F I L E D
United States Court of Appeals
PUBLISH Tenth Circuit
MAY 4 2004
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
EDWARD HAMLIN,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, No. 02-7087
Commissioner, Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 01-CV-476-W)
Submitted on the Briefs:
Michael D. Clay of Tulsa, Oklahoma, for Plaintiff-Appellant.
Sheldon J. Sperling, United States Attorney, Muskogee, Oklahoma; Tina M.
Waddell, Regional Chief Counsel, Region VI, Michael McGaughran, Deputy
Regional Chief Counsel, and Earnie A. Joe, Assistant Regional Counsel, Office of
the General Counsel, Social Security Administration, Dallas, Texas, for
Defendant-Appellee.
Before SEYMOUR, KELLY and LUCERO, Circuit Judges.
SEYMOUR, Circuit Judge.
Edward Hamlin seeks review of a denial of disability insurance benefits
under Title II of the Social Security Act. Mr. Hamlin filed for benefits in 1993.
An administrative law judge (ALJ) denied his claim, and both the Appeals
Council and the district court affirmed the ALJ’s decision. Mr. Hamlin appeals,
raising the same issues he posed before the district court. Essentially he contends
the ALJ’s rejection of his disability claim was not based on substantial evidence.
Specifically, Mr. Hamlin asserts the ALJ erred in finding he had a residual
function capacity (RFC) for a wide range of medium work by failing to properly
consider the opinions of his treating doctors and in not treating as credible his
assertions of disabling pain. We reverse and remand to the Commissioner of the
Social Security Administration for further proceedings in accordance with this
opinion. 1
I.
Mr. Hamlin contends he is disabled based on severe and constant pain,
primarily in his cervical spine and shoulders, and an inability to effectively use
his arms. He claims his disability stems from a 1968 motor vehicle accident, has
After examining the briefs and appellate record, this panel has determined
1
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.
-2-
gradually worsened with time, and was exacerbated by a 1983 horseback-riding
accident. Mr. Hamlin, who is fifty-five years old, worked as a truck driver and
forklift driver until 1984. He did not attempt working again until 1989, when he
worked part-time as an egg gatherer for about two years. He was last insured for
disability benefits on December 31, 1992.
Mr. Hamlin filed his current application for disability insurance benefits in
March 1993, alleging a disability onset date of January 1, 1992. 2
In his disability
2
Mr. Hamlin first filed for disability benefits in September of 1987,
alleging disability as of February 14, 1984, based on “back problems,”
specifically fractures in his cervical spine and difficulties with his thoracic and
lumbar spinal areas. Aplt. App., Vol. II at 83. His application was denied
administratively, without a hearing, on December 4, 1987. Mr. Hamlin sought no
further review of this decision.
On January 22, 1990, Mr. Hamlin filed his second application for benefits,
which was denied on April 5. In his request for reconsideration, he stated that the
pain in his back, neck, shoulders, and arms was so severe that his right arm was
essentially dysfunctional. He further contended that left shoulder pain severely
impaired the function and range of motion in his left arm. After his request was
denied, Mr. Hamlin requested a hearing before an administrative law judge.
Mr. Hamlin received a hearing before ALJ Richard J. Kallsnick on August
14, 1990, at which he was assisted by a non-attorney representative. In his
November 5, 1990 decision, the ALJ determined there was no good cause to
reopen the prior (December 4, 1987) denial and held the relevant period for the
1990 application was from December 4, 1987 through December 31, 1989 (Mr.
Hamlin’s last insured eligibility date at that time). Following the required
sequential evaluation process for disability claims, see Williams v. Bowen ,
844 F.2d 748, 750-52 (10th Cir. 1988), the ALJ determined that Mr. Hamlin was
no longer working (step one); suffered from a severe impairment (step two) that
did not meet or equal the listings of 20 C.F.R. § 404, Subpt. P, App. 1 §§ 1.03
and 1.05 (step three); and could not perform his past relevant work (step four).
The ALJ concluded at step five, however, that Mr. Hamlin could perform work at
(continued...)
-3-
report, Mr. Hamlin complained of cervical spine fractures, pain in his neck and
arms, loss of the use of his arms, and numbness in his arms. He further alleged
“nerves” and stated he could not think or understand clearly. Aplt. App., Vol. III
at 308. Mr. Hamlin’s job listings reflect that he worked part-time from 1989 to
1991 as an egg gatherer in a chicken house. According to his statement, this job
consisted of gathering eggs for about thirty minutes, followed by a ten-to-fifteen
minute break because of arm pain. Initially he worked about two hours each
morning and each afternoon. His wife worked with him, and she tended to most
of the other chicken-related chores. Mr. Hamlin stated that toward the end of
1991 he could only work about ten minutes before stopping to rest and by the end
of that year, he could no longer work at all.
After benefits were denied, Mr. Hamlin appealed and was afforded a
hearing before ALJ Stephen C. Calvarese in April 1994. Mr. Hamlin was assisted
by a non-attorney representative. The ALJ held the relevant period for Mr.
2
(...continued)
the light vocational level. The ALJ drew support for this conclusion almost
exclusively from the medical evaluation report submitted by a Dr. McGovern, a
consultative medical examiner. Although the ALJ mentioned reports of other
doctors, including plaintiff’s treating physicians, the ALJ gave little or no weight
to these reports. Based on the Medical-Vocational Guidelines, the ALJ
determined that Mr. Hamlin retained an Vocational capacity for the full range of
light and sedentary work, which, based on his age, education and work
experience, directed a finding of not disabled. Mr. Hamlin sought review before
the Appeals Council, which was denied in July of 1991. He did not seek further
review of this decision.
-4-
Hamlin’s disability application was January 1, 1992 (alleged onset date) through
December 31, 1992 (last insured date). The ALJ followed the required sequential
evaluation process for disability claims, see Williams v. Bowen , 844 F.2d 748,
750-52 (10th Cir. 1988), and first determined that Mr. Hamlin was not gainfully
employed. At step two, the ALJ determined that no evidence existed showing Mr.
Hamlin’s anxiety-related disorder resulted in more than slight restrictions of daily
living activities and that the disorder was therefore not severe. He nonetheless
concluded that Mr. Hamlin’s cervical spine compression fractures did severely
compromise certain activities, thus satisfying the step-two severity requirement.
