Roybal v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

DEA NN A R OY BA L,

Plaintiff-Appellant,

v. No. 06-4189
(D.C. No. 2:05-CV-2-JTG)
M ICH AEL J. ASTRU E, * (D. Utah)
Commissioner of the Social Security
Administration,

Defendant-Appellee.

OR D ER AND JUDGM ENT **

Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.

Deanna Roybal appeals from the district court’s affirmance of the Social

Security Commissioner’s denial of her application for Social Security disability

*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
and Supplemental Security Income payments. W e have jurisdiction under

42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we AFFIRM .

I

M s. Roybal was born in 1969. She completed high school and one year of

college. For about seven years, she worked as a library assistant, then she spent

three years working in customer service for a check printing company. In the

summer of 2001, however, her mother became so ill in her battle with cancer,

diabetes, and kidney problems that M s. Roybal had to quit w ork to look after her.

W hen she quit, she lost her insurance benefits, so she w as no longer able to afford

the medications that her doctor had prescribed for depression and anxiety over the

past couple of years.

Sadly, M s. Roybal’s mother lost her battle in January 2002. W ith her

mother’s death, M s. Roybal’s depression and anxiety disorders became more

severe. On February 6, she began seeing Dora Norton, M .D., who noted that

M s. Roybal reported that “she has struggled with depressed mood, tearfulness,

anhedonia, low energy, low appetite, and sleep disturbances.” Aplt. A pp. at 145.

Dr. Norton diagnosed her with “M ajor Depression [‘recurrent, severe, without

psychotic features’] and issues of grief surrounding the recent death of her

mother.” Id. at 147. Dr. Norton later added a diagnosis of panic disorder with

agoraphobia. In a statement signed on April 24, 2002, she stated that M s. Roybal

“is emotionally labile and withdrawn,” “currently unable to perform activities of

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daily living, including shopping, working, and driving,” and “neglects her own

self-care and nutritional needs.” Id. at 129, 131. She assessed a current global

assessment of functioning (GAF) score of 30, up from 20, 1 and she opined that

“[p]rognosis will improve with further treatment,” w hich she estimated would

take at least four to six months. Id. at 131. She continued to see M s. Roybal

periodically in 2002. W hen M s. Roybal indicated in October that she had not

been compliant with therapy because of financial issues, Dr. Norton discussed a

temporary $5 charge for therapy sessions.

On November 19, 2002, Dr. David Ericksen, Ph.D., performed a

consultative examination. He diagnosed M s. Roybal with a major depressive

disorder, recurrent, and panic disorder w ith agoraphobia, and he assessed her with

a GAF score of 52. 2 He concluded that “[t]he present findings suggested that this

claimant’s ability to maintain concentration and attention is moderately impaired.

Her speed of cognitive processing is quite slow and her ability to tolerate w ork

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.” Am.
Psychiatric Ass’n, Diagnostic and Statistical M anual of Mental Disorders 32
(Text Revision 4th ed. 2000) (DSM -IV). A GAF score of 21-30 indicates
“[b]ehavior is considerably influenced by delusions or hallucinations” or that a
claimant suffers from “serious impairment in comm unication or judgment” or that
she has an “inability to function in almost all areas.” Id. at 34.
2
A GAF score of 51-60 indicates “moderate symptoms,” or “moderate
difficulty in social, occupational, or school functioning.” DSM -IV at 34.

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stress is very poor. She is capable of understanding, remembering, and carrying

out simple instructions.” Id. at 134.

For reasons not revealed in the record, M s. Roybal apparently sought no

treatment for her mental disorders between her last visit with Dr. Norton on

December 11, 2002, and her first visit to Valley M ental Health on August 14,

2003. There, she primarily saw Licensed Clinical Social W orker Linda Lasley

and Nusrat Ahmed, M .D. At the intake visit, M s. Lasley noted that M s. Roybal

reported a suicide attempt two weeks before. M s. Lasley’s diagnosis was “M ajor

Depressive Disorder, single episode, moderate,” “Dysthymic Disorder,” and

“Generalized Anxiety Disorder,” with a GAF score of 50. 3 Id. at 200.

