Angel v. Barnhart

• Decision Date: 30 May 2003
• Docket Number: No. 02-7072.,02-7072.
• Parties: Sarah ANGEL, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1208

329 F.3d 1208

Sarah ANGEL, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 02-7072.

United States Court of Appeals, Tenth Circuit.

May 30, 2003.

Appeal from the United States District Court for the Eastern District of Oklahoma, Paul J. Kelly, Jr., Circuit Judge.

Submitted on the briefs: Kyle J. Saunders of Saunders and Saunders, Ada, OK, for Plaintiff-Appellant.

Sheldon J. Sperling, United States Attorney, Tina M. Waddell, Regional Chief Counsel, Michael McGaughran, Deputy Regional Chief Counsel, and James A. Garrett, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before SEYMOUR, KELLY, and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant Sara Angel appeals from the district court's order affirming the Commissioner's denial of her application for disability insurance benefits and supplemental security income benefits under the Social Security Act.¹ We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir.2000).

Angel claims that she has been disabled for the relevant time period of July 24, 1997, through December 31, 1999² as a result of back and bladder impairments. After Angel's application for benefits was initially denied, a de novo hearing was held before an administrative law judge (ALJ). In a decision dated January 21, 2000, the ALJ determined, at step three of the five-part sequential evaluation process for determining disability, that Angel's back impairment did not meet or equal the impairment listing for vertebrogenic disorders of the spine, listing 1.05C. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C (1999). The ALJ then determined at step four of the evaluation process that Angel was not disabled. First, the ALJ concluded that, while Angel suffers from severe back and bladder impairments, she has the residual functional capacity to perform a wide range of light work subject to the limitations of "lifting no more than 10 pounds on a frequent basis and no more than a maximum of 20 pounds, standing or walking for no more than 2 hours at a time, or for longer than 6 hours during an eight hour day, only occasional stooping, and a need to self catheterize her bladder for 10 [to] 15 minutes every 2 to 2½ hours during the work day."³ Aplt.App. at 37-38. Second, based on the testimony of the vocational expert concerning the residual functional capacity necessary to perform her past relevant work, the ALJ determined that Angel was capable of performing her past relevant work as an insurance clerk, receptionist, accounts payable clerk, senior office assistant, convenience store clerk, and barmaid. Id. at 38.

In February 2001, the Appeals Council denied Angel's request for review of the ALJ's decision. Angel then filed a complaint in the district court. In March 2002, the district court entered an order affirming the ALJ's decision denying Angel's application for benefits. This appeal then followed.

In this appeal, Angel claims that: (1) the ALJ erred at step three in rejecting the opinion of her treating osteopath, Dr. Schneider, that her back impairment meets or equals listing 1.05C; (2) the ALJ erred at step four by failing to address all of the relevant evidence in the record concerning the process she must undergo to catheterize herself; (3) the ALJ erred at step four by failing to provide sufficient reasons for rejecting her testimony and her treating physician's opinions regarding the limitations imposed by her back pain and problems; and (4) she does not have the residual functional capacity to perform her past relevant work.

Having thoroughly reviewed the record and the pertinent legal authorities, we conclude that the ALJ's finding at step three that Angel's back impairment does not meet or equal listing 1.05C is supported by substantial evidence in the record. However, we agree with Angel that the ALJ erred at step four by failing to address all of the relevant evidence in the record concerning the process she must undergo to catheterize herself. We also agree with Angel that the ALJ erred at step four by failing to provide sufficient reasons for rejecting her testimony and her treating physician's opinions regarding the limitations imposed by her back pain and problems. Accordingly, we reverse the order of the district court affirming the ALJ's decision denying benefits, and we remand this matter for further proceedings before the ALJ.⁴

1. Listing 1.05C.

Listing 1.05C provides as follows:

C. Other vertebrogenic disorders (e.g., herniated [disk], spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:

1. Pain, muscle spasm, and significant limitation of motion in the spine; and

2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C (1999).⁵ Although the listing does not define the term "vertebrogenic disorder," another section of the listing regulations, which specifically cross-references § 1.05C, states that it includes disorders that result in impairment "because of distortion of the bony and ligamentous architecture of the spine or impingement of a herniated [disk] or bulging annulus on a nerve root." Id. at § 1.00B.

