FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 1, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RUBY JEAN BILLS,
Plaintiff - Appellant,
v. No. 18-1109
(D.C. No. 1:16-CV-03154-STV)
COMMISSIONER, SSA, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and MATHESON, Circuit Judges.
_________________________________
Ruby Jean Bills appeals the district court’s judgment affirming the
Commissioner’s denial of her applications for social security disability benefits and
supplemental security income. Exercising jurisdiction under 42 U.S.C. § 405(g) and
28 U.S.C. § 1291, 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 This order and judgment is not binding precedent,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. BACKGROUND
Ms. Bills filed her benefits applications in 2011, alleging she was disabled due
to asthma, chronic obstructive pulmonary disorder, anxiety, hip problems, and
attention-deficit/hyperactivity disorder. After a hearing, an administrative law judge
(ALJ) denied her applications at steps four and five of the five-step sequential
evaluation process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). The
Appeals Council affirmed, but the district court remanded because the ALJ failed to
explain the weight afforded to the opinion of a consulting examiner, Dr. Mitchell,
that Ms. Bills could stand and walk no more than 4 hours per an 8-hour workday and
could sit without limitation.
On remand, the ALJ found that, although Ms. Bills had several severe
impairments (obesity, scoliosis, asthma/chronic obstructive pulmonary disorder, and
gastroesophageal reflux disease), none met or medically equaled the severity of one
of the impairments listed in 20 C.F.R. Pt. 404, Subpart P, Appendix 1, commonly
referred to as the “Listings,” that are so severe as to preclude employment. The ALJ
then found that Ms. Bills had the residual functional capacity (RFC) to perform work
at the light exertional level subject to several limitations not relevant to this appeal.
At step four, the ALJ determined that Ms. Bills could perform her past relevant work
as a cashier II. The ALJ therefore denied her applications at step four and did not
reach step five. Ms. Bills appealed directly to the district court, see 20 C.F.R.
§ 404.984(a), (d), which affirmed. This appeal followed.
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II. DISCUSSION
Our task is to determine whether substantial evidence supports the agency’s
factual findings and whether the agency applied the correct legal standards. Barnett
v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(internal quotation marks omitted). We cannot “reweigh the evidence” or “substitute
our judgment for that of the agency.” Id. (internal quotation marks omitted). We
have recognized this is a “deferential appellate standard.” Howard v. Barnhart, 379
F.3d 945, 947 (10th Cir. 2004).
A. Light Work and Ms. Bills’s Argument
Ms. Bills raises one issue: whether substantial evidence supports the ALJ’s
finding that she was capable of work at the light exertional level. “Light” work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying up to
10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). It also “requires standing or walking,
off and on, for a total of approximately 6 hours of an 8-hour workday,” with intermittent
sitting during the remaining time. SSR 83-10, 1983 WL 31251 (1983), at *6. Ms. Bills
claims the record evidence supports that she is limited only to sedentary work, which
involves lifting no more than 10 pounds at a time and occasional walking and standing
(no more than two hours total), 20 C.F.R. §§ 404.1567(a), 416.967(a); SSR 83-10 at *5;
and if that is the case, then she is conclusively disabled under the Medical Vocational
Guidelines, 20 C.F.R., Part 404, Subpart P, Appendix 2.
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More specifically, Ms. Bills argues that the ALJ gave inadequate reasons for
affording little weight to the opinions of a consulting examiner, Dr. Mitchell, and of a
physician who treated her five times, Dr. Burrows, both of whom identified
limitations inconsistent with light work. Instead, the ALJ gave more weight to the
opinion of an agency nonexamining medical consultant, Dr. Panek, who identified
abilities consistent with light work.
Although Ms. Bills may be able to argue the ALJ’s reasoning was debatable,
she has not shown the ALJ was unreasonable. Under the deferential
substantial-evidence standard of review, we affirm.
B. Guidelines for Evaluating Opinion Evidence
The guidelines for evaluating opinion evidence for Ms. Bills’s claims are set
out in 20 C.F.R. §§ 404.1527 and 416.927.1 Opinions from examining sources are
generally entitled to more weight than opinions from nonexamining sources.
§§ 404.1527(c)(1), 416.927(c)(1). And treating-source opinions—those from sources
who have seen a claimant “a number of times and long enough to have obtained a
longitudinal picture of [the claimant’s] impairment[s]”—are generally entitled to
more weight than opinions based on “individual examinations, such as consultative
examinations.” §§ 404.1527(c)(2)(i), 416.927(c)(2)(i).
An ALJ must give controlling weight to a treating source’s opinion on the
nature and severity of a claimant’s impairment if it is “well-supported by medically
1
Different guidelines apply to the evaluation of claims filed on or after
March 27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c.