At step three, the ALJ found no impairment or combination of impairments that
satisfied any of the Secretary’s listing of impairments. Based on the medical
record, including consideration of Mr. Hamlin’s allegations of disabling pain, his
medications, and testimony at the hearing, the ALJ then concluded at step four
that Mr. Hamlin had the RFC for a wide range of light work, but that he could not
perform his past relevant work. 3
Moving to the final step in the evaluation, and
3
Pursuant to the federal regulations, light work
involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide
range of light work, you must have the ability to do substantially all
(continued...)
-5-
based on hypothetical questions posed to a vocational expert (VE), the ALJ
determined that there were light and sedentary jobs, both unskilled and
semiskilled (but primarily involving constant use of hands and arms) that Mr.
Hamlin was still able to perform. Accordingly, the ALJ held Mr. Hamlin was not
disabled. The Appeals Council denied Mr. Hamlin’s request for review.
Mr. Hamlin then filed his complaint in district court, alleging the ALJ
failed to accord proper weight to his treating physicians’ opinions, failed to
properly evaluate his RFC, and failed to develop the record with respect to both
his mental condition and his past relevant work as an egg gatherer. Based on the
parties’ disagreement over whether Mr. Hamlin had amended his onset date
during the administrative process, the district court determined in March 1997
that there was good cause pursuant to 42 U.S.C. § 405(g) to remand the matter to
the Secretary “for the purpose [of] establishing the alleged onset date of
3
(...continued)
of these activities. If someone can do light work, we determine that
he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.
20 C.F.R. § 404.1567(b). Sedentary work
involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
-6-
[p]laintiff’s application for disability.” Rec., Vol. I at 49. The Appeals Council
remanded the matter, again to ALJ Calvarese, who conducted a third hearing in
Mr. Hamlin’s case in October 1997.
The ALJ issued his last decision in February 1998, granting Mr. Hamlin’s
motion to amend his alleged onset date to December 4, 1987. The ALJ found no
basis for reopening the earlier, unappealed adjudications; hence the “‘relevant’
period” of Mr. Hamlin’s current application dated from November 6, 1990 (the
day after the adjudication on the prior application) to December 31, 1992, the last
disability insured date. He then determined there was no evidence Mr. Hamlin
had engaged in substantial gainful activity since November 6, 1990. 4
He next
found that although there was no indication of any severe mental disorders, Mr.
Hamlin did have severe impairments based on the 1968 cervical spine
compression fractures that compromised his ability to lift and carry and to
perform more than occasional stooping. However, these impairments did not
satisfy a step-three listing.
Under step four, the ALJ concluded Mr. Hamlin could perform a wide
4
The ALJ made this finding despite the fact that Mr. Hamlin had worked
part-time as an egg gatherer between 1989 and 1991. This finding was also in
contrast to the 1994 decision, in which the same ALJ noted Mr. Hamlin had not
been substantially employed since January of 1992, presumably including as
substantial employment Mr. Hamlin’s previous egg gathering duties. Aplt. App.,
Vol. II at 20.
-7-
range of medium work 5 compatible with the demands of his past relevant work. 6
In reaching this conclusion, the ALJ declined to give weight to the medical
opinions of Mr. Hamlin’s treating physicians, Drs. Brixey and Underhill. The
ALJ also did not give weight to Mr. Hamlin’s own statements regarding his
disabling pain. Upon determining Mr. Hamlin could perform his prior work in
view of his RFC for a wide range of medium work, the ALJ concluded Mr.
Hamlin was not disabled for the relevant time period.
Despite his determination that Mr. Hamlin was not disabled under step
four, the ALJ noted that “had [Mr. Hamlin] established that he could not perform
his past relevant work,” Rec., Vol. III at 471, moving to step five would be
appropriate. Proceeding under that step, the ALJ posed a series of hypothetical
questions to the VE. The ALJ first had the VE assume Mr. Hamlin could lift fifty
pounds occasionally and twenty-five pounds frequently (the requirements for an
RFC of medium work), could walk or stand six hours a day, had unlimited use of
5
Medium work
involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone
can do medium work, we determine that he or she can also do
sedentary and light work.
20 C.F.R. § 404.1567(c).
6
This determination was also in contrast to the ALJ’s conclusion in 1994,
when the ALJ found that Mr. Hamlin had an RFC for a wide range of light work,
but could not perform his past relevant work of egg gatherering or truck driving.
Aplt. App., Vol. II at 21, 24.
-8-
his arms and legs, and could stoop occasionally. With only those restrictions in
place, the VE testified Mr. Hamlin could return to gathering eggs and identified a
number of other jobs (sedentary, light, and medium) in the regional and national
economies Mr. Hamlin could perform. With greater restrictions somewhat similar
to an RFC for sedentary work (including infrequent lifting of up to five pounds,
continuous sitting, frequent standing and walking, but no use of arms for
repetitive movements and no use of arms or hands for grasping and handling), the
VE stated that the only representative example of a job Mr. Hamlin could perform
would be that of a surveillance monitor. Based on the ALJ’s third hypothetical
question, which tracked the requirements for an RFC for light work and included
decreases in ranges of motion in the back and neck, the VE concluded that the
position of a ticket seller was available. Finally, in responding to the ALJ’s
fourth hypothetical question, the VE stated no jobs would be available if all of
Mr. Hamlin’s testimony was credible. The reasons the VE cited for Mr. Hamlin
being unable to hold a job included the problems with his right side, his arms and
hands “going numb,” pain in his back and neck impacting concentration, and Mr.
Hamlin’s need to lie down daily.
Ultimately the ALJ concluded (apparently in line with his first hypothetical
question), that Mr. Hamlin’s RFC for a wide range of medium work was
compatible with both the demands of his past relevant light work as an egg
-9-
gatherer and with a significant number of other jobs considering plaintiff’s age,
education and previous work experience. The ALJ therefore determined Mr.
Hamlin was ineligible for disability insurance benefits. The Appeals Council
declined to assume jurisdiction over Mr. Hamlin’s case, making the ALJ’s
February decision the final decision of the Commissioner. Doyal v. Barnhart , 331
F.3d 758, 759 (10th Cir. 2003). The district court denied relief. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).
