Hayden v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 7 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ANN T. HAYDEN,

Plaintiff-Appellant,

v. No. 03-1043

JO ANNE B. BARNHART,
Commissioner of the Social Security
Administration,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 01-WM-1861 (PAC))

Submitted on the briefs:

Gerald A. Harley, Esq., of Harley Law Offices, Littleton, Colorado, for Plaintiff-
Appellant.

John W. Suthers, United States Attorney, Kurt J. Bohn, Assistant U.S. Attorney,
Teresa H. Abbott, Special Assistant U.S. Attorney, Social Security
Administration, Office of the General Counsel, Denver, Colorado, for Defendant-
Appellee.

Before EBEL , HENRY , and MURPHY , Circuit Judges.

PER CURIAM.
 Ann T. Hayden appeals from an order of the district court affirming the

Commissioner’s decision to terminate her prior award of Social Security disability

benefits. 1
Our jurisdiction arises under 42 U.S.C. § 405(g) and 28 U.S.C.

§ 1291. Because we conclude that the administrative law judge (ALJ) committed

legal error in (1) determining that Ms. Hayden could perform her past relevant

work; and (2) failing to support his credibility findings with substantial evidence

in the record, we reverse. 2

I. Standard of review and applicable law

We review the Commissioner’s decision to terminate benefits to determine

whether substantial evidence supports the decision. Glenn v. Shalala, 21 F.3d

983, 984 (10th Cir. 1994). In addition, the Commissioner’s “failure to apply

correct legal standards, or to show us that she has done so, are also grounds for

reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

1
After a claimant has been awarded disability benefits, the Commissioner is
required to review the case periodically to determine whether there has been any
medical improvement in the claimant’s condition and whether that improvement
affects the claimant’s ability to work. 20 C.F.R. § 404.1594(a).

2
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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 An eight-step sequential evaluation process is used in termination-of-

benefit reviews. 3
See 20 C.F.R. § 404.1594(f)(1) through (8). If the

Commissioner meets her burden of establishing that the claimant’s medical

condition has improved and that the improvement is related to the claimant’s

ability to work, the Commissioner must then demonstrate that the claimant is

currently able to engage in substantial gainful activity. See Glenn, 21 F.3d at

987; 20 C.F.R. § 404.1594(f)(4), (6), (7). To make this determination, the

Commissioner first re-assesses the claimant’s residual functioning capacity (RFC)

based on all current impairments and then considers whether she can still do the

work she has done in the past. 20 C.F.R. § 404.1594(f)(7). If she is unable to do

her past relevant work, at step eight the Commissioner considers the RFC and the

claimant’s age, education, and past work experience to determine whether she can

do other work. Id. § 404.1594(f)(8). If the claimant can perform either her past

relevant work or other work, “disability will be found to have ended.” Id.

II. Relevant facts and proceedings

Before her disability began, Ms. Hayden had worked as a receptionist,

doing typing, filing, filling out medical forms, answering the phone, using an

adding machine, retrieving files, and carrying boxes of files. Aplt. App. Vol. II

3
Respondent describes it as a seven-step process, but a review of § 404.1594
and the brief reveals that counsel skipped step five of the sequence.

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at 30, 88-89. Ms. Hayden was originally found to be disabled as of June 26,

1991, due to severe sarcoidosis, 4 left cranial nerve palsy, cervical disc herniation

and cervical radiculopathy. 5 Id. at 16. She was subsequently diagnosed with

arthralgia and fibromyalgia, see id. at 23, which was reflected by pain, swelling,

and stiffness in her hands and wrists, with diminished grip strength, id.

at 339, 349.

After a medical consultant reviewed her medical records in 1998, the

Commissioner notified Ms. Hayden of the agency’s conclusion that Ms. Hayden’s

disability had ceased on March 1, 1998, and that benefits would terminate on

May 1. The conclusion was based on findings that she had medically improved

and was able to return to work as a receptionist. Id. at 16 & 275. Ms. Hayden

requested reconsideration. She filled out various questionnaires, see id.

at 278-81, and later submitted additional medical records. On November 18,

1998, a disability hearing officer scheduled a hearing at which Ms. Hayden failed

to appear. She contends she never received notice of this hearing. The hearing

officer considered Ms. Hayden’s daily activities questionnaire, a pain

questionnaire, her objection to proposed termination of medical benefits, and her

4
Ms. Hayden’s sarcoidosis, a disease causing granulated lesions, involved
her lungs.
5
Radiculopathy is a clinical situation in which the nerve root is compressed
by a prolapsed or herniated disk.

