Frey v. Bowen

• Decision Date: 10 April 1987
• Docket Number: No. 84-2530,84-2530
• Parties: , Unempl.Ins.Rep. CCH 17,267 George W. FREY, Plaintiff-Appellant, v. Otis BOWEN, Secretary of the Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 508

816 F.2d 508

17 Soc.Sec.Rep.Ser. 417, Unempl.Ins.Rep. CCH 17,267

George W. FREY, Plaintiff-Appellant, v. Otis BOWEN, Secretary of the Department of Health and Human

Services, Defendant-Appellee.

No. 84-2530.

United States Court of Appeals, Tenth Circuit.

April 10, 1987.

Michael E. Bulson, Utah Legal Services (Stephen W. Farr of Farr, Kaufman & Hamilton, on the briefs), Ogden, Utah, for plaintiff-appellant.

Deana Rosemarie Ertl-Brackett (Brent D. Ward, U.S. Atty., and Gregory C. Diamond, Asst. U.S. Atty., on the brief), Salt Lake City, Utah, for defendant-appellee.

Before LOGAN, TIMBERS ^*, and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal by George W. Frey from an order of the district court affirming the decision of the Secretary of Health and Human Services, denying his application for social security disability benefits.

Frey first applied for social security disability benefits July 29, 1980, claiming disability as a result of degenerative arthritis and disc problems causing severe and chronic pain in his back and neck, degenerative arthritis causing permanent disability and pain in his right elbow and hand, and a fall and subsequent surgery, aggravated by degenerative arthritis, causing permanent disability and pain in his right knee.

Frey was born in 1930 and has a twelfth-grade education. During the fifteen years before 1980, he worked in truck and automobile sales and repair, and in maintenance and customer service in the home construction industry. He has not worked since February 1980. Evidence from two treating doctors supported Frey's claim for disability benefits. Frey has approximately twenty-seven percent permanent disability in his right knee and right elbow, as rated by the state workers' compensation board.

When Frey's application for disability benefits was initially denied, a hearing was held at his request before an administrative law judge (ALJ), who determined that Frey had severe disabilities preventing him from engaging in his previous work. The ALJ determined, however, that Frey retained the residual functional capacity to perform sedentary work and therefore was not disabled. A second hearing before another ALJ followed after the Appeals Council remanded for further development of the record. The Appeals Council remanded with specific directions that the ALJ obtain an additional consultative physician's report to determine Frey's residual functional capacity, and vocational expert testimony to determine whether Frey's previously acquired employment skills would be readily transferable to a significant range of skilled or semiskilled work within his residual functional capacity. The Appeals Council also directed that the ALJ make specific findings about the credibility of Frey's allegations of pain, taking into account his use of medication, daily activities, pertinent medical findings and opinions, and the ALJ's own observations of Frey.

Rejecting the testimony and reports of Frey's treating physicians in favor of the report of the Secretary's consultant physician, and relying on the testimony of a vocational expert, the ALJ again determined that Frey was not disabled. The Appeals Council adopted the recommended decision. The district court affirmed and later, at the direction of this court, entered a memorandum opinion and judgment setting forth specifically those facts developed in the administrative record that it deemed supportive of the agency decision. The present appeal followed.

The district court judge made extensive and careful findings of fact, twenty-three in all, with which we find ourselves largely in agreement. However, these facts do not constitute substantial evidence from which the ALJ could properly conclude under the law and regulations that Frey was not disabled. In reviewing this decision it is accepted doctrine that the ALJ's determination of disability will be affirmed if it is supported by substantial evidence, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir.1985) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).

"This oft-cited language is not a talismanic formula for adjudication; the determination is not merely a quantitative exercise. Evidence is not substantial 'if it is overwhelmed by other evidence--particularly certain types of evidence (e.g., that offered by treating physicians) or if it really constitutes not evidence but mere conclusion.' "

Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983)).

Failure to apply the correct legal standard is also grounds for reversal. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984). There are specific rules of law that must be followed in deciding whether evidence is substantial in these disability cases. The failure of the ALJ and the Appeals Council to follow certain of these rules in this case is reversible error.

