Worley v. Astrue

Filing 17

OPINION and ORDER. The Commissioner of Social Security's decision is REVERSED and REMANDED. The Clerk shall enter a Judgment in accordance herewith. by Chief Judge Marcia S. Krieger on 1/10/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 12-cv-02533-MSK
SYLVIA WORLEY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.1

OPINION AND ORDER

THIS MATTER comes before the Court on Plaintiff Sylvia Worley’s appeal from the
Commissioner of Social Security’s final decision denying her application for Supplemental
Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. Having
considered the pleadings and the record, the Court
FINDS and CONCLUDES that:
I.

Jurisdiction
On March 18, 2009, Ms. Worley filed a claim for Supplemental Security Income

pursuant to Title XVI. She asserted that her disability began that same day. Her claim having
been initially denied, Ms. Worley filed a written request for a hearing before an Administrative
Law Judge (“ALJ”). This request was granted and a hearing was held on November 16, 2010.

1

Michael J. Astrue was the Commissioner of Social Security at the time Ms. Worley filed her
appeal. Carolyn W. Colvin is substituted as the Defendant in this action to reflect her
designation as Acting Commissioner of Social Security, effective February 14, 2013.

The ALJ issued a decision on January 12, 2011 in which he determined that Ms. Worley was not
under a disability from March 18, 2009 to the date of his decision.
In following the five step process outlined in 20 C.F.R § 416.920, the ALJ found at
Step 1 that Ms. Worley had not engaged in substantial gainful activity since March 18, 2009. At
Step 2, the ALJ found that Ms. Worley had the severe impairments of diabetes mellitus, morbid
obesity, post-traumatic stress disorder and schizoaffective disorder, bipolar type. The ALJ found
at Step 3 that these impairments did not meet or equal one of the impairments listed in § 404,
Subpt. P, App. 1. The ALJ next found that Ms. Worley had the Residual Functional Capacity
(“RFC”) to perform light work as defined in § 416.967(b) except that her ability to sit, stand and
walk was unlimited with the use of a cane; her ability to lift was limited to the light exertional
range; she should avoid climbing due to obesity; she could occasionally stoop, kneel, crouch or
crawl; she should avoid heights and hazards; she was limited to unskilled work; she should not
interact with the general public and she should avoid working in groups. Finally, the ALJ found
that Ms. Worley had no past relevant work history at Step 4, but found at Step 5 that there were
jobs in the national economy, such as assembler of small products, electronics worker and
vegetable sorter, that she would be able to perform given her age, education, work experience
and RFC.
Ms. Worley requested review of the ALJ’s decision. This request was denied by the
Appeals Council on August 2, 2012, making the ALJ’s decision the Commissioner’s final
decision for purposes of judicial review. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir.
2011). The appeal was timely brought, and this Court exercises jurisdiction to review the
Commissioner of Social Security’s final decision pursuant to 42 U.S.C. § 405(g).

2

II.

Issues Presented
Ms. Worley raises four challenges to the Commissioner’s decision. She contends that:

(1) In weighing Dr. Dilullo’s opinion, the ALJ failed to consider that Dr. Dilullo was not aware
that Ms. Worley needed to use a cane; (2) the ALJ did not express the RFC finding on a function
by function basis; (3) the ALJ failed to consider inconsistencies between the vocational expert’s
testimony and the Dictionary of Occupational Titles (“DOT”); and (4) despite giving Dr.
McKinney’s opinion the greatest weight, the ALJ did not account for all of her restrictions.
These are challenges to the ALJ’s findings at Steps 4 and 5. Finding error at both steps, it is not
necessary to address all of the challenges raised.
III.

