Apodaca v. Astrue

Filing 18

ORDER Reversing Disability Decision and Remanding to Commissioner. By Judge Robert E. Blackburn on 5/3/2013. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02508-REB
LOUIS C. APODACA,
Plaintiff,
v.
CAROLYN W. COLVIN,1 Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed September 21, 2012,
seeking review of the Commissioner’s decision denying plaintiff’s claim for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully
briefed, obviating the need for oral argument. I reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he was disabled as a result of non-ischemic cardiomyopathy,

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013,
and thus her name is substituted for that of Michael J. Astrue as the defendant in this suit. FED. R. CIV. P.
25(d)(1). By virtue of the last sentence of 42 U.S.C. § 405(g), no further action need to taken to continue
this lawsuit.
2

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

a history of a left humerus fracture, osteoarthritis of the right knee, plantar fasciitis,
depression, anxiety, and personality disorder. After his applications for disability
insurance benefits and supplemental security income benefits were denied, plaintiff
requested a hearing before an administrative law judge. This hearing was held on July
7, 2011. At the time of the hearing, plaintiff was 54 years old. He has a GED and past
work experience as custodian, construction worker, and sheet metal worker. He has
not engaged in substantial gainful activity since January 1, 2009, his alleged date of
onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff suffered from severe impairments, the judge
concluded that the severity of those impairments did not meet or equal any impairment
listed in the social security regulations. The ALJ found that plaintiff had the residual
functional capacity to perform light work limited to the ability to understand, remember,
and carry out no more than simple instructions. Although this finding precluded
plaintiff’s past relevant work, the ALJ concluded that there were jobs existing in
significant numbers in the national and local economies that she could perform. He
therefore found plaintiff not disabled at step five of the sequential evaluation. Plaintiff
appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed
this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
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work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
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in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

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Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff presents four distinct arguments in this appeal. Because I find that the
ALJ committed legal error in failing to account for the effect of all plaintiff’s mental
impairments in his determination of plaintiff’s residual functional capacity, I decline to
address the remaining arguments. See Watkins v. Barnhart, 350 F.3d 1297, 1299
(10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because
they may be affected by the [administrative law judge's] treatment of the case on
remand.”); accord Gorringe v. Astrue, – F.Supp.2d –, 2012 WL 4510715 at *5 (D.
Colo. Sept. 30, 2012); Barthel, ex rel. T.M.B. v. Astrue, 2009 WL 2476601 at *10
(W.D. Okla. Aug. 11, 2009).
At steps 2 and 3 of the sequential evaluation, the ALJ found that plaintiff’s mental
impairments caused moderate difficulties in maintaining concentration, persistence, and
pace. In fashioning plaintiff’s residual functional capacity at step 4, however, the ALJ
found that plaintiff’s was limited only insofar as he could understand, remember, and
carry out simple instructions. (Tr. 14.) This limitation was ostensibly based on the
opinion of the psychological consultative examiner, Dr. David Diffee, to which the ALJ
claimed he assigned “substantial weight.” (Tr. 18; see also Tr. 377-378.) The ALJ
further noted that his opinion also was consistent with that of the state agency’s
reviewing psychologist, Dr. Kim Morris. (Tr. 18-19, 94-95.)

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There are at least two problems with the ALJ’s conclusion in this regard. First, it
does not adequately account for the degree of limitation suggested by either Dr. Diffee
or Dr. Morris. Although Dr. Diffee did suggest that plaintiff would be limited to
understanding and remembering “the most simple directions or instructions,” his opinion
went further:
I do not think that he could sustain concentration or
persistence for very long if the job was at all repetitive. I
think his social interactions would be okay, but I do not think
his adaptability to various kinds of tasks would be easy for
him.
(Tr. 378.) Similarly, Dr. Morris also found that plaintiff would be moderately limited in his
ability to respond appropriately to changes in the work setting. (Tr. 95.)
The ALJ did not account for these limitations at all in his residual functional
capacity determination. Although residual functional capacity ultimately is an
administrative determination reserved to the Commissioner, 20 C.F.R. §§ 404.1546 &
416.946; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000), it still must be
grounded in some medical evidence, see Anderson v. Shalala, 51 F.3d 777, 779 (8th
Cir. 1995), and “[i]f the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not adopted,” Social Security
Ruling 96-8p, 1996 WL 374184 at *7 (SSA July 2, 1996). More specifically, with
respect to nonexertional capacity, the ALJ must explain how the claimant’s limitations
impact work-related mental activities, including “the abilities to: understand, carry out,
and remember instructions; use judgment in making work-related decisions; respond
appropriately to supervision, co-workers and work situations; and deal with changes in a

