McDonald v. Astrue

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 23, 2012
Elisabeth A. Shumaker
Clerk of Court
GINA L. MCDONALD,
Plaintiff-Appellant,
v. No. 11-1263
(D.C. No. 1:10-CV-00871-CMA)
MICHAEL J. ASTRUE, Commissioner (D. Colo.)
of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.
Gina L. McDonald appeals from a district court order affirming the
Commissioner’s denial of her applications for Social Security disability (SSD)
benefits and Supplemental Security Income (SSI) payments under Titles II and XVI
of the Social Security Act. Exercising jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g), we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
McDonald is a high school graduate with two years of college classes and
previous work as an order taker, sales-route driver, and peer specialist. She claimed
disability beginning on October 3, 2006, due to mental functional limitations. She
began therapy on that date at Spanish Peaks Mental Health Center (Spanish Peaks),
where she saw various clinicians including Marge Montoya, a nurse practitioner who
prescribed her medications. McDonald filed her SSD and SSI applications on
October 31, 2006.
A. Hearing Testimony
At a hearing before an administrative law judge (ALJ) on December 4, 2008,
McDonald testified that she has difficulty talking to and socializing with people, and
she gets extremely anxious in large groups of people. She said she has crying spells
five or six times in a six-month period and panic attacks four to five times per week.
She also testified about a recent flare up in her depression. McDonald described her
emotional state as being like a roller coaster, with her moods changing from day to
day and sometimes from minute to minute. On a scale of one to ten—with ten being
the worst—she rated the severity of her mental symptoms on her good days as five
and on her bad days as nine. McDonald said she has fifteen to twenty bad days per
month. On those bad days, she testified that she stays in bed all day, getting up only
to make dinner for her family. On other days she said she needs medication to go to
sleep even when she feels tired. McDonald did not believe that, on a bad day, she
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would be able to perform a job with very simplistic, routine tasks that did not require
her to work with other people.
McDonald testified that she had changed medications fairly regularly due to
side effects or lack of effectiveness, but that her medications had been stable for
about six months. She stated that her medications made her feel foggy, and that
sometimes she knows what she wants to say but cannot think of the words.
McDonald indicated that, in her job as a part-time Peer Specialist at Spanish
Peaks in 2008, she led various therapy groups. She said that she quit that job because
she was having problems with her home life and was feeling very symptomatic and
overwhelmed. Her problems at home related to her disobedient teenage daughter,
and McDonald acknowledged that, because her daughter had subsequently moved
out, that source of stress was gone.
B. ALJ’s Decision
The ALJ issued a decision concluding that McDonald was not disabled. After
initially finding that she had the severe impairments of dysthymia (i.e., depression)
and post-traumatic-stress disorder, the ALJ stated that these impairments did not
meet or medically equal the disabling impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, Part A, §§ 12.04 and 12.06 (Listing of Impairments). In
reaching that determination, the ALJ noted that he considered, but rejected, both a
state agency psychiatrist’s opinion, which found that McDonald has no severe
impairments, and an opinion submitted by Montoya and Dr. W. Lee McNabb, a
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psychiatrist at Spanish Peaks (McNabb-Montoya opinion). The McNabb-Montoya
opinion concluded that McDonald has marked restrictions in almost all facets of
understanding, memory, sustained concentration, persistence, social interaction, and
adaptation.
The ALJ proceeded to assess the severity of McDonald’s functional limitations
under the “B” criteria of the Listing of Impairments based on the other evidence in
the record. He found that McDonald had a mild restriction in her activities of daily
living; mild to moderate difficulty in maintaining social functioning; and moderate
difficulty in maintaining concentration, persistence, or pace.1 The ALJ found no
evidence of episodes of decompensation of extended duration. The ALJ then based
his assessment of McDonald’s residual function capacity (RFC) on his “B” criteria
findings, concluding that she has the RFC
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: a restriction to no more than
semi-skilled work, subject to moderate limitations in the ability to
maintain attention and concentration for extended periods; moderate
limitations in the ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances; and moderate limitations in the ability to respond
appropriately to changes in the work settings.
Admin. R. at 18. The ALJ related McDonald’s moderate limitations in the area of
attention and concentration to her complaints of difficulty with medication side
1
The regulations require the ALJ to rate the degree of functional limitations in
these three areas on a five-point scale of none, mild, moderate, marked, or extreme.
See 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4).
