff was unable to work. Plaintiff contends
    that the ALJ erred in not giving controlling weight to the opinion of
    Dr. Dubriwny.
    “The threshold question is whether Dr. [Dubriwny] was in fact a ‘treating
    physician’ within the meaning of the regulations. If not, his opinion was not
    entitled to the presumption of controlling weight accorded to the properly
    supported opinion of a treating physician.”          Doyal v. Barnhart , 
    331 F.3d 758
    , 762
    (10th Cir. 2003). The key inquiry for purposes of resolving this issue is whether
    plaintiff’s relationship with Dr. Dubriwny was of sufficient duration and
    frequency:
    The treating physician doctrine is based on the assumption that a
    medical professional who has dealt with a claimant and his maladies
    over a long period of time will have a deeper insight into the medical
    condition of the claimant than will a person who has examined a
    claimant but once, or who has only seen the claimant’s medical
    records.
    ....
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    A physician's opinion is therefore not entitled to controlling weight
    on the basis of a fleeting relationship, or merely because the claimant
    designates the physician as her treating source. Absent an indication
    that an examining physician presented the    only medical evidence
    submitted pertaining to the relevant time period, the opinion of an
    examining physician who only saw the claimant once is not entitled
    to the sort of deferential treatment accorded to a treating physician’s
    opinion.
    
    Id. at 762-63
     (quotations omitted) (emphasis in original).
    On December 13, 1999, plaintiff was examined by Dr. Goodman, also
    a board-certified psychiatrist and neurologist, and Dr. Goodman prepared
    a consultative report on behalf of the Commissioner.         See Aplt. App., Vol. 2
    at 241-43, 288. In his report, Dr. Goodman concluded that plaintiff had “no
    independent psychiatric difficulty that would interfere with her ability to work.”
    Id. at 243. Given Dr. Goodman’s opinion, it is clear that Dr. Dubriwny did not
    present the only psychiatric evidence pertaining to plaintiff’s alleged pain
    disorder.
    Dr. Dubriwny’s single examination of plaintiff is clearly the type of
    “fleeting relationship” that does not qualify him as a treating psychiatrist.    See
    Doyal , 
    331 F.3d at 763
    . And because Dr. Dubriwny’s opinion is not the only
    medical evidence regarding this issue, “the ALJ was not required to give [his]
    opinion controlling weight.”     
    Id. at 764
    .
    Even though the ALJ was correct that Dr. Dubriwny was not a treating
    physician, “the ALJ was still required to consider his opinion, and to provide
    -11-
    specific, legitimate reasons for rejecting it.”      
    Id.
     (citations omitted). In
    his decision, the ALJ concluded that “[t]he objective medical evidence
    demonstrates that [plaintiff’s] pain has improved significantly since she last
    visited Dr. Dubriwny and that passage of time significantly diminishes the weight
    given to his medical opinion.” Aplt. App., Vol. 2 at 19. The ALJ gave greater
    credence to Dr. Goodman’s opinion that plaintiff has no independent psychiatric
    impediment to holding down a job. Substantial evidence, particularly
    Dr. Goodman’s report, supports the ALJ’s decision on this point, and therefore
    the ALJ’s rejection of Dr. Dubriwny’s opinion was sufficiently supported in the
    record. See Doyal , 
    331 F.3d at 764
    .
    B. Alleged Mental Impairment and Listing 12.07
    Plaintiff was diagnosed by Dr. Royal as suffering from a chronic pain
    disorder.   3
    See Aplt. App., Vol. 2 at 245, 246, 247, 248, 249, 251, 310. Plaintiff
    claims the ALJ erred at step two of the evaluation process by failing to find that
    her chronic pain disorder is a separate severe mental impairment. Plaintiff further
    claims the ALJ erred at step three by failing to conduct a proper step-three
    analysis and by failing to find that her chronic pain disorder meets or equals the
    3
    Dr. Royal diagnosed plaintiff as suffering from chronic pain “syndrome,”
    but we use the term “disorder” so as to be consistent with the terminology used in
    the mental disorder listings contained in 20 C.F.R. Pt. 404, Subpt. P., App. 1,
    § 12.00.
    -12-
    mental disorder listing for Somatoform Disorders, listing 12.07.         4
    See 20 C.F.R.
    Pt. 404, Subpt. P, App. 1, § 12.07 (2000).
    The ALJ’s findings on both of these points are supported by substantial
    evidence and therefore must be affirmed.         See O’Dell , 
    44 F.3d at 858
    .      First,
    contrary to plaintiff’s claims, the ALJ did consider her allegations of severe and
    disabling pain at steps two, four, and five of the evaluation process, and again as
    part of his analysis of the physical injuries to plaintiff’s back and neck.         See Aplt.
    App., Vol. 2 at 18. As a result, unless plaintiff can establish that the ALJ erred at
    step three by failing to find that she meets or equals the mental disorder listing for
    Somatoform Disorders, the ALJ’s failure to consider her chronic pain disorder as
    a separate mental impairment is not reversible error.
    This court must be able to conduct meaningful judicial review of an ALJ’s
    step-three determination, and ALJs are therefore required at step three to make
    4
    A Somatoform Disorder exists when there are “[p]hysical symptoms for
    which there are no demonstrable organic findings or known physiological
    mechanisms.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.07 (2000). The disorder
    causes a claimant to exaggerate her physical problems in her mind beyond what
    the medical data indicate.   See Easter v. Bowen , 
    867 F.2d 1128
    , 1130 (8th Cir.
