                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 10, 2009
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court




    ROGER MARSHALL,

                Plaintiff-Appellant,

    v.                                                    No. 08-1189
                                                (D.C. No. 1:07-CV-00331-EWN)
    MICHAEL J. ASTRUE,                                     (D. Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and ANDERSON, Circuit Judges.



         Roger Marshall appeals the district court’s affirmance of the Social

Security Commissioner’s denial of disability insurance and supplemental security

income (SSI) benefits. His sole argument is that the Administrative Law Judge




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
(ALJ) failed to apply proper legal standards in dismissing the opinion of his

treating physician. We affirm.

      In his applications for disability and SSI benefits, Mr. Marshall alleged

disability beginning January 27, 2002, due to diabetes mellitus with neuropathy in

his hands and feet, knee pain, residual effects from a May 2003 stroke, high blood

pressure, coronary artery disease, headaches, and depression. His applications

were denied initially and on rehearing. Following an evidentiary hearing, the ALJ

issued a decision, applying the five-step sequential evaluation process for

determining whether a claimant is disabled and concluded that Mr. Marshall is not

disabled. See 20 C.F.R. §§ 404.1520, 416.920 (setting out five-step process).

The ALJ found that Mr. Marshall “has the following severe combination of

impairments: diabetes mellitus with diabetic neuropathy; mild joint space

narrowing medially, right knee; late-effects of cerebrovascular accident; 2-vessel

coronary artery disease (status post successful PCI of the proximal circumflex

lesion with pre-dilation and implantation of a drug-eluding stent); and

depression.” Aplt. App., Vol. I at 20. In assessing Mr. Marshall’s ability to

work, the ALJ determined that although Mr. Marshall was not entirely credible

concerning the intensity, duration, and limiting effects of his medically

determinable impairments, he cannot perform his past work as a truck driver or

forklift operator. But, based on his age of fifty-seven at the alleged onset date,

his high school education, and his residual functional capacity, the ALJ concluded

                                          -2-
that Mr. Marshall could perform certain jobs, such as a grocery bagger or

dishwasher, which exist in significant numbers in the national economy.

      After the Appeals Council denied Mr. Marshall’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). Mr. Marshall appealed to the

district court, and that court upheld the Commissioner’s denial of benefits.

Mr. Marshall then appealed to us.

      “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) (alterations 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.

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

      Mr. Marshall argues that the ALJ failed to articulate the weight given to the

opinion of Dr. Jackie McCollum, his treating doctor, thereby precluding a

meaningful review of the ALJ’s determination. Also, he argues that the ALJ did

not apply the proper legal standards when assessing and rejecting Dr. McCollum’s

opinion, requiring a reviewing court either to reweigh the evidence or speculate

regarding the ALJ’s reasons for giving no weight to Dr. McCollum’s opinion.

                                         -3-
       Mr. Marshall’s argument focuses on a November 3, 2003, letter written by

Dr. McCollum after the agency initially denied benefits. In the letter, she wrote

that she hoped the agency would reconsider its decision, noting Mr. Marshall’s

“longstanding history of diabetes mellitus, which is complicated by a peripheral

neuropathy,” and his problems with balance and short-term memory following his

stroke. Aplt. App., Vol. I at 237. She stated that his diabetic problems preclude

him from employment as a truck driver, his balance problems preclude him from

performing physically taxing jobs, and his memory difficulties would make it

problematic for him to learn a new job.

       The ALJ rejected Dr. McCollum’s opinion: 1

       Jackie McCollum, a medical doctor . . . states the claimant is unable
       to pass his drivers license test because of his health issue. She also
       refers to the claimant’s reported complaints of balance issues and
       short term memory loss. This opinion is vague and not consistent
       with the record. For example, the claimant alleges both physical and
       mental residuals to his stroke. However, his upper extremity strength
       was measured as equal and within normal limits soon after the
       stroke; so, too, was his lower extremity strength. His gait has been
       normal at almost all examinations, thereby eroding any credible
       allegation of imbalance. Moreover, the claimant has alleged memory
       problems but psychological testing reveals low-average memory.

Id. at 24.




1
      Although the ALJ determined that Mr. Marshall could not perform his past
work, he made that determination based on the testimony of the vocational expert,
not based on Dr. McCollum’s opinion. Thus, we agree with Mr. Marshall that the
ALJ rejected entirely Dr. McCollum’s opinion.

                                          -4-
      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.

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

and 416.927(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).

      We first consider whether the ALJ properly analyzed Dr. McCollum’s

opinion to determine if it was 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 substantial evidence in

                                         -5-
the record.” Pisciotta, 500 F.3d at 1077. The ALJ did not discuss whether

Dr. McCollum’s opinion was “supported by medically acceptable clinical and

laboratory diagnostic techniques.” 2 Id. Instead, he considered only the opinion’s

consistency with the other record evidence, albeit without expressly stating that

he was analyzing to determine whether the opinion was entitled to controlling

weight. But the ALJ did state that he had considered the medical opinion


2
       It can be argued that the ALJ’s determination that Dr. McCollum’s opinion
is “vague” addresses whether her opinion is based on medically acceptable
clinical or laboratory diagnostic techniques. As the district court noted,
Dr. McCollum’s treatment records end more than a year before Mr. Marshall’s
stroke and there is no indication in the letter of the basis for her conclusion that
he was experiencing balance or memory problems due to the stroke. Thus, it
appears from the record that she wrote the letter even though she had not seen
him for eighteen months and had not treated him for problems due to his stroke.

