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
JUDITH F. TUCKER,
Plaintiff-Appellant,
v. No. 05-5118 (D.C. No. 04-CV-474-FHM ) JO A NN E B. BA RN HA RT, (N.D. Okla.) Commissioner of Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.
Judith Tucker appeals from the district court’s order affirming the
Commissioner’s denial of Social Security disability benefits and supplemental
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. security income (SSI) payments. W e have jurisdiction under 42 U.S.C. § 405(g)
and 28 U.S.C. § 1291, and we REVERSE and REM AND for further proceedings.
I.
M s. Tucker applied for benefits on the grounds that she suffers from a
seizure disorder, back pain, hypertension, an adjustment disorder, obesity, and
other impairments. The administrative law judge (ALJ) issued a decision
unfavorable to M s. Tucker. The district court remanded for further proceedings,
directing the Commissioner to determine whether M s. Tucker met the criteria of
seizure-related Listing 11.03 and to further evaluate M s. Tucker’s condition in
other regards.
After two additional hearings, the ALJ determined that none of
M s. Tucker’s impairments were severe enough to meet or equal Listings 11.02,
11.03, 12.02, or 12.04. See 20 C.F.R., part 404, subpart P, app. 1, §§ 11.02,
11.03, 12.02, 12.04. He found that her seizures were relatively well-controlled
with medication, and that her back impairment did not impose substantial
limitations on her ability to work. He further found that her mental impairments
did not preclude her from doing simple and repetitive work activities. Thus, the
ALJ determined that M s. Tucker retained the residual functional capacity (RFC)
to perform light work consisting of simple and repetitive tasks under seizure
precautions. Given her mental restrictions, she could not perform any of her past
relevant work, but the ALJ found that her RFC allowed her to perform jobs
-2- available in significant numbers in the regional and national economies. The ALJ
therefore denied benefits at step five of the five-step sequential evaluation
process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen,
844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step process). The
Appeals Council denied review, and the district court affirmed the A LJ’s
decision. M s. Tucker appeals.
II.
Standard of Review
“W e review the [Commissioner’s] decision to determine whether it is
supported by substantial evidence and whether the [Commissioner] applied the
correct legal standards.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)
(quotation omitted). “We must examine the record closely to determine whether
substantial evidence supports the [Commissioner’s] determination. Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)) (further citation omitted).
Analysis
M s. Tucker argues that the ALJ erred in three respects: (1) at step three,
by ignoring potentially applicable listings; (2) in evaluating her credibility; and
(3) at step five, by failing to propound proper hypothetical questions to the
vocational expert (VE).
-3- A.
“At step three, the ALJ determines w hether the claimant’s impairment is
equivalent to one of a number of listed impairments that the [Commissioner]
acknowledges as so severe as to preclude substantial gainful activity.” Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (quotation omitted). M s. Tucker
initially argues that the ALJ ignored the possibility that she met or equaled
Listings 1.04 (musculoskeletal), 4.02 (chronic heart failure), and 4.03
(hypertensive cardiovascular disease). 1
The district court’s order of remand underlying the most recent ALJ
decision did not mention these listings and there is no indication that
M s. Tucker’s counsel requested the ALJ to consider these listings. In any event,
while M s. Tucker provides record cites for her back impairments, cardiac testing,
and hypertension, she does not establish that she satisfies all of the requirements
of Listings 1.04, 4.02, or 4.03. See Fischer-Ross v. Barnhart, 431 F.3d 729, 733
(10th Cir. 2005) (stating that the claimant has the “step three burden to present
evidence establishing her impairments meet or equal listed impairments”);
1 On appeal, M s. Tucker has abandoned her argument that the ALJ erred in determining that her seizures did not satisfy the criteria for Listings 11.02 or 11.03. Aplt. Reply Br. at 5. She also has withdrawn her credibility-related argument regarding hypertension for failure to argue it in the district court. Aplt. Reply Br. at 11. She has not responded to the Commissioner’s assertion that she also failed to argue before the district court that the ALJ did not consider her obesity in combination with other impairments. W e generally do not consider arguments raised for the first time on appeal, see Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994), and we abide by that general rule here.
-4- Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (stating that a claimant must show
that her impairment “meet[s] all of the specified medical criteria. An impairment
that manifests only some of those criteria, no matter how severely, does not
qualify.”); see also 20 C.F.R. §§ 404.1525(d), 416.925(d) (stating the findings
related in a listing must be met). Thus, we do not find reversible error in the
ALJ’s failure to discuss Listings 1.04, 4.02, and 4.03.
B.
M s. Tucker next argues that the ALJ erred in discounting her credibility
when making his RFC findings. Specifically, she contends that there is no
substantial evidence supporting the findings that (1) her seizures are relatively
well-controlled by medication and that side effects of her medication are
manageable, and (2) her back impairment does not present significant limitations.
