McFerran v. Astrue

FILED
United States Court of Appeals
Tenth Circuit
August 19, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JEFFREY ALAN MCFERRAN,
Plaintiff-Appellant,
No. 10-7095
v. (D.C. No. 6:09-CV-00370-FHS-KEW)
(E.D. Okla.)
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.
Jeffrey Alan McFerran appeals from a judgment of the district court
affirming the Commissioner’s denial of his application for Social Security
disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
§ 405(g). Because the Commissioner failed to follow the correct legal standards
in denying benefits, we reverse and remand for further proceedings.
I.
Mr. McFerran, a 40-year-old Air Force veteran, sought disability benefits
based on degenerative disc disease of the lumbar and cervical spine and
associated pain; coronary artery disease; hypertension; obesity; postsurgery
hernia, knee, and shoulder limitations; depression; and anxiety. He had worked
as a postal service clerk for 15 years before his alleged disability-onset date,
February 13, 2007. Applying its own standards, the Veterans Administration
(VA) had determined that Mr. McFerran was “entitled to receive service
connected compensation at the 100 percent rate effective February 10, 2007.”
Admin. R., Vol. 3 at 252.
Mr. McFerran takes medications for high blood pressure, back pain, chronic
pain, high cholesterol, depression, and anxiety. In his testimony he asserted that
back pain is his most significant limitation. He spends most of his day in a
recliner and must constantly adjust his position. He uses a TENS unit daily and
often uses a cane to move about the house. To assist his wife in running the
household, he helps his four-year-old daughter get ready for preschool and folds
laundry. He claimed that he could sit upright for at most ten minutes and walk
without a cane for about five minutes. With regard to mental impairments,
Mr. McFerran testified that he has memory problems as a result of his
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medications and that it takes a force of will for him to leave home. The medical
records indicate that he has been treated for depression and anxiety.
The Administrative Law Judge (ALJ) denied benefits at the last step of the
five-step sequential process for determining disability. See Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining the five steps). At step
two the ALJ found that Mr. McFerran had multiple severe physical impairments,
but that his medically determinable mental impairments of depression and anxiety
were not severe because they caused only mild or “minimal limitation in [his]
ability to perform basic mental work activities.” Admin. R., Vol. 2 at 17.
At step three the ALJ found that none of the identified impairments or a
combination of impairments met or equaled any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then assessed
Mr. McFerran’s residual functional capacity (RFC), and at step four determined
that (1) he could perform a range of sedentary work as long as his overhead
lifting was restricted to accommodate his shoulder impairment but (2) he could
not perform his past relevant work as a postal clerk. The ALJ found
Mr. McFerran’s testimony characterizing the extent of his pain and mental
impairments to be not entirely credible.
Relevant to step five, a vocational expert responded to a hypothetical
question describing an individual able to perform a range of sedentary work, but
with an above-shoulder-level restriction. The expert testified that there were
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other jobs in significant numbers in the regional and national economy that the
individual could perform. Based on this testimony the ALJ found that Mr.
McFerran’s RFC allowed him to perform a significant number of jobs in the
national economy, and therefore concluded that he was not disabled and denied
his application for benefits. The Appeals Council denied review, making the
ALJ’s decision the final agency decision. The district court affirmed.
On appeal to this court, Mr. McFerran does not challenge the ALJ’s finding
at step two that his mental impairment is not severe. Rather, he asserts that the
ALJ’s credibility determination was improper; that the ALJ should have
taken his mental impairment into account when determining his RFC and crafting
hypothetical questions for the vocational expert; and that the ALJ failed to
consider and evaluate his VA 100% disability rating. 1
II.
“We independently review the Commissioner’s decision to determine
whether it is free from legal error and supported by substantial evidence.”
Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011). We do “not reweigh the
evidence or substitute our judgment for the Commissioner’s.” Hackett v.
1
This court’s review is “limited to the issues the claimant properly preserves
in the district court and adequately presents on appeal.” Krauser v. Astrue,
638 F.3d 1324, 1326 (10th Cir. 2011) (internal quotation marks omitted). The
above listing of issues disregards Mr. McFerran’s stray allegations of error based
on the treating-physician rule and the ALJ’s step-three analysis. See Aplt. Br.
at ii, 6, 17.
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Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). But an ALJ’s failure “to provide
this court with a sufficient basis to determine that appropriate legal principles
have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163,
1165 (10th Cir. 2005) (internal quotation marks omitted).
