Martinez v. Commissioner, SSA

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 28, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DIANE MARTINEZ,
Plaintiff - Appellant,
v. No. 18-1218
(D.C. No. 1:16-CV-2938-CMA)
COMMISSIONER, SSA, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
_________________________________
Diane Martinez appeals from the district court’s order denying her application
for Social Security disability benefits and supplemental security income benefits.
Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
I. BACKGROUND
Ms. Martinez applied for disability insurance benefits and supplemental
security income asserting that she was disabled due to a wrist injury, elbow and
shoulder problems, back pain, boils, abdominal pain, insomnia, anxiety, and
*
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 This order and judgment is not binding precedent,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.
depression. After her claims were denied initially and on reconsideration, an
administrative law judge (ALJ) considered her claims and issued a decision finding
Ms. Martinez was not disabled at the fifth and final step of the sequential evaluation
used to assess social security disability claims. See 20 C.F.R. § 404.1520(a)(4)
(describing five-step process).1
The ALJ determined that Ms. Martinez had a number of medically
determinable severe impairments, including two severe physical impairments—
lumbar degenerative disc disease and history of right wrist fracture—and two severe
mental impairments—affective disorder and anxiety disorder. The ALJ further found
that Ms. Martinez’s severe physical and mental impairments did not, individually or
in combination, meet or equal the conclusively disabling impairments in the Listing
of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix I. As required by
the sequential process, the ALJ then defined Ms. Martinez’s residual functional
capacity (RFC), finding that she could “perform light work . . . except that [she] can
only occasionally bend, squat and kneel, cannot climb ladders/scaffolds, and can
frequently handle/finger” and “requires unskilled work that involves no complex
tasks . . . and cannot deal with the general public.” Aplt. App., Vol. I at 22.
Based on the testimony of a vocational expert, the ALJ found that
Ms. Martinez could not perform her past relevant work, but still retained the ability
1
In this order and judgment, we cite to relevant regulations in 20 C.F.R. Part
404, which apply to claims for disability insurance benefits. We do not, however,
include citations to the parallel provisions published in 20 C.F.R. Part 416, which
apply to claims for supplemental security income.
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to perform other work that existed in substantial numbers in the national economy
and was therefore not disabled. The Appeals Council denied review of the ALJ’s
decision, and the district court affirmed. This appeal followed.
II. STANDARD OF REVIEW
“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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(internal quotation marks omitted).
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.
Id. (citations and internal quotation marks omitted).
Moreover, “[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. (internal quotation marks omitted). “We may not
displace the agency’s choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been before it
de novo.” Id. (brackets and internal quotation marks omitted).
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III. ANALYSIS
A. Opinion Evidence
Ms. Martinez argues that the ALJ’s determination that she was not disabled is
erroneous because he improperly weighed several medical opinions. We disagree.
The ALJ was required to consider all the medical source opinions regarding
Ms. Martinez’s claimed impairments—physical and mental. See 20 C.F.R.
§ 404.1527(c) (“Regardless of its source, [the ALJ] will evaluate every medical
opinion [he] receive[s].”).
Under § 404.1527(c)(2),
[i]f [the ALJ] find[s] that a treating source’s medical opinion on
the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record, [the ALJ] will give it controlling weight.
See also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Conversely,
“if the [treating physician’s medical] opinion is deficient [because it is not
well-supported or is inconsistent with other substantial evidence in the record], then
it is not entitled to controlling weight.” Id.
“Unless [the ALJ] give[s] a treating source’s medical opinion controlling
weight . . . , [the ALJ will] consider [six regulatory] factors in deciding the
weight . . . [to] give to any medical opinion,” § 404.1527(c) (emphasis added),
including a treating source’s opinion. In other words, “resolving the controlling
weight issue does not end our review.” Watkins, 350 F.3d at 1300 (internal quotation
marks omitted). Instead, if the ALJ determines the treating source’s opinion is not
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entitled to controlling weight, the ALJ must consider the regulatory factors in
§ 404.1527(c)(2)-(6) to determine what weight to assign to the opinion.
Those factors are: (1) the length of the treatment relationship and the
frequency of the examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of examination
or testing performed; (3) the degree to which the physician’s opinion is
supported by relevant evidence; (4) consistency between the opinion and
the record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought to the
ALJ’s attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1300-01 (internal quotation marks omitted).
As an overarching principle, the ALJ should “[g]enerally . . . give more weight
to the medical opinion of a source who has examined [the claimant] than to the
medical opinion of a medical source who has not examined [the claimant].”