II.
We review the agency’s decision “to determine whether the factual findings
are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Doyal , 331 F.3d at 760 (citation omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quotations and citation omitted). However, “[a]
decision is not based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of evidence supporting it.”
Bernal v. Bowen , 851 F.2d 297, 299 (10th Cir. 1988). The agency’s failure to
apply correct legal standards, or show us it has done so, is also grounds for
reversal. Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). Finally,
because our review is based on the record taken as a whole, we will meticulously
-10-
examine the record in order to determine if the evidence supporting the agency’s
decision is substantial, taking “into account whatever in the record fairly detracts
from its weight.” Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994)
(quotation omitted). However, “[w]e may neither reweigh the evidence nor
substitute our discretion for that of the [Commissioner].” Kelly v. Chater , 62
F.3d 335, 337 (10th Cir. 1995).
With these principles in mind, we turn to the substance of Mr. Hamlin’s
appeal in which he argues the ALJ’s determination of his RFC was not based on
substantial evidence. In particular, Mr. Hamlin contends the ALJ failed to
properly consider the opinions of his treating physicians and his allegations of
disabling pain.
A.
Mr. Hamlin first claims the ALJ failed to give appropriate consideration to
the opinions of his treating physicians, Drs. Brixey and Underhill. An ALJ must
evaluate every medical opinion in the record, see 20 C.F.R. § 404.1527(d),
although the weight given each opinion will vary according to the relationship
between the disability claimant and the medical professional. The ALJ is required
to give controlling weight to the opinion of a treating physician as long as the
opinion is supported by medically acceptable clinical and laboratory diagnostic
-11-
techniques and is not inconsistent with other substantial evidence in the record.
Id. § 401.1527(d)(2). When an ALJ rejects a treating physician’s opinion, he
must articulate “specific, legitimate reasons for his decision.” Drapeau v.
Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted). An ALJ
must also consider a series of specific factors in determining what weight to give
any medical opinion. See Goatcher v. United States Dep’t of Health & Human
Servs. , 52 F.3d 288, 290 (10th Cir. 1995). 7
Additionally, “[w]hen a treating physician’s opinion is inconsistent with
other medical evidence, the ALJ’s task is to examine the other physicians’ reports
to see if they outweigh the treating physician’s report, not the other way around.”
Id. (quotation omitted). “The treating physician’s opinion is given particular
weight because of his unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.”
Doyal , 331 F.3d at 762 (quotation omitted). If an ALJ intends to rely on a
nontreating physician or examiner’s opinion, he must explain the weight he is
giving to it. 20 C.F.R. § 416.927(f)(2)(ii). He must also give good reasons in his
These factors, as outlined in 20 C.F.R. § 404.1527(d)(2)-(6), include the
7
length and nature of the treatment relationship, frequency of examinations, the
degree to which the opinion is supported by relevant evidence, the opinion’s
consistency with the record as a whole, and whether the opinion is that of a
specialist.
-12-
written decision for the weight he gave to the treating physician’s opinion.
Doyal , 331 F.3d at 762; see also Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5
(requiring decision to contain reasons that are “sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.”) Finally, even if a
doctor’s medical observations regarding a claimant’s allegations of disability date
from earlier, previously adjudicated periods, the doctor’s observations are
nevertheless relevant to the claimant’s medical history and should be considered
by the ALJ. See Groves v. Apfel , 148 F.3d 809, 810-11 (7th Cir. 1998) (evidence
submitted in earlier application for benefits is relevant to subsequent disability
application when determining whether claimant is disabled by a progressive
condition); Frustaglia v. Sec’y of Health & Human Servs. , 829 F.2d 192, 193 (1st
Cir. 1987) (per curiam) (“[A]n ALJ is entitled to consider evidence from a prior
denial for the limited purpose of reviewing the preliminary facts or cumulative
medical history necessary to determine whether the claimant was disabled at the
time of his second application.”). 8
Reviewing the record in light of these
8
We reject the Commissioner’s argument that an examination of medical
evidence from earlier adjudicated periods somehow reopens Mr. Hamlin’s
rejected 1990 claim. See Aple. Br. at 21. The ALJ made clear that his limited
referral to medical documents prior to the coverage period were not made for the
purpose of reopening the 1990 decision, Aplt. App., Vol. III at 465, nor did Mr.
Hamlin petition for such. See also Burks-Marshall v. Shalala , 7 F.3d 1346, 1348
(continued...)
-13-
authorities, we conclude the ALJ failed to adequately consider the opinions of
Drs. Brixey and Underhill.
Dr. Brixey first examined Mr. Hamlin in January 1985, at which time Mr.
Hamlin had “severe pain in the area of his hips, mid-dorsal region and entire
cervical spine region,” with a “marked limitation of the entire range of motion of
the cervical spine in all positions.” Aplt. App., Vol. II at 158. Other cervical
spine restrictions were noted, along with “pain to palpation of the cervical spine
regions of C1, C2, C4, and C7 bilaterally.” Id. at 159. In reviewing X-rays taken
at a Veteran’s Administration (VA) hospital, Dr. Brixey noted that the X-rays
showed “a compression fracture of several cervical vertebras [sic] with a
moderately severe amount of deformity of this region with the subsequent
radicular type pain as noted [earlier in the report].” Id. Dr. Brixey also found
Mr. Hamlin “very obviously has a severe amount of damage to the cervical spine
which apparently has been complicated by development of arthritis changes in the
injured areas . . . along with the other areas of involvement in both dorsal and
lumbar areas.” Id. Based on the examination and X-rays, Dr. Brixey stated that
Mr. Hamlin was “totally and completely disabled and will never be able to return
8
(...continued)
n.6 (8th Cir. 1993) (examining evidence from prior claim cannot alone be deemed
the reopening of the earlier claim); Girard v. Chater , 918 F. Supp. 42, 44-45
(D.R.I. 1996) (prior disability claim not deemed reopened merely because
evidence from prior decision considered in evaluating new claim).
-14-
to his usual occupation of truck driving.” Id. Dr. Brixey’s treatment notes for
1985-1987 appear to reflect primarily refills for medications, but also include
notations of pain complaints. Id. at 170-73.
