F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 8 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
FRANCES SHERMAN,
Plaintiff-Appellant,
v. No. 97-7085 (D.C. No. 96-CV-217) KENNETH S. APFEL, Commissioner, (E.D. Okla.) Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
Plaintiff appeals from a district court order affirming the Commissioner’s
decision to deny her applications for disability insurance benefits and
supplemental security income. 1 In what became the final decision of the
* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for John J. Callahan, former Acting Commissioner of Social Security, as the defendant in this action. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 After examining the briefs and appellate record, this panel has determined (continued...) Commissioner, the administrative law judge (ALJ) found that plaintiff’s chronic
hepatitis C, depression, and substance addiction constituted severe impairments.
The ALJ further found, however, that plaintiff’s impairments only restricted her
to light work involving simple tasks. Therefore, the ALJ concluded that plaintiff
retained the residual functional capacity (RFC) to perform four of her past jobs,
which involved light or sedentary, unskilled work.
We review the Commissioner’s decision to determine whether it “is
supported by substantial evidence and adheres to applicable legal standards.”
Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996). “Because [s]ubstantiality of
evidence must be based upon the record taken as a whole, we must meticulously
examine the record to determine whether the evidence in support of the
[Commissioner’s] decision is substantial and take into account whatever in the
record fairly detracts from its weight.” Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994) (quotations and citations omitted). We reverse and remand
for further proceedings in light of cumulative errors undermining the ALJ’s
analysis of plaintiff’s impairments.
1 (...continued) 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. 34.1.9. The case is therefore ordered submitted without oral argument.
-2- I. The Evidence
In June 1991, plaintiff began seeking treatment from Dr. Pena, a family
practitioner, for headaches, fatigue, and depression. In September 1992, blood
tests established that plaintiff, an admitted intravenous drug user, had hepatitis.
She later started having abdominal pain and diarrhea, for which she also sought
treatment, and ultimately stopped working in December 1992. Plaintiff said that
she had been falling asleep at work for days before she left.
In January 1993, plaintiff was still complaining of fatigue and Dr. Pena
referred her to Dr. Burdick, a gastroenterologist, who had a long discussion with
her about the potential for treatment with Interferon. 2 Dr. Burdick reported that
plaintiff’s chronic fatigue was probably secondary to her hepatitis, noting that
“fatigue does not differentiate between patients with mild or severe liver disease.”
Appellant’s App., Vol. II, at 197.
After plaintiff’s longtime boyfriend died of hepatitis in March 1993, she
became even more depressed. Plaintiff moved to California, where she slipped
back into using drugs. She continued to suffer occasional bouts of diarrhea,
frequent headaches, fatigue, and peripheral swelling, and sought treatment from
2 Interferon is an antiviral agent used in the treatment of certain kinds of hepatitis. It is “given by . . . injection, is expensive, and produces bothersome flu-like side effects in almost all patients.” The Merck Manual of Diagnosis & Therapy 906 (Robert Berkow & Andrew J. Fletcher eds., 16th ed. 1992).
-3- Dr. Allen, an internist. Dr. Allen referred plaintiff to Dr. Olson, a
gastroenterologist, who performed a liver biopsy. The biopsy established that
plaintiff had chronic active hepatitis C, 3 and Dr. Olson recommended treatment
with Interferon. Because depression can be a side effect of Interferon, Dr. Olson
advised that the treatment be delayed three months, to see if plaintiff’s depression
resolved. In August 1993, Dr. Allen wrote a letter to the Social Security
Administration discussing Dr. Olson’s intention of beginning Interferon treatment
once plaintiff’s depression resolved. Dr. Allen stated that he believed plaintiff
was presently disabled, but that her future course might improve--presumably
with Interferon treatment--to the point that she would no longer be disabled.
In July 1993, plaintiff saw Dr. Kerwin for a second opinion. Plaintiff
complained of fatigue, forgetfulness, blackouts, and swelling. Dr. Kerwin noted
that most of plaintiff’s symptoms were related to her hepatitis and depression.
Plaintiff saw Dr. Kerwin numerous times over the next eight months, complaining
of fatigue and depression, for which she was prescribed antidepressants and
3 Chronic active hepatitis, sometimes called chronic aggressive hepatitis is a “serious disorder [which] often results in liver failure and/or cirrhosis. . . . Nonspecific malaise, anorexia, and fatigue often dominate the clinical picture, sometimes with low-grade fever and nondescript upper abdominal discomfort. Jaundice is variable and is not always present.” The Merck Manual of Diagnosis & Therapy, at 905. “Prognosis is highly variable. . . . Cases associated with [hepatitis B virus] or [hepatitis C virus] tend to progress and . . . are usually resistant to therapy.” Id. at 906.
