Tuttle v. Commissioner, SSA

T
                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 22, 2021
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 LAURA TUTTLE,

       Plaintiff - Appellant,

 v.                                                          No. 20-5048
                                                   (D.C. No. 4-19-CV-00088-FHM)
 COMMISSIONER, SSA,                                          (N.D. Okla.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.
                 _________________________________

      Laura Tuttle appeals from an order of the district court affirming the Social

Security Commissioner’s denial of her applications for disability insurance benefits

and supplemental security income under the Social Security Act. Exercising

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), 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 This order and judgment is not binding precedent,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

A.    Relevant medical history

      Ms. Tuttle is a high school graduate with two years of college courses, and her

past work experience includes cashier-checker. She claimed she became disabled on

February 1, 2015, when she was forty-three years old, due to severe anxiety, severe

depression, and bulging discs. This appeal, however, involves only her physical

impairments. Those stemmed from a car accident on November 18, 2015. Ms. Tuttle

went to the emergency room that day, where an x-ray showed marked degenerative

disc disease at C5-C6. She was released with muscle relaxants and pain medicine.

      Thereafter, Ms. Tuttle saw a chiropractor a number of times for neck and

shoulder pain. The chiropractor referred Ms. Tuttle to Kris Parchuri, D.O., whom she

saw monthly from April to September 2016 for complaints of neck pain with

numbness and tingling in the upper extremities, and pain in the low back and right

leg. At the April and May visits, Dr. Parchuri reviewed MRIs of Ms. Tuttle’s

cervical and lumbar spine.1 His examination findings were mostly consistent through

the period: diffuse pain in the cervicothoracic junction limiting range of motion;



      1
        The March 31, 2016 cervical MRI showed a subtle disc bulge at C4-C5 with
borderline narrowing of the central canal and slight foraminal narrowing; a larger
disc protrusion at C5-C6 with end-plate spurring, moderate foraminal narrowing,
mild central-canal narrowing, and possible slight contact with exiting C6 nerves; and
a shallow disc protrusion at C6-C7 with borderline to minimal foraminal narrowing
and subnormal central-canal caliber. The April 12, 2016 MRI of Ms. Tuttle’s lumbar
spine showed disc bulges at L1-L2 and L3-L4; borderline L3-L4 foraminal
narrowing; a patent (open) central canal; and disc protrusion at L4-L5 with facet
hypertrophy and mild foraminal narrowing.
                                          2
diffuse lumbar pain, worse with extension; some dysesthesias (loss of sensation) in

the hands bilaterally and the right thigh (although at the September visit he noted her

upper and lower extremities had intact sensation); positive straight-leg raise for back,

buttock, and thigh pain; no motor deficits; and symmetric reflexes at 2/4.

Dr. Parchuri’s assessments were also consistent through the period—cervical

radiculopathy secondary to C5-C6 disc protrusion, cervical stenosis, neck pain,

lumbar radiculopathy, and low back pain.

      Dr. Parchuri’s treatment comprised pain medications (Norco and Mobic), a

muscle relaxant (Zanaflex), and a series of three cervical and two lumbar epidural

injections in April, May, and August 2016. By the June office visit, Dr. Parchuri

thought Ms. Tuttle had exhausted conservative care and discussed the option of

cervical discectomy, decompression, and fusion. But Ms. Tuttle elected to continue

with conservative care, including continued chiropractic visits. The epidural

injections provided some measure of temporary improvement for her neck pain—

Ms. Tuttle reported a 30% improvement in May, and by September she was

“improved” but still had “some residual neck and back pain.” Aplt. App., Vol. 5

at 520. Throughout the period, however, she continued to complain of low-back pain

radiating down her leg. At the September office visit, Dr. Parchuri discharged

Ms. Tuttle from care, reiterating his opinion that surgery would be the definitive

treatment for her neck pain.

