## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 10 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAULINE DOYAL,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner of the Social Security Administration,

Defendant-Appellee. No. 02-7106

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 01-CV-400-P)

Submitted on the briefs: Catherine Cain Taylor of Perrine, McGivern, Redeman n, Reid, Berry & Taylor, P.L.L.C., Tulsa, Oklahoma, for Plaintiff-Appellant. Sheldon J. Sperling, United States Attorney, Cheryl Triplett, Assistant United States Attorney, Tina M. Waddell, Regional Chief Co unsel, Region VI, Michael McGaughran, Deputy Regional Chief Counsel, and Stev en A. Ford, Assistant Regional Counsel, Office of the General Counsel, So cial Security Administration, Dallas, Texas, for Defendant-Appellee.

Before HARTZ , O’BRIEN , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision 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.

2 Specifically, the ALJ was to “obtain additional evi dence concerning the claimant’s apparent mental and bilateral hand impai rments and inflammatory dermatitis; to evaluate the claimant’s subjective c omplaints and provide rationale [sic] in accordance with disability regulations pertaining to evaluation of symptoms; to evaluate the claimant’s mental impairm ents in accordance with 20 C.F.R. § 416.920a; to give further consideration to the claimant’s maximum residual functional capacity; if necessary, to obta in evidence from a medical expert to clarify the nature and severity of the cl aimant’s impairments; and to (continued...) -2- Plaintiff-appellant Pauline Doyal appeals from an o rder of the district court affirming the Commissioner’s decision denying her application for Supplemental Security Income benefits (SSI). 1 Appellant filed for SSI benefits in April 1997. She alleges disability based on obesity, chronic lo w back and hip pain, fasciitis affecting the hands and resulting in decreased grip strength, mental problems, and a skin impairment. The agency denied her applicati ons initially and on reconsideration. On November 19, 1998, appellant received a de novo hearing before an administrative law judge (ALJ). The ALJ denied Ms. Doyal’s claim for SSI benefits. On administrative appeal, the Appeals Co uncil vacated the ALJ’s decision and remanded to the ALJ for further develo pment of the record and consideration of a number of issues. 22 (...continued)

obtain supplemental evidence from a vocational expe rt.” Aplt. App. at 30. -3- The ALJ held a second hearing on December 12, 2000, at which additional evidence was received. He subsequently entered a d ecision again denying Ms. Doyal’s claim for SSI benefits, determining that she retained the residual functional capacity (RFC) to perform her past relev ant work as a housecleaner and sewing machine operator. The Appeals Council d enied review, making the ALJ’s decision the Commissioner’s final decision fo r purposes 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. Andrade v. Sec’y of Health & Human
Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantia l evidence is “such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Fowler v. Bowen , 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations omitted). The Commissioner follows a five-step sequential eva luation process to determine whether a claimant is disabled. Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The claimant bears the bu rden of establishing a prima facie case of disability at steps one throu gh four. Id. at 751 & n.2. Ms. Doyal’s claim was denied at step four of this s equential process.3 She does allude briefly to a deficiency in the vocational expert’s testimony

concerning the specifics of the demands of her pastrelevant work, but her argument on this point appears to be designed primarily to forestall any claim that the ALJ satisfied the procedural requirements by si mply incorporating the vocational expert’s testimony. See Aplt. Br. at 9. -4- Ms. Doyal raises two basic arguments on appeal. Fi rst, she argues that the ALJ’s analysis of her RFC was deficient. Second, s he contends that the ALJ failed to give proper consideration to the opinion of her treating physician.

