Malakowsky v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 27 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BARBARA A. MALAKOWSKY,
Plaintiff-Appellant,
v. No. 02-7066
(D.C. No. 01-CV-408-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , 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This order and judgment is not binding precedent, except under the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.
Claimant Barbara Malakowsky appeals from an order of the district court
affirming the Commissioner’s determination that she is not entitled to Social
Security disability benefits. We reverse and remand for further proceedings.
Claimant applied for disability benefits in December 1999, alleging
disability since October 13, 1999, due to foot injury, bilateral wrist and elbow
injuries, osteoporosis, and low back and neck pain. 1
After an administrative
hearing at which a vocational expert (VE) testified, an administrative law judge
(ALJ) ruled against claimant on January 25, 2001. The ALJ found, at step four
of the five-part sequential evaluation process for determining disability, that
claimant was not disabled because she retained the residual functional capacity
(RFC) to perform both sedentary and light work and could, therefore, return
to her past relevant work as a dispatcher, court clerk, or dental assistant.
See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing the
five-step sequential process for determining disability).
On appeal, claimant first challenges the ALJ’s determination, at step three
of the sequential analysis, that she did not meet a listed impairment under
20 C.F.R. Pt. 404, Subpt. P., App. 1. Specifically, she contends that she met
1
Plaintiff’s insured status expired October 13, 1999; thus, she must show
she was totally disabled prior to that date. See Henrie v. United States Dep’t of
Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993) (holding that claimant
must show she was disabled prior to expiration of insured status).
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the requirements of impairment Listing 1.05(C) for vertebrogenic disorders,
20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.05(C) (2001) and Listing 11.14 for
peripheral neuropathies, id. § 11.14 (2002), and that the ALJ failed to discuss the
evidence or reasons for determining she did not meet or equal these listings, as
required by Clifton v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996). We agree.
In Clifton , this court reversed the district court and remanded the case for
additional proceedings when the ALJ made “such a bare conclusion” that it was
effectively “beyond meaningful judicial review.” Id. Our decision was based on
the fact that “the ALJ did not discuss the evidence or his reasons for determining
that appellant was not disabled at step three, or even identify the relevant Listing
or Listings; he merely stated a summary conclusion that appellant’s impairments
did not meet or equal any Listed Impairment.” Id. The ALJ made precisely the
same error in this case. He did not specify the listings he reviewed, the evidence
he considered or the reasons for his step-three determination.
The government acknowledges a remand is warranted when the ALJ fails to
discuss the evidence or provide reasons for determining a claimant does not meet
or equal a listed impairment. It argues, however, that the record evidence in this
case demonstrates the claimant’s condition did not meet or equal any listed
impairment. This argument is unavailing. The ALJ is charged with carefully
considering all the relevant evidence and linking his findings to specific evidence.
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Id. at 1009-10 (holding the “record must demonstrate that the ALJ considered all
of the evidence,” and the ALJ must “discuss[ ] the evidence supporting his
decision, . . . the uncontroverted evidence he chooses not to rely upon, [and]
significantly probative evidence he rejects”). When, as here, an ALJ does not
provide any explanation for rejecting medical evidence, we are “left to speculate
what specific evidence led the ALJ to [his conclusion],” Kepler v. Chater , 68 F.3d
387, 391 (10th Cir. 1995), and, thus, we cannot meaningfully review the ALJ’s
determination, see Clifton , 79 F.3d at 1009. Although we review the ALJ’s
decision for substantial evidence, “we are not in a position to draw factual
conclusions on behalf of the ALJ.” Prince v. Sullivan , 933 F.2d 598, 603
(7th Cir. 1991).
Claimant next contends that, at step four, the ALJ erred in his
determination that her complaints of disabling pain were not credible.
“Credibility determinations are peculiarly the province of the finder of fact, and
we will not upset such determinations when supported by substantial evidence.”
Kepler , 68 F.3d at 391 (internal citations and quotations omitted). Nonetheless,
“[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 v.
Bowen , 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted); see also Kepler ,
68 F.3d at 391. According to Social Security Ruling 96-7p, 1996 WL 374186-4-
(July 2, 1996), which applies to the ALJ’s evaluation of an applicant’s description
of symptoms, the evaluation must contain “specific reasons” for a credibility
finding; the ALJ may not simply “recite the factors that are described in the
regulations.” Id. at *4. “Standard boilerplate language will not suffice.” Briggs
ex rel. Briggs v. Massanari , 248 F.3d 1235, 1239 (10th Cir. 2001). Without an
adequate explanation, neither the claimant nor subsequent reviewers will have
a fair sense of how the claimant’s testimony was weighed. Id.We agree with claimant that the ALJ provided insufficient reasons for
discounting her testimony of disabling pain. The ALJ’s primary explanation for
rejecting claimant’s testimony was his conclusory finding that there was minimal
objective evidence to support claimant’s allegations and that the medical evidence
was not consistent with an impairment that might reasonably limit claimant’s
activities. The ALJ did not link this credibility determination to substantial
evidence, failing to point to specific evidence in the record contradicting or
undermining claimant’s assertions. See Kepler , 68 F.3d at 391 (holding that
ALJ’s analysis of credibility of subjective complaints is inadequate if ALJ merely
states conclusion that pain is not disabling without making express findings with
reference to relevant evidence). Although the ALJ characterized the
inconsistencies between claimant’s testimony and the medical evidence as
“marked,” he failed to identify any such inconsistency.
