FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DIANNA L. LEWIS,
Plaintiff-Appellant,
v. No. 16-5061
(D.C. No. 4:14-CV-00773-TLW)
NANCY A. BERRYHILL, Acting (N.D. Okla.)
Commissioner Social Security,
Defendant-Appellee. *
_________________________________
ORDER AND JUDGMENT * *
_________________________________
Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
Ms. Dianna L. Lewis applied for disability benefits with the Social
Security Administration. Ms. Lewis could obtain these benefits only if she
was unable to perform work in the national economy. In determining
*
Nancy A. Berryhill became the Acting Commissioner of the United
States Social Security Administration on January 20, 2017, and is
substituted for Carolyn W. Colvin as the Defendant-Appellee in this case.
See Fed. R. App. P. 43(c)(2).
**
The parties do not request oral argument, and we do not believe that
oral argument would be helpful. As a result, we are deciding the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
whether this standard was met, the administrative law judge considered an
assessment by Kenneth Muckala, M.D., a physician who had treated Ms.
Lewis from May 2010 to November 2011. The administrative law judge
gave this assessment no weight. In doing so, however, the judge erred.
Standard of Review
On appeal, we engage in de novo review, applying the same standard
that governed in district court. See Fischer-Ross v. Barnhart, 431 F.3d
729, 731 (10th Cir. 2005) (de novo review); Nguyen v. Shalala, 43 F.3d
1400, 1402 (10th Cir. 1994) (same standard as in district court). Under that
standard, we have two tasks.
The first is to determine whether the administrative law judge
applied the correct legal standards. Hamlin v. Barnhart, 365 F.3d 1208,
1214 (10th Cir. 2004). Reversal is necessary if the administrative law
judge applied an incorrect legal standard or failed to show application of
the correct standard. Id.
Our second task is to determine whether the administrative law
judge’s findings were supported by substantial evidence. Nguyen, 43 F.3d
at 1402. Reversal is necessary if the evidence did not support the
administrative law judge’s findings. Hamlin, 365 F.3d at 1214.
Assessment of Dr. Muckala’s Opinion
The administrative law judge had an obligation to weigh Dr.
Muckala’s assessment based on the regulatory factors. 20 C.F.R.
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§ 404.1527(c). The judge could comply by giving Dr. Muckala’s
assessment no weight. But if the judge did so, he would need to give
reasons that were both legitimate and specific. Watkins v. Barnhart, 350
F.3d 1297, 1301 (10th Cir. 2003).
The administrative law judge gave two reasons for rejecting Dr.
Muckala’s physician’s assessment: (1) Dr. Muckala had written the
assessment roughly sixteen months after his last examination of Ms. Lewis,
and (2) the assessment had been inconsistent with other medical evidence.
The first reason is facially dubious, and the second reason is too vague.
Though Dr. Muckala wrote the assessment approximately sixteen
months after his last examination of Ms. Lewis, the administrative law
judge failed to explain why this delay mattered. Dr. Muckala said that his
assessment was based on his previous medical records, and these records
showed examinations leading to diagnoses of pain and distention of the
abdomen. The administrative law judge apparently agreed with these
diagnoses, for he too found that Ms. Lewis was suffering from abdominal
pain.
The defendant speculates that the passage of time might have proved
significant if Ms. Lewis’s condition had changed in the interim. But the
administrative law judge did not say that Ms. Lewis’s condition had
changed. All we have is an observation: that Dr. Muckala wrote the
assessment some sixteen months after his last examination of Ms. Lewis.
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There is nothing in the administrative law judge’s opinion stating why that
delay mattered.
The administrative law judge’s second reason is too vague. The judge
said that Dr. Muckala’s opinion was inconsistent with the medical record.
Which part of the record? The judge didn’t say.
This lack of specificity is confusing because Dr. Muckala found that
Ms. Lewis was suffering from abdominal pain and the judge agreed. In
light of this agreement on the existence of abdominal pain, we are left to
speculate about the perceived inconsistencies between Dr. Muckala’s
assessment and the remainder of the medical record. See Langley v.
Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (stating that the
administrative law judge’s reasons for assessing a treating source’s
medical opinion must be sufficiently specific for meaningful judicial
review).
