Thompson v. Sullivan, 92-7090

Citation987 F.2d 1482
Decision Date03 March 1993
Docket NumberNo. 92-7090,92-7090
PartiesLinda S. THOMPSON, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Paul F. McTighe, Jr., Tulsa, OK, for plaintiff-appellant.

John W. Raley, Jr., U.S. Atty., E.D. of Oklahoma, Gayla Fuller, Chief Counsel, Region VI, and Rodney A. Johnson, Asst. Regional Counsel, Office of the Gen. Counsel, U.S. Dept. of H.H.S., Dallas, TX, for defendant-appellee.

Before ANDERSON and EBEL, Circuit Judges, and BRIMMER, * District Judge.

EBEL, Circuit Judge.

Claimant Linda S. Thompson alleges a disability due to back problems and pain. She applied for disability benefits and supplemental security income benefits on January 20, 1990, alleging a disability beginning on December 12, 1989. Her application was denied initially by the Social Security Administration and on review before both an administrative law judge (ALJ) and the Appeals Council of the Social Security Administration. Ms. Thompson then sought review in federal district court, where the administrative actions were upheld by the district judge based on a magistrate judge's recommendation. Ms. Thompson appeals from the district court's adverse ruling. We exercise jurisdiction under 42 U.S.C. § 405(g) and reverse and remand for further proceedings. 1

Ms. Thompson was forty-two years old at the time of her application, with a history of back problems going back to 1981 or 1982. She has an eighth grade education and work experience in such jobs as patient care and wood hauling. Her benefits hearing before the ALJ lasted only ten minutes. She was represented by an attorney, who interviewed her. (Ms. Thompson is represented by a different attorney on appeal.) The ALJ did not ask any questions. There were no other witnesses. Ms. Thompson's medical records from three treating physicians were on file. The ALJ made his decision on the record before him at the time of the benefits hearing. He did not order a consultative examination or call a vocational expert to evaluate the impact of Ms. Thompson's impairments on her ability to work.

At the hearing, Ms. Thompson's attorney asked her somewhat superficial questions about the nature of her back problem and pain, her medical treatment and medication, and the impact of her pain on her daily activities. See generally Transcript, R. Vol. I, 21-29. He elicited testimony from her that her most recent treating physician, Dr. Nardone, suspected facet syndrome as the proper diagnosis of her back problem. Id. at 24. She said that Dr. Nardone gave her prescription medication, which she took for awhile but did not continue because she could not afford it. Id. at 24-25. She said she takes several Ibuprofen per day for pain, even though it is ineffective. Id. at 25. She said she stopped seeing Dr. Nardone because she cannot afford treatment. Id. at 22. She said she is unable to drive, do housework or shopping, or stand, walk, or sit for any length of time because of back and leg pain. Id. at 25-28. She said she could not sit for even two hours out of an eight-hour day. Id. at 27.

As previously mentioned, the ALJ asked no questions. In general, the questions and answers were superficial and cursory. It appears that Ms. Thompson's attorney cut off a couple of her answers. Id. at 22-23. There was no testimony explaining, nor does it appear in the medical evidence, what facet syndrome is. See id. at 21-29, 102-10. In addition, Ms. Thompson's attorney did not ask her what precipitated her claim for benefits in 1989, what effect her back problem by itself had on her daily activities, whether the prescription medication she had taken but could not afford to continue was effective against her pain, whether the prescription medication allowed her to work, whether that medication had any adverse side effects, or what other measures, if any, she took to combat her pain. Id. at 21-29.

