Hamby v. Astrue

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS January 7, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

PEGGY HAMBY,

Plaintiff-Appellant,

v. No. 07-5051
(D.C. No. 05-CV-609-FHM)
MICHAEL J. ASTRUE, Commissioner (N.D. Okla.)
of the Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HOLMES, HOLLOWAY, and SEYMOUR, Circuit Judges.

Plaintiff Peggy Hamby appeals from a district court order affirming the

Social Security Commissioner’s decision to deny her application for social

security disability benefits. Exercising our jurisdiction under 42 U.S.C. § 405(g)

and 28 U.S.C. § 1291, we reverse.

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
 I.

Ms. Hamby, an office worker, applied for disability insurance benefits on

June 21, 2001, alleging disability since December 31, 1997, due to several

medical problems, including obesity, “acid reflux, hypertension, osteoarthritis,

nerves, horseshoe kidney, kidney stones (chronic),” bone problems in both feet,

and hypertension “caus[ing] dizziness [and] severe headaches.” Admin. R. at 98.

After a November 26, 2002, hearing, an administrative law judge (ALJ)

determined that Ms. Hamby was not disabled at step four of the sequential

evaluation process. See 20 C.F.R. § 404.1520. 1 The ALJ found that she retained

1
As this court has explained:

The Commissioner is required to follow a five-step sequential
evaluation process to determine whether a claimant is disabled. The
claimant bears the burden of establishing a prima facie case of
disability at steps one through four. Step one requires the claimant
to demonstrate that [s]he is not presently engaged in substantial
gainful activity. At step two, the claimant must show that [s]he has a
medically severe impairment or combination of impairments. At step
three, if a claimant can show that the impairment is equivalent to a
listed impairment, [s]he is presumed to be disabled and entitled to
benefits. If a claimant cannot meet a listing at step three, [s]he
continues to step four, which requires the claimant to show that the
impairment or combination of impairments prevents [her] from
performing [her] past work.

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 [residual functional capacity] to
perform work in the national economy, given her age, education, and
work experience.

(continued...)

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the residual functional capacity (RFC) to perform her past relevant work despite

her severe impairments. On judicial review, a magistrate judge, ruling by consent

of the parties, determined that the ALJ failed to provide a sufficient evaluation of

Ms. Hamby’s ability to perform her past relevant work. He therefore remanded

the matter to the agency for further administrative proceedings.

On remand, another ALJ held a hearing and issued a decision again finding

that Ms. Hamby is not disabled at step four. Alternatively, the second ALJ

decided that Ms. Hamby is not disabled at step five because she could perform

other work that exists in significant numbers in the national economy.

Ms. Hamby sought judicial review of the denial of benefits. In the district court,

a second magistrate judge affirmed. Ms. Hamby now appeals that decision.

II.

Medical record

Ms. Hamby’s medical record reflects multiple health problems. She is

obese, with elevated blood pressure and “mild coronary artery disease,” Admin.

R. at 392. She has frequently complained of foot, hip, knee, and back pain;

headaches; shortness of breath; dizziness; palpitations; fatigue; and chest

discomfort. Also, Ms. Hamby has a genetic abnormality called horseshoe kidney,

1
(...continued)
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and internal
quotation marks omitted).

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which makes her susceptible to kidney-stone formation. In December 2000, she

underwent a surgical procedure for removal of a kidney stone.

Hearing testimony

At the remand hearing on June 16, 2005, Ms. Hamby testified about pain in

her knees, feet, and back; headaches and dizziness from hypertension; drowsiness

from medication; intermittent symptoms from acid reflux disease; incontinence;

and her kidney condition. She also said that she has a “damaged” heart. Id. at

439. Although she feels anxious, she is no longer on anxiety medication. She

uses a nonprescription cream for joint pain and takes Darvon, an opioid analgesic

that makes her drowsy. For hypertension, she takes prescription medications and

must avoid anti-inflammatories that could relieve her joint pain.

In describing her activities, Ms. Hamby related that she does very little

housework, watches some television, visits her mother, and goes to church twice a

week. She takes a nap “almost every day” and frequently dozes off. Id. at

443-46. She does not “stand hardly at all” and walks only in the house. Id. at

446. She uses a four-post cane because Dr. Johnson, a treating physician, told her

“[t]o use it as needed,” and without it she must hold onto the walls. Id. at 447-48.

Ms. Hamby can lift a half-gallon of milk but cannot carry it. Both Ms. Hamby

and her daughter testified that she has a frequent, urgent need to use the

bathroom.

