Jones v. Astrue , 514 F. App'x 813 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 26, 2013
Elisabeth A. Shumaker
Clerk of Court
VIRGINIA MARIE JONES,
Plaintiff-Appellant,
v. No. 12-5057
(D.C. No. 4:10-CV-00631-TLW)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner, Social Security
Administration,*
Defendant-Appellee.
ORDER AND JUDGMENT**
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Virginia Marie Jones appeals from a district court order affirming the
Commissioner’s denial of social security disability insurance and supplemental
security income (SSI) benefits. We conclude that the Administrative Law Judge
(ALJ) did not follow the correct legal standards in evaluating the opinion of
Ms. Jones’s treating physician or in evaluating Ms. Jones’s credibility. We therefore
reverse and remand for further proceedings.
Ms. Jones filed an application for disability insurance benefits in May 2007
and protectively filed an application for SSI benefits in April 2006. She alleged that
she was disabled due to lower back and neck injuries and migraines beginning
January 10, 2006, when she was in a car accident. The agency denied her
applications initially and on reconsideration, and the ALJ then denied her benefits
after a de novo hearing. Employing the familiar five-step sequential analysis,
see, e.g., Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010), the ALJ concluded
that Ms. Jones could not perform her past relevant work, but that she did have the
residual functional capacity (RFC) to perform other work that exists in significant
numbers in the local and national economies. Ms. Jones sought review before the
Appeals Council, to which she submitted additional medical evidence. The Appeals
Council accepted and considered the additional evidence, but concluded that it did
not provide a basis for changing the ALJ’s decision. The Appeals Council denied
review, making the ALJ’s decision the final decision of the Commissioner.
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See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). The district court
affirmed the Commissioner’s decision, and Ms. Jones now appeals.
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Wilson, 602 F.3d at 1140. “Although we will not
reweigh the evidence or retry the case, we meticulously examine the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in
order to determine if the substantiality test has been met.” Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009) (internal quotation marks omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. It requires more than a scintilla, but less than a
preponderance.” Id. (internal quotation marks omitted).
Ms. Jones raises three main issues on appeal: (1) the ALJ erred at step five;
(2) the ALJ failed to properly consider the medical source evidence; and (3) the ALJ
failed to perform a proper credibility determination.1 Because we conclude that the
second two issues require reversal and remand, we address them first.
Evaluation of Medical Source Evidence
The medical record in this case is extensive and we will describe it only
briefly. In January 2006, while living in Florida, Ms. Jones was involved in a car
1
Ms. Jones also raises a variety of sub-issues. Some of those sub-issues were
not raised in the district court, so we will not consider them. See Crow v Shalala,
40 F.3d 323, 324 (10th Cir. 1994).
-3-
accident. Early diagnosis of her injuries included posttraumatic headaches, a
cervicothoracic strain, a right shoulder injury, and a lumbosacral strain. Subsequent
diagnoses included cervical strain, lumbosacral strain, and posttraumatic headaches.
Shortly after her accident, Ms. Jones began treatment with Florida Medical
Associates, where she saw three practitioners: Frank S. Alvarez, Jr., M.D. (a
neurologist); Carol L. Krause, M.D. (a pain management specialist); and Harry
Vassilakis, D.C. (a chiropractor). Ms. Jones saw Dr. Vassilakis several times a week
for a variety of treatments, including massage, spinal manipulation, electrical nerve
stimulation, and—later—acupuncture. During the first ten months, she saw both
Dr. Alvarez and Dr. Krause at least once a month. She received trigger-point
injections from Dr. Alvarez and worked with Dr. Krause on mind-body pain-control
techniques and mobilization exercises. Ms. Jones’s treatment with this practice
continued through early April 2008, though she did not see Dr. Vassilakis between
April and September of 2006 and she did not see Dr. Alvarez between November
2006 and February 2008.
During the 2½ years she was treated at this practice, Ms. Jones was prescribed
a variety of narcotic pain-relievers, muscle relaxers, and sleep aids to be taken on a
daily basis. She consistently complained of lower back pain, but the frequency and
intensity of her mid-back and neck pain, as well as of her headaches, varied.
Dr. Alvarez repeatedly restricted Ms. Jones’s work activities, and Dr. Krause recited
those restrictions and others in her treatment notes.
-4-
The record does not show that Ms. Jones received any treatment between early
April 2008 and late December 2008, when she began treatment with Dr. Henson,
D.O. She saw him at least once a month from December 2008 through June 2009.