I. Ms. Doyal words her first issue broadly, contending she “does not retain the [RFC] to perform substantial gainful activity.” Ap lt. Br. at 7. She makes no specific argument concerning sufficiency of the evi dence to support the ALJ’s finding that she can meet the demands of her past r elevant work. Instead, she targets the ALJ’s alleged failure to make specific findings concerning these demands. 3 Ms. Doyal’s argument is based on our decision in Winfrey v. Chater , 92 F.3d 1017 (10th Cir. 1996). In that case, we no ted the three phases of evaluation the ALJ must complete as part of step fo ur of the sequential analysis: In the first phase, the ALJ must evaluate a claiman t’s physical and mental residual functional capacity (RFC), and in t he second phase, he must determine the physical and mental demands o f the claimant’s past relevant work. In the final phase, the ALJ de termines whether the claimant has the ability to meet the job demand s found in phase-5-

two despite the mental and/or physical limitations found in phase one. At each of these phases, the ALJ must make sp ecific findings. Id. at 1023 (citations omitted). As Ms. Doyal concedes, the ALJ made the RFC finding s required by phase one of this analysis. Phase two required him to ma ke specific findings concerning the physical and mental demands of her past relevan t work. The ALJ stated: The vocational expert testified that the claimant’s past relevant work as a housecleaner and sewing machine operator wouldbe classified as light and unskilled, and her past relevant work as an activities director would be classified as light and semiskill ed. . . . The vocational expert indicated that the claimant’s pas t relevant work as a housecleaner and sewing machine operator did not require lifting more than 20 pounds, walking for prolonged periods, or performing tasks requiring bilateral normal grip strength. Aplt. App. at 34. Phase three required the ALJ to reach a conclusion concerning whether Ms. Doyal could satisfy the demands of her past rel evant work, based on his findings in phases one and two. The ALJ concluded that she could: The impartial vocational expert offered testimony i ndicating that given her particular residual functional capacity, the claimant can perform past relevant work. The vocational expert added that there is no variance between the description of these job s found in the Dictionary of Occupational Titles and the claimant’s residual functional capacity (S.S.R. 00-4p). Because Ms. Do yal’s past relevant work did not require the performance of wo rk activities precluded by her medically determinable impairments , I conclude that she is able to perform her past relevant work as a housecleaner and sewing machine operator. Id.-6-

Ms. Doyal complains that the ALJ simply relied on t he opinion of the vocational expert (VE) as to the demands of her pas t relevant work, without making the proper findings required by the remainin g phases of the analysis. It is improper for an ALJ to make RFC findings and then t o delegate the remaining phases of the step four analysis to the vocational expert, because in such cases, “the remainder of the step four assessment takes pl ace in the VE’s head” and “we are left with nothing to review.” Winfrey , 92 F.3d at 1025. That is not what occurred here, however. The ALJ did not delegate t he analysis to the vocational expert; instead, he quoted the VE’s testimony appro vingly, in support of his own findings at phases two and three of the analysis. There was nothing improper about this. An “ALJ may rely on information suppli ed by the VE at step four.” Id. While the ALJ did not use the phrase “I find” in co nnection with his conclusion in the second phase of the analysis, the form of words should not obscure the substance of what the ALJ actually did. The ALJ’s findings were adequate here to satisfy the step four requirements articulated in Winfrey

.

II. Ms. Doyal also contends that the ALJ improperly dis counted the opinion of her physician, Dr. Webb, concerning her RFC. In a medical source statement, Dr. Webb opined that Ms. Doyal could frequently lift orcarry no more than ten-7-

pounds, could stand or walk no more than four hours in a day or thirty minutes continuously, could sit for no more than two hours a day or continuously, and should never climb, stoop, kneel, crouch, crawl, orhandle or finger objects. Aplt. App. at 340-41. This opinion represents a considerably more restric ted view of Ms. Doyal’s capabilities than the RFC values assigned by the AL J. The ALJ found that Ms. Doyal was capable of lifting or carrying a maxi mum of twenty pounds and carrying up to ten pounds on a regular basis. The only limitations he placed on her ability to perform the other exertional tasks a ssociated with light work were that she not walk for prolonged periods (over fifte en minutes at a time) and that she not perform tasks that require normal grip stre ngth bilaterally. The ALJ dealt briefly in his decision with Dr. Webb ’s statement, along with another RFC opinion completed by an occupational th erapist. He stated: The medical record contains opinions from treating and examining physicians indicating that the claimant has restric ted ability to remain on her feet for prolonged periods and lift and carry (Exhibits 6F [occupational therapist RFC], 16F [Dr. Webb’s RFC]) . It is noted that the claimant had a Functional Capacity evaluat ion in 1996, just before she was discharged from her pain management program. That evaluation indicated that she was able to perform s elected light work; however, the evaluator commented, “It is felt that Ms. Doyal’s performance in the Program and Functional Capacitie s Evaluation is not a true indication of her abilities, and she is capable of more.” It was noted that the claimant had had good participat ion in the pain management program but showed little change in actu al behavior. For example, she continued to walk with a crutch. The claimant was described as “extremely disability-focused.” The d ischarge report-8-

