Conkle v. Astrue , 297 F. App'x 803 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 28, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
CHRISTY D. CONKLE,
Plaintiff-Appellant,
v. No. 07-6104
(D.C. No. CIV-06-786-W)
MICHAEL J. ASTRUE, (W.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HOLLOWAY, BARRETT, and SEYMOUR, Circuit Judges.
Plaintiff Christy D. Conkle, proceeding pro se, appeals from an order of the
district court adopting the magistrate judge’s recommendation to affirm the Social
Security Commissioner’s denial of disability benefits. Ms. Conkle argues on
appeal that the Commissioner (1) failed to fully consider her mental-impairment
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
evidence and (2) did not properly assess her credibility. “We review the
Commissioner’s decision to determine whether the factual findings are supported
by substantial evidence and whether the correct legal standards were applied.”
Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). Because we conclude
the correct legal standards were not applied, we reverse and remand for further
proceedings.
I.
Ms. Conkle filed an application seeking disability benefits from January 20,
1997, through September 30, 2004, the last date she was insured. She asserted
disability due to schizophrenia, depression, anxiety, bipolar disorder, panic
attacks, headaches, a knee injury, and carpal tunnel syndrome. The administrative
law judge (ALJ) found that she had severe impairments of bipolar disorder and
right knee injury, but that she was not disabled at step four of the five-step
sequential evaluation process, see generally Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988), because she had the residual functional capacity (RFC)
to perform her past relevant work as a production assembler. After the Appeals
Council denied review, Ms. Conkle, who was represented by counsel, sought
judicial review in district court. In a written report and recommendation, the
magistrate judge recommended that the Commissioner’s decision be affirmed.
Ms. Conkle, through her counsel, filed a timely objection, asserting that her past
work in production assembly was not substantial gainful employment because she
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performed the job for less than two months, her actual gross earnings were less
than the magistrate judge assumed, and her work ended due to her medical
conditions. The district court adopted the magistrate judge’s recommendation and
affirmed the Commissioner’s denial of benefits. Ms. Conkle filed this appeal pro
se, challenging the ALJ’s assessment of her credibility and her mental
impairments with respect to her ability to perform substantial gainful activity.
II.
The Commissioner argues that Ms. Conkle waived the issues she presents
on appeal because she did not specifically object to the portions of the magistrate
judge’s report and recommendation finding no ALJ error in assessing her
credibility or mental impairments. Although it is a close question whether
Ms. Conkle’s objections preserved for review the issues she seeks to raise on
appeal, we believe her objections were sufficient. Accordingly, we proceed to
address the issues she raises on appeal.
III.
A. Mental-Impairment Evidence
Ms. Conkle argues that the ALJ failed to consider the relevant medical
evidence about her mental impairments, including medical reports of her treating
doctors. Also, she argues that the ALJ failed to fully consider her mental
impairments and their effect at steps three and four of the sequential evaluation
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process. 1 We agree with Ms. Conkle that the ALJ failed to review the reports of
her treating doctors and did not properly evaluate the evidence at steps three and
four.
It is settled that the ALJ is required to “evaluate every medical opinion”
she receives. 20 C.F.R. § 404.1527(d); see also Baker v. Bowen, 886 F.2d 289,
291 (10th Cir. 1989) (requiring ALJ to “consider all relevant medical evidence of
record in reaching a conclusion as to disability”). Most importantly, an ALJ must
fully evaluate evidence from a claimant’s treating doctors:
Under the regulations, the agency rulings, and our case law, an ALJ
must “give good reasons in [the] notice of determination or decision”
for the weight assigned to a treating physician’s opinion. 20 C.F.R.
§ 404.1527(d)(2); see also Social Security Ruling 96-2p, 1996 WL
374188, at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir.
2003). Further, the notice of determination or decision “must be
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.” SSR 96-2p, 1996 WL 374188, at
*5.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); see also id. at
1300-01 (setting out framework for evaluating treating source medical opinions).
Furthermore, the ALJ must discuss the uncontroverted evidence she did not rely
1
In her reply brief, Ms. Conkle makes a conclusory argument that her
physical impairments also prohibit her from working. She did not make this
argument in her opening brief, and we therefore do not consider it. See Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000).
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upon in her decision and any significantly probative evidence that she rejects.
See Frantz v. Astrue, 509 F.3d 1299, 1303 (10th Cir. 2007).
In this case, the ALJ did not follow these legal standards. Her decision
referenced only an August 1, 2005, report of a social worker, who assessed
Ms. Conkle after the expiration of her last insured date, and a September 17,
2003, report of a consultative psychologist, who examined Ms. Conkle only once.
