Rеyes A. RAMIREZ, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.
No. 06-2068.
United States Court of Appeals, Tenth Circuit.
Nov. 20, 2007.
514 F.3d 1021 | 2007 WL 4111306
TERRENCE L. O‘BRIEN, Circuit Judge.
327
Cynthia L. Weisman, Office of the United States Attorney District of New Mexico, Albuquerque, NM, Mary F. Lin, Eric D. Poole, Office of General Counsel Social Security Administration, Leronda M. Broyard-Williams, Social Security Administration Office of the Generаl Counsel, Dallas, TX, for Defendant-Appellee.
Before O‘BRIEN, PORFILIO, and ANDERSON, Circuit Judges.
ORDER AND JUDGMENT**
TERRENCE L. O‘BRIEN, Circuit Judge.
Reyes A. Ramirez appeals from an order of the district court affirming the Social Security Commissioner‘s denial of his applications for disability insurance benefits and supplemental security income benefits under the Social Security Act. Exercising jurisdiction under
* Pursuant to
** 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
I.
Mr. Ramirez was born on December 20, 1959. He has a tenth grade education and prior work experience as a truck driver. Mr. Ramirez alleges that he has been unable to work since Novembеr 20, 2001, “due to a combination of ‘severe’ medical impairments, including: diabetes mellitus, hypertension, obesity, low back pain, bilateral knee pain, and asthma.” Aplt. Opening Br. at 3-4 (emphasis deleted).
Mr. Ramirez‘s medical records are thoroughly summarized in great detail in the administrative and district court decisions that were entered in this matter, and we do not deem it necessаry to repeat those summaries here. See Aplt.App., Vol. I at 14-18; Vol. II at 68-75. However, because it is relevant to our remand, we note that, in May 2002, Dr. G.T. Davis examined Mr. Ramirez and performed a physical consultative examination on behalf of the Commissioner. In his written “Evaluation,” Dr. Davis concluded as follows:
Examinee has problems with diabetes, apparently poorly controlled, hypertension that seems to be controlled, history of edema in the left leg greater than the right, possibly due to chronic venous insufficiency, history of left knee surgery with some residual complaints there, history of low back pain, history of visual disturbances, possibly due to shifting blood sugars, recent episodes of pneumonia, and now he is on oxygen apparently for 3-6 months.
. . . .
At this point, given his multiple health problems, and the need for oxygen, it is unlikely he would be able to engage in any significant type of work activity until he is recovered. Once he gets his diabetes under control, he may be able to engage in more activities. He may have some ongoing limitations due to swelling in his leg, and perhaps some post traumatic arthritis in his left knee. Please correlate with any other records or documents.
Id., Vol. I at 128.
After Mr. Ramirez‘s applications for benefits were denied initially and on reconsideration, a de novo hearing was held before an Administrative Law Judge (ALJ) in October 2004. Id. at 184-94. Although a vocational expert (VE) was present at the hearing, id. at 184, the ALJ did not ask the VE any questions, id. at 186-90, 192-93.
In October 2004, the ALJ issued a written decision denying Mr. Ramirez‘s applications for benefits. In his decision, the ALJ went through the sequential evaluation process for determining disability and found: (1) at step one, that Mr. Ramirez had not engaged in substantial gainful activity since November 20, 2001, id. at 14; (2) at step two, that he suffered from severe medical impairments consisting of diabetes mellitus, hypertension, obesity, low back pain, knee pain, and asthma, id. at 15; (3) at step threе, that none of his “impairments meet or medically equal . . . a section of the Listing of Impairments,” id.; and (4) at step four, that he retained “a residual functional capacity for a wide range of light work with occasional kneeling and crawling and avoid intense exposure to smoke, fumes, dust, high wind, extreme cold, and poorly ventilated spaces,” id. at 18. The ALJ then made the fоllowing additional findings at steps four and five of the sequential evaluation process:
The claimant‘s past relevant work as a truck driver was sedentary as he performed it. He could therefore perform his past relevant work as a truck driver because it is within [his] residual functional capacity. This would normally end my inquiry with a conclusion of “not
disabled.” However, becаuse of the nature of his truck driving work, as a seasonal job, I will proceed with the step five analysis, which also leads me to a conclusion of “not disabled.”
