UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TIMOTHY PISCIOTTA,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,*

Defendant-Appellee.

No. 05-3339

(D.C. No. 04-CV-2305-CM)

(D. Kan.)

ORDER AND JUDGMENT**

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

Plaintiff Timothy Pisciotta appeals from an order of the district court affirming the Commissioner's decision denying his application for Social Security Disability and Childhood Disability Benefits. He filed for these benefits on October 12, 2001. At the time of his application, he was 19 years old. He alleged disability due to attention deficit hyperactivity disorder (ADHD), learning disability, oppositional defiant disorder (ODD), depression, mild hearing loss, and knee joint problems.

The agency denied his applications initially and on reconsideration. On January 8, 2004, he received a de novo hearing before an administrative law judge (ALJ). The ALJ determined that he retained the residual functional capacity (RFC) to perform medium work "which is simple, routine, and non-repetitive." R., Vol. II, at 30. The ALJ further restricted his RFC by stating: "The environment must be non-complex with no fixed quotas. The claimant can have no supervisory responsibilities and must be able to alternate sitting and standing." Id.

The ALJ found that Mr. Pisciotta had no past relevant work to which he could return. But he concluded that Mr. Pisciotta "could be expected to make a vocational adjustment to work that exists in significant numbers in both the local and the national economies." Id. at 31. He gave as examples of such jobs, "duplicating machine operator, laundry folder, and microfilm mounter." Id. Given this capacity, the ALJ concluded, he was not disabled within the meaning of the Social Security Act. The Appeals Council denied review, making the ALJ's decision the Commissioner's final decision.

I. Standard of Review

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. See Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (internal quotation marks omitted).

The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. See id. at 751 n.2. If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient RFC to perform work in the national economy, given his age, education, and work experience. See id. at 751.

The key issue in Mr. Pisciotta's applications for Disability Insurance Benefits and Childhood Disability Benefits was whether he was "under a disability" within the statutory definition. See 42 U.S.C. §§ 402(d)(1)(G), 423(a)(1)(E). The time period relevant to this evaluation differed between the two types of benefits. As the ALJ explained, Mr. Pisciotta received Child's Insurance Benefits because of his mother's disability until April 2000, the month before the month in which he celebrated his 18th birthday. The earliest date on which he could receive Childhood Disability Benefits was May 1, 2000, and so the ALJ focused on the time period after that date. As for Disability Insurance Benefits, he was first insured on his own account on April 1, 2000; accordingly, the ALJ focused on the time period between that date and June 30, 2003, when he was last insured for Disability Insurance Benefits.

II. ALJ's Assessment of Mr. Pisciotta's RFC

On appeal Mr. Pisciotta raises a single issue: whether the ALJ properly assessed his RFC. Specifically, he complains that the ALJ unjustifiably rejected opinions expressed by his treating psychiatrist, Dr. Stanley, concerning his ability to work. Dr. Stanley stated his opinions in a letter dated September 21, 2001, and in a form entitled "Medical Opinion re: Ability to do Work-Related Activities (Mental)," completed January 17, 2004. R., Vol. II, at 312.

A. Dr. Stanley's Opinions

In the letter dated September 21, 2001, Dr. Stanley noted that Mr. Pisciotta had been hospitalized several times at Two Rivers Psychiatric Hospital for reevaluation and medication adjustments. He had provided medications and family counseling to him between these hospitalizations. During the period from approximately June 2000 until March 2001, Dr. Stanley explained, Mr. Pisciotta was "out of treatment, grandiose, rebellious, living away from home and failing in all areas, including repeated job failures." Id. at 253. Since that time, he had moved back in with his family, got back on his medication, and was "again making progress." Id.

But Dr. Stanley was less than sanguine concerning the nature of that progress. "If an examiner believed [Mr. Pisciotta's] grandiose self-assessment and unrealistic future plans," he opined, "he would indeed look as though he were doing well." Id. "Actually," however, "he was not doing well." Id. Dr. Stanley noted that Mr. Pisciotta was in special-education classes, worked parttime in a family restaurant, was "socially inept" and had "poor hygiene." Id. He assigned him a GAF score of 45.1