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medical records through May 1, 1998. Id. at 284-86. He noted that, although her

sarcoidosis appeared to be “inactive,” current x-rays revealed continuing cervical

disc space narrowing and neural impingement. Id. at 285. He also noted that

Ms. Hayden still reported symptoms demonstrating radiculopathy and continued

to take pain medications, and that she had apparently developed fibromyalgia. Id.

He concluded, based on her medical records, that, although Ms. Hayden continued

to have severe impairments, id. at 288, her recent medical records did not contain

specific complaints about left shoulder and arm pain (although records

demonstrated new complaints regarding right shoulder and arm pain, id.

at 350-52), and that she therefore had medical improvement that increased her

ability to work. Id. at 287. But the hearing officer did not have a current medical

RFC assessment, and he stated that he could not accurately assess her RFC

because there were “conflicts as to the claimant’s symptom severity and impact on

her function . . . and how much it is improved with medication.” Id. at 288. The

officer concluded that Ms. Hayden “must be denied disability on the basis of

insufficient information to assess the extent of her disability,” id. , thereby

affirming the Commissioner’s prior decision to terminate benefits.

Ms. Hayden requested a hearing by an ALJ, which was held in May 1999.

She submitted an RFC assessment prepared by her treating physician and

additional medical reports. She testified that the fibromyalgia affected her hands

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the most, and that they swelled and were stiff almost daily. Id. at 33-34. She

stated that sometimes she could not write, drive, pick up heavy things, or grip a

doorknob, and that they were “always painful.” Id.

The ALJ questioned a vocational expert (VE) about jobs in the local

economy that Ms. Hayden could perform, including her previous job as a

receptionist, in the following colloquy:

[A]ssume . . . an individual who could perform exertionally at the
sedentary level, however the person would be unable to push or pull
with the upper extremities. Would be able to occasionally stoop,
kneel, crouch, but would never be able to crawl. Would be able to
frequently handle, and would be able to do no overhead reaching.
Could such a person . . . perform the work previously performed by
Ms. Hayden as a receptionist as that work is done in the national
economy?
A. Yes, Judge. . . .

Id. at 46. Ms. Hayden’s attorney then asked the VE whether Ms. Hayden could do

her former work if she could only use her hands in the manner in which she

testified – “occasional” or “less than occasional” instead of “frequently.” 6
Id.

at 47-48. The expert replied that, “[b]ased on her testimony, . . . specifically with

respect to . . . the use of her hands, I don’t believe she could do work as a

6
The policy statements promulgated by the Commissioner note that “[m]ost
unskilled sedentary jobs require good use of the hands and fingers for repetitive
hand-finger actions.” SSR 83-10, 1983 WL 31251, at *5. The statements define
“occasionally” as “occurring from very little up to one-third of the time.” Id.
“Frequent” is defined as “occurring from one-third to two-thirds of the time.” Id.
at *6.

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receptionist,” id. at 47, but stated that she could perform work as a surveillance

systems monitor, id. at 48-49. The ALJ next asked:

Okay, any other work [besides surveillance systems monitor] that someone
could do with the same restrictions I gave you, but occasional use of the
upper extremities?
A. I would have to say no, Judge.

Id. at 49. According to the VE, approximately 135 surveillance monitor jobs

existed statewide. Id.

In his decision, the ALJ found that Ms. Hayden continued to have severe

medical impairments including “neck pain, GERD, [7]
systemic rheumatic disorder,

arthralgia, and fibromyalgia.” Id. at 23. He found her testimony to be “not

entirely credible.” Id. But, based on the record as a whole, including

Ms. Hayden’s testimony, the ALJ determined that Ms. Hayden had an RFC to

perform sedentary work, subject to the following limitations: “She should not

push/pull with her upper extremities. She can occasionally balance, stoop, kneel

and crouch, but she cannot crawl; nor should she do any overhead work or

frequent handling.” Id. at 21 & 23.

The ALJ accepted the VE’s testimony as valid, id. at 22, but interpreted it

to mean that “someone with claimant’s vocational factors, limitations, and [RFC]

7
GERD (Gastroesophageal reflux disease) is a disorder involving the
recurrent return of acidic stomach contents back up into the esophagus, causing
irritation, scarring, and strictures.

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could perform the sedentary, semi-skilled job of receptionist.” Id. at 22.

Accordingly, the ALJ concluded that Ms. Hayden’s disability ceased, effective

March 1, 1998, as she could perform her past relevant work as a receptionist. Id.

at 23. The district court affirmed.

