Crosby, v. Astrue,

Filing 24

ORDER: the Commissioner's decision is REVERSED and this case is REMANDED to the Commissioner for rehearing. By Judge Raymond P. Moore on 3/18/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-00584-RM
HARRY M. CROSBY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
ORDER REVERSING ADMINISTRATIVE LAW JUDGE=S DECISION
AND REMANDING TO THE COMMISSIONER
THIS MATTER comes before the Court on Plaintiff Harry M. Crosby’s (“Plaintiff”)
request for judicial review pursuant to 42 U.S.C. ' 405(g). Plaintiff challenges the final decision
of Defendant, the Commissioner of Social Security (“Commissioner”). The administrative law
judge (“ALJ”) ruled Plaintiff was not disabled within the meaning of the Social Security Act
(“Act”). For the reasons set forth below, the ALJ’s denial of benefits is reversed and the case is
remanded to the Commissioner for rehearing.
I. BACKGROUND
Plaintiff applied for disability insurance benefits (DIB) in March 2004, alleging disability
beginning in March 1999 (Admin. Record (“Tr.”) at 349). After his application was initially
denied, Plaintiff requested a hearing before an ALJ which was held in March 2006 (Tr. 26-49, 306,
323). Following the hearing, the ALJ issued a decision finding Plaintiff not disabled (Tr.
309-17). Plaintiff requested review of that decision by the Appeals Council, which remanded the

case to an ALJ for a new hearing (Tr. 338-43). A hearing was held in January 2009 before a
different ALJ (Tr. 79-111). Before that second hearing, Plaintiff sent the ALJ a letter amending
his alleged onset date to March 2002, and requesting that the ALJ reopen a prior DIB application
that had been filed in September 2001 (Tr. 473-74). In February 2009, the new ALJ issued a
decision in which he reopened the prior application (with the new alleged onset date of March
2002), but found that Plaintiff was not disabled (Tr. 26-40). Plaintiff timely requested judicial
review before this Court.
A.

Background and Medical Evidence

Born in 1955, Plaintiff was 49 years old in December 2004, his date last insured1 (Tr. 27,
60). Plaintiff had worked as a truck driver and an electrician (Tr. 170). Plaintiff was injured in a
1999 work accident which caused chronic lower back pain (Tr. 511). Such pain restricts his
ability to sit, walk or stand (Tr. 390). Plaintiff underwent a laminectomy, and was considered at
maximum medical improvement for his work related injury as of August 1, 2001 (Tr. 228).
Despite surgery, his back pain did not improve (id).
Plaintiff presented before William Shaw, M.D., one of his treating physicians, on February
1, 2002. Dr. Shaw diagnosed Plaintiff with “Chronic lumbar radicular syndrome and failed back
syndrome” (Tr. 485). On July 22, 2003, Dr. Shaw provided a Medical Source Statement of
Ability to do Work Related Activities. In that assessment, Dr. Shaw indicated that Plaintiff
cannot operate a motor vehicle due to the prolonged sitting required (Tr. 301-304). He stated that
Plaintiff can sit “1 hour at a time, 4-5 hours in an 8 hour work day” (needing a “5 to 7” minutes

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Because this case is for DIB only, Plaintiff must prove that his disability began on or before his date last insured. 20
C.F.R. ' 404.131.

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break after each hour of sitting); can stand “0-1 hour at a time, 2-3 hours in an 8 hour day”; and can
walk “0 to 1 hour at a time, 2 to 3 hours in an 8 hour day” (Tr. 301-305; emphasis added).
In February 2002, Rita Starritt, M.D., performed a consultative exam. A lumbosacral
spine film was performed and reviewed by Dr. Starritt showing “loss of disc space at the L4-L5,
consistent with a fusion” (Tr. 300). Dr. Starritt further stated, inter alia, that Plaintiff “cannot
crawl due to his back pain” and “when he sits he needs to be able to change position every
half-hour or so” (id).
On March 20, 2002, Plaintiff received services through the Colorado Division of
Vocational Rehabilitation from Christy Jabour, M.D. (Tr. 531). Dr. Jabour performed a
vocational assessment which stated: “The fact that he cannot sit for long periods of time, even to a
certain extent, excludes the possibility of any sedentary-type work.” Dr. Jabour limited
Plaintiff’s sitting to “10-15 minutes at a time” (Tr. 531-537).
On June 8, 2004, Paul Shadler, M.D., performed a consultative exam which indicated that
Plaintiff can sit for “4-6 hours” in an eight hour day (Tr. 514-5). The report does not indicate how
long he can sit at one time. Dr. Shadler does note that during the examination, “after being seated
for 5-10 minutes, Plaintiff got up to stretch” (Tr. 512).
On April 7, 2006, Plaintiff underwent a Functional Capacities Evaluation by Doris Shriver,
OTR.2 Extensive testing was performed, and Ms. Shriver concluded that Plaintiff is limited to ten
minutes sitting at one time, two hours in an eight hour day. According to Ms. Shriver, Plaintiff is
unable to sustain an eight hour work day, being able to perform a total of five hours sit/stand/walk
combined (Tr. 444-457).
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Occupational Therapist Registered (“OTR”).