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effects. He tied her moderate difficulties with keeping to a schedule, maintaining
attendance and punctuality to her depression. And he related her moderate
limitations regarding responding to changes in work settings to her anxiety.
The ALJ next summarized McDonald’s hearing testimony. Then, in support of
his RFC and credibility findings, the ALJ compared her testimony to the other
evidence in the record, both medical and non-medical. He characterized McDonald’s
family situation as chaotic, primarily due to problems with her older daughter who
has legal issues, had run away from home, and was periodically placed outside
McDonald’s home. The ALJ observed that the vast majority of her counseling
sessions focused on her family problems and coping strategies for that stressor, rather
than the symptoms she described at the hearing. The ALJ noted that McDonald had
initially reported symptoms including panic episodes and difficulty sleeping. But
only a month later, McDonald and Montoya agreed that her symptoms had improved
on a new medication. In early 2007, McDonald reported worsening depression after
she stopped taking medication, but in February and March of that year she denied
significant depression. The ALJ observed that, after 2006, she did not report further
panic episodes, fear of crowds, or vegetative symptoms. And she began attending
seven different therapy groups and going on group social outings.
The ALJ also felt that McDonald had downplayed in her testimony her efforts
to find employment. He observed that her barriers to employment reflected in the
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record had little to do with her mental status.2 By 2008, McDonald was working
part-time as a paid Peer Specialist, a role in which she led therapy groups and
assisted other clients in determining recovery goals and using problem-solving
techniques. The ALJ noted McDonald’s explanation that she did not return to work
after September 2008 because she had overwhelming problems in her home life. The
ALJ concluded the evidence showed that both McDonald and her clinicians thought
she was capable of working or attending school to complete her college degree,
activities which were “indicative of a far greater capacity for focus, social
interaction, adaptation, and persistence than her testimony would indicate.” Admin.
R. at 21.
Considering also the observations of her treating clinicians, the ALJ found no
objective support for McDonald’s contentions of extreme limitations, as described in
her testimony. The ALJ observed that during her psychological assessment on
October 3, 2006, her performance on a mental status exam was patchy, but the
clinician rated her Global Assessment of Functioning (GAF) as 52, within the
2
While noting that McDonald had reported she was anxious about seeking
work, the ALJ cited her difficulty explaining her lapse in work history; her difficulty
effectively communicating her need for time off for court hearings and appointments;
her criminal history; her hesitation to look for work in 2006 because she was busy
moving; and her need to get her student loans out of default before continuing her
education, as reasons reflected in the record why she did not follow through with
employment or schooling.
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moderate range.3 A few days later, Montoya assessed McDonald’s GAF as 60, at the
high end of the moderate range. The ALJ found that McDonald’s treatment records,
over all, consistently indicated that she was cooperative and able to communicate
without difficulty; her speech was appropriate and her thought processes were
organized, clear, and coherent; her grooming and dress were appropriate; and her
mood and affect were stable, calm, and within the normal range. The ALJ noted
exceptions when McDonald failed to take her medications as prescribed. The ALJ
stated that the evidence, objective and otherwise, did not support McDonald’s
contentions regarding the severity or chronicity of her symptoms. He concluded that
“her statements concerning the intensity, persistence and limiting effects of [her]
symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment.” Admin. R. at 21.
The ALJ also explained his rejection of the McNabb-Montoya opinion, stating
first that it was not entitled to controlling weight because there was no indication in
the record that Dr. McNabb ever treated McDonald.4 The ALJ further found that the
3
The GAF is a subjective rating of “the clinician’s judgment of the individual’s
overall level of functioning,” based on a scale of 1-100, with 100 being the highest
level of functioning. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of
Mental Disorders (Text Rev. 4th ed. 2000) at 32. A GAF of 51-60 indicates
“[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks)” or “moderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).” Id. at 34.
4
Montoya, a nurse practitioner, is not an “acceptable medical source.” See
20 C.F.R. §§ 404.1513(a), (d)(1), 416.913(a), (d)(1). She therefore would not qualify
(continued)
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actual observations of McDonald’s treating clinicians, including Montoya, failed to
support the conclusions in the McNabb-Montoya opinion that McDonald has the
marked limitations shown and could not sustain a normal workday or workweek.