III. Discussion

A. Error in determining Ms. Hayden could perform her past relevant

work. Ms. Hayden argues that the ALJ’s conclusion that she is able to do her

past relevant work is not consistent with the VE’s testimony, which the ALJ

accepted as valid. We agree. The ALJ found that Ms. Hayden’s RFC was limited

so that she should not do “frequent handling.” Id. The level lower than

“frequent” is “occasional,” SSR 1983-1991, 1983 WL at *5-*6, so the ALJ’s

finding, expressed in positive terms, limits her to doing occasional handling. The

first hypothetical the ALJ gave to the VE included the ability to do “frequent

handling” – an ability the ALJ ultimately determined that Ms. Hayden did not

have. Aplt. App. Vol. II at 23. As noted above, the VE testified that the only

sedentary, unskilled job a person with Ms. Hayden’s limitations could perform if

she could use her upper extremities only occasionally was a surveillance monitor.

Thus, the ALJ erred in concluding that Ms. Hayden could perform her past work

as a receptionist. See Allen v. Barnhart , 357 F.3d 1140, 1144 (10th Cir. 2004)

(reversing because ALJ’s findings similarly conflicted with VE’s testimony).

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 The Commissioner argues that substantial evidence supports her decision.

But she does not address the inconsistency between the ALJ’s ultimate findings

and conclusion and the VE’s testimony based on the limitations found by the ALJ.

The Commissioner further argues that it was Ms. Hayden’s burden to show an

inability to perform her past relevant work, and that she failed to do so. But this

argument misstates the burden, which is on the Commissioner in a

termination-of-benefits review. We previously have expressly rejected this same

argument in Glenn, 21 F.3d at 987 (citing regulations). That the Commissioner

raises this argument on appeal is surprising and troublesome, as counsel conceded

at oral argument in the district court that the proper steps and burdens in

termination-of-benefits proceedings are found in § 404.1594(f), not in

§ 404.1520. 8 Aplt. App. Vol. I at 25.

We also briefly address the Commissioner’s argument that the decision

should be affirmed because an ALJ “has no obligation to question a vocational

expert if the claimant can return to past relevant work,” and an ALJ is not

required to “utilize information provided by a VE as to the requirements of a

claimant’s past work.” Aple. Br. at 26 (quoting Kepler v. Chater , 68 F.3d 387,

392 (10th Cir. 1995), and citing Potter v. Sec’y of Health & Human Servs. ,

8
Indeed, § 404.1520 itself states that § 404.1594(f) applies to continuation-
of-benefits determinations. § 404.1520(a).

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905 F.2d 1346, 1349 (10th Cir. 1990)). First, the quoted statements beg the

question whether the ALJ, having sought out and accepted the VE’s testimony as

valid, properly interpreted and applied that testimony. Second, the Commissioner

takes both statements out of the context in the cases in which they were

articulated. Both cited cases are initial denial-of-benefits cases, in which the

claimant bears the burden at step four, see § 404.1520(e), of showing that her

impairment renders her unable to perform her past relevant work. Kepler , 68 F.3d

at 392; Potter , 905 F.2d at 1349.

We have long recognized the Commissioner’s “basic obligation” to fully

investigate the physical and mental demands of a claimant’s past work and

compare them to her current capabilities. Henrie v. United States Dep’t of Health

& Human Servs. , 13 F.3d 359, 360-61 (10th Cir. 1993). In Henrie we held that,

even though it was the claimant’s burden at step four to establish her inability to

perform past work, if the ALJ fails to make the requisite inquiry regarding the

exertional demands of a claimant’s prior work and the record is devoid of

evidence on that issue, a case must be remanded to develop an adequate record.

Id. at 361. In Kepler , we concluded that the record “contained sufficient evidence

regarding the demands of claimant’s past relevant work to satisfy the ALJ’s duty

of inquiry under Henrie . . . .” 68 F.3d at 392.

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 In Potter , the ALJ had referred to the Dictionary of Occupational Titles to

determine the exertional demands of a bookkeeper position, and we held that he

applied proper legal standards. 905 F.2d at 1349; and see 20 C.F.R.

§ 404.1560(b)(2) (providing that Commissioner may use the services of VEs or

other resources like the Dictionary of Occupational Titles to obtain evidence

needed to determine whether claimant can do past relevant work).