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 A vocational expert (VE) testified that Ms. Hamby’s previous jobs of

church secretary, receptionist, and data entry clerk may be classified as sedentary

and either skilled or semi-skilled. 2 The ALJ described a hypothetical female,

fifty-one years old (Ms. Hamby’s age at the last-insured date), with Ms. Hamby’s

work background, with fifteen years of education, with a good ability to read, to

write, and to use numbers, needing “to change position from time to time to

relieve her symptomatology,” limited to sedentary work (lifting and carrying ten

pounds and standing and walking two hours and sitting six hours in an eight-hour

day), and in mild to moderate chronic pain but with the ability to remain attentive

and responsive. Id. at 455-56. He then asked the VE whether this hypothetical

woman could return to her past relevant work or perform other jobs in the

national and regional economy. The VE testified that the hypothetical individual

could perform her previous jobs and had transferable skills allowing her to

2
In her appellate brief, Ms. Hamby notes discrepancies between the job titles
applied in the first and second ALJ proceedings. [Aplt. Br. at 31-32]. The first
decision stated that the VE considered Ms. Hamby’s past relevant work to be
telephone sales and data entry clerk, which are semi-skilled and sedentary
positions. [Admin. R. at 25]. As stated above, the second decision classified
Ms. Hamby’s past relevant work as church secretary, receptionist, and data entry
clerk. In light of our disposition of this appeal, we need not speak definitively
regarding the implications of these apparent discrepancies. We note, however,
that the inconsistencies are not necessarily indicative of error, although the ALJ
may wish to provide a clarification of Ms. Hamby’s job titles on remand. At the
same time, the ALJ may receive additional testimony on whether Ms. Hamby’s
part-time work as church secretary qualified as past relevant work and also on the
exertional demands of the data-entry-clerk position.

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perform other jobs existing in significant numbers in the national and regional

economy.

The ALJ then posed a series of questions based on an assumption that

Ms. Hamby’s testimony was “credible and substantially verified by third-party

medical evidence.” Id. at 459. The ALJ added requirements, such as easy access

to restrooms and permission to take a one to two-hour nap, along with limitations,

such as an inability to withstand stress, sit more than thirty minutes at a time,

stand more than five to ten minutes, and a propensity to doze off. The VE

generally responded that a hypothetical person with those requirements and

restrictions could not keep any job.

ALJ decision

The ALJ first concluded that Ms. Hamby had “problems with obesity,

stomach, hypertension, kidney, back, feet, hiatal hernia, anxiety, vision, knee,

heart, headaches, shoulder, hands, wrists and hip, which could place substantial

limitation . . . upon [her] basic work activities.” Id. at 330-31 (citing 20 C.F.R.

§ 404.1521, which provides examples of “basic work activities, . . . the abilities

and aptitudes necessary to do most jobs”). Without further describing these

impairments, the ALJ found generally that Ms. Hamby had “a severe impairment

by Social Security definition” at step two of the sequential evaluation process.

Id. at 331. This step-two determination was the ALJ’s last specific reference to

most of Ms. Hamby’s medical problems. Proceeding to step three, the ALJ

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determined that Ms. Hamby’s impairments, considered singly or jointly, did not

meet or equal a listing.

At step four, the ALJ discussed portions of the medical record and

discounted much of Ms. Hamby’s testimony. Concerning Ms. Hamby’s daily

activities, the ALJ selectively recited her testimony and related that she drives two

miles a week, attends church twice a week, visits her mother, and does some

household chores. The ALJ did not mention Ms. Hamby’s stated drowsiness and

incontinence issues. He acknowledged that Ms. Hamby expressed a “plethora of

subjective complaints,” but was “persuaded that the degree of pain alleged to be

disabling cannot be found as fact.” Id. at 334.

The ALJ decided that Ms. Hamby has the RFC to perform a wide range of

sedentary work: lifting and carrying ten pounds, standing or walking two hours

and sitting six hours in an eight-hour workday, and occasionally stooping. With

these restrictions, according to the ALJ, Ms. Hamby could perform her past

relevant work. Also, the ALJ found she had transferable skills and the RFC to

perform other jobs available in the regional and national economy. At both steps

four and five, the ALJ determined that Ms. Hamby “is not under a ‘disability’ as

defined in the Social Security Act.” Id. at 337. On judicial review, a magistrate

judge affirmed. This appeal followed.

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 III.

This court “determine[s] whether the ALJ’s decision is free from legal error

and supported by substantial evidence,” which is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Blea v.

Barnhart, 466 F.3d 903, 908 (10th Cir. 2006) (internal quotation marks omitted).

“[W]e meticulously examine the record as a whole,” Grogan v. Barnhart, 399 F.3d

1257, 1262 (10th Cir. 2005), but “we neither reweigh the evidence nor substitute

our judgment for that of the agency,” Salazar v. Barnhart, 468 F.3d 615, 621

(10th Cir. 2006).