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acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” §§ 404.1527(c)(2),
416.927(c)(2). Absent an opinion entitled to controlling weight, an ALJ must
evaluate medical opinions using the following factors drawn from §§ 404.1527(c)
and 416.927(c):
(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 v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (internal quotation marks
omitted); see §§ 404.1527(c), 416.927(c) (explaining that unless a treating-source
opinion is given controlling weight, the agency will consider these factors in deciding
the weight to give any medical opinion). An ALJ is not required to discuss all of
these factors but must provide “good reasons” for the weight assigned. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); §§ 404.1527(c)(2), 416.927(c)(2).
C. The Opinion Evidence
1. Dr. Mitchell’s Opinion
The consulting examiner, Dr. Mitchell, saw Ms. Bills in 2010. The ALJ gave
multiple reasons for rejecting Dr. Mitchell’s opinion that Ms. Bills could stand or
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walk only about 4 hours in an 8-hour workday.2 The ALJ found that the opinion was
not consistent with Dr. Mitchell’s own recorded observations during the examination,
which the ALJ summarized as follows: Ms. Bills “had only a mildly antalgic gait”;
“sat comfortably during the examination without pain-mitigating movements, did not
appear uncomfortable getting on and off the examination table or removing her
shoes, and arose spontaneously and unaided from a seated position without
discernible discomfort”; “could stand on her heels and toes, did not use an assistive
device, and had no discernible discomfort with normal ranges of motion of her
cervical and dorsolumbar spine”; and “had full strength in all extremities.” Aplt.
App., Vol. 2 at 480–81. The ALJ also found that the opinion was inconsistent with
Ms. Bills’s statement to a sleep consultant in 2013 that she “essentially walked
everywhere most of the time and she got good exercise,” id. at 481 (discussing id.
at 383), and with a 2015 treatment note from Dr. Burrows showing Ms. Bills “walked
normally,” id. (discussing Dr. Burrows’s finding that she had “normal gait and
station,” id. at 712). Finally, the ALJ noted that Dr. Mitchell had examined Ms. Bills
only once and therefore lacked “a longitudinal treatment history” with her. Id.
Ms. Bills questions only two of these reasons. She first argues that it was
unreasonable for the ALJ to rely on the fact that she could sit comfortably during the
2
Although the ALJ said she gave “limited weight” to Dr. Mitchell’s opinion,
Aplt. App., Vol. 2 at 480, she appears to have rejected the opinion with respect to
Ms. Bills’s ability to stand or walk, which was inconsistent with the ALJ’s RFC
finding. What “limited weight” the ALJ afforded Dr. Mitchell’s opinion appears to
concern Ms. Bills’s ability to bend, squat, crouch, and stoop only occasionally, all of
which was made part of the ALJ’s RFC.
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examination because Dr. Mitchell’s opinion was that she could sit for an unlimited
amount of time. We agree that this was not a good reason for discounting
Dr. Mitchell’s opinion regarding Ms. Bills’s ability to stand and walk. This misstep,
however, is not dispositive because substantial evidence still supports the ALJ’s
rejection of Dr. Mitchell’s opinion of Ms. Bills’s standing and walking abilities.
Ms. Bills’s other contention is that the ALJ’s reliance on the lack of a
longitudinal treatment relationship to discount Dr. Mitchell’s opinion was
inconsistent with the ALJ’s attributing greater weight to the opinion of the
nonexamining consultant, Dr. Panek, who never saw Ms. Bills and therefore similarly
lacked a longitudinal relationship with her. As noted, the length of the relationship
between a medical source and a claimant is only one legitimate factor to consider in
evaluating medical-source opinion evidence. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i).
It was reasonable here for the ALJ to rely on the fact that Dr. Mitchell saw Ms. Bills
only once. Moreover, that encounter occurred in 2011, very early in the relevant
time period, which stretched from the amended onset date in 2010 to the date of the
ALJ’s decision in 2016. In contrast, Dr. Panek reviewed medical evidence from 2010
and 2011, see id. at 369–71, which, although also covering an early part of the time
frame, presented at least a partial longitudinal picture of Ms. Bills’s functional
capacity.
Ms. Bills does not challenge any of the other reasons the ALJ gave for
rejecting Dr. Mitchell’s opinion regarding her ability to stand and walk other than to
contend that the opinion was consistent with three of Dr. Mitchell’s examination
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findings: a “mildly antalgic gait,” “mild scoliosis,” and “the absence or reduction of
all [Ms. Bills’s] reflexes.” Aplt. Opening Br. at 39. But assuming those findings,
which the ALJ noted, are consistent with Dr. Mitchell’s opinion that Ms. Bills could
stand or walk only 4 hours in an 8-hour workday, the ALJ identified evidence that
was not consistent with that degree of limitation—Dr. Mitchell’s other findings at the
consultative exam, the later evidence that Ms. Bills “had normal station and gait,”
Aplt. App., Vol. 2 at 712, and her statement that she walked most “everywhere” and
“got good exercise,” id. at 383. Under the substantial evidence standard, “we may
not displace the agency’s choice between two fairly conflicting views,” Oldham,
509 F.3d at 1258 (brackets and internal quotation marks omitted). The ALJ’s
rejection of Dr. Mitchell’s opinion that Ms. Bills could stand or walk only 4 hours in
an 8-hour workday withstands her challenge on appeal.