Citing hearing testimony from a vocational expert, the ALJ ultimately
concluded that, with her RFC, McDonald was capable of performing her past relevant
work as a sales-route driver and order taker. Therefore, the ALJ concluded she was
not under a disability from October 3, 2006, through the date of the decision.
After the Appeals Council denied her request for review, McDonald filed an
appeal of the Commissioner’s decision in the district court. That court affirmed the
denial of her claims, and McDonald filed a timely appeal.
II. Discussion
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.
2003).
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. It requires more than
a scintilla, but less than a preponderance. We consider whether the ALJ
followed the specific rules of law that must be followed in weighing
particular types of evidence in disability cases, but we will not reweigh
the evidence or substitute our judgment for the Commissioner’s.
as a “treating source” whose opinion could be entitled to controlling weight. See
Bowman v. Astrue, 511 F.3d 1270, 1275 n.2 (10th Cir. 2008) (quotations omitted).
-8-
Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted).
McDonald asserts on appeal that (1) the ALJ did not properly weigh the
McNabb-Montoya opinion; (2) the ALJ failed to properly assess her credibility; and
(3) the ALJ’s RFC finding is not supported by substantial evidence because the ALJ
did not rely on a medical opinion to determine her mental functional limitations.
A. ALJ’s Rejection of McNabb-Montoya Opinion
“[T]he opinion of a treating physician concerning the nature and extent of a
claimant’s disability is entitled to controlling weight when it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the claimant’s case record.” Doyal
v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003) (quotations and brackets omitted).
“The treating physician’s opinion is given particular weight because of his unique
perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations . . . . This requires
a relationship of both duration and frequency.” Id. (quotation omitted). Further, “a
longstanding treatment relationship provides some assurance that the opinion has
been formed for purposes of treatment and not simply to facilitate the obtaining of
benefits.” Id. at 762-63. If a physician is not a “treating physician” within the
meaning of the regulations, his opinion is not entitled to a presumption of controlling
weight. Id. at 762.
The McNabb-Montoya opinion is a check-the-box Mental Work Capacity
Evaluation form completed by Dr. McNabb and Montoya on November 20, 2008. In
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it they stated that they had treated McDonald since October 5, 2006. They responded
“yes” to the question whether McDonald’s condition was serious enough that she
would have a pattern of missing four or more days of work per month if she were
working full-time. They also answered “yes” to the question whether McDonald
would be so preoccupied with her condition that she would lose one hour or more of
productivity per day at any job. Admin. R. at 323.
The form asked for an opinion on the degree of McDonald’s limitations in
various functional areas—either none, slight, moderate, marked, or extreme—
resulting from her mental difficulties. It defined “marked” as “[s]erious limitations
in this area. The ability to function in this area is severely limited but not
precluded.” Id. at 324. “Moderate” was defined as “[m]oderate limitations in this
area, but still able to function.” Id. And “slight” meant “[s]ome mild limitation in
this area, but generally functions well.” Id. Dr. McNabb and Montoya opined that
McDonald has marked limitations in all of the following functional areas:
 remembering locations and work-like procedures;
 understanding and remembering very short and simple instructions;
 maintaining attention and concentration for extended periods;
 performing activities on a schedule, regular attendance, and punctuality;
 working in coordination with or in proximity to others without being
distracted by them;
 making simple work-related decisions;
 interacting appropriately with the general public;
 accepting instructions and responding appropriately to criticism from
supervisors;
 getting along with coworkers without distracting them or exhibiting
behavioral extremes;
 maintaining socially appropriate behavior and adhering to basic
standards of neatness and cleanliness;
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 responding appropriately to changes in the work setting;
 traveling in unfamiliar places or using public transportation; and
 setting realistic goals and making plans independently of others.
They further concluded that McDonald has moderate limitations in carrying out very
short and simple instructions; slight limitations in asking simple questions and
requesting assistance; and slight limitations in being aware of normal hazards and
taking appropriate precautions. Dr. McNabb and Montoya did not reference any of
McDonald’s medical records in support of their opinion.
1. ALJ’s Determination that Dr. McNabb Was Not McDonald’s
Treating Physician
In her opening brief, McDonald challenges the ALJ’s determination that
Dr. McNabb was not her treating physician based on there being no indication in the
record that he ever treated her. She contends that Dr. McNabb qualified as her
treating physician because he “evaluated” her. But in her reply brief she appears to
acknowledge that Dr. McNabb does not meet the regulatory definition of a treating
source, which requires “an ongoing treatment relationship”:
Treating source means your own physician, psychologist, or other
acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you. Generally, we will consider that you
have an ongoing treatment relationship with an acceptable medical
source when the medical evidence establishes that you see, or have seen,
the source with a frequency consistent with accepted medical practice
for the type of treatment and/or evaluation required for your medical
condition(s).
