Pisciotta v. Astrue

Opinion

FILED United States Court of Appeals Tenth Circuit

September 13, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT

TIM O TH Y PISC IO TTA ,

Plaintiff-Appellant, v. No. 05-3339 M ICHAEL J. ASTRUE, Commissioner (D.C. No. 04-CV-2305-DJW ) of Social Security, (D . Kan.)

Defendant-Appellee.

Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.

HA RTZ, Circuit Judge.

The Commissioner has requested that we publish our prior order and

judgment in this case, dated February 26, 2007. Pisciotta v. Astrue, 218 F. App’x

765 (10th C ir. Feb. 26, 2007). Upon consideration, the motion is granted. An

opinion will issue superseding the order and judgment.

Our prior mandate, issued April 20, 2007, is withdrawn. The attached

opinion is substituted for the order and judgment entered February 26, 2007.

Entered for the Court,

Elisabeth A . Shumaker, Clerk FILED United States Court of Appeals Tenth Circuit

PUBLISH February 26, 2007 Elisabeth A. Shumaker UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

Plaintiff - Appellant, v. No. 05-3339 M ICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant - Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF KANSAS (D.C. NO . 04-CV-2305-CM -DJW )

James H . Green, Kansas City, M issouri, for Plaintiff - A ppellant.

Christina Young M ein, Special Assistant United States Attorney, (Eric F. M elgren, United States Attorney, with her on the brief), Kansas City, Kansas, Frank V. Smith, III, Chief Counsel, Social Security Administration, for Defendant - Appellee.

Plaintiff Timothy Pisciotta appeals from an order of the district court

affirming the Commissioner’s decision denying his application for Social Security

Disability and Childhood Disability Benefits. He filed for these benefits on October 12, 2001, when he was 19 years old, alleging disability due to attention

deficit hyperactivity disorder (ADHD), learning disability, oppositional-defiant

disorder (ODD), depression, mild hearing loss, and knee-joint problems. The

Social Security Administration denied his applications initially and on

reconsideration.

On January 8, 2004, M r. Pisciotta received a de novo hearing before an

administrative law judge (ALJ), who determined that he retained the residual

functional capacity (RFC) to perform medium work that “is simple, routine, and

non-repetitive.” R. Vol. II at 30. In addition, according to the ALJ: “The

environment must be non-complex with no fixed quotas. [Mr. Pisciotta] can have

no supervisory responsibilities and must be able to alternate sitting and standing.”

The ALJ also found that M r. Pisciotta had no past relevant work to which he

could return but that M r. Pisciotta “could be expected to make a vocational

adjustment to work that exists in significant numbers in both the local and the

national economies.” Id. at 31. As examples of such jobs the ALJ gave

“duplicating machine operator, laundry folder, and microfilm mounter.” Id. The

ALJ concluded that M r. Pisciotta was not disabled within the meaning of the

Social Security Act. The Appeals Council denied review, making the ALJ’s

decision the Commissioner’s final decision.

2 I. 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. See Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (internal

quotation marks omitted).

The Commissioner follows a five-step evaluation process to determine

whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988). The claimant bears the burden of establishing a prima facie case

of disability at steps one through four. See id. at 751 n.2. If the claimant meets

this burden, the burden shifts to the Commissioner at step five to show that the

claimant retains sufficient RFC to perform work in the national economy, given

his age, education, and work experience. See id. at 751.

The key issue in M r. Pisciotta’s applications for disability insurance (DI)

benefits and childhood disability (CD) benefits was whether he was “under a

disability” within the statutory definition. See 42 U.S.C. §§ 402(d)(1)(G),

423(a)(1)(E). The time period relevant to this evaluation differed between the

two types of benefits that he sought. M r. Pisciotta had received child’s insurance

benefits because of his mother’s disability until April 2000, the month before the

3 month in which he celebrated his 18th birthday. Therefore, the earliest date on

which he could receive CD benefits was May 1, 2000. As for DI benefits, he was

first insured on his own account on April 1, 2000, and last insured on June 30,

2003.

II. DISCUSSION

On appeal Mr. Pisciotta raises a single issue: whether the ALJ properly

assessed his RFC. He complains that the ALJ unjustifiably rejected opinions

expressed by his treating psychiatrist, Dr. Stanley, concerning his ability to work.

