Armer v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES G. ARMER,
Plaintiff-Appellant,
v. No. 99-7128
(D.C. No. 98-CV-424-S)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and HENRY , 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This order and judgment is not binding precedent, except under the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 James G. Armer appeals from the denial of his claim for social
security disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g). We review the agency’s decision on the whole record to
determine only whether the factual findings are supported by substantial evidence
and the correct legal standards were applied. See Goatcher v. United States Dep’t
of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not
reweigh the evidence or substitute our judgment for that of the agency. See
Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).
Claimant was born in 1952. He is married and has two children, one of
whom still lives at home. He has an eighth-grade education and limited math and
reading skills. Appellant’s App., Vol. II at 177-78. He has never written a check
and does not pay his family’s bills or balance the checkbook. See id. at 193-94.
He last worked at Baldour Electric from 1979-84 as a janitor and as a motor
assembler. Before that, he worked at several other companies. He has had double
bypass heart surgery, carpal tunnel surgery on both arms, and surgery on his right
shoulder. He also has documented back problems. He filed his claim for benefits
on September 1, 1995, alleging a disability beginning on December 19, 1994, due
to headaches and severe pain in his neck, shoulders, back, hands, right leg, and
upper torso resulting from the series of injuries and surgeries to his neck, back,
shoulder, hands, and heart. He alleged that he cannot sit up straight, see id.
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at 182, 187, 201, cannot stand for more than ten or fifteen minutes, see id. at 192,
201, and cannot hold his arms up for any length of time, see id. at 184-85, 201.
His right foot was once run over by a forklift and he walks with a limp, see id.
at 188, although he tries to walk for fifteen to twenty minutes per day, see id.
at 190. Because of cramps in his hands, as well as his limited education, it is
hard for him to write. See id. at 178, 184. He also has some tingling in his right
hand. See id. at 192. He no longer goes fishing or hunting or visiting with
friends away from his home. See id. at 190-91. He goes to church and to the
store, but does little else besides helping his wife with the dishes, watching
television from his recliner, and reading his Bible. See id. at 177, 185, 187, 191,
192, 203. He said that he cannot afford doctor visits or prescription medications
because he did not receive worker’s compensation benefits, does not have medical
insurance of his own, and his wife’s insurance does not cover the cost of
medication or enough of the cost of doctor visits. See id. at 179-80, 181, 193,
196.
The administrative law judge (ALJ) issued his decision on March 26, 1997.
He found at step four that claimant did not retain the residual functional capacity
(RFC) to return to any of his past jobs, which were unskilled and required light or
medium exertion. The ALJ decided, however, that claimant retained the RFC for
unskilled sedentary work that did not require more than occasional bending,
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stooping, crouching, or climbing, and that would allow him to change positions
from time to time. See id. at 20. The ALJ did not make a specific finding about
claimant’s asserted manipulative impairments, but made a general finding that
claimant had residuals from carpal tunnel syndrome without specifying what these
residuals were. See id. (finding 3). The ALJ made no specific finding about
claimant’s ability to sit, stand, or walk, but stated that “claimant would need to
change positions from time to time to relieve his symptomatology.” Id.
(finding 7). At step five, the ALJ used Rule 201.24 of the medical-vocational
guidelines as a framework for a decision that claimant was not disabled. See
20 C.F.R. pt. 404, subpt. P, app. 2. He posed some hypothetical questions to a
vocational expert (VE). The VE testified that there were jobs that claimant could
perform under all but one of the scenarios, and gave clerical mailer and product
assembly as two examples. When asked whether claimant could work with all of
the impairments he alleged to be true, however, the VE answered that he could
not. The ALJ concluded that claimant was not disabled.
Claimant argues on appeal, first, that the ALJ’s finding that he retained the
RFC for limited sedentary work is not supported by substantial evidence because
the ALJ: (a) disregarded the only treating physician’s opinion in the record;
(b) failed to obtain the consultative examiner’s opinion regarding claimant’s RFC
as required by the regulations; (c) failed to follow the regulations for RFC as
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further explained in Social Security Ruling 96-9p; and (d) relied on the absence of
evidence contrary to Thompson v. Sullivan , 987 F.2d 1482 (10th Cir. 1993). He
also argues, second, that the ALJ’s finding that he could perform a significant
number of sedentary jobs is not supported by substantial evidence because:
(a) his manipulative impairment was not included in the hypothetical questions to
the VE; and (b) the jobs the VE identified require repetitive use of the hands
according to the Dictionary of Occupational Titles.