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routine work setting.” Id. at *6. By failing to discuss the findings of the two medical
sources on which he ostensibly relied regarding these issues, the ALJ committed
reversible error. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
Nor am I convinced by the Commissioner ‘s argument that the determination of a
claimant’s limitations in one or more of the categories relevant to determining the
severity of mental impairments at steps 2 and 3 has no bearing on the subsequent
steps of the sequential evaluation. Several courts in this district have found this
interpretation to be inconsistent with the law of the Tenth Circuit. See, e.g., Gorringe,
2012 WL 4510715 at *3-4; Baysinger v. Astrue, 2012 WL 1044746 at *6 (D. Colo.
March 28, 2012); McLeran v. Astrue, 2010 WL 4318579 at *6 (D. Colo. Oct. 25, 2010).
I concur with these precedents. The inquiry undertaken at steps 4 and 5 is not divorced
from the analysis at prior steps, but rather builds and expands on it, creating an even
more precise and detailed picture of the claimant’s specific limitations. See Social
Security Report 96-8p, 1996 WL 374184 at *4 (“The mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more detailed assessment
by itemizing various functions contained in the broad categories found in paragraphs B
and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and
summarized on the [Psychiatric Review Technique Form].”).
Moreover, simply limiting a claimant to unskilled work or work requiring no more
than the ability to understand, remember, and carry out simple instructions (as was
done here), does not adequately account for a finding that the same claimant has at

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least moderate impairments in the ability to maintain concentration, persistence, and
pace. Simple work may be ruled out on the basis of an impairment in concentration and
attention, and even moderate impairments may erode the occupational base for
unskilled work. See Bowers v. Astrue, 271 Fed. Appx 731, 733-34 (10th Cir. March 26,
2008); Wiederholt v. Barnhart, 121 Fed. Appx. 833, 839 (10th Cir. Feb. 8, 2005). By
failing to more precisely quantify and describe these limitations, the ALJ’s hypothetical
to the vocational expert did not correlate with adequate precision to all plaintiff’s
impairments so as to constitute substantial evidence in support of the Commissioner’s
burden of proof at step 5. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.
1991). See also O’Connor-Spinner v. Astrue, 627 F.3d 614, 619-20 (7th Cir. 2010);
Ealy v. Commissioner of Social Security, 594 F.3d 504, 516-17 (6th Cir. 2010). That
determination therefore must be reversed.3
THEREFORE, IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is REVERSED; and
2. That this case is REMANDED to the ALJ, who is directed to
a.

Reevaulate plaintiff’s residual functional capacity, including, but not
limited to, the effect thereon of plaintiff’s moderate limitations in
maintaining concentration, persistence, and pace, as well as
considering the other moderate limitations supported by the
medical evidence of record as set forth herein;

3

By this decision, I do not find or imply that plaintiff is or should be found to be disabled.

8

b.

Recontact any treating, examining, or reviewing sources for further
clarification of their findings, seek the testimony of additional
medical or vocational experts, order additional consultative or other
examinations, or otherwise further develop the record as she
deems necessary;

c.

Reevaluate his determination at steps 4 and 5 of the sequential
evaluation; and

d.

Reassess the disability determination.

Dated May 3, 2013, at Denver, Colorado.
BY THE COURT:

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