-4- antianxiety medication. In November 1993, Dr. Kerwin filled out a form for
plaintiff’s lender on which he stated that plaintiff had been temporarily totally
disabled since December 1992, and that her anticipated recovery date was
“indefinite.” Id. at 281.
At the beginning of May 1994, plaintiff moved to Oklahoma so that she
could be treated at the Choctaw Nation Hospital. Plaintiff was first seen there on
May 3 and was still being treated there at the time of the hearing before the ALJ
in December 1994. Liver tests performed in May and June 1994 showed an
upward trend in certain liver enzymes, and hospital records showed continued
complaints of headaches, diarrhea, abdominal pain, decreased energy, depression
and anxiety. Plaintiff was prescribed antidepressants and antianxiety medications,
but was advised to avoid Tylenol and other medications that are detoxified by the
liver. At her request, plaintiff also was referred to Dr. Golla, a gastroenterologist.
Although plaintiff testified at the administrative hearing that Dr. Golla was
treating her, the record does not contain any of his treatment notes or other
medical records.
On December 14, 1994, Dr. Deese, plaintiff’s treating physician at the
Choctaw Nation Hospital, opined that plaintiff’s hepatitis resulted in a “[s]evere
limitation of functional capacity,” making her “incapable” of sedentary activity.
Id. at 285. Dr. Deese also opined that plaintiff’s depression resulted in a
-5- “[m]oderate limitation” of functional capacity, making her “able to engage in only
limited stress situations and engage in only limited interpersonal relations.” Id.
He further stated that plaintiff was “depressed from her chronic disease which has
not been treated and is mentally debilitating.” Id. at 286.
At the administrative hearing in December 1994, plaintiff said that her
primary concern since December 1992 had been to get treatment before her liver
became so bad that it could not be treated. She said she had not yet been able to
receive Interferon treatment because she could not afford it. She explained that
she could not qualify for Medicaid without a finding of disability, and the
Choctaw Nation Hospital told her it did not have the funds to pay for the
treatment. Plaintiff said that her only source of income were the welfare
payments she received for her teenage daughter who lived with her.
Plaintiff testified to very limited daily activities. She felt that her chronic
fatigue was the most limiting of her symptoms. Plaintiff also testified that she
suffered almost daily headaches, which could last as long as four or five hours.
She said she did not take Tylenol or pain relievers because of her liver and was
able to obtain relief only by lying down, sometimes with ice packs on her head.
Plaintiff said she continued to be depressed and was easily upset. Plaintiff also
described difficulties with bouts of diarrhea, stomach pains, and nausea. She felt
that her condition had gotten worse since December 1992.
-6- At the conclusion of plaintiff’s testimony, a vocational expert (VE) was
called to testify. In response to the ALJ’s question, the VE testified that if
plaintiff’s only limitations were that she could lift no more than twenty pounds
and frequently lift or carry no more than ten pounds, then she would be able to
perform all of the jobs comprising her past relevant work, except those that were
performed at the medium exertional level. If he took into account all the
limitations to which plaintiff testified, however, then the VE did not think that
plaintiff would be employable. The VE explained that plaintiff’s daily headaches,
which she said were relieved only by lying down, would eliminate even sedentary
work. He also identified her fatigue and depression as problematic, saying: “I
really feel that the cumulative effects of all these things, her lack of energy as
she’s demonstrated today even in her manner today, I feel that she just wouldn’t
have enough energy to sit eight hours a day and do sedentary work.” Id. at 104.
In February 1995, the Commissioner arranged for plaintiff to be examined
by Dr. Inbody, a psychiatrist, who was also given what he described as “a rather
extensive medical record” to review. Id. at 288. Dr. Inbody diagnosed plaintiff
with moderate depression and ongoing polysubstance abuse. He reported that
plaintiff had severe psychosocial stressors and gave her a “global assessment of
functioning” (GAF) score of forty-five, id. at 290, which meant that she had
“[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
-7- shoplifting) OR any serious impairment in social, occupational or school
functioning (e.g., no friends, unable to keep a job),” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.
1994).
