McCleary v. Colvin
ORDER re: 7 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin. It is ORDERED that the Commissioners decision is REVERSED and this case is REMANDED to the Commissioner. It is further ORDERED that Plaintiff is awarded costs pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1, by Magistrate Judge Kathleen M. Tafoya on 9/24/15. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–02011–KMT
MARK A. MCCLEARY,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
This case comes before the court on review of the Commissioner’s denial of PlaintiffClaimant Mark A. McCleary’s application for Disability Insurance Benefits (“DIB”) pursuant to
Title II of the Social Security Act (“the Act”). Jurisdiction is proper under 42 U.S.C. § 405(g).
FACTUAL AND PROCEDURAL BACKGROUND
Claimant applied for DIB in September 2011, alleging that he had been disabled by
arthritis and severe shoulder injuries since March 2011. (See Doc. No. 7, Social Security
Administrative Record [“AR”] at 129, 155.) The Commissioner denied his application. (Id. at
79.) Following the denial, Claimant requested and received a hearing by an Administrative Law
Judge (“ALJ”). (Id. at 29–58, 82.) After the hearing, the ALJ determined that Claimant was not
disabled within the meaning of section 1614(a)(3)(A) of the Act, because Claimant was still
capable of performing substantial gainful work in the national economy. (See id. at 23–24.) The
Appeals Council subsequently denied Claimant’s request for review (id. at 1), making the ALJ’s
decision the final decision of the Commissioner for purposes of judicial review. See 20 C.F.R.
§§ 404.981, 422.210(a). Claimant timely sought review by the Court.
STATUTORY AND REGULATORY BACKGROUND
Title II of the Act awards Social Security benefits to claimants who meet certain
eligibility requirements. 42 U.S.C. § 423(a). To receive DIB, a claimant must be disabled.
§ 423(a)(1)(E). The Social Security Commissioner has established a five step, sequential process
for determining whether a claimant is disabled:
The ALJ must first ascertain whether the claimant is engaged in
substantial gainful activity. A claimant who works is not disabled,
regardless of the medical findings.
The ALJ must then determine whether the claimed impairment is
“severe.” A “severe” impairment significantly limits the claimant’s
physical or mental ability to do basic work activities.
The ALJ must then determine if the impairment meets or “equals” in
severity certain impairments described in Appendix 1 of the regulations.
If the claimant’s impairment does not meet or equal a listed impairment,
then the ALJ must determine whether the claimant can still perform any
past work despite his or her limitations.
If the claimant no longer retains the ability to perform past work, then the
ALJ must decide whether the claimant can perform any other gainful and
substantial work in the economy despite the claimant’s limitations.
See Williams v. Bowen, 844 F.2d 748, 750–52 (10th Cir. 1988); 20 C.F.R. § 404.1520(a)(4)(i)–
(v). 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). After that, the burden shifts to the
Commissioner to prove that, despite the claimant’s impairments, he or she is still capable of
performing substantial gainful work in the national economy. Id. If at any point the
Commissioner conclusively finds that the claimant is or is not disabled during the five-step
review process, the analysis ends. See Casias v. Secretary of Health & Human Services,
933 F.2d 799, 801 (10th Cir. 1991).
STANDARD OF REVIEW
Review of the Commissioner’s disability decision by this court is limited to determining
whether the ALJ applied the correct legal standard, whether the decision is supported by
substantial evidence, and whether the decision comports with the relevant regulations and case
law. Hamilton v. Sec’y of Health and Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992);
Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990); Ellison v. Sullivan, 929 F.2d 534, 536
(10th Cir. 1990). An ALJ’s failure to apply the correct legal standard constitutes an independent
and sufficient basis for the Court to reverse the ALJ’s decision. Thompson v. Sullivan, 987 F.2d
1482, 1487 (10th Cir. 1993). Likewise, an ALJ’s failure to supply the Court with a sufficient
basis to determine that the ALJ followed appropriate legal principles is also grounds for reversal.
Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (quoting Smith v. Heckler, 707 F.2d
1284 (11th Cir. 1983)).
The claimant alleges the ALJ erred at steps two and four of the disability review analysis.