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B.

The ALJ Decision

The ALJ issued his decision on February 27, 2009 (Tr. 26-40). In reaching his
conclusion, the ALJ followed the five-step sequential evaluation process for evaluating disability
claims3 (Tr. 27-28). See 20 C.F.R. ' 404.1520(a)(4). The ALJ found that Plaintiff had the
following severe impairment: degenerative disc disease of the lumbar spine (Tr. 29). The ALJ
further found Plaintiff’s Residual Functional Capacity (“RFC”) to be as follows:
[T]he claimant had the residual functional capacity to perform all work activities
with the following limitations: he could lift and carry up to 10 pounds; sit 1 hour at
a time for a total of 5 hours in an 8-hour work day; stand 1 hour at a time for a total
of 3 hours in an 8-hour work day; and walk 1 hour at a time for a total of 3 hours in
an 8-hour work day. The claimant can occasionally climb, stoop, crouch, kneel,
and crawl; and occasionally operate a motor vehicle.
(Tr. at 31.)
Based on this determination, and on the vocational expert’s testimony which in turn was
predicated on the ALJ’s RFC determination, the ALJ found that there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform – including a Final
Assembler, Lens Inserter and Order Clerk (Tr. 40). Therefore, the ALJ concluded that Plaintiff
was not disabled. See 20 CFR § 404.1520(g).
II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial evidence
in the record as a whole supports the factual findings and whether the correct legal standards were
applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is evidence
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The five-step process requires the ALJ consider whether a claimant: (1) engaged in substantial gainful activity
during the alleged period of disability; (2) had a severe impairment; (3) had a condition which met or equaled the
severity of a listed impairment; (4) could return to his past relevant work; and, if not, (5) could perform other work in
the national economy. See 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750
(10th Cir. 1988).

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that a reasonable mind might accept as adequate to support a conclusion. Id. “It requires more
than a scintilla, but less than preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007).
Although a district court will “not reweigh the evidence or retry the case,” it “meticulously
examine[s] the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty v. Astrue, 515
F.3d 1067, 1070 (10th Cir. 2007); see also 42 U.S.C. ' 405(g). Evidence is not substantial if it is
overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th
Cir. 2005). In reviewing the Commissioner’s decision, the Court may not substitute its judgment
for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). As the Tenth
Circuit observed in Baca v. Dep’t of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993), the
ALJ also has a basic duty of inquiry to “fully and fairly develop the record as to material issues.”
Id. at 479-480. This duty exists even when the claimant is represented by counsel. Id. at 480.
III. ANALYSIS
Plaintiff raises several issues for consideration, including: (1) that the ALJ’s findings do
not include all of the limitations contained in the medical opinions that were adopted by the ALJ –
i.e., that the RFC determination is inconsistent with, inter alia, the medical opinion of Dr. Shaw;
and (2) that the ALJ’s hypothetical questions to the vocational expert did not precisely reflect
Plaintiff’s limitations and thereby the vocational expert’s testimony is not based on substantial
evidence.4

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Plaintiff raises other issues concerning, inter alia, credibility determinations and additional evidence submitted
before the Appeals Council. An abbreviated analysis of these issues is addressed in Section III.C., infra.

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Because the Court finds that the ALJ’s findings were not supported by substantial
evidence, by not addressing all the limitations contained in the medical opinions that were adopted
by the ALJ, the Court finds that this error requires remand. For the reasons stated below, the
Court also finds that the second issue similarly warrants further consideration on remand.
A.

RFC Determination Not Supported by Substantial Evidence

Plaintiff attacks the ALJ’s RFC findings by contending that the ALJ gave controlling
weight to the opinion to Dr. Shaw, but failed to consider all of his opinion and make specific
findings for the purposes of the RFC determination. (ECF No. 15 at 8; ECF No. 19 at 3.)
The RFC assessment is made by the ALJ “based on all the relevant evidence in [the
claimant’s] case record.” 20 C.F.R. ' 404.1545(a)(1). The RFC is an assessment of the most a
claimant can do despite his or her limitations. Id. Examples of the types of evidence required to
be considered in making an RFC assessment are the claimant’s medical history, medical signs and
laboratory findings, and medical source statements. Soc. Sec. Ruling (SSR) 96B8p (July 2, 1996).
An ALJ must make “specific” RFC findings based on all of the relevant evidence in the case
record. See Winfrey v. Chater, 92 F.3d 1017, 1023 & 1025 (10th Cir. 1996).
The RFC assessment must include a narrative discussion describing how
the evidence supports each conclusion, citing specific medical facts . . . and
nonmedical evidence . . . the adjudicator must discuss the individual’s
ability to perform sustained work activities in an ordinary work setting on a
regular and continuing basis . . . and describe the maximum amount of each
work-related activity the individual can perform based on the evidence
available in the case record. The adjudicator must also explain how any
material inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.
SSR 96B8p (emphasis added).