    1989). There is also a subgroup disorder called Somatoform Pain Disorder, which
    is indicated where: (1) pain is the predominate complaint; (2) the pain causes
    clinically significant impairment; (3) psychological factors have an important role
    in triggering the pain; (4) the symptom or deficit is not intentionally produced or
    feigned; and (5) the pain is not better accounted for by a mood, anxiety, or
    psychotic disorder. See American Psychiatric Assoc.: Diagnostic and Statistical
    Manual of Mental Disorders (DSM-IV-TR), at 485, 503 (4th ed. 2000).
    -13-
    specific findings and set out their reasons for accepting or rejecting evidence.
    See Clifton v. Chater , 
    79 F.3d 1007
    , 1009-10 (10th Cir. 1996). Although the ALJ
    did not specifically refer to listing 12.07 in his decision, we nonetheless conclude
    that the ALJ’s decision contains sufficient findings regarding plaintiff’s mental
    status to constitute a proper step-three analysis.
    As noted above, Dr. Goodman examined plaintiff in December 1999. In his
    consultative report, Dr. Goodman stated that “[d]iagnostically, her symptoms
    would certainly fit the category of a somatozation disorder although in the
    alternative she has been diagnosed as having ‘chronic pain syndrome’ with
    myofacial pain and discogenic disease.” Aplt. App., Vol. 2 at 243. As part of his
    “final psychiatric diagnosis,” Dr. Goodman then concluded that “[o]ne must
    consider somatoform disorder, somatozation type,” but he did not make an
    affirmative diagnosis.    
    Id.
     In fact, Dr. Goodman did not render any opinion as to
    whether plaintiff’s pain disorder was the result of a psychiatric disorder or her
    underlying physical ailments, or a combination of both.       5
    Instead, the only firm
    opinion set forth in his report is his conclusion that plaintiff had “no independent
    psychiatric difficulty that would interfere with her ability to work.”        
    Id.
    5
    Similarly, in the Mental Status Form he completed in September 1999,
    Dr. Dubriwny diagnosed plaintiff as suffering from a “pain [disorder] associated
    [with] psychological and organic factors,” Aplt. App., Vol. 2 at 190, but he did
    not give an opinion as to whether plaintiff was suffering from a Somatoform
    Disorder.
    -14-
    In his decision, the ALJ specifically noted Dr. Goodman’s opinion that
    plaintiff did not suffer from a psychiatric disorder that would interfere with her
    ability to work.   Id. at 17-18, 19. And, while the ALJ did not specifically cite
    listing 12.07, the ALJ did evaluate plaintiff’s mental status based on the
    subsection “B” criteria in listing 12.07, and he specifically found that plaintiff did
    not demonstrate the type of limitations with respect to her social functioning and
    daily living activities that are necessary to satisfy the listing.   Id. at 19-20. The
    ALJ’s findings regarding the subsection “B” criteria are supported by substantial
    evidence in the record. We therefore conclude that the ALJ did not commit
    reversible error at step three of the evaluation process.
    C. Plaintiff’s Credibility
    “Credibility determinations are peculiarly the province of the finder of fact,
    and we will not upset such determinations when supported by substantial
    evidence.” Kepler v. Chater , 
    68 F.3d 387
    , 391 (10th Cir. 1995) (quotation
    omitted). An ALJ must set forth specific reasons for questioning the credibility
    of a claimant’s subjective allegations of pain, however, and findings as to
    credibility must be closely linked to substantial evidence in the record.      
    Id.
    The ALJ found that plaintiff’s “credibility is diminished substantially due
    to the difference between her reports to Dr. Royal and her testimony at the
    hearing.” Aplt. App., Vol. 2 at 20. But the ALJ did not completely disregard
    -15-
    plaintiff’s subjective allegations of pain. Rather, the ALJ found “that the pain
    in the low back and legs experienced by [plaintiff is] limiting but, when compared
    with the total evidence, not severe enough to preclude all types of work.”
    Id. at 18.
    We conclude that the ALJ’s findings regarding plaintiff’s credibility and
    the limitations imposed by the pain caused by plaintiff’s neck and back injuries
    are supported by substantial evidence in the record. As noted above, there is no
    indication in Dr. Royal’s medical records that plaintiff’s ability to perform basic
    daily activities deteriorated in any significant respect during the time he treated
    her. Instead, Dr. Royal’s records indicate that plaintiff responded reasonably well
    to his treatment, and, as noted on several occasions in Dr. Herman’s medical
    records, it appears that her pain and other limitations were stabilized under
    Dr. Royal’s care. Thus, we will not disturb the ALJ’s credibility determination.
    D. ALJ’s Hypothetical Question
    When an ALJ propounds a hypothetical question to a vocational expert, the
    question “must include all (and only) those impairments borne out by the
    evidentiary record.”   Evans v. Chater , 
    55 F.3d 530
    , 532 (10th Cir. 1995).
    Plaintiff claims the ALJ failed to propound a proper hypothetical question to the
    vocational expert because the ALJ failed to include her alleged mental impairment
    in his hypothetical question. We disagree.
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    As discussed above, while Dr. Royal diagnosed plaintiff as suffering from a
    chronic pain disorder, there is insufficient evidence in the record to establish a
    basis for treating the disorder as a separate mental impairment for purposes of
    steps two, four, and five of the evaluation process. Moreover, the ALJ properly
    evaluated plaintiff’s allegations of severe and disabling pain as part of his
    analysis of the physical injuries to plaintiff’s back and neck. Accordingly, the
    ALJ did not err by failing to include plaintiff’s alleged mental impairment in his
    hypothetical question to the vocational expert.
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Timothy M. Tymkovich
    Circuit Judge
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