§ 404.1527(c)(1). Nonetheless, “[a]n opinion found to be an examining rather than
treating medical-source opinion may be dismissed or discounted,” so long as the ALJ
bases the decision “on an evaluation of all the factors set out in [§ 404.1527(c)] and
[he] . . . provide[s] specific, legitimate reasons for rejecting it.” Chapo v. Astrue,
682 F.3d 1285, 1291 (10th Cir. 2012) (internal quotation marks omitted).
B. Physical Impairments
1. Dr. Gregg
Dr. Tammy Gregg was Ms. Martinez’s treating physician. Between August
2011 and April 2015, Dr. Gregg periodically filled out check-box forms for
Ms. Martinez’s participation in a local work program. On these forms, Dr. Gregg
consistently indicated, among other things, that Ms. Martinez could occasionally lift
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ten pounds, but could never lift twenty-five pounds. In January 2015, Dr. Gregg
completed a form at the request of Ms. Martinez’s attorney indicating that
Ms. Martinez could lift and carry five pounds occasionally, sit for four hours per day,
and stand for no longer than two hours per day, among other restrictions.
The ALJ assigned “very little weight” to Dr. Gregg’s opinions because they
were inconsistent with the record and unsupported by objective findings. But the
ALJ’s analysis did not stop there. Although the ALJ did not specifically cite
§ 404.1527(c), he clearly had the regulatory factors in mind when he weighed
Dr. Gregg’s statements.
Section 404.1527(c)(3) provides: “The more a medical source presents
relevant evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight [the ALJ] will give that medical opinion.”
Further, “[t]he better an explanation a source provides for a medical opinion, the
more weight we will give that medical opinion.” Id.
In this regard, the ALJ explained that there was no objective evidence to
support Dr. Gregg’s statements. For example, the ALJ noted that Dr. Gregg’s
check-box forms were not supported by objective findings and lacked detail. Further,
the ALJ found that Dr. Gregg based her “extreme assessed limitations . . . on a
thoracic sprain but she failed to cite any objective findings.” Aplt. App., Vol. 1
at 24. Moreover, the ALJ noted that Ms. Martinez had only “mild restriction” in her
activities of daily living. Id. at 22.
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Section 404.1527(c)(4) provides: “Generally, the more consistent a medical
opinion is with the record as a whole, the more weight we will give to that medical
opinion.” Relevant here, the ALJ noted that Dr. Gregg’s severe restrictions did not
jibe with the medical evidence because, among other things, “imaging of the thoracic
spine and cervical spine have been normal or unremarkable,” and Ms. Martinez’s
“back symptoms have been stable, with no radiation of pain.” Aplt. App., Vol. 1
at 24. We also disagree with Ms. Martinez that the ALJ did not adequately explain
how the record—as a whole—was inconsistent with Dr. Gregg’s proposed
restrictions. To the contrary, the ALJ detailed the medical notes and testing
concerning Ms. Martinez’s wrist and back problems and specifically found that
Dr. Gregg’s proposed restrictions “are not consistent with the record as [a] whole
and are not supported by objective evidence.” Id. (emphasis added). Instead, the
ALJ found that “[l]ongitudinally, the medical record supports a limitation to light
work with occasional bending, squatting and kneeling, and frequent
handling/fingering.” Id.
We conclude that the ALJ’s reasons for affording Dr. Gregg’s opinions “very
little weight” are supported by substantial evidence.
2. Dr. Susman
A State agency consulting physician, Dr. Morris Susman, completed a
Residual Functional Capacity Assessment, which was based on his review of the
medical record. Dr. Susman concluded that Ms. Martinez could stand or walk for six
hours and sit for six hours in a normal eight-hour workday, could perform postural
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activities at least occasionally, and did not have limitations of her fine manipulation
skills. The ALJ gave Dr. Susman’s opinion “some weight,” because it “is generally
consistent with [the ALJ’s assessment of Ms. Martinez’s] residual functional
capacity.” Id. at 23.
First, Ms. Martinez argues that the ALJ formulated Ms. Martinez’s RFC
and only then did he search the record for evidence to support it. See 20 C.F.R.
§ 404.1545(a)(3) (“We will assess your residual functional capacity based on all of
the relevant medical and other evidence.”). We disagree. The ALJ discussed several
pieces of evidence, including Dr. Susman’s opinion, and formulated Ms. Martinez’s
RFC. While the wording is unartful, we are convinced there was no error.
Second, we agree with Ms. Martinez that the ALJ failed to specifically state
the reasons for assigning more weight to Dr. Susman’s opinion than to Dr. Gregg’s
opinions, or otherwise explain the weight he gave Dr. Susman’s opinion.
Nonetheless, we agree with the Commissioner that this omission does not require us
to reverse.
State agency medical consultants are highly qualified experts in Social
Security evaluation. See § 404.1513a(b)(1). Moreover, “an ALJ’s failure to weigh a
medical opinion involves harmless error if there is no inconsistency between the
opinion and the ALJ’s assessment of residual functional capacity.” Mays v. Colvin,
739 F.3d 569, 578-79 (10th Cir. 2014) (emphasis added). See also Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (same). Here, the ALJ’s RFC finding
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is consistent with Dr. Susman’s opinion, with the exception of a limitation favorable
to Ms. Martinez that Dr. Susman did not propose in his opinion.
