Romero v. Astrue

242 F. App'x 536
Court of Appeals for the Tenth Circuit·Decided July 24, 2007·No. No. 06-6305·Published·Cited by 5 cases

Opinion

ORDER AND JUDGMENT**

ROBERT H. HENRY, Circuit Judge.

Plaintiff-appellant Lynette Romero appeals from an order of the district court affirming the Commissioner’s decision denying her applications for Social Security disability and Supplemental Security Income benefits (SSI). We have determined that the Commissioner failed to evaluate properly the opinion of her treating physician, Dr. Haddock, concerning her ability to stand and to walk. We therefore reverse and remand with instructions to remand to the Commissioner for further [539] evaluation Dr. Haddock’s opinion and its effect on the determination of her residual functional capacity (RFC). While Ms. Romero also challenges the administrative law judge (ALJ)’s evaluation of her cellulitis and obesity, and his assessment of her credibility, we do not discern any error in these areas, and therefore do not require reconsideration of them on remand.

Ms. Romero filed for benefits with a protected filing date of October 29, 2002, alleging disability based on tuberculosis, hepatitis C, asthma, severe degenerative arthritis of the knee, hip pain, and reflux.1 The agency denied her applications initially and on reconsideration.

On November 18, 2004, appellant received a de novo hearing before an ALJ. The ALJ determined that appellant retained the RFC to perform sedentary work, with only occasional stooping and limited by her “moderate fatigue, anxiety, and discomfort.” Aplt.App. at 28. He found that she could not return to her past relevant work as a nurse’s aide, but that there were a significant number of other jobs which she could perform in the national or regional economy. He therefore concluded that she was not disabled within the meaning of the Social Security Act. The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final decision.

We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.1989) (quotations omitted).

The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. See id. at 751 n. 2. If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains a sufficient RFC to perform work in the national economy, given her age, education and work experience. See id. at 751.

On appeal, Ms. Romero raises two issues. She first contends that the ALJ erred by developing an RFC that did not include all of her limitations. Specifically, she argues that the RFC is flawed because the ALJ failed to (1) evaluate properly the opinion of her treating physician, Dr. Haddock, concerning her ability to stand and walk; (2) include a restriction on her ability to sit for a full work day, based on her cellulitis; and (3) give adequate consideration of the effect of her morbid obesity on her ability to work. She also argues that the ALJ failed to properly evaluate her credibility.

1. ALJ’s RFC Assessment

Ms. Romero contends that the ALJ’s RFC was flawed because it failed to include all of her limitations. As noted, the ALJ found that Ms. Romero could perform sedentary work involving only occasionally stooping and that she “would have moderate fatigue, anxiety, and discomfort.” Aplt.App. at 23. Based on these limitations, a vocational expert (VE) opined that [540] there were sedentary, unskilled jobs available that Ms. Romero could perform in the national and regional economy. Id. at 379-80. Ms. Romero argues, however, that she is actually more severely limited than the ALJ’s RFC indicates.

A. Dr. Haddock’s Opinion

The ALJ imposed no restriction on standing or walking in Ms. Romero’s RFC, other than the limitations inherent in sedentary work.2 Sedentary work requires an ability to stand and/or walk “occasionally,” 20 C.F.R. §§ 404.1567(a), 416.967(a), up to two hours per day. See SSR 96-9P, 1996 WL 374185, at *3. The ALJ’s hypothetical question to the VE is consistent with this definition. It reflects his assessment that Ms. Romero could stand or walk for up to two hours in a work day. Aplt.App. at 379.

But in a note dated October 29, 2004, Ms. Romero’s treating physician Dr. Haddock stated:

Lynette Romero has a severe problem with her lower back, right hip and thigh. She has pain when she stands or tries to walk over 10 yards. The pain becomes too severe and she must stop and rest. She is disabled for any work requiring her to stand or walk.

Id. at 287 (emphasis added).

When evaluating the opinion of a treating physician such as Dr. Haddock, the ALJ must follow a sequential analysis to determine whether the opinion is entitled to controlling weight, or whether it is entitled to some lesser, non-controlling weight.3 Where the ALJ rejects the treating physician’s opinion, he must give “specific, legitimate reasons” for doing so. Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir.2001).

After summarizing Dr. Haddock’s opinion, see id. at 21-22, the ALJ rejected his ultimate conclusion summarily, noting “[tjhere are no treatment records by any physician to support [his] statement” that Ms. Romero was disabled for any work requiring her to stand or walk. Id. at 23. This reasoning was the only justification the ALJ provided for also dismissing Dr. Haddock’s opinions that Ms. Romero has “severe problem[s] with her lower back, right hip and thigh;” that she “has pain when she stands or tries to walk over 10 yards;” and that “[t]he pain becomes too [541] severe and she must stop and rest.” Id. at 287.

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Romero v. Astrue, 242 F. App'x 536 (10th Cir. 2007).

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