F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 24, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LY N ETTE R OM ER O,
Plaintiff-Appellant,
v. No. 06-6305
(D.C. No. 05-CV -01325-T)
M ICH AEL J. ASTRU E, * (W .D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.
Plaintiff-appellant Lynette Romero appeals from an order of the district
court affirming the Commissioner’s decision denying her applications for Social
Security disability and Supplemental Security Income benefits (SSI). We have
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
determined that the Commissioner failed to evaluate properly the opinion of her
treating physician, Dr. Haddock, concerning her ability to stand and to walk. We
therefore reverse and remand with instructions to remand to the Commissioner for
further evaluation Dr. Haddock’s opinion and its effect on the determination of
her residual functional capacity (RFC). While M s. Romero also challenges the
administrative law judge (ALJ)’s evaluation of her cellulitis and obesity, and his
assessment of her credibility, we do not discern any error in these areas, and
therefore do not require reconsideration of them on remand.
M s. Romero filed for benefits with a protected filing date of October 29,
2002, alleging disability based on tuberculosis, hepatitis C, asthma, severe
degenerative arthritis of the knee, hip pain, and reflux. 1 The agency denied her
applications initially and on reconsideration.
On November 18, 2004, appellant received a de novo hearing before an
ALJ. The ALJ determined that appellant retained the RFC to perform sedentary
work, with only occasional stooping and limited by her “moderate fatigue,
anxiety, and discomfort.” Aplt. App. at 23. He found that she could not return to
her past relevant work as a nurse’s aide, but that there were a significant number
of other jobs which she could perform in the national or regional economy. He
therefore concluded that she was not disabled within the meaning of the Social
1
The A LJ also identified “degenerative disc disease” among her severe
impairments. Aplt. A pp. at 25.
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Security Act. The Appeals Council denied review, making the ALJ’s decision the
Commissioner’s final decision.
We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
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 a sufficient RFC to
perform work in the national economy, given her age, education and work
experience. See id. at 751.
On appeal, M s. Romero raises two issues. She first contends that the ALJ
erred by developing an RFC that did not include all of her limitations.
Specifically, she argues that the RFC is flawed because the ALJ failed to
(1) evaluate properly the opinion of her treating physician, Dr. Haddock,
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concerning her ability to stand and walk; (2) include a restriction on her ability to
sit for a full work day, based on her cellulitis; and (3) give adequate consideration
of the effect of her morbid obesity on her ability to work. She also argues that the
ALJ failed to properly evaluate her credibility.
1. ALJ’s RFC Assessment
M s. Romero contends that the ALJ’s RFC was flaw ed because it failed to
include all of her limitations. As noted, the ALJ found that M s. Romero could
perform sedentary work involving only occasionally stooping and that she “would
have moderate fatigue, anxiety, and discomfort.” Aplt. App. at 23. Based on
these limitations, a vocational expert (VE) opined that there were sedentary,
unskilled jobs available that M s. Romero could perform in the national and
regional economy. Id. at 379-80. M s. Romero argues, however, that she is
actually more severely limited than the A LJ’s RFC indicates.
A. Dr. H addock’s O pinion
The A LJ imposed no restriction on standing or walking in M s. Romero’s
RFC, other than the limitations inherent in sedentary work. 2 Sedentary work
requires an ability to stand and/or walk “occasionally,” 20 C.F.R. §§ 404.1567(a),
416.967(a), up to two hours per day. See SSR 96-9P, 1996 W L 374185, at *3.
The A LJ’s hypothetical question to the VE is consistent with this definition. It
2
He did state that she would suffer from “moderate discomfort,” Aplt. App.
at 23, but it is unclear what, if any, limitation on her ability to stand and walk can
be derived from this general observation.
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reflects his assessment that M s. Romero could stand or walk for up to two hours
in a work day. Aplt. A pp. at 379.
But in a note dated October 29, 2004, M s. Romero’s treating physician
Dr. Haddock stated:
Lynette Romero has a severe problem with her lower back, right hip
and thigh. She has pain when she stands or tries to walk over
10 yards. The pain becomes too severe and she must stop and rest.
She is disabled for any work requiring her to stand or walk.
Id. at 287 (emphasis added).
W hen evaluating the opinion of a treating physician such as Dr. Haddock,
the ALJ must follow a sequential analysis to determine whether the opinion is
entitled to controlling weight, or whether it is entitled to some lesser,
non-controlling weight. 3 W here the ALJ rejects the treating physician’s opinion,
3
In the first step of this analysis, the ALJ should consider whether the
opinion is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is consistent with the other substantial evidence in the
record. See 20 C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003). If the answer to both these questions is “yes,” he must
give the opinion controlling weight. See Watkins, 350 F.3d at 1300. But even if
he determines that the treating physician’s opinion is not entitled to controlling
weight, the ALJ must then consider whether the opinion should be rejected
altogether, or assigned some lesser weight. He does this by applying the factors
provided in 20 C.F.R. §§ 404.1527 and 416.927. See Watkins, 350 F.3d at 1300.