At step five, the burden of proof shifts to the Social Security Administration to show that there are other jobs existing in significant numbers in the national economy that the claimant can perform. The claimant‘s age, education, and vocationally relevant past work experience, if any, must be viewed in conjunction with the Medical-Vocational Guidelines of Appendix 2 of Subpart P of the Regulations, which contain a series of rules that may direct a conclusion of either “disabled” or “not disabled” depending upon the claimant‘s residual functional capacity and vocational profile. The Medical-Vocational Guidelines are used as a framework for the decision when the claimant cannot perform all of the exertional demands of work at a given level of exertion and/or has any significant nonexertional limitations.
. . . .
Because the claimant has the exertional capacity to perform substantially аll of the requirements of light work, and considering the claimant‘s age, education, and work experience, a finding of “not disabled” is supported by application of Medical-Vocational Rule 202.17. Id.; see also id. at 19-20 (finding: (1) that “[t]he claimant retains a residual functional capacity to perform substantially all of the full range of light work“; (2) that, “[b]ased on an exertional capaсity for light work, and the claimant‘s age, education, and work experience, Medical-Vocational Rule 202.17 . . . would direct a conclusion of ‘not disabled‘“; and (3) that “[t]he claimant‘s capacity for light work is substantially intact and has not been significantly compromised by any nonexertional limitations“).
In May 2005, the Appeals Council denied Mr. Ramirez‘s request for review of the ALJ‘s deсision. Mr. Ramirez then filed a complaint in the district court. In January 2006, the magistrate judge, sitting by consent of the parties and by designation of the district court pursuant to
Because the Appeals Council denied rеview, the ALJ‘s decision is the Commissioner‘s final decision for purposes of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ‘s decision, “we neither reweigh the evidence nor substitute our judgment for that of the agency.” Casias v. Sec‘y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Instead, we review the ALJ‘s decision only “to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal stаndards were applied.” Doyal, 331 F.3d at 760.
II.
In this appeal, Mr. Ramirez asserts that the ALJ committed two legal errors. First, he claims the ALJ “committed legal error by conclusively applying the Medical-Vocational Guidelines (the [g]rids) [at step five] when the claimant suffered from non-exertional pain and environmental limitations that foreclosed the ALJ from applying the [g]rids without consulting a vocational expert.”1 Aplt. Opening Br. at 6.
A. The Grids and Nonexertional Impairments.
The ALJ found that Mr. Ramirez‘s severe medical impairments havе resulted in two separate nonexertional limitations that effect his RFC and thus his ability to work. First, the ALJ found that he must “avoid intense exposure to smoke, fumes, dust, high wind, extreme cold, and poorly ventilated spaces.” Aplt.App., Vol. I at 18. Second, the ALJ found that he must be limited to only “occasional kneeling and crawling.” Id.
Because he suffers from these nonexertional limitations, Mr. Ramirеz contends that the ALJ erred at step five when he conclusively applied the grids to find him not disabled without consulting a VE. Although this is an error that should be easy to remedy on remand, we agree that it is in fact reversible error.
