FILED
United States Court of Appeals
Tenth Circuit
February 6, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
EDDIE L. JONES,
Plaintiff-Appellant,
v. No. 08-6158
(D.C. No. 5:07-CV-01086-C)
MICHAEL J. ASTRUE, Commissioner (W.D. Okla.)
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
Plaintiff Eddie L. Jones appeals the district court’s order upholding the
commissioner’s denial of his application for social security disability benefits and
supplemental security income. We exercise jurisdiction under 28 U.S.C. § 1291
and 42 U.S.C. § 405(g), and remand for further proceedings.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Background
Mr. Jones alleges disability since September 30, 2004, due to low back pain
and numbness which radiates down into his left leg and foot. He injured his back
on April 27, 2003, while assisting a patient during his work as a Certified Nurse’s
Aide (CNA). Dr. Hahn diagnosed Mr. Jones as suffering from lumbar
degenerative disc disease at L4-5. Aplt. App. Vol. II at 256. In January 2004,
Dr. Hahn and Dr. Melton performed a discectomy and fusion at the L4-5 level.
Mr. Jones was followed medically for several months following the surgery, and
in August, 2004, Dr. Hahn recommended that he be evaluated to determine his
functional capacity. Accordingly, on August 27, 2004, Mr. Jones was evaluated
to determine his ability to return to work, and a Functional Capacity Evaluation
(FCE) report was produced. Id. at 287-322. The FCE concluded that Mr. Jones
could perform work at the sedentary level. Mr. Jones underwent an MRI on
August 1, 2005. It showed some disc dessication and bulge, but no central canal
or neural foraminal narrowing. Id. at 354. In December 2005, Mr. Jones had a
selective nerve root block that resulted in only a fifty percent relief in symptoms,
so Dr. Hahn recommended against further surgery. Id. at 351. At that time,
Dr. Hahn noted that the MRI “show[ed] no evidence of neurologic compromise
with well maintained foramina and central canal,” and recommended medication
for Mr. Jones’s neuropathic pain. Id. Dr. Cornelius treated Mr. Jones for pain
management from September 2004 to July 2005. Id. at 331-37. Mr. Jones
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testified at the administrative hearing that he took medication and used a TENS
unit for pain, and that he used a cane when walking. He stated that his pain
medication put him to sleep during the day for six to eight hours, id. at 423, and
his ability to sit, stand, and walk were limited by pain, id. at 426-27.
Mr. Jones’s application for social security benefits was denied initially, so
he requested further review. An administrative law judge (ALJ) held a hearing at
which Mr. Jones and a vocational expert testified. The ALJ concluded that
Mr. Jones was unable to return to his past work as a CNA, but he retained the
residual functional capacity (RFC) for a full range of sedentary work.
Accordingly, applying the Medical-Vocational Guidelines (the grids), 20 C.F.R.
Pt. 404, Subpt. P. App. 2, Rules 201.27, 201.28, and 201.29 1 the ALJ determined
that Mr. Jones was not disabled under the Social Security Act. The ALJ therefore
denied benefits at step five of the five-part sequential evaluation process. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (describing five
steps).
The Appeals Council denied Mr. Jones’s request for review, making the
ALJ’s decision the final decision of the Commissioner. See Jensen v. Barnhart,
436 F.3d 1163, 1164 (10th Cir. 2005). The district court adopted a magistrate
judge’s recommendation to affirm the Commissioner’s decision. Mr. Jones
appeals.
1
The ALJ mistakenly cited to Rules 201.25 and 201.26.
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Legal Framework
We review the Commissioner’s decision to ascertain whether it is supported
by substantial evidence in the record and to evaluate whether he applied the
correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). To
determine whether substantial evidence supports the Commissioner’s decision, we
examine the record as a whole, but we do not reweigh the evidence. Id.
In this context, “disability” requires both an “inability to engage in any
substantial gainful activity” and “a physical or mental impairment, which provides
reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002) (internal
quotation marks omitted). The impairment must be a “‘medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12
months. . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C. § 423(d)(1)(A)).
On appeal, Mr. Jones argues that the ALJ (1) failed properly to evaluate his
credibility regarding pain, and (2) committed legal error by applying the grids even
though Mr. Jones’s pain constituted a nonexertional impairment.
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Credibility
The ALJ found Mr. Jones’s allegations of disabling pain “not totally
credible.” Aplt. App. Vol. II at 19. In discrediting Mr. Jones’s testimony, the ALJ
stated generally that the objective evidence did not account for his pain allegations.
Mr. Jones argues that the ALJ erred because he failed to refer to specific evidence
to support his conclusion. We agree.
It is well-established that “[c]redibility determinations are peculiarly the
province of the finder of fact,” but “findings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotations omitted).
The ALJ discounted Mr. Jones’s testimony on his ability to walk and sit as
“not substantiated by the objective medical evidence in the record.” Aplt. App.
Vol. II at 19. But the ALJ did not identify the evidence he relied on for this finding.
Similarly, the ALJ found that Mr. Jones’s “description of the symptoms and
limitations was greater than what the objective record establishes.” Id. Again, the
ALJ failed to link the symptoms and limitations to any of the medical evidence, or
to explain what evidence supported this conclusion.
