F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 28 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT S. MCINTIRE,
Plaintiff-Appellant,
v. No. 97-6181
(D.C. No. 96-CV-469)
KENNETH S. APFEL, Commissioner, (W.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
Claimant Robert S. McIntire appeals from the district court’s order
affirming the Commissioner’s decision denying his application for disability
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
This order and judgment is not binding precedent, except under the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.
benefits and supplemental security income. *** Claimant alleged disability from
December 1993, due to insulin-dependant diabetes, diabetic retinopathy resulting
in a marked loss of vision, and back pain. In what became the final decision of
the Commissioner, the administrative law judge (ALJ) concluded, at step four of
the sequential analysis, see 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen,
844 F.2d 748, 750-52 (10th Cir. 1988), that claimant could return to his past
relevant work.
On appeal, claimant asserts that (1) the ALJ failed to include all of
claimant’s visual impairments in his residual functional capacity (RFC)
assessment; (2) the ALJ’s credibility determination was not supported by
substantial evidence; and (3) the ALJ’s step-four determination of no disability
was based on inappropriate reliance on the incorrect testimony of the vocational
expert.
We have jurisdiction over this appeal pursuant to 42 U.S.C. § 405(g) and 28
U.S.C. § 1291. 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. See Andrade v.
***
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. 34.1.9. The case is therefore
ordered submitted without oral argument.
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Secretary of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Castellano v. Secretary of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994) (citations and quotation omitted). “In
addition to a lack of substantial evidence, the [Commissioner’s] failure to apply
the correct legal standards, or to show us that [he] has done so, are also grounds
for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Claimant initially alleges that the ALJ failed to properly consider his vision
impairments in his RFC assessment. When determining disability at step four of
the sequential analysis, the ALJ must first assess claimant’s RFC and then
determine whether claimant can perform his past relevant work in light of the
limitations found. See id. at 1023-25 (discussing the three phases of step four in
detail). The ALJ complied with the first phase by finding that claimant could do
“light work that does not involve unprotected heights or dangerous moving
machinery.” Appellant’s App., Vol. II at 20. The ALJ further found that, as
described in the regulations, light work required “‘lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10
pounds[,]’” . . . and “‘a good deal of walking or standing, or sitting most of the
time with some pushing and pulling of arm or leg controls.’” Id. (quoting 20
C.F.R. §§ 404.1567(b) and 416.967(b)). The ALJ found claimant’s subjective
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complaints to be “inconsistent with the hearing record as a whole,” and
unsupported by objective medical evidence. Id. Because we determine that this
case requires remand due to errors in the second phase of the step-four analysis,
we will discuss claimant’s challenge to the ALJ’s decision at the first phase later
in this order and judgment.
At the second phase of the step-four analysis, the ALJ must develop the
record with “‘factual information’” regarding the actual work demands of
claimant’s past relevant work, and whether, given claimant’s physical and/or
mental limitations, claimant can meet those demands. Winfrey, 92 F.3d at 1024
(quoting SSR 82-62, Soc. Sec. Rep. Serv. Rulings 1975-1982, at 812). Here, the
ALJ merely stated that “[w]ithin the last fifteen years, the claimant worked as a
manager for a feed lot,” 1 and because the vocational expert had testified that this
job was in the light work category, and did not involve heights or moving
machinery, he could return to this work activity. Appellant’s App., Vol. II at 21.
From the record it appears that twenty-one years of claimant’s past work
history was spent as manager of the same grain facility. Claimant testified that a
1
Despite the fact that claimant’s representative corrected the ALJ and the
vocational expert at the hearing, see Appellant’s App., Vol. II at 60-61, in his
decision, the ALJ referred to claimant’s past relevant work as “manager for a feed
lot,” id. at 21. Our review of the record indicates that claimant’s only work
experience at a feed lot was a two-week job putting up fence posts. His job for
approximately twenty-one years was as manager of a grain facility.
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majority of his duties involved keeping grain accounts and inventory records, and
working in the retail store. Although claimant admitted that he was let go from
this job due to a restructuring, he also testified that he probably could not return
to the job because of his failing eyesight. He also testified that he could no
longer get work operating farm machinery because he could not see well enough
to drive.
