F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 10 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
SUSAN M. UDERO,
Plaintiff-Appellant,
v. No. 98-2014 (D.C. No. CIV-96-1269) KENNETH S. APFEL, Commissioner (D. N.M.) of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
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. 34.1.9. 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Plaintiff Susan M. Udero appeals from an order of the district court
affirming the Commissioner’s determination that while she was eligible for
disability benefits for a closed period, she is no longer entitled to benefits. We
reverse and remand the case for further proceedings.
We review the Commissioner’s decision to determine whether his factual
findings were supported by substantial evidence in light of the entire record and
to determine whether he applied the correct legal standards. See Castellano v.
Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Ms. Udero alleged disability following an on-the-job injury. The
administrative law judge (ALJ) determined that Ms. Udero had been disabled
from August 30, 1991, until January 15, 1994, at step five of the five-step
sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988). He further determined at step five, that after January 15, 1994, she was no
longer disabled as she could perform the full range of light and sedentary work as
long as she could change positions as necessary.
-2- Because the ALJ conceded that Ms. Udero was disabled until 1994, we do
not review whether she was entitled to benefits during that closed period. The
Commissioner accepts that the medical records during the closed period set forth
impairments severe enough to entitle her to disability benefits. We, therefore,
review only the ALJ’s decision that, due to medical improvement, Ms. Udero was
no longer disabled after January, 15, 1994. We must determine whether that
conclusion is supported by substantial evidence in the record as a whole.
On appeal, Ms. Udero raises two arguments. We reject her argument that
the ALJ failed to consider her problems with urinary incontinence. The record
shows that she had not sought treatment for this symptom since 1992. Indeed, in
January 31, 1994, one physician noted that she did not suffer from urinary
incontinence. See App. at 354.
Ms. Udero also argues the ALJ did not consider the combined effect of her
impairments in determining that she was no longer disabled after January 15,
1994, as her disability continued past that date. We conclude that the record does
not contain substantial evidence to support the ALJ’s decision.
In a closed period case, the ALJ determines that a claimant was disabled
for a specific period of time which both started and stopped prior to the date of
the ALJ’s decision. See Pickett v. Bowen, 833 F.2d 288, 289 n.1 (11th Cir.
1987). In deciding when to end a closed period of disability, the ALJ must
-3- identify specific medical evidence, see Burress v. Apfel, 141 F.3d 875, 880 (8th
Cir. 1998) (“objective medical evidence” must show “discrete improvement” in
claimant’s condition to support choice of closed period date), which leads him to
conclude the claimant can perform substantial gainful activity.
In his decision, the ALJ determined that the medical evidence showed
Ms. Udero’s condition had improved as of January, 15, 1994. He stated that
Ms. Udero no longer had any limitations on her ability to perform sedentary work
with a sit-stand option. The ALJ cited to several medical sources to support his
conclusion. We take issue with each.
The ALJ cited to a July 1993 occupational therapist’s functional capacity
evaluation which stated that Ms. Udero retained the physical ability to perform
sedentary work as long as it allowed for a sit-stand option. The ALJ also cited to
a January 1994 medical evaluation which he stated indicated that Ms. Udero took
no medication for pain. See App. at 86, 353. The evaluating physician reported
that Ms. Udero was taking over-the-counter pain medication, but was a poor
historian and was unable to relate the exact dosage. See id. He prescribed pain
medication and recommended chronic pain management. See id. at 355-56. The
evaluating physician noted that Ms. Udero might have an occult fracture in the
coccyx area which could be “extremely painful.” Id. at 355; see Lester v. Chater,
-4- 81 F.3d 821, 832-33 (9th Cir. 1995) (physician’s medical opinion includes not
only clinical findings and test interpretations, but also subjective judgments).
The ALJ noted that Ms. Udero’s treating psychiatrist’s report documented
significant improvement in her condition as of January 6, 1994. The report
shows, however, that although the psychiatrist expected that Ms. Udero would be
able to return to gainful employment, she currently had “numerous” psychological
barriers and was experiencing anxiety and depression making it difficult for her to
learn new skills. See App. at 374. The psychiatrist noted that he and the
psychologist working with Ms. Udero were “proceeding cautiously” with career
counseling. Id.