Dr. Inbody’s report consisted of a narrative portion and an attached mental
RFC form, provided by the Commissioner. On the latter, Dr. Inbody reported that
plaintiff had limited but satisfactory abilities to: (1) follow work rules; (2)
understand, remember and carry out simple, detailed, and complex job
instructions; and (3) maintain her personal appearance. He also reported that
plaintiff was seriously limited in her abilities to: (1) relate to co-workers; (2)
deal with the public; (3) use judgment with the public; (4) interact with
supervisors; (5) deal with work stresses; (6) function independently; (7) maintain
attention and concentration; (8) behave in an emotionally stable manner; (9) relate
predictably in social situations; and (10) demonstrate reliability. See Appellant’s
App. Vol. II, at 291-92.
II. Recent Statutory Amendments
Before considering plaintiff’s challenges to the ALJ’s decision, we must
first address the Commissioner’s argument on appeal that we should affirm the
denial of benefits based on recent changes to the Social Security Act. On
-8- March 29, 1996, Congress amended provisions of both Title II (disability
insurance benefits) and Title XVI (supplemental security income) to provide that
“[a]n individual shall not be considered to be disabled for purposes of this title if
alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner’s determination that the individual is
disabled.” Contract With America Advancement Act of 1996, Pub. L. 104-121,
§ 105(a)(1), (b)(1), 110 Stat. 847, 852, 853 (codified as amended at 42 U.S.C.
§§ 423(d)(2)(C), 1382c(a)(3)(J) (1997)). The Commissioner contends that these
amendments apply to all Title II and Title XVI cases still pending before either
the agency or the courts on March 26, 1996, including this one.
We need not decide whether these amendments apply to the present case
because they do not affect our review at this stage of the proceedings. The
implementing regulations make clear that a finding of disability by the
Commissioner is a condition precedent to an application of the amendatory
language: “If [the Commissioner] find[s] you are disabled and ha[s] medical
evidence of your drug addiction or alcoholism, [the Commissioner] must
determine whether your drug addiction or alcoholism is a contributing factor
material to the determination of disability.” 20 C.F.R. §§ 404.1535(a),
416.935(a). To make this determination, the Commissioner must decide whether
the claimant would still be found disabled if the claimant stopped using drugs.
-9- See id. §§ 404.1535(b)(1), 416.935(b)(1). If so, then the drug addiction is not a
contributing factor material to the finding of disability. See id.
§§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). If, however, the claimant’s remaining
impairments would not be disabling without the drug addiction, then the drug
addiction is a contributing factor material to the finding of disability. See id.
§§ 404.1535(b)(2)(I), 416.935(b)(2)(I).
For us to attempt to apply the amendments, when the Commissioner has
made no finding of disability, would be to put the proverbial cart before the
horse. Contrary to the Commissioner’s suggestion, we may not substitute our
judgment for his by deciding whether plaintiff’s drug use constitutes an addiction
that would be a contributing factor material to a finding of disability were the
Commissioner to make such a finding. Whether plaintiff is disabled and what
role her drug use plays in any disability are questions for the Commissioner to
address on remand. For now, we consider only whether the Commissioner
correctly determined that plaintiff was not disabled, based on the record as a
whole.
III. Plaintiff’s Challenges to The ALJ’s Decision
The ALJ found that plaintiff’s hepatitis, depression, and substance abuse
constituted severe impairments that restricted her to light or sedentary jobs
-10- requiring only the ability to understand, remember, and carry out simple
instructions. In reaching this conclusion, the ALJ rejected most of plaintiff’s
allegations about her nonexertional limitations, and also rejected the opinions of
plaintiff’s treating and examining physicians about her ability to work.
Plaintiff challenges the ALJ’s decision on three grounds: (1) the ALJ did
not properly consider medical source opinions; (2) the ALJ did not properly
evaluate the credibility of her subjective complaints; and (3) the ALJ’s
determination that she retained the residual functional capacity to perform
sustained light and sedentary work was not supported by substantial evidence.
Plaintiff’s arguments highlight several interrelated errors that undermine the
ALJ’s entire decision.
The first error was the ALJ’s mischaracterization of the level of plaintiff’s
daily activities. This error relates to plaintiff’s first and second challenges to the
ALJ’ decision. In the spring of 1993, plaintiff filled out three forms containing
questions about her daily activities and the effect of her impairments on those
activities. Her mother, Mrs. Camp, also completed a form asking similar
questions in September 1993. According to the ALJ, these forms showed that,
despite her impairments, plaintiff still got up in the morning, took a shower and
did dishes or laundry. Further, plaintiff was able to do her own household chores,
-11- such as preparing meals and grocery shopping, as well as maintain her hobbies,
watch television, read a significant amount, and drive.