And in Glenn , a termination-of-benefits case briefly cited by the

Commissioner, we held that the ALJ was not required to seek “ additional

information from a vocational expert” because he had already determined that the

claimant’s impairment did not prevent her from performing any of the demands of

her past relevant work based on evidence already in the record. See 21 F.3d at

986-87 (emphasis added). Here, the ALJ apparently recognized both his duty to

develop the record regarding the demands of Ms. Hayden’s past relevant work as

it is generally performed in the national economy, and his burden under

§ 404.1594(f)(7) to establish that she could return to that work, and properly

sought the expert testimony of a VE to satisfy his duty and burden. Counsel’s

arguments are irrelevant and unnecessarily confusing and misleading.

B. Error in failing to support credibility determination. One

paragraph in the ALJ’s order is devoted to supporting his credibility

determination. It states:

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 The undersigned finds claimant is not entirely credible. Her
testimony indicates she is in a bad condition most of the time, yet the
medical evidence demonstrates her symptoms wax and wane. (Ex.
B15). Many records say claimant was doing well until 3 weeks
before the hearing. (Ex. B15/19 and 23).

Id. at 21. Ms. Hayden argues that the ALJ’s credibility determination was not

properly analyzed under the requirements of SSR 96-7p. 9
Under this ruling, a

credibility determination “must contain specific reasons for the finding on

credibility, supported by the evidence in the case record” and be “sufficiently

specific” to inform subsequent reviewers of both the weight the ALJ gave to a

claimant’s statements and the reasons for that weight. SSR 96-7p, 1996 WL

374186, at *4.

We are not sure of the extent of Ms. Hayden’s complaint of error. In her

appellate brief, Ms. Hayden states only that the ALJ failed to “elaborate on which

parts” were “not entirely creditable.” Aplt. Br. at 13. But the brief does not point

to what limitations were not properly considered except to mention, in another

section, that Ms. Hayden testified that she suffered from severe headaches and

would have to miss work at least two days a month. See id. at 9.

The ALJ noted her complaints about continuing arm and neck pain and

migraines, as well as her testimony about walking, standing, and sitting

limitations. Aplt. App. Vol. II at 20-21. The ALJ obviously found her testimony

9
Social Security Rulings are binding on the ALJ. See 20 C.F.R. § 402.35(b).

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that she could not lift more than ten pounds and could not stand or walk more

than a few hours/day to be credible, as he assessed her RFC to be for only

sedentary work. He must have also considered credible her testimony that she

could not frequently use her hands, as he limited her RFC for sedentary work to

not doing frequent handling. And he must have found that her testimony about

continuing neck pain with use of her arms was credible to some extent, as he also

limited her RFC to not pushing, pulling, or reaching overhead. Thus, we disagree

with Ms. Hayden’s assertion that the ALJ found that she “was in total remission.”

Id. at 13.

We are concerned, however, with the ALJ’s failure to address

Ms. Hayden’s claims of disabling headaches, which the VE testified would

preclude her from holding any job if they prevented her from working two days

per month. Aplt. App. Vol. II at 52. Ms. Hayden testified that she got tension

and migraine headaches two or three times a week, especially when she tried to

read. Id. at 38-39. She testified that it took six to eight hours to get over a

tension headache, and three to four days to get over a migraine. Id. at 38.

Medication for migraines upset her stomach, so she would just go in a dark room

with no noise and try to sleep. Id. at 39. The ALJ did not specify what testimony

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he found not to be credible. 10
Ms. Hayden testified that she still had neck pain

“mostly all the time,” but with the pain appearing intermittently, id. at 31; that her

GERD acted up about twenty times per month, depending on what kind of

medication she takes or food she eats, id. at 32-33; that her hand and wrist

swelling, stiffness, and pain were intermittent during any day, id. at 33-34; that

her knee pain occurred three or four times per week, id. at 34; and that she had

headaches two or three times per week, id. at 39. She stated that she “always”

had some pain, but that some days she could “try to forget it” for a couple of

hours if she tried hard enough. Id. at 39.

In finding part of Ms. Hayden’s testimony not to be credible, the ALJ

referenced several exhibits that he believed were inconsistent with her testimony.

Id. at 21. Exhibit B-15 is Ms. Hayden’s University Hospital medical records from

September 7, 1994 to May 1, 1998; exhibit B-19 is Ms. Hayden’s statement of

10
Ms. Hayden also testified that she could not sit for more than forty-five
minutes without having to get up and walk around, that she could not stand for
more than one hour; and that she had to lay down during the day, Aplt. App.
at 40-41, but the ALJ did not include these limitations in his hypothetical to the
VE, nor did he address them in his decision other than to note her testimony, id.
at 21. She also testified that she could not tolerate higher doses of medication
needed to relieve pain, id. at 41, and that prescription medicine for pain caused
problems with her GERD, id. at 32, but the ALJ did not comment on this
testimony. Her testimony was supported in the medical record. See id. at 349
(noting “multiple past NSAID trials . . . all causing GI intolerance.”). Because
Ms. Hayden’s brief does not specifically address these issues, we do not discuss
them above.

