Roybal v. Barnhart ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DEA NN A R OY BA L,
Plaintiff-Appellant,
v. No. 06-4189
(D.C. No. 2:05-CV-2-JTG)
M ICH AEL J. ASTRU E, * (D. Utah)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Deanna Roybal appeals from the district court’s affirmance of the Social
Security Commissioner’s denial of her application for Social Security disability
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and Supplemental Security Income payments. W e have jurisdiction under
42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we AFFIRM .
I
M s. Roybal was born in 1969. She completed high school and one year of
college. For about seven years, she worked as a library assistant, then she spent
three years working in customer service for a check printing company. In the
summer of 2001, however, her mother became so ill in her battle with cancer,
diabetes, and kidney problems that M s. Roybal had to quit w ork to look after her.
W hen she quit, she lost her insurance benefits, so she w as no longer able to afford
the medications that her doctor had prescribed for depression and anxiety over the
past couple of years.
Sadly, M s. Roybal’s mother lost her battle in January 2002. W ith her
mother’s death, M s. Roybal’s depression and anxiety disorders became more
severe. On February 6, she began seeing Dora Norton, M .D., who noted that
M s. Roybal reported that “she has struggled with depressed mood, tearfulness,
anhedonia, low energy, low appetite, and sleep disturbances.” Aplt. A pp. at 145.
Dr. Norton diagnosed her with “M ajor Depression [‘recurrent, severe, without
psychotic features’] and issues of grief surrounding the recent death of her
mother.” Id. at 147. Dr. Norton later added a diagnosis of panic disorder with
agoraphobia. In a statement signed on April 24, 2002, she stated that M s. Roybal
“is emotionally labile and withdrawn,” “currently unable to perform activities of
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daily living, including shopping, working, and driving,” and “neglects her own
self-care and nutritional needs.” Id. at 129, 131. She assessed a current global
assessment of functioning (GAF) score of 30, up from 20, 1 and she opined that
“[p]rognosis will improve with further treatment,” w hich she estimated would
take at least four to six months. Id. at 131. She continued to see M s. Roybal
periodically in 2002. W hen M s. Roybal indicated in October that she had not
been compliant with therapy because of financial issues, Dr. Norton discussed a
temporary $5 charge for therapy sessions.
On November 19, 2002, Dr. David Ericksen, Ph.D., performed a
consultative examination. He diagnosed M s. Roybal with a major depressive
disorder, recurrent, and panic disorder w ith agoraphobia, and he assessed her with
a GAF score of 52. 2 He concluded that “[t]he present findings suggested that this
claimant’s ability to maintain concentration and attention is moderately impaired.
Her speed of cognitive processing is quite slow and her ability to tolerate w ork
1
The GAF is a subjective determination based on a scale of 100 to 1 of “the
clinician’s judgment of the individual’s overall level of functioning.” Am.
Psychiatric Ass’n, Diagnostic and Statistical M anual of Mental Disorders 32
(Text Revision 4th ed. 2000) (DSM -IV). A GAF score of 21-30 indicates
“[b]ehavior is considerably influenced by delusions or hallucinations” or that a
claimant suffers from “serious impairment in comm unication or judgment” or that
she has an “inability to function in almost all areas.” Id. at 34.
2
A GAF score of 51-60 indicates “moderate symptoms,” or “moderate
difficulty in social, occupational, or school functioning.” DSM -IV at 34.
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stress is very poor. She is capable of understanding, remembering, and carrying
out simple instructions.” Id. at 134.
For reasons not revealed in the record, M s. Roybal apparently sought no
treatment for her mental disorders between her last visit with Dr. Norton on
December 11, 2002, and her first visit to Valley M ental Health on August 14,
2003. There, she primarily saw Licensed Clinical Social W orker Linda Lasley
and Nusrat Ahmed, M .D. At the intake visit, M s. Lasley noted that M s. Roybal
reported a suicide attempt two weeks before. M s. Lasley’s diagnosis was “M ajor
Depressive Disorder, single episode, moderate,” “Dysthymic Disorder,” and
“Generalized Anxiety Disorder,” with a GAF score of 50. 3 Id. at 200.
D r. A hmed’s first contact with M s. Roybal was on September 12, 2003. H e
noted that she “presents w ith major depressive symptoms and symptoms of panic
disorder with agoraphobia.” Id. at 198. His exam revealed that M s. Roybal “is
alert and oriented x 3. She exhibits psychomotor retardation. Her affect is
blunted. Her mood is depressed. Thought process is slow and logical. . . . Her
cognitive functions are intact. She has fair insight and good judgment.” Id. H e
diagnosed her with “M ajor Depression, recurrent, moderate” and “Panic Disorder
with Agoraphobia” and assessed a GAF score of 45. Id. at 199. M s. Roybal
3
A GAF score of 41-50 indicates “[s]erious symptoms” or “serious
impairment in social, occupational, or school functioning.” DSM -IV at 34.
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continued visiting Valley M ental Health through the date of her administrative
hearing.