In his credibility findings, the ALJ did identify two medical records to
support his conclusion: the August 27, 2004, FCE concluding that Mr. Jones could
perform sedentary work, and “the functional restrictions on activities presented by
the claimant’s treating doctor.” Id. The ALJ did not identify which of Mr. Jones’s
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treating physicians he referred to, given that Mr. Jones was treated by more than one
physician. We assume the ALJ referred to Dr. Hahn because Dr. Hahn’s August 30,
2004, letter approved the FCE in which the functional restrictions were described.
Id. at 357. Even this finding, arguably linked to evidence in the record, is not
supported by substantial evidence because the record shows that after August 2004,
Mr. Jones repeatedly sought relief from his pain, efforts not mentioned in the ALJ’s
credibility discussion.
Mr. Jones sought pain management from Dr. Cornelius on September 27,
2004, October 22, 2004, February 2, 2005, March 5, 2005, May 16, 2005, June 17,
2005, and July 25, 2005. Id. at 331-37. Dr. Cornelius recommended that Mr. Jones
again consult Dr. Hahn, the back surgeon, for pain relief, and on October 13, 2005,
Mr. Jones did so, see id. at 352. Dr. Hahn had Mr. Jones undergo a selective nerve
root block in December 2005, but because he received only fifty percent relief from
it, further surgery was not recommended. Instead, Dr. Hahn prescribed medication
to relieve “neuropathic pain.” Id. at 351. In addition, Dr. Blough opined in
September 2004 that Mr. Jones would need continued pain management for his back
pain. Id. at 284.
The ALJ did not expressly consider Mr. Jones’s “persistent attempts to find
relief from his pain, his willingness to try various treatments for his pain, and his
frequent contact with physicians concerning his pain-related complaints.” Hardman
v. Barnhart, 362 F.3d 676, 680 (10th Cir. 2004). This failure was error. See id.
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In sum, by stating only that Mr. Jones’s claim of disabling pain was not
supported by the objective evidence, the ALJ failed to affirmatively link his
findings to the evidence. The ALJ did not “explain and support with substantial
evidence which of [his] testimony he did not believe and why.” McGoffin v.
Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002). Moreover, “in the absence of a
more thorough analysis and more specific findings by the ALJ,” the ALJ cannot
disregard the post-August 2004 medical records of Mr. Jones’s attempts to find
relief for his pain. Angel v. Barnhart, 329 F.3d 1208, 1213 (10th Cir. 2003).
Therefore, we remand the ALJ’s credibility determination for further proceedings.
We emphasize that “no particular result is dictated, and we remand this matter only
to assure that the correct legal standards are invoked in reaching a decision based on
the facts of this case.” Id. at 1213-14 (citation and quotations omitted).
Application of the Grids
Mr. Jones also maintains that the ALJ’s application of the grids was improper
because his disabling pain constituted a nonexertional impairment. He further
contends that application of the grids was foreclosed by his need for a cane
prescribed for full-time use “to avoid falling,” Aplt. App. Vol. II at 332, and the
ALJ’s limitation on his RFC to “avoid concentrated exposure to hazardous
machinery or heights due to medication he takes for pain,” id. at 19.
Use of the grids is precluded “unless the claimant’s RFC precisely matches
the RFC specified for the grid relied upon.” Allen v. Barnhart, 357 F.3d 1140, 1143
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(10th Cir. 2004) (citing authorities). More specifically, “[t]he grids cannot be
applied conclusively if a claimant has nonexertional limitations that significantly
limit his ability to perform the full range of work in a particular RFC category on a
sustained basis.” Williams v. Bowen, 844 F.2d 748, 752 (10th Cir. 1988) (quotation
omitted). On the other hand, the grids may be applied if a claimant’s nonexertional
limitations do not further limit his ability to perform work at the applicable
exertional level. Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988).
The ALJ’s limitation on Mr. Jones’s ability to perform a full range of
sedentary work by avoiding dangerous machinery or heights does not erode the
occupational base because “[i]n general, few occupations in the unskilled sedentary
occupational base require work in environments with . . . unusual hazards, [such as]
moving mechanical parts of equipment, tools, or machinery [and] working in high,
exposed places.” Social Security Ruling 96-9p, 1996 WL 374185, at *9. But
Mr. Jones’s need to use a cane “can be considered a manipulative limitation,”
requiring evaluation “as to whether this non-exertional impairment was severe
enough to preclude [him] from performing a wide range of sedentary work.” Walker
v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987). Similarly, if a proper evaluation of
Mr. Jones’s pain reveals limitations that reduce his functionality, the grids may not
be applied conclusively. Accordingly, this issue is also remanded for further
proceedings.
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Conclusion
Because the ALJ failed to apply the correct legal standards in assessing
Mr. Jones’s pain, and because that determination and Mr. Jones’s need to use a cane
may affect the decision to apply the grids, we REVERSE the district court’s
judgment and REMAND this case to the district court with instructions to remand
the case to the Commissioner for further proceedings in accordance with this
decision.
Entered for the Court
Michael R. Murphy
Circuit Judge
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