F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 5 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JIMMY D. LACKEY,
Plaintiff-Appellant,
v. No. 04-7041
(D.C. No. 03-CV-227-WH)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , 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This order and judgment is not binding precedent, except under the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 Jimmy D. Lackey appeals from a district court order affirming the
Commissioner’s denial of his application for social security disability benefits.
We examine the record as a whole to determine whether the Commissioner’s
decision is supported by substantial evidence and adheres to applicable legal
standards, though the scope of our review is limited to issues the plaintiff has
preserved and presented on appeal. Chambers v. Barnhart , 389 F.3d 1139, 1142
(10 th Cir. 2004). Plaintiff raises one legal issue: whether the failure of the
administrative law judge (ALJ) to address the records of an examining physician,
Dr. Metcalf, requires reversal. Adhering to the applicable regulations and circuit
precedent, we hold that it does.
The ALJ found that plaintiff, now fifty-seven years old, suffered from both
a severe physical impairment (chronic back pain from degenerative disk disease
aggravated by injury) and a severe mental impairment (bipolar disorder). These
precluded plaintiff’s return to his past work, from which he had no transferable
skills. The ALJ found that he did, however, have a residual functional capacity
(RFC) for light work, excluding repetitive bending or twisting, close attention to
detail, the exercise of independent judgment, and any more than minimal public
contact. A vocational expert cited several jobs satisfying these restrictions, which
the ALJ relied on to deny benefits at step five of the controlling analysis. See,
e.g. , Hackett v. Barnhart , 395 F.3d 1168, 1172 (10 th Cir. 2005).
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The ALJ noted that plaintiff’s disability claim was facially supported by his
treating physician, Dr. Rother, and his treating psychiatrist, Dr. Kula. Indeed, if
accepted, Dr. Rother’s assessment of plaintiff’s physical limitations alone would
negate the ALJ’s light RFC determination and require a finding of disability. 1
See
App. at 303-06. But the ALJ discounted Dr. Rother’s assessment in part as being
“inconsistent with the other substantial evidence in the record.” Id. at 17. While
this aspect of the ALJ’s analysis is not directly challenged here, it is significant in
that it underscores the corroborative importance of Dr. Metcalf’s opinions as an
examining physician. Thus, though Dr. Metcalf’s opinions might not establish
plaintiff’s disability per se, they nevertheless had two material roles to play in the
analysis of this case. First, they are relevant, albeit not controlling, evidence of
plaintiff’s disability in their own right and second, they figure in the analysis of
the weight to be accorded Dr. Rother’s potentially dispositive treating-physician
findings. We turn, then, to a consideration of Dr. Metcalf’s records.
1
Some limitations recognized in Dr. Rother’s assessment would preclude
work at any RFC. But even just considering his negation (through standing and
lifting restrictions) of the light RFC found by the ALJ, the difference between a
light and sedentary RFC here would have been dispositive of plaintiff’s disability
under the Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P., app.
2, § 201.10 (directing decision of “disabled” for sedentary individual closely
approaching advanced age without transferable skills if less than full high school
education), § 201.14 (same for high school graduate if education did “not provide
for direct entry into skilled work,” i.e., if education was not completed in recent
past for entry into sedentary work, id. , § 201.00(g)).
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Dr. Metcalf examined plaintiff several times between July 1997 and
October 1998. See id. 247-76. During this period, an MRI revealed lumbar disc
bulges at L3-4 and L4-5, and a markedly degenerative disc space at the L5-S1
level. See id. at 244-46. Consistent with this condition, Dr. Metcalf noted
limited mobility and pain associated with plaintiff’s lower back preventing his
return to work throughout this time. In his last report of October 28, 1998, Dr.
Metcalf made it clear that this impairment was permanent. See id. at 250. Using
workers’ compensation terminology, he quantified the extent of the impairment in
two ways: (1) “29% permanent impairment to the whole man due to the injury
sustained to his lower back,” broken down as “22% permanent impairment due to
limited range of motion of the lumbar spine” and “7% permanent impairment due
to the unoperated degenerative disk disease”; and (2) “100% permanent and total
economic disability for the performance of ordinary manual labor or any job for
which [plaintiff] is qualified by reason of education or past work experience.” Id.