Ms. Hamby’s fundamental issue on appeal is that the ALJ’s RFC findings

are not supported by substantial evidence and do not comply with the applicable

legal standards. A closely related argument is that the RFC findings are flawed

because the ALJ failed to make a proper credibility determination. “RFC is what

an individual can still do despite . . . her functional limitations and restrictions

caused by . . . her medically determinable . . . impairments.” Soc. Sec. R. 96-9p,

“Titles II and XVI: Determining Capability to Do Other Work–Implications of a

Residual Functional Capacity for Less Than a Full Range of Sedentary Work,”

1996 WL 374185, at *1. “In determining a claimant’s [RFC], the ALJ should first

assess the nature and extent of the claimant’s physical limitations and then

determine the claimant’s residual functional capacity for work activity on a regular

and continuing basis.” Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)

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(internal quotation marks and alterations omitted). He must “consider all of the

claimant’s medically determinable impairments, singly and in combination; the

statute and regulations require nothing less” and a failure to do so “is reversible

error.” Salazar, 468 F.3d at 621.

In deciding Ms. Hamby’s case, the ALJ concluded that she had many severe

impairments at step two. He failed to consider the consequences of these

impairments, however, in determining that Ms. Hamby had the RFC to perform a

wide range of sedentary work. On judicial review, the magistrate judge attempted

to fill in the evidentiary analysis, but post-hoc rationalizations are insufficient.

Grogan, 399 F.3d at 1263. 3

In particular, the ALJ failed to give adequate consideration to the effect of

Ms. Hamby’s obesity in combination with her other severe impairments. The

agency “will not make assumptions about the severity or functional effects of

obesity combined with other impairments” because “[o]besity in combination with

another impairment may or may not increase the severity or functional limitations

of the other impairment.” Soc. Sec. R. 02-1p, “Titles II and XVI: Evaluation of

3
The magistrate judge relied heavily on the opinion of Dr. Williams, which
was submitted after the close of the hearing and not mentioned in the ALJ’s
decision. “[C]ourt[s] may not create or adopt post-hoc rationalizations to support
the ALJ’s decision that are not apparent from the ALJ’s decision itself.” Haga v.
Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007); see also Robinson v. Barnhart,
366 F.3d 1078, 1084 (10th Cir. 2004) (“The ALJ’s decision should have been
evaluated based solely on the reasons stated in the decision.”).

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Obesity,” 2000 WL 628049, at *6. Each case will be evaluated “based on the

information in the case record.” Id. In spite of the teachings of SSR 02-1p, the

ALJ provided no discussion of the effect of obesity on Ms. Hamby’s other severe

impairments.

Also, the ALJ’s RFC determination is based in large part on his conclusion

that Ms. Hamby exaggerated her subjective complaints and did not present “a

picture of a person suffering from chronic, severe, unrelenting pain.” Admin. R. at

334. While a claimant’s credibility is generally an issue reserved to the ALJ, the

issue is reviewable to ensure that the underlying factual findings are “closely and

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

of findings.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (internal

quotation marks omitted). As part of the RFC evaluation process, the ALJ must

take into account any subjective allegations “which can reasonably be accepted as

consistent with the objective medical evidence and other evidence.” 20 C.F.R.

§ 404.1529(c)(3). He should give careful consideration to “[t]he location,

duration, frequency, and intensity of . . . pain or other symptoms”; “[p]recipitating

and aggravating factors”; “type, dosage, effectiveness and side effects of any

medication”; “[t]reatment, other than medication,” for pain relief; and the

claimant’s “daily activities.” Id.

In analyzing Ms. Hamby’s recounted symptoms, the ALJ looked to her daily

activities (which were minimal); a determination that she took no “narcotic based

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pain relieving medications” (even though she did take Darvon), and sought only

conservative treatment for her foot problems and acid reflux. Admin. R. at

333-34. The ALJ did not even make a perfunctory comment on the testimony of

Ms. Hamby and her daughter relating to incontinence; or on Ms. Hamby’s

additional testimony concerning medication side effects limiting her ability to

concentrate, drowsiness, use of an assistive device, and the need to alternate

standing and sitting. Thus, in finding Ms. Hamby only partially credible, the ALJ

applied incorrect legal standards and failed to articulate his reasoning with

sufficient specificity. The legal flaws in the ALJ’s RFC determination and his

corresponding credibility findings means that the denial of benefits cannot be

affirmed.

IV.

“When a decision of the Secretary is reversed on appeal, it is within this

court’s discretion to remand either for further administrative proceedings or for an

immediate award of benefits.” Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir.

1993). “Some of the relevant factors we consider are the length of time the matter

has been pending and whether or not given the available evidence, remand for

additional fact-finding would serve any useful purpose but would merely delay the

receipt of benefits.” Salazar, 468 F.3d at 626 (citation, internal quotation marks,

and alteration omitted). On the record before us, we are not convinced that a

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remand would be an exercise in futility. We therefore reject Ms. Hamby’s request

for an immediate award of benefits.

The judgment of the district court is REVERSED and the case is

REMANDED 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

Jerome A. Holmes
Circuit Judge

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