The defendant offers three possibilities: (1) the absence of test
results that would explain Ms. Lewis’s pain complaints, (2) inconsistency
with Dr. Kratz’s consultative examination, and (3) inconsistency with the
opinions of two state agency physicians. But these are just possibilities;
there is nothing in the opinion to suggest that the administrative law judge
shared the defendant’s view on these three matters. And even if this was
the administrative law judge’s thinking, it would not justify the outright
rejection of Dr. Muckala’s assessment.
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The defendant’s first possible explanation involves test results. The
administrative law judge apparently did not view the test results the way
that the defendant does, for the judge concluded that (1) Ms. Lewis was
experiencing abdominal pain and (2) this pain could reasonably be
expected to cause the alleged symptoms.
The defendant also points to Dr. Kratz’s records. Dr. Kratz examined
Ms. Lewis and found chronic abdominal pain, swelling, nausea, vomiting,
hematuria, hematochezia, and gastroesophageal reflux disease. Which
limitations from these impairments were inconsistent with what Dr.
Muckala had found? The administrative law judge did not say, and the
defendant does not offer any possibilities.
Finally, the defendant points to the opinions of two state agency
physicians. But the administrative law judge assigned their opinions little
weight.
* * *
The administrative law judge had to give specific, legitimate reasons
to reject Dr. Muckala’s assessment. The judge gave two reasons. One was
facially dubious, and the other was too vague. As a result, we conclude
that the administrative law judge failed to adequately explain his rejection
of Dr. Muckala’s assessment.
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Credibility
Ms. Lewis challenges not only the weighing of Dr. Muckala’s
assessment but also the weighing of Ms. Lewis’s credibility. We reject
some of these challenges, but we question the administrative law judge’s
characterization of Ms. Lewis’s work record as poor.
Ms. Lewis testified that she had stopped working in 2010 because of
pain, swelling, vomiting, and fever. The administrative law judge
acknowledged that Ms. Lewis was experiencing some pain, but discounted
her credibility based on
inconsistences in her account of her daily activities,
absence of pain medication, and
the existence of a poor work record.
The first two explanations are valid, but we question the third.
The inconsistencies here are readily apparent. Ms. Lewis testified
that she spent most days lying in bed or in a recliner. But she elsewhere
described her regular activities to include housekeeping and some
strenuous activity as long as she could take frequent breaks.
On appeal, Ms. Lewis argues that her daily activities did not
constitute substantial gainful activity. But no one questions that. The
administrative law judge’s point was that Ms. Lewis had given inconsistent
accounts about her daily activities. That inconsistency could bear on Ms.
Lewis’s credibility. See 20 C.F.R. § 404.1529(c)(4).
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An administrative law judge could consider not only the
inconsistency but also the absence of pain medication. When a claimant
alleges excruciating pain but is not taking pain medication, an
administrative law judge can often reasonably infer that the claimant is
exaggerating. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000).
To draw this inference, an administrative law judge must consider the
claimant’s explanation. Social Security Ruling 96-7p, 1996 WL 374186, at
*7-8 (1996). Ms. Lewis offered an explanation, stating that she could not
afford pain medication. But the administrative law judge did not have to
credit this explanation, for Ms. Lewis had declined (1) prescriptions for
pain medications while accepting other medications (Celexa and Reglan)
and (2) an offer to send her home with pain medication. Thus, we do not
fault the administrative law judge for drawing adverse inferences based on
the fact that Ms. Lewis was not taking pain medication.
In discounting Ms. Lewis’s pain complaints, the administrative law
judge offered a third explanation: “a poor work record.” Appellant’s
App’x, vol. I, at 23. The district court found that this explanation was not
supported by substantial evidence, and the defendant does not defend this
part of the administrative law judge’s explanation. We too struggle to
understand why the administrative law judge regarded Ms. Lewis’s work
record as poor, for she had consistent work-related income from 1983 to
2010 except for a single year (1989).
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Though we are uncertain why the administrative law judge regarded
Ms. Lewis’s work record as poor, we need not decide if this explanation
constituted reversible error. Reversal and remand are necessary based on
the absence of specific, legitimate reasons to reject Dr. Muckala’s opinion.
The administrative law judge may decide to reconsider Ms. Lewis’s
credibility based on Dr. Muckala’s assessment. But if the administrative
law judge continues to discount Ms. Lewis’s credibility based on a poor
work record, the judge should (1) specify why he regards the work record
as poor and (2) tie that finding to the record.
* * *
Reversed and remanded for further proceedings consistent with this
order and judgment.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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