Watts v. Berryhill , 705 F. App'x 759 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KAREN WATTS, a/k/a Karen Weeks,
Plaintiff - Appellant,
v. No. 17-4004
(D.C. No. 2:16-CV-00073-BCW)
NANCY A. BERRYHILL, Acting (D. Utah)
Commissioner, Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
_________________________________
Karen Watts appeals from a judgment of the district court affirming the
Commissioner’s denial of her application for Social Security disability benefits and
supplemental security income benefits. Exercising jurisdiction under 42 U.S.C.
§ 405(g) and 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding precedent,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.
I. Background
Ms. Watts sought benefits alleging she became disabled in March 2013, at
age 51, based on bipolar disorder, depression, back surgery, and knee injury.1 The
administrative law judge (ALJ) applied the familiar five-step sequential evaluation
process used to assess social security claims. See Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010). He found Ms. Watts has severe impairments of depression,
anxiety, iron deficiency, and spinal degeneration status post fusion, but did not have
an impairment or combination of impairments that meets or equals the requirements
of a listing. The ALJ assessed Ms. Watts with the residual functional capacity (RFC)
to perform a reduced range of light work, limited by a need to have only brief and
superficial contact with the public and to avoid even moderate exposure to certain
hazards. A vocational expert testified Ms. Watts could not perform her past relevant
work, but could perform unskilled work that exists in significant numbers in the
national economy, such as a cleaner or office helper. Accordingly, the ALJ found
Ms. Watts was not disabled. The Appeals Council denied review, and a magistrate
judge, acting on the parties’ consent, affirmed the Commissioner’s decision.
II. Discussion
On appeal, Ms. Watts argues the ALJ failed to discuss the opinions of her
treating medical providers and improperly discounted her subjective complaints.
“We review the Commissioner’s decision to determine whether the factual findings
1
Ms. Watts does not challenge the denial of benefits related to her physical
impairments.
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are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Wilson, 602 F.3d at 1140. “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation marks omitted).
Discussion of Treating Physicians. Ms. Watts argues the ALJ erred by not
expressly discussing the medical evidence from her treating physicians relevant to
her bipolar disorder when he formulated his RFC. She complains the ALJ only
evaluated opinion evidence from one-time examining physicians or consultative
physicians. Specifically, she argues the ALJ should have discussed the evidence
from (1) Dr. McGaughy, her long-time treating provider, who diagnosed her with
bipolar disorder, and assigned her GAF scores ranging from 45 to 55;2 (2) Dr. Hough,
who diagnosed her as bipolar and checked a box stating Ms. Watts was unable to
work due to her bipolar disorder and depression; and (3) other unnamed providers
who stated, without discussion or analysis, she was unable to work.3 Ms. Watts does
2
The Global Assessment of Functioning, or GAF, score, “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.” Langley v. Barnhart, 373 F.3d 1116, 1122
n.3 (10th Cir. 2004) (internal quotation marks omitted). “A GAF score of 51-60
indicates moderate symptoms, such as a flat affect, or moderate difficulty in social or
occupational functioning.” Id. (internal quotation marks omitted). “A GAF score of
41-50 indicates serious symptoms . . . or serious impairment in social, occupational,
or school functioning, such as inability to keep a job.” Id. (brackets and internal
quotation marks omitted).
3
Ms. Watts also alleges it was error not to discuss the statement by a licensed
social worker noting Ms. Watts had bipolar disorder. But the social worker simply
noted Ms. Watts’ diagnosed bipolar disorder, and expressed no opinion as to how this
(continued)
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not identify any specific functional limitation these treating physicians identified that
the ALJ overlooked in making his RFC determination.
The ALJ noted Ms. Watts had a lengthy history of treatment for bipolar
disorder, depression, and anxiety. The ALJ did not discuss in any detail the evidence
from her treating physicians relating to Ms. Watts’ bipolar disorder, but he stated he
had considered all of the medical evidence in the record, including all reported
symptoms, objective medical evidence, and medical opinion evidence. We take the
ALJ at his word, unless shown otherwise. Wall v. Astrue, 561 F.3d 1048, 1070
(10th Cir. 2009). The ALJ did discuss the evidence from Ms. Watts’ treating
physicians that had potential relevance to his RFC determination. The ALJ explained
he gave very little weight to GAF scores because they vary daily and represent only a
clinician’s subjective evaluation at a single point in time. The ALJ noted
Dr. Hough’s opinion Ms. Watts could not work, but gave it no weight because
findings of disability are reserved to the Commissioner.
An ALJ must determine a claimant’s RFC “based on all of the relevant
medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). “But the ALJ, not a
physician, is charged with determining a claimant’s RFC from the medical record.”
Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004). While the “record must
impairment affected Ms. Watts’ ability to function. A licensed social worker is not
an acceptable medical source and may only be used as other evidence of how a
claimant’s impairment affects her ability to function. SSR 06-03p, 2006 WL
2329939, at *3. The mere diagnosis of a condition does not establish its severity or
any resulting work limitations.
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demonstrate the ALJ considered all of the evidence,” there is no requirement an ALJ
“discuss every piece of evidence.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.
2014) (internal quotation marks omitted).