As a general rule, the grids may not be applied conclusively if the claimant has nonexertional impairments that prevent him from performing “most” (i.e., a “substantial majority“) of the jobs within a particular exertional category. See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993). Consequently, in the case of a claimant who suffers from nonexertional impairments, or a combination of exertional and nonexertional impairments, that prevent him from performing most of the jobs at a particular exertional level, the grids may be used only as a guide or framework, and the Commissioner must prove through expert vocational testimony that jobs exist in the national economy which the claimant can perform. Id. at 1488, 1491-92; see also Channel v. Heckler, 747 F.2d 577, 579-83 (10th Cir. 1984);
We have also recognized, however, that “a nonexertional impairment can have a negligible effect on the range of jobs avail
We have also noted, albeit in dicta, that “[s]ome kinds of nonexertional impairments may lend themselves to a determination by the ALJ as to whether their impact on the range of jobs is signifiсant.” Talbot, 814 F.2d at 1465 n. 6. Importantly, however, in Talbot, we specifically recognized that environmental restrictions may not lend themselves to such treatment. Id. at 1464-65 (discussing, in dicta, an environmental restriction to “avoid work in environments with excessive dust, fumes, or gases,” and stating that, “[a]rguably, only vocational testimony could have provided sufficient data as to whether substantially all of the jobs in the light work category could аccommodate the claimant‘s environmental restrictions“); see also Allen v. Sec‘y of Health & Human Servs., 726 F.2d 1470, 1472-73 (9th Cir. 1984) (reversing ALJ‘s conclusive application of grids to find that claimant was not disabled and remanding for development of vocational evidence concerning whether claimant‘s environmental restrictions as a result of respiratory problems limited his ability to perform a significant number оf sedentary jobs). But because the question was not properly before us in Talbot, we refused “to determine whether environmental restrictions are by their nature the kind of nonexertional impairment that requires vocational testimony in order to determine the extent of the erosion of the occupational base,” id. at 1465 n. 6, and it appears that this is still an open question in this circuit.
As noted above, the ALJ found that Mr. Ramirez must “avoid intense exposure to smoke, fumes, dust, high wind, extreme cold, and poorly ventilated spaces.” Aplt. App., Vol. I at 18. These are nonexertional environmental restrictions that are related to his asthma.2 The ALJ also found, however, that Mr. Ramirez‘s “capacity for light work is substantially intact and has not been significantly compromised by any nonexertional limitations.” Aplt.App., Vol. I at 20, ¶ 13. We interpret this statement to be a finding by the ALJ that Mr. Ramirez‘s environmental restrictions are insignificant from a vocational standpoint and do not prevent him from performing most of the jobs in the light work category. Although this may in fact be the case, out of an abundance of caution, we conclude that the ALJ needs to support this finding with testimony from a vocational expert. Cf. Talbot, 814 F.2d at 1465 (rejecting, in dicta, argument that “use of the term ‘excessive’ modifying dust, fumes, and gases in itself establishes that the [environmental] restriction is insignificant,” and noting that “such an argument is straining at gnats and swallowing camels“). We must therefore remand this case to the Commissioner so that the necessary vocational evidence can be developed.3
B. The ALJ‘s Step-Four Findings and Dr. Davis.
In his decision, the ALJ initially concluded that Mr. Ramirez could “perform his past relevant work as a truck driver because it is within [his] residual functional capacity.” Aplt.App., Vol. I at 18. However, “because of the nature of his truck driving work, as a seasonal job,” the ALJ “proceed[ed] with the step five analysis, which also led him] to a conclusion of ‘not disabled.‘” Id. Although the ALJ did not explain his reasoning on this point, we note that the administrative record indicates that Mr. Ramirez performed his prior job as a truck driver for only six weeks out of the year. Id. at 68, 123, 129. Consequently, we conсlude that the ALJ correctly determined that this job could not qualify under the controlling regulations as “substantial gainful activity” due to the minimal annual monetary earnings involved, and that the job could therefore not be considered as past relevant work for purposes of step four. See
In order to clarify the administrative record, however, and noting that the ALJ should assess RFC once, in detail, at step four, see Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.1996), wе direct the ALJ to make specific written findings on remand explaining why he did not adopt Dr. Davis‘s opinion that Mr. Ramirez was unable to work when he assessed Mr. Ramirez‘s RFC at step four. Soc. Sec. R. 96-8p specifically provides that “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” 1996 WL 374184, at *7 (emphasis added). Despite this clear directive, there is not a single reference in the ALJ‘s decision to the opinions that are set forth in the “Summary” section of Dr. Davis‘s report. In fact, the only reference to Dr. Davis in the ALJ‘s decision is a single sentence stating that “Dr. Davis reported that claimant‘s hypertension seemed to be under control.” Aplt.App., Vol. I at 15.
The judgment of the district cоurt is REVERSED and this case is REMANDED to the district court with instructions to REMAND the case to the Commissioner for further proceedings consistent with this order and judgment.
TERRENCE L. O‘BRIEN
Circuit Judge