The ALJ did not obtain any information about the specific demands of
claimant’s past relevant work that would have a bearing, not only on his
exertional abilities, but also on his restricted vision and poorly-controlled
diabetes. The vocational expert’s response to the ALJ’s hypothetical did not
elaborate on or provide any information regarding the demands of claimant’s past
work, either as claimant actually performed it or as the work is generally
performed in the national economy. As we stated in Winfrey,
[r]equiring the ALJ to make specific findings on the record at each
phase of the step four analysis provides for meaningful judicial
review. When, as here, the ALJ makes findings only about the
claimant’s limitations, and the remainder of the step four assessment
takes place in the VE’s head, we are left with nothing to review.
92 F.3d at 1025. Thus, because the ALJ failed to adequately develop the record,
he was unable to make the necessary findings of fact as to whether, given
claimant’s impairments, he could meet those demands. Therefore, we must
reverse and remand for further proceedings.
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Having determined the necessity of remand, we return to claimant’s
contention that the ALJ erred in not including claimant’s visual impairment in his
RFC assessment. The medical evidence supports claimant’s contention that he
suffered with diabetes for many years, was dependant on insulin injections twice a
day, and had frequent fluctuations in his blood sugar level. On January 6, 1994,
claimant’s optometrist, Steve T. Cauble, referred claimant to his medical doctor
because he observed “multiple microaneurysms and dot blot hemorrhages” in
claimant’s eyes. Appellant’s App., Vol. II at 162. At that time Dr. Cauble
recommended that claimant not drive “because of loss of central visual acuity.”
Id.
Claimant was then referred to Dr. Stephen R. Fransen, an ophthalmologist
in the Health Sciences Center at the University of Oklahoma. Dr. Fransen
diagnosed claimant as having “profuse, bilateral diabetic macular edema.” Id. at
137. Dr. Fransen reported that claimant complained of “blurring in both eyes
with significantly more difficulty on cloudy days or in dim illumination.” Id. He
further found that claimant’s vision fluctuated considerably.
Dr. Fransen recommended that claimant undergo laser treatment which he
opined would not reverse the damage, but would offer him a fifty-percent chance
of preserving his central vision. On April 15, 1994, following laser treatment on
both eyes, Dr. Fransen stated that claimant “sees 20/80+1 on the right side, [and]
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20/100 on the left.” Id. at 151. He recommended that claimant wait four months
before deciding whether additional laser treatment would be required.
During a follow-up examination on August 2, 1994, Dr. Fransen tested
claimant as seeing 20/80 on the right side and 20/160 on the left. He opined that
the “edema appears to be resolving on both sides,” but that “as the fluid resolves
the lipid precipitates out,” it may settle in the central fovea of the left eye, a side
effect which could not be prevented by further laser treatment. Id. at 167. Dr.
Fransen therefore recommended no further treatment as long as claimant’s vision
remained stable. He requested that claimant return in four months for follow-up.
At the hearing, claimant testified that it was no longer safe for him to drive
because of his eyesight, see id. at 39, and that he could not obtain work operating
farm machinery because he “can’t see what’s going on and read the instruments,”
id. at 48. He further testified that he could not read “unless it’s big print.” Id. at
52.
Although the medical evidence clearly supports claimant’s allegations of
visual impairment, the ALJ’s assessment of claimant’s RFC is completely devoid
of any discussion of these limitations. The magistrate judge found that the ALJ’s
inclusion of the impairments in his hypothetical to the vocational expert at the
hearing was sufficient. We do not agree. “[W]hile the ALJ may rely on
information supplied by the VE at step four,” Winfrey, 92 F.3d at 1025, he may
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not “abdicate[] his fact finding and evaluation responsibilities to the VE,” id. at
1026.
On remand, in addition to developing the record and making the requisite
findings regarding the demands of claimant’s past relevant work, we direct the
agency to reconsider the medical evidence of claimant’s visual impairments and
to include an evaluation and discussion of those impairments when reassessing
claimant’s RFC. Moreover, because of our decision in this case, the ALJ may
need to reassess the credibility of claimant’s testimony regarding the restrictions
imposed by his impairments. We note, however, that our intent here is not to
dictate any result, but simply to assure “that the correct legal standards are
invoked in reaching a decision based on the facts of this case.” Huston v. Bowen,
838 F.2d 1125, 1132 (10th Cir. 1988).
The judgment of the United States District Court for the Western District of
Oklahoma is REVERSED and REMANDED to the district court with directions to
remand the case to the agency for further proceedings consistent with this order
and judgment.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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