                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         August 15, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    TED G. MORRISON,

                Plaintiff-Appellant,
                                                         No. 04-1510
    v.                                           (D.C. No. 03-RB-1318 (PAC))
                                                           (D. Colo.)
    JO ANNE B. BARNHART,
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff appeals from a district court order affirming the Commissioner’s

decision to deny social security disability insurance benefits. We examine the

record as a whole to determine whether that decision is supported by substantial

evidence and adheres to applicable legal standards, though the scope of our review

is limited to the issues preserved and presented on appeal.      Chambers v. Barnhart ,

389 F.3d 1139, 1142 (10th Cir. 2004). Plaintiff contends that he should have been

found disabled under the listing for affective disorder (in particular, depression),

20 C.F.R. Subpt. P., App. 1,   § 12.04, 1 based on findings of his treating physician,

Dr. Gerd Leopoldt, which he argues were improperly rejected. We affirm for the

reasons explained below.

       There are two sets of criteria, specified in paragraphs A and B of       § 12.04,

which must be met before a claimant may be found disabled under this listing.         2



The criteria in paragraph A “substantiate medically the presence of a particular

mental disorder,” while those in paragraph B describe “functional limitations that

are incompatible with the ability to do any gainful activity.” 20 C.F.R. Subpt. P.,

App. 1, § 12.00(A). The presence of a depressive disorder requires the medically

documented persistence of at least four of the nine characteristics specified in

1
       Citations herein to the Code of Federal Regulations are to those regulations
in effect at the time of the administrative law judge’s decision in April 2002. See
Branum v. Barnhart , 385 F.3d 1268, 1271 n.2 (10th Cir. 2004).
2
       Plaintiff does not contend that he qualifies under the alternative criteria set
out in § 12.04(C).

                                            -2-
§ 12.04(A)(1)(a)-(i). This prerequisite does not appear to be in dispute; the ALJ

acknowledged that, “[o]n the basis of claimant’s treating psychiatrist’s progress

notes, the claimant’s depression is characterized by an appetite disturbance with

change in weight [ id. , sub. (b)], sleep disturbance [    id. , sub. (c)], decreased energy

[id. , sub. (e)], difficulty concentrating or thinking [   id. , sub. (g)], and feelings of

guilt or worthlessness [ id. sub. (f)].” R. Vol. II, at 16;    see id. at 187 (report from

Dr. Leopoldt reflecting above findings symptoms and also including “Psychomotor

agitation or retardation [ § 12.04(A)(1)(d)]”).

       The focus of this appeal is, rather, on the functional criteria in paragraph B

of the listing. To be deemed disabling, a depressive disorder substantiated under

paragraph A must result in at least two of four specified limitations:

       1. Marked restriction of activities of daily living; or

       2. Marked deficiencies in maintaining social functioning; or

       3. Marked deficiencies in maintaining concentration, persistence, or
       pace; or

       4. Repeated episodes of decompensation, each of extended duration;

20 C.F.R. Subpt. P., App. 1, § 12.04(B). Doctor Leopoldt found that plaintiff’s

disorder satisfied limitations 2, 3, and 4.      See R. Vol. II, at 189. Thus, plaintiff

would meet the listing unless two of Dr. Leopoldt’s findings were rejected.          3




3
        Plaintiff does not contend that he satisfies the limitation in       § 12.04(B)(1).

                                                -3-
       In fact, the administrative law judge (ALJ) rejected all three salient findings

by Dr. Leopoldt, holding that plaintiff did not meet any of the       § 12.04(B) criteria.

The critical question here, therefore, is whether the ALJ gave “‘specific legitimate

reasons’ for doing so.”   Watkins v. Barnhart , 350 F.3d 1297, 1301 (10th Cir. 2003)

(quoting Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996) (further quotation

omitted)). If at least two of Dr. Leopoldt’s findings were properly rejected,

plaintiff’s challenge to the denial of benefits must fail.

