O'Neal v. Massanari

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 21 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DEBORAH G. O’NEAL,
Plaintiff-Appellant,
v. No. 01-6200
(D.C. No. 00-CV-152-L)
JO ANNE B. BARNHART, (W.D. Okla.)
Commissioner of Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.
*
On November 9, 2001, JoAnne B. Barnhart became Commissioner of Social
Security. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the appellee in
this action.
**
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This order and judgment is not binding precedent, except under the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.
Appellant Deborah O’Neal challenges the decision of the district court
affirming the conclusion of the Commissioner of Social Security that she is not
entitled to disability benefits. We have jurisdiction under 42 U.S.C. § 405(g) and
28 U.S.C. § 1291, and we reverse and remand to the district court.
I
O’Neal’s left leg was injured in a car accident in November 1993. In April
1994, she underwent surgery. As an unintended consequence of the surgery,
O’Neal’s sympathetic nervous system was traumatized, and she developed a
condition known as reflex sympathetic dystrophy (RSD). RSD is characterized by
a constant pain cycle. O’Neal, who was employed as a salesperson before her
accident, has not worked since the surgery.
O’Neal underwent extensive physical therapy following the surgery. She
received a series of spinal blocks, which succeeded in abating her pain only for a
day to a day-and-a-half. An epidural catheter was attempted, but it failed.
O’Neal participated in a specialized program for RSD patients, which met five
days a week, eight hours a day for two-and-a-half months. Among other things,
the RSD program focused on teaching patients how to manage pain through
mental techniques. O’Neal had limited success in this program.
As a result of her condition, O’Neal takes pain medication (Fioricet with
Codeine) on a daily basis; takes muscle relaxants and other medications on a
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regular basis; and is in contact with her family physician on a weekly basis
regarding maintenance of her medications.
O’Neal applied for disability benefits, and her application was denied. She
requested a hearing before an administrative law judge (ALJ), which was held
August 27, 1997. At the hearing, O’Neal testified about her condition and the
limitations it placed on her daily activities. Notwithstanding this evidence, the
ALJ concluded that O’Neal did not suffer from a disability. The Appeals Council
declined to hear her appeal, at which point the ALJ’s decision became the final
decision of the Commissioner. Thereafter, the district court affirmed the
Commissioner’s denial of benefits on the report and recommendation of the
magistrate judge.
II
O’Neal argues that the ALJ failed to give due consideration to her
allegations of disabling pain. We review the Commissioner’s decision to
determine whether it is supported by substantial evidence and whether the correct
legal standards were applied. Hill v. Sullivan, 924 F.2d 972, 973 (10th Cir.
1991). Substantial evidence is adequate relevant evidence that a reasonable mind
might accept to support a conclusion. Hargis v. Sullivan, 945 F.2d 1482, 1486
(10th Cir. 1991).
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The five-step analysis for determining disability in the social security
context is familiar. Relevant here is step five, at which the burden shifts to the
Commissioner to prove that the claimant can perform jobs existing in the national
economy. Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). O’Neal
contends she could not perform other work because of the severity of her RSD
symptoms.
At the hearing, O’Neal testified about her multiple spinal blocks, the
attempt to insert an epidural catheter, her participation in the specialized RSD
program, her extensive physical therapy, and her continued daily use of pain
medications. 1
This testimony is supported by medical reports in the record.
Further, O’Neal’s primary complaints of pain, swelling, muscle spasms, and
hypersensitivity in her left leg are all mirrored in her physicians’ observations
over the course of several years.
O’Neal further testified that the increased pain in response to cold and
damp weather means she sometimes does not get out of bed at all during the
winter, and rarely leaves the house in that season. Regarding her typical
activities, she stated that she drives very short distances only; that her daughter
does the majority of the housecleaning for her; that she also receives help from
1
O’Neal elaborated that, on some days a single dose of three pills in the
morning would be sufficient, while on other days she would also need a dose in
the afternoon or evening.
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her parents and son-in-law; and that she no longer participates in sports and other
activities that she enjoyed before the onset of RSD. While she performs limited
household chores, in her hearing testimony as well as in prior medical encounters
O’Neal reported limitations on her ability to care for herself and her family.
Medical reports in the record show persistent, severe pain and
hypersensitivity, with periodic swelling and discoloration of O’Neal’s left leg
throughout 1994, 1995, and 1996. As of October 18, 1996, O’Neal’s family
physician was prescribing her the painkiller Fioricet to be taken every four hours.
