Disability Law Blog

Victory v. Barnhart, No. 03-7129 (11th Cir. Feb. 4, 2005) Unpublished

In an unpublished decision which reverses and remands for further proceedings a step 4 denial of disability benefits, Circuit Judge William J. Holloway discusses at length the proper understanding and application of the treating physician rule and the ALJ's duty to articulate specific, legitimate reasons for the weight given to medical opinions. The Court also specifically addressed a common rationale used by ALJs to discount treating physician opinions -- the finding that the opinion was based on "the claimant's subjective complaints."

The ALJ's finding that Dr. Covington's opinion was based on claimant's own subjective report of her symptoms impermissibly rests on his speculative, unsupported assumption. See Langley , 373 F.3d at 1121 (holding that ALJ may not reject a treating physician's opinion based on speculation). We find no support in the record for the ALJ's conclusion. Nothing in Dr. Covington's report indicates that he based his opinion on claimant's subjective complaints, and the ALJ's finding ignores all of Dr. Covington's examinations, medical tests, and reports. Indeed, the ALJ's discussion of Dr. Covington omits entirely his March 22, 2001 examination and report.

One hopes Ms. Victory's attorney will consider requesting publication of this decision. It lays out the law clearly and applies it correctly.

Hackett v. Barnhart, No. 04-1047, __ F.3d __ (10th Cir. Jan. 24, 2005)

The Tenth Circuit, in an opinion by Circuit Judge Harris L. Hartz, affirms most of the ALJ's decision but reluctantly reverses and remands for further proceedings with regard to a conflict between the VE's testimony and the DOT:

We therefore must reverse this portion of the ALJ's decision and remand to allow the ALJ to address the apparent conflict between Plaintiff's inability to perform more than simple and repetitive tasks and the level-three reasoning required by the jobs identified as appropriate for her by the VE. To reverse and remand on this ground almost four years after the hearing before the ALJ is unfortunate. Plaintiff was represented by counsel at the hearing; and had this conflict been raised at that time, the ALJ could have responded by explaining or changing his ruling. Indeed, there is nothing in the record before us to indicate that the conflict was raised until the district court proceeding that commenced two years after the ALJ hearing. The Supreme Court has ruled, however, that a plaintiff challenging a denial of disability benefits under 42 U.S.C.  405(g) need not preserve issues in the proceedings before the Commissioner or her delegates. See Sims v. Apfel, 530 U.S. 103 (2000).

The Court found that the ALJ correctly determined the claimant's RFC and that the ALJ's credibility finding was supported by substantial evidence. The Court also concluded that a Colorado worker's compensation award of permanent and total disability was adequately considered by the Appeals Council.

Chambers v. Barnhart, No. 02-5163 (10th Cir. Nov. 23, 2004)

The Tenth Circuit, in an interesting opinion by Circuit Judge Terrence L. O'Brien, affirms a denial of Title II and Title XVI benefits at step 4 of the SEP. The sole issue, as formulated by the Court, was "whether the Appeals Council erred in failing to consider evidence first submitted on her administrative appeal pursuant to 20 C.F.R. §§ 404.970 (b), 416.1470(b)." Since the claimant alleged disability primarily due to hip and leg pain, and since the new evidence related to lung problems, the new evidence had no bearing on the claimant's disability prior to the date of the ALJ's hearing decision, and the evidence was properly disregarded.

The opinion is significant in at least two respects: First, the Court summarizes the guiding principles it has developed in a series of unpublished decisions following O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994), the first case in which the Court considered the question of the status of evidence submitted to the Appeals Council. Second, the decision contains a very important reminder that the District Court (or, in this case, the Magistrate Judge) must defer to the agency to make factual determinations:

[I]t is important to disclaim reliance on an alternative rationale invoked by the judge for upholding the denial of benefits. Specifically, the judge held that even if some of the new evidence in question qualified under the regulations and, thus, should have been considered by the Appeals Council, the denial of benefits could be affirmed under O’Dell despite the Appeals Council’s omission, because “there would still be substantial evidence supporting the ALJ’s determination.” App. Vol. II, at 236.

