Ledford v. Barnhart

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 19, 2006
• Docket: 05-7111
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 19, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

C ARME LA LED FO RD ,

Plaintiff-Appellant,

v. No. 05-7111 (D.C. No. 04-CV-166-W H) JO A NN E B. BA RN HA RT, (E.D. Okla.) Commissioner, Social Security Administration,

Defendant-Appellee.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.

Carmela Ledford appeals from the district court’s order affirming the

Commissioner’s denial of her application for supplemental security income (SSI)

benefits under Title XVI of the Social Security Act. W e have jurisdiction under

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. W e reverse in part and affirm in part,

as set forth below.

I. Background

M s. Ledford applied for SSI in July 2001, alleging an inability to w ork

since M ay 2000, due to carpal tunnel syndrome, left shoulder pain, and nerve

damage in her right arm. Aplt. App. 126, 227. The agency denied M s. Ledford’s

application for benefits initially and on reconsideration. She then received a de

novo hearing before an administrative law judge (ALJ). The ALJ found

M s. Ledford had carpal tunnel syndrome and depressive disorder, severe

impairments under the applicable regulations, but determined that she did not

have “any functional restrictions . . . that would preclude light work activity,” id.

at 18. The ALJ described M s. Ledford’s residual functional capacity (RFC) as

follow s:

lift/carry 20 pounds occasionally and 10 pounds frequently; sit 6 hours out of an 8-hour workday; stand 6 hours out of an 8-hour workday; no overhead or above shoulder work; moderate limitations to follow and carry out detailed instructions; mild to moderate occasional chronic pain but could carry out normal work assignments satisfactorily.

Id. at 18-19. Relying on the testimony of a vocational expert (VE), the ALJ made

alternative determinations at steps four and five of the familiar five-step

sequential evaluation process. See M urrell v. Shalala, 43 F.3d 1388, 1389

(10th Cir. 1994) (recognizing the benefit of alternative determinations in the

-2- social security review process); Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988) (describing five-step process). The ALJ concluded that

M s. Ledford was not disabled because under step four she retained the RFC to

perform her past work, and under step five she retained the RFC to perform other

jobs available in the regional and national economies.

The Appeals Council denied M s. Ledford’s request for review, stating that

it had considered the additional evidence submitted but that the evidence did not

provide a basis for changing the ALJ’s decision. The district court affirmed and

adopted the magistrate judge’s findings and recommendations, denying benefits.

This appeal followed. M s. Ledford asserts (1) the ALJ improperly

disregarded treating and consulting physicians’ opinions and as a result

formulated an RFC that does not include all of her limitations, (2) the Appeals

Council committed reversible error in denying her request for review, and (3) the

ALJ made an improper credibility assessment.

II. Standard of Review and D iscussion

Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. See Jensen v.

Barnhart, 436 F.3d 1163, 1164 (10th Cir. 2005). In reviewing the A LJ’s

decision, “we neither reweigh the evidence nor substitute our judgment for that of

the agency.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799, 800

(10th Cir. 1991). Instead, we review the ALJ’s decision only to determine

-3- whether his factual findings are supported by substantial evidence in the record

and whether he applied the correct legal standards. See Jensen, 436 F.3d at 1165.

M s. Ledford first asserts that the ALJ erroneously disregarded treating and

consulting physicians’ opinions, and as a result, formulated an incomplete RFC.

Specifically, she claims her RFC should have included a “reference to [her]

decreased grip strength and [her] inability to engage in repetitive motion activities

with her upper extremities.” Aplt. Br. at 12. W e address each alleged limitation

in turn.

