White v. Barnhart, 00-6449.

Citation287 F.3d 903
Decision Date28 November 2001
Docket NumberNo. 00-6449.,00-6449.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
PartiesBarbara J. WHITE, Plaintiff-Appellant, v. Joanne B. BARNHART,<SMALL><SUP>*</SUP></SMALL> Commissioner of the Social Security Administration, Defendant-Appellee. Larry G. Massanari,<SMALL><SUP>1</SUP></SMALL> Acting Commissioner of Social Security Administration, Defendant-Appellee.

James Harris, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Daniel G. Webber, Jr., United States Attorney, Robert A. Bradford, Assistant United States Attorney, Oklahoma City, Oklahoma, and Tina M. Waddell, Regional Chief Counsel, Region VI, Mark J. Kingsolver, Deputy Regional Chief Counsel, and Mary F. Lin, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before HENRY, PORFILIO, and MURPHY, Circuit Judges.

ORDER

HENRY, Circuit Judge.

Upon considering Barbara White's petition for rehearing, the opinion has been altered. Part V, the section addressing the administrative law judge's refusal to recontact the treating physician, now makes clear that this obligation arises whenever the information received from the treating doctor is inadequate, not when the record as a whole is inadequate. Nevertheless, the panel's rejection of Ms. White's claim that here the administrative law judge erred in failing to recontact Dr. Fanning is undisturbed.

Therefore, the petition for rehearing is denied.

AMENDED OPINION ON DENIAL OF REHEARING

Claimant Barbara White appeals from an order of the district court affirming the Commissioner's ruling that she is not entitled to Social Security disability benefits. She alleges three separate errors in the decision by the Commissioner's administrative court: 1) that it improperly disregarded the opinion of her treating physician; 2) that it did so without first seeking, as she claims it should have, additional information from that physician; and 3) that it wrongly discounted her subjective complaints of pain. Because we conclude not only that the administrative court offered legitimate and specific reasons for rejecting the treating physician's opinion, but also that it could reach that decision without recontacting the physician, and because we defer to the court's findings regarding Ms. White's subjective complaints of pain, we affirm.1

I. STANDARD OF REVIEW AND ALJ'S DECISION

We review the Commissioner's decision to determine whether his factual findings were supported by substantial evidence and whether he applied the correct legal standards. See Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotations omitted). In the course of our review, we may "neither reweigh the evidence nor substitute our judgment for that of the agency." Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991).

Ms. White alleged disability as of May 1995 due to pain in her lower back. The administrative law judge (ALJ) ruled first that she had a severe impairment—pain. Next the ALJ concluded, again in her favor, that she had no relevant past work history. But at the last step of the five-step sequential process, the ALJ found that she was not disabled. See Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.1988) (setting out the five-step sequential process). This conclusion rested on a finding that even though Ms. White suffered an impairment, she still could perform some light-duty work. The ALJ acknowledged that at step five in the sequential process the burden of proof shifts, and the Commissioner must show that the claimant retains the functional capacity to do specific jobs. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993).

II. MEDICAL FINDINGS AND VOCATIONAL ASSESSMENT

In connection with her application for benefits, several doctors (all of them consultants for the Commissioner) either examined Ms. White or reviewed her medical records. None disputed that she suffered from chronic back pain. But at least two doctors concluded that she had sufficient residual functional capacity to perform light work, albeit with some limitations and alterations due to the pain emanating from her lower back.2 A third consulting doctor, though not offering an opinion on Ms. White's ability to work, found on examination that Ms. White had a normal range of motion in her shoulders, elbows, wrists, and legs; that she could stand from a seated position in a reasonable amount of time; and that she could ambulate and perform fine motor movements without difficulty.

At the administrative hearing, a vocational expert testified that given Ms. White's residual functional capacity as described by the consulting physicians, there were numerous light-duty jobs available to her, including housekeeping, poultry dresser, electronics assembler, carding machine operator, and microfilm document preparer.

