Hendrix v. Astrue , 363 F. App'x 588 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 27, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
VIRGINIA HUNTER-HENDRIX,
Plaintiff!Appellant,
v. No. 09-6056
(D.C. No. 5:07-CV-01416-C)
MICHAEL J. ASTRUE, Commissioner (W.D. Okla.)
of the Social Security Administration,
Defendant!Appellee.
ORDER AND JUDGMENT *
Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.
Claimant Virginia Hunter-Hendrix appeals from the district court’s order
affirming the decision of the Social Security Commissioner to deny her
application for disability-insurance benefits. Ms. Hunter-Hendrix argues that the
administrative law judge (“ALJ”) failed to follow prescribed standards in
evaluating her physicians’ opinions and in determining whether she could make a
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
successful adjustment to other work that exists in significant numbers in the
national economy. We exercise jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g) and conclude that the ALJ’s decision does not apply the
correct legal standards to the medical evidence. Accordingly, we REVERSE and
REMAND for further proceedings.
I. BACKGROUND
A. Procedural History
Ms. Hunter-Hendrix’s social security case has a lengthy history. Alleging
disability due to back problems, she initially applied for benefits on August 8,
2001, when she was fifty-one years old. An Administrative Law Judge (ALJ)
issued an unfavorable decision on April 22, 2004. On administrative review,
however, the Appeals Council vacated the ALJ’s decision. The Appeals Council
remanded the matter, instructing the ALJ to further consider Ms. Hunter-
Hendrix’s complaints. In particular, the ALJ was to supplement the medical and
vocational evidence and evaluate the additional evidence in accordance with the
agency’s regulations.
The ALJ obtained additional evidence, held a hearing twenty-one months
after the remand, and conducted a supplemental hearing eight months later. He
issued his second unfavorable decision on June 29, 2007, finding Ms. Hunter-
Hendrix not disabled at step five of the sequential evaluation process. See Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the agency’s five-step
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framework for determining disability). The Appeals Council denied Ms. Hunter-
Hendrix’s request for review, and the district court affirmed the Commissioner’s
decision. In the eight years since she applied for benefits, Ms. Hunter-Hendrix’s
insured status expired.
B. Medical History
Ms. Hunter-Hendrix first suffered a work-related back injury in the late
1980s and underwent back surgery in March 1991. She re-injured her back in
July 2000. In spite of conservative treatment during the fall of that year, she
continued to have back problems and stopped working at her production-assembly
job in November. Throughout 2000, her physicians limited her lifting, pushing,
bending, and stooping movements. Dr. Evans, an examining orthopedist, placed
her lifting limit at ten pounds in September 2000. The most optimistic opinions
were expressed by Dr. Hess, a treating physician (through his physician’s
assistant), and Dr. Wright, an orthopedist. They opined that Ms. Hunter-Hendrix
could lift up to twenty pounds.
In January of 2001, Dr. Wright and Dr. Metcalf, an examining physician,
recommended back decompression surgery. Dr. Wright performed a revision
lumbar laminectomy on January 22, 2001. (An examining physician, Dr. Saidi,
described the procedure as one to remove scar tissue.) After the surgery, treating,
examining, and reviewing physicians again evaluated Ms. Hunter-Hendrix’s
restricted ability to lift, bend, and stoop. From March 2001 to October 2003, they
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reached and expressed somewhat divergent opinions. There is then a gap in the
medical record.
After the remand order, however, the ALJ requested two additional
disability examinations. Dr. Saidi examined Ms. Hunter-Hendrix on April 10,
2006 and noted her history of degenerative disk disease, herniated disk, spinal
stenosis, and chronic obstructive pulmonary disease. He found she could stand
for four hours and sit for four hours as long as she changed position every thirty
minutes. She could lift ten pounds frequently, carry five pounds frequently, and
lift eleven to fifty pounds occasionally. In addition, Ms. Hunter-Hendrix’s
condition required a moderate restriction of activities involving unprotected
heights, moving machinery, marked changes in temperature and humidity,
exposure to dust, fumes, and gases, driving, and vibrations.
On February 12, 2007, Dr. Chaudry also conducted an agency-requested
examination. According to his findings, Ms. Hunter-Hendrix could sit for six
hours during a work day, thirty to forty minutes at a time, and stand for about six
hours, twenty minutes at a time. She was restricted to lifting twenty pounds
occasionally. Dr. Chaudry found no environmental restrictions.