       Initially, Dr. Leopoldt provided his findings merely by circling criteria listed

in a form letter, without giving any supporting explanation.      4
                                                                      R. Vol. II, at 187,

189. This was particularly problematic in that the fairly superficial and generally

positive comments in his treating notes,     see id. at 190-215, did not translate to the

severe limitations he indicated on the letter. At the January 2002 administrative



4
       It appears that Dr. Leopoldt was working from a form incorporating an
outdated version of § 12.04, which was revised, in conjunction with a general
revision to the § 12.00 regulations, over a year earlier.  See 65 Fed. Reg. 50746
(Aug. 21, 2000). However, a comparison between the 2000 and 2001 versions
reveals that, while there were some changes in wording, the basic terminology of
the § 12.04(B) criteria was retained. Moreover, neither party has mentioned this
discrepancy much less argued that the analysis of Dr. Leopoldt’s report and the
ALJ’s rejection thereof is materially affected by it. As will be seen, the ALJ’s
reasons for rejecting Dr. Leopoldt’s findings (and hence the focus of plaintiff’s
arguments on appeal) relate to broad deficiencies in the rationales Dr. Leopoldt
gave for his findings, not the precise wording of the findings themselves. We
shall, therefore, likewise focus on the rationales stated for Dr. Leopoldt’s findings
and not engage in a detailed, sua sponte parsing of the language used in those
findings in relation to the revised regulation.

                                             -4-
hearing, the ALJ noted the need for substantiation/clarification of the conclusory

findings reflected in the letter, and plaintiff’s attorney secured an extension to

obtain the information,   see id. at 272-73, 306-07, 310-11. Asked to explain the

basis of his findings, Dr. Leopoldt handwrote cursory comments on a letter

reciting the § 12.04(B)(2)-(4) criteria he had previously circled.   Id. at 28.

       As noted above, Dr. Leopoldt found plaintiff had marked deficiencies in

maintaining social functioning. “Marked” here “means more than moderate but

less than extreme;” it signifies a limitation that “interfere[s] seriously with your

ability to function independently, appropriately, effectively, and on a sustained

basis.” 20 C.F.R. § 12.00(C). “Social functioning,” in turn,

       refers to your capacity to interact appropriately, effectively, and on a
       sustained basis with other individuals. Social functioning includes
       the ability to get along with others, such as family members, friends,
       neighbors, grocery clerks, landlords, or bus drivers. You may
       demonstrate impaired social functioning by, for example, a history of
       altercations, evictions, firings, fear of strangers, avoidance of
       interpersonal relationships, or social isolation. You may exhibit
       strength in social functioning by such things as your ability to initiate
       social contacts with others, communicate clearly with others, or
       interact and actively participate in group activities. We also need to
       consider cooperative behaviors, consideration for others, awareness of
       others’ feelings, and social maturity. Social functioning in work
       situations may involve interactions with the public, responding
       appropriately to persons in authority (e.g., supervisors), or
       cooperative behaviors involving coworkers.

Id. , § 12.00(C)(2).




                                             -5-
       When asked to substantiate his finding on this point, Dr. Leopoldt wrote the

following notation: “withdraws socially–interacts mainly with family–very guarded

[with] strangers.” R. Vol. II, at 28. The ALJ, however, noted that “Dr. Leopoldt’s

progress notes reflect the claimant [who is a Mormon minister] is able to give

blessings to fellow church members at the hospital”; that plaintiff “participates in

activities with his son such as elk hunting and playing guitar”; and that plaintiff

“reports that he gets along with other family members and usually visits with

family or friends every two weeks.”     Id. at 16 (citations omitted). In addition, the

ALJ had previously noted that plaintiff “is active in his church” and “is able to

assist his wife with her transcription business by picking up tapes and delivering

the typed notes.”   Id.

       On appeal, plaintiff contends the ALJ “did not give specific and legitimate

reasons for discounting Dr. Leopoldt’s opinion” but, rather, merely “gave blanket

statements.” Aplt. Br., at 5. Actually, the points noted by the ALJ are much more

specific than the bald generalizations offered by Dr. Leopoldt, and they derive

from plaintiff’s own statements. Indeed, plaintiff acknowledged additional social

activity that the ALJ did not include in his summary, such as weekly shopping and

talking with family and friends by phone three to four times a week.     Id. at 67-68.