(See Doc. No. 12 [Opening Br.] at 19–27, filed Jan. 7, 2015.) At step two, the claimant argues
that the ALJ failed to address and acknowledge the claimant’s severe pain disorder. (See id. at
25–27.) At step four, the claimant contends that the ALJ’s Residual Functional Capacity
Assessment (“RFC”) assessment a) fails to adequately account for the claimant’s pain, b) fails to
accurately incorporate an important limitation that the ALJ acknowledged, and c) fails to include
any limitations arising from claimant’s anxiety disorder. (See id. at 19–25.)
The ALJ’s Alleged Step-Two Failure
The Claimant argues the ALJ failed to find that the claimant’s pain disorder was a severe
impairment at step two. (See id. at 25–27.)
Step two of the disability review process requires the claimant show that he or she suffers
from an impairment or combination of impairments that significantly limits physical or mental
ability to do basic work activities. Bowen, 482 U.S. at 155 (quoting 20 CFR § 404.1521(a))
(quotations and alterations omitted). The ALJ must consider all the evidence in the case record
when determining whether the claimant has a “severe” impairment at step two.
20 C.F.R. § 404.1520(a)(3). The purpose of step two of the disability review process is to “weed
out at an early stage of the administrative process those individuals who cannot possibly meet the
statutory definition of disability.” Bowen, 482 U.S. at 156. For this reason, an ALJ’s failure to
recognize that an impairment or combination of impairments is severe at step two is harmless so
long as the ALJ ultimately proceeds to the next step of the disability review process. See
Groberg v. Astrue, 415 F. App’x 65, 67 (10th Cir. 2011); Carpenter v. Astrue, 537 F.3d 1264,
1266 (10th Cir. 2008). Nevertheless, failure to recognize a severe medically determinable
impairment at step two might affect the remainder of the ALJ’s analysis because the ALJ must
consider any severe impairments found at step two throughout the remainder of the disability
review process. See 20 C.F.R. § 404.1523.
Here, the ALJ found the claimant had six severe impairments: “right shoulder labral tear;
status post surgery . . . ; 1 degenerative disc disease of the cervical spine; obesity; affective
By “status post surgery,” the ALJ appears to be referring to the claimant’s worsened shoulder
problems after two surgeries. See AR at 18 (summarizing the progression of the claimant’s
shoulder pain before and after each surgery).
disorder; and anxiety disorder . . . .” (AR at 14.) The ALJ detailed the history of the claimant’s
right shoulder injury, the surgery to fix it, the complications arising from that surgery, the second
surgery, and the pain and attempts at pain management that followed. (See id. at 14–15.)
Step two recognizes severe impairments, see 20 C.F.R. § 404.1520(a)(4)(i)–(v), and there
is no dispute that the claimant’s pain is a symptom of the claimant’s severe shoulder-related
impairments. (See Opening Br. at 20 [stating that the evidence demonstrates a “pain-producing”
impairment].) It was therefore reasonable for the ALJ to account for the claimant’s pain by
listing as severe those impairments causing that pain, rather than the pain itself. Regardless of
the propriety of that decision, any error committed at step two is harmless when the ALJ
proceeds to step three, which the ALJ did here. See Groberg, 415 F. App’x at 67; Carpenter,
537 F.3d at 1266. The claimant does not argue that the ALJ’s alleged step-two error
contaminated any other step of the disability review decision. (See Opening Br. at 19–27.) The
court therefore finds no reversible error at step two.
The ALJ’s Alleged Step-Four Failures
The claimant argues that the ALJ’s step-four RFC assessment contained three major
errors: The ALJ a) failed to adequately account for the claimant’s pain, b) failed to accurately
incorporate an important limitation acknowledged by the ALJ, and c) failed to include any
limitations arising from the claimant’s anxiety disorder. (See id. at 19–25.)
Before completing step four of the disability review process, the ALJ must assess
claimant’s RFC, which is the most the claimant can do in a work setting on a regular and
continuing basis despite the limitations imposed by his or her impairments. SSR 96-8p, 1996
WL 374184, at *1, 3. When determining the claimant’s RFC, the ALJ must consider all the
relevant evidence and all of the claimant’s medically determinable impairments. Id. at *2. Then,
in the ALJ’s written decision, the ALJ must explain how the evidence supports each of his or her
conclusions. Id. at *7. As part of that explanation, the ALJ must “cite specific medical facts and
nonmedical evidence and explain how any material inconsistencies or ambiguities in the case
record were considered and resolved.” Id.
