Smith v. Barnhart , 61 F. App'x 647 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 17 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
REBECCA L. SMITH,
Plaintiff - Appellant,
v. No. 02-3193
(D.C. No. 01-CV-2431-KHV)
JO ANNE B. BARNHART, (D. Kansas)
Commissioner, Social Security
Administration,
Defendant -Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and BALDOCK , Circuit Judges.
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This order and judgment is not binding precedent, except under the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.
Rebecca L. Smith appeals from the district court’s ruling affirming
appellee’s denial of Social Security disability insurance benefits. Claimant
applied for benefits in 1998, alleging disability as of November 25, 1997, due to
severe shoulder and neck pain, numbness in her right hand and pain in her knees.
Her application was denied initially and upon reconsideration. At a hearing
before an administrative law judge (ALJ), claimant and her husband testified,
along with a vocational expert (VE). The ALJ concluded that claimant was not
disabled. In reaching this conclusion, the ALJ discounted a residual functional
capacity (RFC) assessment by one of claimant’s treating physicians, Dr. McKee,
and concluded that neither claimant nor her husband were fully credible in their
testimony at the hearing.
To qualify for disability insurance benefits, claimant must demonstrate an
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The agency has established
a five-step sequential test for evaluating disability. See 20 C.F.R. § 404.1520;
Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five steps).
Applying the first four steps of the test, the ALJ in this case determined that
claimant was not presently engaged in any substantial gainful activity; claimant
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had severe impairments, but they did not meet any of the listings; and claimant’s
impairments prevented her from returning to her past relevant work. These
conclusions are not at issue on appeal.
Because claimant bore her burden of proof on the first four steps, she
established a prima facie case of disability. Williams , 844 F.2d at 751. The
burden of proof shifted to the agency at step five to show that claimant retained
the RFC to “perform an alternative work activity and that this specific type of job
exists in the national economy.” Id. (quotation omitted). Here, after rejecting
Dr. McKee’s assessment and the testimony of both claimant and her husband, the
ALJ concluded that claimant retained the RFC to perform certain jobs enumerated
at the hearing by the VE, specifically surveillance system monitor, information
clerk, and photocopy machine operator.
On appeal, claimant presents three arguments challenging the ALJ’s
decision. She contends that 1) the ALJ wrongly rejected her credibility merely
because the severity of her alleged pain and limitations were not fully
corroborated by medical evidence; 2) the ALJ erred in failing to give controlling
weight to Dr. McKee’s RFC assessment; and 3) the requirements of the jobs listed
by the VE at the hearing are inconsistent with the RFC the ALJ concluded
claimant retained. Our review is limited to determining whether the ALJ’s
findings are supported by substantial evidence and whether he applied the correct
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legal standards. White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). This court will
not reweigh the evidence as it evaluates the record, nor will it substitute its
judgment for that of the agency. Id. (quotation omitted). “Failure to apply the
correct legal standard or to provide this court with a sufficient basis to determine
that appropriate legal principles have been followed is grounds for reversal.”
Williams , 844 F.2d at 750 (quotations omitted).
“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) (quotation omitted). If the ALJ rejects the treating physician’s opinion,
he must state specific, legitimate reasons for doing so. Drapeau v. Massanari ,
255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted). Here, in light of the
record medical evidence, we conclude that the ALJ failed to provide such reasons.
Dr. McKee’s assessment was completed on a form which asked for both
functional limitations and the medical findings which supported each particular
limitation or set of limitations. Dr. McKee indicated what he concluded were
claimant ’s limitations and noted as supporting findings severe muscle spasms in
the cervical, trapezius, and paraspinal muscles, degenerative changes shown on
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claimant ’s cervical X-rays, and myofascial pain. He noted the presence of both
cervical and back pain, and, specifically, that examination had shown
degenerative changes in claimant ’s cervical spinal fluids. At the end of the form,
Dr. McKee wrote a paragraph which stated that claimant had gone through a
complete work up and treatment for her chronic myofascial pain syndrome, which
included multiple modalities of treatment. He noted that the results were
disappointing. The ALJ rejected this assessment because, he stated, it was not
supported by any objective medical evidence or clinical findings. He
characterized the medical evidence as establishing only mild arthritic changes
resulting in some range of motion limitations, but few additional symptoms.