The form that Dr. Stanley completed in January 2004 asked him to provide an opinion concerning how Mr. Pisciotta's mental or emotional capacities were affected by his impairments. He was asked to rate his ability to perform certain activities, assigning them to one of four categories: "Unlimited or Very Good," meaning "Ability to function in this area is more than satisfactory"; "Good," meaning "Ability to function in this area is limited but satisfactory"; "Fair," meaning "Ability to function in this area is seriously limited, but is not precluded"; and "Poor or None," meaning Mr. Pisciotta had "[n]o useful ability to function in this area." Id. at 312. Dr. Stanley rated Mr. Pisciotta "good" in his ability to "[u]nderstand and remember very short and simple instructions"; "[c]arry out very short and simple instructions"; "[a]sk simple questions or request assistance"; and "[b]e aware of normal hazards and take appropriate precautions." Id. at 313-14. He rated Mr. Pisciotta "fair" in his ability to "[r]emember work-like procedures"; "[m]ake simple work-related decisions"; "[r]espond appropriately to changes in a routine work setting"; "[d]eal with stress of semiskilled and skilled work"; and to "[m]aintain socially appropriate behavior." Id. at 313-15. By far, the rating Dr. Stanley gave most frequently was "poor or none," rating Mr. Pisciotta at that level in his ability to "[m]aintain attention for two hour segment"; "[m]aintain regular attendance and be punctual within customary, usually strict tolerances"; "[s]ustain an ordinary routine without special supervision"; "[w]ork in coordination with or proximity to others without being unduly distracted"; "[c]omplete a normal workday and workweek without interruptions from psychologically based symptoms"; "[p]erform at a consistent pace without an unreasonable number and length of rest periods"; "[a]ccept instructions and respond appropriately to criticism from supervisors"; "[g]et along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes"; "[d]eal with normal work stress"; "[u]nderstand and remember detailed instructions"; "[c]arry out detailed instructions"; "[s]et realistic goals or make plans independently of others"; "[i]nteract appropriately with the general public"; "[a]dhere to basic standards of neatness and cleanliness"; "[t]ravel in unfamiliar place"; and "[u]se public transportation." Id. at 313-15.

In explanation of these ratings, Dr. Stanley noted that Mr. Pisciotta "is quite immature and dependent." Id. at 314. Despite his use of Ritalin, he remained distractable. Tests performed in 1999 showed that he had a low ability to concentrate. As evidence of his immaturity, Dr. Stanley noted that he collected children's Yu-Gi-Oh and Pokemon trading cards and had an unrealistic goal of attending wrestling school in California. In Dr. Stanley's opinion, he suffered from low self-concept, low self-confidence, and low motivation.

With regard to Mr. Pisciotta's ability to work, Dr. Stanley noted that he had never worked fulltime. When he worked at a restaurant, he performed a reduced workload and was given fewer tables than normal to wait on. His service was "not outstanding enough to get big tips." Id. at 315. Finally, Dr. Stanley opined that his impairments or treatment would cause him to be absent from work "[m]ore than three times a month." Id.

B. Evaluation of Treating Physician's Opinions

When evaluating the opinion of a treating physician, the ALJ must follow a sequential analysis. In the first step of this analysis, he should consider whether the opinion is well supported by medically acceptable clinical and laboratory diagnostic technique and is consistent with the other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks omitted). If the answer to both these questions is "yes," he must give the opinion controlling weight. See id. But even if he determines that the treating physician's opinion is not entitled to controlling weight, the ALJ must then consider whether the opinion should be rejected altogether, or assigned some lesser weight. He does this by applying the factors provided in 20 C.F.R. §§ 404.1527 and 416.927. See Watkins, 350 F.3d at 1300. These factors include:

(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.

Id. at 1301 (internal quotation marks omitted).

C. ALJ's Analysis

The ALJ addressed Dr. Stanley's opinions, finding them not controlling and assigning them little weight. He found the September 21, 2001, letter internally inconsistent, stating: "Dr. Stanley provided conflicting opinions as to the claimant's status, on one hand he stated that the claimant was 'not doing well,' was socially inept, and demonstrated poor hygiene." R., Vol. II, at 27. On the other hand, Dr. Stanley "admitted that the claimant had made progress when he went back on medication and returned to his mother." Id.

"Medical evidence may be discounted if it is internally inconsistent or inconsistent with other evidence." Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995) (citing 20 C.F.R. § 404.1527(c)). Although Dr. Stanley opined that Mr. Pisciotta was "not doing well," R., Vol. II, at 253, the only specific, negative factors he mentioned to support that conclusion were that he was "socially inept" and had "poor hygiene." Id. There was no indication concerning the severity of these factors or how they would affect Mr. Pisciotta's ability to work. In fact, Dr. Stanley's letter cited mostly positive factors concerning his current level of adjustment, noting that he was doing well enough to live with his family, to work in a restaurant, and to attend school. Dr. Stanley did mention that Mr. Pisciotta worked only parttime and was in special-education classes, but it is unclear whether these should even be considered negative factors, since Dr. Stanley presented them in the context of positive developments (his renewed participation in work and school). Also, the fact that his work was only parttime is unsurprising, given that he was still a high school student. Moreover, there is no explanation in the letter why Dr. Stanley assigned Mr. Pisciotta a GAF score of 45. On balance, we conclude that the ALJ permissibly assigned low weight to the unsupported and seemingly inconsistent opinions in this letter.