The ALJ also concluded that Ms. Udero’s reports of extremely poor
memory and concentration were not supported in the record. The ALJ
acknowledged that one record in March 1994 related more severe problems, but
he concluded that “by January 1994 the claimant’s psychiatric impairment had
improved to a non-severe level.” Id. at 101. However, in the July 1993
functional capacity evaluation, the occupational therapist noted that Ms. Udero
had cognitive problems which resulted in her having difficulty remembering the
order of parts to be placed during a one minute test despite extensive practice
prior to the test.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 10 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
SUSAN M. UDERO,
Plaintiff-Appellant,
v. No. 98-2014 (D.C. No. CIV-96-1269) KENNETH S. APFEL, Commissioner (D. N.M.) of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
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. 34.1.9. 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. Plaintiff Susan M. Udero appeals from an order of the district court
affirming the Commissioner’s determination that while she was eligible for
disability benefits for a closed period, she is no longer entitled to benefits. We
reverse and remand the case for further proceedings.
We review the Commissioner’s decision to determine whether his factual
findings were supported by substantial evidence in light of the entire record and
to determine whether he applied the correct legal standards. See Castellano v.
Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Ms. Udero alleged disability following an on-the-job injury. The
administrative law judge (ALJ) determined that Ms. Udero had been disabled
from August 30, 1991, until January 15, 1994, at step five of the five-step
sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988). He further determined at step five, that after January 15, 1994, she was no
longer disabled as she could perform the full range of light and sedentary work as
long as she could change positions as necessary.
-2- Because the ALJ conceded that Ms. Udero was disabled until 1994, we do
not review whether she was entitled to benefits during that closed period. The
Commissioner accepts that the medical records during the closed period set forth
impairments severe enough to entitle her to disability benefits. We, therefore,
review only the ALJ’s decision that, due to medical improvement, Ms. Udero was
no longer disabled after January, 15, 1994. We must determine whether that
conclusion is supported by substantial evidence in the record as a whole.
On appeal, Ms. Udero raises two arguments. We reject her argument that
the ALJ failed to consider her problems with urinary incontinence. The record
shows that she had not sought treatment for this symptom since 1992. Indeed, in
January 31, 1994, one physician noted that she did not suffer from urinary
incontinence. See App. at 354.
Ms. Udero also argues the ALJ did not consider the combined effect of her
impairments in determining that she was no longer disabled after January 15,
1994, as her disability continued past that date. We conclude that the record does
not contain substantial evidence to support the ALJ’s decision.
In a closed period case, the ALJ determines that a claimant was disabled
for a specific period of time which both started and stopped prior to the date of
the ALJ’s decision. See Pickett v. Bowen, 833 F.2d 288, 289 n.1 (11th Cir.
1987). In deciding when to end a closed period of disability, the ALJ must
-3- identify specific medical evidence, see Burress v. Apfel, 141 F.3d 875, 880 (8th
Cir. 1998) (“objective medical evidence” must show “discrete improvement” in
claimant’s condition to support choice of closed period date), which leads him to
conclude the claimant can perform substantial gainful activity.
In his decision, the ALJ determined that the medical evidence showed
Ms. Udero’s condition had improved as of January, 15, 1994. He stated that
Ms. Udero no longer had any limitations on her ability to perform sedentary work
with a sit-stand option. The ALJ cited to several medical sources to support his
conclusion. We take issue with each.
The ALJ cited to a July 1993 occupational therapist’s functional capacity
evaluation which stated that Ms. Udero retained the physical ability to perform
sedentary work as long as it allowed for a sit-stand option. The ALJ also cited to
a January 1994 medical evaluation which he stated indicated that Ms. Udero took
no medication for pain. See App. at 86, 353. The evaluating physician reported
that Ms. Udero was taking over-the-counter pain medication, but was a poor
historian and was unable to relate the exact dosage. See id. He prescribed pain
medication and recommended chronic pain management. See id. at 355-56. The
evaluating physician noted that Ms. Udero might have an occult fracture in the
coccyx area which could be “extremely painful.” Id. at 355; see Lester v. Chater,
-4- 81 F.3d 821, 832-33 (9th Cir. 1995) (physician’s medical opinion includes not
only clinical findings and test interpretations, but also subjective judgments).
The ALJ noted that Ms. Udero’s treating psychiatrist’s report documented
significant improvement in her condition as of January 6, 1994. The report
shows, however, that although the psychiatrist expected that Ms. Udero would be
able to return to gainful employment, she currently had “numerous” psychological
barriers and was experiencing anxiety and depression making it difficult for her to
learn new skills. See App. at 374. The psychiatrist noted that he and the
psychologist working with Ms. Udero were “proceeding cautiously” with career
counseling. Id.
The ALJ also concluded that Ms. Udero’s reports of extremely poor
memory and concentration were not supported in the record. The ALJ
acknowledged that one record in March 1994 related more severe problems, but
he concluded that “by January 1994 the claimant’s psychiatric impairment had
improved to a non-severe level.” Id. at 101. However, in the July 1993
functional capacity evaluation, the occupational therapist noted that Ms. Udero
had cognitive problems which resulted in her having difficulty remembering the
order of parts to be placed during a one minute test despite extensive practice
prior to the test. See id. at 280. He also noted that she had poor problem solving
skills, including a lack of awareness of problems. See id. at 282.
