                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                  December 16, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT




    JULIE RUSSELL,

                Plaintiff-Appellant,

    v.                                                     No. 09-4059
                                                 (D.C. No. 2:08-CV-00447-DAK)
    MICHAEL J. ASTRUE,                                      (D. Utah)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.



         Julie Russell appeals from the district court’s affirmance of the

Commissioner of Social Security’s denial of disability benefits. She argues that

(1) the administrative law judge (ALJ) failed to properly evaluate her treating

doctors’ mental-impairment opinions and (2) the ALJ’s treatment of the opinions



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
negatively impacted the residual functional capacity (RFC) determination.

We affirm.

                                         I.

      In December 1999, while on a business trip, Ms. Russell was involved in an

automobile accident. She received treatment for her injuries and returned to work

a few days later. One day in June 2000, she awakened with pain and was unable

to get out of bed. She never returned to work.

      In March 2004, Ms. Russell applied for disability benefits beginning

June 2, 2000, based on headaches, neck pain, fibromyalgia, jaw pain, back pain,

hearing loss, shoulder pain, right arm numbness, depression, and anxiety. She

stated that she stopped working in June 2000 because of pain, fatigue, and

anxiety. Her application was denied initially and on reconsideration. Following a

hearing, the ALJ issued a decision, applying the five-step sequential evaluation

process for determining whether a claimant is disabled, and concluding that

Ms. Russell was not disabled through her last date insured, March 31, 2007.

See 20 C.F.R. § 404.1520 (setting out five-step process). The ALJ found that

Ms. Russell suffered from several severe impairments: back disorders,

fibromyalgia, hearing loss, post-concussion syndrome, depressive disorder NOS

with anxiety, and a somatoform disorder. But he also found that her impairments,

singly or in combination, were not so severe that they met the listings. The ALJ

specifically rejected Ms. Russell’s assertion that she met Listings 12.04 for

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affective disorders and 12.06 for anxiety-related disorders. See id. pt. 404,

subpt. P, app. 1, §§ 12.04, 12.06. Although the ALJ concluded that Ms. Russell

could not perform her past work, he decided that she, a twenty-nine year old with

a college education, could perform a full range of sedentary, unskilled work,

subject to certain specific limitations, including working at low stress,

concentration, and memory levels. Finally, the ALJ determined that work she

could perform, such as a surveillance systems monitor, was available in the

national economy.

      After the Appeals Council denied Ms. Russell’s request for review, the

ALJ’s decision became the final decision of the Commissioner. See Bowman v.

Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). Ms. Russell appealed to the

district court, which upheld the Commissioner’s denial of benefits. She then

appealed to this court.

                                          II.

      “We review the Commissioner’s decision to determine whether his factual

findings are supported by substantial evidence in the record viewed as a whole

and whether he applied the correct legal standards.” Frantz v. Astrue, 509 F.3d

1299, 1300 (10th Cir. 2007) (alteration and quotation omitted). “We consider

whether the ALJ followed the specific rules of law that must be followed in

weighing particular types of evidence in disability cases, but we will not reweigh

the evidence or substitute our judgment for the Commissioner’s.” Cowan v.

                                          -3-
Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted). We will

uphold the ALJ’s decision even if we might have made a different choice if the

case had been before us for de novo review. See id.

                                         III.

                                         A.

      Ms. Russell first argues that the ALJ failed to properly evaluate and

provide specific and legitimate reasons for the weight he assigned to the opinions

of Dr. Thomas A. Curtis and Dr. Ted Harris, Ph.D., her treating mental-health

doctors. She faults the ALJ for failing to consider whether the testing and

techniques they used supported their professional opinions and for dismissing

their opinions with a boilerplate statement. She contends that the ALJ should

have given their opinions controlling weight.

      The standards an ALJ must follow when analyzing a treating doctor’s

opinion are settled. The ALJ first considers “whether the opinion is well

supported by medically acceptable clinical and laboratory diagnostic techniques

and is consistent with the other substantial evidence in the record.” Pisciotta v.

Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007). If so, the ALJ must give the

opinion controlling weight. Id. But if the ALJ decides “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.” Id.




                                         -4-
Relevant factors the ALJ may consider are set forth in 20 C.F.R. § 404.1527(d).

