Case Information
*1 Before EBEL , BALDOCK , and KELLY , 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(G). The case is therefore ordered submitted without oral argument.
*2
Plaintiff Jimmy D. Lackey appeals from a district court order affirming the
Commissioner’s denial of his application for social security disability benefits.
We examine the record as a whole to determine whether the Commissioner’s
decision is supported by substantial evidence and adheres to applicable legal
standards, though the scope of our review is limited to issues the plaintiff has
preserved and presented on appeal. Chambers v. Barnhart ,
The ALJ found that plaintiff, now fifty-seven years old, suffered from both
a severe physical impairment (chronic back pain from degenerative disk disease
aggravated by injury) and a severe mental impairment (bipolar disorder). These
precluded plaintiff’s return to his past work, from which he had no transferable
skills. The ALJ found that he did, however, have a residual functional capacity
(RFC) for light work, excluding repetitive bending or twisting, close attention to
detail, the exercise of independent judgment, and any more than minimal public
contact. A vocational expert cited several jobs satisfying these restrictions, which
the ALJ relied on to deny benefits at step five of the controlling analysis.
See,
e.g. , Hackett v. Barnhart
,
The ALJ noted that plaintiff’s disability claim was facially supported by his treating physician, Dr. Rother, and his treating psychiatrist, Dr. Kula. Indeed, if accepted, Dr. Rother’s assessment of plaintiff’s physical limitations alone would negate the ALJ’s light RFC determination and require a finding of disability. [1] See App. at 303-06. But the ALJ discounted Dr. Rother’s assessment in part as being “inconsistent with the other substantial evidence in the record.” Id. at 17. While this aspect of the ALJ’s analysis is not directly challenged here, it is significant in that it underscores the corroborative importance of Dr. Metcalf’s opinions as an examining physician. Thus, though Dr. Metcalf’s opinions might not establish plaintiff’s disability per se, they nevertheless had two material roles to play in the analysis of this case. First, they are relevant, albeit not controlling, evidence of plaintiff’s disability in their own right and second, they figure in the analysis of the weight to be accorded Dr. Rother’s potentially dispositive treating-physician findings. We turn, then, to a consideration of Dr. Metcalf’s records.
*4 Dr. Metcalf examined plaintiff several times between July 1997 and October 1998. See id. 247-76. During this period, an MRI revealed lumbar disc bulges at L3-4 and L4-5, and a markedly degenerative disc space at the L5-S1 level. See id. at 244-46. Consistent with this condition, Dr. Metcalf noted limited mobility and pain associated with plaintiff’s lower back preventing his return to work throughout this time. In his last report of October 28, 1998, Dr. Metcalf made it clear that this impairment was permanent. See id. at 250. Using workers’ compensation terminology, he quantified the extent of the impairment in two ways: (1) “29% permanent impairment to the whole man due to the injury sustained to his lower back,” broken down as “22% permanent impairment due to limited range of motion of the lumbar spine” and “7% permanent impairment due to the unoperated degenerative disk disease”; and (2) “100% permanent and total economic disability for the performance of ordinary manual labor or any job for which [plaintiff] is qualified by reason of education or past work experience.” Id. Earlier, when asked to rate plaintiff’s capacity in terms more meaningful to social security disability generally – and more specifically relevant here – Dr. Metcalf indicated plaintiff was capable of only sedentary, not light, work. Id. at 257.
Agency regulations reflected in our circuit precedent prescribe how medical
opinions are to be evaluated. Unless a treating physician’s opinion entitled to
controlling weight is involved, 20 C.F.R. § 404.1527(d) directs the ALJ to
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“consider all of the [factors set out in § 404.1527(d)(1)-(6)] in deciding the
weight [to] give any medical opinion.” If upon considering these factors the ALJ
discounts a medical opinion, the ALJ must “provide specific, legitimate reasons
for rejecting it.” Doyal v. Barnhart ,
Not all of a physician’s opinions are “medical opinions,” however. That term is reserved for “judgments about the nature and severity of [a claimant’s] impairment(s), including [his] symptoms, diagnosis and prognosis, what [he] can still do despite impairment(s), and [his] physical and mental restrictions.” 20 C.F.R. § 404.1527(a)(2). In contrast, judgments that go beyond purely medical findings to reach “issues reserved to the Commissioner” – such as the claimant’s RFC, whether he meets or equals a listing at step three, application of vocational factors, and the ultimate question of disability –“are not medical opinions, as described in paragraph (a)(2) of this section.” Id. , § 404.1527(e). See 65 Fed. Reg. 11866, 11868, 11870 (Mar. 7, 2000) (“amending [§ 404.1527(e)] by adding an introductory paragraph to distinguish opinions on issues reserved to the Commissioner from medical opinions,” and changing heading of regulation “from *6 ‘Evaluating medical opinions about your impairment(s) or disability’ to ‘Evaluating opinion evidence’ to more accurately identify the content of th[is] section[],” since “the term ‘medical opinion’ means . . . judgments about the nature and severity of an individual’s impairments, but [§ 404.1527] address[es] other types of opinions too”).
