                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    HELEN PETTIGREW,

                Plaintiff-Appellant,

    v.                                                    No. 99-7080
                                                    (D.C. No. 97-CV-552-B)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , 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(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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Helen Pettigrew appeals the district court’s affirmance of the final

decision by the Commissioner of Social Security denying her application for

disability benefits. Because the decision is not supported by substantial evidence

and several legal errors occurred, we reverse and remand for further proceedings.

      Plaintiff filed an application for disability benefits on June 20, 1995,

alleging an inability to work due to neuropathy in all extremities, and pain and

weakness in her hands. After a hearing, an administrative law judge (ALJ) found

that although plaintiff could not return to her former work, she retained the ability

to perform a significant number of jobs in the economy and thus was not disabled.

The Appeals Council denied review, making the ALJ’s decision the final decision

of the Commissioner. The district court affirmed, and this appeal followed.

      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether correct legal standards

were applied. See Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (quotation omitted). 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).




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      Plaintiff argues that the Commissioner’s decision is not supported by

substantial evidence because (1) the ALJ ignored undisputed evidence that she

suffers from compressive injuries to her hands/arms that limit her ability to

perform repetitive movements; (2) the ALJ failed to give controlling weight to the

opinions of plaintiff’s treating physicians; (3) the hypothetical presented to the

vocational expert was legally deficient because it did not include any restrictions

on repetitive movement; and (4) the ALJ failed to analyze plaintiff’s pain

properly under Luna v. Bowen, 834 F.2d 161, 162-64 (10th Cir. 1987). After

reviewing the record, we agree with all of plaintiff’s arguments.

      The undisputed medical evidence shows that plaintiff has two separate, but

related, conditions. Plaintiff is suffering from a hereditary peripheral neuropathy

syndrome that causes pain in her feet, legs, and arms. She is also suffering from

bilateral compressive neuropathies to the median and ulnar nerves in her

arms/wrists, for which she underwent surgery in 1991 and 1993. See R. at 70-72.

Despite the surgeries, plaintiff’s condition has worsened, as shown by nerve

conduction studies done in 1994 and 1995. See id.

      Plaintiff has been treated by three physicians for her conditions. From

approximately April 1993 through June of 1995, Dr. Goodman, a neurologist,

treated her on eighteen occasions. His treatment notes document both plaintiff’s

compressive injuries–carpal tunnel syndrome and cubital tunnel syndrome–and


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her familial neuropathy. See id. at 86-90. Dr. Goodman noted the continuing

deterioration of plaintiff’s condition, leading him to recommend that she

discontinue working. See id. at 81 (“Her hands are getting worse and she is

having difficulty working and the constant discomfort she is in is hard to live

with. . . . With progressiveness of her neuropathy and her constant discomfort

I do not think she can continue to work. . . . Although the neuropathy is not

caused by work the work aggravates the pain and discomfort that she has. . . . So,

it is my recommendation to her that she . . . consider retiring from work.”).

      A second neurologist, Dr. Kareus, treated plaintiff during 1994 and 1995.

Dr. Kareus opined that plaintiff was suffering from a hereditary peripheral

neuropathy that made her vulnerable to compressive injuries to the nerves in her

arms and wrists. See id. at 72, 78-80, 84. He also noted that plaintiff’s condition

was deteriorating; that work, especially repetitive activity, seemed to exacerbate

her symptoms; and that her condition improved once she stopped working.

See id. at 80, 83-85.

      Dr. Heim, an orthopedist to whom plaintiff was referred, noted plaintiff’s

continuing problems and her efforts to resolve the symptoms including surgery,

splinting, anti-inflammatories, and rest. After noting that plaintiff’s symptoms

were somewhat alleviated by rest, the orthopedist opined that plaintiff’s residual

problems were permanent, and that she should avoid repetitive activities. See id.


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at 77 (“I think . . . damage to the ulnar nerve was such that it did not have the

capacity to heal . . . . The median nerve has obviously been released and has

improved, but the architecture of the wrist has been changed enough so that

repetitive activity is aggravating her surgery site. . . . I would not feel that

[plaintiff] is a good candidate for repetitive activities.”).

      In August 1995, social security consulting physician Dr. Dean noted

plaintiff’s condition of familial peripheral neuropathy but found no physical

limitations. Dr. Dean did not address plaintiff’s prior surgeries, however, and did

not discuss her compressive neuropathies at all.

      Based on this evidence, the ALJ determined that plaintiff was suffering

from hereditary peripheral neuropathy only, and that she retained the ability to

perform sedentary work limited only by her inability to grip or grasp on a

prolonged basis. The ALJ did not explain why he disregarded medical evidence

of compressive neuropathies in plaintiff’s arms and hands or her treating

physicians’ opinions that she should avoid repetitive activity.