Accounting for the Claimant’s Pain
Though the claimant argues that the RFC assessment failed to properly account for the
claimant’s pain, the claimant’s underlying argument is that the ALJ erred by not fully crediting
the claimant’s testimony about the intensity, persistence, and limiting effects of his pain. (See
Opening Br. at 19–23.)
When a claimant alleges disability due to subjective symptoms like pain, the ALJ must
conduct a three stage analysis. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir.
2012) (citing Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987)). First, the ALJ must determine
whether the claimant has shown the existence of a pain-producing impairment by objective
medical evidence. Id. Second, the ALJ must decide whether that impairment could reasonably
be expected to produce the claimant’s alleged pain. Id. At this stage of the analysis, the ALJ
must accept as true the claimant’s subjective allegations of pain, whether the ALJ believes the
claimant or not. See Luna, 834 F.2d at 163. If the ALJ determines that a medically determinable
impairment could reasonably have caused the claimant’s alleged pain, then the ALJ will, third,
consider both the objective and subjective evidence, including the claimant’s testimony. See
Keyes-Zachary, 695 F.3d at 1166. During this third stage of the analysis, the ALJ must decide
whether he or she believes the claimant’s testimony. See id.
Credibility determinations are reserved to the ALJ, and the Court will not upset those
determinations when they are supported by substantial evidence. Diaz v. Sec’y of Health &
Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). The ALJ must cite specific reasons for
doubting the claimant’s credibility, especially when subjective pain testimony is crucial. See
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). When evaluating the credibility of a
claimant’s pain testimony, the ALJ must consider a multitude of factors, including the
extensiveness of the claimant’s attempts to obtain relief, the frequency of the claimant’s medical
contacts, the nature of the claimant’s daily activities, subjective measures of credibility within
the ALJ’s judgment, and the consistency or compatibility of the claimant’s testimony with
objective medical evidence. Branum v. Barnhart, 385 F.3d 1268, 1273–74 (10th Cir. 2004).
The ALJ need not, however, make a “formalistic factor-by-factor recitation of the evidence.”
Keyes-Zachary, 695 F.3d at 1167 (citation omitted). Ultimately, “common sense, not technical
perfection,” is the Court’s guide. Id.
Here, the ALJ found that the claimant’s medically determinable impairments “could
reasonably be expected to cause the alleged symptoms,” but that the “claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible . . . .” (AR at 19.) The ALJ explained that “the claimant’s inability to use his right nondominant upper extremity to perform basic work-related activities is generally accepted and
accounted for in his residual functional capacity,” but that “the record as a whole does not fully
support the credibility of the claimant’s allegation of totally disabling pain.” (Id.) The ALJ
detailed the claimant’s pain medications and noted that the claimant was tolerating his slow
withdrawal from those medications. (See id.) The ALJ then focused on the claimant’s left arm,
noting that the claimant did not complain of severe pain in the left shoulder. (See id. at 19–20.)
The ALJ stated that the claimant’s allegation that he is unable to lift a gallon of milk is
inconsistent with an examination showing that the left arm was operable and “did not show
tenderness, atrophy, instability,” and the medical opinion of the claimant’s treating physician that
the claimant’s left shoulder was asymptomatic and without limitations. (See id.) The ALJ also
asserted that the claimant’s daily activities do not support a finding of disability. (See id. at 20.)
The ALJ specifically noted that the claimant’s testimony that he does not do any housework
“seems inconsistent with the notation from the claimant’s treating physician that the claimant
was engaging in more activity at home.” (Id.) The ALJ added that the claimant could do
personal care with difficulty, and prepare leftovers and sandwiches given some extra time. (Id.)
After stating that the claimant had been “innovative” in finding and “even creating some
adaptive ways to perform his daily activities,” the ALJ concluded that “the claimant’s reported
limited daily activities are given less weight when assessing his residual functional capacity than
other factors discussed in this decision.” (Id.)