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.

Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotation omitted).

“Under the regulations, the agency rulings, and our case law, an ALJ must give

good reasons . . . for the weight assigned to a treating physician’s opinion.”

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotation omitted).

The reasons must be “sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s medical opinion

and the reason for that weight.” Id. (quotation omitted). “If the ALJ rejects the

opinion completely, he must then give specific, legitimate reasons for doing so.”

Id. (quotation omitted).

      The ALJ recognized these standards, declining to give controlling weight to

the doctors’ opinions, yet giving the opinions some weight by recognizing that

Ms. Russell had serious mental impairments that affected her RFC for work. The

ALJ rejected as unsupported by the records and clinical notes Dr. Curtis’s opinion




                                         -5-
given on December 2, 2004 that Ms. Russell was temporarily totally disabled

since June 9, 2000 and was eligible for social security benefits.

       Although the [ALJ] accepts the opinions of Dr. Curtis with regard to
       medical issues and diagnosis relating to the nature and severity of the
       claimant’s impairments, the opinion as to the claimant’s residual
       functional capacity, the ability to do past work, the ability to do other
       work and whether there is a disability under the Social Security Act
       are all issues reserved to the Commissioner. Records indicate
       Dr. Curtis did not see claimant on a continuing basis, but only on
       three separate occasions. . . . On two of those occasions, Dr. Curtis
       opined the degree of permanent emotional impairment would be
       estimated as slight-to-moderate only and that, “. . . there have not
       been any periods of temporary total disability time off from work on
       a purely psychiatric basis.”

Aplt. App., Vol. 1 at 39-40.

       Likewise, the ALJ did not accept Dr. Harris’s opinions of disability

       because his opinion of June 8, 2005 that the claimant was unable to
       work due to a lack of sustained focus and his opinion submitted on
       May 17, 2007 that she had numerous marked mental limitations and,
       therefore, met Listings 12.04 and 12.06 are not supported by the
       record nor are they supported by his own clinical notes. . . .
       Although the [ALJ] accepts the opinions of Dr. Harris with regard to
       medical issues and diagnosis relating to the nature and severity of the
       claimant’s impairments, the opinion as to the claimant’s residual
       functional capacity, the ability to do past work, the ability to do other
       work and whether there is a disability under the Social Security Act
       are all issues reserved to the Commissioner. Dr. Harris only treated
       claimant for a short period of time, October 11, 2004 through
       January 31, 2005, and, . . . during that short period, claimant was
       noted to be doing well most of the time.

Id. at 40.

       Additionally, the ALJ gave diminished weight to Dr. Curtis’s and

Dr. Harris’s opinions “as they indicate extreme limitations that are unsupported

                                          -6-
by the objective evidence, especially in light of the fact that her mental health

treatment has been sporadic at best. As well, these opinions are not supported by

[her] own description [of] her activities of daily living, which . . . are highly

active.” Id. Thus, the ALJ found that the administrative record showed that

Ms. Russell had limitations but not to the extent suggested by these two doctors.

      In our review, we first consider whether the ALJ properly analyzed

Dr. Curtis’s and Dr. Harris’s opinions to determine if either or both were entitled

to controlling weight. As indicated above, there are two components to the

analysis: (1) “whether the opinion is well supported by medically acceptable

clinical and laboratory diagnostic techniques”and (2) whether the opinion “is

consistent with the other substantive evidence in the record.” Pisciotta, 500 F.3d

at 1077. As Ms. Russell asserts, the ALJ did not address expressly the first

component. He did, however, consider whether the opinions were consistent with

the other record evidence. And he did state that he had considered the medical

evidence in accordance with the regulations and applicable Social Security

Rulings that discuss the weight to give a treating doctor’s opinion. Cf. Hackett v.

Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (“[O]ur general practice . . . is to

take a lower tribunal at its word when it declares that it has considered a

matter.”). The ALJ’s failure to discuss the first component is not an indication

that he failed to apply proper legal standards, as both components must be met in

order for the opinion to have controlling weight. See SSR 96-2p, 1996 WL

                                           -7-
374188, at *2 (stating that controlling weight cannot be given to an opinion that is

not well-supported or is not consistent with other substantial evidence).

Consequently, the ALJ was not required to discuss both components if one was

not met.

