Bibbs v. Apfel , 3 F. App'x 759 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 19 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT L. BIBBS,
Plaintiff-Appellant,
v. No. 00-5029
(D.C. No. 99-CV-116-M)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, EBEL , and BRISCOE , 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This order and judgment is not binding precedent, except under the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 Robert L. Bibbs appeals from the denial of social security
disability and supplemental security income benefits. 1
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 March 1954. He completed ninth grade and obtained
a GED while in the Army. He went to cooks school in the Army and has worked
primarily as a cook. He has also worked as a laborer and carpenter. He alleges
that he became disabled on September 20, 1995, by severe, chronic, debilitating
pain from nerve damage suffered during surgery in August 1995 to correct an
aortic aneurysm.
The ALJ decided the claim at step five of the evaluation sequence. See
Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing the five
steps). He decided that claimant did not retain the residual functional capacity
(RFC) to return to any of his past jobs, but that he retained the RFC for work
1
The parties consented to proceed before a magistrate judge for final
disposition. 28 U.S.C. § 636(c).
-2-
except that he cannot sit indefinitely and must have the option to change positions
every hour; cannot lift more than twenty pounds occasionally and ten pounds
frequently; cannot do extensive walking; cannot operate controls with his arms or
reach overhead more than occasionally; cannot stoop, crouch, bend, or crawl more
than occasionally; cannot climb scaffolding, ropes or ladders; cannot climb stairs
more than occasionally; cannot operate motor vehicles more than occasionally;
cannot tolerate exposure to high temperature, humidity, constant vibration, or
concentrations of gases, dust, or fumes; and has no transferable skills.
Appellant’s App., Vol. II at 17, 19, 20 (findings 5, 10). The ALJ noted that the
vocational expert (VE) testified that there were jobs that claimant could perform
with these limitations. Id. at 19. Further, the ALJ noted that Rule 202.21 of the
medical-vocational guidelines (the “grids”) would direct a conclusion of not
disabled. Id. at 20 (finding 11, citing 20 C.F.R. pt. 404, subpt. P, app. 2, table 2).
The ALJ used the grid rule as a framework for decision-making, concluding based
on all the evidence that claimant was not disabled. Id. at 20-21.
Claimant argues on appeal that the ALJ’s conclusion that he does not suffer
from disabling pain is not supported by substantial evidence because the ALJ
applied incorrect standards to evaluate his claims of pain, such as “sit and
squirm” jurisprudence; made unwarranted assumptions about his capabilities
-3-
based on comments about fishing and driving; distorted the medical record; and
ignored factors supporting the credibility of claimant’s testimony regarding pain.
The record supports claimant’s claims of error. First, the ALJ
inappropriately rejected the opinion of the agency’s examining physician,
Dr. Sikka. See Appellant’s App., Vol. II at 244-50. The ALJ stated that no
doctor said that claimant was disabled. Id. at 17. The ALJ misstated Dr. Sikka’s
opinion in his decision, however, stating that “Dr. Sikka . . . concluded the
claimant could perform a range of light or sedentary work.” Id. That is simply
not true. See id. at 244-50. Rather, Dr. Sikka found claimant’s limitations to be
extensive. See id. at 248-50. According to Dr. Sikka, claimant can sit only for
four hours total and thirty minutes at a time. Id. at 248. He can stand for four
hours total and thirty minutes at a time, and walk for two hours total and thirty
minutes at a time. Id. The VE could not identify any jobs that claimant can do if
Dr. Sikka’s restrictions are accepted as true. Id. at 56-57.
Further, the ALJ picked through Dr. Sikka’s opinion, rejecting his
restrictions on sitting, standing, and walking, and accepting only those limitations
that are consistent with a conclusion that claimant can work. Id. at 17. An ALJ is
not entitled to pick and choose through a physician’s opinion. Switzer v. Heckler ,
-4-
742 F.2d 382, 385-86 (7th Cir. 1984); Smith v. Bowen , 687 F. Supp. 902, 904
(S.D.N.Y. 1988).