RFC is a “function-by-function assessment,” Social Security Ruling 96-9p,
1996 WL 374185, at *2, which includes claimant’s ability to sit, stand, and walk,
and his manipulative and postural functions, see 20 C.F.R. § 404.1545(b). The
agency acknowledges that “[m]ost unskilled sedentary jobs require good use of
both hands and the fingers; i.e., bilateral manual dexterity.” Social Security
Ruling 96-9p, 1996 WL 374185, at *8. Thus, claimant’s asserted manipulative
impairments matter greatly to his claim. Moreover, “[t]he RFC assessment must
be specific as to the frequency of the individual’s need to alternate sitting and
standing” because “[t]he extent of the erosion [of the occupational base] will
depend on the facts in the case record, such as the frequency of the need to
alternate sitting and standing and the length of time needed to stand.” Id. at *7.
The ALJ’s findings also must be specific because the hypothetical questions
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submitted to the VE must state the claimant’s impairments “with precision.”
Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted).
The ALJ noted in the body of his decision that a consultative examination
performed in November 1995 showed that claimant had good dexterity in his
hands. See Appellant’s App., Vol. II at 17, 161. However, claimant correctly
points out that the examiner’s report does not include an RFC assessment, even
though the regulation calls for such findings in a complete consultative
examination. See 20 C.F.R. 404.1519n(c)(6). The agency must bear the
responsibility to ensure that a consultative examination conforms to the
regulations. In any case, we cannot conclude that the ALJ accepted the
consultative examiner’s evidence as true because he found that claimant had
unspecified residuals from carpal tunnel syndrome, not good dexterity in his
hands. See Appellant’s App., Vol. II at 20 (finding 3). The ALJ’s finding that
claimant would have to change positions from time to time to relieve his
symptomatology is equally vague. See id. at 20 (finding 7). The ALJ erred by
failing to make specific findings assessing the extent of claimant’s manipulative
impairments and claimant’s ability to sit, stand, and walk.
To the extent the ALJ made a finding about claimant’s RFC, he relied on
the 1995 opinions of Drs. Greenlaw and Parker at the Parker Orthopaedic and
Spine Institute, where claimant sought treatment at least from 1993-96. See id.
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at 15, 151-59, 170. On May 31, 1995, Dr. Parker noted on a progress sheet that
claimant had “marked degenerative changes in the spine,” a five percent
permanent impairment to the back and therefore to the body as a whole, and
“should refrain from heavy lifting, pushing, pulling, repetitive bending or isolated
lifts over 10 pounds.” 1
Id. at 152. On September 22, 1995, Dr. Greenlaw noted
on a progress sheet that, in light of Dr. Parker’s opinion and claimant’s magnetic
resonance imaging (MRI) examinations, claimant was capable only of “very
sedentary and light type of work not requiring any activities that would aggravate
his present problem with his cervical or lumbar spine.” Id. at 151.
Claimant points out that on May 29 and July 25, 1996, Dr. Thompson
issued statements that claimant could not sit “for any length of time,” id. at 170,
and was disabled on account of his back problems, see id. at 171. He argues that
the ALJ should have accepted Dr. Thompson’s opinion. The ALJ rejected
Dr. Thompson’s opinion on the grounds that: (1) it was conclusory and
unsupported by diagnostic testing, laboratory reports, or clinical findings; (2) it
appeared to have been prepared for the purpose of obtaining financial assistance
from the Cherokee Nation; and (3) it conflicted with other medical evidence
related to this claim for social security benefits. See id. at 18, 170-71.
1
Claimant testified that Dr. Parker took him off work and said it would be
permanent. See Appellant’s App., Vol. II at 180-81, 193. We find no support for
this claim in the medical evidence.
