Barnett v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 26 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SHARON K. BARNETT,

Plaintiff-Appellant,

v. No. 99-5214

KENNETH S. APFEL, Commissioner,
Social Security Administration,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 98-CV-505-BU)

Submitted on the briefs:

Jeffrey B. Kent, Bartlesville, Oklahoma, for Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney; Tina M. Waddell, Chief Counsel,
Region VI; Mark J. Kingsolver, Deputy Chief Counsel; Mary F. Lin, Assistant
Regional Counsel, Office of the General Counsel, Social Security Administration,
Dallas, Texas, for Defendant-Appellee.

Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.

BALDOCK , Circuit Judge.
 Plaintiff-appellant Sharon K. Barnett appeals the district court’s affirmance

of the final decision of the Commissioner of Social Security denying her

applications for disability insurance benefits and supplemental security income.

Because the Commissioner’s decision is supported by substantial evidence and no

legal errors occurred, we affirm. 1

Plaintiff filed an application for benefits on January 3, 1996, alleging she

was unable to work after December 25, 1995, due to back pain and peripheral

neuropathy. After filing her application, plaintiff was treated for a heart

condition which became part of her disability claim. A hearing was held before

an administrative law judge (ALJ) who found that plaintiff could perform several

of her previous jobs despite her impairments and thus was not disabled. The

Appeals Council denied review, making the ALJ’s decision the final decision of

the Commissioner. The district court affirmed, and this appeal followed.

We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether correct legal standards

were applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

1
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.

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as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401

(1971) (quotation omitted). We may “neither reweigh the evidence nor substitute

our judgment for that of the agency.” Casias v. Secretary of Health & Human

Servs. , 933 F.2d 799, 800 (10th Cir. 1991).

Plaintiff argues that (1) the Commissioner’s decision is not supported by

substantial evidence because the ALJ ignored medical evidence of her disability;

(2) the ALJ failed to analyze plaintiff’s pain properly under Luna v. Bowen ,

834 F.2d 161, 162-64 (10th Cir. 1987); (3) the hypothetical presented to the

vocational expert was legally deficient because it did not include all of plaintiff’s

restrictions, and the ALJ erred in ignoring the vocational expert’s opinion that

plaintiff would be unable to work if all her testimony was taken as true; and

(4) the ALJ erred in not considering plaintiff’s excessive absenteeism.

In his decision, the ALJ detailed a number of medical reports, and then

stated:

Every exhibit was reviewed carefully for preparation of this decision,
however, exhibits not cited were omitted for various reasons,
including, but not limited to the following: relate to a time not
covered by the claim, illegibility, duplicity, different physicians
reporting the same diagnoses, physician duplication of
hospitalization records, failure to state a diagnosis, statement of the
claimant’s complaints without a diagnosis, prescription of medication
only, etc.

R. I at 18. This type of boilerplate language is improper. The ALJ is charged

with carefully considering all the relevant evidence and linking his findings to

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specific evidence. See Clifton v. Chater , 79 F.3d at 1007, 1009-10 (10th Cir.

1996) (holding the “record must demonstrate that the ALJ considered all of the

evidence,” and the ALJ must “discuss[] the evidence supporting his decision, . . .

the uncontroverted evidence he chooses not to rely upon, [and] significantly

probative evidence he rejects”). When an ALJ decides to disregard a medical

report by a claimant’s physician, he must set forth “specific, legitimate reasons”

for his decision. Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996) (quoting

Frey v. Bowen , 816 F.2d 508, 513 (10th Cir. 1987)) (further quotations omitted).

Where, as here, an ALJ does not identify which medical exhibits were rejected

and the reason for their rejection, we cannot meaningfully review the ALJ’s

determination. See, e.g. , Clifton , 79 F.3d at 1009 (holding “[i]n the absence of

ALJ findings supported by specific weighing of the evidence, we cannot assess

whether relevant evidence adequately supports the ALJ’s conclusion,” and thus

the ALJ’s unexplained conclusion was “beyond meaningful review”); Kepler v.