At her hearing on February 23, 2004, M s. Roybal testified that in 2002, she
was able to do some things around the house, but that she was only able to do
activities outside the house if she went with a friend. She further testified that in
2003, she continued to do light meal preparation and take care of herself and her
apartment. She also stated she did not go on any trips or vacations, and that she
attempted suicide in July or August of that year. Paramedics were called to her
house, and they treated the cuts on her w rists with band-aids. Her outings were
limited to trips to the library with her friend to get videos. In both 2002 and
2003, she made one trip a month to the grocery store, spending about two hours
per visit. She testified that if her friend needed her to take him to the hospital in
an emergency, she could not do it, because “[t]hat would be something where I
was needed. I’m not really good if people need me. I’m really apt to needing
others.” Aplt. App. at 215.
The administrative law judge (ALJ) found M s. Roybal’s testimony not
entirely credible, stating that “ [t]he ALJ does not find the claimant’s functional
allegations, and conclusion of total disability, to be reasonably consistent with the
objective medical evidence and non-medical evidence, when considered as a
whole.” Id. at 36. The ALJ noted that M s. Roybal had quit work to care for her
mother, not because of her mental impairments, and that before that she had
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engaged in “successful work attempts at the substantial gainful level.” Id. The
ALJ further cited four specific reasons to discredit M s. Roybal’s testimony. First,
the ALJ found that inconsistencies in her testimony about being able to help her
friend “goes to motivation in that when claimant needs food and other necessities,
she can go; but, when a friend needs help, she is unable to help. Clearly then,
claimant is able to be quite functional when she exerts the effort required by the
legal standards that must be followed in this case, i.e., what is the most she can
do despite her impairments.” Id. Second, M s. Roybal had testified that she did
not take any trips or vacations, but the record showed that in November 2003, she
traveled to North Carolina with her friend and then returned to Utah by herself on
the bus. Third, the ALJ noted “that many of claimant’s symptoms arise from
fights from her boyfriend and family members, as brought out in numerous
individual therapy sessions. It would appear that a reasonable work environment
would be more conducive to emotional health and allow for some work.” Id.Finally, the A LJ stated that the record did not contain any medical opinions,
either from treating or examining physicians, indicating that M s. Roybal was
totally disabled or that she had limitations greater than those assessed by the ALJ.
The ALJ concluded that M s. Roybal did not meet or equal any applicable
impairment Listing and that she could not return to her former jobs, but that she
had the residual functional capacity (RFC) to perform unskilled w ork at no more
than low stress, concentration, and memory levels. Relying on the testimony of a
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vocational expert, the ALJ concluded that there were jobs in the national economy
that M s. Roybal was able to perform and denied her application at step five of the
five-step analysis. The A ppeals Council denied review, and the district court
affirmed the agency’s decision. M s. Roybal appeals.
II
M s. Roybal presents two arguments on appeal. First, she contends that the
ALJ failed to analyze her treating medical sources’ opinions properly. Second,
she argues that the ALJ failed to assess her credibility properly.
“Because the Appeals Council denied review, the ALJ’s decision is the
Commissioner’s final decision for purposes of this appeal.” Branum v. Barnhart,
385 F.3d 1268, 1270 (10th Cir. 2004) (citing Doyal v. Barnhart, 331 F.3d 758,
759 (10th Cir. 2003)). Our standards of review in Social Security cases are
familiar:
In reviewing the ALJ’s decision, we “neither reweigh the evidence
nor substitute our judgment for that of the agency.” Casias v. Sec’y
of Health & Hum an Servs., 933 F.2d 799, 800 (10th Cir. 1991).
Instead, we review the ALJ’s decision only to determine whether the
correct legal standards were applied and whether the ALJ’s factual
findings are supported by substantial evidence in the record. Doyal,
331 F.3d at 760. “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Id. (quotation omitted).
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A
M s. Roybal first complains that the ALJ did not analyze her treating
medical sources’ opinions under the rubric established in Watkins v. Barnhart,
350 F.3d 1297 (10th Cir. 2003). There, we explained that an ALJ must determine
whether to give a treating medical source’s opinion “controlling weight,” and, if
not, to determine what deference the opinion is due using the factors set forth in
the regulations. Id. at 1300-01. W e also stated that the ALJ’s determination
regarding the weight assigned to a treating physician’s opinion “‘must be
sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.’” Id. at 1300 (quoting Soc. Sec. Rul. 96-2p, 1996 W L 374188, at *5).
Here, the ALJ discussed much of the medical evidence but did not
explicitly explain what weight was assigned to D r. Norton’s and Dr. Ahmed’s
opinions. 4 In this case, however, we do not believe the ALJ’s failure requires
reversal because the ALJ did not reject the treating physicians’ opinions or weigh
them unfavorably in concluding that M s. Roybal w as not entitled to benefits.
“W hen the ALJ does not need to reject or w eigh evidence unfavorably in order to
4
To the extent that M s. Roybal complains that the ALJ did not appropriately
weigh M s. Lasley’s notes, a licensed clinical social w orker is not an acceptable
medical source and thus is not entitled to controlling weight. See Branum,
385 F.3d at 1272.
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determine a claimant’s RFC, the need for express analysis is weakened.” Howard
v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004).