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The ALJ’s findings regarding a claimant’s RFC must be supported by substantial evidence.
See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff challenges the ALJ’s RFC determination contending that it did not accurately
reflect the opinion of Dr. Shaw – a treating physician who had been afforded controlling weight in
the ALJ’s decision – because certain limitations were not expressly adopted in the RFC. Plaintiff
contends that this omission renders the RFC finding deficient and, accordingly, the substantial
evidence test has not been met. The Court agrees the substantial evidence test has not been met.
The reason is two-fold.
First, the RFC determination is inconsistent with Dr. Shaw’s opinion because the former
does not account for Plaintiff’s need for breaks of up to five to seven minutes after sitting or
standing. The Commissioner’s characterization of this argument as a “red herring” (ECF No. 18
at 15) is misplaced because the RFC assessment must be “specific as to the frequency of the
individual’s need to alternate sitting and standing” since such findings may “erode” the
“sedentary” job base. See Soc. Sec. Rul. 96B9P, 1996 WL 374185 at *7 (July 2, 1996). This
SSR Ruling is consistent with Winfrey, supra at 1023 (stating that an ALJ must make “specific”
RFC findings based on all of the relevant evidence in the case record). See also Henrie v. United
States Dep’t of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993).
Here, the treating physician (Dr. Shaw) specifically opined on the frequency of when
Plaintiff should sit or stand which the ALJ failed to address, contrary to the requirement stated in
SSR 96-9P and recognized in Winfrey, supra, and Henrie, supra.
The sit/stand limitation is critical to the ALJ’s analysis because it directly relates to the
question proposed to the vocational expert who provides an opinion on the types of jobs Plaintiff
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may perform. Without such evidence, the substantiality test cannot be met. The Court finds that
the deficiency warrants remand. See generally Flaherty, supra at 1070 (a district court
“meticulously examines the record as a whole, including anything that may undercut or detract
from the ALJ’s findings in order to determine if the substantiality test has been met”).
Second, the ALJ’s decision is deficient because he has failed to explain “material
inconsistencies” in the evidence in the case record. SSR 96-8P. By not accounting for
limitations stated in Dr. Shaw’s report, the ALJ has failed to explain how Dr. Shaw’s opinion is
consistent with Dr. Starritt’s opinion that Plaintiff is required to change position every half-hour or
so (Tr. 300). Specifically, the ALJ stated that “Dr. Starritt’s evaluation and opinions overall are
supported by objective signs and findings that are consistent with the record as a whole”5 (Tr. 34).
Dr. Shaw’s opinion, however, does not require Plaintiff to change every half-hour or so and, as
such, is inconsistent with Dr. Starritt’s opinion. The ALJ’s failure to explain the inconsistency
constitutes reversible error. Accordingly, the Court must remand the decision for further
consideration. See Winfrey, supra at 1023.6

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The problem phrase is conclusory and, without more, cannot constitute substantial evidence. The ALJ’s decision is
required to be fully developed so that it can be properly reviewed. See Hardman v. Barnhart, 362 F.3d 676, 679 (10th
Cir. 2004).
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As a corollary, if the ALJ does not resolve evidence with respect to the sit/stand limitation, Dr. Starritt’s opinion
requiring a change in position every half-hour (when coupled with other evidence in the record) begins to overwhelm
the five-seven minute limitation provided by Dr. Shaw. Grogan, supra at 1261-62 (stating that “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record”). Resolution of this issue is critical because it
impacts the questions that are proposed to the vocational expert at step 4 of the evaluation process. In short, a
deficient RFC determination has a ripple effect insofar that it infects the substantiality of evidence provided by the
vocational expert to the ALJ that has a direct impact on whether a disabling finding is found (or not). This concern is
directly relevant in this case and a further reason warranting remand.

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B.