She also argues that the ALJ failed to tie his credibility determination to the
evidence. W e agree with her arguments about her seizures and medications, but
disagree with regard to her back impairment.
An adjudicator’s “decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that
weight.” Soc. Sec. Rul. 96-7p, 1996 W L 374186, at *4 (1996). “[F]indings as to
credibility should be closely and affirmatively linked to substantial evidence and
-5- not just a conclusion in the guise of findings.” Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995) (quotation and alteration omitted).
Seizures
The ALJ did offer specific reasons for discounting M s. Tucker’s credibility
regarding the frequency of her seizures and the side effects of her medication,
finding that (1) when under proper treatment, M s. Tucker’s seizures are largely
controllable with medication, and (2) the side effect (sleepiness) can be reduced
by controlling the dosage of Dilantin. He found the seizures controllable
primarily by relying upon the opinion of a testifying medical expert. 2 He also
stated that M s. Tucker’s medical records failed to support her allegations that her
seizures had been uncontrolled despite compliance with medication, and he noted
November 2003 medical records showing that M s. Tucker had only two seizures
in three months and January 2004 medical records indicating that she had no
grand mal seizures and only two smaller seizures since November 2003.
W e note that these proceedings have been lengthy, including a remand from
the district court and additional administrative proceedings. Thus, the period
under consideration for disability benefits stretches from the date of alleged
onset, M arch 4, 1995, to the date last insured, M arch 31, 2001, and the period
2 The ALJ primarily discussed the medical expert’s opinion in connection with determining whether M s. Tucker met or equaled the listings for seizure disorders. Aplt. App. 3 at 433. He explicitly referred to the expert’s testimony again, however, in conjunction with his evaluation of M s. Tucker’s credibility and her RFC. Id. at 437.
-6- under consideration for SSI stretches from the protective filing date, July 28,
1997, to the date of the ALJ’s decision, April 1, 2004. The ALJ’s decision does
not materially focus on the different periods, even though M s. Tucker underwent
different treatments during these time frames. Importantly, while the record
contains evidence that M s. Tucker’s seizures were controllable for at least one
portion of the time, it does not necessarily support such a determination for the
entirety of either period under consideration.
The medical expert testified that usually when M s. Tucker has seizures she
is off medication or her medication is at subtherapeutic levels. Aplt. A pp. 3
at 499-500, 510. M s. Tucker’s medical records, however, generally refute this
proposition. She was prescribed carbamazepine (brand names Epitol and
Tegretol) even before the alleged disability onset date, M arch 4, 1995, and
medical records from July 1994 and January 1995 show her to be within
therapeutic levels. Aplt. App. 2 at 202, 247. In January 1996, she admitted to
one seizure per w eek. Id. at 228. In June 1997, her doctor reported breakthrough
seizures despite medication. Id. at 301. Tests on November 5, 1997, confirmed a
therapeutic level of Tegretol. Id. at 277. By early 1998, her doctor reported that
her seizures were under control with medication. Id. at 307; see also id. at 355.
This state of affairs apparently did not continue, however, as in August 1998 she
reported she was having seizures often. Id. at 398. On September 15, 1998, she
reported having a seizure the previous weekend, and she was barely within the
-7- therapeutic range. Id. at 394-95. In early 1999 her doctors decreased her levels
of Tegretol, and she reported no seizures. Id. at 372. On February 12, 1999, she
reported increased seizure activity, yet she again tested within therapeutic levels.
Id. at 367-68. In April 1999, she reported two seizures per week. Aplt. A pp. 3
at 672.
For some months (particularly late 1999 through early 2001), there is little
evidence of medication levels or treatment for seizures, and there is evidence that
M s. Tucker w as not always taking her medications. Id. at 670 (October 28, 1999,
notation that she has been out of most medications for some time); id. at 665
(M arch 24, 2000, notation that she is unable to afford her blood pressure
medications); id. at 663 (April 25, 2000, notation that she is unable to afford
her medications). To the extent that the ALJ relies on noncompliance with
prescribed treatment to deny benefits, though, he must develop the record as to
noncompliance and determine (1) whether the treatment could restore the ability
to work and (2) w hether the claimant’s failure to follow treatment is justifiable.
See Soc. Sec. Rul. 82-59, 1982 W L 31384, at *2 (1982); see also Soc. Sec. Rul.