The ALJ adopted the diagnoses of Dr. Norton and Dr. Ahmed in finding
that M s. Roybal suffers from the severe impairments of a major depressive
disorder and a panic disorder with agoraphobia. And as the ALJ noted,
Dr. Norton’s and Dr. Ahmed’s notes generally do not contradict the A LJ’s
findings. The medical evidence indicates that M s. Roybal was disabled for
several months immediately following her mother’s death. See Aplt. App. at 143
(D r. Norton’s M arch 2002 notation that M s. Roybal “expressed that she is
extremely anxious to leave the apartment . . . and avoids doing so at all
measures”); id. at 129 (Dr. Norton’s A pril 24, 2002, statement that M s. Roybal “is
currently unable to perform activities of daily living, including shopping,
working, and driving. She is dependent on one friend to help her meet her needs
and without his assistance would likely have grave self-care deficits.”). The ALJ
recognized these limitations. Id. at 34 (“At that time, claimant was unable to
perform activities of daily living and was isolating herself.”). As the A LJ also
noted, however, the record indicates that M s. Roybal’s condition gradually
improved. Particularly, while the medical record indicates M s. Roybal suffered
some setbacks in treatment, her treating physicians’ notes or opinions do not
require a finding that her condition continued to be totally disabling for the
minimum twelve-month period required for benefits. See Aplt. App. at 142 (Dr.
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Norton’s A pril 19, 2002, notation that M s. Roybal “experiences an elevation in
mood, brightening of affect over the past month. Energy level improving, sleep
& appetite are approaching [normal level] for her. No longer anhedonic. Now
suggesting to do recreational activities (e.g., going to church, piercing tongues)
[with] friend”); id. at 131 (Dr. Norton’s April 24, 2002, statement that
“[p]rognosis will improve with further treatment for depression and anxiety,” w ith
treatment expected to last four to six months); id. at 141 (Dr. Norton’s M ay 22,
2002, notation that “D eanna has noted some improvement [on] clonazepam and is
gaining confidence”); id. at 139 (September 2002 notation by another doctor that
M s. Roybal asked for medications because she was going out of town for three
weeks). M oreover, there is an eight-month period, from December 11, 2002, to
August 14, 2003, when M s. Roybal apparently sought no psychological treatment,
so no treating physicians’ notes or opinions are available for a portion of the
period under consideration.
W hile it is preferable that an ALJ employ the Watkins analysis, we do not
consider the ALJ’s failure in this instance to require reversal. M oreover, the
ALJ’s analysis is supported by substantial evidence in the record. Accordingly,
we shall not disturb the decision.
B
M s. Roybal also argues that the ALJ erred in assessing her credibility.
“Credibility determinations are peculiarly the province of the finder of fact, and
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we will not upset such determinations when supported by substantial evidence.”
Diaz v. Sec’y of Health & Hum an Servs., 898 F.2d 774, 777 (10th Cir. 1990). A s
we have acknowledged, the ALJ’s credibility determinations “warrant particular
deference” because “[t]he ALJ enjoys an institutional advantage in making the
type of determination at issue here. Not only does an ALJ see far more social
security cases than do appellate judges, he or she is uniquely able to observe the
demeanor . . . of the claimant in a direct and unmediated fashion.” White v.
Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). Credibility determinations,
however, cannot be based on intangible or intuitive reasons, but “must be
grounded in the evidence and articulated in the determination or decision.”
Soc. Sec. Rul. 96-7p, 1996 W L 374186, at *4; see also Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995) (credibility determination “should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise
of findings.” (internal quotation marks omitted)).
The ALJ cited several reasons to discount M s. Roybal’s credibility. She
argues that the ALJ’s reasons were incorrect and/or insufficient to support the
decision. Given the nature of the mental impairments at issue, we acknowledge
that the ALJ may have erred in finding that M s. Roybal’s testimony about her
inability to help her friend to the hospital was inconsistent with her other
activities. Any such error in this case does not justify reversal, however, because
the ALJ’s other reasons for discounting M s. Roybal’s credibility are supported by
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substantial evidence. Particularly, M s. Roybal testified at the hearing that she did
not take any trips or vacations in 2003 and that she would not have taken a free
trip had it been offered, Aplt. App. at 211, and yet her medical records reflect that
she took a trip to North Carolina with her friend in November 2003. Her decision
to cut that visit short and return by herself to Utah on a bus also indicates that,
when she has to, she can undertake activities outside her house by herself and she
can take care of herself. Further, the ALJ’s comment that M s. Roybal’s situation
may be improved by working is not sheer speculation, but is supported by the
opinion of a consulting physician. Id. at 181. Finally, as discussed above, the
available treating-physician notes and opinions do not necessarily contradict
M s. Roybal’s assessed RFC.
It cannot be gainsaid that M s. Roybal suffers from severe mental disorders.
On this record, however, we cannot say that the ALJ’s credibility findings are not
supported by substantial evidence.
III
M s. Roybal’s motion to file a reply brief is GRANTED, and the reply brief
is accepted for filing as of January 5, 2007, the date it w as delivered to this court.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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