20 C.F.R. §§ 404.1502, 416.902.
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McDonald does not claim that she ever saw Dr. McNabb. The earliest record
mentioning him is a letter to the Social Security Administration, in response to a
request for a diagnosis of McDonald by an acceptable medical source, for purposes of
her Social Security applications. In that letter, Dr. McNabb recited Montoya’s
diagnoses of McDonald. See Admin. R. at 207. Two other treatment notes reflect
that Montoya had two clinical consultations with Dr. McNabb over the course of two
years, in March 2007 and May 2007, to review McDonald’s psychological
evaluation, psychological and medical history, diagnosis, symptoms, treatment,
prescriptions, and current progress. Each note reflects that Dr. McNabb supported
the current plan of care, diagnosis, and prescriptions. And as McDonald contends,
one note could be interpreted as reflecting Dr. McNabb’s direction to increase her
dosage of a particular medication. See id. at 243-44, 254. McDonald asserts that
Dr. McNabb was otherwise “supervising” her ongoing care by her clinicians, but
there is no evidence of that.
On this record, the ALJ did not err in finding Dr. McNabb was not
McDonald’s treating source. In Doyal, 331 F.3d at 764, we held that a doctor who
saw the claimant only twice in seven years and who completed a report solely to
support the claimant’s disability claim was not a treating source. Dr. McNabb never
examined McDonald; his letter to the SSA served no purpose other than to support
her disability claims; and his two consultations with Montoya were insufficient to
give him “a deeper insight into [McDonald’s] medical condition” than “a person who
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has examined a claimant but once, or who has only seen the claimant’s medical
records.” id. at 762 (quotation omitted). Thus, the record fails to establish that
Dr. McNabb had a relationship with McDonald “of both duration and frequency,” id.,such that he qualifies as her treating source. Cf. Smith v. Comm’r of Soc. Sec.,
482 F.3d 873, 876 (6th Cir. 2007) (holding claimant’s contacts with two doctors “fail
to evince the type of ongoing treatment relationship contemplated by the plain text of
the regulation,” where one doctor examined claimant once and prepared an
evaluation, and a second doctor examined claimant once, completed a medical report,
prescribed and refilled medication, then denied an additional request for
medication).5
2. ALJ’s Weighing of McNabb-Montoya Opinion
McDonald asserts that if Dr. McNabb was not her treating source, his opinion
should nonetheless have been weighed as that of a nonexamining physician. She
claims that the ALJ therefore erred by ending his inquiry with a finding that
Dr. McNabb never treated McDonald. Yet, as McDonald recognizes, the ALJ did not
end his inquiry with that finding. The ALJ further concluded that, in comparing the
5
McDonald contends that the definition of a treating source is too inflexible in
this age of managed care, when much of the hands-on treatment is performed by
non-physicians. For this proposition she cites Social Security Ruling (SSR) 06-03p,
2006 WL 2329939 (Aug. 9, 2006), which describes the increasing assumption by
nurse practitioners, physician assistants, and licensed clinical social workers of the
treatment functions previously handled by physicians and psychologists. Id. at *3.
But SSR 06-03p reiterates the continuing need for the distinction between
“acceptable medical sources” and other medical sources, as well as the definition of a
“treating source.” Id. at *2.
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actual observations of McDonald’s clinicians, including Montoya herself, with the
conclusions in the McNabb-Montoya opinion, he could “find no support for the
severity of their conclusions and afford[ed] them no weight.” Admin. R. at 22.
Supportability—the extent to which a medical source presents relevant
evidence to support an opinion—and consistency with the record are two of the
factors relevant to the weight that an ALJ gives to a medical opinion from any
source. See 20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4). Moreover, under
the regulations, “because nonexamining sources have no examining or treating
relationship with you, the weight [the agency] will give their opinions will depend on
the degree to which they provide supporting explanations for their opinions.” Id.§§ 404.1527(c)(3), 416.927(c)(3). And “[g]enerally, the more consistent an opinion
is with the record as a whole, the more weight [the agency] will give to that opinion.”
