Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
SEP 2 2003
PATRICK FISHER
Clerk
NORMA J. ALEXANDER,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of the Social Security
Administration,
No. 02-5046
(D.C. No. 00-CV-918-M)
(N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT
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This order and judgment is not binding precedent, except under the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. 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.
1291 and 42 U.S.C. 405(g). We affirm in part, and reverse and remand
in part.
Background
Plaintiff filed for benefits in December of 1997, initially alleging an onset
disability date of March 2, 1990. She was born in 1953 and described her past
work as pant and coat pressing, housekeeping, and telemarketing. Aplt.
App. Vol. 2, at 109. Plaintiffs amended alleged onset date was accepted as
November 21, 1997. She claimed she was disabled due to degenerative joint
disease, with associated back and leg pain; diabetes; osteoarthritis; flat feet; and
hypertension.
Plaintiff first had lumbar spinal surgery in 1985 or 1986. In March
of 1998, she underwent a bilateral L4-5 hemilaminectomy with L-5 discectomy.
In June of 1998, she had a repeat L4-5 hemilaminectomy and discectomy, this
time with bilateral posterolateral fusion. In September, her treating orthopedic
physician, Dr. Boone, wrote that although plaintiff was better than she had been
The parties consented to proceed before a magistrate judge in accordance
with 28 U.S.C. 636(c)(1) and (3).
-2-
pre-operatively, she was still having some chronic pain probably due to some
chronic changes in the L5 nerve root.
would need to pursue sedentary type work in the future and that she probably
will have some element of chronic pain in the lower extremities due to
a combination of scarring around nerve roots with superimposed diabetic
neuropathy changes.
Id.
Two months later, Dr. Boone wrote that he had told her that after the
first of the year [January of 1999] she could consider returning to work . . . .
Id. at 230. Dr. Boone and his partners continued to renew her pain medication
prescriptions for Lortab, Nortriptyline, Soma, and Pamelor
through February of
1999, when Dr. Boone referred her to her primary physician and advised her she
might need to see a neurologist because of her diabetic neuropathy.
Id. at 236-37.
Id. at 274.
Following a hearing, the administrative law judge (ALJ) found that plaintiff
was disabled from November 21, 1997, through December 31, 1998, when she
-3-
had medical improvement in her condition related to her ability to work, and her
disability ceased.
1999, plaintiff was able to return to her previous job as a telemarketer or,
alternatively, that there were other jobs she could perform.
therefore denied benefits at steps four and five of the review process.
See
Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing sequential
evaluation process).
On appeal, plaintiff contends that the ALJ erred because he failed to
properly consider her treating physicians opinion regarding her residual
functional capacity (RFC) and because the ALJ failed to perform a proper
credibility analysis.
Standard of Review
We review the agencys decision to determine whether the factual findings
are supported by substantial evidence in the record and whether the correct legal
standards were applied.
Bernal v. Bowen , 851 F.2d 297, 299 (10th Cir. 1988). In addition,
-4-
the agencys failure either to apply correct legal standards or to show us it has
done so is also grounds for reversal.
Shepherd v. Apfel ,
184 F.3d 1196, 1198 (10th Cir. 1999), that the medical improvement standard, as
defined by 20 C.F.R. 404.1594(b)(1) and (for our purposes) 416.994(b)(1)(i),
applies in closed period cases such as this one, in which a plaintiff is
determined to have been disabled for a finite period of time and thereafter
regained the ability to work.
The regulations define medical improvement as
[a]ny decrease in the medical severity of [the] impairment(s) which
was present at the time of the most recent favorable medical decision
that [the claimant was] disabled or continued to be disabled. A
determination that there has been a decrease in medical severity must
be based on changes (improvement) in the symptoms, signs and/or
laboratory findings associated with [the] impairment(s).
See 20 C.F.R. 416.994(b)(1)(i). In
if the evidence supporting the agencys decision is substantial, taking into account
whatever in the record fairly detracts from its weight.
Washington v. Shalala ,
Id.
The ALJ also stated that Dr. Boone stated that the claimant could return to
work after the first of the year,
Id. at 16 (emphasis
added). He then found that as of January 1, 1999, her impairments limited her to
light level work activity, with certain restrictions.
however, the record does not show that claimants condition had improved as of
January 1999.
In support of his determination that plaintiff could return to work because
of an improvement in her condition, as long as she did not return to heavy work,
the ALJ cited another letter of Dr. Boone in which he referred to her inability to
return to heavy work, but said she would need to pursue sedentary work.
Id.
at 232. This letter did not release her to return to work as of January 1, 1999,
and included Dr. Boones opinion that plaintiff would probably have some
element of chronic pain of the lower extremities due to a combination of scarring
around nerve roots with superimposed diabetic neuropathy changes,
id. , a point
stated that claimant could return to work after the first of the year.
Id. at 18.
