Winfrey v. Chater, 95-7139

Citation92 F.3d 1017
Decision Date07 August 1996
Docket NumberNo. 95-7139,95-7139
PartiesA, Unempl.Ins.Rep. (CCH) P 15515B William T. WINFREY, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, * Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Davis Duty, Fort Smith, Arkansas, for Plaintiff-Appellant.

John W. Raley, Jr., United States Attorney, Joseph B. Liken, Acting Chief Counsel, Tina M. Waddell, Acting Deputy Chief Counsel, Anthony D. Randall, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Dallas, Texas, for Defendant-Appellee.

Before EBEL, BARRETT, and HENRY, Circuit Judges.

BARRETT, Senior Circuit Judge.

Plaintiff appeals the district court's affirmance of the Secretary's decision denying him disability insurance benefits. 1 Plaintiff claims to have been disabled since April 1991 as a result of pain in his neck, shoulder, upper and lower back, and right leg, headaches, a catch in the middle finger of his left hand, tingling in his right hand, asthma, liver problems, hypoglycemia, hiatal hernia, depression, general anxiety disorder, and somatoform disorder. After conducting two hearings and a de novo review of the record, the administrative law judge (ALJ) determined that plaintiff could return to his past relevant work as a truck driver, as that work is generally performed in the national economy. When the Appeals Council denied review, the ALJ's decision became the final decision of the Secretary.

"We review the Secretary's decision to determine whether it is supported by substantial evidence and whether the Secretary applied the correct legal standards." Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). We must examine the record closely to determine whether substantial evidence supports the Secretary's determination. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)(quotation omitted). In addition to a lack of substantial evidence, the Secretary's failure to apply the correct legal standards, or to show us that she has done so, are also grounds for reversal. Washington, 37 F.3d at 1439.

I. Background

Plaintiff, who was sixty years old at the time the ALJ issued the present decision, worked as a truck driver for Roadway Express for twenty-one years. Plaintiff's job required him not only to drive a truck, but to load and unload cargo. His testimony reflected that he performed the job at an exertional level between medium and heavy. In 1988, plaintiff suffered a work-related injury to his neck and shoulder, for which he received worker's compensation. As a result of alleged increasing difficulty in performing his job, plaintiff quit in April 1991. In a decision issued August 1992, the ALJ determined that plaintiff could perform a full range of medium work, but that, in light of his treating physician's opinion that "the claimant's loading of trucks and pulling down and latching doors may represent a difficulty for the claimant given his limitations," Tr. at 241, plaintiff could not perform his past relevant work. The ALJ, therefore, proceeded to step five of the sequential analysis, see 20 C.F.R. § 404.1520 (setting forth the five steps), where he concluded that plaintiff was not disabled based on the grids.

The Appeals Council reversed the ALJ's decision and remanded the action to obtain further evidence concerning plaintiff's physical and mental limitations and to reevaluate the evidence under proper legal principles. On remand, the ALJ found that plaintiff had the physical ability to perform a full range of medium work, but that he had nonexertional limitations resulting from his mental impairments. The ALJ concluded that, despite these limitations, plaintiff could return to his past work as a truck driver--as distinguished from his past work as a loader and unloader--as that work is generally performed in the national economy. See Social Security Ruling (SSR) 82-61, Soc. Sec. Rep. Serv., Rulings 1975-1982, 836, 838 (West 1983); Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1050-51 (10th Cir.1993)(holding that "past relevant work" includes not only claimant's particular former job, but also claimant's former occupation as it is generally performed in the national economy).

Plaintiff alleges five categories of error in the Secretary's decision: improper evaluation of plaintiff's subjective complaints; improper evaluation of plaintiff's mental impairments; improper evaluation of plaintiff's residual functional capacity; improper evaluation of plaintiff's ability to return to his past relevant work; and improper application of the vocational expert's testimony. We will address each in turn.