Id. §§ 404.1527(c)(4), 416.927(c)(4). Opinions from non-physicians, like Montoya,
should likewise be weighed by the ALJ according to the same factors applicable to
opinions from acceptable medical sources. See Frantz v. Astrue, 509 F.3d 1299,
1302 (10th Cir. 2007).
McDonald argues that the ALJ improperly picked and chose the portions of her
treatment records that were consistent with his rejection of the McNabb-Montoya
opinion and ignored other evidence supporting their conclusions. She points to 5 out
of a total of more than 150 pages of records that she claims the ALJ ignored. All of
these records relate to McDonald’s initial days of treatment at Spanish Peaks,
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including her intake assessment on October 3, 2006, and her first appointment with
Montoya two days later.
“The record must demonstrate that the ALJ considered all of the evidence,
but an ALJ is not required to discuss every piece of evidence.” Clifton v. Chater,
79 F.3d 1007, 1009-10 (10th Cir. 1996). Here the ALJ stated that he carefully
considered all of the evidence. See Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir.
2009) (noting well-established principle of taking ALJ at his word when he indicates
he considered all of the evidence). Moreover, the ALJ did not ignore the record of
McDonald’s October 3, 2006, intake assessment or the treatment notes from her visit
with Montoya two days later: he referenced the former at several different points in
the decision and the latter at least once. While the ALJ did not explicitly discuss
every aspect of these records, he did mention McDonald’s endorsement of panic
symptoms, her sleep difficulties, and her patchy performance on a mental status exam
on October 3, before observing that, according to Montoya, McDonald’s depression
and anxiety had improved only a month later. The ALJ also noted McDonald’s
reports elsewhere in the record regarding her need for reminders to take care of her
personal needs and grooming; her fatigue; her impulsive behaviors; her need to shop
at times of the day when she could avoid crowds; and the fact that her part-time job
in 2008 was short-lived. But the ALJ determined that the medical records as a
whole—including Montoya’s own treatment notes—did not support the conclusions
in the McNabb-Montoya opinion that McDonald had marked restrictions in nearly all
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areas of understanding, memory, concentration, persistence, social interaction, and
adaptation. See Doyal, 331 F.3d at 764 (rejecting medical opinion as inconsistent
with evidence as a whole, after concluding doctor was not claimant’s treating
physician). McDonald has not shown that the ALJ failed to consider all of the
evidence in the record. See Clifton, 79 F.3d at 1009.
McDonald next contends that the ALJ erred in relying on her moderate-range
GAF scores. McDonald initially challenges these assessments as being made by
“untrained persons.” Aplt. Opening Br. at 23. But the record indicates that Montoya,
a nurse practitioner, assigned McDonald the GAF score of 60 on October 5, 2006,6
and McDonald provides no information regarding the “untrained” status of the other
clinician who assessed her GAF as 52 two days earlier. McDonald also argues that a
moderate GAF score does not mean that a person has no marked mental impairments
in any areas of mental functioning. But the ALJ did not reject the McNabb-Montoya
opinion based solely on her GAF scores; he merely considered those scores as part of
the evidence relevant to weighing that opinion.
Finally, McDonald asserts that the ALJ failed to weigh the opinions of the
clinicians who treated her at Spanish Peaks according to the factors in 20 C.F.R.
6
The treatment notes indicating a GAF score of 60 were transcribed and
electronically signed by an employee identified as “support staff” at Spanish Peaks,
but they were approved by Montoya. Admin. R. at 193-94. Several of the
subsequent treatment notes from McDonald’s medication-management visits with
Montoya were similarly entered into the Spanish Peaks records system in this
manner.
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§§ 404.1527(c) and 416.927(c). “Medical opinions are statements from physicians
and psychologists or other acceptable medical sources that reflect judgments about
the nature and severity of your impairment(s), including your symptoms, diagnosis
and prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” Id. §§ 404.1527(a)(2), 416.927(a)(2). As we have noted, the
factors for weighing opinions from acceptable medical sources also apply to opinions
from medical sources who are not acceptable medical sources, which includes the
clinicians who treated McDonald at Spanish Peaks See Frantz, 509 F.3d at 1302.