Material Facts
The material facts are as follows. Ms. Worley was 39 years old when she filed her

application for benefits. She has a limited education and no relevant work experience. Her
impairments include diabetes, obesity, post-traumatic stress disorder, and schizoaffective
disorder, bipolar type. She received regular treatment at Pueblo Community Health Center and
at Spanish Peaks Mental Health Center.
Dr. Dilullo conducted a physical examination on October 10, 2009 in conjunction with
Ms. Worley’s application. He opined that she had no limitation in her ability to lift, sit, stand or
walk, that she could only stoop, kneel, crouch and crawl occasionally, and that she should avoid
hazards. Of note, she did not use a cane at the time of that examination and Dr. Dilullo wrote in
his report: “Assistive Device: None.”
Dr. McKinney evaluated Ms. Worley’s mental health in November 2009, and opined that
she was able to understand, remember and carry out simple, but not complex, tasks. She further
opined that Ms. Worley might have difficulty with sustained concentration without frequent

3

breaks for some tasks, that she was unable to work with the general public and that she may have
difficulty working with groups of others. In contrast, Dr. Dyde, a state agency psychiatrist,
opined that Ms. Worley did not have any severe mental impairments.
The administrative hearing was conducted on November 16, 2010. The ALJ noted that
Ms. Worley used a cane and questioned her about it. Ms. Worley stated that she began using a
cane two to three months earlier because she suffered from dizziness, and using the cane
increased her stability.
Adopting the findings of Drs. Dilullo and McKinney for the purposes of a hypothetical
question, the ALJ inquired of a vocational expert (VE) as to whether jobs existed in the national
economy for a person (1) with unlimited ability to sit, stand, walk and lift; (2) who should avoid
climbing due to obesity; (3) who could only occasionally stoop, kneel, crouch or crawl; (5) who
should avoid hazards; (6) who should be limited to simple, unskilled tasks; and (7) who should
not work with the general public and who would have difficulty working in groups. The
vocational expert, Mr. Duffin identified several jobs involving medium work, i.e., jobs that
require two hands. The ALJ then asked if such person also required the use of a cane would the
person have difficulty performing medium work. Mr. Duffin responded affirmatively. The
interchange continued:
ALJ: “So then, we would make it a light RFC?”
VE: “Yes. I could do that.”
ALJ: “Okay. And would there be other jobs that would be suitable for an
individual with those limitations?”
VE: “Including the cane, right?”
ALJ: “Yes.”
VE: “So, most likely we’d be look[ing] for a seated, light position. . . .”
(AR 8-9).

4

After the hearing, the ALJ found that Ms. Worley was not disabled and that she had the
Residual Functional Capacity (“RFC”) to perform light work as defined in § 416.967(b), with the
additional physical limitations as outlined above. In making this finding, the ALJ assigned the
greatest weight to the medical opinions of Drs. Dilullo and McKinney because they directly
interacted with Ms. Worley, they made objective findings, and their findings were consistent
with the claimant’s longitudinal medical record.
IV.

Standard of Review
Judicial review of the Commissioner of Social Security’s determination that a claimant is

not disabled within the meaning of the Social Security Act is limited to determining whether the
Commissioner applied the correct legal standard and whether the decision is supported by
substantial evidence. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007). On appeal, a reviewing court’s job is neither to “reweigh the
evidence nor substitute our judgment for that of the agency.” Branum v. Barnhart, 385 F.3d
1268, 1270 (10th Cir 2004) (quoting Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991)).
The ALJ is required to consider the medical opinions in the record, along with the rest of
the relevant evidence. § 416.920(b). The ALJ should evaluate an examining physician’s
medical opinion according to the factors outlined in § 416.927. Those applicable to an
examining physician include: (1) the degree to which the physician’s opinion is supported by
relevant evidence; (2) consistency between the opinion and the record as a whole; (3) whether or