D r. A hmed’s first contact with M s. Roybal was on September 12, 2003. H e

noted that she “presents w ith major depressive symptoms and symptoms of panic

disorder with agoraphobia.” Id. at 198. His exam revealed that M s. Roybal “is

alert and oriented x 3. She exhibits psychomotor retardation. Her affect is

blunted. Her mood is depressed. Thought process is slow and logical. . . . Her

cognitive functions are intact. She has fair insight and good judgment.” Id. H e

diagnosed her with “M ajor Depression, recurrent, moderate” and “Panic Disorder

with Agoraphobia” and assessed a GAF score of 45. Id. at 199. M s. Roybal

3
A GAF score of 41-50 indicates “[s]erious symptoms” or “serious
impairment in social, occupational, or school functioning.” DSM -IV at 34.

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continued visiting Valley M ental Health through the date of her administrative

hearing.

At her hearing on February 23, 2004, M s. Roybal testified that in 2002, she

was able to do some things around the house, but that she was only able to do

activities outside the house if she went with a friend. She further testified that in

2003, she continued to do light meal preparation and take care of herself and her

apartment. She also stated she did not go on any trips or vacations, and that she

attempted suicide in July or August of that year. Paramedics were called to her

house, and they treated the cuts on her w rists with band-aids. Her outings were

limited to trips to the library with her friend to get videos. In both 2002 and

2003, she made one trip a month to the grocery store, spending about two hours

per visit. She testified that if her friend needed her to take him to the hospital in

an emergency, she could not do it, because “[t]hat would be something where I

was needed. I’m not really good if people need me. I’m really apt to needing

others.” Aplt. App. at 215.

The administrative law judge (ALJ) found M s. Roybal’s testimony not

entirely credible, stating that “ [t]he ALJ does not find the claimant’s functional

allegations, and conclusion of total disability, to be reasonably consistent with the

objective medical evidence and non-medical evidence, when considered as a

whole.” Id. at 36. The ALJ noted that M s. Roybal had quit work to care for her

mother, not because of her mental impairments, and that before that she had

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engaged in “successful work attempts at the substantial gainful level.” Id. The

ALJ further cited four specific reasons to discredit M s. Roybal’s testimony. First,

the ALJ found that inconsistencies in her testimony about being able to help her

friend “goes to motivation in that when claimant needs food and other necessities,

she can go; but, when a friend needs help, she is unable to help. Clearly then,

claimant is able to be quite functional when she exerts the effort required by the

legal standards that must be followed in this case, i.e., what is the most she can

do despite her impairments.” Id. Second, M s. Roybal had testified that she did

not take any trips or vacations, but the record showed that in November 2003, she

traveled to North Carolina with her friend and then returned to Utah by herself on

the bus. Third, the ALJ noted “that many of claimant’s symptoms arise from

fights from her boyfriend and family members, as brought out in numerous

individual therapy sessions. It would appear that a reasonable work environment

would be more conducive to emotional health and allow for some work.” Id.

Finally, the A LJ stated that the record did not contain any medical opinions,

either from treating or examining physicians, indicating that M s. Roybal was

totally disabled or that she had limitations greater than those assessed by the ALJ.

The ALJ concluded that M s. Roybal did not meet or equal any applicable

impairment Listing and that she could not return to her former jobs, but that she

had the residual functional capacity (RFC) to perform unskilled w ork at no more

than low stress, concentration, and memory levels. Relying on the testimony of a

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vocational expert, the ALJ concluded that there were jobs in the national economy

that M s. Roybal was able to perform and denied her application at step five of the

five-step analysis. The A ppeals Council denied review, and the district court

affirmed the agency’s decision. M s. Roybal appeals.