-5- The ALJ gave “[s]ignificant credit” to Ms. Udero’s complaints of pain and
other problems during the closed period of disability. Id. at 90. He did not,
however, find sufficient support in the record to support her current subjective
claims of limitations. See id. The ALJ did not state why he found Ms. Udero to
no longer be credible regarding her subjective complaints after the closed date.
See Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (“Findings as to
credibility should be closely and affirmatively linked to substantial evidence and
not just a conclusion in the guise of findings.” (footnote omitted)).
The record supports Ms. Udero’s complaints of severe pain. See App. at
355-56. Further, in March of 1994, Ms. Udero’s psychiatrist recommended she be
admitted to an in-patient treatment program for pain management. See id. at 379.
Ms. Udero’s testimony of severe pain is not inconsistent with the objective
medical evidence contained in the medical records and the ALJ failed to support
his decision to find her testimony not credible.
The record shows that Ms. Udero continued to receive psychological
counseling approximately twice a month after the closed period. The ALJ cites
these reports as showing that Ms. Udero was well-oriented and had an appropriate
affect. While these reports show that her mood and affect were appropriate, she
continued to feel anxiety and depression and was tearful during the sessions. See
App. at 375 (1/12/94); 377 (2/23/94); 378 (3/23/94); 379 (3/29/94); 382 (5/11/94);
-6- 384 (5/25/94). These reports do not differ significantly from reports prior to
January, 15, 1994. See id. at 291 (11/3/93: tearful during much of the session,
angry and depressed, well oriented, thoughts clear); 292 (10/13/93: angry and
tearful, mood and affect appropriate and oriented in all spheres); 293 (9/29/93:
having some difficulty sleeping, feels anxious, tearful during interview, well
oriented, thoughts clear and goal directed).
At the hearing, the ALJ asked the vocational expert (VE) whether jobs
would be available if, in addition to the restriction of alternating sitting and
standing, Ms. Udero also had mental problems of depression, did not relate well
to people, and was perhaps affected by agoraphobia. The VE opined that no
employment would be available. See id. at 422. Based on the above cited
reports, the record does not show substantial evidence of improvement in
Ms. Udero’s mental condition. The ALJ failed to explain why he disregarded the
VE’s conclusion that any potential jobs would be eliminated due to Ms. Udero’s
psychological problems.
The ALJ did not specifically explain or otherwise relate the significance of
the January 15, 1994 date to any definable medical improvement. Instead, he
simply asserted that, based upon the objective medical evidence, Ms. Udero had
experienced medical improvement as of that date to the extent that she could
perform substantial gainful employment existing in the national economy. To
-7- reach this conclusion, the ALJ had to ignore evidence in the record which
conflicted with his conclusion. This he may not do. See Switzer v. Heckler, 742
F.2d 382, 385-86 (7th Cir. 1984) (Secretary’s attempt to use only portions of
report “favorable to her position, while ignoring other parts, is improper”); Smith
v. Bowen, 687 F. Supp. 902, 904 (S.D.N.Y. 1988) (“Although the ALJ is not
required to reconcile every ambiguity and inconsistency of medical testimony, he
cannot pick and choose evidence that supports a particular conclusion.” (citation
omitted)).
We conclude that the ALJ’s decision in this case is not supported by
substantial evidence in the record as a whole. The judgment of the United States
District Court for the District of New Mexico is REVERSED with directions to
remand to the Commissioner with instructions to reinstate Ms. Udero’s disability
benefits, including retroactive payments, until the Commissioner conducts a
further hearing and determines that Ms. Udero’s condition has improved to the
point that she is actually capable of substantial gainful activity. See Pacheco v.
Sullivan, 931 F.2d 695, 698 (10th Cir. 1991) (citing White v. Heckler, 774 F.2d
994, 996-97 (10th Cir. 1985)).
Because we have held that Ms. Udero continued to be disabled after the
end date chosen by the ALJ, this new hearing will be for determining whether her
benefits should be terminated and the standards of 20 C.F.R. § 404.1594(f)(1)-(8)
-8- will apply. Should medical improvement be found, any repayment of benefits
received pursuant to this order and judgment will be governed by 42 U.S.C.
§ 423(g). We hold that this appeal was brought in good faith. See id.
423(g)(2)(B); see also White, 774 F.2d at 997.
Entered for the Court
David M. Ebel Circuit Judge
-9-