Dr. Brixey updated his 1985 report in February 1990, after having seen Mr.
Hamlin periodically over five years. Dr. Brixey reported that Mr. Hamlin’s
“problems are gradually becoming worse with a greater restriction in the range
of motion and a greater severity of the pain, particularly of the cervical and
mid-dorsal areas.” Id. at 160. He further noted “radicular type pain into the left
arm from the neck region.” Id. Dr. Brixey anticipated Mr. Hamlin would
continue to gradually deteriorate, with “more and more limitation of his
mobility.” Id. He also stated that Mr. Hamlin’s prognosis was “somewhat
guarded for long-term treatment.” Id. Dr. Brixey described Mr. Hamlin’s range
of motion of the dorsal spine, in particular the mid-dorsal area and the entire
cervical area, as having a marked limitation. Id. He further listed Mr. Hamlin’s
medications as Voltaren (a nonsteroidal anti-inflammatory), Xanax (for
nervousness), and Tylox, “as needed for severe pain.” Id. In October 1990,
Dr. Brixey confirmed his findings based on the results of an MRI performed in
the same month. See id. at 234-35.
The record further reflects two statements of disability completed by
Dr. Brixey–one in 1987 and one in 1990–listing Mr. Hamlin as totally disabled
-15-
due to his cervical compression, development of arthritic changes, muscle spasms
and marked limitation in his range of motion. Id. at 259, 264-67. The prognoses
noted a gradual worsening of Mr. Hamlin’s condition. Dr. Brixey also found Mr.
Hamlin to have “[s]evere limitation of functional capacity, [and to be] incapable
of minimal (sedentary) activity.” Id. at 265.
Finally, in 1997, Dr. Brixey completed an RFC evaluation of Mr. Hamlin
for the period from 1987 through 1990, noting that Mr. Hamlin could lift six to
ten pounds infrequently, carry eleven to twenty pounds infrequently, infrequently
use his arms for reaching, pushing or pulling up to ninety degrees, and
infrequently use his hands for grasping, handling, fingering, or feeling. Id. , Vol.
III at 552-53. In the narrative accompanying the RFC evaluation, Dr. Brixey
listed the medical findings supporting his assessment as “marked limitation of
range of motion of cervical spine,” Mr. Hamlin’s inability to lift his “arms above
shoulder height,” and pain in his middorsal area with any repeated movements.
Dr. Brixey offered his opinion that “there is no way this patient can do any
prolonged work for gainful employment.” Id. at 553.
In reviewing this evidence, the ALJ referenced only Dr. Brixey’s November
1990 opinion that Mr. Hamlin had been disabled since 1985. The ALJ gave the
opinion no weight and rejected it as “brief, totally conclusory, and inconsistent
with the overall case record.” Id. at 467. However, the ALJ failed to provide any
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sufficiently specific reasons as to why he was rejecting Dr. Brixey’s opinion.
Nor, in stating that the doctor’s opinion was “inconsistent with the overall case
record,” did the ALJ specifically highlight those portions of the record with which
Dr. Brixey’s opinion was allegedly inconsistent. At most, the ALJ referred to a
consultative report issued by a Dr. Taylor in 1993, in which the doctor explained
the limited degrees of flexion/extension and rotation he found in Mr. Hamlin’s
neck. Id. at 347-52. 9
However, that report did not include an RFC analysis, and
Dr. Taylor had expressed an opinion in 1990, 10
based on Mr. Hamlin’s medical
records, that he had “little or no capacity to be gainfully employed.” Id. at 370.
The ALJ did not mention the portion of Dr. Taylor’s 1993 report in which the
doctor noted his conclusion that Mr. Hamlin had cervical disc disease resulting in
a decreased range of motion and associated pain. Id. at 348.
9
Dr. Taylor found Mr. Hamlin had a decreased range of neck motion, with
only thirty-five degrees flexion and twenty-five degrees extension. Aplt. App.,
Vol. III at 348. Mr. Hamlin was able to rotate his head forty-five degrees left and
right, with crepitation. Dr. Taylor also found Mr. Hamlin’s arms and legs to be
“within normal limits” and stated Mr. Hamlin was able to manipulate small
objects and grasp hand tools. Id. at 348-49. The average cervical
flexion/extension range is 110 degrees–fifty degrees flexion plus sixty degrees
extension. A MERICAN M EDICAL A SSOCIATION , G UIDES TO THE E VALUATION OF
P ERMANENT I MPAIRMENT , 418 (5th ed. 2001). The average range for rotation is
160 degrees–eighty degrees right and eighty degrees left of center. See id. at 421.
Dr. Taylor initially examined Mr. Hamlin in November 1990, noting that
10
Mr. Hamlin’s condition had existed for several years. At that time, he concluded
it seemed “very clear” that Mr. Hamlin “has changes in his cervical vertebrae that
would reduce his normal cervical range of motion by a factor of 15-20 percent.”
Aplt. App., Vol. III at 370.
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Nor did the ALJ explain why he did not consider Dr. Brixey’s 1997 RFC
assessment specifically covering the period between 1987 and 1990, which was
accompanied by an explanation of Mr. Hamlin’s limited range of motion, inability
to lift his arms above shoulder height, and pain associated with repeated
movements. In addition to discussing evidence supporting his decision, an ALJ
must discuss “the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.” Clifton v. Chater , 79 F.3d 1007,
1010 (10th Cir. 1996). The ALJ failed to do so here.
The record demonstrates that Dr. Brixey’s assessments of Mr. Hamlin are
fully supported by objective medical evidence. In short, the ALJ improperly
rejected Dr. Brixey’s opinions because of the ALJ’s “ own credibility judgments,
speculation or lay opinion .” McGoffin v. Barnhart , 288 F.3d 1248, 1252 (10th
Cir. 2002) (quoting Morales v. Apfel , 225 F.3d 310, 317 (3d Cir. 2000))
(emphasis in McGoffin ).