McDonald argues the treatment notes containing her two GAF scores are
medical opinions that the ALJ failed to weigh.7 As noted, the first of these records
relates to McDonald’s intake assessment at Spanish Peaks. These notes reflect the
symptoms she reported, her coping strategies, her current medications, lethality and
substance-abuse assessments, a list of McDonald’s strengths, the results of a mental
status exam, diagnostic impressions and diagnoses (including the GAF score of 52),
and recommendations as to services McDonald needed. See Admin R. at 177-85.
The other record relates to her first appointment with Montoya, and these notes
reflect McDonald’s request for new medication, her reports of her symptoms, her
psychiatric, medical, and substance-abuse history, her education and current living
7
Other than the records containing her GAF scores, McDonald does not point to
any particular treatment note or set of notes that she claims would qualify as a
medical or other opinion.
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situation, the results of a mental status exam, Montoya’s diagnoses (including the
GAF score of 60), and a treatment plan. See id. at 190-94.
The treatment notes cited by McDonald do not qualify as medical opinions.
These records reflect the clinicians’ observations of her symptoms, the nature of her
impairments, and the clinicians’ diagnoses, and the GAF scores addressed in general
terms the severity of her symptoms and functional difficulties. But these notes do not
indicate any prognoses, nor do they provide opinions as to what McDonald could still
do despite her impairments or the nature of her mental restrictions. See Cowan,
552 F.3d at 1189 (finding doctor’s statement providing no information about the
nature and severity of the claimant’s physical limitations or the activities he could
still perform was not a medical opinion). McDonald has not shown that the ALJ
erred in rejecting the McNabb-Montoya opinion as inconsistent with the other
evidence in the record.
B. ALJ’s Assessment of McDonald’s Credibility
The ALJ related McDonald’s hearing testimony, which he characterized as
describing extreme limitations. He then summarized the other evidence in the record,
observing in detail where her testimony conflicted with it. The ALJ also specifically
found there was no objective support for McDonald’s extreme contentions based on
the observations of her treating clinicians. He concluded that McDonald’s
“statements concerning the intensity, persistence and limiting effects of [her]
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symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment.” Admin. R. at 21.
Citing McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002), McDonald
argues that the ALJ’s assessment of her credibility was nothing more than a bare
conclusion. She suggests that the ALJ first created an RFC, then simply rejected her
testimony to the extent it indicated more severe restrictions. In McGoffin, the ALJ
found that the claimant’s testimony was not credible to the extent it conflicted with
his conclusion that her mental illness alone was not disabling. Id. There is no
indication in McGoffin that the ALJ’s decision said anything more with respect to a
credibility assessment. We held that the ALJ failed to “explain and support with
substantial evidence which [parts] of [the claimant’s] testimony he did not believe
and why.” Id. McDonald argues that the ALJ here reached a similar boilerplate
conclusion that he failed to link to the evidence. We disagree. The ALJ related
McDonald’s testimony, then carefully reviewed the other evidence, noting specific
discrepancies, before concluding that her testimony was not fully credible. Nor is it
impossible, as McDonald contends, to know what portions of her testimony were or
were not credible. It is clear that the ALJ found incredible McDonald’s claims of
having more than the moderate limitations provided in her RFC.
McDonald also contends that the ALJ applied the wrong legal standard by
finding her testimony only partially credible based on a lack of objective evidence
supporting her claims. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004)
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(holding lack of confirming objective medical tests was not alone sufficient to reject
statements about intensity and persistence of symptoms). But here the ALJ
considered other relevant evidence along with the objective medical evidence,
including McDonald’s own reports of her symptoms to her treating sources.
McDonald has not shown error in the ALJ’s assessment of her credibility.
C. Whether the ALJ’s RFC Determination is Supported by Substantial
Evidence
McDonald contends that the ALJ’s RFC finding is not supported by any
evidence because he rejected all of the medical opinions on the severity of her
impairments and her functional limitations. She maintains that a mental RFC is
essentially a medical determination outside of the ALJ’s expertise, asserting that
“[t]he ALJ is not able to determine from his own review of statements in the medical
record, or the claimant’s daily activities, whether a specific mental impairment even
exists, much less whether it is moderate or marked in severity.” Aplt. Opening Br. at
30. In particular, McDonald argues that an ALJ is not capable of determining,
without a corresponding medical opinion, a person’s mental capacity to perform in a
fulltime work setting. By doing so, McDonald claims, the ALJ improperly
substituted his own lay opinion for that of the medical experts.
