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    Harold Dean Burns v. Kenneth S. Apfel, Commissioner, Social Security Administration, 145 F.3d 1345, 10th Cir. (1998)

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    This document summarizes a court case regarding a social security benefits claim. The court found that the administrative law judge erred in relying solely on the medical-vocational guidelines to deny benefits without calling a vocational expert, given the claimant's potential nonexertional limitations from obesity, shortness of breath, hypertension, and loss of movement. The administrative law judge also failed to fully develop the record to resolve conflicts between medical opinions on the claimant's functional limitations. The court remanded the case for further proceedings.

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    Harold Dean Burns v. Kenneth S. Apfel, Commissioner, Social Security Administration, 145 F.3d 1345, 10th Cir. (1998)

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    This document summarizes a court case regarding a social security benefits claim. The court found that the administrative law judge erred in relying solely on the medical-vocational guidelines to deny benefits without calling a vocational expert, given the claimant's potential nonexertional limitations from obesity, shortness of breath, hypertension, and loss of movement. The administrative law judge also failed to fully develop the record to resolve conflicts between medical opinions on the claimant's functional limitations. The court remanded the case for further proceedings.

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    Filed: 1998-06-01 Precedential Status: Precedential Citations: 145 F.3d 1345 Docket: 97-2323

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    This document summarizes a court case regarding a social security benefits claim. The court found that the administrative law judge erred in relying solely on the medical-vocational guidelines to deny benefits without calling a vocational expert, given the claimant's potential nonexertional limitations from obesity, shortness of breath, hypertension, and loss of movement. The administrative law judge also failed to fully develop the record to resolve conflicts between medical opinions on the claimant's functional limitations. The court remanded the case for further proceedings.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    18 views6 pages

    Harold Dean Burns v. Kenneth S. Apfel, Commissioner, Social Security Administration, 145 F.3d 1345, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case regarding a social security benefits claim. The court found that the administrative law judge erred in relying solely on the medical-vocational guidelines to deny benefits without calling a vocational expert, given the claimant's potential nonexertional limitations from obesity, shortness of breath, hypertension, and loss of movement. The administrative law judge also failed to fully develop the record to resolve conflicts between medical opinions on the claimant's functional limitations. The court remanded the case for further proceedings.

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    of 6

    145 F.

    3d 1345
    98 CJ C.A.R. 2822
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Harold Dean BURNS, Plaintiff-Appellant,


    v.
    Kenneth S. APFEL, Commissioner, Social Security
    Administration,* Defendant-Appellee.
    No. 97-2323.

    United States Court of Appeals, Tenth Circuit.


    June 1, 1998.

    Before PORFILIO, BARRETT, and HENRY, Circuit Judges.

    1ORDER AND JUDGMENT**


    2

    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) and 10th Cir. R. 34.1.9. The case is
    therefore ordered submitted without oral argument.

    Plaintiff Harold Dean Burns filed a claim for social security disability and
    supplemental security income benefits on October 26, 1993, alleging a
    disability beginning on October 23, 1992, due to obesity, shortness of breath,
    hypertension, loss of movement, and pain. After a hearing, an administrative
    law judge (ALJ) denied plaintiff's claim at step five of the evaluation sequence.
    See generally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The
    ALJ decided that plaintiff could not return to any of his past work, but
    nevertheless retained the residual functional capacity (RFC) to perform
    sedentary work without any significant nonexertional limitations. Relying on

    the medical-vocational guidelines (the "grids"), 20 C.F.R. pt. 404, subpt. P,


    app. 2, the ALJ concluded that plaintiff was not disabled. The Appeals Council
    denied review, making the ALJ's decision the final agency decision. Plaintiff
    then brought this suit. The district court adopted the magistrate judge's
    recommendation that the agency's decision be affirmed. Plaintiff appeals. We
    have jurisdiction under 42 U.S.C. 405(g) and 28 U.S.C. 1291.
    4

