Gutierrez v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FERNANDO F. GUTIERREZ,
Plaintiff-Appellant,
v. No. 02-2220
(D.C. No. CIV-01-847 BB/DJS)
JO ANNE B. BARNHART, (D. N.M.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and McCONNELL, 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This order and judgment is not binding precedent, except under the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.
Plaintiff Fernando F. Gutierrez applied for disability benefits and
supplemental security income on March 5, 1997, contending he had been disabled
since August 1, 1992, as a result of back problems. An administrative law judge
(ALJ) held a hearing on plaintiff’s applications in August 1998, and he issued a
decision in October 1998 finding plaintiff not disabled. The ALJ found that
plaintiff’s scoliosis and old compression fractures were severe impairments that
caused significant vocational limitations, but that plaintiff nonetheless retained
the residual functional capacity (RFC) for a full range of light work. Because
plaintiff had performed his past relevant work at the heavy exertional level, the
ALJ found that he could not return to that work. The ALJ then looked to the
Medical-Vocational Guidelines, or “grids,” which provided that a person of
plaintiff’s age, education, and vocational background who could perform a full
range of light work was not disabled. See 20 C.F.R., Pt. 404, Subpt. P, App. 2,
Table No. 2, Rule 202.14. Based on the application of the grids, the ALJ
concluded that plaintiff was not disabled and, therefore, was not entitled to any
benefits.
Plaintiff sought review of the ALJ’s decision before the Appeals Council.
In connection with that review, plaintiff submitted additional medical evidence in
the form of a letter from Dr. Abeyta dated December 9, 1998, which discussed
examinations of plaintiff in 1995 and 1998 by Dr. Abeyta and two orthopedic
-2-
specialists in the same health system. In its decision denying review, the Appeals
Council stated that it had considered this additional evidence, but found that it did
not warrant changing the ALJ’s decision. The Appeals Council therefore denied
the request for review, making the ALJ’s decision the final decision of the
Commissioner. See O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
Plaintiff appealed that decision to the district court, which affirmed. Plaintiff
now seeks review before this court.
Our review of the Commissioner’s decision is limited to determining
whether that decision is supported by substantial evidence and whether legal
errors occurred. See Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).
Substantial evidence is that which “a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotation omitted). In conducting our review, we may not reweigh the evidence
or substitute our judgment for that of the agency. Casias v. Sec’y of Health &
Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). Moreover, the scope of our
review is “limited to the issues the claimant properly preserves in the district
court and adequately presents on appeal[.]” Berna v. Chater, 101 F.3d 631, 632
(10th Cir. 1996); see also Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994)
(noting general rule that we do not review issues that were not presented to the
district court); Soliz v. Chater, 82 F.3d 373, 375-76 (10th Cir. 1996) (noting
-3-
general rule that issues not preserved by objection to magistrate judge’s
recommendation are waived).
Broadly, plaintiff raises two issues on appeal. First, plaintiff objects to the
Commissioner’s analysis of the opinions of two physicians: Dr. Abeyta and
Dr. Jones. Second, plaintiff objects to the Commissioner’s determination that his
RFC would permit him to perform a full range of light work. Our review of the
record, including the briefs filed in the district court, shows that only some of
plaintiff’s arguments are adequately preserved for our review.
With respect to Dr. Abeyta, plaintiff made no direct attack on the
Commissioner’s analysis of that physician’s reports in the district court; plaintiff
argued only that Dr. Abeyta’s December 9, 1998, report supported the opinion of
Dr. Jones about plaintiff’s RFC. The only portion of the December 9 report that
plaintiff mentioned as lending support to Dr. Jones’s opinion was a short
paragraph that discussed Dr. Abeyta’s April 24, 1995, examination of plaintiff
and the results of the x-rays taken at that time. When the Commissioner objected
in her brief to plaintiff’s characterization of Dr. Abeyta as a treating physician
and explained why Dr. Abeyta did not qualify as a treating source under the
relevant regulations, plaintiff did not respond directly to the Commissioner’s
argument.
-4-
On appeal, plaintiff now raises several other arguments concerning
Dr. Abeyta, whom he continues to characterize as a treating physician. First, he
contends that the Appeals Council did not adequately discuss Dr. Abeyta’s
statements in his December 9, 1998, letter that plaintiff’s back pain is “chronic,
severe, and unabating” and that plaintiff is disabled due to his back, Aplt. App.,
Vol. II, at 211. Second, he contends that the ALJ did not consider all the relevant
factors in determining what weight to give Dr. Abeyta’s reports 1 and did not
articulate appropriate reasons for not giving substantial weight to those reports.