C. Vocational History
Ms. Hunter-Hendrix, who has an eighth-grade education, performed the
past relevant work of “assembly, production,” and “hand assembling.” II Aplt.
App. at 417. Most recently, she repaired computer boards, using soldering guns
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and lifting tubs that weighed fifteen to thirty pounds. In that job, she could sit or
stand as she worked, frequently lifted twenty-five pounds, and occasionally lifted
up to fifty pounds.
Three different vocational experts have given their opinions on the
classification of Ms. Hunter-Hendrix’s past work. They generally believed that
Ms. Hunter-Hendrix had performed light to medium, semiskilled work.
D. Remand Proceedings
On remand, the ALJ was instructed to supplement the medical and
vocational evidence and to take the additional evidence into consideration under
the applicable agency regulations. He added Dr. Saidi’s and Dr. Chaudry’s
opinions to the medical record. The ALJ was then tasked with determining the
weight to be accorded the opinions of the many treating, examining, and
non-examining physicians. And with regard to the vocational evidence, he was to
determine if Ms. Hunter-Hendrix had any transferable skills and then identify any
appropriate jobs in the national economy.
At the remand hearing, the ALJ took telephone testimony from a reviewing
medical expert, Dr. McCaron. The gist of Dr. McCaron’s testimony was that the
medical records didn’t explain the source of Ms. Hunter-Hendrix’s pain.
Dr. McCaron questioned Dr. Wright’s diagnosis of spinal stenosis, and stated that
a herniated disc “doesn’t necessarily mean there is or isn’t a problem.” Id. at
410.
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Eight months later, the ALJ held a supplemental hearing, at which another
reviewing medical expert, Dr. Raulston, testified. Dr. Raulston expressed his
view that Ms. Hunter-Hendrix was “capable of light duty, [lifting] 20 pounds
occasionally and frequently, standing/walking a total of six out of eight, with the
opportunity to change positions every 30 to 60 minutes as needed.” Id. at 458
(parenthetical omitted). She couldn’t crawl, but could occasionally climb, crouch,
balance, kneel, and stoop. She had no environmental limitations except for
performing hazardous duties. Dr. Raulston felt the inconsistencies between the
examining physicians Dr. Saidi and Dr. Chaudry were “just a difference of
opinion.” Id. at 460. He stated that nothing in the record “show[s] she actually
got worse or better” between the two examinations. Id.
Two new vocational experts testified after remand. At the supplemental
hearing, a vocational expert proposed three jobs in response to the ALJ’s
hypothetical questions about light, semiskilled work allowing for a sit/stand
option: bench assembler, barrel solderer, and electric motor assembler.
The ALJ then issued his decision denying benefits. On the issue of
Ms. Hunter-Hendrix’s medical condition, he essentially adopted the testimony of
the second testifying expert, Dr. Raulston. He found that Ms. Hunter-Hendrix
suffered from the severe impairments of spinal stenosis, chronic obstructive
pulmonary disease, recurrent herniated disc, and degenerative disc disease. She
was of “advanced age or . . . approaching advanced age” and was unable to
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perform her past relevant work. Id. at 20. Nevertheless, she had the residual
functional capacity to “stand or sit and stand for 4 hours out of an 8-hour
workday,” but “must change positions every 30 to 60 minutes.” Id. at 20. She
“retain[ed] the residual functional capacity to perform a wide range of light work
activity because she could lift and carry 20 pounds occasionally and 10 pounds on
a frequent basis.” Id. Apparently relying on the testimony of Ms. Sullivan, the
third vocational expert, the ALJ decided that despite her limitations Ms. Hunter-
Hendrix could perform the three jobs existing in significant numbers in the
national economy, as suggested by the final vocational expert. He therefore
found her not disabled and not entitled to disability insurance benefits.
The appeals council denied review and Ms. Hunter-Hendrix sought review
in the district court. The district court found no error in the ALJ’s treatment of
the medical evidence. 1 Concerning vocational issues, the court determined that
ALJ properly found that Ms. Hunter-Hendrix had acquired transferable skills in
her previous jobs. The court, however, concluded that two of the jobs supporting
the alternative-work finding--bench assembler and barrel solderer--were
inappropriate or unsupported by the evidence. Nevertheless, the court determined
that the remaining position of electric-motor assembler was sufficient to support
the ALJ’s decision, without explicitly considering whether this single job existed
1
On judicial review, the district court adopted the magistrate judge’s report
and recommendation.