stated, “Ms. Doyal appears to be receiving secondary gain from her pain behaviors and disabilities, and is thereby ach ieving more benefit in continuing such behaviors rather than by discont inuing them.” Id. at 33-34. Under Social Security Administration regulations, the opinion of a treating physician concerning the nature and extent of a cla imant’s disability is entitled to “controlling weight” when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and is “not i nconsistent with the other substantial evidence in [the claimant’s] case recor d.” 20 C.F.R. § 416.927(d)(2). An ALJ may disregard a treating physician’s opinion , however, if it is not so supported. Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994). In all cases, the regulations re quire that the ALJ “give good reasons” in the notice of determination or opinion for the weight that is given the treating physician’s opinion. 20 C.F.R. § 416.927(d)(2). See Drapeau v.
Massanari , 255 F.3d 1211, 1213 (10th Cir. 2001) (quotation o mitted) (requiring the ALJ to supply “specific, legitimate reasons” fo r rejecting the opinion of the treating physician). Ms. Doyal contends that the ALJ failed to give Dr. Webb’s opinion concerning her RFC the controlling weight to which it was entitled, and in any event, failed to supply specific, legitimate reason s for rejecting it. The threshold question is whether Dr. Webb was in fact a “treatin g physician” within the-9-

meaning of the regulations. If not, his opinion wa s not entitled to the presumption of controlling weight accorded to the p roperly supported opinion of a treating physician. 20 C.F.R. § 416.927(d), (d)(2)

. The treating physician’s opinion is given particula r weight because of his “unique perspective to the medical evidence that ca nnot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizati ons.” 20 C.F.R. § 416.927(d)(2). This requires a relationship of both duration and f requency. “The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the cl aimant than will a person who has examined a claimant but once, or who has only s een the claimant’s medical records.” Barker v. Shalala , 40 F.3d 789, 794 (6th Cir. 1994) (emphasis added)

. As the Supreme Court recently observed, “the assump tion that the opinions of a treating physician warrant greater credit that the opinions of [other experts] may make scant sense when, for example, the relationshi p between the claimant and the treating physician has been of short duration.” Black & Decker Disability Plan v. Nord , No. 02-469, slip op. at 9, 2003 WL 21210418 (U.S. May 27, 2003). Moreover, a longstanding treatment relationship pro vides some assurance that the-10-

opinion has been formed for purposes of treatment and not simply to facilitate the obtaining of benefits. A physician’s opinion is therefore not entitled to controlling weight on the basis of a fleeting relationship, or merely because the claimant designates the physician as her treating source. Absent an indication that an examining physician presented “the only medical evidence submitted pertaining to the relevant time period,” the opinion of an examining physician who only saw the claimant once is not entitled to the sort of defere ntial treatment accorded to a treating physician’s opinion. Reid v. Chater , 71 F.3d 372, 374 (10th Cir. 1995) (emphasis added). In determining whether a physician’s opinion is ent itled to controlling weight, the Social Security Administration regulati ons look to the “[l]ength of the treatment relationship and the frequency of examination,” and the “[n]ature and extent of the treatment relationship.” 20 C.F.R. § 416.927(d)(2)(i), (ii). A physician’s opinion is deemed entitled to special w eight as that of a “treating source” when he has seen the claimant “a number of times and long enough to have obtained a longitudinal picture of [the claima nt’s] impairment,” taking into consideration “the treatment the source has provide d” and “the kinds and extent of examinations and testing the source has performe d or ordered from specialists and independent laboratories.” Id.-11-

