F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 21 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HELEN PETTIGREW,
Plaintiff-Appellant,
v. No. 99-7080
(D.C. No. 97-CV-552-B)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , 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(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This order and judgment is not binding precedent, except under the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.
Plaintiff Helen Pettigrew appeals the district court’s affirmance of the final
decision by the Commissioner of Social Security denying her application for
disability benefits. Because the decision is not supported by substantial evidence
and several legal errors occurred, we reverse and remand for further proceedings.
Plaintiff filed an application for disability benefits on June 20, 1995,
alleging an inability to work due to neuropathy in all extremities, and pain and
weakness in her hands. After a hearing, an administrative law judge (ALJ) found
that although plaintiff could not return to her former work, she retained the ability
to perform a significant number of jobs in the economy and thus was not disabled.
The Appeals Council denied review, making the ALJ’s decision the final decision
of the Commissioner. The district court affirmed, and this appeal followed.
We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether correct legal standards
were applied. See Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotation omitted). We may “neither reweigh the evidence nor substitute
our judgment for that of the agency.” Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991).
-2-
Plaintiff argues that the Commissioner’s decision is not supported by
substantial evidence because (1) the ALJ ignored undisputed evidence that she
suffers from compressive injuries to her hands/arms that limit her ability to
perform repetitive movements; (2) the ALJ failed to give controlling weight to the
opinions of plaintiff’s treating physicians; (3) the hypothetical presented to the
vocational expert was legally deficient because it did not include any restrictions
on repetitive movement; and (4) the ALJ failed to analyze plaintiff’s pain
properly under Luna v. Bowen, 834 F.2d 161, 162-64 (10th Cir. 1987). After
reviewing the record, we agree with all of plaintiff’s arguments.
The undisputed medical evidence shows that plaintiff has two separate, but
related, conditions. Plaintiff is suffering from a hereditary peripheral neuropathy
syndrome that causes pain in her feet, legs, and arms. She is also suffering from
bilateral compressive neuropathies to the median and ulnar nerves in her
arms/wrists, for which she underwent surgery in 1991 and 1993. See R. at 70-72.
Despite the surgeries, plaintiff’s condition has worsened, as shown by nerve
conduction studies done in 1994 and 1995. See id.
Plaintiff has been treated by three physicians for her conditions. From
approximately April 1993 through June of 1995, Dr. Goodman, a neurologist,
treated her on eighteen occasions. His treatment notes document both plaintiff’s
compressive injuries–carpal tunnel syndrome and cubital tunnel syndrome–and
-3-
her familial neuropathy. See id. at 86-90. Dr. Goodman noted the continuing
deterioration of plaintiff’s condition, leading him to recommend that she
discontinue working. See id. at 81 (“Her hands are getting worse and she is
having difficulty working and the constant discomfort she is in is hard to live
with. . . . With progressiveness of her neuropathy and her constant discomfort
I do not think she can continue to work. . . . Although the neuropathy is not
caused by work the work aggravates the pain and discomfort that she has. . . . So,
it is my recommendation to her that she . . . consider retiring from work.”).
A second neurologist, Dr. Kareus, treated plaintiff during 1994 and 1995.
Dr. Kareus opined that plaintiff was suffering from a hereditary peripheral
neuropathy that made her vulnerable to compressive injuries to the nerves in her
arms and wrists. See id. at 72, 78-80, 84. He also noted that plaintiff’s condition
was deteriorating; that work, especially repetitive activity, seemed to exacerbate
her symptoms; and that her condition improved once she stopped working.
See id. at 80, 83-85.
Dr. Heim, an orthopedist to whom plaintiff was referred, noted plaintiff’s
continuing problems and her efforts to resolve the symptoms including surgery,
splinting, anti-inflammatories, and rest. After noting that plaintiff’s symptoms
were somewhat alleviated by rest, the orthopedist opined that plaintiff’s residual
problems were permanent, and that she should avoid repetitive activities. See id.
-4-
at 77 (“I think . . . damage to the ulnar nerve was such that it did not have the
capacity to heal . . . . The median nerve has obviously been released and has
improved, but the architecture of the wrist has been changed enough so that
repetitive activity is aggravating her surgery site. . . . I would not feel that
[plaintiff] is a good candidate for repetitive activities.”).
In August 1995, social security consulting physician Dr. Dean noted
plaintiff’s condition of familial peripheral neuropathy but found no physical
limitations. Dr. Dean did not address plaintiff’s prior surgeries, however, and did
not discuss her compressive neuropathies at all.
Based on this evidence, the ALJ determined that plaintiff was suffering
from hereditary peripheral neuropathy only, and that she retained the ability to
perform sedentary work limited only by her inability to grip or grasp on a
prolonged basis. The ALJ did not explain why he disregarded medical evidence
of compressive neuropathies in plaintiff’s arms and hands or her treating
physicians’ opinions that she should avoid repetitive activity.