The ALJ’s Hypothetical Questions to the Vocational Expert Did Not Precisely
Reflect Plaintiff’s Limitations

Plaintiff contends that the ALJ erred because the hypothetical questions proposed to the
vocational expert did not reasonably reflect Plaintiff’s limitationsCi.e., “the RFC does not account
for all of [Plaintiff]’s functional limitations” as described in Dr. Shaw’s report. (ECF No. 15 at
10.) Such error, Plaintiff says, derives from a deficient RFC determination. The Court agrees.
As discussed above, the ALJ’s questions to the vocational expert were not predicated on an
RFC that was founded on substantial evidence. Therefore, the Court finds that the testimony
elicited from the vocational expert cannot be said to relate with precision to Plaintiff=s limitations,
and cannot constitute substantial evidence upon which to deny Plaintiff=s disability claim. See
Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited by hypothetical
questions that do not relate with precision to all of a claimant’s impairments cannot constitute
substantial evidence to support the [Commissioner’s] decision.”).
Accordingly, the Court concludes that because the ALJ’s omission of Dr. Shaw’s sit/stand
limitation is material – i.e., not precise as to the limitations proscribed by Dr. Shaw’s report – this
tainted the vocational expert’s testimony. Hargis, supra at 1492. As such, substantial evidence
is lacking in this case to support the ALJ’s determination as to Plaintiff’s claim for disability
benefits. Remand is required to resolve these deficiencies.
C.

Remaining Arguments

Plaintiff raises additional issues related to the sufficiency of the underlying proceedings.
1. Credibility Determination by the ALJ of Plaintiff
Plaintiff contends that the ALJ’s credibility findings as to Plaintiff’s symptoms (back pain)
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are not supported by the record as whole (ECF No. 15 at 7-8).
As a threshold point, the Court notes that attacking the ALJ’s credibility findings is
generally futile on appeal. It is not a court’s role to reweigh the evidence before the ALJ. See
Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). Indeed, it is the ALJ’s role to weigh and
resolve evidentiary conflicts and inconsistencies. See, e.g., Rutledge v. Apfel, 230 F.3d 1172,
1174 (10th Cir. 2000). From an evidentiary standpoint, the only issue relevant to the Court is
whether substantial evidence exists in the record to support the ALJ’s conclusions. See Oldham
v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (providing that the court reviewing the ALJ’s
decision reviews “only the sufficiency of the evidence, not its weight”; emphasis in original).
As such, the Court finds that because Plaintiff’s argument is directed to credibility findings
– a province of the ALJ – the Court will not disturb those findings. It follows that the findings
need not be addressed on remand.
2. Dr. Ruth’s Report
Subsequent to the hearing, Plaintiff obtained vocational evidence from Bonnie Ruth, PhD,
to rebut evidence provided by the vocational expert. Dr. Ruth pitched the rebuttal at two levels.
First, Dr. Ruth contended that the Dictionary of Occupational Titles (DOT) was outdated and not a
reliable source about the current labor market. Second, she contended that Plaintiff would not
qualify for then-current job listings in the Colorado market for the identified occupations.
Plaintiff contends it was error for the Appeals Council to accept and consider this evidence, and
then not to discuss the same.
Where new and material evidence is submitted, the Appeals Council is required to consider
the evidence if it relates to the period on or before the date of the ALJ hearing decision. 20 C.F.R.
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§ 404.970(b). Where the Appeals Council makes the evidence a part of the record, this
constitutes an implicit determination that the claimant submitted qualifying new evidence for
consideration. Martinez v. Barnhart, 444 F.3d 1201, 1207 (10th Cir. 2006); see Krauser v.
Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011). As such, the Appeals Council is required to
consider such evidence as part of its evaluation of the entire record. It is not, however, required to
specifically discuss and analyze the effect of the evidence on the ALJ’s decision. Martinez v.
Barnhart, supra at 1207-1208.
In this case, the Appeals Council considered Dr. Ruth’s report and made it a part of the
record (Tr. 11, 14). Contrary to Plaintiff’s contention, the Appeals Council was not required to
discuss such evidence. Where the Appeals Council has accepted the new evidence, however, an
issue is raised as to whether the Court must, on review, either consider the additional evidence or
make a de novo review as to whether the evidence is new, material and chronologically relevant.
Martinez v. Barnhart, supra at 1208; Krauser v. Astrue, supra at 1328-1329. The Tenth Circuit
has not “definitively resolve[d]” the issue, Krauser v. Astrue, supra at 1329, and the Court finds it
need not do so here because of the remand to the Commissioner for consideration of the sit/stand
limitation. Here, as previously addressed, the limitation raised by Dr. Shaw directly relates to the
questions proposed to the vocational expert and the opinions thereby rendered. Accordingly, the
Commissioner’s decision on remand regarding such limitation, of which the Court expresses no
opinion, may render the vocational expert’s testimony – and Dr. Ruth’s criticism of the same –
moot. On remand, the Court leaves to the Commissioner to determine how to address Dr. Ruth’s
report in light of the evidence presented as a whole.

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IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and this case
is REMANDED to the Commissioner for rehearing.
DATED this 18th day of March, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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