Berryhill v. Barnhart

64 F. App'x 196
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 29, 2003
Docket02-7110
StatusUnpublished
Cited by6 cases

This text of 64 F. App'x 196 (Berryhill v. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berryhill v. Barnhart, 64 F. App'x 196 (10th Cir. 2003).

Opinion

*198 ORDER AND JUDGMENT *

JOHN C. PORFILIO, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. RApp. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Tresia Berryhill challenges the Commissioner’s decision denying Berryhill-disability benefits and supplemental security income. We review only to determine whether there is substantial evidence to support the Commissioner’s decision and whether the Commissioner correctly applied the law. See Grigsby v. Barnhart, 294 F.3d 1215, 1218 (10th Cir.2002).

Berryhill asserts she has been disabled since November 1992 because of severe headaches and bipolar and post-traumatic stress disorders. The administrative law judge (ALJ), however, determined Berryhill was still able to do light work involving only one- to two-step instructions, with occasionally more detailed instructions; only incidental contact, and no interaction, with the public; 'and no strict production quotas or conveyor belt assembly. Relying on a vocational expert’s (VE) testimony, the ALJ found, at step five, 1 that Berryhill remains capable of working as a stock clerk, a shipping and receiving clerk, or a food preparer. 2 Berryhill argues, however, that the ALJ failed to consider properly the effect her headaches have on her ability to work on a consistent basis and that her mental impairments restrict her ability to work to a greater extent than the ALJ found. We agree and remand Berryhill’s claim for the Commissioner’s further consideration.

Berryhill’s medical records clearly established that she had received significant medical treatment for many years for her headaches, without any lasting success. The ALJ did not question that this was a condition likely to produce pain, and that there was a loose nexus between Berry-hill’s headaches and the pain of which Berryhill complained. See, e.g., White v. Barnhart, 287 F.3d 903, 909 & n. 3 (10th Cir.2001). The ALJ, however, did discredit Berryhill’s claim that, because of these frequent and severe headaches, she was unable to work on a consistent basis. In doing so, however, the ALJ lumped Berry-hill’s headache complaints in with numerous other subjective complaints and then rejected those en masse, without specifically addressing her headaches. In this case, that analysis was legally insufficient. See id. at 909 (noting ALJ must give specific reasons for rejecting claimant’s subjective complaints); Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir.1995) (rejecting ALJ’s conclusory decision dismissing claimant’s subjective complaints without explaining reasons and specific evidence underlying that determination). Further, the ALJ’s general reasons for rejecting all Berryhill’s subjective complaints did not pertain to her headaches, inaccurately referred to *199 Berryhill’s testimony, or were not supported by substantial evidence. They were, therefore, insufficient to support the ALJ’s decision to discount Berryhill’s headache complaints.

Elsewhere in his decision, the ALJ did find that Berryhill’s testimony was “credible only to the extent consistent with a residual functional capacity for a wide range of light work activity.” App., vol. II at 23. While “[c]redibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence ... findings as to credibility should be closely and affirmatively linked to substantial evidence and not just conclusions in the guise of findings.” McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (further quotations omitted). Here, the ALJ failed to indicate what part of Berryhill’s testimony he found to be incredible and why. See id. We, therefore, remand this case for the Commissioner to consider further the impact Berryhill’s headaches have on her ability to work.

In addressing Berryhill’s bipolar and post-traumatic stress disorders, the ALJ did credit Berryhill’s medical records indicating that she could not consistently follow more than simple directions, she needed to avoid interaction with the public and she required more self-paced work. Berryhill, however, asserts her mental impairments limit her ability to work to a still greater extent. In rejecting this claim, the ALJ credited the opinion of the Commissioner’s psychiatric expert, Dr. Blake, who examined‘Berryhill once and had reviewed only a small portion of her treatment records. See id. at 1253 (“This court has long held that findings of a non-treating physician based upon limited contact and examination are of suspect reliability.”) (further quotation omitted). Dr. Blake indicated that Berryhill had very good concentration, her bipolar disorder was in partial to full remission and she was, thus, capable of performing jobs involving low to moderate stress. Dr. Blake’s opinion, however, was contrary to Berryhill’s treating physician, Dr. Bumgardner’s opinion that Berryhill “would probably not respond appropriately to work pressure.” App., vol. II at 339.

“An ALJ is required to give controlling weight to a treating physician’s well-supported opinion, so long as it is not inconsistent with other substantial evidence in the record.” McGoffin, 288 F.3d at 1252 (further quotation omitted). Further, “[w]hen an ALJ decides to disregard a medical report by a claimant’s physician, he must set forth the specific, legitimate reasons for his decision. Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir.2001) (further quotation omitted). Here, however, the ALJ does not appear to have even considered the treating physician’s opinion. See id. at 1213-14 (remanding case to Commissioner where ALJ disregarded treating physician’s opinion without even mentioning it).

And there was substantial evidence supporting Dr. Bumgardner’s opinion. Berry-hill’s extensive treatment notes consistently indicated, among other things, moderate to severe problems with her mood, thinking and mental processes, including difficulties concentrating, remembering things, and being disoriented.

Dr. Blake’s opinion, on the other hand, was contrary to the weight of Berryhill’s medical records, most of which Dr. Blake did not review. Additionally, Dr.

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64 F. App'x 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berryhill-v-barnhart-ca10-2003.