The ALJ also rejected the medical reports of Dr. Underhill, another treating
physician of Mr. Hamlin. Dr. Underhill first saw Mr. Hamlin in March 1990 in
the context of determining Mr. Hamlin’s eligibility for continued veteran’s
disability support. In his evaluation, Dr. Underhill reviewed X-rays from 1987
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and a 1990 electromyogram (EMG) performed by Dr. Park. 11
In an April 1990
report, Dr. Underhill noted that because of the progressive nature of Mr. Hamlin’s
disease, he should have been medically discharged from the military after his
1968 motor vehicle accident. Aplt. App., Vol. II at 178-79. Because Mr. Hamlin
was forced to continue military training that was “contradictory to his injury,” Dr.
Underhill reported to the VA that Mr. Hamlin “was entitled to disability.” Id. at
179.
In an August 1990 addendum to this report, Dr. Underhill noted that Mr.
Hamlin’s VA medical records, 12
which included a May 1990 X-ray report,
Dr. Park, a neurologist, performed the EMG on Mr. Hamlin in March
11
1990, inserting needles in his right upper arm and cervical area. Aplt. App., Vol.
II at 175. His findings were “consistent with a chronic neurogenic process
affecting C7 distribution on the right side,” suggesting that “cervical disc disease
should be considered as a possibility.” Id.
12
A 1984 Veteran’s Administration (VA) disability evaluation report
reflected flexion of the cervical spine as “40 degrees with pain and extension of
30 degrees with pain.” Aplt. App., Vol. II at 189. Rotation, also with pain, was
measured at forty-five degrees. This report further noted “multiple compression
fractures of the cervical spine” and “rather marked spondylosis at the level of C5
and C6” with “impingement on the neural foramen at the level of C5-C6.” Id. at
191. Progress notes from the VA hospital also reflected Mr. Hamlin’s complaints
of pain in 1990. Id. at 183, 185.
A May 1990 spine series of the cervical spine reflected “deformities
involving C3/C4/C5/C6 which is [sic] probably due to old compression-like
fractures.” Id. , Vol. III at 368. Some small fragments of bone were found in the
soft tissue. Id. A February 1992 X-ray report described “a very peculiar cervical
spine” with oddly shaped C3 and C4 vertebral bodies. Id. at 394. The review
noted “C5 and C6 are very abnormal with both vertebral bodies appearing
compressed throughout” and “displaced posteriorly.” Id.
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confirmed Mr. Hamlin’s injuries were present when he entered military service.
This X-ray report revealed vertebral deformities in C3-C6 and a “fracture of the
posterior [spinous] process of C3 and small fragments of bone in the soft tissues.”
Id. at 195. He further stated Mr. Hamlin continued to have evidence of “clinical
radiculopathy in the right arm and chronic cervical degenerative arthritis with
pain and stiffness.” Id.
Dr. Underhill also completed a form disability statement in October 1990,
listing Mr. Hamlin’s disabilities as compression fractures at C3-C4-C5-C6, right
C7 radiculopathy and a fracture of the spinous process at C3. Id. at 263.
In November 1990 Dr. Underhill expressed his opinion, based on his physical
examination of Mr. Hamlin and review of his medical records, “including X-rays,
EMG and MRI scan of the cervical spine,” that it was “reasonable to conclude
that [Mr. Hamlin] is unable to engage in any substantial gainful employment
because of his disability.” Id. at 255. Dr. Underhill further stated that Mr.
Hamlin’s disability existed prior to 1989 and probably prior to the 1987 X-rays.
Id.
In 1994, Dr. Underhill completed an RFC evaluation for Mr. Hamlin
covering the 1992 time period. Id. , Vol. III at 396-99. He rated Mr. Hamlin’s
lifting and carrying ability as “infrequent” for weight up to five pounds and
“never” for weight more than that. Id. at 396. He rated Mr. Hamlin as unable to
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use his arms for repetitive reaching or pushing and pulling and unable to use his
hands for repetitive movements such as grasping or handling. In an
accompanying narrative, Dr. Underhill based this assessment on Mr. Hamlin’s
cervical compression fractures, along with development of “severe Degenerative
Disc Disease in the Cervical Spine with right C7 Radiculopathy since March
1990.” Id. at 398. He further noted that Mr. Hamlin had “marked restriction [of]
motion in his cervical spine with weakness of his arms and pain in the neck [and]
arms daily.” Id. In Dr. Underhill’s opinion, Mr. Hamlin was “permanently
disabled and unemployable.” Id. at 399.
Despite Dr. Underhill’s extensive evaluations over the years, the ALJ
concluded, again without properly supporting his determination, that Dr.
Underhill’s reports were brief, conclusory, and inconsistent with treatment
records prior to Mr. Hamlin’s last insured date. Id. at 468. This conclusion is
itself inconsistent with the fact that Dr. Underhill submitted an RFC evaluation
and based his opinion on objective medical evidence demonstrating Mr. Hamlin’s
severe compression fractures and severe degenerative disc disease in the cervical
spine, with C7 radiculopathy. The ALJ apparently attached significance to Dr.
Underhill’s RFC notation that Mr. Hamlin’s impairments “did not prevent [him]
from being able to sit 6 to 8 hours, walk 4 to 5 hours, stand 4 to 5 hours, or sit
and stand/walk 6 to 8 hours.” Id. at 468, 396. The ALJ may not pick and choose
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which aspects of an uncontradicted medical opinion to believe, relying on only
those parts favorable to a finding of nondisability. See Switzer v. Heckler , 742
F.2d 382, 385-86 (7th Cir. 1984).
The ALJ also erred in failing to adequately consider Mr. Hamlin’s
disability rating by the VA which, although not binding on the Commissioner, is
“entitled to weight and must be considered.” Baca v. Dep’t of Health & Human
Servs. , 5 F.3d 476, 480 (10th Cir. 1993) (quotation omitted). Both Dr. Brixey and
Dr. Underhill found support in the VA records for their evaluations of Mr.
Hamlin’s condition.
In light of the above, we conclude the ALJ erred by rejecting the medical
opinions of Mr. Hamlin’s treating physicians without engaging in the proper legal
analysis when he made his determination that Mr. Hamlin had an RFC for a wide
range of medium work. The ALJ failed to articulate “specific, legitimate reasons
for his decision,” Drapeau , 255 F.3d at 1213, and equally failed to sufficiently
highlight how the treating physician’s evaluations were inconsistent with the
other medical evidence presented in the record. 13
Based on our review of the
The Commissioner points to a consultative examination by J.D.
