Dwier v. Colvin

Filing 19

ORDER that this case is REVERSED AND REMANDED to the Commissioner for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C. § 405(g), by Judge Wiley Y. Daniel on 3/25/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-02595-WYD
DENNIS J. DWIER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

THIS MATTER is before the Court on review of the Commissioner’s decision that
denied Plaintiff’s application for disability insurance benefits [“DIB”] and supplemental
security income [“SSI”] under Titles II and XVI of the Social Security Act [“the Act”], 42
U.S.C. §§ 401-433. For the reasons stated below, this case is reversed and remanded
to the Commissioner for further fact finding.
I.

BACKGROUND
Plaintiff filed a claim for DIB and SSI on January 14, 2008, alleging a disability

onset date of August 31, 2000. (Administrative Record [“AR”] 73.) Plaintiff, born on
November 20, 1957, was 42 years old on his alleged disability onset date. (Id. 27.) The
initial hearing before the Administrative Law Judge [“ALJ”] resulted in an unfavorable
decision dated February 11, 2010. (Id. 73-83.) Plaintiff appealed to the Appeals
Council which remanded the case to the ALJ. (Id. 88-90.)

The remand hearing before the ALJ resulted in an unfavorable decision dated
December 1, 2011 (AR 14-29), at which time the ALJ found that Plaintiff had “changed
age category to closely approaching advanced age.” (Id. 27.) In the sequential
evaluation process required by law, the ALJ found at step one that Plaintiff met the
insured status requirements of the Act through December 31, 2005. (Id. 19.) He also
found that Plaintiff had not engaged in substantial gainful activity since August 31, 2000,
the alleged onset date. (Id.) At steps two and three, the ALJ found that Plaintiff had
several severe impairments, including left knee osteoarthritis, degenerative disc
disease, and depressive disorder, not otherwise specified, but that such impairments
did not meet or medically equal a per se disabling impairment. (Id. 20.)
The ALJ then assessed Plaintiff’s residual functional capacity [“RFC”], finding
that Plaintiff, who has at least a high school education, could “perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b)” except that he “is able to engage in
occasional bending, squatting or kneeling; is unable to climb ladders or scaffolds; is
unable to operate foot or leg controls; and is unable to do complex tasks, meaning the
work must have a Specific Vocational Preparation (SVP) of less than or equal to 3 and
General Education Development of 1 to 3.”1 (AR 21, 27.)

1

SVP is defined as the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average performance in a specific
job situation. U.S. Dep’t of Labor, Employment & Training Admin., Dictionary of Occupational Titles, vol.
II, app. C, pt. III (4th ed. 1991), available at 1991 WL 688702. A SVP of 2 means that a person could
learn how to do this position with a short demonstration, up to and including one month. Id. The General
Education Development [“GED”] “embraces those aspects of education (formal and informal) which are
required of the worker for satisfactory job performance”, and is composed of three division: reasoning
development, mathematical development, and language development. Id.

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With the assistance of a vocational expert, the ALJ found with this RFC that
Plaintiff could still perform his past relevant work as a pizza deliverer or, alternatively,
perform other representative occupations that existed in significant numbers in the
national economy. (AR 27-28.) This included the jobs of small product assembler,
cashier 2, and counter attendant. (Id. 28.) The ALJ thus concluded that Plaintiff had
failed to establish that he was under a disability, as defined by the Act, between the
alleged onset of his disability and the date of the ALJ’s decision. (Id. 29.)
The Appeals Council denied Plaintiff’s request for review (AR 1), making the
ALJ’s decision the final decision of the Commissioner. Plaintiff timely sought review.
Plaintiff argues that the ALJ erred in determining at step four that Plaintiff’s past
work as a pizza deliverer is past relevant work, as the ALJ previously found that this
work did not rise to the level of substantial gainful activity. Further, he argues that the
ALJ did not make a proper credibility finding, and that the ALJ’s limitation on skill level
and GED levels to account for Plaintiff’s severe depression was improper. Lastly,
Plaintiff asserts that the ALJ erred in (1) improperly rejecting Dr. Randall’s restriction to
account for Plaintiff’s frequent bathroom breaks, (2) giving improper reasons for the
weight afforded to the opinions of Drs. Randall and Campbell, and (3) failing to follow
the two-step process for assessing treating physician Dr. McNabb’s opinion.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
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the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
“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). “[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal
apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993). However, the court “must ‘exercise common sense’ in reviewing an ALJ's
decision and must not ‘insist on technical perfection.’” Jones v. Colvin, 514 F. App’x
813, 823 (10th Cir. 2013) (quotation omitted).
The ALJ’s decision must be evaluated “based solely on the reasons given stated
in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Thus, I
will not consider post-hoc arguments of the Commissioner. Carpenter v. Astrue, 537
F.3d 1264, 1267 (10th Cir. 2008).
B.