87-6, 1987 W L 109184, at *4 (1987) (indicating that if a claimant does not meet
the seizure-related listings but may be found disabled because his or her RFC
does not allow him or her to work, the ALJ must address the issue of failure to
follow prescribed treatment). In this regard, the record is replete with references
to M s. Tucker’s financial problems and alleged inability to afford her
-8- medications, see, e.g., Aplt. App. 2 at 285, 303, 357; Aplt. App. 3 at 622, 624-26,
652, 663, 665, 668, and an individual’s inability to afford treatment may
constitute justifiable cause for failing to comply with prescribed treatment.
Soc. Sec. Rul. 82-59, 1982 W L 31384, at *4.
M s. Tucker’s medical records for the SSI-only period (April 1, 2001,
through April 1, 2004) also do not support the medical expert’s opinion. Rather,
they show that at least since fall 2002 M s. Tucker has complained of seizures
during or near visits w hen her medication was w ithin, or even above, therapeutic
levels. On August 28, 2002, she was prescribed Dilantin for seizure control.
Aplt. App. 3 at 585. On November 25, 2002, she reported a seizure the day
before, yet tests were just within therapeutic levels. Id. at 598, 633. On January
8, 2003, she stated that she averages one or two episodes per week while on
Dilantin (compared to at least two episodes per day when she ran out of
medication). Id. at 627. Less than two weeks later, she tested within therapeutic
levels. Id. at 596. On M ay 29, 2003, she reported having a seizure the day
before, yet she again tested within therapeutic levels. Id. at 594, 616. Similarly,
on September 19, 2003, she was treated for a seizure while testing within
therapeutic levels. Id. at 588, 603. By October 2003, she was listed as taking
“Clonopin” (presumably Klonopin, a brand of clonazepam) as well as Dilantin.
Id. at 722; see also id. at 713, 715, 718 (listing clonazepam among her
medications). Finally, on December 17, 2003, she reported she was taking
-9- medications regularly and still experiencing seizures. Id. at 715. Her tests
showed that she was just slightly above therapeutic levels. Id. at 716; see also id.
at 613, 593 (July 24, 2003, report that she is “still hav[ing] seizures but not as
often” and test showing above-therapeutic levels); id. at 718-19 (November 21,
2003, report of two seizures in past three months; test above therapeutic levels);
id. at 713-14 (January 20, 2004, report of two small seizures in past month; test
above therapeutic levels). Because the medical expert’s opinion is not supported
by the medical evidence, it does not constitute substantial evidence to support the
ALJ’s decision.
The medical expert also testified that dosages of anti-seizure medications
could be reduced to minimize sleepiness or that if necessary a patient could take
other medications. There is no evidence, however, that either of these
propositions applies to M s. Tucker. As discussed above, M s. Tucker reported
seizure activity at therapeutic levels of Tegretol/Epitol and at therapeutic levels of
Dilantin, even after clonazepam was added. See id. at 603 (notation that the day
after Dilantin was decreased, she experienced a seizure). On this record, it is
speculative to determine that she could lessen her dosages and still control her
seizures. M oreover, the record shows that before trying Dilantin and clonazepam,
M s. Tucker had tried at least one other medication (carbamazepine), which
-10- apparently was not as effective as the Dilantin. 3 See id. at 627 (doctor’s note
reporting that she has improved on Dilantin, though she still suffers episodes).
Considering whether other medications, not yet tried, would be effective and not
incur side effects is also speculative. See also Soc. Sec. Rul. 82-59, 1982 W L
31384, at *2 (“Where [the Social Security Administration] believes that treatment
might restore an individual’s ability to engage in any [substantial gainful
activity], but no treating source has prescribed such treatment, a determination of
allowance will be made, and the [disability determination services] will refer the
individual to [vocational rehabilitation].”).
As for the records from November 2003 through January 2004, it appears
that M s. Tucker had fewer seizures because she was over-medicated during this
period. Tests on or near these dates reflected above-therapeutic levels of
Dilantin. Aplt. App. 3 at 714, 716, 719; see also id. at 613, 593 (July 2003
reports of seizures, but not as often, and test showing above-therapeutic level of
Dilantin). And in addition to the Dilantin, M s. Tucker was taking clonazepam at
this time. Id. at 713, 718, 722. Correlating with the over-medication, medical
records also reflect that M s. Tucker appeared somnolent and complained of
3 Both the medical expert and the district court relied on a statement in the record that on February 18, 1999, M s. Tucker told her doctors, “I’m doing great, this medication works.” Aplt. App. 2 at 366. It is difficult to determine whether this statement refers to her seizures, though, because it appears that this visit focused on M s. Tucker’s blood pressure medications, Catapres and Cardizem, not her seizure medications.
-11- excessive sleepiness. Id. at 674, 718, 722. Thus, these records do not support the
ALJ’s finding that M s. Tucker’s seizures are controllable at a level of medication
that does not also cause side effects. In addition, these records relate only to the
last few months of the SSI period, and therefore they do not constitute substantial
evidence of the controllability of her seizures during the disability period or
earlier in the SSI period.