      There was substantial evidence to support the ALJ’s findings that the

doctors’ opinions were not consistent with the other substantive evidence in the

record. As the ALJ noted, Ms. Russell’s mental health treatment was sporadic.

She had no treatment from July 2001 to October 2004, although she admitted that

she had the ability to obtain treatment if she needed it. During her time of alleged

disability, she was quite active. She bore two children, was their primary

caretaker, drove, went to movies and church, played Bunko, did housework and

laundry, ran errands for as long as four hours at a time, traveled to Hawaii, and

took tae kwon do classes until she was spotted doing so by a workers’

compensation investigator. She indicated that she would have preferred to

exercise more, but did not do so because of the investigation.

      Also, the ALJ appropriately found that Ms. Russell had limited treatment

by both Dr. Curtis and Dr. Harris. She saw Dr. Curtis only three times. Although

his reports were thorough, two of the three times he indicated that she was not

disabled due to mental impairments. Ms. Russell saw Dr. Harris for only four

months. Although he stated that she met Listings 12.04 and 12.06, we agree with

the ALJ that his treatment notes did not support that conclusion. We therefore

                                         -8-
conclude that the ALJ properly did not give controlling weight to the opinions of

Dr. Curtis and Dr. Thomas.

       Moreover, the ALJ properly discounted their opinions that Ms. Russell

could not work, met the listings, and was entitled to social security disability

benefits. Those opinions infringed on the issues reserved to the Commissioner.

See 20 C.F.R. § 404.1527(e) (“Opinions on some issues . . . are not medical

opinions . . . but are, instead, opinions on issues reserved to the Commissioner

because they are administrative findings that are dispositive of a case[.]”);

id. § 404.1527(e)(1) (“A statement by a medical source that you are ‘disabled’ or

‘unable to work’ does not mean that we will determine that you are disabled.”);

SSR 96-8p, 1996 WL 374184, at *7 n.8 (“A medical source opinion that an

individual is ‘disabled’ or . . . has an impairment(s) that meets . . . a listing, . . . is

an opinion on an issue reserved to the Commissioner.”).

       Ms. Russell faults the ALJ for using almost identical boilerplate language

about issues reserved to the Commissioner that does not contain analysis or

citation and fails to cite contradictory evidence. While the ALJ did use some

boilerplate language, a practice we have disapproved of on several occasions,

see, e.g., Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004), the ALJ did

not limit his analysis to boilerplate language. Instead, he specifically found that

Dr. Curtis and Dr. Harris saw Ms. Russell only a limited number of times and the

record as a whole, which the ALJ summarized in his decision, did not support a

                                             -9-
disability determination. We conclude that the ALJ provided a sufficient

explanation with sufficiently specific evidence for not giving controlling weight

to the opinions that Ms. Russell was disabled.

       Because Dr. Curtis’s and Dr. Thomas’s opinions of disability were not

entitled to controlling weight, we next consider whether the ALJ gave them an

appropriate amount of weight. And we conclude that the ALJ did so. The several

pages the ALJ devoted to discussing Ms. Russell’s impairments, the medical

opinions, and the reasons for the RFC assessment demonstrate that the ALJ

adequately considered the evidence and gave proper weight to the opinions of

Dr. Curtis and Dr. Harris. As discussed above, the record shows that Dr. Curtis

and Dr. Harris had short treatment relationships with Ms. Russell and that her

activity level was contrary to the disability opinions of the two doctors.

                                          B.

       Ms. Russell next argues that the ALJ’s RFC assessment did not adequately

account for the opinions of Dr. Curtis or Dr. Harris. This argument is based on

Ms. Russell’s assertion that the ALJ failed to afford proper weight to their

opinions. Because we have concluded that the ALJ afforded proper weight to the

opinions, we also conclude that the ALJ’s RFC properly accounted for the

opinions. 1

1
      We need not consider Ms. Russell’s final argument that this court
should reverse the denial of benefits and enter an order for an immediate
                                                                     (continued...)

                                         -10-
                                     IV.

      The judgment of the district court is AFFIRMED.


                                                Entered for the Court



                                                Bobby R. Baldock
                                                Circuit Judge




1
 (...continued)
payment of benefits.

                                     -11-