This holding misreads O’Dell and invades the administrative province of the Appeals Council, which has the responsibility to determine in the first instance whether, following submission of additional, qualifying evidence, the ALJ’s decision “is contrary to the weight of the evidence currently of record.” 20 C.F.R. §§ 404.970(b), 416.1470(b). See generally Parris v. Heckler, 733 F.2d 324, 326 (4th Cir. 1984) (discussing Appeals Council’s broad authority over and ultimate responsibility for factual determinations in matters involving new evidence under § 404.970(b)). Only after the Appeals Council makes this determination do the courts properly review the denial of benefits–if that was the Appeals Council’s decision–on the entire record under the deferential substantial-evidence standard. That is in fact what happened in O’Dell.

In a footnote, the Court continues the theme: "The magistrate judge’s approach would arrogate to the courts the power to deprive a claimant of this potential administrative benefit through a form of preemptive judicial review. We know of no authority for such power."

Saiz v. Barnhart, No. 03-2168 (10th Cir. May 19, 2004) (Motion to Publish Granted Nov. 15, 2004)

The Tenth Circuit has granted appellant's motion to publish its decision, finding "the appellee's response to be both untimely and unpersuasive."

In its per curiam decision, the Court held that a significant nonexertional limitation--in this case, the claimant's inability to reach--precluded the use of the grids to deny the claim. The ALJ found that the claimant was limited to sedentary work but rejected his contention that pain further restricted his RFC. However, the ALJ had acknowledged that claimant's reaching was restricted but in his dispositive findings "this limitation is completely ignored without any explanation."

The presence of this particular limitation, specifically in connection with a sedentary RFC, is not a technical or formalistic point. A sedentary RFC already “represents a significantly restricted range of work.” Social Security Ruling (SSR) 96-9p, 1996 WL 374185, at *3. Thus, the Commissioner’s guidelines not only exclude the grids if there is “more than a slight impact on the individual’s ability to perform the full range of sedentary work,” they affirmatively recognize that “a finding of ‘disabled’ usually applies when the full range of sedentary work is significantly eroded.” Id. at *3, *5. Hence, it is especially significant that reaching is “required in almost all jobs” and that a limitation in this regard “may eliminate a large number of occupations a person could otherwise do.” SSR (Program Policy Statement) 85-15, 1985 WL 56857, at *7; see Butler v. Barnhart, 353 F.3d 992, 1000-01 (D.C. Cir. 2004) (citing SSR 85-15 for significance of reaching limitation in sedentary context and reversing ALJ decision that failed to properly account for evidence of such limitation).

The case is reversed and remanded.

Branum v. Barnhart, No. 03-7105, __ F.3d __ (10th Cir. Aug. 5, 2004)

The Tenth Circuit, in an opinion by Senior Circuit Judge John C. Porfilio, affirmed a denial of SSI benefits. The Court found that the ALJ properly developed the medical record, properly analyzed the claimant's alleged mental impairment in determining that it was non-severe, properly assessed the claimant's credibility where the claimant only took ibuprofen for back pain, and properly discounted the treating physcian's opinion where the treating relationship was limited to two visits and the doctor was not an orthopedic specialist.

Note:  This case was originally decided on August 5, 2004 and issued as an unpublished opinion. On September 27, 2004, the Court granted the Commissioner's Motion to Publish.

Howard v. Barnhart, No. 03-7094, __ F.3d __ (10th Cir. July 29, 2004)

The Tenth Circuit, in an opinion by Judge Paul J. Kelly, Jr., provides an object lesson in harmless error analysis. Which is to say, if the ALJ's errors don't appear to change the outcome, you lose:

We agree that the lack of analysis accompanying the ALJ's RFC determination is troubling; we have urged ALJs to include reasoning in their decisions to make appellate review not only possible but meaningful. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). However, our careful review of the record on appeal in light of the deferential appellate standard leads us to conclude that substantial evidence in the record supports the ALJ's RFC determination in this particular case.

The Court also provides a reminder about the burden of proof at step 5 of the SEP:

We disagree with claimant's implicit argument that the agency, not the claimant, has the burden to provide evidence of claimant's functional limitations. As a recent Social Security final rule makes clear, the agency's burden at step five does not include the burden to provide medical evidence in support of an RFC assessment, unless the ALJ's duty to further develop the record is triggered. 68 F.R. 51153, 51155 (2003); cf. Hawkins v. Chater, 113 F.3d 1162 (10th Cir. 1997) (discussing development of the record).

Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004)

An interesting decision authored by Judge Carlos F. Lucero in which the ALJ erroneously applied the grids at Step 5 without discussing VE testimony which might have been enough to deny the claim. This is another in a series of disability cases which refuse to coutenance post-hoc rationalizations offered by agency counsel. Thus, the lead paragraph states:

Affirming this post hoc effort to salvage the ALJ’s decision would require us to overstep our institutional role and usurp essential functions committed in the first instance to the administrative process. Because the ALJ’s decision cannot stand on its own erroneous rationale, we reverse and remand the case for further proceedings before the agency.

The Court also discussed the harmless error defense and said:

. . . to the extent a harmless-error determination rests on legal or evidentiary matters not considered by the ALJ, it risks violating the general rule against post hoc justification of administrative action recognized in SEC v. Chenery Corp., 318 U.S. 80 (1943) and its progeny.

The Court nevertheless considered application of harmless error principles to the case but concluded that "[a]ny attempt to save the decision, by finding that the one job Allen concededly can do constitutes significant work, usurps the ALJ’s primary responsibility to determine that question in light of the various case-specific considerations outlined in Trimiar [Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992)]."

20 Questions for 10th Circuit Chief Judge Deanell Reece Tacha

Over at How Appealing, Chief Judge Deanell Reece Tacha answers Howard Bashman's "20 Questions for the Appellate Judge." Good reading with an important section on pronunciation:

"I have been asked often about the derivation and pronunciation of my last name. Tacha is my married name. My husband's family is Czech and the surname is of Czech derivation. We are told that the name originally in Bohemia was spelled "Ptacha." At some point during their immigration to America, the family dropped the "p" but kept the "c." The "c" is silent so Tacha is pronounced "Ta-ha." I have wished many times that they had dropped the "c" out of it as well. It would have made pronunciation much easier.

My maiden name is Reece – a good Welsh name which is much easier to pronounce! My first name also confounds many people. Rather than being a misinformed corruption of the French "Danielle," it is a very Americanized combination of my two grandmothers' names: "Dean" and "Nell"!"

A short bio is here.

Threet v. Barnhart, 353 F.3d 1185 (10th Cir. 2003)

New decision from the Tenth Circuit authored by Judge Stephanie K. Seymour which addresses the ALJ's duty of explanation. Judge Seymour wrote:

" . . . [W]hile [the ALJ] is not required to discuss every piece of evidence in the record, he "must discuss the uncontroverted evidence he chooses not to rely on, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). Without the benefit of the ALJ's findings supported by the weighing of this relevant evidence, we cannot determine whether his conclusion that Ms. Threet's disability began on March 11, 1997, is itself supported by substantial evidence. We therefore remand for the ALJ to articulate specific findings and his reasons for ignoring this evidence."

The Court, unfortunately, did not discuss this duty as described in SSR 96-7p, for example, but instead relied on its own common law to conclude that remand was necessary. Still, a good reminder for adjudicators that substantial evidence cannot support a decision in the absence of a reasoned explanation for its conclusions.

Also, dictum discusses (1) proper analysis of medical improvement in the context of a closed period of disability and (2) the appropriate treatment of new evidence submitted at the Appeals Council (relying on Wilkins v. Secretary, 953 F.2d 93, 96 (4th Cir. 1991)).

Duty of Explanation/Articulation Case--10th Circuit

There's a good discussion of the treatment of treating physician opinions, including the duty to articulate reasons for the weight given such opinions, in Watkins v. Barnhart350 F.3d 1297 (10th Cir. 2003). Judge Baldock, for the Court, discusses Social Security Ruling 96-2p:

The agency ruling contemplates that the ALJ will make a finding as to whether a treating source opinion is entitled to controlling weight. In this case, the ALJ obviously did not give Dr. Rowland's opinion controlling weight, but he did not articulate a reason. A finding at this stage (as to whether the opinion is either unsupported or inconsistent with other substantial evidence) is necessary so that we can properly review the ALJ's determination on appeal.