The Merits of Plaintiff’s Arguments
1.

Plaintiff’s Mental Impairments and the Mental RFC

I first address the argument that the ALJ did not follow the appropriate test for
assessing treating psychiatrist Dr. McNabb’s opinion, as I find it impacts the RFC.
Dr. McNabb completed a Residual Functional Capacity Evaluation (Mental), finding that
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Plaintiff had slight to extreme limitations in connection with his mental capacity to work.
Specifically, Dr. McNabb opined in April 2009 that Plaintiff would have mostly marked
limitations in sustained concentration and persistence and would have moderate
limitations in areas of social interaction and adaptation. (AR 553-54).2 He stated his
opinion was based upon his clinical exam findings, and that while it was unknown how
long Plaintiff’s mental impairments have been at those severity levels, it had been
“several years.” (Id. 554.) In November 2009, Dr. McNabb issued a statement
indicating Plaintiff’s impairments remained at the same severity level. (Id. 598) In April
2011, he opined that Plaintiff’s level of functioning ranged from slight to marked, and
that the impairments had been at these severity levels since 2001. (Id. 601-02.)
The ALJ gave Dr. McNabb’s opinions “little weight.” (AR 25.) In so doing, he
failed to complete the two-step analysis required for considering whether a treating
provider’s opinions are entitled to controlling weight. I find that this is reversible error
that requires a remand of the case. The initial determination the ALJ must make is
whether the treating physician’s medical opinion “is conclusive, i.e., is to be accorded
‘controlling weight,’ on the matter to which it relates.” Krauser v. Astrue, 638 F.3d 1324,
1330 (10th Cir. 2011). “Such an opinion must be given controlling weight if it is
well-supported by medically acceptable clinical or laboratory diagnostic techniques and

2

Among other things, he opined that Plaintiff would have marked limitations in (1) the ability to
complete a normal workday and workweek without interruptions from psychologically based symptoms
and to perform at a consistent pace without an unreasonable number or length of rest periods; (2) the
ability to sustain an ordinary routine without special supervision, and (3) the ability to work in coordination
with or in proximity to others without being distracted by them. (Id. 553.) Dr. McNabb also found that
Plaintiff would have extreme limitations in the ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances. (Id.)