Earlier, when asked to rate plaintiff’s capacity in terms more meaningful to social
security disability generally – and more specifically relevant here – Dr. Metcalf
indicated plaintiff was capable of only sedentary, not light, work. Id. at 257.
Agency regulations reflected in our circuit precedent prescribe how medical
opinions are to be evaluated. Unless a treating physician’s opinion entitled to
controlling weight is involved, 20 C.F.R. § 404.1527(d) directs the ALJ to
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“consider all of the [factors set out in § 404.1527(d)(1)-(6)] in deciding the
weight [to] give any medical opinion.” If upon considering these factors the ALJ
discounts a medical opinion, the ALJ must “provide specific, legitimate reasons
for rejecting it.” Doyal v. Barnhart , 331 F.3d 758, 764 (10 th Cir. 2003). As this
regulatory directive applies to any medical opinion, it includes medical opinions
of an examining physician like Dr. Metcalf. See id. Indeed, § 404.1527(d)(1)
specifically gives added weight to medical sources that, rather than merely
reviewing records, have examined the claimant.
Not all of a physician’s opinions are “medical opinions,” however. That
term is reserved for “judgments about the nature and severity of [a claimant’s]
impairment(s), including [his] symptoms, diagnosis and prognosis, what [he] can
still do despite impairment(s), and [his] physical and mental restrictions.” 20
C.F.R. § 404.1527(a)(2). In contrast, judgments that go beyond purely medical
findings to reach “issues reserved to the Commissioner” – such as the claimant’s
RFC, whether he meets or equals a listing at step three, application of vocational
factors, and the ultimate question of disability –“are not medical opinions, as
described in paragraph (a)(2) of this section.” Id. , § 404.1527(e). See 65 Fed.
Reg. 11866, 11868, 11870 (Mar. 7, 2000) (“amending [§ 404.1527(e)] by adding
an introductory paragraph to distinguish opinions on issues reserved to the
Commissioner from medical opinions,” and changing heading of regulation “from
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‘Evaluating medical opinions about your impairment(s) or disability’ to
‘Evaluating opinion evidence’ to more accurately identify the content of th[is]
section[],” since “the term ‘medical opinion’ means . . . judgments about the
nature and severity of an individual’s impairments, but [§ 404.1527] address[es]
other types of opinions too”).
This distinction is important. The agency “will not give any special
significance to the source of an opinion on issues reserved to the Commissioner.”
20 C.F.R. § 404.1527(e)(3); see Soc. Sec. Ruling (SSR) 96-5p, 1996 WL 374183,
at *2 (July 2, 1996). Even the opinions of treating physicians “are never entitled
to controlling weight or special significance” on such issues. SSR 96-5p, 1996
WL 374183, at *2; see SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996) (noting
that for treating source opinion to be entitled to controlling weight, it “must be a
‘medical opinion’” as defined “[u]nder 20 CFR 404.1527(a)”). More generally,
the multi-factor evaluative scheme in § 404.5127(d) is directed at “[h]ow we
weigh medical opinions” and, appropriate to that task, includes factors relating
specifically to the nature of the medical source, see § 404.1527(d)(1), (2), (5). As
§ 404.1527(e) and SSR 96-5p pointedly distinguish and exclude medical opinions
and discount the significance of an opinion’s medical source, the analysis guided
by § 404.1527(d) and our associated case law, see, e.g. , Robinson v. Barnhart ,
366 F.3d 1078, 1082 (10 th Cir. 2004), does not strictly apply.
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Nevertheless, the ALJ must “evaluate all evidence in the case record that
may have a bearing on the determination or decision of disability, including
opinions from medical sources about issues reserved to the Commissioner.” SSR
96-5p, at *3. Thus, while § 404.1527(e) and SSR 96-5p constrain the evaluative
process under § 404.1527(d), the ALJ must still assess “the extent to which the
opinion is supported by the record” and, in doing so, “must apply the applicable
factors” from § 404.1527(d). SSR 96-5p, at *3 (emphasis added). In particular,
when assessing the probative value of an opinion under§ 404.1527(e), it remains
“appropriate to consider the supportability of the opinion [ see § 404.1527(d)(3)]
and its consistency with the record as a whole [ see § 404.1527(d)(4)].” SSR
96-5p, at *3.