II. Evaluation of Subjective Complaints

"A claimant's subjective allegation of pain is not sufficient in itself to establish disability. Before the ALJ need even consider any subjective evidence of pain, the claimant must first prove by objective medical evidence the existence of a pain-producing impairment that could reasonably be expected to produce the alleged disabling pain." Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.1993) (citations omitted). Plaintiff met this initial burden here. X-rays of plaintiff's cervical spine taken in 1991 showed marked degenerative changes, and x-rays of his left shoulder showed degenerative changes and a narrowing of the AC joint. A CAT scan of plaintiff's cervical spine in the fall of 1991 revealed "extensive osteoarthritis changes of the facet joints without evidence of [a] ruptured disk," Tr. at 206, and x-rays of plaintiff's lumbosacral spine showed "moderate lipping of osteoarthritis," but "no degenerative changes," id. at 213. The ALJ was then required to consider all the relevant objective and subjective evidence and "decide whether he believe[d] the claimant's assertions of severe pain," Luna v. Bowen, 834 F.2d 161, 163 (10th Cir.1987). The ALJ found that plaintiff's subjective complaints of pain were not credible to the extent they suggested he could not perform a full range of medium work.

"Findings as to credibility should be closely and affirmatively linked to substantial evidence...." Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.1988). "Credibility determinations are peculiarly the province of the finder of fact, [however,] and we will not upset such determinations when supported by substantial evidence." Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir.1990).

Here, some of the reasons advanced by the ALJ for finding plaintiff's subjective complaints of pain incredible were not supported by substantial evidence. The most notable of these was the ALJ's determination that plaintiff had an incentive not to work. This finding was based entirely on the ALJ's speculation that the terms of plaintiff's pension might prohibit plaintiff from working. Conversely, the ALJ also failed to consider relevant factors that were supported by the record. The most notable of these was "the possibility that psychological disorders combine with physical problems," Luna, 834 F.2d at 166. Dr. Spray, a clinical psychologist, diagnosed plaintiff with somatoform disorder, not otherwise specified. He found that plaintiff manifested an "[u]nrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury." Tr. at 266. Dr. Spray also noted that plaintiff was "extremely somatically preoccupied," id. at 308, and that, even if plaintiff were given only simple job instructions, he would be "likely to complain about somatic concerns," id. at 310. The ALJ, however, did not treat plaintiff's somatic preoccupation as a manifestation of his mental impairment or consider how that impairment, along with plaintiff's depression and anxiety disorder, affected his perception of pain. Instead, the ALJ discounted plaintiff's credibility based on his determination that "claimant is bored and whiny and has [an] incentive not to work and to complain about problems." Id. at 37. Thus, the ALJ's evaluation of plaintiff's subjective complaints was flawed by his reliance on factors that were not supported by the record and by his failure to consider other factors that were supported by the record.

III. Evaluation of Mental Impairments

Dr. Spray first examined plaintiff in October 1992, at which time he performed a mental status exam and administered several tests, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Dr. Spray detailed his findings in a report and completed a Psychiatric Review Technique (PRT) form. Dr. Spray diagnosed plaintiff with the following conditions: (1) somatoform disorder, not otherwise specified, (2) dysthymia, (3) history of alcohol abuse, and (4) personality disorder, not otherwise specified, with dependent and antisocial features.

In May 1993, plaintiff was examined by Dr. Dean, a psychiatrist, at the Secretary's request. Dr. Dean concluded that plaintiff suffered from a generalized anxiety disorder and major depression. In response to an inquiry from plaintiff's attorney as to the presence of a somatoform disorder, Dr. Dean wrote that he "was unable to adequately assess the presence or absence of objective findings which would either corroborate or eliminate the presence of a somatoform disorder," because he was not given complete data on plaintiff's medical care and he neither obtained a complete medical history from plaintiff nor conducted his own physical examination of plaintiff. Tr. at 314.

In connection with his examination of plaintiff, Dr. Dean completed a Medical Assessment of Ability to Do Work-Related Activities form, on which he indicated that plaintiff's abilities in seven areas were only "fair" 2 and his abilities in eight areas were "good". 3 Dr. Dean noted that "chronic anxiety...

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