Our review of the record indicates otherwise. Claimant ’s medical record
contains many findings and diagnoses other than mild arthritic changes. At
various times, her treating and examining physicians have concluded that she has
1) mild or greater central spinal stenosis at C5-6 secondary to a small or moderate
ventral bulging disc; 2) a bone spur, resulting in marked attentuation of the
cervical chord; 3) adjustment reaction with mixed emotions secondary to chronic
pain; 4) musculoskeletal neck pain; 5) cervical radiculopathy; 6) myofascial pain
with evidence of thoracic outlet syndrome; 7) cervical spasm and right arm
parathesias of unknown origin, 8) possible fibromyalgia; 9) degenerative arthritis,
10) chondromalicia patella; 11) chronic myofascial pain; 12) tension headaches;
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12) lateral epicondylitis bilaterally; and 13) peripheral nerve entrapment. None of
the supporting medical findings Dr. McKee noted in his RFC assessment are, as
the ALJ claimed, inconsistent with the medical record as a whole. Accordingly,
the ALJ’s reason for rejecting Dr. McKee’s assessment is not substantiated in the
record and must be reversed.
Although this error by itself requires reversal, we feel compelled to
comment about the ALJ’s credibility determinations, on which he relied to reject
claimant ’s allegations of disabling pain and other limitations. The ALJ concluded
that claimant’s subjective complaints were not credible because her allegations
were exaggerated and refuted by the objective medical evidence; she appeared
histrionic at the hearing; her daily activities were inconsistent with her
allegations; and she had a sporadic work history. We recognize that credibility
determinations are “peculiarly the province of the finder of fact,” Kepler v.
Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted), and we cannot
review the ALJ’s observations or opinion of claimant ’s demeanor at the hearing.
Nonetheless, we conclude that the record does not support the balance of the
reasons given for discrediting claimant ’s testimony. Further, the ALJ found
claimant’s husband’s testimony less than fully credible because he had a financial
outcome in the proceedings and because he was not a competent medical source.
Without considering whether financial gain may be used as a factor to discount a
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witness’s credibility, cf. Ramirez v. Barnhart , 292 F.3d 576, 581 n.4 (8th Cir.
2002), we conclude that claimant’s husband need not be a medical source before
his testimony about claimant’s daily activities and perceived limitations may be
considered credible.
There must be a link between the medical evidence and a claimant ’s
subjective complaints, but this court has held that the link need be only a “loose
nexus.” Luna v. Bowen , 834 F.2d 161, 164 (10th Cir. 1987). The ALJ’s analysis
of claimant ’s allegations and her husband’s testimony in comparison with the
medical evidence contradicts the “loose nexus” ruling in Luna and requires
claimant to prove the severity of her pain and resulting limitations through
medical test results alone. We have rejected this concept as contrary to applicable
law. Id. at 165. “If objective medical evidence must establish that severe pain
exists, subjective testimony serves no purpose at all.” Id. Agency regulation is in
accord. See 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements
about the intensity and persistence of your pain or other symptoms . . . solely
because the available objective medical evidence does not substantiate your
statements.”).
“[I]f an impairment is reasonably expected to produce some pain,
allegations of disabling pain emanating from that impairment are sufficiently
consistent to required consideration of all relevant evidence.” Luna , 834 F.2d at
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164. In other words, so long as there exists a medical basis for the pain claimant
alleges, the ALJ should consider subjective testimony about the extent of her pain
and resulting limitations. We conclude that the record supports the existence of
conditions which could reasonably be expected to produce some pain. All of
claimant ’s treating sources acknowledged her pain and attempted to relieve it;
none of them suggested that she was exaggerating her pain or other symptoms.
In examining the subjective testimony on remand, the ALJ should consider factors
such as the medications claimant has taken and their effectiveness; the extent of
her attempts to obtain relief and the frequency of her medical visits; and the
extent and nature of her daily activities. See Kepler , 68 F.3d at 391.
Because we reverse the agency’s denial of benefits on claimant ’s second
issue, we need not consider her remaining allegations of error. The judgment
of the United States District Court for the District of Kansas is REVERSED, and
this case is REMANDED for further administrative proceedings consistent with
this order and judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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