5

not the physician is a specialist in the area upon which an opinion is rendered; and (4) other
factors brought to the ALJ’s attention which tend to support or contradict the opinion. Id.
Having considered these factors, an ALJ must give good reasons in the decision for the
weight assigned to a treating source’s opinion. Luttrell v. Astrue, 453 Fed.Appx. 786, 794 (10th
Cir. 2011) (unpublished). The ALJ is not required to explicitly discuss all the factors outlined in
§ 416.927. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006). However, the ALJ must discuss not
just evidence that supports the decision, but also “uncontroverted evidence he chooses not to rely
upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007,
1010 (10th Cir. 1996) (citation omitted). The ALJ may not “pick and choose among medical
reports, using portions of evidence favorable to his position while ignoring other evidence.”
Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008) (citation omitted).
In determining an individual’s RFC, the ALJ 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.” Lawton v. Barnhart, 121 Fed.Appx.
364, 374 (10th Cir. 2005) (quoting SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996), at *7). The ALJ
also must explain how inconsistencies and ambiguities in the case record were resolved, must
make a function by function assessment of individual’s limitations prior to making an RFC
determination (i.e. consider individual’s ability to sit, stand, walk, lift, carry, push and pull), and
must cite specific evidence for each conclusion. Id.; SSR 96-8p, 1996 WL 374184 at *3-7. The
“RFC must not be expressed initially in terms of the exertional categories of ‘sedentary,’ [or]
‘light’. . . .” SSR 96–8p, 1996 WL 374184 at *3. An ALJ's failure to first make a function-by-

6

function analysis of plaintiff's limitations or restrictions could result in the ALJ overlooking
some of plaintiff's limitations or restrictions. Id. at *4.
Finally, testimony elicited by hypothetical questions that do not relate with precision all
of a claimant’s impairments cannot constitute substantial evidence to support the
Commissioner’s decision. Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993). An
impairment does not have to be disabling in order to warrant inclusion in the hypothetical.
§ 416.920(e). Instead, an impairment must be included in the hypothetical given to the VE if it is
severe, i.e., if it significantly limits the plaintiff’s ability to do basic work activities.
§ 416.920(g).
V.

Discussion
Ms. Worley initially challenges the ALJ’s RFC finding at Step 4. She argues that the

ALJ erred by assigning the “greatest weight” to functional ability opinions, but not adopting the
opinion in the RFC. This she characterizes as an impermissible inconsistency for which
inadequate explanation has been given.
A. Opinions by Drs. Dilullo and McKinney
Ms. Worley first challenges the ALJ’s treatment of the opinion by Dr. Dilullo, an
examining physician. He opined that Ms. Worley had no limitations in her ability to lift, sit,
stand or walk, that she could only stoop, kneel, crouch and crawl occasionally, and that she
should avoid hazards. Dr. Dilullo expressly stated that Ms. Worley did not use a cane. In the
Second Decision, the ALJ gave Dr. Dilullo’s opinion the “greatest weight” and largely patterned
his physical RFC determination on that opinion, deviating only insofar as he added the use of a
cane as a further restriction. The ALJ found Ms. Worley had the physical RFC to “perform light
work as defined in § 416.967(b) except that her ability to sit, stand and walk is unlimited with the

7

use of a cane; her ability to lift is limited to the light exertional range; she should avoid climbing
due to obesity; she could occasionally stoop, kneel, crouch, or crawl; she should avoid heights
and hazards. . . . .”
Ms. Worley is correct that there is a facial contradiction between crediting Dr. Dilullo’s
opinion and imposing a restriction of use of a cane that is not found in such opinion. Ordinarily,
“[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must
explain why the opinion was not adopted.” SSR 96–8p. A contradiction is not necessarily
problematic, however, if the ALJ explains his rationale ( i.e., discussed “other factors brought to
his attention with tend to support or contradict the [examining doctor’s] opinion”). § 416.927(b).
Ms. Worley is also correct that the ALJ failed to expressly explain why a cane was
included in the RFC when it was not included in Dr. Dilullo’s opinion. However, it is apparent
from the record that such limitation was imposed because Ms. Worley attended the hearing using
a cane and stated that it was necessary for her balance. Thus, the lack of explanation for the
facial inconsistency between Dr. Dilullo’s opinion and the ultimate RFC is not reversible error.
In essence, the ALJ took Dr. Dilullo’s functional restrictions and added another – the use of a
cane. Arguably, Ms. Worley invited the limitation by explaining that she needed a cane to
address dizziness.
Ms. Worley argues that this situation is analogous to that found in Chapo v. Astrue, 682
F. 3d 1285, 1292-93 (10th Cir 2012). In Chapo, a doctor’s “patently stale opinion” was
inconsistent with later test results creating an inconsistency in medical records that was not
adequately addressed by the ALJ. The Court disagrees. Here, the inconsistency is not between
medical records, nor is the decision based on a failure to consider the entire record. Rather, the