In so describing plaintiff’s activities, the ALJ ignored other statements on
the same forms that evidenced limitations on plaintiff’s activities. For instance,
in concluding that plaintiff did a significant amount of reading, the ALJ
apparently focused on Mrs. Camp’s recitation of the wide variety of materials
plaintiff read, while ignoring plaintiff’s statement that she fell asleep whenever
she watched television or read.
Likewise, the ALJ mentioned only that plaintiff performed some household
chores, while ignoring her statements that household chores were the most
difficult activity and that she had to stop and start because she tired easily while
doing them. Also, Mrs. Camp said she did not think plaintiff would do well
completing household chores if she were under time demands. She reported that
plaintiff tended to get side-tracked because she would start a task, then have to
stop due to fatigue or pain, and would forget to complete the task before turning
to another one. Until she moved in with her parents for a brief period in
mid-1993, plaintiff reported that she sometimes waited several days to do her
dishes. Even after plaintiff left her parents’ home and moved in with her cousin,
Mrs. Camp reported that she continued to do plaintiff’s laundry for her.
-12- Additionally, while the ALJ was correct in noting that plaintiff said she
usually got up, showered, and did “what really stands out to be done,” he
overlooked the remainder of her statement that she would then lie down on the
couch. Id. at 170. Similarly, while plaintiff did list “decorating & dressing teddy
bears in peacock chairs” and silk flower arrangements as hobbies, she reported
that she could not work for a long time on a project. Id. at 172. The ALJ also
failed to mention that plaintiff’s meal preparation consisted primarily of
microwave dinners, sandwiches, and cold cereal, and that even grocery shopping
was tiring for plaintiff.
By mentioning only parts of plaintiff’s and her mother’s statements, while
leaving out other important parts, the ALJ engaged in the kind of selective and
misleading evidentiary review that this and other courts have rejected. See, e.g.,
Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 743 (10th
Cir. 1993); Teter v. Heckler, 775 F.2d 1104, 1106 (10th Cir. 1985); Binion ex rel.
Binion v. Chater, 108 F.3d 780, 788 (7th Cir. 1997); Fiorello v. Heckler, 725 F.2d
174, 175-76 (2d Cir. 1983). The ALJ then used his mischaracterization of the
level of plaintiff’s daily activities to discount her subjective allegations of
disabling nonexertional limitations and to discredit the RFC assessment of
Dr. Deese, plaintiff’s treating physician at the Choctaw Nation Hospital. The ALJ
also used plaintiff’s statements from 1993 to discredit her testimony about the
-13- level of her activities in December 1994, without considering her testimony that
her condition had worsened over time.
In evaluating whether plaintiff’s nonexertional limitations were disabling,
the ALJ said he followed the familiar framework set forth in Luna v. Bowen, 834
F.2d 161, 163-165 (10th Cir. 1987). The Luna analysis proceeds as follows: (1)
if the objective medical evidence establishes that the claimant has a physical or
mental impairment capable of producing the nonexertional limitation at issue; and
(2) accepting all the claimant’s allegations as true, there is a loose nexus between
the impairment and the nonexertional limitation alleged; then (3) the ALJ must
consider all of the evidence--objective and subjective--to determine whether the
nonexertional limitation is disabling. Id. at 163.
The ALJ apparently concluded that there was a loose nexus between
plaintiff’s subjective symptoms and her mental and physical impairments, and the
record bears this out. Nonetheless, the ALJ discounted the severity of plaintiff’s
complaints at the third step of the Luna analysis for the following reasons: (1)
“the documentary medical evidence shows the claimant’s hepatitis is not of such
severity as to be productive of severe, disabling symptomatology,” id. at 39-40;
(2) although plaintiff complained of diarrhea, vomiting, and abdominal pain, she
showed “no significant weight loss,” id. at 40; and (3) although plaintiff’s
hearing testimony “show[ed] restricted daily activities,” prior statements by
-14- plaintiff and her mother showed less restricted activities, id. The ALJ also stated
that plaintiff’s “level of functioning appears to be affected primarily by her
depression and renewed use of drugs,” but then went on to say that “[r]ecords
show the claimant’s use of drugs is voluntary, and that her depression is
‘situational.’” Id.