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is not inconsistent with other substantial evidence in the record.” Id. The ALJ did not
discuss or consider whether Dr. McNabb’s opinion was entitled to controlling weight.
Even if the opinion is not entitled to controlling weight, it was still entitled to deference;
“at the second step in the analysis, the ALJ must make clear how much weight the
opinion is being given. . . and give good reasons, tied to the factors specified in the cited
regulations for this particular purpose, for the weight assigned.” Id.
Even if I assume that the ALJ implicitly decided that Dr. McNabb’s opinion was
not entitled to controlling weight, there is no indication that he gave deference to his
opinion or that he weighed the required factors in deciding what level of deference
Dr. McNabb’s opinion should have been given. See Watkins v. Barnhart, 350 F.3d
1297, 1300 (10th Cir. 2003). This alone was reversible error. Id. at 1300-01.
I also find that several of the ALJ’s reasons for rejecting Dr. McNabb’s opinions
are not valid. The first reason relied on by the ALJ is “that an individual with this level of
limitations [as opined to by Dr. McNabb] would normally be expected to be
institutionalized”; “[y]et, no source has suggested that the claimant’s condition is so
severe as to require such drastic measure.” (AR 25.) This is a lay opinion that is
unsupported by any evidence. The Tenth Circuit is clear that “‘[i]n choosing to reject the
treating physician’s assessment, an ALJ may not make speculative inferences from
medical reports and may reject a treating physician’s opinion outright only on the basis
of contradictory medical evidence and not due to his or her own credibility judgments,
speculation, or lay opinion.’” Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004)
(emphasis in original) (quotation omitted).
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The ALJ also found that the limitations in the “check form” opinions are not
supported by Dr. McNabb’s treatment notes or the evidence as a whole. (AR 25.)3 As
to the treatment notes, the Commissioner is correct that Dr. McNabb consistently
observed that Plaintiff demonstrated intact memory, well-organized thought processes,
fair to good insight and judgment, and fair to good hygiene. Dr. McNabb also noted,
however, that Plaintiff “has thoughts of harming himself almost daily but is not
completely preoccupied with suicide” (id. 670), “[h]is depression continues to be about a
7 on a scale of 1/10" (id.), “he has suicidal ideation every day and has for years” (id.
672), and “no medication has worked for his depression” (id. 584). The ALJ did not
discuss and/or minimized these findings. (Id. 24—noting, in contrast to the records, that
“the claimant has occasionally reported fleeting suicidal ideation; also noting that
“[n]otes from Spanish Peaks Mental Health have similarly been fairly normal”)
(emphasis added). An ALJ may not “‘pick and choose among medical reports, using
portions of evidence favorable to his position while ignoring other evidence.’”
Carpenter, 537 F.3d at 1265 (quotation omitted). Moreover, while inconsistency with
other evidence may be a reason to deny controlling weight to Dr. McNabb’s opinion, 20
C.F.R. § 404.1527(c)(2), it is not a reason to completely reject his opinion. Langley, 373
F.3d at 1120.4

3

While the Commissioner asserts that “check-box” forms are entitled to less weight, that is not
necessarily accurate as to the opinion of a treating physician. See Anderson v. Astrue, 319 F. App’x 712,
723 (10th Cir. 2009).
4

Similarly, the fact that the 2009 and 2011 forms completed by Dr. McNabb did not assess the
same level of limitation and differed in terms of how long Plaintiff’s impairments had been at the levels
assessed does not allow the ALJ to simply reject the reports. The regulation in effect when the ALJ issued
his decision required an ALJ to “seek additional evidence or clarification from your medical source when

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Plaintiff also argues that the ALJ’s RFC limitation on skill level and GED levels
did not adequately account for his severe depression, and that the ALJ failed to comply
with the Appeals Council Remand Order. Again, I agree and find that this is another
basis for remand. The Appeals Council stated:
The hearing decision indicates that the claimant has the severe
impairment of depressive disorder, not otherwise specified (Decision,
page 3) and that the claimant had moderate limitations in social
functioning, and concentration, persistence or pace (Decision, page 4).
Despite these findings, the claimant’s residual functional capacity only
included the mental limitation of unable to do complex tasks, meaning
work must have a Specific Vocational Preparation of less than or equal to
3 and General Education Development of 1 to 3 (Decision, page 5).
Additional consideration of the claimant’s mental status and the limitations
in the claimant’s residual functional capacity is warranted.
(AR 89.) The Appeals Council also stated that the ALJ was to give further consideration
to Plaintiff’s RFC “with specific references to evidence of record in support of the
assessed limitations.” (Id. 90.) The ALJ is required to take any action that is ordered by
the Appeals Council. 20 C.F.R. §404.977(b).
Upon remand, the ALJ once again found that Plaintiff’s depression was severe
and that he had moderate limitations in concentration, persistence or pace (AR 20).
Despite this, he assessed the exact same RFC (id.), and failed to discuss, as required
by the Appeals Council, why the RFC only included mental limitations related to SVP
and GED. Moreover, he did not appear to conduct additional consideration of Plaintiff’s
mental status, consider whether additional limitations in the RFC were warranted, or
explain how Plaintiff’s mental health limitations were properly accounted for, as ordered

the report from your medical source contains a conflict or ambiguity that must be resolved.” 20 C.F.R. §
1512(e)(1) (2008).