Dr. Stanley stated his opinions in a letter dated September 21, 2001, and in a form

entitled “M edical Opinion re: Ability to do Work-Related Activities (M ental),”

completed January 17, 2004. R. Vol. II at 312.

In the September 2001 letter, Dr. Stanley noted that M r. Pisciotta had been

hospitalized several times at Two Rivers Psychiatric Hospital for reevaluation and

medication adjustments. He had provided medications and family counseling to

M r. Pisciotta between these hospitalizations. From approximately June 2000 until

M arch 2001, Dr. Stanley explained, Mr. Pisciotta was “out of treatment,

grandiose, rebellious, living away from home and failing in all areas, including

repeated job failures.” Id. at 253. Since that time he had moved back in with his

family, got back on his medication, and was “again making progress.” Id.

But Dr. Stanley was less than sanguine concerning the nature of that

progress. “If an examiner believed [Mr. Pisciotta’s] grandiose self-assessment

4 and unrealistic future plans,” he opined, “he would indeed look as though he were

doing well.” Id. “Actually,” however, “he was not doing well.” Id. Dr. Stanley

noted that M r. Pisciotta was in special-education classes, worked parttime in a

family restaurant, was “socially inept,” and had “poor hygiene.” Id. He assigned

him a GAF score of 45. 1

The form that Dr. Stanley completed in January 2004 asked him to express

an opinion on how M r. Pisciotta’s mental or emotional capacities were affected by

his impairments. He was to rate M r. Pisciotta’s ability to perform certain

activities, assigning them to one of four categories: “Unlimited or Very Good,”

meaning “Ability to function in this area is more than satisfactory”; “Good,”

meaning “Ability to function in this area is limited but satisfactory”; “Fair,”

meaning “Ability to function in this area is seriously limited, but is not

precluded”; and “Poor or None,” meaning M r. Pisciotta had “[n]o useful ability to

function in this area.” Id. at 312. Dr. Stanley rated M r. Pisciotta “good” in his

ability to “[u]nderstand and remember very short and simple instructions”;

“[c]arry out very short and simple instructions”; “[a]sk simple questions or

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.’ American Psychiatric A ssociation, Diagnostic and Statistical M anual of M ental Disorders (Text Revision 4th ed. 2000) [DSM -IV-TR] at 32. . . . A GAF score of 41-50 indicates ‘[s]erious symptoms . . . [or] serious impairment in social, occupational, or school functioning,’ such as inability to keep a job. Id. [at 34].” Langley v. Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir. 2004).

5 request assistance”; and “[b]e aware of normal hazards and take appropriate

precautions.” Id. at 313-14. He rated M r. Pisciotta “fair” in his ability to

“[r]emember work-like procedures”; “[m]ake simple work-related decisions”;

“[r]espond appropriately to changes in a routine work setting”; “[d]eal with stress

of semiskilled and skilled work”; and “[m]aintain socially appropriate behavior.”

Id. at 313-15. The rating that Dr. Stanley gave most frequently was “poor or

none,” rating M r. Pisciotta at that level in his ability to “[m]aintain attention for

two hour segment”; “[m]aintain regular attendance and be punctual within

customary, usually strict tolerances”; “[s]ustain an ordinary routine without

special supervision”; “[w]ork in coordination with or proximity to others without

being unduly distracted”; “[c]omplete a normal workday and workweek without

interruptions from psychologically based symptoms”; “[p]erform at a consistent

pace without an unreasonable number and length of rest periods”; “[a]ccept

instructions and respond appropriately to criticism from supervisors”; “[g]et along

with co-workers or peers without unduly distracting them or exhibiting behavioral

extremes”; “[d]eal with normal work stress”; “[u]nderstand and remember detailed

instructions”; “[c]arry out detailed instructions”; “[s]et realistic goals or make

plans independently of others”; “[i]nteract appropriately with the general public”;

“[a]dhere to basic standards of neatness and cleanliness”; “[t]ravel in unfamiliar

place”; and “[u]se public transportation.” Id. at 313-15.