Because the ALJ found that the claimant’s right shoulder injury could reasonably be
expected to produce the claimant’s alleged pain, the only question is whether, at stage three of
the Luna analysis, the ALJ had legally sound reasons for discounting the claimant’s testimony
about the intensity, persistence, and limiting effects of that pain. The claimant first disputes that
the treating doctor’s statement “[the claimant is] engaging in more activity at home” contradicts
the claimant’s testimony that he did not do any household chores. (See Opening Br. at 22.) The
claimant points out that the treating physician’s notes do not say what kind of activity the
claimant was doing at home and argues that it was improper for the ALJ to assume that “more
activity” necessarily meant more household chores. (See id.) The court agrees that evidence that
the claimant was “engaging in more activity at home” is not, by itself, necessarily inconsistent
with the claimant’s testimony that he could not do any household chores. More information is
therefore required before the statement can logically support the ALJ’s intended conclusion.
The claimant also disputes the ALJ’s use of the claimant’s innovative and creative
methods for performing daily activities as reasons to doubt the claimant’s credibility. (See id. at
22–23.) The claimant argues that there is no evidence that these innovations relate to household
chores, and points out that the “innovative” statement originates from a note in which the
claimant’s treating physician states that the claimant was doing worse because of the cold
weather and the weaning off his pain medication. (See id.) Unlike the ALJ’s statement about
“more activities,” which the ALJ linked only to the claimant’s household chores, the ALJ’s
statement about the claimant’s innovations and creativity support the ALJ’s more general point
that the extent of the claimant’s daily activities undermines the claimant’s allegations that he is
totally disabled by his pain. (See AR at 20 [linking the claimant’s innovation to daily activities,
but not to household chores].) The nature of Claimant’s activities is a factor which the ALJ must
consider when assessing the claimant’s pain testimony. See Branum, 385 F.3d at 1273–74
(listing as factors the nature of the claimant’s daily activities).
That the “innovative” statement originated from a time when the claimant was doing
worse (see Opening Br. at 23) only reinforces the ALJ’s point that the claimant is capable of
more than he admits. This finding flows logically from the evidence (the claimant innovation
and creativity in overcoming obstacles). Also, the reasoning is consistent with the factors an
ALJ must consider when weighing a claimant’s credibility. See Branum, 385 F.3d at 1273–74
(listing as factors the nature of the claimant’s daily activities and subjective measures of
credibility within the ALJ’s judgment).
Having found at least one legitimate reason supporting the ALJ’s credibility
determination, the court rejects the claimant’s allegations of error on this issue.
The Accuracy of the RFC’s Right-Arm Limitations
The ALJ’s RFC assessment states that the claimant is capable of “rarely reaching . . . ,
handling, fingering, and feeling with the right non-dominant upper extremity.” (AR at 17.) The
claimant contends that this is an inaccurate restatement of the limitation the ALJ actually
adopted. (See Opening Br. at 23–24.)
The ALJ’s RFC assessment states, in relevant part, that the claimant is capable of
performing “less than the full range of light work . . . .” (AR at 17.) The claimant is limited to:
Rarely reaching in all other directions, handling, fingering, and feeling with the
right non-dominant upper extremity
Lifting and/or carrying 20 pounds occasionally and 10 pounds frequently with the
left upper dominant extremity
Sitting (with normal breaks) for a total of 6 hours of an 8-hour workday
Standing and/or walking (with normal breaks) for a total of 6 hours of an 8-hour
Never climbing ladders, ropes, or scaffolds
Occasionally climbing stairs and ramps
Never reaching overhead with the right non-dominant upper extremity
Understanding, remembering, and carrying out simple instructions
(Id.) In addition, the ALJ stated that the claimant “must avoid even moderate exposure to work
around hazards such as unprotected heights or moving and dangerous machinery.” (Id.) As part
of the ALJ’s RFC analysis, the ALJ relied on the opinion of the claimant’s treating physician,
Dr. Fernandez. (See id. at 21.) Dr. Fernandez opined that the claimant is, in the ALJ’s words,
“unable to lift with his right arm and reach with the right arm.” (Id.) The ALJ stated that this
opinion was “consistent with the claimant’s residual functional capacity.” (Id.) The ALJ added
that “Dr. Fernandez stated that the claimant is unable to complete his duties as a mechanic, and
he is essentially limited to using one arm only for all work activities and daily living . . . .” (Id.)
The ALJ gave “some” weight to the medical opinion and functional limitations indicated by Dr.
Fernandez, but gave no weight to “Dr. Fernandez’s opinion that the claimant should be granted
Social Security benefits . . . and that the claimant is unable to work any hours per day . . . .”