These factors include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the physician’s opinion is
(continued...)
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he must give “specific, legitimate reasons” for doing so. Drapeau v. M assanari,
255 F.3d 1211, 1213 (10th Cir. 2001).
After summarizing Dr. H addock’s opinion, see id. at 21-22, the ALJ
rejected his ultimate conclusion summarily, noting “[t]here are no treatment
records by any physician to support [his] statement” that M s. Romero was
disabled for any work requiring her to stand or w alk. Id. at 23. This reasoning
was the only justification the A LJ provided for also dismissing Dr. Haddock’s
opinions that M s. Romero has “severe problem[s] w ith her lower back, right hip
and thigh;” that she “has pain when she stands or tries to walk over 10 yards;”
and that “[t]he pain becomes too severe and she must stop and rest.” Id. at 287.
Dr. Haddock’s conclusions concerning M s. Romero’s pain and limitation
(separate and apart from his ultimate conclusion about her inability to do any
work requiring her to stand or walk) find support in the treatment records and
therefore could not be cursorily dismissed for the reason the ALJ gave: lack of
medical evidence. The record is replete w ith evidence that M s. Romero
3
(...continued)
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and
(6) other factors brought to the A LJ’s attention which tend to support
or contradict the opinion.
Id. at 1301 (quotation omitted).
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experiences difficulties with both standing and walking. M oreover, her
limitations on standing and walking appear inconsistent with a full range of
sedentary work.
On April 25, 2003, agency consulting physician Dr. Vallis Anthony
examined M s. Romero and found her suffering from degenerative joint disease of
the right hip and knee, with marked crepitation. Aplt. App. at 160. He noted that
it w as very painful for her to be up very long on both her hip and her knee. Id. at
158. She could stand for about five minutes, range of motion in her right hip was
decreased and painful, and her right knee was swollen and quite tender at the joint
line. She walked around the room with difficulty and pain and Dr. Anthony noted
that she had a significant limp. The A LJ did not discount Dr. Anthony’s
observations concerning M s. Romero’s difficulties in standing and walking.
Dr. Anthony’s observations were borne out clinically on M ay 15, 2003,
when Dr. M olskness of the Sooner M edical Center examined x-rays of
M s. Romero’s right knee. He noted fluid loss in the joint space; marked sclerotic
changes involving the articular surface of the medial lateral femoral condyle,
medial lateral fibula and tibial table; and thinning of the paterallar femoral joint
space. His impression was that she suffered from a severe degree of degenerative
joint disease in the knee.
The medical record contains numerous other references to M s. Romero’s
back, knee, or joint pain. See id. at 92; 113; 116; 141; 149-50; 254; 257; 292.
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Notably, she has taken narcotic medications for her pain over the course of many
years. The ALJ’s cursory statement that there was no medical evidence to
support Dr. Haddock’s opinion, while perhaps adequate to reject the physician’s
opinion that she could not do any work that required standing or walking,
provides an insufficient basis to reject the remainder of the opinion.
But the Commissioner urges us to affirm the ALJ’s decision on a different
basis: that the jobs he eventually identified do not actually require any standing or
walking. At the hearing, M s. Romero’s attorney asked the VE whether an
inability to stand or walk would affect her ability to perform the jobs the VE had
identified. The VE responded that the unskilled occupations he had listed (which
were those the ALJ ultimately relied upon in his decision) typically required no
standing or walking. Aplt. App. at 380. The Commissioner cites the V E’s
response but omits the remainder of the colloquy. The attorney, noting that the
ALJ had limited M s. Romero to sitting for six hours during the work day,
followed up by asking the VE whether there were jobs she could perform that
would require her to work only for the amount of time she could spend sitting: six
hours a day. The VE acknowledged that such a limitation would significantly
reduce the sedentary job base. Id. at 381. The ALJ’s decision makes no mention
of the effect of this temporal restriction on the availability of a significant number
of jobs that M s. Romero could perform in the national or regional economy. W e
cannot, therefore, affirm his decision on this basis.