McDonald’s “contention rests on an unduly narrow view of the role of the
administrative factfinder in social security disability proceedings.” Chapo v. Astrue,
___ F.3d ___, No. 11-1455, 2012 WL 2384354, at *2 (10th Cir. June 26, 2012). In
Chapo, we rejected the argument that the limitations in an ALJ’s mental RFC
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assessment must always be supported by a specific medical opinion, noting that
“there is no requirement in the regulations for a direct correspondence between an
RFC finding and a specific medical opinion on the functional capacity in question.”
Id. To the contrary, “the ALJ, not a physician, is charged with determining a
claimant’s RFC from the medical record.” Id. (quotation and alteration omitted); see
also 20 C.F.R. §§ 404.1546(c), 416.946(c) (providing ALJ is responsible for
assessing RFC). And the ALJ’s RFC assessment is an administrative, rather than a
medical, determination. See Social Security Ruling (SSR) 96-5p, 1996 WL 374183,
at *5 (July 1996) (“The term ‘residual functional capacity assessment’ describes an
adjudicator’s finding about the ability of an individual to perform work-related
activities. The assessment is based upon consideration of all relevant evidence in the
case record . . . . [A] medical source statement must not be equated with the
administrative finding known as the RFC assessment.”).
Thus, we reject McDonald’s contention that an ALJ is not competent, in the
absence of a medical opinion, to assess the severity of mental symptoms and
determine the extent of the limitations that result based on the evidence in the
claimant’s medical records, her daily activities, and her positive response to
medications. That is precisely the type of evidence an ALJ should consider in
determining a claimant’s RFC. An ALJ makes that assessment based on all the
evidence in the case record, both medical and non-medical. See 20 C.F.R.
§§ 404.1545(a)(1), (3), 416.945(a)(1), (3); see also SSR 96-8p, 1996 WL 347184, at
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*5 (1996) (listing types of relevant evidence ALJ should consider); 20 C.F.R.
§§ 404.1520a(b)-(d), (e)(4), 416.920a(b)-(d), (e)(4) (describing administrative
process for evaluating degree of functional limitations and severity of mental
impairments and providing that the ALJ’s written decision must include these
determinations).
The Commissioner contends that, on the record in this case, substantial
evidence supports the ALJ’s decision that McDonald has moderate—rather than
marked—functional limitations, even in the absence of a corresponding medical
opinion. He notes that the ALJ cited McDonald’s consistent interest in and efforts to
obtain work or finish her college degree; her clinicians’ endorsement of her
work/educational efforts; the fact that her reasons for not working or attending school
were largely unrelated to her mental status; her engagement in a wide range of daily
activities, which was at odds with her claim that she was essentially bedridden most
of the time and isolated from other people; the relatively unremarkable medical
findings; and the evidence that her treatment was effective in controlling her
symptoms.
To the extent McDonald responds to the Commissioner’s contention, her
argument is not well-developed. She describes the ALJ’s RFC determination as
based on purely speculative inferences, and she argues that it cannot be explained by
her “ability to attend classes and pursue work activity, [her] good response to
medication, or any number of positive mental signs.” Id. at 5-6. She baldly asserts
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that “[t]hese specific mental limitations and their causes are simply not supported by
any evidence in the record.” Id. at 6. But McDonald fails to discuss all of the
specific evidence that the ALJ relied upon.8 And her assertions all ultimately circle
back to her overarching contention that an ALJ is categorically unqualified to reach a
mental RFC determination without the benefit of a medical opinion.9
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Cowan, 552 F.3d at 1185 (10th Cir.
2008) (quotation omitted). “[W]e will not reweigh the evidence or substitute our
judgment for the Commissioner’s.” Id. (quotation omitted). And “[t]he possibility of
drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial evidence.” Id.(quotation omitted). We agree with the Commissioner that the ALJ’s RFC finding
including only moderate limitations was consistent with the longitudinal picture
portrayed by the record as a whole and was supported by substantial evidence.
8
McDonald argues (again) that the ALJ improperly picked and chose only the
findings in her treatment records that sounded most normal, while ignoring other
findings that could support disability. We have already rejected that contention. See
supra pp. 14-16.
9
McDonald also asserts that the ALJ erred in finding that she has no limitations
in the other areas of mental functioning noted in the McNabb-Montoya opinion. But
she wholly fails to support that contention. She does not describe any of these other
functional areas or demonstrate why the ALJ’s determination was not supported by
substantial evidence.
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III. Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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