This distinction is important. The agency “will not give any special
significance to the source of an opinion on issues reserved to the Commissioner.”
20 C.F.R. § 404.1527(e)(3); see Soc. Sec. Ruling (SSR) 96-5p,
Nevertheless, the ALJ must “evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.” SSR 96-5p, at *3. Thus, while § 404.1527(e) and SSR 96-5p constrain the evaluative process under § 404.1527(d), the ALJ must still assess “the extent to which the opinion is supported by the record” and, in doing so, “must apply the applicable factors” from § 404.1527(d). SSR 96-5p, at *3 (emphasis added). In particular, when assessing the probative value of an opinion under§ 404.1527(e), it remains “appropriate to consider the supportability of the opinion [ see § 404.1527(d)(3)] and its consistency with the record as a whole [ see § 404.1527(d)(4)].” SSR 96-5p, at *3.
Applying these principles to the ALJ’s analysis of Dr. Metcalf’s records
leads us to conclude that this case must be reversed and remanded for further
proceedings. Some of what Dr. Metcalf said in his reports, including his finding
of 100% total disability for any job plaintiff is qualified to perform by education
or past work experience, falls under the scope of § 404.1527(e). On the other
hand, his underlying diagnosis of lumbar sprain associated with the MRI results,
his findings of limited range of motion, and his prognosis that the impairment
involved is permanent all appear to fit within the definition of medical opinion set
out in § 404.1527(a)(2). In any event, we need not pause long over the different
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types of opinions here, because the ALJ’s failure to mention Dr. Metcalf or his
records at all clearly violates the Commissioner’s own directives with regard to
either § 404.1527(a)(2) or § 404.1527(e) opinions. “[W]hen, as here, an ALJ
does not provide any explanation for rejecting medical [source] evidence, we
cannot meaningfully review the ALJ’s determination. Although we review the
ALJ’s decision for substantial evidence, we are not in a position to draw factual
conclusions on behalf of the ALJ.” Drapeau v. Massanari ,
The Commissioner argues that Dr. Metcalf’s records are “irrelevant to the
period [under] review,” because he expressed his final opinions several months
before the alleged onset date of plaintiff’s total disability. Aplee. Br. at 11.
[2]
No
authority is cited for the proposition that medical reports prior to the operative
onset date are categorically irrelevant and, indeed, our precedent is to the
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contrary. See Hamlin v. Barnhart
,
Finally, even leaving aside the lack of factual and legal support for the
Commissioner’s arguments on appeal, affirming the denial of benefits on the basis
of such newly-mounted efforts to discredit Dr. Metcalf’s reports would violate the
prohibition on post hoc justification of administrative action.
See Robinson, 366
F.3d at 1084-85. Nor do we see “the right exceptional circumstance” here for a
harmless error approach: we cannot “confidently say that no reasonable
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administrative factfinder,” properly considering the materials from Dr. Metcalf in
conjunction with the rest of the record, “could have resolved [the case] in any
other way” than the ALJ did by neglecting those materials.
Allen v. Barnhart ,
The judgment of the district court is REVERSED and the cause is REMANDED with directions to remand, in turn, to the Commissioner for further administrative proceedings consistent with the principles discussed above.
Entered for the Court David M. Ebel Circuit Judge
Notes
[*] 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] Some limitations recognized in Dr. Rother’s assessment would preclude work at any RFC. But even just considering his negation (through standing and lifting restrictions) of the light RFC found by the ALJ, the difference between a light and sedentary RFC here would have been dispositive of plaintiff’s disability under the Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P., app. 2, § 201.10 (directing decision of “disabled” for sedentary individual closely approaching advanced age without transferable skills if less than full high school education), § 201.14 (same for high school graduate if education did “not provide for direct entry into skilled work,” i.e., if education was not completed in recent past for entry into sedentary work, id. , § 201.00(g)).
[2] The Commissioner notes that plaintiff was trying to work at this time and contends that this engagement in substantial gainful activity belies Dr. Metcalf’s finding of disability. Argument in this vein is undercut by the Commissioner’s own record citations showing plaintiff’s self-employment income at the time (under $3000 per year) to be considerably less than what is presumptively insubstantial for an employee under 20 C.F.R. § 404.1574(b), which (though not controlling) informs the analysis for self-employed claimants too, see 20 C.F.R. § 404.1575(a)(2). Plaintiff’s testimony regarding his effort to work at this time, that he “tried [his] best” but “could not do it, physically or mentally,” App. at 57, is certainly not indicative of a capacity for substantial gainful activity. In sum, the record is simply too scant for anything but speculation about the nature and effect of plaintiff’s attempt to work at the time of Dr. Metcalf’s report.