Dr. Stanley’s explanation of these ratings included the following

6 observations: Mr. Pisciotta was “quite immature and dependent.” Id. at 314.

Despite his use of Ritalin, he remained distractable. Tests performed in 1999

showed that he had a low ability to concentrate. He evidenced his immaturity by

collecting children’s Yu-Gi-Oh and Pokemon trading cards and having an

unrealistic goal of attending wrestling school in California. He suffered from low

self-concept, low self-confidence, and low motivation. With regard to

M r. Pisciotta’s ability to work, Dr. Stanley noted that (1) he had never worked

fulltime; (2) when he worked at a restaurant, he handled a reduced workload and

was given fewer tables than normal to wait on; and (3) his service was “not

outstanding enough to get big tips.” Id. at 315. Dr. Stanley opined that

M r. Pisciotta’s impairments or treatment would cause him to be absent from work

“[m]ore than three times a month.” Id.

When evaluating the opinion of a treating physician, the ALJ must follow a

sequential analysis. In the first step of this analysis, he should consider whether

the opinion is well supported by medically acceptable clinical and laboratory

diagnostic techniques and is consistent with the other substantial evidence in the

record. See 20 C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d 1297,

1300 (10th Cir. 2003) (internal quotation marks omitted). If the answer to both

these questions is “yes,” he must give the opinion controlling weight. See id. But

even if he determines that the treating physician's opinion is not entitled to

controlling weight, the ALJ must then consider whether the opinion should be

7 rejected altogether or assigned some lesser weight. The relevant factors are set

forth in 20 C.F.R. §§ 404.1527 and 416.927. They include:

(1) the length of the treatment relationship and the frequency of 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 1301 (internal quotation marks omitted).

The ALJ determined that Dr. Stanley’s opinions were not controlling and

entitled to little weight. He found the doctor’s September 21, 2001, letter

internally inconsistent regarding M r. Pisciotta’s status, explaining that “on one

hand [Dr. Stanley] stated that [M r. Pisciotta] was ‘not doing well,’ was socially

inept, and demonstrated poor hygiene,” yet Dr. Stanley “admitted that

[M r. Pisciotta] had made progress when he went back on medication and returned

to his mother.” R. Vol. II at 27.

“Medical evidence may be discounted if it is internally inconsistent or

inconsistent with other evidence.” Knight v. Chater, 55 F.3d 309, 314 (7th Cir.

1995) (citing 20 C.F.R. § 404.1527(c)). Although Dr. Stanley opined that

M r. Pisciotta was “not doing well,” R. Vol. II at 253, the only specific factors he

mentioned to support that conclusion were that he was “socially inept” and had

“poor hygiene.” Id. There was no indication of the severity of these factors or

8 how they would affect M r. Pisciotta’s ability to work. In fact, Dr. Stanley’s letter

cited mostly positive factors concerning his current level of adjustment, noting

that he was doing well enough to live with his family, to work in a restaurant, and

to attend school. Dr. Stanley did mention that M r. Pisciotta worked only parttime

and was in special-education classes, but it is unclear whether these should even

be considered negative factors, because Dr. Stanley presented them in the context

of positive developments (his renewed participation in work and school). Also,

that his work was only parttime is unsurprising, given that he was still a high

school student. M oreover, there is no explanation in the letter why Dr. Stanley

assigned M r. Pisciotta a GAF score of 45. On balance, we conclude that the ALJ

permissibly assigned low weight to the unsupported and seemingly inconsistent

opinions in this letter.

Turning to the ratings supplied in the form that Dr. Stanley completed in

January 2004, the ALJ found the large number of “poor” ratings inconsistent with

the remainder of the evidence, including the questionnaires accompanying the

form and M r. Pisciotta’s experience at the Job Corps. As we have noted, to be

entitled to controlling weight, an opinion must not be inconsistent with the other

substantial evidence in the record. See Watkins, 350 F.3d at 1300. In determining

the weight to be given an opinion, the ALJ must consider the consistency between

that opinion and the record as a whole. See 20 C.F.R. § 404.1527(d)(4). The ALJ

thus set forth a legitimate reason for assigning low weight to Dr. Stanley’s

9 opinion, provided that his analysis is supported by substantial evidence in the

record.