Moreover, while under treatment by Dr. Leopoldt, plaintiff noted a three-month

attempt to work at a wood shop, on a team assembling pre-fab materials, and did


                                            -6-
not suggest any difficulty getting along with coworkers or supervisors; rather,

physical difficulties ended this effort.   Id. at 84-85, 206-08, 248, 255, 269-70.

       In an attempt to bolster Dr. Leopoldt’s finding, plaintiff emphasizes that he

did not attend his father’s funeral “because he could not handle it emotionally,”

and that he had had some “difficulty with his daughter.” Aplt. Br. at 5. The

former singular episode says little if anything about response to more routine

stresses and was recited in a progress note otherwise reflecting that plaintiff’s

condition was “responding” to treatment and that his “affect [is] brighter,”      id. at

203. Similarly, references to various difficulties encountered by plaintiff’s

daughter occur in notes indicating that he was “not manifestly depressed,”        id. at

204 (where plaintiff reports daughter dropped out of school); that he “continues to

do well” and has an “affect [that] remains bright,”     id. at 196 (where plaintiff

reports concern about daughter, who appears depressed), and that he is “doing well

generally” with a “bright, pleasant” affect,     id. at 192 (where plaintiff reports

daughter had been assaulted) – none of which reflect a serious impairment of his

ability to cope with what undoubtedly were difficult family circumstances. More

generally, by the disability onset date and thereafter, Dr. Leopoldt’s notes

consistently reflect a stabilization of plaintiff’s condition and do not suggest a

detrimental effect on his social functioning.




                                               -7-
       In sum, Dr. Leopoldt’s finding that plaintiff’s depression disorder gave rise

to marked deficiencies in social functioning was based on conclusory statements

contrary to the doctor’s own records and relevant facts recited by plaintiff himself.

On the record before us, the ALJ was free to reject Dr. Leopoldt’s opinion.        Cf.

Hackett v. Barnhart , 395 F.3d 1168, 1174 (10th Cir. 2005) (affirming ALJ’s

rejection of treating psychologist’s opinion regarding marked impairment of

claimant’s capacity for interpersonal interaction for similar reasons).

       Doctor Leopoldt’s basis for finding repeated episodes of decompensation

consists of conclusory and unwarranted speculation from an inaccurate factual

premise. He explained his finding by noting “frequent job changes in

past – despite being mostly menial jobs – can’t handle stressful situation.”       Id. at

28. Plaintiff’s reported job history from 1983 to 1995, however, included only

four employers over this twelve-year period, with the last job continuing for a span

of nearly seven years.   Id. at 76. That is not an unstable employment record.

Further, plaintiff took the last position with Wal-Mart because it was a “better job”

than working as a lube technician,    id. at 84; only quit the Wal-Mart job when his

physical limitations made it impossible for him to perform,       id. at 69, 84; and, as

discussed above, attributed the failure of his later work attempt at the wood shop

to his physical limitations, not depression. Thus, plaintiff’s own explanation of




                                             -8-
his work history undercuts the speculative inference drawn by Dr. Leopoldt that

his job changes were necessitated by reactions to stress.

      Moreover, Dr. Leopoldt’s treatment notes do not indicate that plaintiff’s

depression would repeatedly leave him unable to handle common workplace

stresses. He never reported any recommendation against working, and at various

points he noted plaintiff’s engagement in work and work-like activities with no

suggestion that it had caused or would cause deterioration in plaintiff’s condition

or decompensation during the activity.   See, e.g. , id. at 197 (conducting blessings

for church members in hospital), 198 (helping wife with transcription business by

making pickups and deliveries), 207-08 (working at wood shop).

      Accordingly, we cannot say the ALJ erred in rejecting Dr. Leopoldt’s

opinion regarding decompensation for lack of support in the record. Given that

conclusion and our similar holding with respect to the social-functioning factor,

which together preclude a favorable determination under the listing for depression,

plaintiff cannot prevail on the basis of the particular challenge he has raised on

this appeal. We consequently need not reach the other    § 12.04(B)(3) criterion




                                          -9-
disputed here, regarding plaintiff’s ability to maintain concentration, persistence,

or pace.

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




                                         -10-