    On appeal, plaintiff asserts that: (1) the ALJ erred in finding that his multiple
    impairments do not meet or equal in severity the listing for obesity set forth in
    20 C.F.R. pt. 404, subpt. P, app. 1, 9.09; (2) the district court erred in
    concluding that he waived, by not raising it in his request for review to the
    Appeals Council, his claim that his obesity, shortness of breath, hypertension,
    and loss of movement constitute nonexertional impairments that should have
    precluded the ALJ from relying on the grids to find that he is not disabled; and
    (3) the ALJ improperly disregarded the opinions of plaintiff's treating
    physician, Dr. Hoffman, and tests performed at the direction of Dr. Hoffman.
    We review the agency's decision on the whole record to determine only
    whether the factual findings are supported by substantial evidence and the
    correct legal standards were applied. See Goatcher v. United States Dep't of
    Health & Human Servs., 52 F.3d 288, 289 (10th Cir.1995). We may not
    reweigh the evidence or substitute our judgment for that of the agency. See
    Kelley v. Chater, 62 F.3d 335, 337 (10th Cir.1995).

    Plaintiff's second issue has merit--our rule that issues not raised to the Appeals
    Council are waived on judicial review is not retroactive. See James v. Chater,
    96 F.3d 1341, 1343-44 (10th Cir.1996). Plaintiff made his request for review to
    the Appeals Council on November 8, 1995, before James was decided. See II
    Appellant's App. at 6. The district court therefore erred in adopting the
    magistrate judge's recommendation that plaintiff had waived any issues under
    James. Defendant's argument that plaintiff's issue is waived under other
    established law is misplaced because the cases it cited deal with exhaustion of
    administrative remedies by waiting (or not waiting) for a final agency decision.
    Plaintiff's claim proceeded to a final decision by the Social Security
    Administration.

    In the alternative to waiver, the magistrate judge recommended that plaintiff's


    issue lacked merit because the ALJ did not rely on the grids conclusively, but
    used them only as a framework for decision-making. See I Appellant's App. at
    46. This alternative holding is faulty for two reasons. First, the ALJ in fact
    applied the grids mechanically after finding that plaintiff's nonexertional
    limitations were insignificant. See II Appellant's App. at 12, 14. (The ALJ did
    not specify what nonexertional limitations he meant.) Second, to use the grids

    as a framework for decision-making means that the claimant was found to be


    unable to perform the full range of work in a given RFC category, and that the
    ALJ called a vocational expert (VE) to testify to the erosion of the claimant's
    occupational base. See, e.g., Thompson v. Sullivan, 987 F.2d 1482, 1487, 1491
    (10th Cir.1993); Trimiar v. Sullivan, 966 F.2d 1326, 1332-33 (10th Cir.1992).
    The ALJ in this case did not find that plaintiff was unable to perform the full
    range of sedentary work, and did not call a VE.
    7

    Therefore, we must review the merits of plaintiff's second issue. We first note
    that at step five, "the burden shifts to the [agency] to show that the claimant
    retains the residual functional capacity (RFC) to do other work that exists in the
    national economy." Thompson, 987 F.2d at 1487 (citing Hargis v. Sullivan, 945
    F.2d 1482, 1489 (10th Cir.1991) and 42 U.S.C. 423(d)(2)(A)). The ALJ's
    conclusive reliance on the grids implies a finding that plaintiff can perform the
    full range of sedentary work. See Thompson, 987 F.2d at 1488. This implied
    finding presents additional problems. Sedentary work primarily involves
    sitting, but also includes some standing and walking, and lifting up to ten
    pounds at a time. See id. (citing 20 C.F.R. 404.1567(a)). "[P]eriods of
    standing or walking should generally total no more than about 2 hours of an 8hour workday, and sitting should generally total approximately 6 hours of an 8hour workday." Soc. Sec. Rul. 83-10, 1983 WL 31251, at * 5.