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by the Appeals Council.5 Accordingly, I agree with Plaintiff that the ALJ violated the
Remand Order of the Appeals Council.
Moreover, the record is devoid of any evidence to support the ALJ’s conclusion
that a reduction in skill and GED levels properly accounted for Plaintiff’s specific mental
health limitations and the ALJ failed to cite any evidence, let alone substantial evidence,
in support of same. (AR 24-25).6 The ALJ’s RFC assessment thus appears to have
improperly been based upon his own lay assessment of the medical evidence, which
was error. See Winfrey v. Chater, 92 F.3d 1017, 1021-22 (10th Cir. 1996) (an ALJ is
not entitled to reject a doctor’s opinions without adequate justification or to substitute his
own medical judgment for that of mental health professionals). This error “is especially
profound in a case involving a mental disability.” Morales v. Apfel, 225 F.3d 310, 319
(3rd Cir. 2000). The error impacted not only the RFC but the hypothetical question
given to the vocational expert.
Indeed, the Tenth Circuit has clearly stated that there is a distinction between
skill level and mental functions. Jaramillo v. Colvin, 576 F. App’x 870, 876 (10th Cir.
2014) (citing Chapo v. Astrue, 682 F.3d 1285, 1290 n. 3 (2012)). While in some
circumstances mental limitations can be accommodated by a reduction in skill level,
such as to unskilled work, this only occurs where the limitations found by the ALJ are

5

The ALJ stated that there is no evidence that Plaintiff’s “mental condition has required anything
more than conservative treatment” or that it “presents limitations unaccounted for by the assessed” RFC
(AR 24). Further, he stated “[o]bjective medical evidence in the record” regarding Plaintiff’s mental
functioning does not support an assessment of further limitations” beyond the RFC. (Id. 25.) This does
not explain, however, how he came up with the RFC or what evidence supported it.
6

I note that Dr. McNabb is the only medical professional to have rendered an opinion as to mental

RFC.

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those consistent with such work. Id. see also Wayland v. Chater, Nos. 95-7029 and 957059, 1996 WL 50459, at * 2 (10th Cir. Feb. 7, 1996). There is no evidence that the
moderate mental impairments found by the ALJ are captured by the limitation in SVP
and GED levels articulated by the ALJ. Thus, the ALJ was required to state what
specific mental impairments Plaintiff had “with sufficient precision in a dispositive
hypothetical to a VE and in an RFC finding.” Jaramillo, 576 F. App’x at 876 (quotation
omitted); see also Crowder v. Colvin, 561 F. App’x 740 (10th Cir. 2014). The ALJ failed
to do this. His errors in connection with the mental RFC require a remand.
2.

