F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 13, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
JERRY A . G A RC IA ,
Plaintiff-Appellant,
v. No. 05-2322 (D.C. No. CIV-04-1100-LCS) JO A NN E B. BA RN HA RT, (D . N.M .) Commissioner of the Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.
Plaintiff Jerry A. Garcia appeals from a district court order affirming the
Commissioner’s denial of social security disability benefits. W e review the
Commissioner’s decision to ensure that it is supported by substantial evidence and
adheres to applicable legal standards. Chambers v. Barnhart, 389 F.3d 1139,
* 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. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1142 (10th Cir. 2004). As explained below, we reverse and remand for further
agency proceedings.
M r. Garcia’s primary physical complaint is back pain with associated
limitations caused by herniated lumbar/sacral discs. In August 1993, he had a
hem ilam inotomy at the L4-5 level and a hemilaminectomy at the L5-S1 level. H e
returned to work and re-injured his back in December 1993, and since that time he
has not engaged in substantial gainful activity, though he has assisted in minor
ways with a child care business his wife runs in their home. On several occasions
in early 2000, he saw Dr. Frank M aldonado, who ordered an M RI and new x-rays
that showed: “disc herniation at L4-5 and L5-S1” with “marked narrowing at the
L5-S1 interspace [and] encroachment of the neural foramina . . . partly from the
disc and partly from bone.” A pp. II at 181. Dr. M aldonado recommended a “tw o
level lumbar diskectomy, L4-5 and L5-S1 with interbody fusion,” but he also
acknowledged that “there were no guarantees, particularly with a re-operated
back.” Id. He noted that in the meantime M r. G arcia remained totally disabled.
Id. Eight months later, M r. G arcia applied for benefits.
The Commissioner sent M r. Garcia to Dr. Debra Schenck for a consultative
examination. Dr. Schenck concluded that M r. Garcia’s abilities to sit, stand and
walk were unlimited, that he could lift up to ten pounds frequently and twenty
occasionally, and, consequently, that he was capable of performing a full range of
light w ork. Id. at 173-74, 179. M r. Garcia returned to Dr. M aldonado to obtain a
-2- more specific assessment of the functional limitations reflected in the broad
conclusion he had made regarding disability in his prior report. Dr. M aldonado
found that M r. Garcia could not sit or stand/walk for more than one to two hours
(each) in an eight hour day and could not lift more than ten pounds occasionally.
Id. at 213-14. He also noted limitations on pushing/pulling, as well as
environmental restrictions (heights, vibrations, moving machinery) due to balance
and agility issues. Id. at 215. The reports of D r. M aldonado and Dr. Schenck are
the primary medical assessments in the record.
This case has been heard by two administrative law judges. The first ALJ
found M r. Garcia capable of performing light work and, given his age and
(limited) educational level, concluded that he was not disabled under the M edical
Vocational Guidelines, 20 C.F.R., pt. 404, subpt. P, app. 2, Rule 202.18. See
App. II at 15-16. The district court reversed that decision, because the ALJ had
not properly addressed Dr. M aldonado’s opinions and had failed to mention those
of a Dr. Hood, whom M r. Garcia had seen in 1994 shortly after re-injuring his
back. On remand, the second ALJ found M r. Garcia capable of only a limited
range of sedentary work, but concluded he w as not disabled based on expert
vocational testimony identifying three jobs w ithin the limitations specified. This
second decision is the subject of our review here.
M r. Garcia raises two broad issues: (1) the ALJ’s handling of the opinions
of Dr. M aldonado and Dr. Hood (who again was not mentioned) on remand w as
-3- still inadequate and led to undue weight being given the contrary opinion of
agency consultant Dr. Schenck; and (2) the ALJ failed to obtain an explanation
from the vocational expert (VE) regarding a discrepancy between her testimony
and the job descriptions in the Dictionary of Occupational Titles (DOT), as
required by Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999) and Social
Security Ruling (SSR) 00-4p, 2000 W L 1898704. W e hold that the ALJ’s error in
the first respect, particularly with respect to Dr. M aldonado, requires reversal and
remand for proper consideration of the medical opinion evidence. In light of that
holding, we need not decide if the second issue requires reversal, although we do
explain why, if a similar VE-DOT discrepancy arises on remand, it should be
addressed as prescribed in the authorities noted.