    Plaintiff's treating physician, Dr. Hoffman, wrote that plaintiff is indefinitely


    disabled, but the ALJ rejected his opinion as conclusory and unsupported. The
    ALJ stated that another treating physician, Dr. Vemula, believed that plaintiff
    can perform sedentary work. See II Appellant's App. at 13. In fact, Dr. Vemula
    wrote that plaintiff "is able to engage in sedentary type of work and if he looses
    [sic] weight, he could be able to do regular work." Id. at 170. This statement is
    ambiguous, as Dr. Vemula did not explain what he meant by "regular" work as
    opposed to sedentary work. More importantly, there is nothing in Dr. Vemula's
    office notes that relates his conclusion that plaintiff can perform sedentary
    work to the regulatory definition of sedentary work. Dr. Vemula's opinion
    therefore is conclusory and unsupported, and does not constitute substantial
    evidence to support the ALJ's finding that plaintiff can perform sedentary work.

    The ALJ also relied on the supposed opinion of Dr. Clark, a consultative
    examiner, that plaintiff is not limited in his ability to sit. The ALJ's statement
    both contradicts and mischaracterizes Dr. Clark's opinion, however. Dr. Clark
    filled out a two-page form specifically related to RFC. See II Appellant's App.
    at 134-35. He indicated by checkmarks that plaintiff's impairment affects his
    capacity for lifting/carrying, standing/walking, and sitting, but did not further
    explain how much weight plaintiff can lift or carry, how far and how long he

    can stand or walk, or how long he can sit. See id. Dr. Clark made a note that his
    assessment was based on "no objective findings; [patient] spends all time
    sitting or lying down." Id. at 134. He did not conclude that plaintiff can perform
    sedentary work--or any work at all--and his opinion suggests that plaintiff may
    not be able to perform sedentary jobs that require some lifting/carrying or
    standing/walking. That is, Dr. Clark's opinion indicates that plaintiff cannot
    perform the full range of sedentary work, and that the ALJ should have called a
    vocational expert. See Trimiar, 966 F.2d at 1333.
    10

    It appears that there is an absence of substantial evidence from which the ALJ
    could draw a conclusion. However, "[t]he absence of evidence is not evidence."
    See Thompson, 987 F.2d at 1491. The ALJ has a duty to fully develop the
    record even when the claimant is represented by an attorney, as in this case. See
    Id. at 1492. The ALJ also has considerable discretion to obtain additional
    evidence that may already exist or to procure additional consultative
    examinations to resolve conflicts in existing record evidence. See Hawkins v.
    Chater, 113 F.3d 1162, 1166-67 & n. 5 (10th Cir.1997). Nevertheless, the ALJ
    appears to have made no attempt to acquire more evidence from any physician
    in order to clarify the existing opinions about plaintiff's limitations and ability
    (or inability) to work. Rather, it appears that the ALJ simply chose the treating
    physician's opinion that he favored, even though Dr. Vemula's opinion is just as
    conclusory and unsupported as Dr. Hoffman's. Cf. Switzer v. Heckler, 742 F.2d
    382, 385-86 (7th Cir.1984) ("[T]he [ALJ]'s attempt to use only the portions [of
    a doctor's report] favorable to [his] position, while ignoring other parts, is
    improper."); see also Smith v. Bowen, 687 F.Supp. 902, 904 (S.D.N.Y.1988)
    (stating ALJ may not pick and choose evidence to support his conclusion).

    11

    In addition, the ALJ found that plaintiff's multiple impairments were severe at
    step two, but insignificant at step five. He did not explain how he arrived at that
    conclusion in any more detail than that he did not believe plaintiff. The only
    nonexertional limitation the ALJ mentioned specifically was pain. Plaintiff's
    morbid obesity and hypertension are documented, however. "Obesity is ... a
    nonexertional impairment which might significantly restrict a claimant's ability
    to perform the full range of sedentary work." Lucy v. Chater, 113 F.3d 905, 909
    (8th Cir.1997). Plaintiff testified that he becomes short of breath and has
    difficulty walking due to his weight. See II Appellant's App. at 202.
    Hypertension is also a significant nonexertional impairment. See Evans v.
    Chater, 84 F.3d 1054, 1056 (8th Cir.1996). Diastolic readings persistently
    above 100 mm. Hg. satisfy the listing for obesity. See 20 C.F.R. pt. 404, subpt.
    P, app. 1, 9.09. Although plaintiff clearly does not meet the listing in this case
    (his step three issue is discussed in more detail below), he has several readings
    equal to 100 mm. Hg. in addition to his higher readings. See I Appellant's App.