Much other medical evidence appears in the record. Ms. Conkle testified, and the
record reflects, that she went to the Mary Mahoney Memorial Health Center for
mental health treatment several times from 1998 to 2003. Also, Ms. Conkle
testified that in 2003 and 2004 she received treatment/counseling from
Dr. Ghazani every three months for depression, panic attacks, crying, and bipolar
disorder, and reports in the record show that Dr. Ghazani provided Ms. Conkle
regular treatment. Nonetheless, the ALJ did not mention any of the evidence
from her treating doctors and therefore did not discuss, evaluate, or weigh the
evidence. Nor did the ALJ mention or evaluate any of the reports from
Ms. Conkle’s multiple visits to the North Care Center/Community Counseling
Center in 2003 and 2004. By ignoring the evidence of Ms. Conkle’s treating
sources and instead relying on reports from the social worker and the consulting
doctor, the ALJ failed to comply with established legal standards requiring her to
evaluate all of the medical evidence and make specific findings as to the weight
she accorded the treating sources.
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We recognize that the ALJ stated that she had considered all of
Ms. Conkle’s symptoms and all of the medical opinion evidence. And we
recognize that “an ALJ is not required to discuss every piece of evidence.” See
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But this is a case
where we will not assume the ALJ actually considered all of the evidence. Cf.
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (“[O]ur general
practice . . . is to take a lower tribunal at its word when it declares that it has
considered a matter.”). The ALJ’s cursory decision, which fails to even mention
the majority of the medical evidence in the record, certainly does not
“demonstrate that [she] considered all of the evidence.” Clifton, 79 F.3d at 1009.
Because the ALJ failed to consider all of the medical evidence, she could
not and did not properly consider whether Ms. Conkle was disabled at steps three
or four of the sequential evaluation process. In concluding at step three that
Ms. Conkle’s impairments do not meet Listing 12.04A and B, see 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.04A, B, the ALJ merely referred to her step-four
discussion. As we discuss below, however, this is not a case where the “ALJ’s
findings at [step four] of the sequential process may provide a proper basis for
upholding a step three conclusion that [Ms. Conkle’s] impairments do not meet or
equal any listed impairment.” Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th
Cir. 2005). The ALJ’s decision does not discuss any evidence addressing the
questions posed by Listing 12.04A and B. Thus, we cannot review the ALJ’s bare
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conclusion at step three. See Clifton, 79 F.3d at 1009 (“In the absence of ALJ
findings supported by specific weighing of the evidence, we cannot assess
whether relevant evidence adequately supports the ALJ’s conclusion that
appellant’s impairments did not meet or equal any Listed Impairment, and
whether he applied the correct legal standards to arrive at that conclusion.”).
At step four, after summarizing parts of Ms. Conkle’s hearing testimony
and parts of the social worker’s and the consultative psychologist’s reports, the
ALJ concluded that
[a]fter careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
a wide range of light work with the need for simple to detailed, but
not complex job instructions; no more than occasional public contact;
no customer service and no more than occasional contact with
co-workers.
Aplee. App., Vol. II at 19. The ALJ fails to state how she reached this conclusion
or what evidence she relied on to reach this conclusion. The social worker’s and
consultative psychologist’s reports are insufficient to reach this conclusion as
neither discusses the type of work Ms. Conkle can perform. Likewise, the ALJ’s
indication that Ms. Conkle can perform her past work as a production assembler
based on her RFC and the testimony of the vocational expert is merely conclusory
and is not supported with appropriate findings based on any record evidence.
Because the ALJ simply drew conclusions without analyzing and weighing the
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evidence and without making appropriate findings based on that evidence, we
cannot review those conclusions.
Because we cannot meaningfully review the ALJ’s decision and because we
do not weigh the evidence, we remand to the district court to remand to the
Commissioner to consider and discuss the relevant evidence, to provide reasons
for accepting or rejecting the evidence, and to apply correct legal standards. See
Clifton, 79 F.3d at 1009-10. 2
B. Credibility
Next, Ms. Conkle argues the ALJ erred in assessing her credibility.
Because we remand for the ALJ to fully examine the mental impairment evidence
we also remand for the ALJ to reassess Ms. Conkle's credibility after considering
that evidence.
IV.
The judgment of the district court is VACATED, and the case is
REMANDED with directions to remand to the Commissioner for further
proceedings to fully consider the medical evidence and Ms. Conkle’s credibility
in light of that evidence. We GRANT Ms. Conkle’s motions for leave to proceed
2
If, upon remand, the ALJ reaches step four, she must consider Ms. Conkle’s
RFC under the standards set forth in Winfrey v. Chater, 92 F.3d 1017, 1023-26
(10th Cir. 1996). See Frantz, 509 F.3d at 1303-04.
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on appeal in forma pauperis and to file her reply brief out of time. But we DENY
as moot her implied request to present new medical evidence on appeal. 3
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
3
Ms. Conkle attaches to her opening brief evidence that was not before the
ALJ. Although we limit our review to the administrative record, see 42 U.S.C.
§ 405(g); Carter v. Chater, 73 F.3d 1019, 1022 n.3 (10th Cir. 1996), we note that
on remand, Ms. Conkle can submit this evidence to the ALJ.
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