Because this is a misstatement of what Dr. Boone in fact said, it cannot stand as
substantial evidence of medical improvement. Nor does it suffice to meet the
Commissioners requirements for evaluating opinion evidence, which require that
[w]e will always give good reasons in our notice of determination or decision for
the weight we give your treating sources opinion.
See 20 C.F.R.
1985) (holding it was error for ALJ to summarily reject some medical reports as
based on inadequate findings when they are comparable to reports ALJ found
sufficiently detailed);
see also Switzer v. Heckler , 742 F.2d 382, 385-86 (7th Cir.
1984) (holding it was improper for Secretary to use portions of report favorable to
her position while ignoring other parts). By mischaracterizing Dr. Boones
statements regarding plaintiffs possible return to work, the ALJ created whatever
inconsistency he thought there was. In sum, the ALJ failed in his obligation to
give Dr. Boones opinion substantial weight unless good cause is shown to
-8-
disregard it.
Aplt. App. Vol. 2, at 16. He did not, however, perform the required analysis.
In addition, in determining that plaintiffs statements were not supported by the
record, he again misstates that very record.
In discussing plaintiffs allegations of disabling pain, the ALJ
acknowledged her testimony that her pain was normally at seven on a scale of one
to ten; that she has a burning pain in her feet, aggravated by wearing shoes,
standing, or walking; that her hands hurt and ache; that she can stand about thirty
minutes; sit about forty minutes; that she can lift a gallon of milk; that during the
day she sits in a recliner; and that she attends church about once a month.
at 16-17.
-9-
Id.
The ALJ stated that [s]he has seen Dr. Studdard for routine medical care
with only one complaint of feet pain on February 22, 1999.
contrary, she complained again of foot pain and muscle cramps five days later.
Id. at 267. In fact, she had complained to Dr. Studdard of her left foot being hard
and swollen in December of 1997.
her feet and ankles, with numbness in her toes, during a consultative examination
in April of 1998.
back to her primary care physician in February of 1999, he noted that she might
need to see a neurologist. She had reported foot pain at that time, as well.
Aplt. App. Vol. 2, at 236.
The ALJ further opined that if plaintiff were in the constant and disabling
painful condition as alleged, it is reasonable to assume she would exhaust every
means possible to obtain relief of that pain.
take note of her consistent, persistent attempts to relieve the pain through
medication, an element critical when pain is alleged, including numerous reports
that her medication was not working or that she wanted to try something
-10-
different.
(quotation omitted). In this case, we have only the conclusion that plaintiffs
reported activities are not indicative of her complaints of totally disabling pain.
Aplt. App. Vol. 2, at 17. It is not sufficient, however, for the ALJ to state in
conclusory fashion that all claimants allegations have been considered or are not
credible. Rather, the ALJs decision must contain specific reasons for his
credibility determination. SSR 96-7p, 1996 WL 374186, at *2. Having failed to
properly assess plaintiffs credibility, in part by not giving specific reasons for
the weight given to [plaintiffs] statements, as supported by the record,
see id.
at *4, and by failing to adequately consider (or show us that he has considered)
Under the heading consistency, the adjudicator is told that [e]specially
important are statements made to treating . . . medical sources. SSR 96-7p,
1996 WL 374186, at *5.
The ALJ emphasized that plaintiff had not seen Dr. Boone since November
of 1998. Aplt. App. Vol. 2, at 17. The record shows, however, that she returned
to and was in frequent contact with Dr. Studdard after that time.
Id. at 265-72.
3
-11-
necessary to give plaintiff a full and fair review of her claim and to ensure a wellreasoned decision.
(10th Cir. 2001) (citing SSR 96-7p) (ALJ may not ignore evidence that does not
support his decision, especially when the evidence is significantly probative).
Finally, we note that the ALJs determination of plaintiffs RFC does not
comply with the requirements of SSR 96-8p, which requires separate
consideration of seven strength demands: i.e., sitting, standing, walking, lifting,
carrying, pushing, and pulling. 1996 WL 374184, at *5. Nor did the ALJ
complete the required function-by-function assessment.
simply found that her impairments limit her to light level work, Aplt. App.
Vol. 2, at 16, a determination he later declared to be reasonable.
Id. at 18.
This was error because at step 4 of the sequential evaluation process, the RFC
must not be expressed initially in terms of the exertional categories of sedentary,
light medium, heavy, and very heavy work. SSR 96-8p, 1996 WL 374184,
at *3. Consequently, the ALJs determination of plaintiffs RFC is also not
supported by substantial evidence. On remand, the ALJ must reevaluate
plaintiffs RFC in accordance with this ruling.
-12-
Conclusion
Because this cause must be remanded for further proceedings, the ALJ
will also need to reconsider plaintiffs application under the medical improvement
standards we announced in
Michael R. Murphy
Circuit Judge
-13-