13
McGovern, M.D., conducted on September 17, 1990, in which the doctor
concluded that Mr. Hamlin had “no severe neck problem,” could stand for
extended periods of time, and could lift thirty pounds occasionally and up to
fifteen pounds frequently. Aple. Br. at 23-24. The ALJ did not rely on Dr.
McGovern’s examination in his opinion to support his disregard for the opinions
(continued...)
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record, we conclude the doctor’s opinions were supported by medically acceptable
clinical and laboratory diagnostic techniques and were not inconsistent with other
substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).
B.
Mr. Hamlin next contends the ALJ failed to properly consider his
allegations of disabling pain in determining his RFC. We agree. “[T]he claimant
must first prove by objective medical evidence the existence of a pain-producing
impairment that could reasonably be expected to produce the alleged disabling
pain.” Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993) (internal
citations omitted). Next, the claimant must show “there is a ‘loose nexus’
between the proven impairment and the Claimant’s subjective allegations of pain;
and . . . if so, whether, considering all the evidence, both objective and
subjective, Claimant’s pain is in fact disabling.” Musgrave v. Sullivan , 966 F.2d
13
(...continued)
of Mr. Hamlin’s treating physicians; in fact, he did not even mention Dr.
McGovern’s examination in his decision. Even if Dr. McGovern’s opinions are
considered, however, they are insufficient to override the treating physicians’
opinions in this case. “An ALJ is required to give controlling weight to a treating
physician’s well-supported opinion, so long as it is not inconsistent with other
substantial evidence in the record.” McGoffin v. Barnhart, 288 F.3d 1248, 1252
(10th Cir. 2002). Dr. McGovern’s opinions do not constitute substantial
evidence. In addition, a consultative physician’s report should be “examined to
see if it ‘outweighs’ the treating physician’s report, not the other way around.”
Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988).
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1371, 1376 (10th Cir. 1992). While “the absence of an objective medical basis
for the degree of severity of pain may affect the weight to be given to the
claimant’s subjective allegations of pain, . . . a lack of objective corroboration of
the pain’s severity cannot justify disregarding those allegations.” Luna v. Bowen ,
834 F.2d 161, 165 (10th Cir. 1987). In the course of determining the credibility
of a claimant’s statements regarding pain, an ALJ should consider
1. [t]he individual’s daily activities; 2. [t]he location, duration,
frequency, and intensity of the individual’s pain or other symptoms;
3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he
type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms; 5.
[t]reatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; 6. [a]ny measures other
than treatment the individual uses or has used to relieve pain or other
symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and 7. [a]ny other
factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *3. See also Huston v. Bowen , 838
F.2d 1125, 1132 (10th Cir. 1988) (listing other factors including “frequency of
medical contacts, . . . subjective measures of credibility that are particularly
within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence”). In summary, an ALJ’s “[f]indings
as to credibility should be closely and affirmatively linked to substantial evidence
and not just a conclusion in the guise of findings.” Id. at 1133. Here, we are not
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convinced the ALJ’s rejection of Mr. Hamlin’s allegations of disabling pain was
supported by substantial evidence.
In assessing Mr. Hamlin’s allegations of pain, the ALJ considered a variety
of factors including Mr. Hamlin’s significantly reduced activities of daily living,
alleged inconsistencies in Mr. Hamlin’s testimony at the 1994 hearing regarding
his pain, affidavits from individuals who attested to Mr. Hamlin’s pain
allegations, the role medication may have played in managing his pain, and the
fact that Mr. Hamlin “did not require an assistive device for his neck.” Aplt.
App., Vol. III at 470. In so doing, the ALJ found that Mr. Hamlin’s pain
testimony was “credible only to the extent consistent with a residual functional
capacity for a wide range of medium work activity.” Id. at 471. Not only do we
determine this credibility finding is unsupported by substantial evidence, we also
conclude it is contrary to other evidence presented in Mr. Hamlin’s record. See
Bernal , 851 F.2d at 299 (“[a] decision is not based on substantial evidence if it is
overwhelmed by other evidence in the record or if there is a mere scintilla of
evidence supporting it”).
The ALJ examined Mr. Hamlin’s significantly reduced activities of daily
living, noting he performed no house or yard work and drove infrequently. Aplt.
App., Vol. III at 470. Nonetheless, the ALJ determined that Mr. Hamlin’s
television watching constituted an activity requiring “significant attention and
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concentration . . . inconsistent with severe and intractable pain.” Id. There is no
medical support whatsoever for this opinion. Nor may an “ALJ . . . rely on
minimal daily activities as substantial evidence that a claimant does not suffer
disabling pain.” Thompson , 987 F.2d at 1490.
The ALJ also noted what he labeled as inconsistencies in Mr. Hamlin’s
testimony at the 1994 hearing regarding whether he had taken his medication the
morning of the hearing and whether he slept three hours a night or four. Aplt.
App., Vol. III at 470. Likewise, the ALJ considered doubtful Mr. Hamlin’s
assertion that “he seldom went to church because he ‘hurts too bad to sit’ but he
was capable of sitting through the 1 hour and 13 minute hearing.” Id. These
discrepancies are minor at best and cannot serve to support a lack of credibility
finding. The ALJ did not cite to any medical professionals for the proposition
that Mr. Hamlin was exaggerating his symptoms. Moreover, the ALJ failed to
note that at the second hearing in 1997, Mr. Hamlin expressed discomfort caused
by sitting during the hearing, id. at 504, and at one point stood up to stretch, id. at
510, and later to walk around, id. at 525.
At the second hearing, Mr. Hamlin testified to experiencing constant pain
in his shoulder blades and pain when lifting even a cup of coffee. Id. , Vol. III at
498. He further testified to limitations on his activities from 1987 and,
specifically, the worsening of his condition in 1990 to the point he could not
-26-
grasp an egg without dropping it. Id. at 506. He testified he tried doing leg
exercises as recommended by his doctor but was unable to do so because of the
pain. Id. at 511. In 1990, he began experiencing numbness in his arms, id. , and
receiving injections for involuntary muscle spasms, id. at 512-13. By then he also
needed to modify his recliner by removing the padding and inserting boards so
that he could sit without pain. Id. at 513. The ALJ made no reference to this
testimony despite the fact that Mr. Hamlin’s statements went directly to some of
the factors an ALJ should consider in making a credibility determination. See,
e.g., Huston , 838 F.2d at 1132; Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *3.