Plaintiff’s Physical Impairments and Physical RFC

Plaintiff also argues that the ALJ gave improper reasons for the weight afforded
to the opinions of examining physicians Drs. Randall and Campbell, who opined as to
Plaintiff’s physical impairments. Specifically, Dr. Randall diagnosed left knee pain, low
back pain, spastic colon, and depression/anxiety. (AR 480). He opined Plaintiff could
stand or walk four hours per workday, would require frequent bathroom breaks, would
need to be in close proximity to a bathroom, could lift or carry 50 pounds frequently and
25 pounds occasionally, and is limited on crouching. (Id.) The ALJ afforded
Dr. Randall’s opinion “limited weight because the evidence as a whole shows the
claimant is less limited in some respects than Dr. Randall assessed.” (Id. 26.) It is
unclear from this as to what weight was actually given to the opinion of Dr. Randall.
Plaintiff also underwent an examination with Dr. Campbell (AR 590-96), who
diagnosed chronic low back pain, bilateral osteoarthritis of the knees, and chronic
severe depression. (Id. 592). She opined that Plaintiff could stand/walk thirty minutes
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at a time and four hours per day, perform squatting and kneeling less than one hour a
day, perform bending and stooping less than three hours a day, could lift 20 pounds
less than three hours a day, could climb stairs less than one hour per day, and should
avoid climbing ladders or scaffolds. (Id.) The ALJ afforded Dr. Campbell’s opinion
“limited weight” on the basis that her opinion was not supported by her examination
findings. (Id. 27). Again, it is unclear as to what weight was actually given to the
opinion of Dr. Campbell.
I find that the ALJ improperly substituted his lay opinion for that of the examining
physicians, which is error, and failed to properly weigh their opinions. This also requires
a remand. The ALJ stated that the opinions of Dr. Randall and Dr. Campbell are
inconsistent with the evidence of record and their own examination findings. (AR 2627). He then pointed to findings such as normal gait and normal muscle tone and
development as a means to reduce the weight afforded to these examining physicians
(id.). Similarly, the Commissioner relies on some of the normal examination findings
made by Drs. Campbell and Randall and argues that the inconsistency between the
physicians’ examination findings and their opinions was a reasonable ground to give
limited weight to such opinions. The ALJ and Commissioner ignore, however, findings
of the doctors that provided support for their opinions. (See, e.g., AR at 478-79—
Dr. Randall’s findings regarding range of motion and tenderness in left knee “to patellar
grind”, “tenderness along the medial lateral joint line to palpation” and “significant
crepitus” in left knee; 592—Dr. Campbell’s findings regarding Plaintiff’s lumbosacral
spine and lower extremities.)
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The ALJ cannot selectively apply the evidence or impose his own “medical
expertise” over that of the physicians. See Winfrey, 92 F.3d at 1022 (“the ALJ clearly
overstepped his bounds when he substituted his medical judgment for that of” the
physician when he determined that the test results were not adequate to support the
physician’s diagnosis); Carpenter, 537 F.3d at 1265. This “impermissibly put the ALJ in
the position of judging a medical professional on the assessment of medical data.”
Thomas v. Barnhart, 147 F. Appx. 755, 759-60 (10th Cir.2005). The fact that, for
example, the doctors found that Plaintiff walked with a normal gait or was able to
complete the examination without pain behaviors, does not mean that the doctors’ other
findings of impairment were insufficient to support their diagnoses and findings. The
ALJ is not more qualified to understand the meaning of the medical data and
examination findings than are Drs. Randall and Campbell; indeed, he is not a medical
expert. If the ALJ did not believe these opinions were adequate, he should have
recontacted Drs. Randall and Campbell to discern the basis of their opined limitations.
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
The Commissioner argues, however, that both Drs. Randall and Campbell
indicated that their standing and walking limitations were based upon Plaintiff’s reported
knee pain and back pain. (See AR 480, 592.) She asserts that the ALJ reasonably
discounted Plaintiff’s complaints of debilitating knee and back pain because they were
inconsistent with substantial evidence of record. I disagree. As noted earlier, the
opinions of these doctors was not based only on Plaintiff’s complaints of knee and back
pain, but on objective findings made upon examination that support the pain diagnoses.
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(Id., 478-80, 592.) Indeed, Dr. Campbell was explicit about this, stating that Plaintiff
“has findings consistent with mechanical lumbar dysfunction and bilateral osteoarthritis
of the knee. . . .” (Id. 592.)
Plaintiff also argues that the ALJ erred in rejecting Dr. Randall’s restriction to
account for Plaintiff’s frequent bathroom breaks. Since I am remanding this case, I
direct the ALJ to consider all the evidence on this issue, as I am not convinced that the
ALJ did so. Dr. Randall diagnosed spastic colon, after noting Plaintiff’s statement that
he has diarrhea approximately 80% of the time and occasionally has blood in the stools.
(Id. 477, 480.) Plaintiff also points out that there were examination notes reflecting
problems with his colon, including tenderness, pain and constipation, that supported
that Dr. Randall’s finding. (Id. 267, 271, 273-74, 279, 286, 399, 403-04, 506, 508.)
3.