M E DIC AL OPINION EVIDENCE
Dr. M aldonado recognized significant limitations, particularly an inability
to sit, stand, and/or walk for more than a total of two to four hours in a work day,
which were not included in the hypothetical posed to the VE. Indeed, consistent
with SSR 96-8p (clarifying that functional capacity assessment looks to “ability to
do sustained work-related . . . activities in a work setting on a regular and
continuing basis,” i.e., “8 hours a day for 5 days a w eek, or an equivalent work
schedule,” 1996 W L 374184, at *1 (emphasis added)), such limitations w ould
dictate a finding of disability, as the Commissioner has conceded in other cases.
Bladow v. Apfel, 205 F.3d 356, 359 (8th Cir. 2000); Kelley v. Apfel, 185 F.3d
-4- 1211, 1214 (11th Cir. 1999); see also Rodriguez v. Bowen, 876 F.2d 759, 763 (9th
Cir. 1989) (pre-SSR 96-8p case directing award of benefits “[b]ecause capability
to work only a few hours per day does not constitute the ability to engage in
substantial gainful activity”). Thus, it was critical for the A LJ to properly assess
these findings in light of Dr. M aldonado’s treatment relationship with M r. Garcia,
as prescribed by 20 C.F.R. § 404.1527(d).
Our review of the matter is hampered by two basic deficiencies in the
ALJ’s decision. First, the ALJ never addressed Dr. M aldonado’s treatment
relationship with M r. Garcia, in particular whether he qualified as a “treating
source” ordinarily entitled to special deference under § 404.1527(d). The
Commissioner now insists he was not a treating source. Given the general
prohibition on post hoc justification of agency decisions, see Allen v. Barnhart,
357 F.3d 1140, 1145 (10th Cir. 2004); Knipe v. Heckler, 755 F.2d 141, 149
(10th Cir. 1985), we would not uphold the agency’s decision on this basis unless
we could confidently say that no reasonable ALJ considering our record and
following the proper analysis could have resolved the matter in any other way,
Allen, 357 F.3d at 1145. Such a determination is not warranted by our record,
which shows that Dr. M aldonado saw M r. Garcia several times (beginning eight
months before M r. Garcia applied for benefits), performed repeated physical
examinations, ordered and reviewed x-rays and an M RI, and, on the basis of these
efforts, arrived at a recommendation for treatment involving significant surgical
-5- intervention, the risks and benefits of which he fully explained to M r. Garcia.
This case is thus unlike Doyal v. Barnhart, 331 F.3d 758 (10th Cir. 2003), on
which the Commissioner relies, where a physician was held not to be a treating
source because the record showed only that he had seen the claimant two times
some seven years apart. 1 See id. at 763-64. Under the circumstances, we assume
for purposes of this appeal that Dr. M aldonado is a treating source and review the
ALJ’s analysis of his opinions accordingly. W e do not, however, purport to usurp
the ALJ’s role as first-line decisionmaker, see Allen, 357 F.3d at 1144, and, thus,
we do not foreclose further consideration of Dr. M aldonado’s treating relationship
with M r. G arcia on remand should the Commissioner w ish to pursue that.
The second impediment to our review is the ALJ’s failure to discuss the
two primary opposing medical sources, Dr. M aldonado and Dr. Schenck,
specifically in relation to each other and the scheme set out in § 404.1527(d) for
the evaluation of medical source opinions. As a result, we are left with gaps and
unmade connections in the administrative analysis under review . In any event,
filling these as best w e can by inference from the ALJ’s stated analysis still
leaves us with the firm conviction that the decision denying benefits cannot stand
on the rationale given.
1 The Commissioner mistakenly cites Frey v. Bowen, 816 F.2d 508, 513-15 (10th Cir. 1987), as another example where treating-source status was rejected. Actually, Frey reversed a denial of benefits because the treating physician’s opinions should have been accorded controlling weight.
-6- This court has detailed the principles governing the assessment of medical
opinions on numerous occasions. See, e.g., Langley v. Barnhart, 373 F.3d 1116,
1119 (10th Cir. 2004); Ham lin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).
For our purposes, it will suffice to note that (1) “[t]he ALJ is required to give
controlling weight to the opinion of a treating physician as long as the opinion is
supported by medically acceptable clinical and laboratory techniques and is not
inconsistent with other substantial evidence in the record,” and (2) “[w]hen an
ALJ rejects a treating physician’s opinion, he must articulate specific, legitimate
reasons for his decision,” Hamlin, 365 F.3d at 1215 (quotation omitted). Here,
the ALJ “g[a]ve Dr. M aldonado’s conclusions no significant weight,” App. II at
239, for three reasons that do not stand up to scrutiny in light of the record and
controlling law.
