Banks v. Astrue

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

FOR THE TENTH CIRCUIT December 10, 2013

Elisabeth A. Shumaker
Clerk of Court
PAULETTE BANKS,

Plaintiff-Appellant,

v. No. 12-5220
(D.C. No. 4:11-CV-00439-TLW)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of Social Security
Administration,*

Defendant-Appellee.

ORDER AND JUDGMENT**

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit
Judge.

Paulette Banks appeals from an order of the magistrate judge affirming the

Commissioner’s decision to deny social security disability (“DIB”) and supplemental

*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
security income (“SSI”) benefits. Although we reject several of Banks’ objections,

we conclude this case must be remanded to the agency to consider the physical and

mental demands of her past work, and determine whether she is able to meet such

demands given her limitations.

I. Background

Banks protectively filed an application for DIB and SSI in 2009 claiming she

could not work due to nerve damage and chronic pain in her left hand originating

from an old workplace injury that had required surgery decades earlier. Her

application was denied because the agency determined her condition was not severe

enough to prevent her from working.

Banks saw several medical providers. The first, a consultative examiner

(“CE”), reported that she could oppose her thumbs and manipulate and grasp small

objects, although the strength in her left hand was weak. The CE also observed that

Banks’ left hand had a mild deformity and had difficulty extending in different

directions. Banks then saw another physician who provided a residual functional

capacity (“RFC”) assessment that Banks could occasionally lift 50 pounds, frequently

lift 25 pounds, stand or walk for 6 hours, and engage in unlimited pushing or pulling.

A different physician reviewed the medical evidence and agreed with the RFC.

Banks then saw a physician’s assistant, who noted that Banks’ right hand had

tenderness and a visible scar while her left hand had decreased sensation and limited

motion. Approximately a year later Banks had her hands x-rayed and the results

showed severe arthritis in the first carpometacarpal joint of her right hand. The

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results pertaining to the rest of her right hand and all of her left hand were

“unremarkable” besides swelling at the base of her right thumb.1 Aplt. App. Vol. 2 at

201.

During this time, Banks reported to a clinical social worker that she had been

experiencing feelings of depression, anxiety, and insomnia. Based on this, the social

worker assessed Banks with depression and a global assessment of functioning score

of 56, indicating moderate symptoms. The social worker proposed a treatment plan

of individual therapy and referred Banks for a medication evaluation for

antidepressants. After two therapy sessions with the social worker, Banks was seen

by a physician’s assistant, who assessed her with depression, anxiety, and finger joint

pain, and prescribed medication to treat her depression. Shortly after she began

taking antidepressants, however, she reported having thoughts of suicide and she

discontinued the medication.

Banks continued to see the social worker for therapy on a weekly basis.

Session reports noted that Banks was depressed, tired from lack of sleep, tearful, and

1
It is unclear whether the x-ray report refers to the wrong hands and that the
results showing severe arthritis were in fact in Banks’ left hand. Banks’ initial
application refers only to problems in her left hand. The subsequent medical
examinations report only on her left hand. And it is evident that the surgery from
which Banks’ hand impairment originates was performed on her left hand. See, e.g.,
Aplt. App. Vol. 2 at 178 (CE’s notes indicating that Banks had “tendon repair” on her
left hand and referencing past surgical history on her left hand). Yet, the x-ray report
states that Banks had “right hand tendon repair” in her past surgical history, id. at
219, with no mention of surgery on her left hand. Further, the report states that the
x-rays showed damage on Banks’ right hand with negative results on the left hand.
Id. at 218.

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overcome by feelings helplessness, though her thoughts of suicide had abated after

she stopped taking the antidepressants. Banks was eventually referred to a medical

doctor, Chris Puls, for a mental evaluation. Dr. Puls diagnosed Banks with severe

depression, noting among other things that Banks had a tearful, sad affect, and

avoided most activities she used to find enjoyable.

