Klitz v. Barnhart , 180 F. App'x 808 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 17, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ALTA L. KLITZ,
Plaintiff-Appellant,
v. No. 05-7112
(D.C. No. CIV-04-067-SH)
JO A NN E B. BA RN HA RT, (E.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.
Alta Klitz appeals from the district court’s order and judgment affirming
the final decision of the Commissioner of Social Security denying her
Supplemental Security Income benefits (SSI) under Title XVI of the Social
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Security Act. W e have jurisdiction over this appeal pursuant to 42 U.S.C.
§ 405(g) and 28 U .S.C . § 1291, and we REVERSE and REM AND.
M s. Klitz protectively filed an application for SSI on June 14, 2002,
alleging disability on the basis of asthma, chronic obstructive pulmonary disorder,
and arthritis. Her application was denied initially and upon reconsideration. She
requested and received a hearing before an administrative law judge (ALJ) who
found that M s. Klitz suffers from severe chronic obstructive lung disease but the
impairment is not severe enough to meet or equal one of the impairments listed in
20 C.F.R., Part 404, Subpart P, Appendix 1.
Because the ALJ found that M s. Klitz has no relevant past work, he
proceeded to step five of the sequential evaluation process, see Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step sequential
process for evaluating claims for disability benefits), and found that M s. Klitz
retains the following residual functional capacity (RFC): “lift and/or carry 10
pounds occasionally and 5 pounds frequently; stand and/or walk 2 out of 8 hours;
and sit 6 out of 8 hours; but she cannot work in environments where she would be
exposed to dust.” R. at 16. At the hearing, the A LJ asked a vocational expert
(VE) whether there were any jobs a person could perform if the person had no
past relevant work but could perform sedentary work in environments that did not
expose the person to respiratory irritants such as dust. The VE testified that such
a person could perform a variety of unskilled labor occupations: lamp shade
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assembler, clip fastener, suture winder, gold burnisher, and food and beverage
order clerk. 1 Id. at 140-41. Based on the VE’s testimony, the ALJ found
M s. Klitz not disabled at step five. The Appeals Council denied review, making
the ALJ’s decision the Commissioner’s final decision. M s. Klitz filed a
complaint with the district court, and by the parties’ consent, the matter was
submitted to a magistrate judge who affirmed the Commissioner’s decision.
This appeal followed.
“W e review the Commissioner’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 v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted).
“[B]ecause our review is based on the record taken as a whole, we will
meticulously 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.’” Ham lin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004) (quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994)). “W e may neither reweigh the evidence nor substitute our discretion for
that of the [Commissioner].” Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
1
Although the ALJ posed two other, more restrictive hypotheticals to the
VE, neither of them are relevant to this appeal.
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M s. Klitz raises only one issue on appeal, that the ALJ’s RFC finding is not
supported by substantial evidence because it lacks a requirement that she use a
home nebulizer periodically during the work day. 2 M s. Klitz testified that she
used the nebulizer two or three days a week and tw o times per day on those days.
R. at 130. She stated that the process took fifteen to tw enty-five minutes. Id.Progress notes in the record reflect that M s. Klitz was advised that she should
obtain a nebulizer because it w as “much better in delivering meds than the M DI,”
id. at 88. Although unclear from the record, an “M DI” apparently is a type of
inhaler. The progress notes also indicate that she was to use the nebulizer at
home and the inhaler only when she was away from home. Id. at 86, 87.
In making an RFC finding when, as here, a medically determinable
impairment imposes environmental restrictions, an ALJ must consider any
resulting limitations and restrictions that may affect other work-related abilities
and reduce a claimant’s ability to work. See 20 C.F.R. § 416.945(d). Although
the ALJ acknowledged M s. Klitz’s use of the nebulizer, he never addressed any
effect it might have on her ability to work. The progress notes indicate that the
nebulizer w as the preferred treatment at home and the inhaler was to be used only
when she was away from home. It does not necessarily follow that M s. Klitz
2
A nebulizer is “[a] device used to reduce liquid medication to extremely
fine cloudlike particles” and is “useful in delivering medication to deeper parts of
the respiratory tract.” Stedman’s M edical Dictionary 1184 (27th ed. 2000).
M s. Klitz uses her nebulizer to administer albuterol sulfate. R. at 87.
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could be away from home for a full work day without access to the nebulizer and
reliant only on the inhaler.
On remand, the ALJ should develop certain details of M s. Klitz’s use of her
home nebulizer. First, it is unclear whether her nebulizer is portable such that it
can be used away from the home. It appears that administering albuterol sulfate
with a nebulizer involves connecting the nebulizer to a compressor. See
Physicians’ Desk Reference 1225, 3069 (57th ed. 2003). The presence of a
compressor suggests that it may be impracticable for her to transport the device to
work.
Second, it is unclear from the record whether M s. Klitz’s need to use the
nebulizer twice a day on those days when she must use it occurs at random,
uncontrollable times, or whether she could use it before work, during established
breaks, or after work in order to treat her condition effectively. The fifteen to
tw enty-five minute process of using the nebulizer one or two times a day on two
or three days a week may be disruptive of a normal work day and affect her
ability to perform the jobs the VE identified and on which the ALJ based his
decision. See Eback v. Chater, 94 F.3d 410, 411-12 (8th Cir. 1996) (discussing
how the particularities of a claimant’s need to use a nebulizer could affect the
ability to perform all the duties of a job).
For the foregoing reasons, we conclude that substantial evidence does not
support the ALJ’s RFC finding. The judgment of the district court is
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REVERSED and the case is REM AND ED to the district court with directions to
remand the case to the agency for further proceedings consistent with this order
and judgment.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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