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In sum, even if the ALJ’s cursory dismissal of Dr. Haddock’s ultimate
opinion met the procedural requirements of the sequential analysis and was
supported by substantial evidence, he provided no reason for rejecting the
remainder of Dr. Haddock’s opinion concerning the pain and consequent
limitations M s. Romero experienced with standing or prolonged walking. In
particular, the ALJ did not discuss whether, in light of Dr. Haddock’s description
of her pain on standing and walking and the extensive detail concerning these
problems in the medical evidence, a greater restriction on standing or walking
than the full tw o hours associated with sedentary work might be appropriate. See
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (requiring ALJ to
consider “the degree to which the physician’s opinion is supported by relevant
evidence”) (emphasis added; internal quotation marks omitted). W e must
therefore remand for a more complete evaluation of Dr. H addock’s entire opinion.
This evaluation should include a complete analysis of the opinion using the
sequential analysis discussed in Watkins. Also, on remand, if the ALJ w ishes to
rely on jobs that require little or no standing or walking, he should give
consideration to whether such jobs are consistent with any durational limitation
on sitting that he finds (such as a limitation on six hours of sitting in an
eight-hour w ork day).
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B. Cellulitis
M s. Romero next argues that the ALJ failed to include any restriction on
her ability to sit for six hours per day, and her need to elevate her leg, based on
her history of cellulitis. As the Commissioner points out, however, M s. Romero’s
cellulitis has been only episodic and is currently in remission. Therefore, the ALJ
did not err in failing to include limitations due to cellulitis in his RFC.
C. O besity
M s. Romero further contends that the ALJ failed to give adequate
consideration to the effect of her morbid obesity on her ability to work,
particularly when considered in combination with her other impairments.
M s. Romero did not allege disability based on obesity, and the A LJ did not list
obesity among her severe impairments at step tw o of the sequential analysis.
Although her physicians included obesity as a diagnosis, none of the medical
evidence identified any specific restriction on her ability to work attributable to
obesity. Nor did she attribute any of her restrictions to obesity in her testimony at
the hearing. Finally, the medical records, Aplt. App. at 92, 159, and her
testimony at the hearing, id. at 358, indicate that her weight at the alleged
disability onset date was essentially the same as it had been for a number of
years, including during the time she was working. W e therefore conclude that the
ALJ permissibly determined that her obesity did not constitute a severe
impairment because there was no evidence it had “more than a minimal effect on
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[M s. Romero’s] ability to do basic work activities.” SSR 02-1P, “Titles II and
XVI: Evaluation of Obesity,” 2000 W L 628049, at *4.
2. ALJ’s Credibility A ssessment
M s. Romero contends that the ALJ failed to conduct an adequate evaluation
of her credibility and therefore wrongly discounted her testimony at the hearing.
The A LJ concluded that “the claimant’s allegations regarding her limitations are
not totally credible for the reasons set forth in the body of the decision.” A plt.
App. at 26. In his decision, he identified the factors that he was required to
consider w hen evaluating her subjective complaints. Id. at 22 (citing 20 C.F.R.
§§ 404.1529 and 416.929, and SSR 96-7p). He then summarized her testimony,
discussed a number of the factors, and listed his reasons for discounting the
testimony. Id. at 23. Specifically, he stated that she “has not been compliant
with her diet, medication, is a smoker with asthma and has not always kept
medical appointment[s] on a regular basis.” Id.
In determining a claimant’s credibility, the A LJ may consider such factors
as attempts to find relief, use of medications, and willingness to try any treatment
prescribed. Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987). “C redibility
determinations are peculiarly the province of the finder of fact, and we will not
upset such determinations when supported by substantial evidence.” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted). W hile the ALJ
must cite specific evidence relevant to the factors used in evaluating a claimant’s
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subjective complaints, and explain why if he concludes those complaints are not
credible, see id., this process “does not require a formalistic factor-by-factor
recitation of the evidence,” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
“So long as the ALJ sets forth the specific evidence he relies on in evaluating the
claimant’s credibility, [the procedural requisites] are satisfied.” Id. Our review
of the ALJ’s decision persuades us that the ALJ sufficiently provided his reasons
and stated the evidence he relied upon in finding M s. Romero’s testimony only
partially credible.
M s. Romero argues that the ALJ’s reasons were not supported by
substantial evidence. On the contrary, the record is replete with evidence of her
non-compliance with medical advice, including over a dozen occasions in which
she was warned to stop mixing methadone and narcotic medications. Aplt. App.
at 302-16. W hile she did reduce the amount she smoked, it is significant that her
doctors’ advice to quit smoking was made in the context of her asthma, for which
she had been admitted to the hospital, even as she continued smoking. Finally,
the record does reflect numerous missed appointments with her doctors. W e
conclude that the ALJ’s reasons for discounting her credibility were supported by
substantial evidence.
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The judgment of the district court is REVERSED, and the case is
REM ANDED to the district court, with instructions to remand to the
Commissioner for further proceedings in accordance with this order and
judgment.
Entered for the Court
Robert H. Henry
Circuit Judge
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