Lindsey v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 22 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

DOYLE W. LINDSEY,

Plaintiff-Appellant,

v. No. 97-7135
(D.C. No. 96-CV-248-BU)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

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.

*
This order and judgment is not binding precedent, except under the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 Doyle Lindsey appeals the district court’s order affirming the

Commissioner’s denial of his application for supplemental security income (SSI)

benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. §

405(g).

The administrative law judge (ALJ) denied benefits at step five of the five-

step sequential process for determining disability. See Williams v. Bowen , 844

F.2d 748, 750-52 (10th Cir. 1988) (discussing five-step process). The ALJ

determined that plaintiff could perform a wide range of light work available in

significant numbers in the national and local economies and that he is therefore

not disabled within the meaning of the Social Security Act. The Appeals Council

denied plaintiff’s request for review, making the ALJ’s decision the final decision

of the Commissioner.

We review the Commissioner’s decision to determine whether it is

supported by substantial evidence and whether correct legal standards were

applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Soliz v. Chater , 82 F.3d 373, 375 (10th Cir.

1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). “In evaluating

the appeal, we neither reweigh the evidence nor substitute our judgment for that

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of the agency.” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800

(10th Cir. 1991).

Plaintiff contends that the ALJ erred in finding (1) at step three that

plaintiff does not have a Listed Impairment; (2) at step five that plaintiff retains

the capacity to perform light work; (3) that plaintiff does not suffer from a severe

mental impairment; and (4) that the ALJ’s credibility assessment is unsupported

by substantial evidence.

At the time of the hearing before the ALJ, plaintiff was a thirty-nine year

old who had completed three years of college and whose past relevant work

experience consisted of work as a farm and construction laborer and truck driver.

He alleges he has been unable to work since he sustained an on-the-job back

injury in October 1990. Plaintiff filed his application for benefits on March 28,

1994.

Following the accident, plaintiff was treated conservatively for back pain,

but with limited success. Between September 1991 and July 1992, plaintiff

underwent three back surgeries. In September 1991, he had a lumbar

laminectomy with disc excision. In January 1992, he underwent a second lumbar

laminectomy with disc excision. Having obtained no relief from the first two

operations, in July 1992 he had a third lumbar laminectomy with fusion

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stabilization using Rogozinski plates and excision of a disc protrusion. In

December 1992 he underwent a hemorrhoidectomy.

In March and April 1993, plaintiff participated in a “work hardening”

program intended to increase tolerances for sitting, standing, crouching, and

kneeling, to increase his abilities for lifting, carrying, pushing and pulling, and to

increase flexibility and weight-bearing capacities. He met some goals of the

program but not others. His attendance and progress were inconsistent. Upon

discharge in April 1993 the counselor recommended that he be rated at the “light

physical demand level and possibly be a candidate for vocational retraining.” II

R. 186. At the hearing, plaintiff testified that the mental aspect of the work

hardening program was good, “but as far as physically helping my body, no, but

just mentally it taught me to relax, and take my mind off my pain as best I can,

and, you know, just try to cope with life with what I have.” Id. at 278.

Plaintiff first argues that the record contains substantial evidence that he

suffers from a vertebrogenic disorder sufficient to meet or equal a listed

impairment because he has “[o]ther vertebrogenic disorders . . . with the

following persisting for at least 3 months despite prescribed therapy and expected

to last 12 months. With both 1 and 2:

1. Pain, muscle spasms, and significant limitation of motion in the
spine; and

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 2. Appropriate radicular distribution of significant motor loss with
muscle weakness and sensory and reflex loss.”

20 C.F.R. pt. 404, subpt. P, app. 1, § 1.05(C).

Plaintiff asserts that at step three the ALJ’s findings did not reflect specific

weighing of the evidence and give reasons for accepting or rejecting evidence.

See Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). 1

Under 42 U.S.C. § 405(b)(1), the ALJ is “required to discuss the evidence

and explain why he found that appellant was not disabled at step three.” Clifton ,

79 F.3d at 1009. In Clifton , the ALJ did not discuss the evidence or his reasons

for determining that appellant was not disabled at step three; he merely stated a

summary conclusion that appellant’s impairments did not meet or equal any Listed

Impairment. We held that “[s]uch a bare conclusion is beyond meaningful

judicial review,” and concluded that absent “ALJ findings supported by specific

weighing of the evidence, we cannot assess whether relevant evidence adequately

supports the ALJ’s conclusion that appellant’s impairments did not meet or equal

any Listed Impairment, and whether he applied the correct legal standards to

arrive at that conclusion.” Id. ; see also Hasting v. Callahan , No. 96-1221-MLB,

1997 WL 557332, at *1-2 (D. Kan. July 16, 1997); Farish v. Chater , No. 95-1276-

1
We recognize that the ALJ did not have the benefit of our decision in
Clifton , which was filed while this case was on review before the Appeals
Council. However, plaintiff raised the issue before both the magistrate judge and
the district court.

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MLB, 1997 WL 109689, at *2 (D. Kan. Feb. 21, 1997); Roberts v. Callahan , 971

F. Supp. 498, 501 (D. N.M. 1997).

In the instant case the ALJ’s opinion contains more discussion than in

Clifton . But it is still inadequate. Only one doctor, John A. Munneke, M.D.,

stated an opinion that plaintiff was not disabled. The ALJ relied strongly on that

opinion. Yet Dr. Munneke’s conclusion is inexplicable in light of his

immediately prior statement that based on his examination: “it is my opinion that

the patient has, as a result of the combination of these multiple injuries, 92%

impairment to the body as a whole representing a material increase of 8%. It is

my opinion that these injuries are synergistic and there is a need for a material

increase over and above the numerical sum of these injuries.” II R. 245. The

ALJ rejected the opinion of Michael D. Farrar, M.D., that plaintiff is totally

disabled because that doctor was retained by plaintiff’s attorney and he “included

occupational factors more appropriate to a vocational expert.” Id. at 15.