Finally, plaintiff argues that portions of Dr. Abeyta’s reports other than the
portion he relied on in his district court brief support Dr. Jones’s opinion about
plaintiff’s RFC. Because none of these issues were adequately raised before the
district court, we will not consider them on appeal. See, e.g., Okland Oil Co. v.
Conoco Inc., 144 F.3d 1308, 1314 n.4 (10th Cir. 1998) (“We have consistently
rejected the argument that raising a related theory below is sufficient to preserve
an issue for appeal. Changing to a new theory on appeal that falls under the same
general category as an argument presented at trial or discussing a theory only in a
vague and ambiguous way below is not adequate to preserve issues for appeal.”
(citation and quotation omitted)).
1
Only one report by Dr. Abeyta, that of his April 24, 1995, examination, was
actually before the ALJ. The report of Dr. Abeyta’s two examinations of plaintiff
in 1998 was presented only to the Appeals Council.
-5-
We turn, then, to plaintiff’s challenges to the ALJ’s assessment of
Dr. Jones’s opinion. Dr. Jones is a specialist in occupational medicine who
examined plaintiff at the request of the agency on May 5, 1998. Dr. Jones’s
report recites that plaintiff said he had low and mid back pain that had gradually
been getting worse over the past few years. He also had intermittent paresthesia 2
in his right leg and his leg tended to give out on him occasionally. Plaintiff said
he was taking a pain pill three times a day–which Dr. Jones believed to be a
non-steroidal anti-inflammatory–as well as the occasional Advil. He told
Dr. Jones that he used to cut and sell wood, but he had not been able to do that
recently due to his back problems. Despite those problems, however, he was still
able to drive, to take walks, and to do some yard maintenance.
Dr. Jones’s examination of plaintiff showed “some evidence of generalized
muscle wasting in all extremities.” Aplt. App., Vol. II, at 201. Plaintiff had a
full range of motion in his neck with no difficulty and he had no muscle spasm or
tenderness in his neck. He also had a full range of motion in both wrists, both
elbows, and both shoulders. Examination of plaintiff’s back showed “marked
kyphoscoliosis [3] in the mid back area,” but no tenderness or muscle spasm. Id.
2
Paresthesia is “[a]n abnormal sensation, such as of burning, pricking,
tickling, or tingling.” Stedman’s Online Medical Dictionary ,
http://www.stedmans.com/section.cfm/45 (click on word).
3
Kyphoscoliosis is a combination of kyphosis, which is a curvature of the
(continued...)
-6-
Plaintiff’s forward flexion was “mildly limited at 70 degrees,” he had “virtually
no extension,” and he could bend laterally to 20 degrees on each side. Id.
Plaintiff’s straight leg raise was negative, and there was sciatic nerve tension
bilaterally. Examination of plaintiff’s lower extremities showed “a mild effusion
of the right knee,” but no tenderness, redness, or warmth. Id. at 202. Plaintiff
lacked 10 degrees of extension in his right knee, but his flexion was to 140
degrees and the knee was stable. His left knee had a full range of motion, as did
both hips and both ankles. Plaintiff had good distal pulses in both feet, his knee
and ankle deep tendon reflexes were present and equal, and he had fair muscle
tone and strength in both legs. Plaintiff walked without any assistive devices and
he was able to heel and toe walk. As part of his examination, Dr. Jones also
reviewed the x-rays of plaintiff’s spine taken on April 24, 1995.
Based on his examination, Dr. Jones gave the following opinion of
plaintiff’s ability to work:
I think that Mr. Gutierrez could do some light to medium
work, with frequent lifting up to twenty pounds and occasional lifting
up to thirty-five pounds. He could walk for up to fifteen minutes at a
time and up to two hours a day, and could stand for up to one hour at
a time and up to four hours a day. He is not able to do any squatting
3
(...continued)
spine that causes a bowing of the back, and scoliosis, which is a lateral curvature
of the spine. See Health Central General Health Encyclopedia ,
http://www.healthcentral.com/mhc/top/001241.cfm .
-7-
or kneeling on the right. He would not be able to do any crawling.
He could do occasional stooping and climbing. He can push or pull
up to fifty pounds. He has some mildly decreased dexterity in both
hands. He should avoid work at heights, and avoid exposure to any
chemicals that would be toxic to his liver.
Id. Dr. Jones also found that plaintiff’s impairments did not affect his ability to
sit. Id. at 207.