Finally, the ALJ noted that Mr. Hamlin “did not require an assistive device
for his neck.” Aplt. App., Vol. III at 470. There is no evidence that any
physician recommended such a device or suggested that one would have provided
any pain relief. An ALJ is not free to substitute his own medical opinion for that
of a disability claimant’s treating doctors. See Miller v. Chater , 99 F.3d 972, 977
(10th Cir. 1996) .
As noted earlier in this opinion, Mr. Hamlin’s medical records are replete
with his reports of pain and of prescriptions and refills for medication. In
addition to the previously listed medications (Voltaren, Tylox, Xanax), Mr.
Hamlin was also prescribed Tylenol with codeine (for pain) and Cyclobenzaprine
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(for relief of muscle spasms). Aplt. App., Vol. III at 360. 14
Mr. Hamlin reported
to a local emergency room facility in October 1990 for relief from severe pain.
Id. , Vol. II at 238. While medication and therapy may have been effective in
alleviating some of Mr. Hamlin’s symptoms, see id. , Vol. III at 470, this does not
necessarily undermine the credibility of his pain allegations. Regardless of his
medications, Mr. Hamlin testified to constant pain in his shoulders and arms,
which increased whenever he used his arms. Id. at 498, 501, 511.
In conclusion, the ALJ’s determination that Mr. Hamlin’s allegations of
disabling pain were of limited credibility is not supported by substantial evidence.
Mr. Hamlin’s medical records support his allegations of pain and his need for
prescriptions to reduce such pain. In contrast, the ALJ’s findings regarding Mr.
Hamlin’s television watching, inconsistencies from the 1994 hearing, and non use
of a neck brace, lack substantial evidentiary support and therefore are insufficient
to undermine his pain allegations.
C.
Finally, and in light of the errors considered above, we address Mr.
Hamlin’s contention that the ALJ was incorrect to find Mr. Hamlin had an RFC
Mr. Hamlin’s medical records indicate that when he was evaluated in
14
1986 by Dr. Dean, the doctor noted Mr. Hamlin’s medications as Xanax,
Norgesic, and Naprosyn. Aplt. App., Vol. II at 163.
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for a wide range of medium work. In the course of rejecting the medical opinions
of Mr. Hamlin’s treating physicians as well as Mr. Hamlin’s assertions regarding
disabling pain, the ALJ gave “great weight to the remoteness of [Mr. Hamlin’s]
cervical fractures (1968), his ability to perform work activities as recent as 1989
through 1991 . . . ,” and the “lack of a significant traumatic event or evidence of
significant progression of his degenerative disc disease recent to his ‘relevant’
period of November 6, 1990, through . . . December 31, 1992.” Id. at 469.
Likewise, the ALJ concluded there were no diagnostic tests showing Mr. Hamlin
was prevented from prolonged standing or walking or occasionally lifting up to
fifty pounds, a requirement for medium work. Id. at 468.
The emphasis the ALJ placed on the remoteness of Mr. Hamlin’s initial
injury is irrelevant because he suffered another injury in 1983 (shortly before he
was no longer able to drive his truck) and has sought and received continuous
treatment for his fractured vertebrae since then. The fact that Mr. Hamlin
managed to gather eggs in a six-pound flat intermittently for a few hours a day,
with frequent rests and while taking pain medication, simply does not support an
RFC for performing a wide range of medium work. And if a condition is already
severe, as in this case, a lack of further “significant progression” is also not
evidence of an ability to do medium work.
Nor is the RFC finding for medium work supported by the lack of
-29-
diagnostic tests showing Mr. Hamlin was prevented from prolonged standing or
walking or occasionally lifting up to fifty pounds. In concluding Mr. Hamlin
could occasionally lift fifty pounds, the ALJ ignored Dr. Park’s 1990 EMG
findings indicating right arm radiculopathy, as well as other doctors’ findings of
Mr. Hamlin’s diminished reflex and bilateral grip, and bilateral arm muscle
weakness and grasp strength. 15
We do acknowledge these reports did not directly
15
In 1986, Dr. Dean evaluated Mr. Hamlin and noted an “extreme limitation
of range of motion of the cervical spine,” a diminished left triceps reflex and a
somewhat diminished grip bilaterally. Aplt. App., Vol. II at 163. Dr. Dean found
no problems with gross and fine motor movement of the fingers and hands. Id.
Dr. Dean’s diagnosis was status post-cervical vertebrae compression fractures,
degenerative disc disease involving C4 and 5 and C5 and 6, and evidence of
“minimal radiculopathy involving the C6 radical, manifested by diminished left
triceps reflex.” Id. at 164.
A Dr. Worth examined Mr. Hamlin in August 1990, noting that Mr. Hamlin
had seen “multiple physicians in [an] attempt to receive treatment and relief for
chronic pain and muscle spasm.” Id. at 197. These physicians included two
neurosurgeons and Dr. Brixey. Dr. Worth’s examination confirmed that Mr.
Hamlin had “severe neurologic problems bilaterally at [the] C-5/C-6, C-6/C-7
level with paresthesia and muscle weakness bilaterally[,] [m]arked muscle
strength loss . . . bilaterally in [his] arms, forearms and hands with grasp strength
approximately 30% of normal.” Id. Dr. Worth further noted Mr. Hamlin’s
muscle strength loss was “in part due to disuse due to chronic pain as well as
neurologic deficits as [a] direct result of injury.” Id. Based on his examination,
Dr. Worth concurred with the other examining physicians that Mr. Hamlin “has
severe invertebral disc disease and nerve root impingement.” Id. Dr. Worth
further noted Mr. Hamlin had been advised that “the only help at [the] present
time would be a multiple level laminectomy [procedure].” Id.
While these medical reports date from an earlier adjudicated period, they
are nonetheless part of Mr. Hamlin’s case record, and should have been
considered by the ALJ. See 42 U.S.C. § 423(d)(5)(B) (“the Commissioner . . .
shall consider all evidence available in [an] individuals’ case record . . .”); 20
(continued...)