        Additionally, Dr. McCollum’s letter did not contain an assessment of the
nature or severity of Mr. Marshall’s physical limitations or any information about
what type of activities he could perform. See Cowan, 552 F.3d at 1189 (citing
20 C.F.R. § 404.1527(a)(2)); see also Castellano v. Sec’y of Health & Human
Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (“A treating physician’s opinion may
be rejected if his conclusions are not supported by specific findings.”). Even
Mr. Marshall admits that “Dr. McCollum’s statement is not entirely clear as to
Mr. Marshall’s limitations.” Aplt. Br. at 12. Thus, the ALJ appropriately
characterized Dr. McCollum’s unsupported assessment as vague.

       Although the ALJ should have addressed the first component of the
controlling-weight test, the ALJ’s deficiency in articulating his reasoning is
harmless in light of the fact that no reasonable factfinder could conclude that
Dr. McCollum’s opinion was supported by medically acceptable clinical and
laboratory diagnostic techniques. Cf. Fischer-Ross v. Barnhart, 431 F.3d 729,
733-34, 735 (10th Cir. 2005) (deciding that harmless error analysis applied when
ALJ failed to properly consider medical record at step three but no reasonable
factfinder would conclude that claimant qualified for benefits under step three).


                                         -6-
evidence in accordance with the regulations and applicable Social Security

Rulings that discuss the weight to give a treating doctor’s opinion. See Aplt.

App., Vol. I at 22 (citing 20 C.F.R. §§ 404.1527, 416.927; SSR 96-2p, 1996 WL

374188; SSR 96-5p, 1996 WL 374183; SSR 96-6p, 1996 WL 374180). And we

have no reason not to take the ALJ at his word. Thus, 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 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). We will not require the ALJ to

discuss both components if one was not met.

      The ALJ found that Dr. McCollum’s opinion concerning Mr. Marshall’s

balance and memory difficulties was not consistent with the other evidence in the

record. We agree. Records from Mr. Marshall’s hospitalization for a stroke

indicate that his coordination was improved upon discharge. He had a normal

gait within a month of the stroke. After the first report of a normal gait, his

physical therapy continued because he kept progressing in endurance, strength,

and balance. Right after the stroke, his grip strength was equal. In February

2004, his arm and leg strength were equal and strong. In March 2004, his range

of motion, muscle strength, and circulation were intact bilaterally 4/5. Further,




                                          -7-
Mr. Marshall testified at the ALJ’s hearing that his only residual physical problem

from the stroke is a slight limp occasionally when he gets fatigued.

      On September 29, 2003, Brett Valette, Ph.D., a psychological consultant,

conducted memory testing and reported that Mr. Marshall had no significant

memory difficulties, average to low-average memory, and no signs of memory

impairment. Dr. Vallette did think that Mr. Marshall was having some memory

difficulties due to normal aging and his “overwhelm” and depression. Aplt. App.,

Vol. I at 209. In January 2004, Mr. Marshall stated that he was nearly totally

recovered from the stroke, with only occasional short-term memory lapses. In

September 2005, a social worker reported emotional and mild physical symptoms

from the stroke. Based on the record’s inconsistency with Dr. McCollum’s

opinion, we conclude that the ALJ properly declined to give controlling weight to

Dr. McCollum’s opinion.

      Next, we consider whether the ALJ applied proper legal standards in

rejecting entirely Dr. McCollum’s opinion. “When an ALJ rejects a treating

physician’s opinion, he must articulate specific, legitimate reasons for his

decision.” Cowan, 552 F.3d at 1188 (quotation omitted). Mr. Marshall contends

that the ALJ failed to discuss all of the relevant factors when considering what

weight to give the doctor’s opinion, see 20 C.F.R. §§ 404.1527(d), 416.927(d);

Watkins, 350 F.3d at 1301, and instead focused only on the consistency between

the opinion and the entire medical record.

                                         -8-
      Although the ALJ’s discussion could and should have been more thorough,

we conclude that he stated adequate reasons for rejecting Dr. McCollum’s

opinion. See SSR 96-2p, 1996 WL 374188, at *5 (requiring ALJ to be

“sufficiently specific to make clear to any subsequent reviewers the weight

[given] to the treating source’s medical opinion and the reasons for that weight”).

The ALJ’s failure to discuss each factor does not prevent us from conducting a

meaningful review. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)

(declining to require ALJ to apply and make specific findings concerning all six

factors). As discussed above, Dr. McCollum’s decision lacked consistency with

the record as a whole. Furthermore, because her opinion is “brief, conclusory,

and unsupported by medical evidence,” we conclude the ALJ did not err in

rejecting it. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).

      Mr. Marshall contends that his case is analogous to Robinson v. Barnhart,

366 F.3d 1078, 1081 (10th Cir. 2004) (per curiam), where the ALJ called the

treating physician’s opinion “vague and conclusive.” We remanded for further

proceedings in Robinson, because the ALJ did not explain why he found the

opinion to be “vague and conclusive.” Id. at 1082-83. Robinson, however, is

distinguishable, because, unlike here, the ALJ in Robinson gave no reasons for

rejecting the treating physician’s opinion. The ALJ in this case gave a sufficient

reason–inconsistent medical evidence–for rejecting Dr. McCollum’s opinion.




                                         -9-
Also, unlike in Robinson, we can conclude that the ALJ applied the correct legal

standards. See id. at 1083.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




                                       -10-