A. Credibility Determination, Evaluation of Mental-Impairment
Evidence, and Limitation in Hypothetical Question
First, Mr. McFerran argues that the ALJ’s adverse credibility determination
was not in accordance with the correct legal standard. “Credibility
determinations are peculiarly the province of the finder of fact,” Kepler v. Chater,
68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted), and our
precedent “does not require a formalistic factor-by-factor recitation of the
evidence so long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility,” Poppa v. Astrue, 569 F.3d 1167, 1171
(10th Cir. 2009) (alteration and internal quotation marks omitted). “However,
findings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Kepler, 68 F.3d
at 391 (alteration and internal quotation marks omitted).
The ALJ’s decision sets forth the criteria for evaluating allegations of
symptoms and credibility, summarizes portions of Mr. McFerran’s testimony, and
restates entries in the medical record. But it provides no explanation of how the
ALJ applied the criteria to the testimony and medical records. The decision does
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not “contain specific reasons for the finding on credibility, supported by the
evidence in the case record” and is not “sufficiently specific to inform subsequent
reviewers of both the weight the ALJ gave to a claimant’s statements and the
reasons for that weight.” Hayden v. Barnhart, 374 F.3d 986, 992 (10th Cir. 2004)
(internal quotation marks omitted). The ALJ’s ultimate credibility determination
is a singularly unhelpful sentence: “[T]he claimant’s statements concerning the
intensity, persistence and limiting effects of [his] symptoms are not credible to
the extent they are inconsistent with the . . . residual functional capacity
assessment.” Admin. R., Vol. 2 at 20. We agree with Mr. McFerran that the
ALJ’s credibility assessment must be set aside.
The ALJ’s errors in the credibility assessment necessarily affect the RFC
determination. “Since the purpose of the credibility evaluation is to help the ALJ
assess a claimant’s RFC, the ALJ’s credibility and RFC determinations are
inherently intertwined.” Poppa, 569 F.3d at 1171. If the ALJ reaches a different
credibility assessment on remand, it may be necessary to revise Mr. McFerran’s
RFC. See id.
The ALJ’s RFC assessment and step-five determination are also defective
for other reasons. An ALJ must “consider the limiting effects of all [a claimant’s]
impairment(s), even those that are not severe, in determining [RFC].”
20 C.F.R. § 404.1545(e). “While a ‘not severe’ impairment(s) standing alone may
not significantly limit an individual’s ability to do basic work activities, it
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may–when considered with limitations or restrictions due to other impairments–be
critical to the outcome of a claim.” SSR 96-8p, 1996 WL 374184, at *5 (July 2,
1996). And the hypothetical questions posed to a vocational expert to assist with
the step-five determination must reflect with precision “all . . . those impairments
borne out by the evidentiary record.” Evans v. Chater, 55 F.3d 530, 532
(10th Cir. 1995).
At steps four and five of the sequential evaluation process, however, the
ALJ made no findings on what, if any, work-related limitations resulted from
Mr. McFerran’s nonsevere mood disorder and chronic pain. He did not include
any such limitations in either his RFC determination or his hypothetical question.
Nor did he explain why he excluded them.
In sum, we cannot conclude that the Commissioner applied the correct legal
standards in evaluating Mr. McFerran’s credibility, assessing an appropriate RFC,
and posing a proper hypothetical question to the vocational expert. We must
remand for the agency’s additional consideration of these issues.
B. Consideration of VA Disability Rating
Mr. McFerran next argues that the ALJ committed reversible error by not
giving enough weight to the VA’s disability rating and by not discussing that
rating more fully. “[A]lthough findings by other agencies are not binding on the
Commissioner, they are entitled to weight and must be considered.” Hackett,
395 F.3d at 1172 (alteration and internal quotation marks omitted); see also
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20 C.F.R. § 404.1512(b)(5) (stating that agency will consider “[d]ecisions by any
governmental or nongovernmental agency about whether you are disabled”).
The record demonstrates that the ALJ examined the VA medical records
and acknowledged the VA’s 100% disability rating. See Admin. R., Vol. 2 at 20
(“[C]onsideration of the Veteran[s] Administration rating has been considered.”).
This court’s “general practice . . . is to take a lower tribunal at its word when it
declares that it has considered a matter.” Hackett, 395 F.3d at 1173. Moreover,
Mr. McFerran “has not pointed to any specific factual finding or evidence in the
[VA] determination that should have changed the [ALJ’s] decision.” Id.
Although the Commissioner may decide to give fuller consideration to the VA
rating on remand, we reject this claim of error.
III.
The judgment of the district court is REVERSED and REMANDED with
instructions to remand to the Commissioner for further proceedings in accordance
with this Order and Judgment.
Entered for the Court
Harris L Hartz
Circuit Judge
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