    at 43-44.
    12

    In spite of plaintiff's documented nonexertional impairments, the ALJ's


    questions to plaintiff at the hearing were extremely cursory with respect to the
    physical requirements of working, plaintiff's ability to work, and the effect of
    plaintiff's nonexertional impairments on his activities.1 In any case, plaintiff did
    not concede his ability to do the full range of sedentary work, and the ALJ's
    conclusion that he can is not supported by substantial evidence. If plaintiff
    cannot perform all the functions of sedentary work as it is defined by the
    regulations, then he cannot perform the full range of sedentary work, a
    vocational expert should have been called, and the grids should not have been
    applied conclusively. See Thompson, 987 F.2d at 1487, 1491; Trimiar, 966
    F.2d at 1332. Plaintiff's assertion that the ALJ did not follow the treating
    physician rule ties in with the ALJ's analysis of plaintiff's nonexertional
    impairments. "An ALJ is required to give controlling weight to a treating
    physician's opinion about the nature and severity of a claimant's impairments ...
    if 'it is well supported by clinical and laboratory diagnostic techniques and if it
    is not inconsistent with other substantial evidence in the record.' " Bean v.
    Chater, 77 F.3d 1210, 1214 (10th Cir.1995) (quoting Castellano v. Secretary of
    Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.1994)). "To reject a
    treating physician's opinion requires 'specific, legitimate reasons.' " Miller v.
    Chater, 99 F.3d 972, 976 (10th Cir.1996) (quoting Frey v. Bowen, 816 F.2d
    508, 513 (10th Cir.1987)). When the claimant has more than one treating
    physician, the ALJ should assess each treating physician's opinion using the
    same criteria.

    13

    There is no merit to plaintiff's contention that his impairments meet or equal


    the listing for obesity. He testified at his hearing that he was five feet, three
    inches tall and weighed 302 pounds at that time. See II Appellant's App. at 18283. It is not disputed that the combination of plaintiff's height and weight
    satisfies the threshold requirement of the obesity listing, 20 C.F.R. pt. 404,
    subpt. P, app. 1, 9.09. The question is whether plaintiff meets any of the
    other, alternative requirements of the listing. He argues that his high blood
    pressure meets the requirement of 9.09B, that is: "[h]ypertension with
    diastolic blood pressure in excess of 100 mm. Hg." He misreads the regulation,
    however, when he argues that readings where his diastolic pressure equaled 100
    mm. Hg. should be considered. The diastolic pressure must exceed 100 mm.
    Hg. before a given reading falls within the listing. A review of the magistrate
    judge's summary of plaintiff's blood pressure readings, which plaintiff concedes
    is generally accurate, shows that his qualifying readings are simply too few to
    satisfy 9.09B. See I Appellant's App. at 43-44. This is true even if the list is
    pared to a time frame as short as a year to match the basic time requirement for

    disability, as plaintiff argues. See Id. We therefore need not decide, as plaintiff
    urges us to do, how many qualifying readings it takes to demonstrate
    "persistently" high blood pressure under 9.09B. Plaintiff's other, cursory
    arguments that his impairments meet or equal 9.09 do not merit discussion.
    The ALJ did not err in concluding that plaintiff is not disabled under 9.09.
    14

    The judgment of the United States District Court for the District of New
    Mexico is AFFIRMED in part and REVERSED in part, and the case is
    REMANDED with directions for the district court to remand to the agency for
    further proceedings in accordance with this order and judgment.

    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

    An additional problem is that the court reporter could not hear some of the
    testimony. The result is that a significant portion of the hearing transcript is
    marked "inaudible."

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