Ms. White's treating physician determined that Ms. White had a lower residual functional capacity than did the consulting physicians; that is, Ms. White's doctor imposed more restrictive limits on her (Ms. White's) ability to work. Principally, the treating physician indicated that Ms. White could lift no object weighing more than five pounds. (In contrast, the consulting physicians found that Ms. White could lift up to twenty pounds occasionally and up to ten pounds frequently.) The vocational expert testified that if the treating physician's limitation were accepted there were no jobs that Ms. White could perform. The ALJ rejected the treating physician's opinion with respect to Ms. White's work-related abilities. Ms. White contends this was error.

III. TREATING PHYSICIAN'S OPINION

Ms. White was first examined by her treating physician, Dr. Fanning, in September 1996, more than a year after Ms. White filed her initial application for benefits. Dr. Fanning's examination notes indicate that Ms. White came to see her with a form — one seeking an assessment of Ms. White's ability to perform work-related activities — to be filled out by a physician and submitted to the Commissioner.

Dr. Fanning reported that her examination of Ms. White revealed fair strength in various muscle groups, though she noticed that Ms. White seemed to favor her right leg when she walked. Dr. Fanning stated that Ms. White could lift five to ten pounds, a conclusion that rested on Ms. White's subjective assessment of her strength as well as an X-ray of her back, which revealed she was suffering from osteoarthritis with spondylolisthesis (i.e., a deformed vertebrae). Observing that Ms. White frequently shifted her weight during the examination, Dr. Fanning also stated that Ms. White could only sit ten to fifteen minutes at a time before needing to change her position. Dr. Fanning offered several other opinions as well, including that Ms. White could stand or walk for limited periods at any one time and that she faced various other restrictions with respect to working in or around heights, moving machinery, cold temperatures, or vibrations. The doctor did not explain what medical findings supported these conclusions.

In June 1997, Dr. Fanning completed a second assessment of Ms. White's ability to perform work-related activities. There is no indication in the record that this assessment was accompanied by a medical examination. Dr. Fanning now reported that Ms. White could lift no more than one to five pounds, a diminished capacity based, according to Dr. Fanning's notes, on Ms. White's own assertion that her hand was weak and that she could carry a milk container only a short distance. Dr. Fanning also repeated and expanded her earlier restrictions with respect to Ms. White's ability to sit or stand continuously as well her limited tolerance of heights, moving machinery, and cold temperatures. Again, Dr. Fanning did not identify the medical findings supporting these limitations. Finally, Dr. Fanning signed a note stating that Ms. White was unable to return to her then-current job due to chronic back pain.

Four months later, in October 1997, Dr. Fanning issued a second notice stating that Ms. White was unable to return to work. Once again there is no indication that the note followed a medical examination. Dr. Fanning's records reveal, however, that the pain medication she had earlier prescribed was helping Ms. White. A third notice to Ms. White's employer came in December 1997; Dr. Fanning's notes from that meeting confirm a diagnosis of chronic back pain but contain no additional information. In January 1998, Dr. Fanning took another X-ray of Ms. White's back. It showed her condition was unchanged from the previous X-ray that had been taken in 1996.

IV. DISREGARDING THE TREATING PHYSICIAN'S OPINION

The ALJ must give "controlling weight" to the treating physician's opinion, provided that opinion "is well-supported ... and is not inconsistent with other substantial evidence." 20 C.F.R. § 404.1527(d)(2). We have said that a treating physician's opinion is not dispositive on the ultimate issue of disability. Castellano, 26 F.3d at 1029. In addition to its consistency with other evidence, we examine a treating physician's opinion with several factors in mind: the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. 20 C.F.R. § 404.1527(d)(2).

Here the ALJ acknowledged Dr. Fanning's limited assessment of Ms. White's ability to perform work-related activities. But we agree with the district court that he set forth specific and legitimate reasons for discounting the doctor's opinion. He noted first the discrepancy between Dr. Fanning's very restrictive functional assessment and her contemporaneous examination of Ms. White, which revealed that Ms. White possessed fair physical strength in various muscle groupings....

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