Arterberry v. Berryhill

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 2, 2018
• Docket: 17-7068
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 2, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court GINA M. ARTERBERRY,

Plaintiff - Appellant,

v. No. 17-7068 (D.C. No. 6:16-CV-00233-KEW) NANCY A. BERRYHILL, Acting (E.D. Okla.) Commissioner of Social Security Administration,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, HARTZ, and MORITZ, Circuit Judges. _________________________________

Gina Arterberry appeals a district court order affirming the Social Security

Administration (“SSA”) Commissioner’s denial of her applications for supplemental

security income (“SSI”) and disability insurance benefits (“DIB”). 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

Arterberry suffers from fibromyalgia, carpal tunnel syndrome, left shoulder injury,

obstructive sleep apnea, migraine headaches, lumbar disc disease, cervical disc disease,

angina, left knee strain/sprain, post-traumatic stress disorder, dyslexia, and major

depression. She has an eighth-grade education and has worked in a variety of jobs,

including as a truck driver and nursing assistant. In October 2012, she sought SSI and

DIB, stating she had become disabled as of June 2012, at the age of 35. The

Commissioner denied her applications initially and on reconsideration.

An administrative law judge (“ALJ”) conducted a hearing at which Arterberry and

a vocational expert (“VE”) testified. Afterward, the ALJ concluded at step five of the

familiar five-step sequential disability analysis, see 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4), that Arterberry was not disabled because she possessed the residual

functional capacity (“RFC”) to perform other jobs. In reaching that conclusion, the ALJ

assigned her an RFC for sedentary work that involved, among other things, simple work-

related decisions and tasks; lifting/carrying and pushing/pulling no more than ten pounds

occasionally and five pounds frequently; sitting for up to six hours, standing for up to two

hours, and walking for up to two hours; the option to sit or stand with a positional change

at least every thirty minutes; and frequent interactions with supervisors and coworkers.

Despite Arterberry’s testimony describing severe pain throughout her body and the

inability to “get the [bed] covers off of [her] . . . first thing in the morning,” the ALJ

declined to write an even more restrictive RFC, finding her testimony not entirely

credible based on the medical evidence in the record. The ALJ also discounted the

2 opinions of Arterberry’s treating physicians, Dr. Sangeeta Khetpal and Dr. Aaron Brown,

to the extent they suggested more severe functional limitations than provided in her RFC.

The Social Security Administration’s Appeals Council upheld the ALJ’s decision,

prompting Arterberry to petition the federal district court for relief. The district court

affirmed. Arterberry now appeals, arguing that the ALJ erred in evaluating the treating

physicians’ opinions and her credibility.

II

We review de novo the district court’s ruling in a social security case and

“independently determine whether the ALJ’s decision is free from legal error and

supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.

2009) (quotation omitted). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Wilson v. Astrue,

602 F.3d 1136, 1140 (10th Cir. 2010) (quotation omitted).

A

Arterberry argues that the ALJ erred by giving Dr. Brown’s opinions little weight.

Dr. Brown opined that Arterberry had no ability to accept work-related instructions or

respond appropriately to criticism and only limited abilities in the areas of

attendance/punctuality, attention/concentration, decisionmaking, performance, coworker

interactions, coping with stress, and responding to work changes. According to the VE,

the limitations identified by Dr. Brown would preclude all work.

The ALJ offered four reasons for discounting Dr. Brown’s opinions: (1) he had

seen Arterberry only two or three times before rendering those opinions; (2) his opinions

3 were inconsistent with the record medical evidence, such as his own examinations, which

“show[ed] essentially normal mental status testing”; (3) Arterberry had not previously

sought any specialized mental health treatment; and (4) Arterberry’s “treatment has

consisted of nothing more than basic medication management with no hospitalizations or

even counseling services.” We conclude that the ALJ did not err in his treatment of Dr.

Brown’s opinions.

An ALJ must either give controlling weight to a treating physician’s opinion or

“articulate[] specific, legitimate reasons for his decision, finding, for example, the

opinion unsupported by medically acceptable clinical and laboratory diagnostic

techniques or inconsistent with other substantial evidence in the record.” Raymond v.

Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009) (citation and quotation omitted). With one

exception, the ALJ’s opinion did these very things.

In deciding how much weight to give a treating source’s opinion, the ALJ must

consider how “long[] [the] treating source has treated [the claimant]” and whether it was

“long enough to have obtained a longitudinal picture of [the claimant’s] impairment.” 20

C.F.R. § 404.1527(c)(2)(i). “Very infrequent” medical visits support discounting a

treating physician’s opinion. See Branum v. Barnhart, 385 F.3d 1268, 1275-76 (10th Cir.

2004) (quotation omitted). Substantial evidence supports the ALJ’s observation that Dr.