The ALJ found that Frey was capable of performing a full range of sedentary work and therefore conclusively applied the Secretary's Medical-Vocational Guidelines ("the grids") to determine that Frey was not disabled. On appeal, Frey asserts that the ALJ erred in applying the grids at all, because the initial determination that Frey was able to perform a full range of sedentary work existing in the national economy was erroneous. Frey contends that determination was erroneous because the ALJ failed to apply the correct legal standard with respect to (1) the weight to be accorded treating physician testimony, and (2) the assessment of Frey's complaints of pain. Frey also asserts that, even if the grids were applicable, the testimony of the vocational expert failed to establish that Frey's skills were transferable. Because we agree with all of these contentions, we reverse.

I

The claimant bears the burden of proving a disability within the meaning of the Social Security Act. 42 U.S.C. Sec. 423(d)(5). However, once a showing is made of disability preventing the claimant from engaging in prior work activity, the burden shifts to the Secretary to show "that the claimant retains the capacity to perform an alternative work activity and that this specific type of job exists in the national economy." Channel v. Heckler, 747 F.2d 577, 579 (10th Cir.1984). If the Secretary does not meet this burden, the claimant is disabled for purposes of award of disability benefits.

In many cases the Secretary can meet this burden by relying on the Medical Vocational Guidelines, "the grids," 20 C.F.R. Sec. 404, Subpt. P, App. 2. The grids consider a claimant's residual functional capacity (RFC) to perform work (e.g., sedentary, light, medium or heavy) in relation to age, education, and work experience. A series of rules then set forth presumptions of disability or no disability, depending upon whether there are significant numbers of jobs in the national economy that a claimant with that particular configuration of characteristics can perform. 20 C.F.R. Sec. 404, Subpt. P, App. 2 Sec. 200.00(a); Channel, 747 F.2d at 578-79. When the claimant's individual characteristics as found by the ALJ coincide with one of the specific rules, that rule "directs a conclusion as to whether the individual is or is not disabled." Id.

Under the Secretary's own regulations, however, "the grids may not be applied conclusively in a given case unless the claimant's characteristics precisely match the criteria of a particular rule." Teter v. Heckler, 775 F.2d 1104, 1105 (10th Cir.1985) (quoting Turner, 754 F.2d at 328; Channel, 747 F.2d at 579). To be placed at a particular level of residual functional capacity, "a claimant must be able to perform the full range of such work on a daily basis." Channel, 747 F.2d at 579 (emphasis in original). Moreover, since the grids take into account only exertional or strength impairments, they "cannot be used when a nonexertional impairment, such as pain, limits a claimant's ability to perform the full range of work in a particular RFC." Teter, 775 F.2d at 1105; 20 C.F.R. Sec. 404, Subpt. P, App. 2 Sec. 200.00(e). Limitations in such things as pushing, pulling, gripping, and bending may pose both nonexertional (manipulative, postural) and exertional (strength) limitations. Channel, 747 F.2d at 580 n. 5.

When an individual suffers from both exertional and nonexertional impairments, the Secretary's regulations mandate that the grids be applied first, to determine whether the claimant is disabled by reason of the exertional impairments alone. 20 C.F.R. Sec. 404, Subpt. P, App. 2, Sec. 200.00(e)(2). If the claimant is not so disabled, the ALJ must then make a second individualized determination using the grids only as "a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations." Id.; Teter, 775 F.2d at 1105.

In this case, the ALJ turned to the grids based on a finding that Frey retained the residual functional capacity to perform a full range of sedentary work. To make this finding and conclusively apply the grids to determine that Frey was not disabled, the ALJ specifically rejected the testimony and reports of Frey's treating physicians and Frey's own testimony as to limitations on his ability to perform a full range of sedentary work and his disabling pain. It is this finding, based on rejection of treating physician testimony and Frey's complaints of pain, that Frey challenges as legal error.

A

The ALJ first rejected treating physician testimony in favor of consultant physician testimony, stating that

"[t]he claimant's credibility as to the degree of his discomfort was questioned by a board certified orthopedic surgeon [the Secretary's consultant physician, Dr. Gabbert]. This opinion was challenged by family specialist Dr....