Chater , 68 F.3d 387, 391 (10th Cir. 1995) (holding ALJ’s listing of factors he

considered was inadequate when court was “left to speculate what specific

evidence led the ALJ to [his conclusion]”). In this case, however, plaintiff has

not directed our attention to any medical evidence that was disregarded, and after

reviewing the record we conclude the ALJ considered the pertinent evidence of

plaintiff’s back impairment, peripheral neuropathy, and heart condition.

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 The objective medical evidence shows that plaintiff suffers from mild

degenerative disc disease of the lumbar spine, with some disc bulging at the L3-4

level. See R. I at 147 (April 1996 x-rays); R. II at 175-76 (October 1995 x-rays

and MRI). Medical reports from the end of 1995 through mid-1996 noted only

that plaintiff had mild tenderness at L3-4 and had positive straight leg raising on

the right, but that she had no significant loss of strength or impairment to her gait.

The ALJ’s decision reflected these limitations, restricting plaintiff to light and

sedentary work requiring only occasional stooping, bending, crouching, and

crawling, and noting that she suffered from a constant level of pain that would not

affect her ability to concentrate. The only reports regarding plaintiff’s back that

the ALJ rejected were those of plaintiff’s chiropractor concluding she was totally

disabled, which the regulations themselves provide are not entitled to the same

significant weight as reports by a physician. See 20 C.F.R. § 404.1513(a) & (e)

(excluding chiropractors from the list of “acceptable medical sources,”);

§ 404.1527(e)(1) (stating that an opinion that a claimant is “disabled” will not

affect the Commissioner’s independent determination).

The record also shows that plaintiff suffers from peripheral neuropathy,

which causes tingling, numbness, and pain in her feet. No doctor has noted any

limitations on plaintiff’s ability to walk or stand, however, and the only

limitations described by plaintiff are that she has to watch her speed when driving

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and must watch where she is walking to maintain her balance. Finally, the ALJ

clearly considered plaintiff’s heart condition, but based on the evidence

concluded that her condition was medically controlled. See R. I at 17.

The ALJ’s credibility determination was also adequate. Under Luna v.

Bowen , the ALJ must decide whether a claimant’s subjective claims of pain are

credible, considering such factors as “a claimant’s persistent attempts to find

relief for his pain and his willingness to try any treatment prescribed, regular

use of crutches or a cane, regular contact with a doctor . . ., the claimant’s daily

activities, and the dosage, effectiveness, and side effects of medication.”

834 F.2d at 165-66. Here, the ALJ found plaintiff’s complaints not completely

credible based on the paucity of objective medical findings in the record, the fact

that she had not been treated by her physicians during the nine months preceding

the hearing, 2
her failure to report arm numbness to her doctors, her lack of

obvious discomfort at the hearing, and the fact that she was not taking

prescription pain medication. As the ALJ relied on appropriate factors to support

his decision, there was no error.

The hypothetical presented to the vocational expert was also sufficient, in

that it contained all of the limitations found to exist by the ALJ. See Gay v.

2
Although the ALJ stated that plaintiff had not been to her physician
after “July 1997,” R. I at 19, which was three months after the hearing, it is clear
from the record that he meant July 1996.

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Sullivan , 986 F.2d 1336, 1341 (10th Cir. 1993) (approving a hypothetical as

adequately reflecting the limitations found to exist by the ALJ). Although it did

not contain impairments like plaintiff’s nosebleeds or respiratory infections, there

is no evidence these conditions were expected to last twelve months, and thus

there was no error in failing to present such conditions to the vocational expert.

Further, the ALJ did not err in rejecting the vocational expert’s opinion that

plaintiff would be totally disabled if her testimony at the hearing were believed

completely, as the record does not establish the limitations described by plaintiff.

See id. (approving ALJ’s disregard of expert’s favorable response to claimant’s

attorney’s hypothetical which required expert to assume unestablished facts).

Finally, the ALJ did not err by failing to consider plaintiff’s absenteeism.

No such evidence was presented at the hearing, and plaintiff’s current

extrapolation of how many days she must have missed from work based on her

medical record is faulty both in that it is not limited to time missed due to her

back impairment, neuropathy, and heart condition, and in that it assumes she was

required to miss entire days of work for each appointment.

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.

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