Applying these principles to the ALJ’s analysis of Dr. Metcalf’s records
leads us to conclude that this case must be reversed and remanded for further
proceedings. Some of what Dr. Metcalf said in his reports, including his finding
of 100% total disability for any job plaintiff is qualified to perform by education
or past work experience, falls under the scope of § 404.1527(e). On the other
hand, his underlying diagnosis of lumbar sprain associated with the MRI results,
his findings of limited range of motion, and his prognosis that the impairment
involved is permanent all appear to fit within the definition of medical opinion set
out in § 404.1527(a)(2). In any event, we need not pause long over the different
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types of opinions here, because the ALJ’s failure to mention Dr. Metcalf or his
records at all clearly violates the Commissioner’s own directives with regard to
either § 404.1527(a)(2) or § 404.1527(e) opinions. “[W]hen, as here, an ALJ
does not provide any explanation for rejecting medical [source] evidence, we
cannot meaningfully review the ALJ’s determination. Although we review the
ALJ’s decision for substantial evidence, we are not in a position to draw factual
conclusions on behalf of the ALJ.” Drapeau v. Massanari , 255 F.3d 1211, 1214
(10 th Cir. 2001) (citations and quotations omitted).
The Commissioner argues that Dr. Metcalf’s records are “irrelevant to the
period [under] review,” because he expressed his final opinions several months
before the alleged onset date of plaintiff’s total disability. Aplee. Br. at 11. 2
No
authority is cited for the proposition that medical reports prior to the operative
onset date are categorically irrelevant and, indeed, our precedent is to the
2
The Commissioner notes that plaintiff was trying to work at this time and
contends that this engagement in substantial gainful activity belies Dr. Metcalf’s
finding of disability. Argument in this vein is undercut by the Commissioner’s
own record citations showing plaintiff’s self-employment income at the time
(under $3000 per year) to be considerably less than what is presumptively
insubstantial for an employee under 20 C.F.R. § 404.1574(b), which (though not
controlling) informs the analysis for self-employed claimants too, see 20 C.F.R.
§ 404.1575(a)(2). Plaintiff’s testimony regarding his effort to work at this time,
that he “tried [his] best” but “could not do it, physically or mentally,” App. at 57,
is certainly not indicative of a capacity for substantial gainful activity. In sum,
the record is simply too scant for anything but speculation about the nature and
effect of plaintiff’s attempt to work at the time of Dr. Metcalf’s report.
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contrary. See Hamlin v. Barnhart , 365 F.3d 1208, 1223 n.15 (10 th Cir. 2004)
(holding medical reports predating disability period at issue “are nonetheless part
of [the claimant’s] case record, and should have been considered by the ALJ”).
And when, as here, a doctor reports that an impairment is permanent, the fact that
the report precedes the designated disability period is of limited practical import.
The Commissioner also asserts several reasons why Dr. Metcalf’s opinion should
not be deemed controlling or compel a finding of disability. But that is not the
issue, as plaintiff does not – and need not – claim that Dr. Metcalf’s report is
sufficient by itself to conclusively demonstrate his disability. Rather, we are
concerned with the necessarily incremental effect of the report on the aggregate
assessment of the evidentiary record (and, in particular, on the evaluation of the
potentially dispositive opinions of plaintiff’s treating physician, Dr. Rother),
which is a matter the ALJ must consider under the principles summarized above.
Our role is to ensure that the ALJ satisfies this institutional obligation.
Finally, even leaving aside the lack of factual and legal support for the
Commissioner’s arguments on appeal, affirming the denial of benefits on the basis
of such newly-mounted efforts to discredit Dr. Metcalf’s reports would violate the
prohibition on post hoc justification of administrative action. See Robinson, 366
F.3d at 1084-85. Nor do we see “the right exceptional circumstance” here for a
harmless error approach: we cannot “confidently say that no reasonable
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administrative factfinder,” properly considering the materials from Dr. Metcalf in
conjunction with the rest of the record, “could have resolved [the case] in any
other way” than the ALJ did by neglecting those materials. Allen v. Barnhart ,
357 F.3d 1140, 1145 (10 th Cir. 2004).
The judgment of the district court is REVERSED and the cause is
REMANDED with directions to remand, in turn, to the Commissioner for further
administrative proceedings consistent with the principles discussed above.
Entered for the Court
David M. Ebel
Circuit Judge
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