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medical treatment and medications dated May 1, 1999; and exhibit B-23 is

treating physician Dr. Hobbs’s office notes dated February 23, 1999. Id. at 3.

The referenced medical records indicate that Ms. Hayden’s objective symptoms of

hand and wrist joint swelling and stiffness do wax and wane, but Ms. Hayden’s

testimony quoted above was consistent with that description. Thus, there is no

inconsistency between these records and her testimony to support the credibility

finding.

These medical records, including Dr. Hobbs’s records, also indicate that

Ms. Hayden had ongoing and continued complaints of low back pain and

arthralgias, impressive tenderness at classic fibromyalgia trigger points,

continuing sleep disturbance and aching, and continuing arm and neck pain from

1997 through 1999, despite taking prescription and over-the-counter pain

medication, although she would experience periods of improvement. See id. at

336-39, 345, 347-50, 400. These records are consistent with Ms. Hayden’s

testimony that she continues to have pain on a daily basis. As SSR 96-7p

explains,

[s]ymptoms may vary in their intensity, persistence, and functional
effects, or may worsen or improve with time, and this may explain
why the individual does not always allege the same intensity,
persistence, or functional effects of his or her symptoms. Therefore,
the adjudicator will need to review the case record to determine

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 whether there are any explanations for any variations in the
individual’s statements about symptoms and their effects.

SSR 96–7p, 1996 WL 374186, at *5.

As noted above, the medical records cited simply do not support the ALJ’s

statement that Ms. Hayden was doing well until three weeks before the May 27,

1999 hearing. Thus, we have only the implication that Ms. Hayden was

exaggerating her description of disabling pain without the requisite link to

substantial evidence. Having failed to properly assess plaintiff’s credibility, in

part by not giving “specific reasons for the weight given to [Ms. Hayden’s]

statements,” as supported by the record, see id. at *4, and by failing to adequately

consider (or show us that he has considered) the other required factors, see id. at

*5-*8, the ALJ did not provide the documentation necessary to give Ms. Hayden a

“full and fair review” of her claim and to “ensure a well-reasoned . . . decision.”

Id. at *4; see Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir.

2001) (quoting SSR 96-7p). Thus, we conclude that the ALJ’s credibility

determination is not supported by substantial evidence in the record and also

requires reversal as legal error. See Briggs, 248 F.3d at 1239 (“The failure to

make credibility findings regarding the claimant’s critical testimony fatally

undermines the [Commissioner’s] argument that there is substantial evidence

adequate to support his conclusion that claimant is not under a disability.”)

(quotation omitted).

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 C. Request for no remand. Ms. Hayden asks that this case be reversed

with an order to reinstate her benefits from March 1, 1998, and that the case not

be remanded for further proceedings, since these proceedings and appeals have

taken almost six years and the Commissioner failed to meet her burden to

establish that Ms. Hayden could return to her past relevant work. Respondent has

not addressed the argument.

The Commissioner may not terminate disability benefits without making

findings demonstrating that a claimant has medically improved to the point that

she is able to perform either her past work or “other work” existing “in significant

numbers.” § 404.1594(f)(7), (8); 20 C.F.R. § 404.1560; Pacheco v. Sullivan ,

931 F.2d 695, 698 (10th Cir. 1991) (holding that benefits should not be

terminated until proper findings are made, and remanding for reinstatement of

disability benefits, including retroactive payments). Further, when a court

reverses an ALJ’s decision terminating benefits, the decision “is vacated and is no

longer in effect.” Continued benefits are payable “pending a new decision” by

the agency. 20 C.F.R. § 404.1597a(i)(6). Thus, reversal in this case means that

the case is simply remanded to the agency, and that Ms. Hayden, who has already

been adjudged to be disabled by the Commissioner, maintains her disability status

and is entitled to payment of any benefits that have been withheld during the

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appeals process. It is up to the agency to decide whether to begin new

termination proceedings.

The judgment of the district court is REVERSED with instructions to

REVERSE and REMAND to the Commissioner for reinstatement and payment of

continuing benefits.

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