Ray v. Astrue

Filing 18

ORDER Reversing Disability Decision and Remanding to Commissioner. By Judge Robert E. Blackburn on 3/3/2014. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn

Civil Action No. 12-cv-02850-REB
DENNIS G. RAY,
Plaintiff,
v.
CAROLYN W. COLVIN, 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],1 filed October 29, 2012,
seeking review of the Commissioner’s decision denying plaintiff’s claim for supplemental
security income benefits under Title 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 is disabled as a result of degenerative disc disease of the
spine, osteoarthritis of the knees, and chronic pain disorder. After his application for
supplemental security income benefits was denied, plaintiff requested a hearing before
1

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

an administrative law judge. This hearing was held on may 17, 2011. At the time of the
hearing, plaintiff was 53 years old. He has high school education and past work
experience as a construction laborer and psychiatric aide worker. He has not engaged
in substantial gainful activity since April 8, 2009, the date of his application for benefits.
The ALJ found that plaintiff was not disabled and therefore not entitled to
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 with postural restrictions. 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 he could perform. She 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
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,

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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
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. § 416.920(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

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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).
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 alleges that the ALJ erred in failing to properly assess plaintiff’s ability to

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perform light work. I agree and therefore reverse.2
The ALJ purported to assign “significant weight” to the opinion of Dr. Katherine L.
Rufner, a consultative examiner who examined plaintiff on behalf of the agency, in
concluding that plaintiff was capable of light work. (Tr. 13, 169-175.) Dr. Rufner
suggested, inter alia, that plaintiff could occasionally lift and carry up to 20 pounds. (Tr.
175.) Light work, however, requires both the ability to lift up to 20 pounds at a time and
the ability to lift and carry up to 10 pounds frequently. 20 C.F.R. § 416.967(b). See
Social Security Ruling 83-10, 1983 WL 31251 at *5-*6 (SSA 1983) (“frequently”
means “occurring from one-third to two-thirds of the time”). In addition, “most light jobs
– particularly those at the unskilled level of complexity – require a person to be standing
or walking most of the workday.” Social Security Ruling 83-14, 1983 WL 31254 at *4
(SSA 1983).
“The RFC assessment is a function-by-function assessment based upon all of
the relevant evidence of an individual's ability to do work-related activities.” Social
Security Ruling 96-8p, 1996 WL 374184 at *3 (SSA July 2, 1996). The Commissioner
has recognized expressly that
[i]nitial failure to consider an individual's ability to perform the
specific work-related functions could be critical to the
outcome of a case. . . . [A] failure to first make a
function-by-function assessment of the individual's limitations
or restrictions could result in the adjudicator overlooking
some of an individual's limitations or restrictions.
2

Because I find this argument sufficient to warrant reversal, I do not consider plaintiff’s alternative
arguments that the ALJ also erred in (1) finding that Dr. Rufner’s opinion supported a conclusion that the
standing and walking requirements of light work were met; and (2) characterizing Dr. Rufner’s opinion as
being that plaintiff was “unlimited as to sitting” without also considering her suggestion that plaintiff would
require frequent position changes while seated. Of course, any error in this respect may be addressed on
remand.

5

Id. at *3-4. Such is the nature of the error that occurred here. Contrary to the
Commissioner’s suggestion, the necessary function-by-function assessment was not
implicit in the ALJ’s bare conclusion that plaintiff could perform light work.3 Such an
argument is directly contradicted by the Commissioner’s own policy statement. Id. at *1
(“The RFC assessment must first identify the individual's functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function basis[.]
. . . Only after that may RFC be expressed in terms of the exertional levels of work[.]”).
Indeed, it defies reason to suggest that ALJ can conclude that a claimant is capable of
work at a certain exertional level prior to assessing whether he has the ability to perform
the functional requirements of that level of work. By failing to consider whether plaintiff
could perform all the lifting requirements of light work, the ALJ therefore committed legal
error.
Nor was this error harmless. A claimant of plaintiff’s age and level of education
who has no transferable job skills4 and is capable of only sedentary work is considered
disabled under the Commissioner’s Medical Vocational Guidelines. See 20 C.F.R. Part
404, Subpart P, App. 2, § 201, Table No. 1, Rule 201.14. The case therefore must be
remanded for a proper determination of plaintiff’s residual functional capacity.5

3

Nothing in Dr. Rufner’s opinion supports a conclusion that plaintiff can lift up to 10 pounds
frequently – indeed, she noted that plaintiff’s ability to lift and carry, although limited to 20 pounds
occasionally, “will certainly be less when he has knee and back pain.” (Tr. 175.) Plaintiff’s own testimony
was to the effect that his wrist pain is sometimes so bad that he cannot hold a fork. (See Tr. 14.)
4

There is nothing in the record to indicate whether plaintiff has transferrable job skills.

5

Although plaintiff asks for a directed award of benefits, I find it would not be proper to exercise
my discretion in that regard here. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993). By this
decision, I do not find or imply that plaintiff is or should be found to be disabled.

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IV. ORDERS
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;
2. That this case is REMANDED to the ALJ, who is directed to
a.

Perform a function-by-function analysis of plaintiff’s limitations as
described more fully herein;

b.

Recontact any treating source, seek the testimony of medical
experts, order consultative examinations, solicit further vocational
expert testimony, or otherwise further develop the record as she
deems necessary;

c.

Reassess plaintiff’s residual functional capacity; and

d.

Reassess the disability determination; and

3. That plaintiff is AWARDED his costs to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28 U.S.C.
§ 2412(a)(1).
Dated March 3, 2014, at Denver, Colorado.
BY THE COURT:

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