8

inconsistency is purely a facial one, created by the ALJ’s consideration of all of the evidence
including that produced by Ms. Worley at the hearing.
The Court has some doubt that the ALJ erred in failing to explain why the cane restriction
was added to the RFC, but assuming that the lack of explanation constitutes legal error, it was
harmless. Ms. Worley argues that the inconsistency between the RFC and Dr. Dulillo’s opinion
has great import, but she has never sought to supplement Dr. Dilullo’s report or submit another.
The Court reaches a different conclusion with regard to the ALJ’s failure to explain why
Dr. McKinney’s opinion as to Ms. Worley’s non-exertional limitations was not adopted in full.
As noted above, Dr. McKinney opined that Ms. Worley was able to understand, remember and
carry out simple, but not complex, tasks; she might have difficulty with sustained
concentration without frequent breaks for some tasks; she was unable to work with the
general public; and she may have difficulty working with groups of others. The ALJ gave
Dr. McKinney’s opinion the greatest weight, but included only the last portion of Dr.
McKinney’s restrictions - should not interact with the public and should avoid working in
groups – in the RFC. No explanation is given for this deviation. The ALJ was required to
explain why the doctor’s recommendation was ignored. SSR 96–8p; Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007). Because the Court is unable to determine the ALJ’s reasoning and
assessment with regard to Dr. McKinney’s opinion, this is reversible error.
B. Failure to Express the RFC Finding on a Function by Function Basis
Ms. Worley also challenges the ALJ’s failure to express his RFC finding on a function by
function basis. Ordinarily, an ALJ is required to make a function by function assessment of an
individual’s limitations before determining an exertional category such as sedentary or light
work. See SSR 96-8p, 1996 WL 374184 at *3-7. This requires a determination of the

9

individual’s limitations and restrictions of physical strengths with regard to sitting, standing,
walking, lifting, carrying, pushing and pulling. Id; See also Gauna v. Astrue, 11-cv-02781-LBT
(D. Colo. Jan 28, 2013). Failure to assess the claimant’s strengths can result in the ALJ
overlooking some limitations or restrictions. This problem can be compounded if a hypothetical
question to the VE at Step 5 is based on a work category rather than a functional assessment of
all limitations. See Winfrey v. Chater, 92 F.3d 1017, 1024 n.5 (10th Cir. 1996).
Here, the ALJ engaged in the initial determination of limitations and restrictions as
appropriate. But in questioning the VE, the ALJ added an additional restriction – a cane. Rather
than considering the effect of a cane with regard to each function, the ALJ and the VE
considered only its effect on the exertional category – reducing the exertional category from
medium work to light work. This was error.
The error is not harmless because the effect of the cane restriction may vary as to each
function. For example, a cane may have no effect on sitting, may limit standing and walking,
and might limit or prevent lifting, carrying, pushing or pulling. Because the ALJ did not inquire
as to the effect of the cane on each area of function, the Court is without an adequate record to
conclude that any particular job (regardless of its exertion category) can be performed subject to
such limitation. Although, the Commissioner persuasively argues that the “seated, light”
position might be the proper calculation, had the function by function approach been used, a
“sedentary” exertional level might also have been the result. In such event, the available work
may be further restricted by Ms. Worley’s mental limitations.

10

For the forgoing reasons, the Commissioner of Social Security’s decision is REVERSED
and REMANDED. The Clerk shall enter a Judgment in accordance herewith.
Dated this 10th day of January, 2014.
BY THE COURT:

Marcia S. Krieger
United States District Judge

11