-30-
speak to whether Mr. Hamlin was prevented from occasionally lifting up to fifty
pounds. But they certainly intimate Mr. Hamlin would be limited in his lifting
capacity. Moreover, even if there were no diagnostic tests showing Mr. Hamlin
was unable to lift up to fifty pounds, “[t]he absence of [such] evidence is not
evidence.” Thompson , 987 F.2d at 1491. This is particularly true in view of the
fact that no treating or examining physician has ever stated that Mr. Hamlin was
capable of lifting so much weight. To the contrary, as we have pointed out, Dr.
Brixey noted in a 1997 RFC report for Mr. Hamlin covering the years 1987 to
1990 that Mr. Hamlin could only infrequently lift and carry between six and ten
pounds. Likewise, in 1994, Dr. Underhill completed an RFC report for Mr.
Hamlin for the 1992 period wherein he noted Mr. Hamlin could only infrequently
carry or lift up to five pounds, while similarly indicating Mr. Hamlin was wholly
unable to lift or carry any increased weight.
The only information from which the ALJ could have determined Mr.
Hamlin was able occasionally to lift up to fifty pounds might possibly be gleaned
from a 1993 agency disability determination which listed a non-treating
physician’s assessment of Mr. Hamlin’s RFC. There, the reviewing physician
15
(...continued)
C.F.R. § 404.1527(d) (every medical source received by the Commission will be
considered in evaluating disability claim). See also Groves v. Apfel , 148 F.3d
809, 810-11 (7th Cir. 1998); Frustaglia v. Sec’y of Health & Human Servs. , 829
F.2d 192, 193 (1st Cir. 1987) (per curiam).
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checked a box indicating Mr. Hamlin could occasionally lift up to fifty pounds.
Id. at 286. The ALJ did not indicate that he reached his fifty pound determination
on the basis of the check-off form. If an ALJ intends to rely on a nontreating
physician or examiner’s opinion, he must explain the weight he is giving to it.
20 C.F.R. § 416.927(f)(2)(ii). The ALJ did not explain the weight, if any, he
attached to this opinion evidence, which stood in direct conflict with the medical
opinions of two of Mr. Hamlin’s treating physicians. Moreover, we have held
that such an evaluation form is insufficient to constitute substantial evidence
when it stands alone and unaccompanied by thorough written reports or testimony.
See Frey v. Bowen , 816 F.2d 508, 515 (10th Cir. 1987) (noting “suspect
reliability” of findings of nontreating physician based on limited contact and
examination). In this case, the reviewer provided no narrative explanation for any
of the conclusions reached.
We find the ALJ’s RFC determination problematic and suspect. The ALJ
determined Mr. Hamlin had an RFC for a wide range of medium work and could
return to his past relevant work of egg gathering as well as perform a variety of
other jobs. Aplt. App., Vol. III at 467, 471-72. In contrast, four years earlier this
same ALJ found that Mr. Hamlin could perform only a less-than-fully-wide range
of light work and could not return to his past relevant work of egg gathering and
truck driving. Id. , Vol. II. at 25-26. In noting this difference, we do not imply
-32-
the ALJ was bound in his second review of Mr. Hamlin’s claim to his earlier RFC
decision on remand from the Appeals Council. See Campbell v. Bowen , 822 F.2d
1518, 1522 (10th Cir. 1987) (remand order from Appeals Council did not bind
ALJ to prior RFC determination). It was certainly within the ALJ’s province,
upon reexamining Mr. Hamlin’s record, to revise his RFC category. In this case,
however, the ALJ’s revised RFC determination was not supported by substantial
evidence.
The ALJ’s 1998 decision used almost exactly the same language and relied
on nearly the same evidence as the 1994 decision but provided no explanation for
why the same evidence would result in a different conclusion. Moreover, the
ALJ’s failure to give credence to, or specifically and sufficiently explain why he
was rejecting, the medical reports and RFC assessments of Mr. Hamlin’s treating
physicians cannot survive review. See Drapeau , 255 F.3d at 1213. Equally
detrimental is the ALJ’s failure to properly explain why Dr. Taylor’s 1993
consultative report or the agency’s 1993 RFC determination should be given
weight over that of Mr. Hamlin’s treating doctors. See Clifton , 79 F.3d at 1010;
Goatcher , 52 F.3d at 290; 20 C.F.R. § 416.927(f)(2)(ii). In short, the ALJ’s 1998
RFC determination is not supported by substantial evidence, is contrary to the
overwhelming medical evidence in the record, and cannot stand. See Musgrave,
966 F.2d at 1374 (holding evidence not substantial if “overwhelmed by other
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evidence in the record”).
III.
In sum, we hold that the ALJ’s rejection of Mr. Hamlin’s disability claim
was not based on substantial evidence. In rejecting the opinions of Mr. Hamlin’s
treating physicians as well as Mr. Hamlin’s assertions of disabling pain, the ALJ
erroneously concluded Mr. Hamlin had an RFC for a wide range of medium work.
Upon remand, the ALJ must reassess Mr. Hamlin’s RFC, as well as determine
whether Mr. Hamlin was capable of performing his past work during the relevant
time period. If necessary, the ALJ should then proceed to step five of the
evaluation process to determine if, given Mr. Hamlin’s RFC, jobs exist within the
regional or national economy that he could perform. 16
The judgment of the district court is REVERSED and the cause is
REMANDED to the district court with instructions to remand to the
Commissioner for proceedings in accordance with this opinion.
16
Given our conclusions, we also overturn the ALJ’s alternative finding that
had Mr. Hamlin established he could not perform his past relevant work under his
medium RFC category, there still existed jobs, including light and sedentary
positions, that Mr. Hamlin could perform. We express no opinion as to what the
ALJ may determine on remand. Upon reviewing the evidence in light of the
proper standards, however, the ALJ may conclude Mr. Hamlin is totally disabled,
thereby rendering null any previous determination that Mr. Hamlin could perform
work characterized as medium, light, or sedentary.
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Hamlin v. Barnhart
Court: Court of Appeals for the Tenth Circuit
Date filed: 2004-05-04
Citations: 365 F.3d 1208
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