Ms. Doyal’s assertion that Dr. Webb served as her treating physician is based on evidence from two divergent periods, in 19 93 and again in 2000. We consider, first, the 1993 medical history. The med ical record contains exactly one record prepared by Dr. Webb during that period. OnNovember 9, 1993, Dr. Webb referred Ms. Doyal for whirlpool treatment s. Aplt. App. at 222. The referral form does not indicate whether Dr. Webb ex amined Ms. Doyal prior to prescribing the treatments, or whether he conducted any follow-up during or after the treatments. Physical therapy notes for Novembe r and December 1993 list Dr. Webb as Ms. Doyal’s physician, but there is no indication of any specific treatment he provided during this time period. In an initial disability report Ms. Doyal completed for the agency, she was asked to identify her treating physicians. She lis ted ten physicians, physicians’ assistants, and physical therapists she had seen, d ating back to 1993, but did not mention Dr. Webb. Id. at 173-85. On reconsideration, she was asked whether she had seen any physicians since filing her claim. Sh e did not mention Dr. Webb. Id. at 208. At Ms. Doyal’s hearing on November 19, 1998, she wa s asked to identify her primary treating physicians. She listed four d octors, but never mentioned Dr. Webb. Id. at 102. When asked if she had seen any other doct ors recently, she identified Dr. Tidwell, but again did not mention Dr. Webb. Id.-12-

Turning to the period beginning in 2000, the record contains a record of a single visit to Dr. Webb, on September 20, 2000. Id. at 342. During this visit, Dr. Webb apparently examined Ms. Doyal and prepareda list of diagnoses. There is no indication, however, that he provided any tre atment. At the December 12, 2000 hearing, Ms. Doyal stated she had recently started seeing Dr. Webb. Id. at 67. When asked how many times she had seen him, Ms. Doyal provided details of her daughter’s p ast work for Dr. Webb, of an occasion when she shook Dr. Webb’s hand and he aske d her what had happened to her hands, and of some advice he gave her to sto p smoking, along with some samples of Nicotrol. Id. at 67-68. There was no indication these “visits” occurred in an office environment, pursuant to an appointment, or were anything but social encounters. Ms. Doyal conceded that the record contained only a single medical record, from the September 20, 2000 visit, but she claimed to have seen Dr. Webb on other unspecified occasions. Id. at 68. It is not clear whether these other unspecified occasions were the social visits she mentioned, but no medical evidence was presented to document any visits or co nsultations other than the September 20, 2000 visit. The record thus fails to reflect that Dr. Webb was Ms. Doyal’s treating physician in either 1993 or 2000. This being the c ase, the ALJ was not required to give Dr. Webb’s opinion controlling weight, or t o give specific reasons for not-13-

giving it controlling weight. To be sure, the Soci al Security Administration “may consider an acceptable medical source who has treat ed or evaluated you only a few times or only after long intervals ( e.g. twice a year) to be your treating source if the nature and frequency of the treatment or evalu ation is typical for your condition(s).” 20 C.F.R. § 416.902 (definitions) ( emphasis added). But in this case, there was no showing that Ms. Doyal’s conditi ons required her to see Dr. Webb only twice in seven years. “We will not consi der an acceptable medical source to be your treating source if your relations hip with the source is [based] solely on your need to obtain a report in support of your claim for disability.” Id. The ALJ could reasonably have concluded that Dr. We bb’s September 20, 2000 report fulfilled no purpose other than to support aclaim of disability. Even though Dr. Webb was not a treating physician, the ALJ was still required to consider his opinion, see 20 C.F.R. § 416.927(d) (“Regardless of its source, we will evaluate every medical opinion we r eceive”); SSR 96-5P, 1996 WL 374183, at *1 (“[O]pinions from any medical sour ce about issues reserved to the Commissioner must never be ignored.”), and to p rovide specific, legitimate reasons for rejecting it, Drapeau , 255 F.3d at 1213. The regulations required the ALJ to consider severa l specific factors in weighing a medical opinion. See 20 C.F.R. § 416.927(d)(1)-(6). The ALJ rejected Dr. Webb’s opinion in reliance on the fourth such factor, consistency of-14-

the opinion with the evidence as a whole. Id. § 416.927(d)(4). Substantial evidence supports his decision on this point, and w e conclude that the ALJ’s rejection of Dr. Webb’s opinion was properly supported in the record.

III. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.