The regulations provide a list of acceptable reasons to reject a doctor’s
opinion, such as nature and length of relationship, medical specialty, et al. See 20
C.F.R. §§ 404.1527(d)(1)-(6), 416.927(d)(1)-(6). The ALJ did not use any of
these reasons to reject Dr. Sikka’s opinion about claimant’s ability to sit, stand,
and walk, however. Rather, the ALJ used his own observation that claimant sat
through the forty-five minute hearing with only one short stretch break, and
Dr. Sikka’s observation that claimant had normal gait and movement at his
examination. Appellant’s App., Vol. II at 17; see also id. at 246. The regulations
do not allow the ALJ to substitute his opinion for a medical opinion. See 20
C.F.R. §§ 404.1527(d)(1)-(6), 416.927(d)(1)-(6). Further, “where uncontroverted
evidence corroborates the claimant’s assertions of disabling pain, the ALJ ‘may
not reject [those] assertions on the basis of demeanor alone.’” Gay v. Sullivan ,
986 F.2d 1336, 1339 (10th Cir. 1993) (quoting Teter v. Heckler , 775 F.2d 1104,
1106 (10th Cir. 1985)). As reviewed below, the record shows that claimant has
continuously pursued relief for pain, without any doctor disbelieving his claims of
pain. Even if the ALJ could rely on his own observation at the hearing, however,
he said that claimant sat for forty-five minutes, and then found that claimant
needed to change position every hour. Appellant’s App., Vol. II at 19.
-5-
Therefore, the ALJ’s finding on sitting would not be supported by substantial
evidence in any case. Moreover, the ALJ failed to make specific findings about
claimant’s ability to stand and walk, even though those findings are a necessary
part of the RFC determination. 20 C.F.R. §§ 404.1545(b), 416.945(b); Social
Security Ruling 96-9p, 1996 WL 374185, at *2. In addition, it is not inconsistent
that claimant can walk within normal limits but not for very long, so Dr. Sikka’s
opinion is not internally inconsistent. See Appellant’s App., Vol. II at 244-50.
Even if it were, the regulations call for the ALJ to evaluate Dr. Sikka’s opinion in
light of the record as a whole or recontact Dr. Sikka to explain any ambiguity or
inconsistency in his opinion. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
The ALJ also stated that claimant’s treating physician, Dr. Parsons,
suggested that there was work that claimant could do. Appellant’s App.,
Vol. II at 17. We note that Dr. Parsons did not list claimant’s functional
limitations, see id. at 202-04, and so the ALJ could not ask the VE whether
claimant can or cannot work based on Dr. Parsons’ opinion. In any case, the fact
that none of the doctors may have stated directly that claimant is permanently
disabled is legally irrelevant. The ALJ is entitled to disregard a doctor’s
statement that a claimant is “disabled” or “unable to work.” 20 C.F.R.
§§ 404.1527(e)(1), 416.927(e)(1). It therefore would be inconsistent with the
regulations to require the doctor to state such a conclusion. Moreover, the
-6-
limitations expressed by a doctor may amount to the same thing. And, as noted
above, an ALJ is allowed to reject a doctor’s opinion about the claimant’s medical
limitations only for certain reasons specified in the regulations. There is no
vocational evidence based on Dr. Parsons’ opinion that claimant can work.
However, the vocational evidence based on Dr. Sikka’s opinion is that claimant
cannot work.
The record shows claimant’s continuous attempts to find relief for pain.
According to appellant’s brief, Dr. Knott-Craig and Dr. Parsons performed his
surgery, and the record shows that was on August 29, 1995. Nerves were adhered
to the aneurysm and had to be stretched and detached from it during the surgery.
Appellant’s App., Vol. II at 130. Claimant started complaining of severe pain
with deep breathing on August 31, and was prescribed a number of medications.
Id. at 127. Dr. Knott-Craig reported that claimant was unrestricted by September
19, 1995, id. at 163, but Dr. Parsons wrote in October 1995 that claimant would
be “incapacitated for a minimum of four to six months,” id. at 188. Claimant
went to a pain management center in February 1996 complaining of “constant,
burning” chest wall pain. Id. at 198. Dr. Mansour tried a neuroma block, with
good relief. Id. at 198. In March 1996, however, Dr. Parsons wrote that claimant
had complained after surgery of “significant pain which was difficult to control . .
. [and] continues to suffer from chronic deep chest wall pain.” Id. at 202-03.