      “A treating physician’s opinion must be given substantial weight unless

good cause is shown to disregard it.” Goatcher v. United States Dep’t of Health

& Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995). The opinion is entitled to

controlling weight “if it is well supported by clinical and laboratory diagnostic

techniques and if it is not inconsistent with other substantial evidence in the


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record.” Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029

(10th Cir. 1994). The ALJ must give specific, legitimate reasons for disregarding

a treating physician’s opinion that a claimant is disabled. See Goatcher, 52 F.3d

at 290.

      Here, substantial evidence in the record supports the opinions of plaintiff’s

treating physicians that she is suffering from two separate, albeit related,

conditions, and nothing in consultative physician Dean’s report contradicts these

opinions. Further, the restrictions placed by the treating physicians on plaintiff’s

ability to perform repetitive motions appear to be well-supported, and should have

been given controlling weight in the absence of any contrary indication in the

consultative physician’s report. The ALJ erred, therefore, in disregarding

plaintiff’s treating physicians’ diagnoses and their opinions that she is limited in

her ability to do repetitive movements.

      The ALJ’s failure to credit the treating physicians’ opinions undermines the

vocational expert’s assessment of plaintiff’s abilities as well. At the hearing, the

ALJ posed the following hypothetical to the vocational expert:

      I would ask you to generally assume that the claimant’s standing and
      walking limitations may confine her to the performance of sedentary
      work. She could not perform–she can perform manipulative activities
      with both hands involving fingering and feeling but she cannot
      involve herself in handling activities that require frequent or
      prolonged gripping or grasping. And I, I don’t know. These . . .
      manipulative limitations are always difficult to articulate, but what
      we’re talking about is that her ability for fingering, that is moving

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       her fingers in coordinated fashion is not limited and she doesn’t have
       a limitation of feeling, size, shape, temperature and texture of objects
       but she, she can do some grasping and gripping but she can’t do
       grasping and gripping on a frequent, that is more than–in other
       words, she couldn’t do so up to two-thirds of the workday or
       gripping that is prolonged. That is where she has to sustain the grip
       for prolonged periods.

R. at 130. The two jobs identified by the vocational expert based on this

hypothetical were a cashier job and an interviewer job requiring extensive

keyboard use. As both of these jobs involve repetitive movements, it is clear that

the ALJ’s failure to include a limitation on such activity in his hypothetical

invalidated his final decision regarding plaintiff’s ability to work. See Evans v.

Chater, 55 F.3d 530, 531-32 (10th Cir. 1995) (reversing final decision where

claimant suffered from bilateral carpal tunnel and the ALJ’s hypothetical failed to

include limitations on claimant’s ability to perform repetitive movements and/or

work requiring strength or dexterity that would place stress on her wrists).

       Plaintiff also argues that the ALJ failed to analyze her pain under the Luna

v. Bowen framework. Under Luna , an ALJ must determine whether a claimant’s

subjective claims of pain are credible.   See 834 F.2d at 163. In making this

determination, the ALJ should consider such factors as “a claimant’s persistent

attempts to find relief for his pain and his willingness to try any treatment

prescribed, regular use of crutches or a cane, regular contact with a doctor . . . the

claimant’s daily activities, and the dosage, effectiveness, and side effects of


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medication.” Id. at 165-66. It is not sufficient for the ALJ simply to list these

factors and to state that he has considered them. He is required to “explain why

the specific evidence relevant to each factor led him to conclude [the] claimant’s

subjective complaints were not credible.”     Kepler v. Chater , 68 F.3d 387, 391

(10th Cir. 1995).

      Here, the ALJ simply stated that “[t]he claimant’s statements concerning

her impairment and its impact on her ability to work are not entirely credible in

light of the degree of medical treatment required, the reports of the treating and

examining practitioners, and the record as a whole.” R. at 14. In support, the

ALJ pointed to two alleged inconsistencies in plaintiff’s testimony, stating:

      The undersigned notes that claimant alleges the surgery has
      aggravated the neuropathy and weakened the grip, but she testified
      that she can button a button, write, open a car door, and take a lid off
      of a catsup bottle, but cannot pick up a cast iron skillet. When asked
      if she felt she could perform a job where she would not have to be on
      her feet or use her hands repetitively, she said that she did not think
      so because her medication made her drowsy. It is interesting to note
      that earlier in her testimony, she stated that she lies down due to
      fatigue.

R. at 14. We do not view either of these statements as inconsistent, however.

The ALJ did not discuss any other evidence to support his conclusion that

plaintiff’s complaints were incredible, and did not explain why he rejected the

undisputed evidence that plaintiff has sought extensive treatment over the years;

has shown a willingness to try different treatments, including bilateral surgeries,


                                            -8-
splinting, anti-inflammatories, and rest; that she takes strong pain medication

despite consistent reports to her doctors that it makes her drowsy; and that she

performs limited activity. Moreover, two of plaintiff’s treating physicians have

opined that she should discontinue working based on the severity of her pain.

Given this record, the ALJ’s cursory analysis of plaintiff’s pain was inadequate

under Luna and Kepler, and cannot stand.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is REVERSED, and the case is REMANDED with directions to remand

the case to the Commissioner of Social Security for further proceedings.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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