F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 9 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES TIMMONS,
Plaintiff-Appellant,
v. No. 04-7007
(D.C. No. CV-02-562-S)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District
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This order and judgment is not binding precedent, except under the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. 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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
Plaintiff-appellant James Timmons appeals from an order of the district
court affirming the Commissioner’s decision denying his applications for Social
Security disability and Supplemental Security Income benefits (SSI).
Timmons filed for disability benefits on September 11, 2000 and for SSI on
August 18, 2000. The medical evidence revealed that Timmons had impairments
including back problems, loss of his left eye, and alcohol abuse. The agency
denied his applications initially and on reconsideration.
On December 17, 2001, Timmons received a de novo hearing before an
administrative law judge (ALJ). The ALJ determined that Timmons could not
return to his past relevant work, which required heavy exertion. He found,
however, that Timmons retained the residual functional capacity (RFC) to perform
“very wide essentially full sedentary” work “except jobs requiring good bilateral
vision and good stereoscopic depth perception.” Aplt. App. at 16. Applying the
Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, table 1, rule
201.27 (the grids), the ALJ concluded that Timmons was not disabled within the
meaning of the Social Security Act. The Appeals Council denied review, making
the ALJ’s decision the Commissioner’s final decision.
STANDARD OF REVIEW
We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
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correct legal standards were applied. See Andrade v. Sec’y 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.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations
omitted).
The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing
a prima facie case of disability at steps one through four. See id. at 751 n.2.
If the claimant successfully meets this burden, the burden of proof shifts to the
Commissioner at step five to show that the claimant retains sufficient RFC to
perform work in the national economy, given his age, education, and work
experience. See id. at 751.
FACTS
Mr. Timmons is missing his left eye. He lost the eye from glaucoma at the
age of eighteen and has a prosthesis implanted in the socket.
In 1996, Timmons underwent cataract surgery on his right eye and received
a plastic intraocular lens implant. Dr. Shea, a consulting physician who examined
him, estimated his best corrected visual acuity in the right eye at 20/40.
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Dr. Jaiswal, who also examined Timmons, estimated his uncorrected vision in the
same eye at 20/25. 1
In August 2000, Timmons was working for a tree trimming company when
a safety rope gave way and he fell at least thirty feet, landing on his buttocks. He
suffered a burst fracture of his spine at the L2-L3 level, with ninety percent
stenosis of the canal. He also broke two ribs. Doctors at Baylor University
Medical Center preformed an anterior corpectomy at L3, with fusion and
instrumentation. Timmons was in a body cast for months, and lost thirty pounds.
By the time of the hearing, although he was over six feet tall, Timmons weighed
only 148 pounds.
Although follow-up was ordered after the traumatic back injury, Timmons
has not continued to see physicians for his back problems. He explained at the
hearing that he cannot afford medical treatment. Although prescribed painkillers,
1
Because of the way Dr. Jaiswal’s opinion (exhibit 10F) was collated, there
was some confusion about his opinion at the hearing. Mr. Timmons’ attorney
stated that Dr. Jaiswal’s written report, page one of exhibit 10F, stated that he had
20/25 vision. Aplt. App. at 148. The attorney believed that Dr. Jaiswal’s notes,
however, on page seven of the same report, showed 20/40 vision. Id. at 154. The
ALJ concluded that the 20/25 reading was an error and stated that he would use
the 20/40 reading as the correct one. Id. at 220-21. Page seven of exhibit 10F
does not contain Dr. Jaiswal’s notes, however; they are plainly Dr. Shea’s notes,
which have erroneously been attached to exhibit 10F rather than to exhibit 9F.
Thus, the record does not illustrate an inconsistency, and the ALJ correctly stated
in his ultimate decision that Dr. Jaiswal’s report “revealed 20/25 visual acuity in
the right eye without correction.” Id. at 14.
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he refuses to take them, preferring to live with the pain rather than to become
addicted.