In considering Dr. Jones’s report, the ALJ noted that the doctor’s
assessment of plaintiff’s RFC was largely in accord with his own preliminary
assessment, except that Dr. Jones was of the opinion that plaintiff could walk and
stand for less time than the ALJ thought. Commenting on this difference, the ALJ
stated:
[Dr. Jones’s] opinions are not totally supported by the medical
evidence which shows largely unremarkable findings in terms of loss
of sensation, pain on movement, reflex loss and reduced range of
motion. Dr. Jones may have been influenced by the claimant’s
allegations of pain which the undersigned has found not to be
entirely credible. Therefore, lesser weight was given to Dr. Jones’[s]
opinion regarding the claimant’s ability to walk and stand.
Id. at 15-16.
On appeal, plaintiff takes issue with this assessment of Dr. Jones’s opinion
by the ALJ. He first argues that the evidence does not support the ALJ’s
characterization of the record as showing “largely unremarkable findings in terms
of loss of sensation, pain on movement, reflex loss and reduced range of motion,”
id. In particular, he points to Dr. Jones’s findings that plaintiff had some
-8-
evidence of generalized muscle wasting in all extremities, marked kyphoscoliosis
in the mid back area, virtually no extension of his back, and sciatic nerve tension
bilaterally. Plaintiff also points to certain of Dr. Abeyta’s findings that he
contends support Dr. Jones’s opinion, though these are not the same findings
plaintiff relied on in his district court briefs. In addition, plaintiff argues that the
ALJ should not have discredited Dr. Jones’s opinion on the ground that Dr. Jones
may have been influenced by subjective allegations of pain that the ALJ found to
be incredible.
Our review of the record convinces us that the ALJ’s characterization of the
various findings as “largely unremarkable” is a fair one, based on the record as a
whole. While one can find individual instances where, for example, a particular
range of motion was limited during a particular examination, on the whole and
over time, the findings as to plaintiff’s range of motion were largely
unremarkable. The same can be said of the other types of findings the ALJ listed.
We also note that Dr. Sun, another specialist in occupational medicine who
examined plaintiff at the request of the agency in 1997, made findings fairly
similar to Dr. Jones’s findings, yet she arrived at a slightly different opinion of
plaintiff’s ability to work. Unlike Dr. Jones, Dr. Sun was of the opinion that
plaintiff could lift and/or carry only twenty pounds occasionally and only five to
ten pounds frequently. She also found that plaintiff’s sitting was affected and
-9-
that he could sit only one to two hours without interruption for a total of six to
eight hours in a day. On the other hand, Dr. Sun was of the opinion that plaintiff
could stand and/or walk two hours without interruption up to a total of six hours
in a day. The ALJ chose to credit Dr. Sun’s opinion–which had greater lifting,
carrying and sitting restrictions than did Dr. Jones’s opinion, but lesser walking
and standing restrictions–over Dr. Jones’s opinion, because he concluded it was
more in accord with the rest of the evidence. We see no error in this
determination. As for the ALJ’s passing comment that Dr. Jones may have been
influenced by allegations of pain that the ALJ found to be incredible, the
observation does not appear to have been a major factor in the ALJ’s assessment
of Dr. Jones’s opinion, and we have determined that the assessment was otherwise
supportable. Accordingly, plaintiff has not demonstrated any reversible error in
the ALJ’s assessment of Dr. Jones’s opinion.
Plaintiff’s final argument is that his RFC does not permit him to perform a
full range of light work. The pertinent regulations define light work as follows:
Light work. Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable
of performing a full range of light work, you must have the ability to
do substantially all these activities. . . .
-10-
20 C.F.R. §§ 404.1567(b), 416.967(b). Social Security Ruling 83-10 further
explains:
“Frequent” means occurring from one-third to two-thirds of the time.
Since frequent lifting or carrying requires being on one’s feet up to
two-thirds of a workday, the full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours
of an 8-hour workday. Sitting may occur intermittently during the
remaining time. . . . Many unskilled light jobs are performed
primarily in one location, with the ability to stand being more critical
than the ability to walk.
Soc. Sec. Rul. 83-10, 1983 WL 31251, at *6.
Plaintiff contends that the RFC assessments of Dr. Jones and Dr. Sun show
that he is incapable of performing the prolonged standing and walking required
for light work. 4 Dr. Sun stated that plaintiff could walk and/or stand for two
hours at a time up to a total of six hours in a day, and the ALJ accepted that
4
The Commissioner argues that even if this were true, we could still affirm
the ALJ’s decision because plaintiff does not dispute his ability to sit up to six
hours in a day, and light work can include jobs that involve sitting most of the
time with some pushing and pulling of arm or leg controls. This argument
ignores the requirements of a full range of light work. While it is true that the
regulations place in the light category those jobs that “involve[] sitting most of
the time but with some pushing or pulling of arm-hand or leg-foot controls, which
require greater exertion than sedentary work,” it is also true that “[r]elatively few
unskilled light jobs are performed in the seated position.” Soc. Sec. Rul. 83-10,
1983 WL 31251, at *5 (1983). The occupational bases on which the grids are
founded are the unskilled occupations at each exertional level. Id. at *3. To be
able to perform a full range of light work, plaintiff must be able to perform “[a]ll
or substantially all occupations existing at [that] exertional level,” id. at *6.