2. Dr. Burrows’s Opinion
Dr. Burrows, who saw Ms. Bills four times in late 2015 and once in April 2016
for complaints of esophageal burning, completed a gastritis medical assessment form
in July 2016. The ALJ gave Dr. Burrows’s opinion “partial weight.” Aplt. App.,
Vol. 2 at 480. The ALJ (1) rejected Dr. Burrows’s opinion that she could lift and
carry 10 pounds rarely and never more than 10 pounds, could only walk two blocks,
and needed to alternate sitting and standing and lie down after standing, id. at 837,
839—all of which is inconsistent with light work—but (2) accepted Dr. Burrows’s
opinion that she could stand and walk at least 6 hours in an 8-hour workday, id.
at 837—which is consistent with light work.
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Ms. Bills claims that the ALJ erred in relying on a lack of a longitudinal
treatment history in rejecting part of Dr. Burrows’s opinion because he examined her
on five occasions. Five visits over eight months would typically be sufficient to
establish a longitudinal relationship such that Dr. Burrows could be considered a
treating physician. And his opinions would therefore be entitled to controlling
weight if they were “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and were “not inconsistent with the other substantial evidence
in [the] case record.” §§ 404.1527(c)(2), 416.927(c)(2). But the ALJ found that Dr.
Burrows’s opinions were inconsistent with (1) his August 2015 treatment notes
showing that Ms. Bills “walked normally, had normal motor strength and tone, did
not have musculoskeletal tenderness, and had normal movement in all extremities,”
Aplt. App., Vol. 2 at 480 (discussing id. at 712), and (2) his April 2016 treatment
notes in which “he noted limited objective findings and suggested dietary changes,
fluid consumption, and using Pepto-Bismol periodically,” id. (discussing id.
at 705–06).
Ms. Bills has not challenged these reasons or any of the other reasons the ALJ
gave for rejecting Dr. Burrows’s lifting and sit/stand limitations. The ALJ also noted
that Dr. Burrows treated Ms. Bills for gastroesophageal reflux disease and did not
indicate whether this disease caused the limitations he recommended (abdominal pain
was the only symptom Dr. Burrows attributed to the disease, id. at 836). And the
ALJ doubted Dr. Burrows’s lifting and sit/stand limitations because (1) his opinion
that Ms. Bills would need nine restroom breaks a day lacked support, and (2) there
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was a discrepancy between Dr. Burrows’s notation that he began seeing Ms. Bills
once a year in 2013 and the record showing he first saw her in August 2015 and then
four more times over the ensuing eight months.
The ALJ gave “specific, legitimate reasons” for rejecting Dr. Burrows’s lifting
and sit/stand limitations, Watkins, 350 F.3d at 1301 (internal quotation marks
omitted), based on the regulatory factors concerning the treatment provided, the lack
of evidentiary support, and inconsistency with other record evidence. Ms. Bills has
not shown the ALJ’s rejection of those limitations lacks a substantial-evidence basis.
3. Dr. Panek’s Opinions
Dr. Panek, the agency nonexamining medical consultant, reviewed all of the
medical records in 2012. Consistent with light work, Dr. Panek said Ms. Bills could
occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand and/or
walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour
workday. See Aplt. App., Vol. 1 at 99–101; id., Vol. 2 at 369–71. The ALJ gave
“great weight” to these opinions because they were “consistent with the record as a
whole,” including Dr. Burrows’s August 2015 treatment note. Id., Vol. 2 at 481.
Ms. Bills does not challenge these reasons other than to argue that the opinions
of Drs. Mitchell and Burrows regarding her abilities to stand, walk, lift, and carry
were entitled to more weight. But we have upheld the ALJ’s rejection of those
opinions under the deferential substantial evidence standard, which does not allow us
to reweigh the evidence or substitute our judgment for the ALJ’s. Accordingly, it
was permissible for the ALJ to rely on Dr. Panek’s opinion. See SSR 96-6P,
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1996 WL 374180 (July 2, 1996), at *3 (“In appropriate circumstances, opinions from
State agency medical and psychological consultants and other program physicians
and psychologists may be entitled to greater weight than the opinions of treating or
examining sources.”). Lacking any argument from Ms. Bills questioning the ALJ’s
reliance on Dr. Panek’s opinion, we conclude that substantial evidence supports the
ALJ’s RFC for light work.
III. CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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