Dr. Puls also assessed Banks’ mental RFC and concluded that Banks had

marked limitations in her ability to remember locations and work procedures;

understand and remember both short and detailed instructions; carry out detailed

instructions; maintain attention and concentration for an extended period of time;

perform activities within a schedule and be punctual; travel in unfamiliar places or

use public transport; and complete a normal workday and workweek without frequent

interruption from her symptoms. He additionally concluded that Banks had moderate

limitations in her abilities related to sustained concentration and persistence, social

interaction, and adaption. He ultimately determined in his examination notes that it

would be “difficult for [Banks] to sustain work at this time.” Id. at 198.

In 2010, an ALJ conducted a hearing on Banks’ claims and, after reviewing the

record and hearing her testimony, denied the claims. The ALJ found that based on

the record, Banks had two severe impairments, osteoarthritis of the left hand and

depression. However, the ALJ determined at step four of the five-step sequential

process, see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing

five-step process), that despite her limitations Banks could perform her past relevant

work as a housekeeper, kitchen helper, cashier, and janitor. Thus, the ALJ concluded

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Banks was not disabled. The Appeals Council denied her request for review. She

then brought suit in federal court and a magistrate judge affirmed the

Commissioner’s decision. Banks now appeals.

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). In doing so, we will closely examine the whole record but will not reweigh

the evidence. Wall, 561 F.3d at 1052. Banks raises three issues on appeal: (1) the

ALJ failed to adequately consider the medical source evidence; (2) the ALJ failed to

make a proper credibility determination; and (3) the ALJ erred in finding that Banks

could return to her past relevant work. We address each in turn.

A. Medical Source Evidence

Banks first argues the ALJ failed to properly consider all the medical source

evidence. She particularly contends that Dr. Puls’ opinion about her mental health

limitations should have been given controlling weight. An ALJ must give controlling

weight to a treating-source opinion unless that opinion is not supported by medically

acceptable clinical techniques or is inconsistent with substantial evidence in the

record. 20 C.F.R. § 404.1527(c)(2). An ALJ must give reasons for declining to give

controlling weight to a treating physician’s opinion. Raymond v. Astrue, 621 F.3d

1269, 1272 (10th Cir. 2009). In determining what weight to give a medical opinion

not given controlling weight, an ALJ must consider (1) the length of treatment and

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frequency of examination; (2) the nature and extent of the treatment relationship;

(3) the degree the opinion is supported by medical evidence; (4) consistency between

the opinion and the record; (5) whether the physician specializes in the area on

which the opinion is given; and (6) any other factors to support or contradiction the

opinion. Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290

(10th Cir. 1995).

We discern no error in the ALJ’s decision to give Dr. Puls’ opinion little

weight. The ALJ did not credit Dr. Puls’ opinion with controlling weight because

she found the record did not support the marked limitations in the opinion. She noted

that Dr. Puls evaluated Banks only once and that his opinion was at least partly based

on the notes of the clinical social worker who met with Banks prior to the evaluation.

The ALJ also found that while Banks was depressed, the “objective medical signs

and findings are relatively mild,” Aplt. App. Vol. 2 at 17, suggesting an

inconsistency between the record and Dr. Puls’ opinion. Thus, notwithstanding the

ALJ’s omission of Dr. Puls’ specialty—of which there is no record evidence—the

ALJ appropriately considered all of the factors outlined in Goatcher. As such, she

provided “good reasons in [her] written decision for the weight [she] gave the

treating physician’s opinion.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.

2004); see also Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (finding no

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error where the ALJ did not expressly discuss all six factors in deciding what weight

to give medical opinion).2

Nor do we identify an internal inconsistency in the ALJ’s conclusion that

Banks’ medical signs were mild at step four despite finding her depression a “severe”

impairment at step two. The reason is simple: step two and step four are different

standards. To find a “severe” impairment at step two requires only a threshold

showing that the claimant’s impairment has “more than a minimal effect on [her]

ability to do basic work activities.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.