      Ms. Tuttle returned to Dr. Parchuri on November 21, 2016, primarily

complaining of neck and radiating arm pain, but also of back pain. She decided to

                                           3
proceed with neck surgery. The same day, Dr. Parchuri completed a residual

functional capacity (RFC) evaluation, opining that because of pain due to a “C5-C6

disc herniation,” Ms. Tuttle could sit, stand or walk, and use her arms and hands for

no more than two to three hours each in an eight-hour workday.

Id. at 490.

      On January 3, 2017, Dr. Parchuri performed the neck surgery, noting that there

was “[m]uch more significant spondylosis . . . than on the preoperative MRI,” and a

“severely stenotic central canal and lateral recess region due to uncovertebral joint

hypertrophy.”

Id. at 506.

      On January 16, 2017, Dr. Parchuri saw Ms. Tuttle for a follow-up, noting that

“[o]verall she is doing well,” she “reports no issues,” “her pain is getting better,” and

she had “a non-antalgic gait,” did not use an “assistive device,” and was

“neurologically intact.”

Id. at 526.

Dr. Parchuri saw Ms. Tuttle a final time on

February 20, 2017, and reported that she “continues to do well with regard to her

neck,” “feel[s] her pain is improving,” and “states that now that her neck is better she

has noticed more pain [in] her low back along with muscle tightness.”

Id. at 491.

Dr. Parchuri’s examination showed Ms. Tuttle was “[p]ositive for shoulder pain, hip

pain, muscle weakness, neck pain and back pain,” but was in “no acute distress,” had

“a non-antalgic gait,” used “no assistive device,” and was “neurologically intact.”

Id.

He found she

had “diffuse pain to the lumbar spine graded as mild with paraspinal

musculature tightness.”

Id. Dr. Parchuri concluded

that Ms. Tuttle “seem[ed] to be

doing well with regard to her neck at this time.”

Id. at 492.

4

B.    Agency proceedings

      The agency denied Ms. Tuttle’s claims initially. She requested a hearing

before an administrative law judge (ALJ), which was held in March 2018. Ms. Tuttle

testified as follows about her physical limitations: It hurts to sit or stand more than

30 to 45 minutes and she can only walk about a block before back pain forces her to

stop. She has hand, finger, and right leg numbness. The hand numbness affects her

ability to grip, hold, and manipulate things. She can pick up a gallon of milk but

must set it down immediately or her arm starts to shake. Despite the neck surgery,

she still has a lot of neck pain, which gives her headaches. Medication controls her

pain for a little while. She does only light cleaning and usually uses a microwave to

cook. It hurts to lift her arms over her head and to bend down to tie her shoes.

      In a written decision, the ALJ followed the five-step sequential evaluation

process used to review disability claims. See Trimiar v. Sullivan, 

966 F.2d 1326

,

1329 (10th Cir. 1992) (explaining five-step process). The ALJ found Ms. Tuttle had

several severe impairments—degenerative disc disease status post cervical surgery,

depression, and pain disorder—but none of them, alone or in combination, met or

medically equaled the severity of one of the impairments listed as disabling in the

Commissioner’s regulations. The ALJ then found Ms. Tuttle had the RFC to perform

sedentary work with additional limitations. In relevant part, the ALJ found

Ms. Tuttle was able to lift and/or carry ten pounds occasionally and up to ten pounds

frequently; could stand and/or walk at least two hours and sit at least six hours in an



                                            5
eight-hour workday; had to avoid work above the shoulder level; and could perform

simple, repetitive tasks.

      In reaching that RFC finding, the ALJ gave no weight to Dr. Parchuri’s more

restrictive pre-surgery RFC opinion because it was inconsistent with his post-surgery

examination findings that Ms. Tuttle’s neck was doing well, she had no problem

other than mild lumbar pain, and she was neurologically intact.2 The ALJ also found

that while Ms. Tuttle’s medically determinable impairments could be expected to

produce the symptoms she described, her “statements concerning the intensity,

persistence and limiting effects of these symptoms [were] not entirely consistent with

the medical evidence and other evidence in the record.” Aplt. App., Vol. 2 at 26.