For these reasons, the ALJ’s RFC findings regarding the controllability of
M s. Tucker’s seizures and the potential side effects of her medications cannot
stand.
Back Impairment
Unlike our concerns about the A LJ’s evaluation of her seizure disorder,
however, we do not find persuasive M s. Tucker’s contentions about the A LJ’s
discounting her credibility with regard to her back impairment. The record offers
no support for her argument that she has been diagnosed with osteoarthritis of the
back; rather, it appears that osteoarthritis was discussed in connection with her
knee. See Aplt. App. 2 at 220, 298. W hile the record does reflect some
complaints of and treatment for back pain, it does not require a conclusion of
disabling pain or otherwise indicate that the ALJ reversibly erred in his
determination.
-12- C.
Finally, M s. Tucker argues that the ALJ erred by failing to propound
hypothetical questions to the VE that properly considered the effects of
M s. Tucker’s seizures and medications, her back impairment, and weak grip.
W e agree with regard to her seizures, but disagree with regard to her back and
hand impairments. “At step five of the sequential analysis, an ALJ may relate the
claimant’s impairments to a VE and then ask the VE whether, in his opinion,
there are any jobs in the national economy that the claimant can perform.”
Winfrey, 92 F.3d at 1025. Here, despite acknowledging that M s. Tucker suffers
from occasional seizures, even with medication, the ALJ did not include in his
hypothetical questions any explicit references to her seizures, including whether
and how her suffering occasional seizures or suffering seizures while at work (and
any accompanying after-effects) might affect her employability. M s. Tucker’s
attorney partially ameliorated this omission by inquiring how absenteeism would
affect her ability to work, and the VE replied that any more than one absence
per month “would begin to run into problems.” Aplt. App. 3 at 546.
W hile one could say that the ALJ’s inclusion of seizure precautions
(avoiding heights, open machinery, and operating vehicles) implicitly conveyed
the existence of the seizure disorder to the VE, this court has held that
“[t]estimony elicited by hypothetical questions that do not relate with precision
all of a claimant’s impairments cannot constitute substantial evidence to support
-13- the [Commissioner’s] decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492
(10th Cir. 1991) (quotation omitted; emphasis added); see also Evans v. Chater,
55 F.3d 530, 532 (10th Cir. 1995) (restating “the established rule that such
inquiries must include all (and only) those impairments borne out by the
evidentiary record”). The omission of any specific information about
M s. Tucker’s seizures from the ALJ’s hypothetical questions — such as potential
frequency, type of seizure activity, and any post-ictal effects found by the A LJ —
undermines the VE’s testimony about jobs potentially available to M s. Tucker and
the ALJ’s determination that she can engage in substantial gainful activity despite
her seizure disorder.
The ALJ did not err, however, in neglecting to include more information
about M s. Tucker’s back impairment in his hypothetical questions. W ith the
exception of lifting, which the hypothetical question addressed, the ALJ found no
significant limitations resulting from the back impairment, and substantial
evidence supports this finding. Hypothetical questions “need only reflect
impairments and limitations that are borne out by the evidentiary record.” Decker
v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).
As for weak grip, M s. Tucker’s counsel inquired of the VE whether
M s. Tucker’s grip restrictions had any impact on the jobs identified by the VE,
and the VE testified that they did not. Thus, this information was before the ALJ.
Although M s. Tucker complains on appeal that the ALJ’s questions did not
-14- address any restrictions on fingering and handling, there is no substantial
evidence that M s. Tucker’s weak grip also involves restrictions on fingering or
handling.
III.
M s. Tucker requests that this court order an immediate award of benefits,
a remedy within our discretion. See Ragland v. Shalala, 992 F.2d 1056, 1060
(10th Cir. 1993). “Some of the relevant factors we consider are the length of time
the matter has been pending and whether or not given the available evidence,
remand for additional fact-finding would serve any useful purpose but would
merely delay the receipt of benefits.” Salazar v. Barnhart, __ F.3d __,
180 F.App’x 39, 50 (10th Cir. 2006) (quotation, alteration, and citation omitted).
W e recognize that this matter has been pending for over nine years, but far from
serving no purpose, additional fact-finding and consideration by the ALJ is
appropriate in this case. Thus, M s. Tucker’s request for an immediate award
of benefits is denied. The judgment of the district court is REVERSED, and the
case is REM ANDED to the district court with instructions to remand the case to
the agency for further proceedings consistent with this order and judgment.
Entered for the Court
Stephen H. Anderson Circuit Judge
-15-