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in significant numbers in the national economy. The district court therefore
affirmed the Commissioner’s decision.
II. DISCUSSION
“We review the Commissioner’s decision to determine whether his factual
findings are supported by substantial evidence in the record viewed as a whole
and whether he applied the correct legal standards.” Frantz v. Astrue, 509 F.3d
1299, 1300 (10th Cir. 2007) (alteration and quotation omitted). “We consider
whether the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence in disability cases, but we will not reweigh
the evidence or substitute our judgment for the Commissioner’s.” Cowan v.
Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted).
An ALJ’s decision is “evaluated based solely on the reasons stated in the
decision,” without engaging in a “post hoc effort to salvage” it. Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). This court does not “overstep
[its] institutional role and usurp essential functions committed in the first instance
to the administrative process.” Id. at 1084-85 (quotation omitted).
Under the Commissioner’s regulations, an ALJ is required to evaluate every
medical opinion in the record, giving varying weight to each opinion “according
to the relationship between the disability claimant and the medical professional.”
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). “An ALJ must also
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consider a series of specific factors in determining what weight to give any
medical opinion.” Id. 2
A “treating physician’s opinion is given particular weight because of his
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations such
as consultative examinations. . . .” Id. (quotation omitted). If an ALJ rejects a
treating physician’s opinion and relies instead on the opinion of another medical
source, he has a well-defined course to follow. Id. First, he must “articulate
specific, legitimate reasons” for the rejection. Id. (quotation omitted). Second,
he must “explain the weight” accorded the opinion of an examining or
nonexamining physician and “give good reasons in his written decision for the
weight he gave to the treating physician’s opinion.” Id.2
These factors include:
(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 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.
Goatcher v. United States Dep’t. of Health & Human Servs., 52 F.3d 288, 290
(10th Cir. 1995) (citing 20 C.F.R. § 404.1527(d)(2)-(6)).
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The extended pendency of this case resulted in a copious medical record.
In spite of the daunting task facing the ALJ, however, the above standards remain
applicable. Our review indicates that the ALJ’s written decision does not mention
the opinions of examining-physicians Evans and Metcalf or testifying-physician
McCaron. And though the decision summarizes the opinion of treating-physician
Hess (as signed by his physician-assistant), it does not articulate reasons for
discounting the October 6, 2000, statement that Ms. Hunter-Hendrix could lift
only fifteen pounds, which would preclude her from performing light work. In
addition, there are inconsistencies between the opinions of examining physicians
Saidi and Chaudry, concerning Ms. Hunter-Hendrix’s ability to lift or carry, the
length of time she can sit and stand during a work day, her need to change
positions, and the imposition of environmental restrictions. But the ALJ’s
decision does not discuss or explain the weight he assigned to each of these
opinions. He also does not explain why he relied almost completely on the
opinion of reviewing-and-testifying physician Raulston.
We acknowledge that the Commissioner’s appellate brief suggests reasons
for the ALJ’s determination. Our role on judicial review, however, does not
include speculation on how the ALJ weighed the medical-opinion evidence. We
do not provide a post hoc rationale for his conclusion. See Robinson, 366 F.3d at
1084. And the magistrate judge was incorrect in stating, without citation, that
“the mere fact that the ALJ did not explicitly consider what weight to give to each
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of the physicians’ opinions is not error” because “[m]uch of the evidence was in
agreement. . . .” I Aplt. App. at 21 (emphasis added). In an instance in which
“none of the record medical evidence conflict[ed] with the ALJ’s conclusion that
claimant can perform light work,” we decided there was a lesser need for the ALJ
“to reject or weigh evidence unfavorably in order to determine a claimant’s RFC.”
Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (emphasis added). In
light of the discrepancies in medical opinion, however, that principle does not
apply to Ms. Hunter-Hendrix’s case. The ALJ did not follow the correct legal
standards in considering the medical-opinion evidence, so we must reverse and
remand on this issue.
Ms. Hunter-Hendrix also makes two arguments concerning the ALJ’s
treatment of the vocational record. Our direction on the evaluation of the medical
evidence means that these issues may not arise on remand. Accordingly, we
decline to address them.
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It is unfortunate that the decision-making process on Ms. Hunter-Hendrix’s
claim has been so prolonged. Nevertheless, we REVERSE the decision of the
district court and REMAND the case with instructions to remand it to the
Commissioner for further proceedings in accordance with this decision.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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