Brown’s defined limitations were not consistent with the medical evidence, including his

own mental examinations. And the ALJ accurately noted that Dr. Brown’s treatment

plan was limited to medication management. The nature and extent of the treatment

4 provided are legitimate grounds for assessing the weight of a treating physician’s

opinions. See 20 C.F.R. § 404.1527(c)(2)(ii).

The ALJ also stated that Arterberry had not previously sought specialized mental

health treatment, and Dr. Brown reported “no formally diagnosed mental illness.” But

there is no indication that the ALJ considered alternative explanations for Arterberry’s

lack of a specialized prior treatment history. Consequently, Arterberry’s failure to seek

specialized mental-health treatment is not particularly enlightening.

In support of Dr. Brown’s opinions, Arterberry points to a mental examination

conducted in 2010 by Dr. Shalom Palacio-Hollmon as part of a prior unsuccessful

application for disability benefits. Dr. Palacio-Hollmon opined that Arterberry would

“likely . . . require structure[,] supervision and support to meet the demands of the work

environment” due to “anxiety, depressive symptoms, and impaired concentration and

short-term memory.” Arterberry complains that Dr. Palacio-Hollmon’s opinion was

mentioned by neither the ALJ nor the state-agency psychiatrist and psychologist who

reviewed her medical records and found no medically determinable mental impairments.

Arterberry’s reliance on Dr. Palacio-Hollmon’s opinion is misplaced. She cites no

authority, and we have found none, requiring an ALJ and agency reviewers to discuss the

opinions of a consultative examiner from a prior disability proceeding—one that may

have involved different medical issues and evidence, and that resulted in a denial of

benefits. Indeed, an ALJ is not even required to discuss every piece of evidence in the

ongoing disability proceeding, so long as the record shows she considered all of the

evidence. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Further, it is

5 unclear whether Dr. Palacio-Hollmon’s opinions actually support Dr. Brown’s defined

limitations or undermine the ALJ’s RFC findings in any significant way. Even if

Dr. Palacio-Hollmon’s opinions “may . . . have supported contrary findings, we may not

displace the agency’s choice between two fairly conflicting views.” Oldham v. Astrue,

509 F.3d 1254, 1257-58 (10th Cir. 2007) (quotation and brackets omitted).

Arterberry also challenges the ALJ’s consideration of Dr. Brown’s report of a

Global Assessment of Functioning (“GAF”) score of 50, which indicates “serious

symptoms or serious impairment in . . . occupational . . . functioning.” Langley v.

Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir. 2004) (brackets, ellipsis, and quotation

omitted). But the ALJ considered the GAF score along with the other medical evidence,

and thus we do not discern error. See Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

241 (6th Cir. 2002) (“While a GAF score may be of considerable help to the ALJ in

formulating the RFC, it is not essential to the RFC’s accuracy.”).

B

Arterberry argues the ALJ erred by giving Dr. Khetpal’s opinions “limited

weight.” This issue centers on a clinical-assessment form that Dr. Khetpal completed in

June 2014. On the form, Dr. Khetpal assigned Arterberry the most severe limitation

possible for each listed category. And in some categories, he provided limitations

exceeding the most severe designation on the form. For instance, in regard to

Arterberry’s ability to stand/walk and sit during a regular work day, Dr. Khetpal wrote

“none.” In regard to Arterberry’s ability to work if given options to sit/stand and rest, Dr.

Khetpal checked the “none” category and wrote in the margin, “[patient] cannot perform 6 any activities.” Further, as to whether Arterberry’s impairments would produce “good

days and bad days,” Dr. Khetpal wrote in the margin, “all bad days mostly.”

Dr. Khetpal based his assessments on diagnoses of fibromyalgia, irritable bowel

syndrome, and depression—all of which were severe. He indicated that Arterberry

exhibited objective signs of pain from joint deformity, muscle spasm, spinal deformity,

and limitation of motion. Finally, when asked on the form to estimate Arterberry’s

functional limitations in a competitive work environment, Dr. Khetpal wrote in the

margin, “cannot be place[d] in work.”

The ALJ discounted Dr. Khetpal’s opinions, finding that he “overestimate[d] . . .

the severity of [Arterberry’s] functional restrictions.”1 Dr. Khetpal’s opinions

“contrast[ed] sharply with his own treatment records and other evidence in [the] record.”