      Next, the ALJ found that although Ms. Tuttle’s RFC precluded the

performance of her past relevant work as a cashier-checker, she could perform other

work that exists in significant numbers in the national economy, such as touch up

screener, document preparer, and final assembler. Therefore, the ALJ found

Ms. Tuttle not disabled at step five of the evaluation process.

      After exhausting her administrative remedies, Ms. Tuttle filed a civil action

seeking review. The district court affirmed the ALJ’s decision, and Ms. Tuttle

appeals.




      2
         At the hearing, a vocational expert had testified that a person with the
limitations in Dr. Parchuri’s RFC opinion, in particular an inability to sit or
stand/walk for more than three hours each, would be unable to work at any jobs.
                                           6
                                    II. Discussion

      Our task in this appeal is limited to determining whether substantial evidence

supports the ALJ’s factual findings and whether the ALJ applied the correct legal

standards. Barnett v. Apfel, 

231 F.3d 687

, 689 (10th Cir. 2000). “[T]he threshold for

such evidentiary sufficiency is not high.” Biestek v. Berryhill, 

139 S. Ct. 1148

, 1154

(2019). Substantial evidence is “more than a mere scintilla”; it means “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.” 

Barnett, 231 F.3d at 689

(internal

quotation marks omitted).

      Ms. Tuttle raises two arguments: (1) the ALJ did not give legitimate reasons

for rejecting Dr. Parchuri’s RFC opinion and (2) the ALJ did not properly evaluate

Ms. Tuttle’s statements regarding her limitations. We disagree with both

contentions.

A.    Dr. Parchuri’s opinion

      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

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2).3 If a treating-source opinion is not entitled to controlling weight, an


      3
        The guidelines in §§ 404.1527 and 416.927 apply because Ms. Tuttle filed
her benefits claims before March 27, 2017. Different guidelines apply to the
                                           7
ALJ must then determine if it is entitled to any weight by using factors drawn from

§§ 404.1527(c) and 416.927(c).4 An ALJ is not required to discuss all of those

factors but must provide “good reasons” for the weight assigned. Oldham v. Astrue,

509 F.3d 1254

, 1258 (10th Cir. 2007).

      Ms. Tuttle argues that the ALJ’s reason for giving no weight to Dr. Parchuri’s

RFC opinion—that it was inconsistent with his post-surgery examinations—was not a

good reason, because that opinion was consistent with Dr. Parchuri’s pre-surgery

examinations. She contends that by the time of Dr. Parchuri’s RFC opinion on

November 21, 2016, just over twelve months had passed since the November 18,

2015 car accident that caused her physical impairments. She therefore posits that the

ALJ should have accepted Dr. Parchuri’s RFC opinion and found her disabled prior

to her surgery, because “disability” is defined in relevant part as the “inability to

engage in any substantial gainful activity by reason of any medically determinable



evaluation of claims filed on or after that date. See 20 C.F.R. §§ 404.1520c,
416.920c.
      4
          We have summarized those factors as:

      (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).
                                            8
physical or mental impairment . . . which has lasted . . . for a continuous period of not

less than 12 months,” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (emphasis added).

       This argument suggests entitlement to a closed period of disability. “In a

‘closed period’ case, the decision maker determines that a new applicant for

disability benefits was disabled for a finite period of time which started and stopped

prior to the date of his decision.” Shepherd v. Apfel, 

184 F.3d 1196

, 1199 n.2

(10th Cir. 1999) (some internal quotation marks omitted). But in this court,

Ms. Tuttle has not expressly referred to a closed period of disability. And in the

district court, she appears to have ultimately abandoned a closed-period theory.

There, she argued in her opening brief that the ALJ failed to consider whether she

“was continuously disabled for twelve months prior to the date she was last insured,

December 31, 2016, and the date of her surgery, January 3, 2017.” Aplt. App., Vol. 1

at 12. But in her reply brief she asserted she “never argued that this [is] a ‘closed

period’ case,” while making an additional, apparently contradictory assertion later in

the same paragraph that “proper consideration of the pre-surgery evidence could

result in a finding of disability, even if it is for a closed period.”