Turning to the ratings supplied in the form that Dr. Stanley completed in January 2004, the ALJ found the large number of "poor" ratings inconsistent with the remainder of the evidence, including the questionnaires accompanying the form and Mr. Pisciotta's experience at Job Corps. As we have noted, to be entitled to controlling weight, an opinion must not be inconsistent with the other substantial evidence in the record. See Watkins, 350 F.3d at 1300. In determining the weight to be given an opinion, the ALJ must consider the consistency between that opinion and the record as a whole. See 20 C.F.R. § 404.1527(d)(4). The ALJ thus provided a legitimate reason for assigning low weight to Dr. Stanley's opinion, provided of course that his analysis is supported by substantial evidence in the record.

And we do find substantial evidence to support the ALJ's assignment of little weight to Dr. Stanley's opinion. As the ALJ noted, Mr. Pisciotta and his mother completed questionnaires rating a variety of symptoms he experienced over a period of years, from March 2001 to November 2003. These questionnaires asked them to rank his psychiatric and behavioral symptoms on a scale of 1 to 6; 1 being least and 6 being worst. The ALJ noted that none of the questionnaires contained a "6" rating and he calculated that over 67% of the ratings were a "1"; that is, that the symptom listed posed no problem.

Other evidence in the record further supports the ALJ's analysis. During an initial assessment at Pathways Community Behavioral Healthcare done on September 15, 2000, during the period when Dr. Stanley described him as "failing in all areas," R., Vol. II, at 253, Mr. Pisciotta underwent a psychiatric assessment. He was diagnosed with ADHD by history, and history of major depression. Id. at 272. He was assessed as having mild to moderate problems with insight, a below-average intellect, and occasional inability to concentrate. The examiner, Julie Broyle, a licensed professional counselor, assigned him a GAF score of 65.2

On February 7, 2001, Ms. Broyle wrote a letter to the team at Mr. Pisciotta's high school in charge of assessing his special education needs. She noted her belief that he needed to work on social skills, increasing independence, and self-motivation and self-reliance, but that he "can perform at a higher level than he is currently." Id. at 236. She indicated that he was "helpful to others and has a good sense of humor," but would "need some extra help in particular academic areas as well as vocational training and guidance." Id.

In July 2001 Mr. Pisciotta received a psychological evaluation from Alan R. Israel, Ph.D. The opinions expressed in Dr. Israel's evaluation were considerably more detailed, thorough, and internally consistent than those contained in the letter and form completed by Dr. Stanley. Dr. Israel noted the considerable improvement in Mr. Pisciotta's ability to get along with his fellow students and teachers over the prior six months. He noted that he had held the same weekend job for the last seven months, and was looking for a second job during the week. Mr. Pisciotta's mother told Dr. Israel that although he had difficulty concentrating when not on his medication, and continued to have some difficulty sleeping and some mild anxiety, his behavior at home and at work was more appropriate than it had been in the past.

Mr. Pisciotta told Dr. Israel that he was "capable of grocery shopping, [was] learning to drive, [had] appropriate hygiene, [did] tasks around the house, and [could] follow work related instructions." Id. at 244-45. Mr. Pisciotta presented himself at the interview with appropriate hygiene. He acknowledged becoming impulsive at times, being inattentive to details, and having trouble focusing, but stated that his medication helped to control these problems. Although Dr. Israel noted Mr. Pisciotta's previous psychiatric diagnoses, he gave him only a single current diagnosis: "Attention Deficit/Hyperactivity Disorder, combined type." Id. at 245. He observed that at the time of the examination, Mr. Pisciotta was "attending school full-time, working part-time, living at home with family, relating to friends, and engaging in normal teenage activities." Id.

One of Mr. Pisciotta's teachers noted in October 2001 that he needed "direct and constant supervision" and would "always need support on the job or in school," and was not capable of supporting himself at that time. Id. at 138. But another teacher stated at the same time that she had seen him mature greatly during the previous four years. Mr. Pisciotta's notes from the Pathways program showed considerable improvement in his ability to cope with life. His discharge summary from Pathways in August 2003 noted mixed progress overall, with Mr. Pisciotta having maintained longterm, parttime employment, graduated from high school, and become independent in major life areas, but still very dependent on others for daily living. When he worked in the Job Corps, he did not request any accommodation

In sum, the record provides substantial evidence to support the ALJ's evaluation of Dr. Stanley's opinions concerning Mr. Pisciotta's RFC. The judgment of the district court is therefore AFFIRMED.

Entered for the Court

Harris L Hartz

Circuit Judge