The ALJ recites evidence from Casey Truett, M.D.’s report but does not

mention that doctor’s conclusion that plaintiff is “100 percent permanently and

totally disabled.” Id. at 214. The ALJ recites evidence from the report of

consultive examiner Gerald A. Snider, M.D., but does not mention that doctor’s

conclusion that plaintiff suffers from “very marked” degenerative lumbar spine

disease, post lumbar laminectomy infusion after three spinal surgeries, “chronic

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strain of the left shoulder,”and controlled depression. Id. at 220. The ALJ rejects

the report of Thomas Conklin, Jr., D.O. that plaintiff is permanently and totally

disabled, because the doctor’s notes are unreadable. Dr. Conklin, however, is the

physician who treated plaintiff the most for his pain, and saw him many times

over a long period. His records contain many notes but in some kind of shorthand

that was perhaps unique to that doctor. An ALJ may not substitute his own

medical judgment for that of medical professionals, see Winfrey v. Chater , 92

F.3d 1017, 1023 (10th Cir. 1996), or reject apparently probative medical evidence

without explanation. See Teter v. Heckler , 775 F.2d 1104, 1106 (10th Cir. 1985)

(error to reject some medical reports as based on inadequate findings when they

are comparable to those reports the ALJ found sufficiently detailed).

In addition to summarily dismissing the pre-1995 notes of Dr. Conklin,

plaintiff’s primary treating physician, as “unreadable,” the ALJ made some

misstatements of the record. He relied on plaintiff’s attendance at school as

indicating a capacity to sit for extended periods. See II R. 18. But the record

indicates plaintiff’s last school attendance was no later than 1989, before the 1990

back injury he claims as the onset of his disability. See id. at 69, 79, 260, 276,

282-84. Also to reject plaintiff’s claims of disabling pain he says plaintiff failed

to appear at a work hardening program because “he was out all weekend doing

yard work.” Id. at 18. The record shows only that plaintiff did not show up one

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day because he told another patient he hurt too much “due to activities such as

mowing the yard over the previous weekend.” Id. at 184.

We are not satisfied the ALJ adequately or accurately discussed the

evidence and provided the explanation required by 42 U.S.C. § 405(b)(1).

Accordingly, we must reverse and remand for the ALJ to set out his specific

findings and his reasons for accepting or rejecting evidence at step three.

Because additional proceedings will now ensue at step three, it is

unnecessary to reach plaintiff’s alleged errors at step five. We note, however,

that in evaluating the credibility of pain testimony, in addition to the criteria

listed in 20 C.F.R. § 416.929(c)(3) and S.S.R. 96-7p, 1996 WL 374186 (July 2,

1996)), the ALJ should also take into consideration

the levels of medication and their effectiveness, the extensiveness of
the attempts (medical or nonmedical) to obtain relief, the frequency
of medical contacts, the nature of daily activities, subjective
measures of credibility that are peculiarly within the judgment of the
ALJ, the motivation of and relationship between the claimant and
other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.

Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991) (quoting Huston v.

Bowen , 838 F.2d 1125, 1132 (10th Cir. 1988)). We are particularly concerned

because the ALJ determined that plaintiff’s “statements concerning his

impairments . . . are not entirely credible in light of [his] own description of his

activities and lifestyle, discrepancies between [his] assertions and information

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contained in the documentary reports, [his] demeanor at hearing, the reports of the

treating and examining practitioners, the medical history, the findings made on

examination, and [his] assertions concerning his ability to work.” II R. at 19.

Except for his reliance on misstatements of the record, mentioned above, the ALJ

recited little to relate what activities or facets of plaintiff’s lifestyle he found to

be inconsistent with plaintiff’s description of pain. See e.g. , Winfrey , 92 F.3d at

1019 (“In addition to a lack of substantial evidence, the Secretary’s failure to

apply the correct legal standards, or to show us that she has done so, are also

grounds for reversal.”) Although we ordinarily defer to the ALJ on credibility

issues, the rule of deference is not absolute. See Thompson v. Sullivan , 987 F.2d

1482, 1490 (10th Cir. 1993). “Findings as to credibility should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise

of findings.” Huston , 838 F.2d at 1133.

Moreover, an ALJ “may not rely on minimal daily activities as substantial

evidence that a claimant does not suffer disabling pain.” Thompson , 987 F.2d at

1490 (citing Frey v. Bowen , 816 F.2d 508, 516 (10th Cir. 1987)). As previously

noted, the ALJ’s finding that plaintiff “began attendance at school, which he

maintained for awhile, which indicates a capacity for sitting for extended periods,

more than he currently admits,” II R. at 18, is unsupported by the record, as is his

statement about plaintiff being out “all weekend doing yard work.” Id. , see Sisco

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v. United States Dep’t of Health & Human Servs ., 10 F.3d 739, 743 (10th Cir.

1993) (ALJ may not build “factual basis by taking Plaintiff’s testimony out of

context and selectively acknowledging parts of her statements while leaving

important segments out”).

If, on remand, the ALJ again reaches the step-five determination, he should

reevaluate plaintiff’s claim of disabling pain in light of the entire record.

Accordingly, we REVERSE, and REMAND to the Commissioner for additional

proceedings consistent herewith.

Entered for the Court

James K. Logan
Circuit Judge

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