“A treating physician’s opinion must be given substantial weight unless
good cause is shown to disregard it.” Goatcher v. United States Dep’t of Health
& Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995). The opinion is entitled to
controlling weight “if it is well supported by clinical and laboratory diagnostic
techniques and if it is not inconsistent with other substantial evidence in the
-5-
record.” Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029
(10th Cir. 1994). The ALJ must give specific, legitimate reasons for disregarding
a treating physician’s opinion that a claimant is disabled. See Goatcher, 52 F.3d
at 290.
Here, substantial evidence in the record supports the opinions of plaintiff’s
treating physicians that she is suffering from two separate, albeit related,
conditions, and nothing in consultative physician Dean’s report contradicts these
opinions. Further, the restrictions placed by the treating physicians on plaintiff’s
ability to perform repetitive motions appear to be well-supported, and should have
been given controlling weight in the absence of any contrary indication in the
consultative physician’s report. The ALJ erred, therefore, in disregarding
plaintiff’s treating physicians’ diagnoses and their opinions that she is limited in
her ability to do repetitive movements.
The ALJ’s failure to credit the treating physicians’ opinions undermines the
vocational expert’s assessment of plaintiff’s abilities as well. At the hearing, the
ALJ posed the following hypothetical to the vocational expert:
I would ask you to generally assume that the claimant’s standing and
walking limitations may confine her to the performance of sedentary
work. She could not perform–she can perform manipulative activities
with both hands involving fingering and feeling but she cannot
involve herself in handling activities that require frequent or
prolonged gripping or grasping. And I, I don’t know. These . . .
manipulative limitations are always difficult to articulate, but what
we’re talking about is that her ability for fingering, that is moving
-6-
her fingers in coordinated fashion is not limited and she doesn’t have
a limitation of feeling, size, shape, temperature and texture of objects
but she, she can do some grasping and gripping but she can’t do
grasping and gripping on a frequent, that is more than–in other
words, she couldn’t do so up to two-thirds of the workday or
gripping that is prolonged. That is where she has to sustain the grip
for prolonged periods.
R. at 130. The two jobs identified by the vocational expert based on this
hypothetical were a cashier job and an interviewer job requiring extensive
keyboard use. As both of these jobs involve repetitive movements, it is clear that
the ALJ’s failure to include a limitation on such activity in his hypothetical
invalidated his final decision regarding plaintiff’s ability to work. See Evans v.
Chater, 55 F.3d 530, 531-32 (10th Cir. 1995) (reversing final decision where
claimant suffered from bilateral carpal tunnel and the ALJ’s hypothetical failed to
include limitations on claimant’s ability to perform repetitive movements and/or
work requiring strength or dexterity that would place stress on her wrists).
Plaintiff also argues that the ALJ failed to analyze her pain under the Luna
v. Bowen framework. Under Luna , an ALJ must determine whether a claimant’s
subjective claims of pain are credible. See 834 F.2d at 163. In making this
determination, the ALJ should consider such factors as “a claimant’s persistent
attempts to find relief for his pain and his willingness to try any treatment
prescribed, regular use of crutches or a cane, regular contact with a doctor . . . the
claimant’s daily activities, and the dosage, effectiveness, and side effects of
-7-
medication.” Id. at 165-66. It is not sufficient for the ALJ simply to list these
factors and to state that he has considered them. He is required to “explain why
the specific evidence relevant to each factor led him to conclude [the] claimant’s
subjective complaints were not credible.” Kepler v. Chater , 68 F.3d 387, 391
(10th Cir. 1995).
Here, the ALJ simply stated that “[t]he claimant’s statements concerning
her impairment and its impact on her ability to work are not entirely credible in
light of the degree of medical treatment required, the reports of the treating and
examining practitioners, and the record as a whole.” R. at 14. In support, the
ALJ pointed to two alleged inconsistencies in plaintiff’s testimony, stating:
The undersigned notes that claimant alleges the surgery has
aggravated the neuropathy and weakened the grip, but she testified
that she can button a button, write, open a car door, and take a lid off
of a catsup bottle, but cannot pick up a cast iron skillet. When asked
if she felt she could perform a job where she would not have to be on
her feet or use her hands repetitively, she said that she did not think
so because her medication made her drowsy. It is interesting to note
that earlier in her testimony, she stated that she lies down due to
fatigue.
R. at 14. We do not view either of these statements as inconsistent, however.
The ALJ did not discuss any other evidence to support his conclusion that
plaintiff’s complaints were incredible, and did not explain why he rejected the
undisputed evidence that plaintiff has sought extensive treatment over the years;
has shown a willingness to try different treatments, including bilateral surgeries,
-8-
splinting, anti-inflammatories, and rest; that she takes strong pain medication
despite consistent reports to her doctors that it makes her drowsy; and that she
performs limited activity. Moreover, two of plaintiff’s treating physicians have
opined that she should discontinue working based on the severity of her pain.
Given this record, the ALJ’s cursory analysis of plaintiff’s pain was inadequate
under Luna and Kepler, and cannot stand.
The judgment of the United States District Court for the Eastern District of
Oklahoma is REVERSED, and the case is REMANDED with directions to remand
the case to the Commissioner of Social Security for further proceedings.
Entered for the Court
Michael R. Murphy
Circuit Judge
-9-