First, the ALJ concluded that “Dr. M aldonado relied excessively on the
claimant’s subjective complaints,” id., citing one page from the notes attached to
Dr. M aldonado’s October 2001 functional assessment, where he said: “I had a
long talk with the patient. He is miserable and his life is miserable. H e says he is
not happy. I told him I could see that in his face, as well as in the examination,”
id. at 211. The same notes, however, and other treatment records the ALJ failed
to mention, show that Dr. M aldonado also had multiple physical examinations, as
well as xray/M RI confirmation of recurrent disc herniation, to rely on for his
assessment. See id. at 181-83, 189-91, 210-11. This court has made it clear that
-7- when an ALJ rejects a medical opinion under such circumstances, based on his
speculation that the doctor was unduly swayed by a patient’s subjective
complaints, the ALJ deviates from correct legal standards and his decision is not
supported by substantial evidence. Langley, 373 F.3d at 1121.
Second, the ALJ stated that Dr. M aldonado’s functional assessment was
“not consistent with Dr. M aldonado’s own objective findings.” App. II at 239.
Some of the findings the ALJ cited to support this statement are simply irrelevant,
such as the normal sensory function in M r. Garcia’s right foot and the “okay”
range of motion in his knees. Id. The finding that M r. Garcia’s “hip motion was
okay,” id., might be relevant, but this one positive indication is drained of any
significance in light of plainly pertinent findings that the ALJ ignored, such as
“significant tenderness to percussion over the lower lumbar spine. There is mild
to moderate lumbar paraspinous muscle spasm. Forward bending is very minimal.
Extension is almost non-existent. The lateral bend is not able to be done” – all
clearly functionally related to M r. Garcia’s objectively demonstrated underlying
disc herniation. 2 Id. at 210. Finally, the finding that M r. Garcia w as “temporarily
totally disabled from even the most sedentary activity because of inability to sit
still for more than a few minutes,” id. at 239, does not undercut Dr. M aldonado’s
2 It bears repeating that Dr. M aldonado’s findings of pain and impairment were severe enough to prompt him to recommend a second invasive spinal surgery (a two level lumbar diskectomy with interbody fusion) even though he could not offer any guarantees that it w ould provide relief. See App. II at 181.
-8- RFC assessment that M r. Garcia could sit for no more than one to two hours in a
workday; indeed, it reflects an even more extreme, albeit more specific, postural
limitation. To the extent the ALJ w as focusing on the temporal qualification in
the cited finding (suggested by the ALJ’s alteration of the original “temporarily
totally disabled . . .,” id. at 212, to “only temporarily totally disabled . . .,” id. at
239 (emphasis added)), there is nothing inconsistent in so qualifying a limit on
the ability to sit continuously without changing position and not so qualifying a
limit on the total amount of time one can sit (in any manner) in an eight hour day.
In sum, the ALJ’s criticism that Dr. M aldonado’s objective findings contradicted
his RFC assessment is unfounded. 3
Third, the ALJ held that Dr. M aldonado’s assessment was “not consistent
with the record as a whole.” Id. The only supporting reference given by the ALJ
was a general allusion to “evidence of symptom magnification.” Id. Earlier in
his decision, the ALJ had discussed Dr. Schenck’s consultative report stating that
M r. Garcia “exhibited marked pain behavior . . . much more evident when
3 The Commissioner attempts to buttress the ALJ’s analysis with some more specific points. The Commissioner notes that M r. Garcia told Dr. M aldonado that “sitting for more than two hours aggravates the pain in almost any kind of chair,” App. II at 187, 190, but we fail to see how that statement fatally undermines the doctor’s opinion that M r. Garcia should sit no more than two hours in a workday. The Commissioner also notes that Dr. M aldonado’s more detailed functional assessment was prepared several months after M r. Garcia’s insured status expired, but given its consistency with Dr. M aldonado’s initial opinion of total disability and his treatment notes from over a year before the expiration of M r. Garcia’s insured status, the timing issue raised post hoc here is more form than substance.
-9- observed than when unobserved,” noting that his “antalgic gait [i.e., limp]
walking across the parking lot . . . got much worse when he got into the clinic,”
and contrasting his “exaggerated pain behavior . . . during the entire exam” with
the fact that “when distracted, he was able to sit and fill out his paperwork, do an
eye exam, and sit in the hearing booth.” Id. at 238. M r. Garcia explained,
however, that the latter seated activities were of short duration (five to fifteen
minutes) and were alleviated by intervening periods of standing and walking. Id.
at 115. He also raised issues about the accuracy, completeness, impartiality, and
reliability of the consultative report – on which we need not and do not comment.