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Although claimant’s assertion that Dr. Thompson was his only treating
physician is without merit, the ALJ’s stated reasons for rejecting Dr. Thompson’s
opinion are belied by the record. Contrary to the ALJ’s view, we do not consider
Dr. Thompson’s opinion to be conclusory, unsupported, or in conflict with other
medical evidence. Rather, it is clear from the progress sheets, as well as from the
additional explanation provided by claimant and his counsel at the hearing, that
Dr. Thompson was one of claimant’s treating physicians at the Parker Institute. 2
It is also clear that Dr. Thompson based his opinion on claimant’s previous
records, as he stated on July 25, 1996, that “[t]he patient is unchanged from his
prior exam.” Id. at 170. The prior exam in the record is Dr. Greenlaw’s
September 22, 1995 exam, which was expressly based on MRI examinations from
1993 and 1994. See id. at 151. It is not necessary for each and every doctor to
support his or her opinion with new medical tests.
Dr. Greenlaw’s conclusion in September 1995 was that “[t]he only type of
work that this patient could do would be a very sedentary and light type of work.”
Id. Dr. Thompson’s conclusion the next year was that claimant was “still unable
to sit for any length of time because of progressive pain in the neck and low
2
At the hearing, claimant and his counsel informed the ALJ that Dr. Parker
originally owned the practice, that Dr. Greenlaw succeeded Dr. Parker for a short
time after his death, and that Dr. Thompson then succeeded Dr. Greenlaw. See
Appellant’s App., Vol. II at 181-82.
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back,” id. at 170, and was disabled due to “[c]entral disc protrusion at C6-7
levels, [and] degenerative disc changes at T11-12, L4-5, and L5-S1 levels,” id.
at 171. Dr. Thompson’s statements do not conflict with Dr. Greenlaw’s opinion;
rather, they demonstrate the progressive nature of claimant’s back problems.
Claimant testified that his pain had gotten worse over time. See id. at 196-97.
The government points to RFC assessments made in 1995 and 1996 by
agency physicians as substantial evidence to support the ALJ’s conclusion that
claimant can sit long enough to do sedentary work. See id. at 80-87. As we have
noted in the past, these assessments typically “consist[] solely of boxes checked
on the [agency’s] forms to indicate [the assessors’] conclusion[s].” Frey v.
Bowen , 816 F.2d 508, 515 (10th Cir. 1987). For that reason, we have rejected
this type of conclusory assessment of a claimant’s capabilities, holding that
“[s]uch evaluation forms, standing alone, unaccompanied by thorough written
reports or persuasive testimony, are not substantial evidence.” Id. The two
agency assessments in this case indicate, with a checkmark but without
explanation, that claimant can sit for about six hours out of an eight-hour
workday. See Appellant’s App., Vol. II at 81, 89. We hold that they do not
constitute substantial evidence to support the ALJ’s decision, and conclude that
the ALJ erred by rejecting Dr. Thompson’s opinion that claimant has essentially
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no capacity to sit. For all of the above reasons, the agency’s denial of benefits
must be reversed. It is unnecessary to discuss claimant’s remaining arguments.
“When a decision of the [Commissioner] is reversed on appeal, it is within
this court’s discretion to remand either for further administrative proceedings or
for an immediate award of benefits.” Ragland v. Shalala , 992 F.2d 1056, 1060
(10th Cir. 1993). “Outright reversal and remand for immediate award of benefits
is appropriate when additional fact finding would serve no useful purpose.”
Sorenson v. Bowen , 888 F.2d 706, 713 (10th Cir. 1989) (quotation omitted). The
primary activity of sedentary work is sitting. See 20 C.F.R. § 404.1567(a).
“[S]itting should generally total approximately 6 hours of an 8-hour workday.”
Social Security Ruling 83-10, 1983 WL 31251, at *5. Because Dr. Thompson’s
opinion mandates a finding that claimant has essentially no capacity for sitting,
the ALJ would be unable to sustain his step-five burden of identifying sedentary
jobs that claimant can perform if the case were remanded. See Thompson ,
987 F.2d at 1487. We therefore find no reason for additional administrative
proceedings in this case, now nearly five years old, and instead exercise our
discretion to remand for an immediate award of benefits.
The judgment of the United States District Court for the Eastern District of
Oklahoma is REVERSED, and the case is REMANDED with directions to
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remand, in turn, to the Social Security Administration for an immediate award of
benefits.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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