Id. at 38.

The

district court accepted the first assertion as “confirm[ation] that [Ms. Tuttle] is not

arguing for a closed period of disability.”

Id. at 44

n.2. The court said nothing about

the second assertion.

       Based on this apparent waiver of a closed-period theory in the district court

and the district court’s treatment of it as waived, we may decline to consider it on

appeal. See Wall v. Astrue, 

561 F.3d 1048

, 1066-67 (10th Cir. 2009) (refusing to

                                             9
consider an argument that a social security claimant had waived in the district court

through “‘perfunctory presentation’” and which the district court considered waived).

But even overlooking waiver and treating Ms. Tuttle’s appellate argument as one

based on an entitlement to a closed period of benefits, we reject it. Nothing in

Dr. Parchuri’s RFC opinion indicates when the proffered limitations began, let alone

that they began at least twelve months prior to either the neck surgery or his

post-surgery findings that the surgery was effective with respect to her neck pain and

Ms. Tuttle had only mild lumbar pain and muscle tightness. Moreover, Dr. Parchuri

gave his RFC opinion when Ms. Tuttle’s pain was severe enough that she finally

elected surgery. Under these circumstances, it was appropriate for the ALJ to

evaluate that opinion in light of the improvements that Ms. Tuttle’s neck surgery

provided and to conclude that Dr. Parchuri’s post-surgery findings rendered his

pre-surgery RFC opinion stale. See Chapo v. Astrue, 

682 F.3d 1285

, 1292-93

(10th Cir. 2012) (faulting ALJ for relying on stale medical opinion regarding

claimant’s limitations). Accordingly, we see no legal error in the ALJ’s finding that

the pre-surgery RFC opinion was entitled to no weight.

      We might alternatively construe Ms. Tuttle’s appellate argument to be that

Dr. Parchuri’s RFC opinion establishes she was disabled for at least a continuous

12-month period prior to her surgery, and consequently the ALJ should have found

her disabled as of the date of his decision and entitled to ongoing benefits. But this

argument fails for two independent reasons: (1) Dr. Parchuri’s opinion lacks any

temporal component and (2) Ms. Tuttle cites no authority for the proposition that

                                           10
being disabled for what is essentially a closed period entitles a claimant to an award

of ongoing benefits, and we are aware of none.

B.    Ms. Tuttle’s subjective complaints

      As noted above, the ALJ found that while Ms. Tuttle’s medically determinable

impairments could be expected to produce the symptoms she described, her

“statements concerning the intensity, persistence and limiting effects of these

symptoms [were] not entirely consistent with the medical evidence and other

evidence in the record.” Aplt. App., Vol. 2 at 26. Ms. Tuttle argues that the ALJ

committed legal error by (1) not “closely and affirmatively link[ing]” this finding “to

substantial evidence,” Kepler v. Chater, 

68 F.3d 387

, 391 (10th Cir. 1995) (internal

quotation marks omitted); (2) evaluating her symptoms based solely on the objective

medical evidence, which is prohibited when finding a claimant not disabled, see

SSR 16-3P, 

2017 WL 5180304

, at *5 (Oct. 25, 2017) (“We will not evaluate an

individual’s symptoms based solely on objective medical evidence unless that

objective medical evidence supports a finding that the individual is disabled.”); and

(3) not discussing her daily activities, location of pain, aggravating factors, and

treatment, which are among the factors listed in 20 C.F.R. §§ 404.1529(c)(3) and

416.929(c)(3) that an ALJ should consider when evaluating symptoms and

determining how much they limit the capacity to work. We disagree.