In summarizing the evidence, the ALJ stated that O’Neal takes her pain
medication on an “as-needed” basis, that she appeared comfortable at the hearing,
that she continues to drive and gets out of the house once or twice a week. The
ALJ further stated, “During the day she would visit with her mother and father, do
some of her housework, wash and dry dishes, do laundry, sweep the floors, shop,
cook, swim in a swimming pool, also she liked to sit in a hot tub, indicating this
was done in part for exercise . . . .” (2 R. at 22.) This misconstrues O’Neal’s
testimony to the extent it implies that these are activities she pursues on a daily
basis. While she described doing some of these activities periodically, she
reported that her daily activities had been significantly limited and that “[t]he
majority of [her] time is spent laying down and resting.” ( Id. at 51.) O’Neal
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stated that she swam in the pool as therapeutic exercise on the advice of her
physician.
The summary concluded:
The claimant basically complains she is not able to work because of
her reflex sympathetic dystrophy of the left leg, however, while she
does have some weakness and loss of movement in her hips, leg and
ankle, she is still able to move about well enough to do some types
of work.
(Id. at 24.) This misconstrues O’Neal’s position in that it fails to acknowledge
that her primary complaint—and the primary symptom of RSD—is severe and
persistent pain , to which the loss of mobility is secondary.
In his findings, the ALJ stated, “The claimant’s subjective complaints
including those of pain as well [as] any effects her impairments have on her
residual functional capacity as she asserts them to exist are not support[ed] by the
credible evidence of the record to that extent and therefore her credibility is
diminished.” ( Id. at 25.)
We set out the framework for analyzing allegations of disabling pain in
Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). Under Luna,
We must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is
a loose nexus between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether considering all
the evidence, both objective and subjective, Claimant’s pain is in fact
disabling.
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Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995) (quotations omitted). Here,
the ALJ did not make specific findings under the three prongs of Luna . It is
apparent from the record that RSD is a pain-producing impairment, and that there
is an adequate nexus between that condition and O’Neal’s complaints.
With respect to the third Luna prong, the ALJ failed to consider all of the
objective medical evidence of O’Neal’s pain as required. Rather, it appears the
ALJ focused on a single report dealing primarily with mobility limitations rather
than pain, while ignoring evidence in other reports corroborating O’Neal’s
allegations of severe and persistent pain.
Further, the ALJ discredited O’Neal’s subjective allegations of pain
without giving reasons for doing so. “[T] he claimant is entitled to have [her]
nonmedical objective and subjective testimony of pain evaluated by the ALJ and
weighed alongside the medical evidence. An ALJ may not ignore the evidence
and make no findings.” Huston v. Bowen, 838 F.2d 1125, 1131 (10th Cir. 1988)
(citations omitted).
The ALJ was free to find that O’Neal’s testimony was not credible, but he
still must give reasons for that finding. See Reyes v. Bowen, 845 F.2d 242, 244
(10th Cir. 1988) (in general, administrative agencies must give reasons for their
decisions). Specifically, while “[c]redibility determinations are peculiarly the
province of the finder of fact,” Diaz v. Sec’y of Health & Human Servs., 898 F.2d
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774, 777 (10th Cir. 1990), “[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise
of findings,” Huston, 838 F.2d at 1133 (footnote omitted).
Here, the ALJ discredited O’Neal’s testimony in a conclusory fashion. The
ALJ did not attempt to link his credibility determination to substantial evidence,
failing to point to any specific evidence contradicting or undermining O’Neal’s
assertions. In fact, her descriptions of objective symptomatology are supported
by the overwhelming majority of the medical evidence. 2
Facing a similar scenario in Kepler, we explained:
[The ALJ] should have considered factors such as the levels of
medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of
credibility that are peculiarly 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.
68 F.3d at 391 (quotations and citation omitted). Here, the ALJ addressed these
factors in summarizing the evidence, but mischaracterized and/or
2
There are stark contradictions in the medical evidence. A November 29,
1995 letter from a Dr. Pettigrew concluding that O’Neal “may return to
employment she has performed in the past” and that “[s]he is in no further need
of medical care” is strikingly out of keeping with the remainder of the record.
(2 R. at 296–97.)
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ignored O’Neal’s testimony in the summary and findings without pointing to
specific evidence justifying his disregard for her allegations.
III
Because the ALJ failed to apply the proper legal standard in assessing
O’Neal’s allegations of disabling pain, we REVERSE the decision of the district
court and REMAND with instructions that the district court remand the case to
the Commissioner for the purpose of making findings consistent with this
decision. 3
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
3
We reject O’Neal’s additional argument that the ALJ failed to address all
of her impairments when questioning the vocational expert, because O’Neal fails
to identify which impairments were ignored by the ALJ.
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