The decisive point here concerns, rather, the ALJ’s inversion of the prescribed
prioritization of medical opinions, which gives precedence to a treating opinion
over a consulting opinion unless, given the substance and substantiation of the
latter, it demonstrably outweighs the former. See Hamlin, 365 F.3d at 1219
(explaining that “consultative physician’s report should be ‘examined to see if it
“outweighs” the treating physician’s report, not the other way around.’” (quoting
Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988)). Contrary to that rule, the
ALJ rejected Dr. M aldonado’s treating opinion because a consulting physician
simply disagreed with him over the interpretation and assessment of the
symptoms of M r. G arcia’s impairment.
There may be cases in which a consultant’s suspicion of exaggeration, if
well-substantiated and corroborated, could displace a treating physician’s opinion
-10- that had been based predominantly on subjective symptoms, but we do not have
such circumstances here. Dr. M aldonado’s opinion was based on a convergence
of objective tests and physical examinations and was tied to a recommendation for
significant surgical intervention; it was not a mere recitation of subjective
complaints related by the claimant. Dr. Schenck’s suspicion of exaggeration, on
the other hand, was an inference from inconclusive observations 4 made during a
single visit (by a physician not responsible for successfully treating the condition
in question) and was not voiced by any other examining physician in our record
(and there were at least five doctors who saw M r. Garcia at least once and noted
his symptoms of pain without suggesting any exaggeration). 5 If we held such a
suspicion sufficient to defeat a properly substantiated treating opinion, the
treating-physician rule would become a rather hollow principle.
4 For example, Dr. Schenck did not say that M r. Garcia fabricated a limp, but only that she perceived a worsening of the limp admittedly evident as he crossed the parking lot. App. II at 178. She comm ented on his “moaning and groaning” during his physical exam, id., but she had no comparable experience with similar exertional (flexion/extension/abduction/rotation) activity by M r. Garcia from which to gauge the presence or extent of the exaggeration she inferred. 5 The A LJ also noted that an athletic trainer indicated a “tendency tow ard symptom magnification,” App. II at 238, based on M r. Garcia’s responses to a pain questionnaire, see id. at 168. An athletic trainer, however, is not a “medical source” to be weighed under the scheme for evaluating medical opinion evidence, see § 404.1527(a)(2) (referring to statements of “physicians and psychologists or other acceptable medical sources”); § 404.1513(a)(1)-(5) (specifying “acceptable medical sources”). In any event, considered as an informed lay observer, the trainer still noted significant sitting limitations (one hour at a time, no more than four hours a day) that are much more consistent with Dr. M aldonado’s findings than those of Dr. Schenck. See App. II at 119.
-11- Dr. Schenck also offered her own functional assessment of M r. Garcia, in
which she discounted any limitations on his ability to sit, stand, or walk, and
opined that he would be able to perform light work. Given the direct opposition
between these findings and those of Dr. M aldonado, and the absence of any other
comparable medical source evidence, 6 what we have just said about the relative
priority of treating and consulting opinions is implicated in this regard as well.
Although the ALJ summarily concluded that Dr. M aldonado’s findings
were contrary to the record, and the source of contradiction in the record was
Dr. Schenck’s report, the ALJ never specifically held, much less explained why,
Dr. M aldonado’s opinions were outweighed by those of the consultant. Indeed,
the ALJ did not adopt Dr. Schenck’s findings either – she had opined that
M r. Garcia had no stand/walk restrictions and could therefore perform light work,
while the ALJ held he could perform only a limited range of sedentary work. If
an ALJ cannot summarily accept and elevate a consulting opinion over a treating
6 Other medical records, including those of D r. Hood, relate to M r. Garcia’s condition leading up to and following his initial surgery in 1993-94, and do not contain the detailed functional findings provided in the reports from 2000-01. W e note, however, that Dr. Hood’s records, which the ALJ again failed to address as directed on remand, did state that M r. Garcia should avoid “long periods of standing or sitting or any like activity,” A pp. II at 132 – a restriction much more consistent with Dr. M aldonado’s findings than those of Dr. Schenck. It was error for the ALJ to ignore this supporting evidence from Dr. H ood, see Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (“Deviation from the court’s remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.”), though the Commissioner argues the omission was harmless. W e need not resolve this collateral dispute, as the ALJ’s deficient assessment of Dr. M aldonado’s findings necessitates reversal in any event.