Angel's treating osteopath, Dr. Schneider, testified at the hearing before the ALJ that Angel met or equaled listing 1.05C. According to Dr. Schneider, "[Angel] actually meets number one. Number two on that, the bladder dysfunction and her lack of tenacity or lack of reflex there, I think she meets it or equals that criteria." Aplt.App. at 68. As this quote makes clear, Dr. Schneider only addressed the two sub-parts of listing 1.05C, and she did not specifically address the threshold issue under the listing of whether Angel suffered from a vertebrogenic disorder of the spine during the relevant time period of July 24, 1997 through December 31, 1999. Further, there is no evidence in the record that Angel suffered from a vertebrogenic disorder of the spine during the relevant time period.

The record shows that Angel injured her back in a work-related incident in October 1994, and she underwent a right hemilaminectomy and disk excision in May 1995 to repair a herniated disk at L5-S1. Id. at 154-56, 158-59. An MRI subsequently taken in February 1997 showed no definite evidence of any recurrent disk herniation at L5-S1. Id. at 202. Although the February 1997 MRI did show disk degeneration at L5-S1 and a mild bulging of the disc at L4-5, an electromyogram (EMG) performed at the same time showed no definite evidence of active lumbar radiculopathy in Angel's lower extremities. Id. at 201. Based on the EMG results, Dr. Benner, Angel's neurosurgeon, reported to her at the time that there were "no signs of any nerve root damage or irritation" in the area of her prior surgery. Id. at 177.

During her testimony at the hearing before the ALJ in November 1999, Dr. Schneider testified that it was her belief that Angel "probably" had a "new" herniated disk at L4-L5. Id. at 64. Dr. Schneider admitted, however, that she did not have any objective medical evidence to support her testimony. Id. at 72. In fact, an MRI taken in December 1998 showed no evidence of a herniated disk at L4-L5 or elsewhere on Angel's lumbar spine.⁶ Id. at 208. On January 25, 2000, a little over a month after the hearing before the ALJ, Dr. Schneider referred Angel for another MRI, and that MRI also showed no evidence of a herniated disk in Angel's lumbar spine.⁷ Id. at 387.

In her brief on appeal, Angel has admitted that her back problems do not satisfy listing 1.05C standing alone. See Aplt. Br. at 14. To overcome this failure of proof, Angel argues that the ALJ erred by failing to consider her bladder problem in combination with her back problems in determining whether she met or equaled listing 1.05C. Id. at 14-15. We disagree. At most, Angel has only shown that her urologist, Dr. Forrest, has opined that her bladder problem "most likely arises from old spinal cord disease," Aplt.App. at 385, and that the bladder problem "is more than likely associated with nerve changes present within the spinal cord causing the resulting hypotonicity of the bladder," id. at 390.⁸ Angel has failed, however, to put forth any specific medical evidence linking her bladder problem to a vertebrogenic disorder of the spine such as the herniated disk she sustained in October 1994. Id. at 177 (medical record of Dr. Benner noting that he did not "have an explanation for [Angel's] increased bladder problems, at least not in the context of [her 1995] back surgery)", 385 (medical record of Dr. Forrest noting that Angel was diagnosed as having a neurogenic bladder in late 1993 or early 1994, and that he could not "speak to the point of any changes in her bladder function before or after [the 1995] spinal cord surgery, as these are not objectively documented"). Thus, we hold that the ALJ's determination that Angel does not meet or equal listing 1.05C is supported by substantial evidence in the record.

2. Bladder Impairment.

In performing his step four analysis, the ALJ ignored and failed to address Dr. Schneider's testimony at the hearing, which is supported by her medical records, that Angel needs a sterile environment in which to catheterize herself due to the risk of infection. See Aplt.App. at 65, 218, 344. This omission is significant because, following Dr. Schneider's testimony, the vocational expert (VE) testified, in response to a hypothetical question posed by Angel's counsel, that the requirement of providing Angel with...