Swedlund v. Colvin

Filing 24

ORDER by Magistrate Judge Boyd N. Boland on 12/16/14. IT IS ORDERED that the decision of the Commissioner is REVERSED, and the matter is REMANDED for further proceedings to clarify the RFC finding, if necessary, and to determine whether--given all of the plaintiff's RFC limitations--he can perform gainful and substantial work in the economy. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-02754-BNB
STEVEN SWEDLUND,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This action seeks review of the Commissioner’s decision denying the plaintiff’s claim for
supplemental security income benefits under Title XVI and disability insurance benefits under
Title II of the Social Security Act. The court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 1383(c)(3). The matter has been fully briefed, obviating the need for
oral argument. The decision is REVERSED, and the case is REMANDED to the Commissioner.

I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff filed his applications for benefits on July 7, 2010, stating that he had been
disabled due to arthritis, hepatitis C, anxiety, and depression beginning June 20, 2010. Social
Security Administrative Record [Doc. #10] (the “Record”), pp. 188-98; 233.1 The plaintiff was
born in 1965 and was 44 years old on his alleged onset of disability date. Id. at p. 188. His

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I refer to the official page numbers of the Record which are found on the lower righthand corner of each page, not to the page numbers that are assigned by the court’s docketing
system.

applications were denied. Id. at pp. 83-113; 117-23. The plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). Id. at p. 124. The hearing was held on March 13, 2012. Id.
at p. 1. On April 27, 2012, the ALJ issued a written decision finding that the plaintiff was not
disabled as defined in the Social Security Act. Id. at pp. 62-78. The Appeals Council denied the
plaintiff’s request for review. Id. at pp. 45-51. The ALJ’s decision is final for purposes of this
court’s review. 20 C.F.R. § 404.981.2
II. STANDARD OF REVIEW
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.

2

All references to the Code of Federal Regulations are to the 2013 edition of part 404,
which addresses claims under Title II of the Act. All cited regulations have parallel citations in
part 416, which address claims under Title XVI of the Act.
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III. THE LAW
A person is disabled within the meaning of the Social Security Act only if his physical
and 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, 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 medically equals in
severity certain impairments described in 20 C.F.R. Part 404, Subpart P,

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Appendix 1.
4. If the claimant’s impairment does not meet or equal a listed impairment, the
ALJ must determine whether the claimant has the residual functional capacity
(“RFC”) to perform his past work despite any limitations.
5. If the claimant does not have the RFC to perform his 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 RFC.
20 C.F.R. §§ 404.1520(a)-(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 (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 at any point in the five-step review either that the claimant is disabled or not is
conclusive and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
IV. ANALYSIS
The ALJ found that (1) the plaintiff meets the insured status requirements of the Social
Security Act through December 31, 2013; (2) the plaintiff has not engaged in substantial gainful
activity since June 20, 2010; (3) the plaintiff has the following severe impairments: mild
arthrosis of the hands, anxiety disorder, history of alcohol and methamphetamine abuse, in
purported remission; (4) the plaintiff does not have an impairment or combination of

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impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. § Part 404, Subpart P, Appendix 1; (5) the plaintiff has the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he can lift or carry up to 30
pounds occasionally and frequently; stand or walk at least six hours; sit at least six hours; is
precluded from climbing ladders, ropes, and scaffolds; is precluded from exposure to
unprotected heights; is limited to unskilled work with limited public contact; and is precluded
from forceful pinching, grasping, or torquing; (6) the plaintiff is unable to perform any past
relevant work; (7) there are jobs that exist in significant number in the national economy that the
plaintiff can perform; and (8) the plaintiff has not been under a disability as defined in the Social
Security Act from June 20, 2010, through the date of the decision. Record, pp. 67-78.
The plaintiff argues that the ALJ erred by concluding that the plaintiff could perform
work in the national economy that requires skills and abilities that are restricted in the plaintiff’s
RFC. Plaintiff’s Legal Brief, p. 22.
At the fifth and final step of the sequential evaluation process, the ALJ has the burden to
consider his assessment of the claimant’s RFC and the claimant’s age, education, and work
experience to determine if the claimant can perform gainful and substantial work in the
economy. 20 C.F.R. §§ 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The
burden may be met through the testimony of a vocational expert (“VE”).
Here, the ALJ found that the plaintiff has the RFC to perform light work but is precluded
from doing specific activities including forceful pinching, grasping, and torquing. Record, p. 69.
During the hearing, the ALJ posed a hypothetical question to the VE, asking her to consider an
individual of the plaintiff’s age, education, work experience, and RFC, with the exception that