Turning to the first reason articulated by the ALJ, we note that an ALJ may
consider the lack of an objective medical basis to support the degree of limitation
alleged as a factor in evaluating a claimant’s credibility, but the ALJ may not use
the lack of corroborating objective medical evidence to disregard the claimant’s
allegations. See Luna, 834 F.2d at 165. In any event, the medical evidence
concerning the effect of plaintiff’s hepatitis on her ability to work generally
contradicts the ALJ’s conclusion. Dr. Burdick, the first gastroenterologist to
whom plaintiff was referred, stated that “fatigue does not differentiate between
patients with mild or severe liver disease.” Id. at 197. Further, those of
plaintiff’s physicians who expressed an opinion consistently concluded that
plaintiff’s hepatitis severely impacted her ability to work. Thus, the medical
evidence concerning the severity of plaintiff’s hepatitis does not provide a basis
for rejecting plaintiff’s complaints of chronic fatigue and other hepatitis-related
symptoms.
-15- Although the second reason articulated by the ALJ may provide a basis for
discounting the severity of plaintiff’s abdominal pain, diarrhea, and nausea, it
does not undermine her complaints of other nonexertional limitations, such as
frequent headaches or fatigue, which plaintiff described as her most limiting
symptom. The ALJ’s third reason for discounting plaintiff’s subjective
complaints is based on his mischaracterization of her level of daily activities,
which we previously discuss and reject.
The ALJ’s conclusion that plaintiff’s renewed drug use is one of the
primary factors affecting her ability to function is not supported by the record. In
fact, except for plaintiff’s hearing testimony, the record is essentially devoid of
evidence about the effects of plaintiff’s drug use. The only evidence directly
addressing the effects of plaintiff’s drug use is her testimony that she started
using heroin again when she moved to California because it helped her escape her
feelings and made it easier to cope with her physical symptoms, that smoking
marijuana made her headaches better, and that using crank, which she had done
five or six times since moving to Oklahoma, ultimately made her feel worse. This
testimony does not provide substantial evidence in support of the ALJ’s
conclusion about the effects of plaintiff’s drug use on her ability to function.
Nor is there record support for the ALJ’s suggestion that the effects of
plaintiff’s depression could be discounted because her depression was merely
-16- “situational.” Dr. Olson, the gastroenterologist who treated plaintiff shortly after
her boyfriend died, did state in his notes that plaintiff’s “problems with
depression . . . apparently are situational,” id. at 247, and he hoped her depression
would resolve sufficiently in three months’ time to begin Interferon treatment, id.
at 243. The medical record, however, is filled with treatment notes dating back as
far as September 1992 that mention plaintiff’s depression and reflect treatment
with antidepressants. Moreover, Dr. Inbody’s diagnosis of moderate depression
as late as February 1995 belies Dr. Olson’s suggestion in June 1993 that
plaintiff’s depression was merely “situational.”
The ALJ also erred by selectively crediting and rejecting portions of Dr.
Inbody’s report. The ALJ essentially credited all Dr. Inbody’s findings and
conclusions in the narrative portion of the report about plaintiff’s mental status,
but then rejected all his conclusions on the attached form about how plaintiff’s
mental status affected her ability to work. The ALJ explained that he did not find
plaintiff’s hearing testimony credible and, therefore, “[i]n view of Dr. Inbody’s
reliance on the claimant’s complaints, the Administrative Law Judge gives little
evidentiary weight to the medical opinion of Dr. Inbody.” Id. at 38-39. The ALJ
also stated that Dr. Inbody’s opinions were inconsistent with his objective
findings.
-17- A physician’s medical opinion includes not only his clinical findings and
test interpretations, but also his subjective judgments. Cf. Lester v. Chater, 81
F.3d 821, 832 (9th Cir. 1995). Generally, an ALJ may not rely on some portions
of a physician’s medical report, while disregarding others. See Switzer v.
Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984) (“[T]he Secretary’s attempt to use
only the portions [of a doctor’s report] favorable to her position, while ignoring
other parts, is improper.”). Moreover, the reasons the ALJ recited for rejecting a
portion of Dr. Inbody’s opinion cannot withstand scrutiny. First, contrary to the
ALJ’s assumption, it is not clear that the opinions Dr. Inbody expressed about
plaintiff’s ability to work were based on her subjective complaints, rather than on
Dr. Inbody’s own medical judgment based on his examination. In any event, as
we discuss above, the ALJ’s analysis of plaintiff’s subjective complaints was
severely flawed and, therefore, cannot provide a proper basis for discrediting
Dr. Inbody’s opinions. Further, while a conflict between Dr. Inbody’s findings
and his conclusions might justify rejecting the latter, the ALJ did not explain how
Dr. Inbody’s conclusions were inconsistent with his findings. The only conflict
that we see is between Dr. Inbody’s statement in the narrative portion of his
report that plaintiff “showed no disturbances in attention and concentration,”
Appellant’s App., Vol. II, at 289, and his indication on the attached form
concerning work-related abilities that plaintiff’s ability to “[m]aintain
-18- attention/concentration” was “seriously limited, but not precluded,” id. at 291.
Otherwise, Dr. Inbody’s statements in the narrative portion of his report do not
appear to conflict with his opinions on the form about plaintiff’s ability to work.
The ALJ also erred in rejecting the RFC assessment of Dr. Deese on the
grounds that it was not supported by either Dr. Inbody’s mental status findings,
the clinical findings, or the level of plaintiff’s daily activities. Again, the ALJ
did not explain what conflict existed between Dr. Inbody’s mental status findings
and Dr. Deese’s conclusions, and we see no conflict between the two.
Dr. Deese’s conclusion that plaintiff’s depression imposed moderate limitations
on her ability to work, enabling her “to engage in only limited stress situations
and [to] engage in only limited interpersonal relations,” id. at 285, was entirely
consistent with Dr. Inbody’s conclusions about plaintiff’s abilities to handle stress
and to relate to other people.
The second reason the ALJ gave for rejecting Dr. Deese’s opinion appears
to relate to his assessment of how plaintiff’s hepatitis, rather than her depression,
affected her ability to work. The ALJ simply stated that the clinical findings did
not support Dr. Deese’s opinion, without providing any further explanation. Our
review of the record shows that the medical evidence consistently established the
existence of plaintiff’s chronic fatigue, as well as other symptoms related to her
hepatitis. We see no objective medical evidence suggesting that the severity of
-19- plaintiff’s hepatitis was not sufficient to produce symptoms as severe as those of
which plaintiff consistently complained.
We turn, then, to the final reason the ALJ gave for rejecting Dr. Deese’s
opinion: that it was not supported by the level of plaintiff’s daily activities. The
ALJ’s distorted assessment of plaintiff’s daily activities was not supported by the
record, however, so it could not provide a proper basis for discounting
Dr. Deese’s opinion.
Having discussed the ALJ’s errors in considering medical source opinions
and assessing plaintiff’s subjective allegations of nonexertional limitations, we
turn to plaintiff’s final challenge to the ALJ’s decision. Plaintiff contends that
the evidence does not support the ALJ’s conclusion that she retains the RFC for
sustained work at the light or sedentary exertional levels. “In order to engage in
gainful activity, a person must be capable of performing on a reasonably regular
basis.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see also
Washington, 37 F.3d at 1442.
The record is replete with evidence that plaintiff suffers from chronic
fatigue. Plaintiff stated that before she stopped working, she had been falling
asleep at work and that her boss had caught her asleep at a machine. Plaintiff
also said that she had to stop and start household chores and that she would have
to go out to the car and lie down after shopping for thirty minutes. She testified
-20- that it took her three months to complete twenty-seven days of community service
she was ordered to perform in early 1994, because she was never physically able
to work past noon. Even the VE commented that he did not think plaintiff would
have the stamina to do even sedentary work for eight hours a day, based upon his
observation of her at the hearing. Despite this evidence, the ALJ’s assessment of
plaintiff’s RFC does not take into account the effects of her chronic fatigue. The
ALJ either ignored or discredited, without a valid explanation, the evidence
supporting plaintiff’s contention that she cannot work on a sustained basis.
IV. Conclusion
In light of the numerous errors made by the ALJ, we cannot say that the
Commissioner’s decision denying social security benefits is supported by
substantial evidence or adheres to applicable legal standards. Therefore, we must
reverse the denial of benefits and remand for further proceedings. If, on remand,
the Commissioner finds plaintiff disabled, then he must consider whether she has
a drug addiction that is a contributing factor material to the determination of
disability and otherwise comply with the 1996 congressional amendments to
Titles II and XVI.
-21- The judgment is REVERSED, and the case is REMANDED to the district
court with directions to remand to the Commissioner for further proceedings.
ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge
-22-