II

M s. Roybal presents two arguments on appeal. First, she contends that the

ALJ failed to analyze her treating medical sources’ opinions properly. Second,

she argues that the ALJ failed to assess her credibility properly.

“Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal.” Branum v. Barnhart,

385 F.3d 1268, 1270 (10th Cir. 2004) (citing Doyal v. Barnhart, 331 F.3d 758,

759 (10th Cir. 2003)). Our standards of review in Social Security cases are

familiar:

In reviewing the ALJ’s decision, we “neither reweigh the evidence
nor substitute our judgment for that of the agency.” Casias v. Sec’y
of Health & Hum an Servs., 933 F.2d 799, 800 (10th Cir. 1991).
Instead, we review the ALJ’s decision only to determine whether the
correct legal standards were applied and whether the ALJ’s factual
findings are supported by substantial evidence in the record. Doyal,
331 F.3d at 760. “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Id. (quotation omitted).

Id.

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 A

M s. Roybal first complains that the ALJ did not analyze her treating

medical sources’ opinions under the rubric established in Watkins v. Barnhart,

350 F.3d 1297 (10th Cir. 2003). There, we explained that an ALJ must determine

whether to give a treating medical source’s opinion “controlling weight,” and, if

not, to determine what deference the opinion is due using the factors set forth in

the regulations. Id. at 1300-01. W e also stated that the ALJ’s determination

regarding the weight assigned to a treating physician’s opinion “‘must be

sufficiently specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the reasons for that

weight.’” Id. at 1300 (quoting Soc. Sec. Rul. 96-2p, 1996 W L 374188, at *5).

Here, the ALJ discussed much of the medical evidence but did not

explicitly explain what weight was assigned to D r. Norton’s and Dr. Ahmed’s

opinions. 4 In this case, however, we do not believe the ALJ’s failure requires

reversal because the ALJ did not reject the treating physicians’ opinions or weigh

them unfavorably in concluding that M s. Roybal w as not entitled to benefits.

“W hen the ALJ does not need to reject or w eigh evidence unfavorably in order to

4
To the extent that M s. Roybal complains that the ALJ did not appropriately
weigh M s. Lasley’s notes, a licensed clinical social w orker is not an acceptable
medical source and thus is not entitled to controlling weight. See Branum,
385 F.3d at 1272.

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determine a claimant’s RFC, the need for express analysis is weakened.” Howard

v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004).

The ALJ adopted the diagnoses of Dr. Norton and Dr. Ahmed in finding

that M s. Roybal suffers from the severe impairments of a major depressive

disorder and a panic disorder with agoraphobia. And as the ALJ noted,

Dr. Norton’s and Dr. Ahmed’s notes generally do not contradict the A LJ’s

findings. The medical evidence indicates that M s. Roybal was disabled for

several months immediately following her mother’s death. See Aplt. App. at 143

(D r. Norton’s M arch 2002 notation that M s. Roybal “expressed that she is

extremely anxious to leave the apartment . . . and avoids doing so at all

measures”); id. at 129 (Dr. Norton’s A pril 24, 2002, statement that M s. Roybal “is

currently unable to perform activities of daily living, including shopping,

working, and driving. She is dependent on one friend to help her meet her needs

and without his assistance would likely have grave self-care deficits.”). The ALJ

recognized these limitations. Id. at 34 (“At that time, claimant was unable to

perform activities of daily living and was isolating herself.”). As the A LJ also

noted, however, the record indicates that M s. Roybal’s condition gradually

improved. Particularly, while the medical record indicates M s. Roybal suffered

some setbacks in treatment, her treating physicians’ notes or opinions do not

require a finding that her condition continued to be totally disabling for the

minimum twelve-month period required for benefits. See Aplt. App. at 142 (Dr.