C. Mental Impairments
1. Dr. Wesley
Dr. Immaculate Wesley, a consultative psychologist, examined Ms. Martinez
on one occasion. In her report, she noted her observations and results from several
tests, and concluded that Ms. Martinez’s “[s]ocial interaction is extremely impaired,”
and her “abilities as related to basic work activities appear impaired and most likely
precluded due to the severity of her depression.” Aplt. App., Vol. 2 at 480.
The ALJ gave “no weight” to Dr. Wesley’s opinion, id. Vol. 1 at 24, however,
because: (1) there was no evidence of psychiatric treatment or medications; (2) the
body of Dr. Wesley’s report did not support the level of impairment she suggested;
(3) Dr. Irwin Matus, a State agency consultant, discounted Dr. Wesley’s report
because it was based on Ms. Martinez’s self-reports and inconsistent with how she
presented herself at the examination; and (4) Dr. Matus found only limited
impairments.
Regarding the inconsistencies between Dr. Wesley’s report and how
Ms. Martinez presented herself, the ALJ noted that even though Ms. Martinez “cried
throughout the examination[,] . . . her speech was of normal rate, rhythm and volume;
thought processes were logical and coherent; thought content was free of delusions;
and there were no disorders of perception exhibited.” Id. at 25. “Additionally,
[Ms. Martinez] was well oriented to all spheres, could name both the current and past
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Presidents correctly, and was able to spell the word ‘world’ backward correctly.” Id.
The ALJ also noted that Dr. Wesley assessed Ms. Martinez with “[a] GAF score of
38,”2 id. at 24, which Dr. Wesley said demonstrated “major impairment in all areas of
functioning, including work, family relations, judgment, thinking and mood,” id.
Vol. 2 at 479. But the ALJ found that Ms. Martinez “report[ed] no problems getting
along with family, friends, neighbors or others, and she gets along ‘good’ with
authority figures.” Id. Vol. 1 at 22.
As the examining psychologist, Dr. Wesley’s opinion is presumptively entitled
to more weight than a non-examining medical source. See § 404.1527(c)(1). And
although an examining opinion may be dismissed or discounted, that determination
must be based on an evaluation of the factors in § 404.1527(c)(2)-(6), and the ALJ
“must provide specific, legitimate reasons for rejecting it.” Chapo, 682 F.3d at 1291
(internal quotation marks omitted). The ALJ did not specifically mention the factors
in § 404.1527(c)(2)-(6), but he clearly had them in mind when he found that
Dr. Wesley’s extreme opinion was not well-supported, inconsistent with the record
as a whole, lacked explanation, and contradicted by how Ms. Martinez presented
herself.
The parties agree that the ALJ could not ignore Dr. Wesley’s opinion simply
because it was based on Ms. Martinez’s self-reports. See Robinson v. Barnhart,
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 judgement 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).
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366 F.3d 1078, 1083 (10th Cir. 2004) (per curiam) (“[A] psychological opinion may
rest either on observed signs and symptoms or on psychological tests.”). But as
explained above, the ALJ gave several other legitimate reasons to discount
Dr. Wesley’s report.
We conclude that the ALJ’s reasons for affording Dr. Wesley’s opinion
“no weight” are supported by substantial evidence.
2. Dr. Matus
Dr. Matus reviewed Dr. Wesley’s report and the medical record and opined
that Ms. Martinez’s “[p]sychiatric condition does not preclude all work tasks.
[Claimant] can perform lower end, moderately complex work tasks.” Aplt. App.,
Vol. 1 at 79. Dr. Matus also disagreed with Dr. Wesley that Ms. Martinez was
extremely impaired as to social interaction. The ALJ gave “some weight” to
Dr. Matus’s opinion. Id. at 24. Although Dr. Matus noted no limitations in social
interaction, the ALJ limited Ms. Martinez “to unskilled work that involves no dealing
with the general public.” Id. at 25.
Ms. Martinez argues, and we agree, that the ALJ erred by failing to address
any of the factors under § 404.1527(c)(2)-(6) in deciding what weight to give
Dr. Matus’s opinion. Nonetheless, we agree with the Commissioner that this error
was harmless. As a State agency medical consultant, Dr. Matus is a highly qualified
expert in Social Security evaluation. See § 404.1513a(b)(1). Moreover, the
absence of a specific discussion is harmless if there is no inconsistency between the
opinion and the ALJ’s RFC assessment. See Mays, 739 F.3d at 578-79. See also
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Keyes-Zachary, 695 F.3d at 1163. Here, the ALJ’s RFC finding is generally
consistent with Dr. Matus’s opinion.
IV. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Monroe G. McKay
Circuit Judge
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