FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2013
Elisabeth A. Shumaker
Clerk of Court
CARMEN I. JELITTO,
Plaintiff-Appellant,
v. No. 12-4087
(D.C. No. 2:11-CV-00235-SA)
MICHAEL J. ASTRUE, (D. Utah)
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before HARTZ, EBEL, and GORSUCH, Circuit Judges.
Claiming disability, Carmen Jelitto sought supplemental security benefits.
After a hearing, an administrative law judge (ALJ) concluded that Ms. Jelitto is able
to perform light work despite chronic back pain and depression. Because the types of
jobs she can perform exist in significant numbers in the national economy, the ALJ
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
denied benefits. Ms. Jelitto appealed, but the Social Security Administration upheld
the ALJ’s decision and, later, so did the district court.
Before us, Ms. Jelitto claims the ALJ gave inadequate weight to the testimony
of two of her doctors, Dr. Kelton Lundsberg (her primary care physician and treating
doctor) and Dr. Gerald Manwill (a psychologist who performed a single evaluation).
Turning first to Dr. Lundsberg’s opinion, a treating doctor’s opinion ordinarily
deserves “controlling weight.” See 20 C.F.R. § 416.927 (c)(2). Controlling weight,
however, is appropriate only if the treating doctor’s opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques.” Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks omitted).
The ALJ held Dr. Lundsberg’s opinion failed to meet this standard and we cannot
disagree. As the ALJ noted, Dr. Lundsberg’s progress notes showed that he
examined Ms. Jelitto’s back only twice in the past four years, and there’s no evidence
in the record that Dr. Lundsberg conducted any other examinations. The ALJ found
this “infrequency of back examinations” to be “striking.” Aplt. App., Vol. I at 28.
Ms. Jelitto replies by arguing that Dr. Lundsberg reviewed and relied on work
performed by two other doctors, doctors who conducted a number of tests on her
back — including an x-ray, two CT scans, an MRI, and a lumbar discography. The
difficulty is, Dr. Lundsberg’s notes only once reference a CT scan and make no
mention of the other tests. See Aplt. App., Vol. II at 281. The record thus simply
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does not support Ms. Jelitto’s claim that he based his opinion on the tests other
doctors performed.
At the very least, Ms. Jelitto says the ALJ should have given Dr. Lundsberg’s
opinion more than the “little weight” he did. In assessing what weight to give a non-
controlling medical opinion, an ALJ usually must consider the six factors enumerated
in 20 C.F.R. § 416.927(c). See Watkins, 350 F.3d at 1300-01. Although Ms. Jelitto
disagrees with the outcome of this process, it is apparent that the ALJ considered
each of the relevant factors before reaching a final decision. For example, the ALJ
noted that Dr. Lundsberg is not a specialist, his opinions are inconsistent with each
other, his opinions and functional limitations are not supported by his progress notes,
and his reports were prepared for another agency and don’t demonstrate an
understanding of the Social Security disability program. We see no error in the
process or outcome of the ALJ’s assessment.
Turning to Dr. Manwill, Ms. Jelitto argues the ALJ didn’t give enough weight
to Dr. Manwill’s psychological opinion. Dr. Manwill diagnosed Ms. Jelitto with a
major depressive disorder and post-traumatic stress disorder (PTSD) and concluded
she couldn’t work at all. The ALJ reviewed Dr. Manwill’s evaluation and ordered
another examination by Dr. Tanya Colledge, also a psychologist. Dr. Colledge
agreed that Ms. Jelitto had a major depressive disorder, but Dr. Colledge believed the
depression didn’t affect Ms. Jelitto’s ability to do work-related activities. Relying on
Dr. Colledge’s opinion, the ALJ concluded Ms. Jelitto had “slight mental limitations”
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— up to a 10% reduction in her ability to concentrate, make complex work decisions,
and carry out detailed instructions. Aplt. App., Vol. I at 22. Ms. Jelitto says the
ALJ’s conclusion was wrong and the ALJ should have used Dr. Manwill’s opinion
instead.
We cannot agree. The ALJ evaluated both opinions in light of the factors set
forth in 20 C.F.R. § 416.927. The ALJ then concluded Dr. Colledge’s assessment
was entitled to more weight and gave colorable reasons for the decision. For
example, Dr. Colledge’s opinion was supported by more extensive testing and
examination — she performed a more detailed mental status examination and
administered three tests to Dr. Manwill’s one. Dr. Colledge tested Ms. Jelitto three
months after Dr. Manwill, by which time Ms. Jelitto didn’t show any specific
symptoms of PTSD and scored much higher on the one test Dr. Manwill did
administer. Dr. Colledge’s tests showed Ms. Jelitto was “able to remember and carry
out simple as well as multi-step instructions” and didn’t indicate Ms. Jelitto had any
particular memory difficulties. Aplt. App., Vol. III at 746.
One might disagree with the ALJ’s assessments, but our job is not to reweigh
the evidence or substitute our judgment for the ALJ’s. Only substantial, not
compelling or incontrovertible, evidence is required to sustain an administrative
agency’s findings. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). That is
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present here and it is equally clear the ALJ followed the correct legal standards in
evaluating the evidence. See id. In these circumstances, we must and do affirm.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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