(Id.) The ALJ explained that “the opinion that the claimant is totally disabled based on right
shoulder pain alone is inconsistent with the record as a whole . . . and Dr. Fernandez’s medical
opinion that the claimant has no ability to use the right upper extremity but no other functional
limitations in sitting, standing, or walking.” (Id.)
The claimant is correct that the limitation stated in the RFC is not identical to the
limitation the ALJ adopted. At least twice, the ALJ indicated that she had adopted Dr.
Fernandez’s opinion that the claimant had “no ability to use the right upper extremity.” (See id.
at 21 [emphasis added].) The ALJ also specifically stated that the doctor’s opinion that the
claimant is “unable to lift with his right arm and reach with the right arm” is “consistent with the
claimant’s residual functional capacity.” (Id.) Yet, the RFC contains a limitation that permits
more than no use of the right arm. (See id. at 17.) “Rarely reaching . . . handling, fingering, and
feeling” is more permissible than “unable to . . . reach with the right arm” and “no ability to use
the right upper extremity.” The RFC is therefore not supported by the ALJ’s own findings. This
is reversible error. See Brown, 912 F.2d at 1196 (“Substantial evidence is evidence a reasonable
mind would accept as adequate to support a conclusion.”).
The defendant argues that this error is harmless because the jobs that serve as the basis
for the ALJ’s step-five conclusion that claimant could perform substantial gainful work—
School-Bus Monitor and Surveillance-System Monitor—do not contain any reaching, handing,
fingering, or feeling requirements. (See Doc. No. 15 [Resp. Br.] at 10–11, filed Mar. 6, 2015.)
The court does not agree. An error is harmless if “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). Here, both of the jobs the vocational expert
identified at step five are unskilled sedentary work or higher. See DEPT. OF LABOR, NOS.
379.367-010, 372.667-042, DICTIONARY OF OCCUPATIONAL TITLES (1991), available at 1991 WL
673244, 1991 WL 673102; (Resp. Br. at 14 [stating the ALJ limited the claimant to unskilled
work.]). The Commissioner’s rules state that “most unskilled sedentary jobs require good use of
both hands and the fingers; i.e., bilateral manual dexterity.” SSR 96-9P, 1996 WL 374185, at *8.
The rules also state that “[a]ny significant manipulative limitation of an individual’s ability to
handle and work with small objects with both hands will result in a significant erosion of the
unskilled sedentary occupational base,” and “[w]hen the limitation is less significant, especially
if the limitation is in the non-dominant hand, it may be useful to consult a vocational resource.”
Further, it is unclear what jobs, if any, the vocational expert would have listed if the ALJ
had totally precluded use of the claimant’s non-dominant right arm. At the hearing, the
vocational expert first suggested that the claimant could work as a video-store clerk, regardless
of which arm the claimant could use. (See AR at 48–53.) But when the ALJ changed the
vocational expert’s hypothetical to include greater restrictions on the claimant’s right arm,
without further reminding the expert that this pertained to Claimant’s non-dominant arm, the
vocational expert no longer listed video-store clerk as a job the claimant could perform. (See id.
at 51–52.) It is unclear, therefore, what the result might have been had the hypothetical been
correctly posed to the vocational expert, indicating no use of Claimant’s non-dominant right arm
and hand. “Testimony elicited by hypothetical questions that do not relate with precision all of a
claimant’s impairments cannot constitute substantial evidence to support the Secretary’s
decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotations and citation
omitted). The ALJ’s error is, therefore, not harmless, because the court cannot say with
confidence that “no reasonable administrative factfinder, following the correct analysis, could
have resolved the factual matter in any other way.” Allen, 357 F.3d at 1145.
Having discovered a reversible error, the court does not reach the claimant’s remaining
arguments. The issues raised in those arguments may be resolved by reconsideration and
rehearing. The court expresses no opinion about the ALJ’s ultimate determination as to whether
the claimant is disabled within the meaning of the Act.
Accordingly, it is
ORDERED that the Commissioner’s decision is REVERSED and this case is
REMANDED to the Commissioner. It is further
ORDERED that Plaintiff is awarded costs pursuant to Fed. R. Civ. P. 54(d)(1) and
Dated this 24th Day of September, 2015.
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