He consistently diagnosed claimant with lumbosacral strain and myofasciitis, cervical
ligamentous strain, right sciatica, and insomnia, among other conditions. And he,
too, prescribed a narcotic pain-reliever, a muscle relaxer, and a sleep aid to be taken
on a daily basis.
In September 2009, while visiting family in Oklahoma, Ms. Jones was
involved in another car accident. She suffered a broken arm, a broken ankle, and a
cardiac contusion. Shortly after the accident, she began treatment with Dr. Ree at the
Omni Medical Group in Oklahoma. He, too, prescribed narcotic pain-relievers,
a muscle relaxer, and a sleep aid to be taken on a daily basis. Dr. Ree also referred
Ms. Jones to an orthopedic specialist, and she was treated by Dr. Nebergall in
October and November 2009. The last medical records Ms. Jones provided the ALJ
date from this period. She continued to be treated by Dr. Ree, however, and she
submitted additional treatment records to the Appeals Council covering the period
from December 2009 through May 3, 2010.
The ALJ found that Ms. Jones was last insured for benefits on March 31, 2009,
so she had to show that she was disabled as of that date to obtain disability insurance
benefits. To obtain SSI benefits, however, she had only to show that she was
disabled as of April 21, 2010, the date of the ALJ’s decision.
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Ms. Jones was still recovering from the injuries she sustained in the September
2009 accident at the time of the hearing before the ALJ on March 31, 2010. Based
on the medical evidence before her, the ALJ concluded that any impairments flowing
from Ms. Jones’s broken arm or ankle were not likely to remain severe for the
required twelve-month period. The ALJ therefore assigned no functional limitations
to these injuries. Ms. Jones does not challenge this determination on appeal.
The ALJ found that Ms. Jones’s cervical and lumbar strains and her migraine
headaches were severe impairments. She further found that, despite these
impairments, Ms. Jones had the RFC for light work, with some additional limitations.
The ALJ concluded that Ms. Jones could
lift/carry ten pounds frequently and twenty pounds occasionally,
stand/walk for six hours of an eight hour work day, sit for six hours of
an eight hour work day, and push/pull ten pounds frequently and twenty
pounds occasionally, she should only occasionally balance, stoop, kneel,
crouch, crawl, or climb, never using ropes, ladders or scaffolds. She
should only occasionally reach overhead bilaterally, and she should
avoid concentrated exposure to all hazards.
Aplt. App., Vol. 2, at 17. This RFC determination was consistent with the July 2007
RFC determination of Dr. Puestow, the non-examining agency physician who
reviewed the medical records for the initial consideration of Ms. Jones’s claims,
but it was inconsistent with the September 2007 RFC determination of Dr. Krause,
who concluded that Ms. Jones was much more limited. The ALJ gave only “some
weight” to Dr. Krause’s opinion, but gave “great weight” to Dr. Puestow’s opinion.
Id. at 22, 23.
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Ms. Jones challenges the ALJ’s assessment of these conflicting opinions.
While we may not reweigh this evidence, we can examine whether the ALJ followed
the correct legal standards in evaluating the medical evidence and whether substantial
evidence supports her determination.
Guided by SSR 96-2p and the pertinent regulations, this court has laid out a
sequential analysis an ALJ should follow in evaluating treating physician opinions.
See Watkins, 350 F.3d at 1300-01. First, the ALJ must decide whether the opinion is
entitled to controlling weight. For this, she “must first consider whether the opinion
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques.” Id. at 1300 (internal quotation marks omitted). If it is not, then the
opinion is not entitled to controlling weight. If it is, then the ALJ must further
determine whether the opinion is “consistent with other substantial evidence in the
record.” Id. We have held that an ALJ must make a finding as to whether the
physician’s opinion is entitled to controlling weight “so that we can properly review
the ALJ’s determination on appeal.” Id.If the ALJ decides that the treating physician’s opinion is not entitled to
controlling weight, she must then decide what weight to give the opinion. In making
this decision, the ALJ should consider the following factors:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported
by relevant evidence; (4) consistency between the opinion and the
record as a whole; (5) whether or not the physician is a specialist in the
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area upon which an opinion is rendered; and (6) other factors brought to
the ALJ’s attention which tend to support or contradict the opinion.
Id. at 1301 (internal quotation marks omitted). “After considering the pertinent
factors, the ALJ must give good reasons in [the] notice of determination or decision
for the weight [she] ultimately assigns the opinion.” Id. (first alteration in original)
(internal quotation marks omitted). The ALJ does not have to explicitly discuss each
of the six relevant factors in deciding what weight to give a medical opinion; indeed,
not all may be relevant in a particular case. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007). The ALJ must, however, provide good reasons that are sufficiently
specific to permit meaningful judicial review. Watkins, 350 F.3d at 1300.
The ALJ here did not perform the first step in the sequential analysis: she did
not decide whether Dr. Krause’s opinion was well-supported by medically acceptable
clinical and laboratory diagnostic techniques and, if so, whether it was consistent
with other substantial evidence in the record. She did decide what weight to give
Dr. Krause’s opinion, but we conclude she did not provide good reasons for the
weight she assigned.
The ALJ described the weight she gave to Dr. Krause’s opinion as follows:
“Based on the objective medical evidence that establishes the severity of the
claimant’s impairments, and the following other factors, I give some weight to
Dr. Krause’s treating source opinion, to the extent it is consistent with my finding of
the claimant’s residual functional capacity indicated above.” Aplt. App., Vol. 2,
at 22. The first part of this sentence suggests that the ALJ may have thought the
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objective medical evidence did not support the functional limitations determined by
Dr. Krause, but it does not actually say so or explain why. And it is not clear from
the ALJ’s decision what “other factors” were that led her to give only some weight to
Dr. Krause’s opinion.
The ALJ gave only one specific reason for discounting Dr. Krause’s opinion,
and that reason related to only one part of the opinion. The ALJ found that
Dr. Krause’s answers to the questions on the RFC form about Ms. Jones’s
manipulative functional limitations—her ability to handle, finger and feel—were
internally inconsistent. While the apparent inconsistency may well have been the
result of a confusing form, and another, arguably more sensible, reading could be
given to Dr. Krause’s answers,2 “[w]e may not displace the agency’s choice between
two fairly conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.” Oldham, 509 F.3d at 1258(alteration in original) (internal quotation marks omitted).
Even so, the apparent inconsistencies in Dr. Krause’s opinion of Ms. Jones’s
manipulative functional limitations do not provide a basis for rejecting her opinion of
Ms. Jones’s other functional limitations. Dr. Krause found that Ms. Jones could
“stand and/or walk” for less than two hours in an eight-hour day and could stand for
2
As Ms. Jones contends in her brief, it is possible to read Dr. Krause’s
comments in a manner that makes them internally consistent and logical, to wit:
Ms. Jones can only occasionally reach and can frequently handle, finger, and feel,
except when her arms are away from her body, at which time she can only
occasionally handle, finger and feel.
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only fifteen minutes before needing to sit; she has a limited ability to sit and must
periodically alternate between sitting and standing; and she has a limited ability to
push and/or pull in her upper extremities. Aplt. App., Vol. 3, at 505-06. The
Commissioner suggests a variety of reasons why it was appropriate for the ALJ to
discount Dr. Krause’s opinion, but the ALJ did not rely on those reasons herself, so
neither may we. We must evaluate the ALJ’s decision “based solely on the reasons
stated in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004)
(per curiam).
What makes the ALJ’s lack of express reasoning especially problematic is that
she accepted the opinion of the agency’s non-examining physician over the opinion
of a physician who treated claimant regularly for 2½ years. “The opinion of an
examining physician is generally entitled to less weight than that of a treating
physician, and the opinion of an agency physician who has never seen the claimant is
entitled to the least weight of all.” Id. While she may have given an adequate
explanation for accepting Dr. Puestow’s opinion about claimant’s manipulative
limitations over that of Dr. Krause, the ALJ did not provide a sufficient reason for
rejecting Dr. Krause’s opinion about Ms. Jones’s other functional limitations in favor
of Dr. Puestow’s opinion. “[A]bsent a legally sufficient reason for doing so,” the
ALJ erred by rejecting the opinion of a treating physician in favor of the opinion of a
non-examining physician. Id.- 10 -
Ms. Jones also argues that the ALJ erred in interpreting Dr. Puestow’s opinion
as limiting only her ability to reach overhead, and not her ability to reach in all
directions. We see no error. The ALJ’s interpretation of Dr. Puestow’s opinion,
when read as a whole, was reasonable.
Evaluation of Ms. Jones’s Credibility
Ms. Jones argues that the ALJ did not apply the correct legal standards in
evaluating her credibility and that substantial evidence does not support the ALJ’s
assessment. “Credibility determinations are peculiarly the province of the finder of
fact” and we will uphold the ALJ’s determination if it is supported by substantial
evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation
marks omitted). But an ALJ must “consider the entire case record and give specific
reasons for the weight given to the individual’s statements” in making a credibility
determination. SSR 96-7p, 1996 WL 374186, at *4 (S.S.A. 1996). Credibility
findings must be “closely and affirmatively linked to substantial evidence.” Kepler,
68 F.3d at 391 (internal quotation marks omitted).
In accordance with the pertinent regulations, SSR 96-7p provides that, in
addition to the objective medical evidence, the ALJ must consider the following
factors in evaluating a claimant’s credibility:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
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4. The type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations
and restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3; see also 20 C.F.R. §§ 404.1529(c), 416.929(c);
Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004).3
Ms. Jones complains that the ALJ failed to discuss some of these relevant
factors and failed to give good reasons to discount her credibility. In particular, she
argues that the ALJ failed to consider the severity and frequency of her pain, the
efforts she took to relieve her symptoms, her consistent use of narcotic pain-relievers
and of muscle relaxers, her very limited daily activities, and the fact that none of her
treating physicians ever suggested that she was exaggerating her complaints of pain.
Ms. Jones also challenges the validity of some of the reasons the ALJ gave for
discounting her credibility.
3
We have also listed other factors that may be relevant in assessing the
credibility of the claimant’s allegations of pain, including “‘the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts,
the nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ, . . . and the consistency or compatibility of
nonmedical testimony with objective medical evidence.’” Hargis v. Sullivan,
945 F.2d 1482, 1489 (10th Cir. 1991).
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Assessing the adequacy of the ALJ’s credibility determination is somewhat
complicated by the fact that Ms. Jones was still suffering from the effects of her
September 2009 car accident at the March 2010 hearing. While Ms. Jones’s attorney
sometimes focused her questions specifically on the period before that accident,
many of Ms. Jones’s descriptions of her pain and limitations appeared to relate to her
condition at the time of the hearing. Further complicating the matter is the fact that
Ms. Jones had to establish that she was disabled by March 31, 2009, for purposes of
disability insurance benefits, but she had only to establish that she was disabled as of
the date of the ALJ’s decision for purposes of SSI benefits.
The ALJ discounted Ms. Jones’s credibility based on what she saw as several
inconsistencies in Ms. Jones’s testimony. First, she found that Ms. Jones’s
description of the severity of her pain at the hearing was inconsistent with her report
to Dr. Alvarez on April 3, 2008, that she had not had any headaches in the last month
and that her “neck, mid, and low-back pains intermittently are slightly better.” Aplt.
App., Vol. 3, at 516. When an ALJ relies on a claimant’s statement about her
condition on a single occasion as a basis for assessing her condition over a greater
time period and then uses that assessment to discount the credibility of the claimant’s
testimony, we must carefully examine the record as a whole to ensure that substantial
evidence supports the ALJ’s reliance on the claimant’s statement in this fashion.
Here, the medical record as a whole supports the ALJ’s reliance on
Ms. Jones’s April 2008 report to Dr. Alvarez that her headaches were lessening. For
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the first two years after the January 2006 car accident, Ms. Jones complained of
headaches on and off, but after April 2008, the medical records do not contain any
complaints of headaches. Ms. Jones testified at the hearing that she had had only one
migraine in the past three months because the medication she was taking for her
injuries from the second car accident kept them at bay. Because Ms. Jones’s report
to Dr. Alvarez of lessening headaches appears to be consistent with the medical
record as a whole, the ALJ’s reliance on her statement as a basis for discounting her
testimony of disabling migraines is well-supported.
The same cannot be said of Ms. Jones’s back and neck pain. During the
2½ years she was treated by the doctors at Florida Medical Associates, Ms. Jones
consistently complained of fairly intense low back pain, while the intensity of her
neck and mid-back pain varied, sometimes disappearing for a month or more, but
then returning. Unlike her complaints of headache, however, Ms. Jones’s complaints
of both lower back and neck pain persisted throughout her treatment with Dr. Henson
from December 2008 through June 2009. Thus, even if her statement to Dr. Alvarez
in April 2008 that her back and neck pains “intermittently are slightly better,” id.,could reasonably be viewed as inconsistent with her hearing testimony (which is
questionable), the record does not support relying on that isolated statement as a
basis for discounting Ms. Jones’s testimony of severe back and neck pain.
The ALJ also found that Ms. Jones’s description of her pain was “inconsistent
with her activities such as exercise and school.” Id., Vol. 2, at 22. The exercise to
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which the ALJ referred was Ms. Jones’s statement to Dr. Krause in June 2007 that
“[s]he has been trying to do some more exercise with walking. She is also doing
some TheraBand exercises that the chiropractor gave her.” Id., Vol. 3, at 501. Both
the walking and the TheraBand exercises were specifically prescribed by Ms. Jones’s
treating physicians. Her efforts to follow the regimen prescribed by her doctors can
hardly provide an appropriate basis on which to discount her allegations of pain.
And, in any event, her report in June 2007 that she was trying to do the prescribed
exercises does not appear to undercut her testimony in May 2010 that she suffers
disabling pain.
The ALJ also found that Ms. Jones’s testimony “that she is unable to sit at a
desk and look down for ten or fifteen minutes at a time is inconsistent with the fact
that she reported to treating physicians on numerous occasions that she was going to
school to get her GED.” Id., Vol. 2, at 22-23. In November 2006, Dr. Krause
recommended that Ms. Jones go to vocational rehab and think about getting a GED
so she could be retrained for work that was not as physically demanding as her past
work. At the next visit, Dr. Krause reported that Ms. Jones told her she had been
going to the library to work on her GED. Dr. Krause reported again in January,
February, March, and April 2007 that Ms. Jones said that she was continuing to work
on her GED. In June 2007, Dr. Krause reported that Ms. Jones was “going to
school,” id., Vol. 3, at 501, but the following month she said only that Ms. Jones was
working on her GED.
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The ALJ asked Ms. Jones at the hearing whether she had ever received her
GED, and Ms. Jones said that she had not, because she could not afford it. She
denied telling Dr. Krause that she was going to school, explaining that she had said
only that she wanted to go to school and get her GED, but she never actually did.
Id., Vol. 2, at 51.
The ALJ apparently did not believe Ms. Jones’s testimony that she never
actually went to school to get her GED. But even if Dr. Krause’s reports were
accurate, they do not contain any information about the physical demands that
studying for her GED made on Ms. Jones. When asked at the hearing whether she
would have trouble sitting at a desk and looking down, Ms. Jones replied that she
could probably sit at a desk and look down for ten to fifteen minutes, but would have
to get up and pace a bit before she could sit back down, and that constantly having to
hold her head in one position would make her neck hurt. The ALJ apparently
assumed that Ms. Jones could not have studied for her GED for six months in 2007 if
she actually had these limitations,4 but there is no evidence in the record to support
that assumption.
Finally, the ALJ found Ms. Jones’s testimony that, after sitting for about
twenty minutes, she would have to get up and pace for about ten minutes before
sitting again, and that she did this day and night, was “inconsistent with the assertion
4
Further, it appears that Ms. Jones was describing the limitations she had at the
time of the hearing, not necessarily those she had in early 2007.
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that she is only able to stand for fifteen minutes at a time before she needs to sit,” id.
at 22. But pacing is not standing still, and when asked whether she paced quickly or
slowly and whether she had any problems walking, Ms. Jones replied: “I don’t have
any problems walking. I pace real slow.” Id. at 44. When asked about standing in
one place, however, Ms. Jones said she could do so for only ten or fifteen minutes
before her lower back and neck would hurt. Id.
Thus, many of the reasons the ALJ gave for discounting Ms. Jones’s
credibility are not well-supported by the record. Moreover, the ALJ failed to discuss
a variety of evidence that supported Ms. Jones’s allegations of pain. For instance, the
record shows that Ms. Jones consistently sought treatment to relieve her pain. She
saw physicians regularly, and she tried a host of treatments, including hot and cold
packs, massage, spinal manipulation, electric nerve stimulation, ultrasound,
trigger-point injections, acupuncture, exercises, and mind-body pain-control
techniques.
Ms. Jones also took prescription pain-relievers (most of them narcotic),
muscle-relaxers, and sleep-aids. The ALJ did mention that Ms. Jones was taking
Percocet, Soma, and Trazodone daily at the time Dr. Krause examined her on May 4,
2007, but the ALJ did not acknowledge that Ms. Jones was regularly prescribed these
and similar drugs from January 2006 through March 2010.
The ALJ made one other mention of Ms. Jones’s medications, but only to
discount, rather than support, Ms. Jones’s credibility. The ALJ noted that Ms. Jones
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testified that she took what the ALJ described as “the powerful narcotic Morphine
four times a day for her pain as prescribed,” id. at 23, and that her list of current
medications showed Dr. Ree prescribed morphine sulfate on March 24, 2010. But
the ALJ then observed that the only records she had from Dr. Ree (referring to his
September 28, 2009, examination) “showed a physical examination in which the
claimant had normal range of motion in the neck, with no stiffness or tenderness to
palpitation, normal range of motion in the back, with no point tenderness, normal
muscle strength and tone, and normal reflexes.” Id.
It is not clear whether the purpose of the ALJ’s observation was to suggest that
Ms. Jones was not being truthful when she said that she was taking morphine, or to
suggest that Ms. Jones did not need as powerful a pain medication as was prescribed.
To the extent the ALJ doubted the truth of Ms. Jones’s testimony, the treatment
records Ms. Jones submitted to the Appeals Council from December 2009 through
May 2010 did show that Dr. Ree prescribed morphine for Ms. Jones’s pain, but those
records were not before the ALJ. To the extent the ALJ did not think Ms. Jones
required such a powerful pain-reliever, that is a medical judgment outside the
province of an ALJ. The records from Dr. Ree that the ALJ did have showed that
Dr. Ree prescribed two other narcotic pain-relievers—both Percocet and
Hydrocodone, together—as well as a muscle relaxer and a sleep aid for Ms. Jones’s
complaints of pain, so he evidently judged that Ms. Jones required significant
pain-relief.
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Ms. Jones’s description of her very minimal activities of daily living also
supported her complaints of disabling pain. Although Ms. Jones was not questioned
on this point at the hearing, other evidence in the record indicated that she was still
staying with her parents in Oklahoma at the time of the hearing, her condition after
her second car accident having prevented her from returning to her home in Florida.
The ALJ did describe most of Ms. Jones’ testimony about the limitations on her daily
activities,5 but the ALJ did not mention any of these limitations in her assessment of
Ms. Jones’s credibility. In that assessment, the ALJ discussed only the evidence she
thought undermined Ms. Jones’s credibility.
We have held that an ALJ “need not make a formalistic factor-by-factor
recitation of the evidence” when making her credibility assessment, Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (internal quotation marks omitted), but
she should “discuss the significantly probative evidence supporting claimant’s
5
Ms. Jones testified that she was able to drive after her January 2006 accident
but could not currently drive due to her broken arm. She said that she had trouble
putting on her pants and shoes and that her parents had to help her get in and out of
the bathtub. She testified that her parents also helped with the housework; pushing a
vacuum was too hard, and though she had been able to sweep the floor before her
September 2009 accident, she could no longer do so because of her broken arm.
Ms. Jones said that her mother did her laundry and went with her to the grocery store,
where she would tell her mother what she wanted and her mother would get it for her.
Ms. Jones testified that she did no socializing, belonged to no clubs, and did not
attend church. She said that she left the house only to go grocery shopping or visit
the doctor and that she usually stayed at home six days a week. When asked if she
got dressed on the days she stayed in, she said that she wore her nightgown most of
the time. Because most of her testimony about her daily activities related to her
limitations since the September 2009 accident, it is difficult to discern what she was
able to do before that time.
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allegations upon which [s]he chose not to rely,” Hardman v. Barnhart, 362 F.3d 676,
681 (10th Cir. 2004); see also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)
(“[I]n addition to discussing the evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.”). In Hardman, this court concluded that
“[i]t was error for the ALJ to fail to expressly consider claimant’s persistent attempts
to find relief from his pain, his willingness to try various treatments for his pain, and
his frequent contact with physicians concerning his pain-related complaints.”
362 F.3d at 680. The ALJ here likewise failed to discuss significantly probative
evidence that supported Ms. Jones’s allegations.
We recently held that we must “exercise common sense” in reviewing an
ALJ’s decision and must not “insist on technical perfection.” Keyes-Zachary,
695 F.3d at 1166. If “we can follow the adjudicator’s reasoning in conducting our
review, and can determine that correct legal standards have been applied, merely
technical omissions in the ALJ’s reasoning do not dictate reversal.” Id. But the
ALJ’s omissions here go beyond the merely technical and call into question the
ALJ’s application of the appropriate legal standards. The ALJ failed to expressly
consider the uncontroverted evidence that Ms. Jones routinely consulted physicians,
tried all kinds of pain-relieving treatments, and consistently took narcotic
pain-relievers and prescription muscle-relaxers in an attempt to alleviate her pain.
The ALJ also failed to expressly consider Ms. Jones’s testimony about her very
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limited activities of daily living in assessing her credibility. And balanced against
these omissions is the fact that many of the grounds upon which the ALJ did rely in
discounting Ms. Jones’s credibility are not well-supported by the record.
Accordingly, we must reverse and remand for the ALJ to make a new credibility
determination that follows the correct legal standards and takes into account the
entire record.
Step Five Analysis
Ms. Jones captions her final issue as a challenge to the ALJ’s step-five
analysis, but some of the arguments she makes implicate earlier steps in the
sequential analysis. In addition to challenging the hypothetical questions the ALJ
posed to the vocational expert (VE), and the consistency of the VE’s answers with
information provided in the Dictionary of Occupational Titles, which are step-five
issues, Ms. Jones also argues that the ALJ failed to “assess the severity of [her]
consistently diagnosed ‘cervicothoracic strain’ and related problems with her mid to
upper back and trapezius muscle,” Aplt. Br. at 23, which implicates step two, and
that the ALJ failed to consider these impairments when determining Ms. Jones’s RFC
at step four. She also contends that the ALJ failed to recognize evidence that she
suffered from a mental impairment, to develop the record about this impairment, or to
include the impairment in her RFC determination, all of which implicate earlier steps
in the sequential analysis. Because we are remanding for the ALJ to correct errors
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earlier in the sequential analysis, we will not address the arguments that truly relate
to step five. We will, however, briefly address those that relate to earlier steps.
Following her accident in January 2006, Ms. Jones experienced pain and
limited range of motion not only in her lower back and neck, but also in her mid- to
upper-back and shoulder. The ALJ did not address these problems separate from
Ms. Jones’s neck and lower back problems. The Commissioner argues that the ALJ
did not have to address these impairments because they caused no functional
limitations independent of those the ALJ found were caused by her neck and lower
back impairments. The ALJ did not make such a determination, however, and on
remand, she should consider whether Ms. Jones had any impairments related to her
mid- to upper-back or shoulder and, if so, whether they were severe. The ALJ should
then consider those findings when determining Ms. Jones’s RFC. See SSR 96-8p,
1996 WL 374184, *5 (July 2, 1996) (“In assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe.’”).
Ms. Jones additionally contends that the record contains evidence of a mental
impairment—namely, depression—that the ALJ should have recognized, developed
the record about, and included in her RFC assessment. We see no error. Ms. Jones
was represented by counsel during all of the administrative proceedings. She did not
allege any mental impairment in her applications, her disability report, or her hearing
testimony. Her attorney told the ALJ at the start of the hearing that Ms. Jones had
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impairments of her back and neck and suffered from migraines, and Ms. Jones
testified only about her headaches and physical impairments. When asked by the
ALJ, both Ms. Jones and her attorney said that they had nothing further to add.
While the record does show that Ms. Jones was prescribed medications that may be
used to treat depression, it also shows quite clearly that these medications were
prescribed strictly as a sleep aid, to be taken only at bedtime. Ms. Jones argues that
the ALJ should have been able to discern from her description of her limited daily
activities that she suffered from depression. But it is not the ALJ’s province to make
a medical diagnosis.
Several preconditions inform an ALJ’s duty to develop the
administrative record. Under normal circumstances, the ALJ may
reasonably rely on counsel to identify the issue or issues requiring
further development. Moreover, a claimant need not only raise the issue
she seeks to develop, but that issue must also be substantial on its face.
Specifically, the claimant has the burden to make sure there is, in the
record, evidence sufficient to suggest a reasonable possibility that a
severe impairment exists.
Wall, 561 F.3d at 1063 (citations omitted) (internal quotation marks omitted). The
evidence did not suggest a reasonable possibility that Ms. Jones had a mental
impairment, so the ALJ had no duty to develop the record, to assess the severity of
any mental impairment, or to include a mental impairment in her RFC determination.
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The judgment of the district court is reversed and the matter is remanded for
further proceedings consistent with this order and judgment.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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