1988). To find a disability at step four, on the other hand, requires that the

claimant’s specific functional limitations are such that she is unable to perform her

past relevant work. 20 C.F.R. § 404.1520. Thus, a step-two determination that

Banks’ mental impairment is “severe” only allows the sequential process to proceed;

it does not reflect the severity of her functional limitations relevant to step four.

Banks’ additional contention that the ALJ erred in not addressing the severity

of her right hand’s limitations and ignoring certain limitations in her left hand is also

without merit. Substantial evidence in the record demonstrates that the symptoms in

both of Banks’ hands were relatively mild. Banks did not even complain about her

2
Banks also claims that the ALJ should have obtained additional evidence by
re-contacting Dr. Puls or obtaining a CE report to assess her mental impairment.
However, an ALJ should do so only where the evidence is inadequate or insufficient
to allow the ALJ to make a proper disability determination. See Hawkins v. Chater,
113 F.3d 1162, 1166-69 (10th Cir. 1997); White v. Barnhart, 287 F.3d 903, 908-09
(10th Cir. 2001). Nothing in either the decision or the record suggests that the ALJ
lacked enough information to make a proper disability determination.

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right hand or have it examined until more than a year had passed from when she filed

her application. As to her left hand, the ALJ’s conclusions are consistent with the

CE’s evaluation and the subsequent RFC assessment, which was based on the

medical record, showing that despite some limitations her left hand maintained its

ability to function.

B. Credibility Determination

Banks also argues the ALJ did not perform a proper credibility determination.

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

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

v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted).

Here, although she found Banks’ medically determinable impairments could

reasonably be expected to cause the symptoms alleged, the ALJ found that Banks’

testimony about the “intensity, persistence, and limiting effects” of her symptoms

were not credible to the extent they were not consistent with her RFC. Aplt. App.

Vol. 2 at 14. We conclude this credibility determination is supported by substantial

evidence in the record considering (1) the relatively mild assessments in the

treatment records, including the CE’s report stating that Banks moved her extremities

well and had solid grip strength in both hands; (2) the fact that Banks infrequently

sought treatment for either hand, suggesting she had more mild limitations; and

(3) the fact that there were no physical functional restrictions imposed by any of

Banks’ physicians.

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 C. Past Relevant Work

Lastly, Banks contends the ALJ failed to make the required step-four findings

about the physical and mental demands of her past work as required by Winfrey v.

Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). On this point we agree.

Under Winfrey, step four of the sequential analysis has three phases:

(1) determine the claimant’s RFC; (2) determine the physical and mental demands of

the claimant’s past work; and (3) determine whether the claimant is able to meet the

demands of her past work found in phase two despite her physical and mental

limitations found in phase one. Id. “At each of these phases, the ALJ must make

specific findings.” Id.

Here, after determining Banks’ RFC, the ALJ all but ignored the second and

third phase of the analysis. Although the ALJ obtained evidence about the general

physical demands of Banks’ past work, the ALJ did not make any findings about

what that work specifically requires. Nor did the ALJ consider such demands in light

of Banks’ physical limitations, instead relying entirely on the vocational expert’s

opinion about whether she could perform her past work. See id. at 1025 (“[W]hile

the ALJ may rely on information supplied by the VE at step four, the ALJ [herself]

must make the required findings on the record.”). More importantly, the ALJ failed

to make a single inquiry into the mental demands of Banks’ past work, ignoring this

requirement entirely. See id. at 1024 (holding that when a claimant has a mental

impairment, the ALJ must “obtain a precise description of the particular job duties

which are likely to produce tension and anxiety . . . in order to determine if the

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claimant’s mental impairment is compatible with the performance of such work.”).

The ALJ’s failure to make findings about the demands of Banks’ past work

constitutes reversible error. Accordingly, we remand with instructions to make

findings about both the physical and mental demands of Banks’ past work, and to

reassess her ability to perform such work in light of those findings.

III. Conclusion

The judgment of the magistrate judge is affirmed in part, reversed in part, and

remanded with instructions for further proceedings consistent with this order and

judgment.

Entered for the Court

David M. Ebel
Circuit Judge

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