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The ALJ did recite some of the factors he was required to consider with
regard to claimant’s allegations of pain. See Luna v. Bowen , 834 F.2d 161,
165-66 (10th Cir. 1987) (listing factors that ALJ should consider when
determining the credibility of subjective claims of pain). He failed, however, to
connect any of the factors he recited to any evidence in the record. He simply
summarized the factors he considered, and concluded claimant’s allegations were
not credible. This is precisely the procedure condemned in Kepler , 68 F.3d
at 390-91. The ALJ further failed to discuss the uncontroverted evidence
supporting claimant’s allegations upon which he chose not to rely. See Clifton ,
79 F.3d at 1009-10. Our review of the medical record reveals numerous instances
in which claimant complained to medical personnel about her pain, had to be
anesthetized in order for medical personnel to manipulate her foot, and sought
pain relief at a pain management clinic. See Appellant’s App. at 117 (pain and
stiffness in the back, cramping pain in foot, intermittent numbness); 125 (lower
back pain); 126 (radicular pain in right hip and right foot); 129 (back pain,
radicular pain to buttock and to right foot); 136 (occasional neck pain); 230 (pain;
had to stop every thirty minutes on four-hour drive home); 232 (foot pain,
shoulders hurting); 234 (shoulder soreness, neck pain); 235 (low back pain; had
to stop a lot during four-hour drive to physical therapy); 236 (reports pain as four
on a scale of ten); 247 (pain in shoulder); 250 (increased pain in shoulder);
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260 (neck pain that radiated to her left shoulder; pain on left side of neck with
muscle spasms); 262 (neck pain); 272 (neck and ear pain); 281 (chronic pain of
right foot); 286 (can only undergo physical therapy with pain medication); 287-88
(range of motion performed with significant effort, as if patient is fearful of pain;
chronic pain in back and right leg); 313 (required epidural anesthesia for physical
therapy); 315 (gradual onset of worsening foot and low back pain; pulsing
sensation in right foot with shooting pain in right back; unable to stay on feet or
sit for very long; pain radiates into back and hip region with sharp, grabbing
sensation; pain severe in neck; pain constant in intensity). The ALJ rejected
claimant’s allegations of pain based in part upon his observation that he saw no
outward signs of physical limitations. His observation appears directly contrary
to medical evidence in the record that claimant has a club foot deformity,
osteoporosis, muscle atrophy, and muscle weakness. Id. at 117 (inturning foot,
mild leg atrophy, peroneal neuropathy with slowing of peroneal nerve); 125 (right
foot deformity); 127 (varus deformity at hind foot and severe achilles tendon
tightening); 129 (limited range of foot motion); 260 (muscle spasms, degenerative
changes of the cervical spine); 266 (osteoporosis); 272-73 (club foot type
deformity of right foot, chronic cervical strain); 284 (mid-foot deformity); 286
(osteoporosis, club foot); 294 (painful contracture of tibialis posterior); 296
(osteoporosis); 320 (ankle spasm).
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In summary, the ALJ failed to closely and affirmatively link his findings
concerning claimant’s allegations of pain to substantial evidence. See Kepler ,
68 F.3d at 391. If this case proceeds to step four on remand, the ALJ shall link
any credibility findings he makes regarding claimant’s subjective complaints of
disabling pain to specific and substantial evidence in the record.
Finally, claimant contends that the ALJ failed to make the required analysis
at step four of the five-step analysis. Step four of the sequential analysis is
comprised of three phases. “In the first phase, the ALJ must evaluate a claimant’s
physical and mental [RFC], . . . and in the second phase, he must determine the
physical and mental demands of the claimant’s past relevant work.” Winfrey v.
Chater , 92 F.3d 1017, 1023 (10th Cir. 1996). “In the final phase, the ALJ
determines whether the claimant has the ability to meet the job demands found in
phase two despite the mental and/or physical limitations found in phase one.” Id.The ALJ must make specific findings on the record at each of these phases, and
those findings must be supported by substantial evidence. See id .
The ALJ concluded that claimant could perform a wide range of light work
and could therefore return to her past relevant work, because she did not have
additional limiting factors. Under the regulations, a determination that a claimant
can perform light work generally means that he or she can also perform sedentary
work “unless there are additional limiting factors such as loss of fine dexterity or
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inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). Claimant
contends that, in the first phase of the step-four analysis, the ALJ erred in
concluding she did not have limiting factors such as a loss of fine dexterity or
inability to sit for six hours. She further contends that, in the second phase, the
ALJ failed to compare her RFC with the specific demands of her past relevant
work, as required by Social Security Ruling 82-62, 1982 WL 31386.
Because additional proceedings will now ensue on remand that may result
in resolution at step three of the sequential analysis or effect the analysis of
claimant’s RFC, we decline to address claimant’s allegations of specific errors in
the ALJ’s step-four analysis. We note, however, that the ALJ did fail to discuss
any of the evidence in the record indicating that claimant’s fine dexterity was
limited as a result of her bilateral carpal tunnel and bilateral cubital tunnel
surgeries. On remand, if the analysis proceeds to step four, the ALJ will need to
make specific findings on the record about possible limiting factors. Further, for
the ALJ to conclude validly that claimant can return to her past relevant work, the
ALJ is required to make specific findings concerning: (1) claimant’s RFC; (2) the
functional demands of each of plaintiff’s past jobs; and (3) plaintiff’s ability to
return to these past jobs with the RFC the ALJ determines the claimant to have.
See Winfrey , 92 F.3d at 1023.
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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.
Entered for the Court
Michael R. Murphy
Circuit Judge
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