In a June 2014 treatment record, Dr. Khetpal reported that Arterberry had intact motor

and sensory function, reflexes, gait and coordination. And he recommended that she

“consider [a] job or environment change” and “try . . . yoga, regular exercise, [and]

stretching exercises . . . to see if she derives any benefit.” The ALJ also cited

1 The district court described the ALJ’s observation as “an understatement,” adding that “[a]n individual with the level of limitations found by Dr. Khetpal could find it difficult to exist.” Arterberry takes issue with these characterizations, complaining that both the ALJ and the district court “are impermissibly crossing into the medical field.” Our review does not encompass the district court’s determinations; rather, our review concerns the ALJ’s findings and conclusions. Further, by determining what weight to afford Dr. Khetpal’s opinions, the ALJ was not “overstepp[ing] his bounds into the province of medicine,” Miller v. Chater, 99 F.3d 972, 977 (10th Cir. 1996). Rather, the ALJ was complying with his obligation to “determin[e] a claimant’s RFC from the medical record,” Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004), which includes “consider[ing] and address[ing] medical source opinions,” SSR 96-8p, 1996 WL 374184, at *7. 7 inconsistencies between Dr. Khetpal’s opinions and medical record evidence showing

“full range of motion, full strength, and no neurological deficits with benign diagnostic

imaging and testing.” We conclude that substantial evidence in the record supports the

ALJ’s decision to give Dr. Khetpal’s opinions limited weight.2

C

Arterberry also argues that the ALJ failed to properly assess her credibility.

“[C]redibility determinations are peculiarly the province of the finder of fact, and should

not be upset if supported by substantial evidence.” White v. Barnhart, 287 F.3d 903, 909

(10th Cir. 2001) (quotation omitted).3

The ALJ thoroughly reviewed the medical evidence and fully substantiated his

conclusion that Arterberry’s subjective reports of her symptoms and limitations were

inconsistent with the record. He specifically identified essentially benign diagnostic

imaging and testing along with rather unremarkable neurological findings. He noted that

during an appointment for management of her fibromyalgia just four months before her

disability hearing, Arterberry reported that with her new medication regimen, she was

2 We acknowledge, as does the Commissioner, that record evidence supports Dr. Khetpal’s observation that Arterberry has pain with range of motion in her neck, back and knees. But the extreme functional limitations Dr. Khetpal offered were properly discounted by the ALJ. To the extent Arterberry complains that the ALJ erred by imposing a more restrictive RFC and different mental limitations than suggested by agency doctors, “her argument[s are] perfunctory and therefore waived.” Ross v. Univ. of Tulsa, 859 F.3d 1280, 1291 (10th Cir. 2017). 3 Recently, the SSA “eliminat[ed] the use of the term ‘credibility’ from [its] sub-regulatory policy” and “clarif[ied] that subjective symptom evaluation is not an examination of an individual’s character.” SSR 16-3P, 2017 WL 5180304, at *2. 8 “significantly better compared to where she was 5 years ago,” despite some “residual

pain.” And he cited a physical therapy record stating she was “Self Care Independent,”

and he noted that Dr. Khetpal repeatedly recommended that she try regular exercise.

Arterberry cites evidence that her mother and daughter support the severity of her

claimed limitations. The ALJ discounted those third-party opinions as highly subjective

and contrary to the evidence. We discern no error and reiterate that we are not at liberty

to overturn an ALJ’s decision that is supported by substantial evidence. See Oldham,

509 F.3d at 1257-58.

To the extent that Arterberry faults the ALJ for “ma[king] the credibility

determination after formulating [her] RFC,” she ignores the analytical reality that “the

ALJ’s credibility and RFC determinations are inherently intertwined.” Poppa v. Astrue,

569 F.3d 1167, 1171 (10th Cir. 2009). And particularly relevant here, the ALJ did not

discredit Arterberry simply because her testimony differed from the RFC assessment.

Rather, the ALJ found that the severity of her claimed limitations was not supported by

the record medical evidence, which provided the basis for the ALJ’s RFC determination.

See Romero v. Colvin, 563 F. App’x 618, 620 n.1 (10th Cir. 2014) (declining to reverse

simply “because the ALJ’s decision, apparently in accord with the standard decision

template, sets forth the RFC finding before discussing the factors that go into making that

finding, including the credibility determination”).

Arterberry also argues that “[i]t is incorrect for the ALJ to expect that the severity

of [her] complaints must be supported by the objective medical evidence.” Granted, an

ALJ may “not reject [a claimant’s] statements about the intensity and persistence of . . .

9 pain or other symptoms or about the effect . . . symptoms have on [the claimant’s] ability

to work solely because the available objective medical evidence does not substantiate [the

claimant’s] statements.” 20 C.F.R. § 404.1529(c)(2); see also id. § 416.929(c)(2). But

the ALJ did not rely on the absence of corroborating evidence; rather, he relied on the

objective medical evidence throughout the record, which was inconsistent with

Arterberry’s claimed severe limitations.

Finally, Arterberry raises a number of meritless miscellaneous arguments. Insofar

as she complains that the ALJ failed to account for medication side effects, she testified

that the only side effects were heartburn and indigestion, and she does not suggest any

limitations from those side effects. To the extent she faults the ALJ for overlooking that

“[a] clerk who worked for SSA noted [she] had difficulty sitting, standing and walking,

was stiff and sore in her movements, and needed to sit and stand during her interview,”

the clerk’s note appears to be from Arterberry’s prior disability proceeding, in which she

was found not disabled.

III

AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge