Lamb v. Barnhart , 85 F. App'x 52 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGIA E. LAMB,
Plaintiff-Appellant,
v. No. 03-7024
(D.C. No. 02-CV-392-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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This order and judgment is not binding precedent, except under the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-appellant Georgia E. Lamb appeals the district court’s order
affirming the Social Security Commissioner’s denial of her application for
disability insurance benefits under the Social Security Act. We exercise
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse and
remand for further proceedings.
I.
Mrs. Lamb and her husband owned a dairy farm. On October 21, 1998,
Mrs. Lamb injured her back and neck when a calf pen fell on her head and
knocked her down. Mrs. Lamb’s medical records document the treatment she has
received through September 2001, and the records indicate the following.
Mrs. Lamb’s main treating physician is Dr. Osborne, an osteopath.
Dr. Osborne referred her to Dr. Duncan, a neurologist, and Dr. Duncan saw her in
June and August 1999. See Aplee. Supp. App. at 124, 254, 260-61. Dr. Duncan’s
records indicate that MRIs of her spine showed a small central disc protrusion at
T5-6 and osteophytes at C4-5 and C5-6, and he diagnosed cervical radiculopathy.
Id. at 124, 254. Dr. Duncan’s records indicate that Mrs. Lamb received epidural
injections from another physician, but they did not lead to any consistent
improvement in her pain. Id. at 124.
Dr. Duncan referred Mrs. Lamb to Dr. Pelofsky, a neurosurgeon, and
Dr. Pelofsky saw her in September 1999 and January 2000. Id. at 170-71.
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Dr. Pelofsky diagnosed cervical spondylosis at C4-5 and C5-6, with no evidence
of active radiculopathy or myelopathy, id. at 170, and “complex regional pain
syndrome involving her occipital region, her cervical region, her shoulders, and
arms,” id. at 171. Dr. Pelofsky noted, however, that “[n]eurologically, . . . her
symptoms far exceed her neurologic findings.” Id. Dr. Pelofsky also noted that
Mrs. Lamb showed evidence of “significant depression,” and he prescribed Zoloft
to treat her depression. Id. at 170.
Dr. Pelofsky referred Mrs. Lamb to Dr. Eckman, a radiologist/pain
management specialist, and Dr. Eckman treated her from September 1999 to
December 1999. Id. at 128-37, 150-51, 202-03. Dr. Eckman’s records indicate
that an MRI of her cervical spine showed an anterior disc bulge at C5-6, but
“no protrusions, outer annular tears, stenosis, or congenital abnormalities.” Id. at
136. His records also indicate that an MRI of her thoracic spine showed a disc
protrusion at T5-6. Id. Dr. Eckman diagnosed Mrs. Lamb as suffering from
“complex regional pain syndrome, type I,” id. at 128, which he also referred to as
“sympathetically maintained pain syndrome,” id. at 130. His records also
document cervical disc disease with mild radicular signs and associated occipital
neuralgia, id. at 128, and he gave Mrs. Lamb epidural and nerve block injections
to treat her pain, id. at 128, 132. Although Dr. Eckman reported that Mrs. Lamb’s
case was “unusual” because her complaints of severe pain exceeded the objective
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medical evidence, he also noted that the “symptom expression, muscle spasm and
range of motion are dramatic to say nothing of the impact that this pain has had
on this patient’s life.” Id. at 137. He further reported that he “was very
impressed by the degree of pain and disability this obviously tough and sturdy
woman was experiencing.” Id. at 136.
Dr. Pelofsky also referred Mrs. Lamb to Dr. Hancock, a physical medicine
and rehabilitation specialist, and she saw Dr. Hancock in January and February
2000. Id. at 138, 140-41. Dr. Hancock diagnosed cervical degenerative disc
disease/cervical spondylosis, bilateral shoulder impingement, and sympathetically
mediated pain of the left shoulder. Id. at 138, 141. She also noted that
Mrs. Lamb suffers from depression and a sleep disorder. Id. at 138.
In February 2000, Dr. Hancock and Dr. Pelofsky referred Mrs. Lamb to
Dr. Marshall, another pain management specialist, and Dr. Marshall treated her
through September 2001. Id. at 142-46, 155, 157-59, 160-65, 297, 304-307, 318.
Dr. Marshall’s records confirm the protruding disc at T5-6, id. at 304-05, and he
diagnosed recurrent thoracic radiculitis secondary to thoracic degenerative disc
disease, id. at 305. He also diagnosed Mrs. Lamb as suffering from chronic
regional pain syndrome. Id. at 142, 145, 164. Dr. Marshall implanted a spinal
cord stimulator in her neck in June 2000, id. at 142-44, and he also gave her
several epidural and nerve block injections, id. at 155, 157-58, 297, 306-07, 318.
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Dr. Marshall’s records indicate that the spinal cord stimulator helped to reduce
her pain and make her more functional, but his records also document a number of
continuing complaints regarding pain associated with her thoracic degenerative
disc disease. Id. at 155, 157-58, 297, 304-305.
In March 2000, Dr. Marshall referred Mrs. Lamb to Dr. Nael for a
psychiatric evaluation. Id. at 292-96. Dr. Nael diagnosed Mrs. Lamb as suffering
from “major depression, moderate single episode, non-psychotic,” and he rated
her global assessment of functioning score at 60. Id. at 295. Dr. Nael also stated
that Mrs. Lamb “needs to continue her medications and possibly follow-up
psychiatrically for treatment of her depression.” Id. at 296.
II.
In February 2001, Mrs. Lamb filed an application for disability insurance
benefits. After her claim was denied initially and on reconsideration, a de novo
hearing was held before an administrative law judge (ALJ). In a decision dated
January 15, 2002, the ALJ determined that Mrs. Lamb is not disabled and denied
her application for benefits. In May 2002, the Appeals Council denied
Mrs. Lamb’s request for review of the ALJ’s decision. Mrs. Lamb then filed a
complaint in the district court. In January 2003, the district court entered an order
affirming the ALJ’s decision denying benefits. This appeal followed.
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“To qualify for disability benefits, a claimant must establish a severe
physical or mental impairment expected to result in death or last for a continuous
period of twelve months which prevents the claimant from engaging in substantial
gainful activity.” Thompson v. Sullivan , 987 F.2d 1482, 1486 (10th Cir. 1993).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled. Id. In this case, the ALJ found at
step two that Mrs. Lamb suffers from a severe impairment in the form of
degenerative disc disease, but the ALJ denied benefits at step five, finding that
she retains the residual functional capacity (RFC) to perform light work and is
therefore not disabled under the medical-vocational guidelines (grids). See
20 C.F.R., Pt. 404, Subpt. P, App. 2 (2001).
We review the ALJ’s decision only to determine whether his factual
findings are supported by substantial evidence and whether he applied the correct
legal standards. See O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In making the
substantial-evidence determination, we neither reweigh the evidence nor
substitute our judgment for that of the ALJ. See Thompson , 987 F.2d at 1487.
Mrs. Lamb claims the ALJ erred by: (1) failing to properly consider
Dr. Osborne’s opinion that she is unable to perform even sedentary work;
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(2) failing to properly assess her RFC; and (3) failing to determine whether she
suffers from a severe mental impairment. We agree with Mrs. Lamb that the ALJ
committed reversible error with respect to each of these points.
A. Dr. Osborne’s Opinion
In deciding how much weight to give the opinion of a treating physician, an
ALJ must first determine whether the opinion is entitled to “controlling weight.”
See Watkins v. Barnhart, __ F.3d __, 2003 WL 22855009, at *2 (10th Cir. Dec. 2,
2003). An ALJ is required to give the opinion of a treating physician controlling
weight if it is both: (1) “well-supported by medically acceptable clinical and
laboratory diagnostic techniques;” and (2) “consistent with other substantial
evidence in the record.” Id. (quotation omitted). “[I]f the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.” Id.Even if a treating physician’s opinion is not entitled to controlling weight,
“[t]reating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. [§§] 404.1527 and
416.927.” Id. (quotation omitted). And, “[a]fter considering the pertinent
factors, the ALJ must give good reasons . . . for the weight he ultimately assigns
the opinion.” Id. at *3 (quotation omitted). Further, “if the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons for doing so.”
Id. (quotation omitted). We have also held that an ALJ “may reject a treating
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physician's opinion outright only on the basis of contradictory medical evidence
and not due to his or her own credibility judgments, speculation or lay opinion.”
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (quotation omitted).
In October 2001, Dr. Osborne filled out a form entitled “Medical Source
Statement - Physical.” See Aplee. Supp. App. at 301-02. With respect to her
exertional limitations, the form states: (1) that Mrs. Lamb can stand, walk, or sit
for a total of less than one hour during an eight-hour workday; (2) that she is
limited in her ability to push or pull; and (3) that she can only occasionally lift
less than ten pounds. Id. As noted by the ALJ in his decision, the limitations
imposed by Dr. Osborne on standing, walking, and sitting indicate that Mrs. Lamb
has “less than sedentary capability.” Id. at 26. This is in conflict with the
“Physical Residual Functional Capacity Assessment” forms that were completed
by two non-examining medical consultants on behalf of the Commissioner, as
both of the non-examining consultants found that Mrs. Lamb’s exertional
limitations do not prevent her from performing light work. Id. at 227-34, 235-42.
The ALJ characterized Mrs. Lamb’s impairment as “degenerative disc
disease,” and he found that it was a severe impairment at step two, but that it did
not meet or equal the listing for vertebrogenic disorders of the spine (Listing
1.05C) at step three. Id. at 25. After concluding that “Dr. Osborne’s less than
sedentary findings . . . are not supported by the medical record,” id. at 26, the
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ALJ found at step four that Mrs. Lamb retains the RFC to perform light work for
an eight-hour workday, and he concluded that she is not disabled at step five
based on the grids, id. at 26-27. The ALJ therefore completely rejected Dr.
Osborne’s opinion, and he apparently gave it no weight whatsoever.
The ALJ provided two reasons for his conclusion that Dr. Osborne’s
opinion is not supported by the medical record. First, he noted that “[m]agnetic
resonance imaging did not show stenosis, herniation, damage to the spinal cord,
or other developments necessary for Dr. Osborne’s evaluation to be legitimate.”
Id. at 26. Second, he noted that “[b]oth [Mrs. Lamb] and her treating surgeon
stated in the record that she received significant relief from the permanently
implanted spinal cord stimulator.” Id. Although he did not specifically tie his
credibility determination to his evaluation of Dr. Osborne’s opinion, the ALJ also
found that Mrs. Lamb’s claim that she is in constant pain “is not credible in view
of the record’s marking of her progress.” Id.
Based on the record before this court, we conclude that these are not
legitimate reasons for rejecting Dr. Osborne’s opinion. To begin with, while the
ALJ is correct that the record does not contain MRI evidence showing “stenosis,
herniation, [or] damage to the spinal cord,” this does not mean that Dr. Osborne’s
opinion that Mrs. Lamb cannot perform even sedentary work is unsupported. To
the contrary, the ALJ committed reversible error by failing to analyze the specific
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physical ailments that are documented in Mrs. Lamb’s medical records.
Specifically, in order to determine whether Dr. Osborne’s opinion is entitled to
controlling weight, the ALJ was required to analyze the physical ailments that are
documented in Mrs. Lamb’s medical records ( i.e. , degenerative disc disease and
complex or chronic regional pain syndrome 1
and the pain and physical limitations
related thereto) and determine, as a threshold matter, whether Dr. Osborne’s
opinion that those ailments are disabling is well supported and not inconsistent
with other substantial evidence in the record. See Watkins, 2003 WL 22855009,
at *2.
Moreover, the fact that Dr. Marshall’s medical records indicate in very
general terms that Mrs. Lamb had decreased pain and was functioning better
after the spinal cord stimulator was implanted does not provide any specific or
useful information regarding the physical limitations caused by her underlying
back and neck problems. Consequently, the general references in Dr. Marshall’s
medical records do not provide a legitimate basis for rejecting Dr. Osborne’s
opinion. Similarly, the ALJ’s conclusory assertion that Mrs. Lamb’s medical
records show “progress” is not a legitimate basis for rejecting Dr. Osborne’s
1
With respect to the diagnosis of complex or chronic regional pain
syndrome, we note that there is a recent Social Security Ruling specifically
addressing how ALJs are to evaluate this syndrome. See SSR 03-2p, Evaluating
Cases Involving Reflex Sympathetic Dystrophy Syndrome/Complex Regional Pain
Syndrome , 2003 WL 22399117 (Oct. 20, 2003).
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opinion. Accordingly, because the ALJ failed to provide legitimate reasons for
rejecting the opinion of Dr. Osborne, we must remand this case for a reevaluation
of Dr. Osborne’s opinion.
B. ALJ’s RFC Determination
As set forth above, the ALJ rejected Dr. Osborne’s opinion that Mrs. Lamb
cannot perform even sedentary work, and the ALJ found that Mrs. Lamb has the
RFC to perform light work. See Aplee. Supp. App. at 26-27. There is no
competent medical evidence in the record to support the ALJ’s light work
determination because: (1) the RFC assessment forms that were prepared by the
two non-examining agency physicians, id. at 227-34, 235-42, do not constitute
substantial evidence since they are not accompanied by thorough written reports
or persuasive testimony, see Frey v. Bowen , 816 F.2d 508, 515 (10th Cir. 1987);
and (2) leaving aside Dr. Osborne, none of the other doctors who have examined
Mrs. Lamb have specifically addressed or defined her exertional limitations in
terms of her ability to sit, stand, walk, lift, carry, push, and pull or her
nonexertional limitations in terms of her ability to reach, handle, stoop, crouch,
climb, etc., see 20 C.F.R. § 404.1569a (2001).
As a result, even if the ALJ determines on remand that he is not required to
give controlling weight to the opinion of Dr. Osborne, the ALJ cannot then simply
conclude, as it appears he did in the decision under review, that Mrs. Lamb is
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therefore capable of performing light work. See Aplee Supp. App. at 26-27.
Instead, the ALJ must evaluate and make specific findings as to Mrs. Lamb’s
physical RFC, see Winfrey v. Chater , 92 F.3d 1017, 1023 (10th Cir. 1996), and
the findings must be supported by substantial evidence, see Haddock v. Apfel , 196
F.3d 1084, 1088-89 (10th Cir. 1999).
Further, the ALJ must ensure that a sufficient record exists to evaluate
Mrs. Lamb’s exertional and nonexertional limitations. See SSR 96-8p, 1996 WL
374184, *5 (July 2, 1996) (noting that ALJs “must . . . make every reasonable
effort to ensure that the file contains sufficient evidence to assess RFC,” and that
“[t]he RFC assessment must address both the remaining exertional and
nonexertional capacities of the individual”). And, while the ALJ is not limited to
considering only medical evidence, see 20 C.F.R. § 404.1545(a) (2001) (“[RFC]
is an assessment based upon all of the relevant evidence.”), the ALJ’s duty to
develop the record may include obtaining additional medical evidence from Mrs.
Lamb’s treating physicians or ordering a consultative examination if the record
does not otherwise contain sufficient evidence upon which to base an RFC
finding, see 20 C.F.R. § 404.1512(d)-(f) (2001).
C. Alleged Mental Impairment
We conclude that the ALJ erred by failing to address whether Mrs. Lamb
suffers from a severe mental impairment. As noted above, Dr. Nael diagnosed
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Mrs. Lamb as suffering from depression, and there are also references to the fact
that she suffers from depression, and was prescribed Zoloft to treat her
depression, in the records of Dr. Pelofsky and Dr. Hancock. Thus, there is
sufficient evidence in the record to establish that Mrs. Lamb suffers from a
mental impairment, and the ALJ therefore erred by failing to evaluate the severity
of her mental impairment in accordance with the procedures set forth in 20 C.F.R.
§ 404.1520a (2001). See Cruse v. United States Dep’t of Health & Human Servs. ,
49 F.3d 614, 617 (10th Cir. 1995) (“When there is evidence of a mental
impairment that allegedly prevents a claimant from working, the [ALJ] must
follow the procedure for evaluating mental impairments set forth in 20 C.F.R.
§ 404.1520a and the Listing of Impairments and document the procedure
accordingly.”).
The order of the district court is REVERSED, and this case is REMANDED
to the district court with instructions to remand the case to the Commissioner for
further proceedings before the ALJ.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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