-7-
Dr. Parsons noted that claimant had made several visits to the pain management
clinic, but his pain relief had been temporary. Id. at 203. At this point,
Dr. Parsons said that nothing more could be done for claimant and he might never
be able to work. Id.Claimant also went to the emergency room several times between October
1995 and June 1996 complaining, in part, of chest pain. Id. at 212-24. He was
periodically told to go back to his doctor for treatment instead of the emergency
room. E.g. , id. at 212, 218. The records show that he was taking Zestril, Atenol,
Lortab, and Valium. He was told to limit Lortab and Valium--Lortab is a narcotic
and Valium is also habit-forming. Id. at 219, 221, 223. Contrary to the ALJ’s
conclusion, the emergency room reports do not demonstrate that claimant had no
severe problem, see id. at 16; they show that his complaints did not present an
emergency, see id. at 212, 218. In fact, claimant reappeared at the emergency
room several times between June and November 1996, still complaining, in part,
of chest pain. See id. at 233-43.
In March 1996, claimant started seeing Dr. Clymer, an osteopath, for
whiplash after a motor vehicle accident. See id. at 229. Dr. Clymer reviewed
Dr. Parsons’ records, and appears to have respected Dr. Parsons’ opinion that
claimant suffered chronic debilitating pain. See id. at 228. Claimant also did
some physical therapy in April 1996, apparently related to the back and neck pain
-8-
caused by this car wreck. Id. at 205. He obtained significant relief, but the
physical therapist suggested that claimant should limit the activities that cause
pain. Id.Although Dr. Clymer wrote that claimant was doing “extremely well”
taking Lortab and Valium in September 1996, id. at 226, his earlier progress notes
show that claimant was having trouble controlling pain without taking narcotics
and that Dr. Clymer was concerned about the quantity claimant was taking. See
id. at 226-30. For example, Dr. Clymer wrote in May 1996 that he did not mind
prescribing pain medication, “but we must have controls on it.” Id. at 228. His
prescriptions were time-limited and reevaluated at each exam. See id. at 227-28.
In July 1996, Dr. Clymer wrote that claimant said that he was unable to do
without Lortab and Valium due to his chronic pain. See id. at 227. On the one
hand, the “extremely well” comment shows that claimant can only find relief
through addictive pain medication. On the other hand, the “extremely well”
comment is overwhelmed by the other record evidence that claimant has been
unable to find long-term relief for his pain, and it therefore does not constitute
substantial evidence to support the ALJ’s determination of nondisability. See
Richardson v. Perales , 402 U.S. 389, 401 (1971).
-9-
As this court has observed, we neither weigh the evidence nor
substitute our discretion for that of the agency. Nonetheless, the
evidence must have some substance to it. . . . [W]hile we must
review the record as a whole, the substantiality of the evidence must
take into account whatever in the record fairly detracts from its
weight.
Kemp v. Bowen , 816 F.2d 1469, 1475 (10th Cir. 1987) (quotations and citations
omitted). The record contains no medical evidence contradicting this chain of
attempts to find pain relief.
Evidence that claimant was able to drive to the hearing and that he still
enjoys fishing (assuming that he has not given up fishing, as he testified) also
does not support the ALJ’s determination of nondisability. All the ALJ did with
that evidence was conclude that claimant was “capable of light household
chores.” Appellant’s App., Vol. II at 16. However, “the ALJ may not rely on
minimal daily activities as substantial evidence that a claimant does not suffer
disabling pain.” Thompson v. Sullivan , 987 F.2d 1482, 1490 (10th Cir. 1993)
(citing Frey v. Bowen , 816 F.2d 508, 516 (10th Cir. 1987)). “The ‘sporadic
performance [of household tasks or work] does not establish that a person is
capable of engaging in substantial gainful activity.’” Id. (quoting Frey , 816 F.2d
at 516-17). We conclude that the ALJ’s decision cannot be affirmed on this
record and it must be reversed.
“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
-10-
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).
There is no vocational evidence that claimant can work based on Dr. Parsons’
opinion. Moreover, the ALJ inappropriately rejected Dr. Sikka’s opinion as to
claimant’s limitations, and the VE could not identify a job that claimant can do
with these restrictions. This case is therefore in a posture to be remanded for an
immediate award of benefits.
The judgment of the United States District Court for the Northern District
of Oklahoma is REVERSED, and the case is REMANDED for an immediate
determination of benefits.
Entered for the Court
David M. Ebel
Circuit Judge
-11-