The record contains three pieces of evidence indicating M s. Ledford has

reduced grip strength: treating physician Nelms’s opinion, which pre-dates

M s. Ledford’s first denial of SSI; 1 treating physician Nettle’s opinion; and

consulting physician Krishnamurthi’s opinion. Specifically, on June 28, 2000,

Dr. Nelms reported that M s. Ledford had reduced grip strength and reduced range

of motion of her right wrist. Aplt. App. at 165. On A pril 20, 2001, Dr. Nettles,

who had been treating M s. Ledford for carpal tunnel syndrome, reported in a

progress note under “Physical Examination” that M s. Ledford had reduced grip

strength of her right hand and pain associated with passive movement of her right

1 M s. Ledford filed a prior application for SSI on July 19, 2000, which was denied initially, on October 20, 2000, and on reconsideration, on November 30, 2000. Instead of seeking a hearing before an ALJ on that application, she filed a new application for SSI on April 26, 2001 (the application at issue in this appeal). Although M s. Ledford is precluded from claiming benefits prior to November 30, 2000, evidence from the previously adjudicated period is still relevant. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

-4- wrist. Id. at 185. On June 11, 2002, Dr. Krishnamurthi, a consulting physician,

examined M s. Ledford and quantified her reduced grip strength: “[m]otor

strength is . . . 4/5 in right hand.” Id. at 228. He also noted and “considered

reliable” M s. Ledford’s report that she “is not able to do much with her right

arm.” Id. at 227.

W e recognize that “an ALJ is not required to discuss every piece of

evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But “in

addition to discussing the evidence supporting his decision, the A LJ also must

discuss the uncontroverted evidence he chooses not to rely upon, as well as

significantly probative evidence he rejects.” Id. at 1010. In this case, the ALJ

cited Dr. Krishnamurthi’s report without mentioning his reduced-grip-strength

finding. And, although the A LJ apparently relied upon Dr. Krishnamurthi’s

report for his other findings, he did not explain what weight he gave it. Further,

we cannot tell if the ALJ took into consideration the reduced-grip-strength

opinions of Dr. Nelms and Dr. Nettles, treating physicians who, combined, saw

M s. Ledford at least five times during 2000 and 2001. Aplt. A pp. at 165, 192-93,

187-88, 215-16. 2 Indeed, the A LJ’s decision fails to identify Dr. Nelms or Dr.

Nettles, or explain what weight, if any, he assigned to their opinions, as required

by 8 C.F.R. § 416.927(d). See W atkins v. Barnhart, 350 F.3d 1297, 1300-01

2 These physicians may have, combined, seen M s. Ledford on more than five occasions, but because several of M s. Ledford’s m edical records have illegible physician signatures we cannot be sure. See Aplt. A pp. at 190-91, 189.

-5- (10th Cir. 2003) (explaining analysis ALJ should follow in assessing treating

source medical opinions).

W ithout the benefit of the ALJ’s findings and his weighing of the reduced-

grip-strength evidence, a reviewing court is at a loss. W e cannot tell whether, as

M s. Ledford contends, her RFC should have contained a reference to her reduced

grip strength.

The Commissioner counters “that both M s. Ledford’s treating physicians [’]

and Dr Krishnamurthi’s findings were consistent with the ALJ’s RFC . . . [and]

[f]or this reason, the ALJ w as not required to further w eigh the statements in

those records.” Aplee. Br. at 15 (citing Howard v. Barnhart, 379 F.3d 945, 947

(10th Cir. 2004)). W e disagree. First, the Commissioner’s position ignores the

possibility that reduced grip strength may affect lifting, carrying, pulling,

manipulative, or handling functions. See 8 C.F.R. § 416.945(b) (identifying

physical abilities considered in assessing RFC). 3 Second, Howard is

distinguishable. In Howard, the claimant challenged as conclusory and

unsubstantiated the ALJ’s RFC determination. W e agreed that the ALJ’s lack of

analysis was troubling but “conclude[d] that substantial evidence in the record

support[ed] the ALJ’s RFC determination,” emphasizing that the ALJ had

3 Likew ise, reduced grip strength may affect M s. Ledford’s ability to perform her past work as a “housekeep[er], cashier, dishwasher, kitchen helper, [and] clothes ironer,” or to adjust to the other work identified by the VE and relied upon by the ALJ–material advertiser, ticket seller, bench assembly worker, and information clerk. Aplt. App. at 19.