-12- opinion, a fortiori the ALJ here could not reject Dr. M aldonado’s opinion simply
based on its contradiction by a consulting opinion the ALJ also did not accept. 7
Given the ALJ’s failure to address these medical opinions with reference to the
controlling regulation, and his resultant failure to adequately justify his rejection
of the treating physician’s opinion (under which the claimant would clearly be
disabled), the decision denying benefits must be reversed.
V E-DOT DISCREPANCY
M r. Garcia also argues that the ALJ improperly relied on VE testimony that
conflicted with the DOT. Specifically, in response to the ALJ’s hypothetical
questioning that indicated M r. Garcia could perform only “routine, repetitive” and
“simple” work, App. II at 284, 285; see also id. at 240-41, the VE identified jobs
(charge account clerk and surveillance system monitor) for which, as explained
below, the DOT specifies a higher reasoning level (level 3).
This court adheres to the rule, adopted in Haddock, 196 F.3d at 1087,
reaffirmed in Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005), and
codified in SSR 00-4p, that an ALJ must elicit a reasonable explanation for any
material conflicts between a VE’s testimony and occupational information in the
7 Similarly, lifting restrictions of fifty and thirty-five pounds noted in 1994 by Dr. Garland and Dr. Reiter, respectively (cited by the Commissioner as a broad indication of greater functional capacity than that found by Dr. M aldonado) are not relevant given that the ALJ specifically found M r. Garcia’s “maximum lifting ability is 10 pounds,” App. II at 240. See Saiz v. Barnhart, 392 F.3d 397, 399 (10th Cir. 2004) (holding Commissioner’s argument “undone by the obvious point that the A LJ himself noted [a contrary] limitation”).
-13- DOT. M ore specifically relevant here, in Hackett we found a facial conflict
between a claimant’s “inability to perform more than simple and repetitive tasks”
and the “level-three reasoning” required in the DO T for jobs identified by the VE,
and, consequently, reversed and remanded for an explanation, if any, that would
resolve the conflict so as to permit reliance on the VE’s testimony. Hackett, 395
F.3d at 1176. M r. Garcia argues Hackett requires reversal and remand here.
In response, the Commissioner again resorts to post hoc justifications to
support the ALJ’s decision. As noted earlier, such justifications cannot succeed
unless they are so conclusive that no reasonable ALJ could have resolved the
disputed matter in any other w ay. Allen, 357 F.3d at 1145. W e doubt any of the
Commissioner’s efforts are so compelling; indeed, some are inadequate on their
face. For example, the Commissioner insists the ALJ was referring to physically
simple and routine tasks and, thus, not suggesting any mental restriction. But, as
Hackett itself reflects, “simple and routine” is a limitation associated with the
mental, not physical, aspects of work (indeed, it is a cognitively-based limitation
typically restricting the claimant to physical labor, not a physical restriction on
such labor), and the context does not suggest the ALJ used the phrase in another
sense. Rather, the context indicates the ALJ was addressing M r. Garcia’s lack of
learned skills and limited education (and in that regard we note M r. Garcia had
been held back a grade in elementary school and had failed the written test for
military service). See App. II at 283. The Commissioner also argues that the
-14- evidence does not actually support a limitation to simple and routine work. This
line of argument, however, is foreclosed by the fact “that the ALJ himself noted
the limitation.” Saiz, 392 F.3d at 399.
W e need not respond point-for-point to all of the Commissioner’s efforts to
justify the A LJ’s decision insofar as it implicates the V E-DOT conflict, nor must
we resolve whether the one occupation identified by the VE unaffected by the
conflict (jewelry preparer, involving 160 state jobs) reflects work in sufficient
numbers to conclusively establish the requisite numerical significance, see Allen,
357 F.3d at 1144-45, as we are remanding the case on account of other error in
any event. But we do emphasize the analytical significance and consequences of
the ALJ’s finding regarding the cognitive demands M r. Garcia is able to meet and
reaffirm that, if the A LJ seeks to properly account for these on remand, he must
heed the guidance provided by this court’s decisions in Hackett and Haddock.
The judgment of the district court is REVERSED and the cause is
REM ANDED with instructions to remand, in turn, to the Commissioner for
further proceedings consistent with this order and judgment.
Entered for the Court
M onroe G. M cKay Circuit Judge
-15-