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Norton’s A pril 19, 2002, notation that M s. Roybal “experiences an elevation in

mood, brightening of affect over the past month. Energy level improving, sleep

& appetite are approaching [normal level] for her. No longer anhedonic. Now

suggesting to do recreational activities (e.g., going to church, piercing tongues)

[with] friend”); id. at 131 (Dr. Norton’s April 24, 2002, statement that

“[p]rognosis will improve with further treatment for depression and anxiety,” w ith

treatment expected to last four to six months); id. at 141 (Dr. Norton’s M ay 22,

2002, notation that “D eanna has noted some improvement [on] clonazepam and is

gaining confidence”); id. at 139 (September 2002 notation by another doctor that

M s. Roybal asked for medications because she was going out of town for three

weeks). M oreover, there is an eight-month period, from December 11, 2002, to

August 14, 2003, when M s. Roybal apparently sought no psychological treatment,

so no treating physicians’ notes or opinions are available for a portion of the

period under consideration.

W hile it is preferable that an ALJ employ the Watkins analysis, we do not

consider the ALJ’s failure in this instance to require reversal. M oreover, the

ALJ’s analysis is supported by substantial evidence in the record. Accordingly,

we shall not disturb the decision.

B

M s. Roybal also argues that the ALJ erred in assessing her credibility.

“Credibility determinations are peculiarly the province of the finder of fact, and

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we will not upset such determinations when supported by substantial evidence.”

Diaz v. Sec’y of Health & Hum an Servs., 898 F.2d 774, 777 (10th Cir. 1990). A s

we have acknowledged, the ALJ’s credibility determinations “warrant particular

deference” because “[t]he ALJ enjoys an institutional advantage in making the

type of determination at issue here. Not only does an ALJ see far more social

security cases than do appellate judges, he or she is uniquely able to observe the

demeanor . . . of the claimant in a direct and unmediated fashion.” White v.

Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). Credibility determinations,

however, cannot be based on intangible or intuitive reasons, but “must be

grounded in the evidence and articulated in the determination or decision.”

Soc. Sec. Rul. 96-7p, 1996 W L 374186, at *4; see also Kepler v. Chater, 68 F.3d

387, 391 (10th Cir. 1995) (credibility determination “should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise

of findings.” (internal quotation marks omitted)).

The ALJ cited several reasons to discount M s. Roybal’s credibility. She

argues that the ALJ’s reasons were incorrect and/or insufficient to support the

decision. Given the nature of the mental impairments at issue, we acknowledge

that the ALJ may have erred in finding that M s. Roybal’s testimony about her

inability to help her friend to the hospital was inconsistent with her other

activities. Any such error in this case does not justify reversal, however, because

the ALJ’s other reasons for discounting M s. Roybal’s credibility are supported by

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substantial evidence. Particularly, M s. Roybal testified at the hearing that she did

not take any trips or vacations in 2003 and that she would not have taken a free

trip had it been offered, Aplt. App. at 211, and yet her medical records reflect that

she took a trip to North Carolina with her friend in November 2003. Her decision

to cut that visit short and return by herself to Utah on a bus also indicates that,

when she has to, she can undertake activities outside her house by herself and she

can take care of herself. Further, the ALJ’s comment that M s. Roybal’s situation

may be improved by working is not sheer speculation, but is supported by the

opinion of a consulting physician. Id. at 181. Finally, as discussed above, the

available treating-physician notes and opinions do not necessarily contradict

M s. Roybal’s assessed RFC.

It cannot be gainsaid that M s. Roybal suffers from severe mental disorders.

On this record, however, we cannot say that the ALJ’s credibility findings are not

supported by substantial evidence.

III

M s. Roybal’s motion to file a reply brief is GRANTED, and the reply brief

is accepted for filing as of January 5, 2007, the date it w as delivered to this court.

The judgment of the district court is AFFIRMED.

Entered for the Court

Stephen H. Anderson
Circuit Judge

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