Credibility Finding

Plaintiff also argues that the ALJ failed to assess his credibility in accordance
with applicable law. The ALJ found “[a]fter careful consideration of the evidence. . . that
the claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent” with the RFC assessed by the ALJ. (AR 22.)
Turning to my analysis, the regulations require a two-step process for evaluating
a claimant’s pain symptoms. The first step is to determine whether plaintiff has a
medically determinable impairment that could reasonably be expected to produce the
alleged symptoms. 20 C.F.R. § 404.1529(b); SSR 96-7p, 1996 WL 374186, at *2. If the
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first step is satisfied, the second step requires the ALJ to evaluate the intensity and
persistence of the symptoms in order to determine how the symptoms limit the capacity
for work. 20 C.F.R. § 404.1529(c)(1); SSR 96-7p, 1996 WL 374186, at *2. The
sufficiency of the ALJ’s decision must be evaluated based on the reasons stated by the
ALJ in the decision. Robinson v. Barnhart, 366 F.3d 1078, 1084-85 (10th Cir.2004).
In this case, the first step was satisfied because the ALJ found Plaintiff’s
impairments could reasonably be expected to cause the alleged symptoms. (AR 22).
However, it does not appear that the ALJ properly assessed the second step, i.e, he did
not assess the disabling effects of Plaintiff’s specific symptoms or state “to which extent
he credited what [Plaintiff] said when determining the limiting effects of h[is] symptoms.”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1165 (10th Cir. 2012); see also McGoffin, 288
F.3d at 1254 (“[t]he ALJ did not, however, explain and support with substantial evidence
which of her testimony he did not believe and why”). Thus, I find that the determination
was not “sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons
for that weight. SSR 96-7p, 1996 WL 374186, at *2.
While the ALJ discussed the objective medical findings and appeared to use
these findings to discount Plaintiff’s credibility, “a lack of objective corroboration of the
pain’s severity cannot justify disregarding those allegations.” Luna v. Bowen, 834 F.2d
161, 165 (10th Cir. 1987); see also Romero v. Astrue, 242 F. App’x 536, 541 (10th Cir.
2007) (conclusions concerning claimant’s pain and limitation “find support in the
treatment records and therefore could not be cursorily dismissed for the reason the ALJ
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gave: lack of medical evidence”). Moreover, I previously found that the ALJ did not
properly weigh the opinions of Drs. Randall and Campbell, both of whom diagnosed
pain after objective findings upon examination. These opinions must be considered on
remand in connection with the credibility assessment.
4.

Step Four Finding

Finally, Plaintiff argues that the ALJ erred at step four in finding his past work as
a pizza deliverer is past relevant work. (See AR 27.) I agree, as the ALJ found at the
hearing that Plaintiff’s past work as a pizza deliverer did not rise to the level of
substantial gainful activity [“SGA”]. (Id. 66.) Work that is not considered to be SGA
does not qualify as past relevant work. See Jozefowicz v. Heckler, 811 F.2d 1352,
1356-1358 (10th Cir. 1987). Accordingly, I find that the ALJ’s step four analysis is not
supported by substantial evidence. Moreover, because I found that the ALJ did not
properly consider the opinions of Drs. McNabb, Randall and Campbell, and erred in
connection with the RFC, the hypothetical question and the findings at step five are not
supported by substantial evidence.
III.

CONCLUSION
In conclusion, I find that this case must be reversed and remanded for further fact

finding. The ALJ erred in weighing Dr. McNabb’s opinions and in assessing the mental
RFC. The ALJ also erred in weighing the opinions of Drs. Campbell and Randall as to
Plaintiff’s physical impairments. Finally, the ALJ erred in the credibility analysis and in
finding at step four that Plaintiff could perform his past relevant work as a pizza
deliverer. These errors impacted the hypothetical question and the ALJ’s findings at
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step five. In light of the need for further fact finding, outright reversal as requested by
Plaintiff is not appropriate. Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989).
Therefore, it is
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.
§ 405(g).
Dated: March 25, 2015
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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