Despite his serious back injuries, Timmons attempted to continue doing
some work to pay his child support obligations by driving a backhoe for Atoka
County. He was able to perform this part-time work, which he obtained thanks to
his ex-father-in-law’s ties to county government, through an unusual arrangement
that allowed him to skip work on days that his back hurt too badly for him to get
out of bed. He was also permitted to lie down at times on the job site. His visual
impairments did not bother him at this job because “[a] back hoe, I’m off in the
bar ditch, there’s nothing there to hit.” Aplt. App. at 238. The ALJ did not
consider this work for the county to be substantial gainful employment. We
agree.
At the ALJ hearing, Timmons described his past work, which involves
heavy, unskilled manual labor. There was no vocational expert testimony at the
hearing about the effect of Timmons’ visual deficits on the job base or on his
ability to do sedentary work. There was, in fact, no expert vocational testimony
at all. The ALJ did, however, pose the following hypothetical question to
Timmons:
Suppose there were a job, this is a lot different than what
you’ve done, but suppose there was a job, like being a, a, a
receptionist in an office building, all could, all you had to do was sit
and stand whenever you needed to for short periods, and people
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would come in the building and ask questions, such as where’s
Mr. Saunders office and what time’s Mr. Saunders back and you just
tell them he’ll be back at 3, or the parking is at the side of the
building, you don’t have to lift anything heavier than pen, pencil, pad
of paper, may be somebody leaves a briefcase that weighs less than a
gallon of milk, you have to put it on the table, and you’re, and when
you’re sitting, you’re sitting in a chair, like you’re sitting in now, and
there’s no bouncing around, there’s no hand levers, there’s no foot
levers, now that’d be a lot easier physically than what you’re doing,
wouldn’t it?
Id. at 255.
Timmons responded, “Yeah. As long as they let me lay down when I
needed to.” Id. When the ALJ indicated he could only lay down at breaks,
Timmons indicated that he doubted he could perform such work for eight hours a
day, five days a week. The ALJ’s question did not discuss any visual demands
that the hypothetical receptionist job might entail, despite Timmons’ testimony
that he cannot read fine print in a newspaper and can only watch television for
half an hour at a time before getting a headache.
Additionally, the ALJ made no effort at the hearing to reconcile the
discrepancies between Dr. Jaiswal’s and Dr. Shea’s estimates of Timmons’ visual
acuity. Instead, he engaged in an impromptu medical examination:
Q. Yeah. All right. How many fingers am I holding up?
A. That’s two.
Q. Okay. All right. Now how many am I holding up?
A. Four.
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Q. Okay. And what distance apart are we, about 10 feet?
A. Yeah, probably.
Id. at 261.
In his decision, the ALJ found that the loss of Timmons’ left eye was a
severe impairment. He stated that Timmons could not return to any of his past
relevant work. He then opined, however, that “[i]f claimant’s vision were a
serious problem he could not have done his part time back hoe driving job after
the alleged onset of disability.” Id. at 14. The ALJ did not discuss the visual
requirements of the backhoe job. He made no attempt to correlate the visual
requirements of work part-time driving a backhoe, outdoors during the daytime in
a ditch with no obstacles, with the sort of sedentary office work he believed
Timmons was capable of performing on a full-time basis. He also did not discuss
how the visual requirements of the outdoor driving job correlated with those of
the full range of sedentary jobs.
The ALJ completed his RFC assessment and found Timmons capable of
performing “very wide essentially full sedentary except jobs requiring good
bilateral vision and good stereoscopic depth perception.” Id. at 16. He then
applied the grids, concluding that rule 201.27 dictated a finding of “not disabled.”
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ANALYSIS
There was no basis for mechanical application of the grids here.
Mr. Timmons’ lack of vision in his left eye is a nonexertional impairment that
required consideration of vocational factors specific to his case. Since the ALJ
did not obtain any vocational testimony or cite any other vocational resource, and
since he failed to support his conclusion that Timmons’ eye problems were so
insignificant as to have essentially no impact on the job base, we must reverse and
remand for further consideration of Timmons’ claim.