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the individual would be capable of performing forceful pinching, grasping, and torquing
“frequently but not constantly.” Id. at p. 36. The VE stated that such an individual could
perform several jobs including a router position and a cleaner/housekeeping position. Id. at pp.
36-38. When asked by the plaintiff’s attorney if the person in that hypothetical would be able to
perform those jobs if he was “unable at all to grasp or turn objects with either his right or his left
hand,” the VE stated no, “none of them. If that individual cannot grasp or handle with the right
or left hand, they cannot perform the jobs.” Id. at pp. 38-39. A limitation of no forceful
pinching, grasping, and torquing was not presented to the VE.
In his decision, the ALJ stated that “[b]ased on the testimony of the vocational expert, I
conclude that, considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” Id. at p. 77. However, “[t]estimony
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.
Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991).
Here, the defendant concedes that “a discrepancy exists between the ALJ’s RFC
determination and the hypothetical presented to the VE.” Defendant’s Response Brief, p. 26. In
particular:
[T]heALJ’s hypothetical to the VE allowed the individual to
perform frequent, but not constant, forceful pinching, grasping and
torqing, whereas the ALJ’s RFC in the decision precluded Plaintiff
from performing forceful pinching, grasping and torqing.
Id. (original emphasis).
The defendant argues that the “discrepancy is harmless” because the ALJ’s hypothetical
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question was consistent with the opinion of a physician, Dr. Mars; the ALJ “appropriately gave
great weight” to that opinion; and “it is apparent that the RFC in the ALJ’s decision
inadvertently left out the modifier ‘constant’ before ‘forceful pinching, grasping or torquing.’”
Id.
Courts should apply the harmless error analysis cautiously when reviewing social
security disability cases. Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). The
Tenth Circuit Court of Appeals has stated:
This brings us to the Appellee's final line of defense--the principle
of harmless error. We have generally recognized the applicability
of this principle in the administrative review setting. Further, we
have specifically applied it in social security disability cases,
though not always by name and without settling on a definitive
characterization of its precise contours and range of application in
this somewhat unique, nonadversarial setting. For example, this
court has held that certain technical errors were minor enough not
to undermine confidence in the determination of the case, and that
an ALJ's conduct, although improper, did not require reversal
because the procedural impropriety involved had not altered the
evidence before the ALJ. For present purposes, one significant
thing this heterogeneous group of cases has in common is that in
none of them did this court hold an ALJ's failure to make a
dispositive finding of fact harmless on the basis that the missing
fact was clearly established in the record . . . .
Two considerations counsel a cautious, if not skeptical, reception
to this idea. First, if too liberally embraced, it could obscure the
important institutional boundary preserved by Drapeau’s
admonition that courts avoid usurping the administrative tribunal’s
responsibility to find the facts. Second, to the extent a
harmless-error determination rests on legal or evidentiary matters
not considered by the ALJ, it risks violating the general rule
against post hoc justification of administrative action recognized in
SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626
(1943) and its progeny.
With these caveats, it nevertheless may be appropriate to supply a
missing dispositive finding under the rubric of harmless error in
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the right exceptional circumstance, i.e., where, based on material
the ALJ did at least consider (just not properly), we could
confidently say that no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual
matter in any other way.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
In Allen, the ALJ improperly relied on two of three job categories that were contrary to
the available jobs identified by the VE based on the ALJ’s RFC findings. The court would not
excuse as harmless the ALJ’s failure to properly assess the number of jobs available because that
would be an improper exercise in judicial factfinding rather than a proper application of harmless
error principles.
Here, the defendant is asking the court to change the ALJ’s RFC finding from “[h]e is
precluded from forceful pinching, grasping or torquing” to “he is precluded from constant
forceful pinching, grasping or torquing” because that version is consistent with a doctor’s
opinion that was given great weight by the ALJ. However, another examining doctor, Dr.
Guthrie, found that the plaintiff could not grasp, turn objects, or perform fine manipulation for
any amount of time during an eight hour workday. Record, p. 407. Although the ALJ gave
reduced weight to that opinion, he did not reject it. Id. at p. 75. Therefore, the defendant is not
asking the court to correct a mere technical error “that no reasonable administrative factfinder . .
. could have resolved . . . any other way.” The defendant is asking the court to engage in
improper judicial factfinding.
The defendant also argues that any error on the part of the ALJ was harmless because
“[i]n any event, the occupations identified by the VE (router and cleaner (housekeeping) require
only ‘frequent’ handling and ‘occasional fingering,’ and neither require ‘forceful pinching,

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grasping, or torquing.’” Id. The defendant cites to the Dictionary of Occupational Titles for the
occupations of “router” and “cleaner, housekeeping” in support of that argument. Defendant’s
Response Brief, p. 26. It is unclear from those citations whether an individual who is precluded
from forceful pinching, grasping, or torquing can perform the occupations of router and cleaner
(housekeeping). Moreover, the VE testified that if an “individual cannot grasp or handle with
the right or left hand, they cannot perform the jobs.” Record, pp. 38-39. Any unexplained
conflicts between the Dictionary of Occupational Titles and the VE’s testimony must be resolved
by the ALJ. Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999).
V. CONCLUSION
IT IS ORDERED that the decision of the Commissioner is REVERSED, and the matter is
REMANDED for further proceedings to clarify the RFC finding, if necessary, and to determine
whether--given all of the plaintiff’s RFC limitations--he can perform gainful and substantial
work in the economy .3
Dated December 16, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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Because that determination could alter the ALJ’s decision, I do not address the
plaintiff’s remaining arguments.
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