Because there are relatively few unskilled light jobs that can be performed while
seated, if plaintiff could perform only those light jobs, he would not be able to
perform the full range of light work.
-11-
opinion in making his own RFC determination. See Aplt. App., Vol. II, at 16
(stating that Dr. Sun’s opinion about plaintiff’s ability to walk and stand was not
“substantively different” from the ALJ’s own opinion). Plaintiff argues that
Dr. Sun’s RFC assessment is “almost identical” to that of the claimant in Talbot
v. Heckler, 814 F.2d 1456 (10th Cir. 1987), Aplt. Opening Br. at 23, who we said
could not perform a full range of light work, and he contends that being able to
walk or stand for only two hours at a time is not sufficient to perform a full range
of light work.
Our reading of Talbot differs from plaintiff’s. The claimant in Talbot was
limited to walking only two hours in a day, standing only two hours in a day, and
sitting only two hours in a day. As to this RFC, we said:
being able to sit, stand, or walk alternately for only six hours
collectively would seem to impose significant restrictions on
[claimant’s] ability to perform light work . . . . It is by no means
obvious that being able to walk and stand collectively for only half
an eight-hour day and to sit for only two hours at a time would allow
the claimant to perform substantially all of the jobs in the range of
light work.
Talbot, 814 F.2d at 1463-64. Plaintiff, however, is not so limited; he can sit,
stand, or walk, alternatively, for up to eight hours in an eight-hour day.
Nonetheless, we agree with plaintiff that his restrictions do not appear to be
entirely compatible with the performance of a full range of light work such that it
was proper for the ALJ to apply the grids. Light work requires the ability to stand
-12-
and/or walk for up to six hours a day, with intermittent sitting during the
remaining time, yet plaintiff can neither stand nor walk for longer than two hours
at a time before he must switch to another activity. 5 An individual who must vary
his standing and sitting more frequently than at scheduled breaks “is not
functionally capable of doing either the prolonged sitting contemplated in the
definition of sedentary work (and for the relatively few light jobs which are
[performed primarily in a seated position) or the prolonged standing or walking
contemplated for most light work.” Soc. Sec. Rul. 83-12, 1983 WL 31253, at *4
(1983). We cannot say as a matter of law that a person with plaintiff’s
restrictions has the ability to perform substantially all the occupations existing at
the light exertional level or to do so on a sustained and regular basis. See
Soc. Sec. Rul. 83-10, 1983 WL 31251, at *2; Channel v. Heckler, 747 F.2d 577,
579-80 (10th Cir. 1984) (per curiam).
“The grids should not be applied conclusively in a particular case,
. . . unless the claimant could perform the full range of work required of that
[exertional] category on a daily basis and unless the claimant possesses the
physical capacities to perform most of the jobs in that range.” Hargis v. Sullivan,
5
The evidence does not reflect how long plaintiff must perform an
alternative activity before he may return to standing or walking. Nor is it clear
whether he can stand for two hours and then walk for two hours without having to
sit for a time between those two activities.
-13-
945 F.2d 1482, 1490 (10th Cir. 1991). The ALJ therefore erred in applying the
grids conclusively at step five of the sequential analysis. The ALJ should have
solicited evidence from a vocational expert about plaintiff’s ability to perform
specific light jobs that may exist in significant numbers in the national economy.
See 20 C.F.R. § 404.1560(c) (providing that agency must find claimant can do
other work that exists in significant numbers in the national economy to find
claimant not disabled at step five of sequential analysis); Soc. Sec. Rul. 83-12,
1983 WL 31253, at *2 (advising use of vocational expert at step five of sequential
analysis when claimant’s RFC does not precisely fit any exertional category). We
must reverse and remand for the ALJ to obtain vocational expert testimony. 6
The decision of the district court is REVERSED, and the case is
REMANDED with directions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
Michael W. McConnell
Circuit Judge
6
We note that if plaintiff were found incapable of performing any light jobs,
the grids would direct a finding of disability. See 20 C.F.R., Pt. 404, Subpt. P,
App. 2, Rule 201.14. We also note that after being denied benefits in these
proceedings, plaintiff was determined to be disabled based on a new application
he filed after reaching age fifty-five. See Aplt. App., Vol. II, at 4.
-14-