In our view, the record provides ample support. As the ALJ noted, over a

period of years, from M arch 2001 to November 2003, Mr. Pisciotta and his

mother completed questionnaires rating a variety of symptoms. These

questionnaires asked them to rank his psychiatric and behavioral symptoms on a

scale of 1 to 6; 1 being least and 6 being worst. None of the questionnaires

contained a “6” rating, and the ALJ calculated that over 67% of the ratings were a

“1,” reflecting that the symptom posed no problem.

Also supporting the ALJ’s analysis was an assessment at Pathways

Community Behavioral Healthcare on September 15, 2000, during the period

when Dr. Stanley described M r. Pisciotta as “failing in all areas.” R. Vol. II at

253. M r. Pisciotta was diagnosed with ADHD by history, and history of major

depression. Id. at 272. He was assessed as having mild to moderate problems

with insight, a below-average intellect, and occasional inability to concentrate.

Overall, the examiner, Julie Broyle, a licensed professional counselor, assigned

him a GAF score of 65, which falls within the middle of the range indicating

“[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some

difficulty in social, occupational, or school functioning (e.g., occasional truancy,

or theft within the household), but generally functioning pretty well, has some

meaningful interpersonal relationships.” DSM -IV-TR, at 34.

10 In addition, on February 7, 2001, M s. Broyle wrote a letter to the team at

M r. Pisciotta’s high school in charge of assessing his special education needs.

She noted her belief that he needed to work on social skills, increasing

independence, and self-motivation and self-reliance, but that he “can perform at a

higher level than he is currently.” Id. at 236. She indicated that he was “helpful

to others and has a good sense of humor,” but would “need some extra help in

particular academic areas as well as vocational training and guidance.” Id.

In July 2001 M r. Pisciotta received a psychological evaluation from Alan R.

Israel, Ph.D. The opinions expressed in Dr. Israel’s evaluation were considerably

more detailed, thorough, and internally consistent than those contained in the

letter and form completed by Dr. Stanley. Dr. Israel noted the considerable

improvement in M r. Pisciotta’s ability to get along with his fellow students and

teachers over the prior six months. He noted that M r. Pisciotta had held the same

weekend job for the last seven months and was looking for a second job during

the week. Mr. Pisciotta’s mother told Dr. Israel that although he had difficulty

concentrating when not on his medication, and continued to have some difficulty

sleeping and some mild anxiety, his behavior at home and at work was more

appropriate than it had been in the past.

M r. Pisciotta told Dr. Israel that he was “capable of grocery shopping,

[was] learning to drive, [had] appropriate hygiene, [did] tasks around the house,

and [could] follow work related instructions.” Id. at 244-45. Mr. Pisciotta

11 presented himself at the interview with appropriate hygiene. He acknowledged

becoming impulsive at times, being inattentive to details, and having trouble

focusing, but stated that his medication helped to control these problems.

Although Dr. Israel noted M r. Pisciotta’s previous psychiatric diagnoses, he gave

him only a single current diagnosis: “Attention Deficit/Hyperactivity Disorder,

combined type.” Id. at 245. He observed that at the time of the examination,

M r. Pisciotta was “attending school full-time, working part-time, living at home

with family, relating to friends, and engaging in normal teenage activities.” Id.

One of Mr. Pisciotta’s teachers noted in October 2001 that he needed

“direct and constant supervision” and would “always need support on the job or in

school,” and was not capable of supporting himself at that time. Id. at 138. But

another teacher stated at the same time that she had seen him mature greatly

during the previous four years. The notes on M r. Pisciotta from the Pathways

program showed considerable improvement in his ability to cope with life. His

discharge summary from Pathways in August 2003 noted mixed progress overall,

with M r. Pisciotta having maintained longterm, parttime employment, graduated

from high school, and become independent in major life areas, but still very

dependent on others for daily living. When he worked in the Job Corps, he did

not request any accommodation

12 In sum, the record provides substantial evidence to support the ALJ’s

evaluation of Dr. Stanley’s opinions concerning M r. Pisciotta’s RFC. The

judgment of the district court is therefore AFFIRMED.