After the hearing, the ALJ determined that Ms. Thompson's allegations of disabling pain were not credible but that she suffered some pain. The ALJ also found, without any evidence, that even though Ms. Thompson had established that she was unable to return to her past relevant work, all of which required at least medium exertion, she retained the residual functional capacity (RFC) to do sedentary work. The ALJ then found, without vocational testimony and disregarding Ms. Thompson's back problems and pain, that Ms. Thompson could do the full range of sedentary work. Finally, the ALJ found, disregarding his finding that Ms. Thompson suffered pain, that based on her RFC category, age, work experience, and education, she was not disabled under the "grids," that is, the medical-vocational guidelines, 20 C.F.R., Pt. 404, Subpt. P, App. 2, Rule 201.24. Decision of Administrative Law Judge, R. Vol. I at 10-11.

Ms. Thompson asserts four points of error: (1) the ALJ failed in his duty to develop the record because the ten-minute hearing was too brief and because the ALJ did not ask Ms. Thompson any questions about her back problems and pain; (2) the ALJ should have ordered a consultative examination and called a vocational expert; (3) the ALJ improperly relied on the grids for the ultimate conclusion of nondisability because Ms. Thompson's pain, a nonexertional impairment, precluded conclusive reliance on the grids; and (4) the ALJ's finding that the Secretary carried his burden on step five to show that Ms. Thompson retains the RFC to perform the full range of sedentary work and most sedentary jobs, is not supported by substantial evidence. We agree.

I

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. 42 U.S.C. § 423(d)(1)(A). The Secretary has established a five-part sequential evaluation process for determining disability. See 20 C.F.R. §§ 404.1520(a)-(f), 416.920; Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (discussing the five steps in detail). If at any step in the process the Secretary determines that the claimant is disabled or is not disabled, the evaluation ends. Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (citing Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir.1988); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir.1987); 20 C.F.R. § 416.920).

The first four steps are not at issue here--the ALJ determined that Ms. Thompson's claim was still under evaluation after step four of the five-part sequential evaluation process. That is, Ms. Thompson established that she was not currently engaged in substantial gainful activity, see 20 C.F.R. § 404.1520(b) (step 1), that she has a severe impairment, i.e., back trouble, see id. § 404.1520(c) (step 2), and that she cannot return to her past relevant work, see id. § 404.1520(e) (step 4), even though she is not conclusively disabled by the nature of her impairment, see id. § 404.1520(d) (step 3). The ALJ therefore proceeded to step five of the five-part sequential evaluation process.

The ALJ denied benefits at step five. On step five, after the claimant has established at step four that he or she cannot return to his or her past relevant work, the burden shifts to the Secretary to show that the claimant retains the residual functional capacity (RFC) to do other work that exists in the national economy. See Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir.1991) (citing Channel v. Heckler, 747 F.2d 577, 579 (10th Cir.1984)); see also 42 U.S.C. § 423(d)(2)(A). "The Secretary meets this burden if the decision is supported by substantial evidence," Gossett, 862 F.2d at 804 (citing Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987)), and, therefore, the ALJ's decision is reviewed for substantial evidence. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938))). The appeals court neither reweighs the evidence nor substitutes its judgment for that of the agency. Hargis, 945 F.2d at 1486; Casias, 933 F.2d at 800 (citing Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir.1987)). On the other hand, if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence. Casias, 933 F.2d at 801.

II

How the ALJ should proceed on step five to make the ultimate determination that the claimant is disabled or not depends on whether the claimant alleges an exertional impairment (strength-related), or a nonexertional impairment (pain or mental problems), or both. Ms. Thompson established an exertional impairment, her back trouble, and alleges a nonexertional impairment, pain.

The grids contain tables of rules which direct a determination of disabled or not disabled on the basis of a claimant's RFC category, age, education, and work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. "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.' " Frey v. Bowen, 816 F.2d 508, 512 (10th Cir.1987) (quoting Teter v. Heckler, 775 F.2d 1104, 1105 (10th Cir.1985) (other citations omitted)). A mismatch may occur because of a particular exertional or nonexertional impairment, or a particular combination of impairments. See generally Soc.Sec.Rul. 83-12.

RFC, "residual functional capacity," is defined by the regulations as what the claimant can still do despite his or her...

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