      When evaluating the functional effects of a claimant’s subjective symptoms,

an ALJ need not engage in “a formalistic factor-by-factor recitation of the evidence”;

as “long as the ALJ sets forth the specific evidence he relies on in evaluating the

                                           11
claimant’s credibility,” he satisfies “the dictates of Kepler.” Qualls v. Apfel,

206 F.3d 1368

, 1372 (10th Cir. 2000).5 In this respect, “common sense, not technical

perfection, is our guide.” Keyes-Zachary v. Astrue, 

695 F.3d 1156

, 1167 (10th Cir.

2012).

         The ALJ met this standard. The ALJ reviewed the medical evidence in detail

and, for each portion of it, found that the evidence was inconsistent with the alleged

severity of Ms. Tuttle’s complaints at the time of the hearing and did not contradict

his less-than-sedentary RFC finding. Ms. Tuttle complains that the ALJ did not

explain in detail why the medical evidence was inconsistent with her subjective report

of her limitations, and she points to several pieces of evidence she claims are

consistent with her subjective statements: consistent neck and low back pain;

dysesthesias in her hands and right leg; positive straight-leg-raise test; and

Dr. Parchuri’s findings during the neck surgery that there was “[m]uch more

significant spondylosis . . . than on the preoperative MRI” and a “severely stenotic

central canal and lateral recess region due to uncovertebral joint hypertrophy,” Aplt.

App., Vol. 5 at 506.

         But except for Dr. Parchuri’s findings during the surgery, the ALJ expressly

considered all the evidence Ms. Tuttle identifies, which predated the surgery, and


         5
        Effective March 28, 2016, the Social Security Administration “eliminat[ed]
the use of the term ‘credibility’ from [its] sub-regulatory policy” because its
“regulations do not use this term.” SSR 16-3P, 

2017 WL 5180304

, at *2. But
because the underlying regulations governing symptom analysis (20 C.F.R.
§§ 404.1529 and 416.929) remain the same, case law interpreting those regulations
continues to be relevant.
                                            12
explained why Ms. Tuttle’s testimony about her limitations at the time of the hearing

(in March 2018) was inconsistent with the objective medical evidence. The ALJ

noted that the “the neck surgery was successful in significantly improving [her] neck

pain and related ailments,” and “after the neck surgery, despite her increased

awareness of the problem, her low back problems were only rated at mild,”

id.,

Vol. 2 at

28. The ALJ also relied on the relatively unremarkable examination

findings from Ms. Tuttle’s September 2017 visit to an emergency department for

complaints of moderate radiating lumbar pain, which had started three days prior to

her visit—full range of motion but with pain on extension, right rotation, and right

side bending; right sacroiliac joint tenderness; negative straight-leg testing; normal

strength; and no tenderness, swelling, or deformity.

Id., Vol. 6 at

666. The ALJ

noted that Ms. Tuttle did not complain of any neck pain at that visit.

      These were all valid considerations under §§ 404.1529(c) and 416.929(c).

And contrary to Ms. Tuttle’s contention, the ALJ took into account more than just the

objective medical evidence; he considered the location of her pain and her treatment,

most notably the successful neck surgery. Furthermore, the ALJ’s explanation was

adequate, and given the result of the neck surgery and the absence of later complaints

about neck pain or related symptoms, we see no error in the ALJ’s failure to discuss

Dr. Parchuri’s findings during the surgery.

      Finally, the ALJ also considered other evidence—Ms. Tuttle’s daily activities,

in particular those reported by her mother and a friend, and the opinions of two

non-examining consultants whose opinions the ALJ gave little weight because the

                                           13
record supported limitations on performing work above the shoulder level. Although

Ms. Tuttle faults the ALJ for not discussing any aggravating factors, an ALJ is not

required to discuss every factor, see 

Qualls, 206 F.3d at 1372

, and Ms. Tuttle has not

explained how an express discussion of any aggravating factors would have altered

the ALJ’s evaluation of her subjective complaints or undermined his RFC finding.

We therefore see no reversible error in the ALJ’s failure to expressly discuss any

aggravating factors.

                                   III. Conclusion

      The judgment of the district court is affirmed.


                                           Entered for the Court


                                           Jerome A. Holmes
                                           Circuit Judge




                                          14

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