None of Ms. Watts’ treating physicians expressed any medical opinion that she
had greater functional limitations than those identified by the ALJ in his RFC
determination. We have held an ALJ may permissibly engage in a less extensive
analysis of the medical evidence where “none of the record medical evidence
conflicts with the ALJ’s conclusion that claimant can perform . . . work.” Howard,
379 F.3d at 947 (“When the ALJ does not need to reject or weigh evidence
unfavorably in order to determine a claimant’s RFC, the need for express analysis is
weakened.”). Ms. Watts argues the ALJ should have discussed in detail all of the
evidence from her treating physicians. But, as noted, there is no requirement the ALJ
reference everything in the administrative record, particularly when the evidence
supports the ALJ’s conclusion. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163
(10th Cir. 2012) (holding if the ALJ’s RFC is “generally consistent” with the findings
in an opinion, “[t]here is no reason to believe that a further analysis or weighing of
th[e] opinion could advance [the claimant’s] claim of disability.”).
In her reply brief, Ms. Watts argues the ALJ erred when he gave little weight
to the GAF scores assigned by Dr. McGaughy. An ALJ is obligated to give good
reasons for the weight he assigns to a treating physician’s opinion. Langley,
373 F.3d at 1119. The ALJ satisfied this requirement, explaining he gives GAF
scores very little weight because they vary daily and represent only a subjective
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evaluation at a single point in time. Ms. Watts does not dispute the accuracy of this
statement. The Commissioner has declined to endorse the use of GAF scores for use
in disability determinations, concluding they have no “direct correlation to the
severity requirements” of the mental disorders listings. Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746,
50764-65 (Aug. 21, 2000); see also Rose v. Colvin, 634 F. App’x 632, 636 (10th Cir.
2015) (finding no error in an ALJ’s failure to discuss a GAF score of 40, because
GAF scores have no direct correlation to disability and the current Diagnostic and
Statistical Manual of Mental Disorders has discontinued the use of the GAF due to
its “conceptual lack of clarity” and “questionable psychometrics in routine practice”
(internal quotation marks omitted)). We conclude the ALJ did not err in his
discussion of the medical evidence or in his evaluation of the GAF scores in the
record.
Credibility Determination. Ms. Watts next challenges the ALJ’s analysis in
assessing the credibility of her subjective complaints. She testified her impairments
cause her to go to the emergency room for her mental problems and suicide attempts,
she has panic attacks before work, poor sleep during manic phases, has racing
thoughts and lack of interest in any activities, poor energy, excessive sleep, and
cooks in the microwave. The ALJ found Ms. Watts’ “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however,
[her] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” Aplt.
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App., Vol. I, at 16. The ALJ cited Ms. Watts’ activities of daily living (ADL), noting
she “cooks and cleans every day, goes shopping weekly, calls her mother and her son
frequently, visits family in California every three months, goes fishing, does
crossword puzzles, and drives a car.” Id. The ALJ noted she goes for walks and
goes to the movies. The ALJ also noted she told her therapist she “love[d] to fix up
the house.” Id. (internal quotation marks omitted).
Ms. Watts argues the ALJ’s credibility determination is flawed, because it was
based only on boilerplate language and minimal ADL findings. She argues the ALJ
gave only a general description of her ADL without discussing how she actually
performs those activities. She argues the ALJ should have discussed the evidence
that she has made aggressive efforts to relieve her symptoms through frequent
therapy visits and medication, she is compliant with her medications, and these
medications have side effects, all of which is relevant to her credibility.
“Credibility determinations are peculiarly the province of the finder of fact”
and will not be overturned “when supported by substantial evidence.” Wilson,
602 F.3d at 1144. 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).4 An ALJ must do more than merely recite the relevant
4
Hamlin cited SSR 96-7p, which articulated the factors an ALJ should
consider in evaluating a claimant’s subjective symptoms and was the applicable
ruling at the time of the ALJ’s decision here. SSR 96-7p was superseded in March
(continued)
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factors, but must give reasons for the findings linked to the evidence. See Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995). “Findings as to credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion in
the guise of findings.” Id. (brackets and internal quotation marks omitted). But we
“do not require a formalistic factor-by-factor recitation of the evidence. So long as
the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
subjective complaints, the dictates of Kepler are satisfied.” See Qualls v. Apfel,
206 F.3d 1368, 1371 (10th Cir. 2000).
The ALJ’s analysis satisfies this test. He did not just recite the boilerplate
factors. He described the inconsistencies between her complaints and her ADL.
Wilson, 602 F.3d at 1146 (holding an ALJ’s consideration of ADLs is a permissible
part of substantial evidence supporting credibility evaluation). But he did not solely
consider Ms. Watts’ ADL. He did acknowledge Ms. Watts’ persistent attempts to
find treatment for her mental impairments. And he did note she takes her psychiatric
medications, even though she dislikes doing so. Ms. Watts’ argument that the ALJ
should have found her subjective complaints fully credible because she sought
treatment and took her medications is essentially asking this court to impermissibly
reweigh the evidence and improperly substitute our judgment for the
2016 to “eliminate[e] the use of the term ‘credibility’” and to “clarify that subjective
symptom evaluation is not an examination of an individual’s character.”
See SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16, 2016). However, the factors to
be considered under SSR 96-7p are the same as under SSR 16-3p. Compare SSR
96-7p, 1996 WL 374186, at *7 (July 2, 1996), with SSR 16-3p, 2016 WL 1119029,
at *7.
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Commissioner’s, which we may not do. See Qualls, 206 F.3d at 1372. We conclude
the ALJ properly considered the relevant factors and specifically set forth record
evidence relied upon in making his credibility determination. See id. We find no
error.
Judgment affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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