-6- “discussed all of the relevant medical evidence in some detail. . . . and [that] . . .

none of the record medical evidence conflict[ed] with the ALJ’s conclusion that

claimant c[ould] perform light work.” 379 F.3d at 947. This case is different. In

this case, the ALJ did not provide a detailed discussion of all of the relevant

medical evidence. He provided an abbreviated summary of the medical evidence

that acknowledged M s. Leford had the “acute disease of carpal tunnel,” without

discussing her reduced grip strength or identifying her treating physicians. Aplt.

App. at 16. W ithout the ALJ’s consideration of the reduced-grip-strength

evidence it is unclear, as previously alluded to, whether the record medical

evidence conflicts with the ALJ’s RFC assessment. Thus, we cannot conclude on

the facts of this case, as we did on the facts of Howard, “that substantial evidence

in the record supports the ALJ’s RFC determination.” 379 F.3d at 947. W e do

not have sufficient information to make such a determination.

“The failure to apply the correct legal standard[s] or to provide this court

with a sufficient basis to determine that appropriate legal principles have been

followed is grounds for reversal.” Jensen, 436 F.3d at 1165 (quotations omitted).

Since the ALJ did not discuss the record evidence regarding reduced grip

strength, or explain what weight, if any, he accorded M s. Ledford’s treating and

consulting physicians’ opinions, we must remand to allow the Commissioner to

conduct the required analyses. Threet v. Barnhart, 353 F.3d 1185, 1190

(10th Cir. 2003) (remanding “for the ALJ to articulate specific findings and his

-7- reasons for ignoring . . . evidence”); Watkins, 350 F.3d at 1300 (remanding

because a reviewing court is unable to properly review the ALJ’s decision without

“[an] explanation for the weight, if any, [the ALJ] gave to the opinion of . . . the

treating physician”); Hamlin, 365 F.3d at 1215 (explaining that “[i]f an ALJ

intends to rely on a nontreating physician or examiner’s opinion, he must explain

the weight he is giving to it”). On remand, the ALJ should also evaluate the new

evidence submitted to and considered by the Appeals Council: Dr. Nelms’s 2003

statement that, based on his review of M s. Ledford’s medical records and his

“own examinations,” she is unable to perform “repetitive type work that requires

frequent reaching, handling or fingering with either extremity.” Aplt. App. at

258. As w ith M s. Ledford’s reduced-grip-strength evidence, we cannot tell

whether, as M s. Ledford contends, her RFC should have contained a reference to

her inability to engage in repetitive motion activities.

M s. Ledford next argues that the Appeals Council committed reversible

error in denying her request for review because the new evidence created a

reasonable possibility that the ALJ w ould have come to a different conclusion if

the evidence had been before him, and it is unclear the Appeals Council even

evaluated the new evidence. This contention is moot in light of our disposition

here. That is, on remand, M s. Ledford will have an opportunity to present

argument to the ALJ concerning the new evidence that is now part of the record.

See M artinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006).

-8- Finally, M s. Ledford asserts that the ALJ made an improper credibility

assessment by failing to “properly evaluate [her] subjective allegations

concerning her impairments,” Aplt. Br. at 18, and by “resort[ing] to boilerplate

language,” id. at 20. W e are not persuaded by either of these assertions.

“[F]indings as to credibility should be closely and affirmatively linked to

substantial evidence,” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(quotation omitted), but “a formalistic factor-by-factor recitation of the evidence”

is not necessary, Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Having

carefully examined the record as a whole, we are satisfied that the ALJ set forth

the specific substantial evidence upon which he relied in evaluating

M s. Ledford’s credibility and we therefore reject these claims of error. See id.

III. Conclusion

The judgment of the district court is AFFIRM ED in part and REV ERSED

in part, and the case is REM ANDED to the district court with directions to

REM AND to the Commissioner for additional proceedings consistent with this

disposition.

Entered for the Court

M ichael W . M cConnell Circuit Judge

-9-