The mere existence of a visual impairment did not, of course, prevent the
ALJ from relying on the grids. Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th
Cir. 1993). If the ALJ found that the visual impairment would have no significant
effect on Timmons’ ability to do a full range of sedentary work, he would still be
free to apply the grids. Id. Such a finding, however, like any of the ALJ’s
determinations, would have to be supported by substantial evidence. See Sykes v.
Apfel , 228 F.3d 259, 261 (3d Cir. 2000) (concluding that ALJ erred by failing to
support his conclusion that loss of binocular vision from blindness in one eye
would not significantly erode the occupational base for claimant with other,
exertional impairments).
Such substantial evidence is absent here. In fact, there are three substantial
difficulties with the ALJ’s approach. The first difficulty arises because he limited
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Timmons to unskilled, sedentary work. The ALJ eliminated Timmons’ past heavy
work from consideration, along with medium and light work, due to his severe
back impairment. He concluded that Timmons can only do sedentary work, and
has no transferable skills.
The Commissioner has recognized that the visual demands of unskilled
sedentary work differ markedly from those in other categories. While as a general
matter, there will be a substantial number of jobs across exertional levels
available for anyone who “retains sufficient visual acuity to be able to handle and
work with rather large objects,” SSR 85-15, 1985 WL 56857, at *8, this is not
true of sedentary, unskilled work:
Most sedentary unskilled occupations require working with small
objects. If a visual limitation prevents an individual from seeing the
small objects involved in most sedentary unskilled work . . . there
will be a significant erosion of the sedentary occupational base.
These cases may require the use of vocational resources.
SSR 96-9p, 1996 WL 374185, at *8.
The ALJ’s found that Timmons’ loss of his left eye was a “severe”
impairment. Aplt. App. at 14. The second problem with his decision arises
because this finding of severity appears inconsistent with his conclusion that the
eye impairment would pose only an “insignificant” effect on his ability to do the
full range of sedentary work. At the very least, the ALJ should have explained
how a “severe” impairment at step two became “insignificant” at step five.
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The third problem arises because the only reasons the ALJ gave for
concluding that Timmons’ eye problems were “insignificant” was the fact that he
drives a backhoe part time, and that one consulting physician assigned him
uncorrected 20/25 vision in his right eye. The ALJ made no finding about the
visual demands of the backhoe driving as Timmons performed it, and no attempt
to correlate them with sedentary work. As Timmons explained, the visual
demands of the backhoe job appear to be minimal.
The ALJ’s hypothetical sedentary receptionist position contained no
specific visual demands. In any event, there was no vocational testimony
concerning the visual demands of the position, or the more general visual
demands of a broad range of sedentary work, as compared to Timmons’ visual
acuity. As for Dr. Jaiswal’s opinion, this concerned only visual acuity in
Timmons’ right eye; the point is that he cannot see with his left eye at all.
Finally, although the ALJ made a conclusory statement that he found
Timmons’ testimony “not credible for the reasons set forth in the body of the
decision,” id. at 16, there are no specific reasons given for discounting Timmons’
credibility anywhere in the ALJ’s decision. Timmons testified that his visual
restrictions limited his ability to see small objects, and the ALJ cited no evidence
to contradict this testimony.
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We must remand for the limited purpose of obtaining vocational expert
testimony or other additional evidence of the effect of the identified nonexertional
limitations on Timmons’ ability to do substantially the full range of sedentary
work. We remind the ALJ that he
may not rely conclusively on the grids unless he finds (1) that the
claimant has no significant nonexertional impairment, (2) that the
claimant can do the full range of work at some RFC level on a daily
basis, and (3) that the claimant can perform most of the jobs in that
RFC level. Each of these findings must be supported by substantial
evidence.
Thompson , 987 F.2d at 1488.
The judgment of the district court is REVERSED, and the case is
REMANDED with instructions to REMAND to the Commissioner for further
proceedings in accordance with this order and judgment.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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