Warren v. Colvin
ORDER REVERSING DISABILITY DECISION AND REMANDING TO COMMISSIONER re: 11 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin. The conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is reversed. By Judge Robert E. Blackburn on 3/21/16. (kfinn)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02405-REB
WILLIAM R. WARREN,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
The matter before me is plaintiff’s Complaint [#1],1 filed August 29, 2014,
seeking review of the Commissioner’s decision denying plaintiff’s claims for disability
insurance benefits and supplemental security income benefits under Titles II and 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 major depressive disorder,
generalized anxiety disorder, and attention deficit hyperactivity disorder (“ADHD”). After
his applications for disability insurance benefits and supplemental security income
“[#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.
benefits were denied, plaintiff requested a hearing before an administrative law judge.
This hearing was held on January 23, 2013. At the time of the hearing, plaintiff was 54
years old. He had completed high school and at least three years of college and has
past relevant work experience as a maintenance repairer. He has not engaged in
substantial gainful activity since August 26, 2010, his alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff’s mental impairments were severe,2 the ALJ
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 a full range of light work at all exertional levels but could
perform only simple, repetitive tasks and have only occasional contact with the public.
Although this finding precluded plaintiff’s past relevant work, the judge determined that
there were other jobs existing in sufficient numbers in the national and local economies
that he could perform. She therefore found plaintiff not disabled at step four 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 his from performing both his previous work
and any other “substantial gainful work which exists in the national economy.” 42
A host of alleged physical impairments were determined to be non-severe, findings which
plaintiff does not challenge in this appeal.
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:
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.
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.
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, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
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
20 C.F.R. § 404.1520(a)(4)(I)-(v).3 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, 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).
Throughout this opinion, although I cite to relevant sections of Part 404 of Title 20 of the Code of
Federal Regulations, which contain the Commissioner’s regulations relating to disability insurance
benefits, identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental
security income benefits.
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 presents two arguments on appeal: (1) that the ALJ’s mental residual
functional capacity assessment is not supported by substantial evidence; and (2) that
the ALJ erred in failing to weigh the opinion of plaintiff’s treating sources. Because I find
remand is required based on the first of these assignments of error, I do not address
directly plaintiff's remaining arguments in this appeal. See Watkins v. Barnhart, 350
F.3d 1297, 1299 (10th Cir. 2003); Gorringe v. Astrue, 898 F.Supp.2d 1220, 1225 (D.
In formulating plaintiff’s mental residual functional capacity, the ALJ noted that
plaintiff had “struggled with depression and symptoms associated with ADHD for nearly
his entire life, but . . . demonstrates a capacity to work through these symptoms.” (Tr.
23 (internal citations omitted).) She found his allegations of disabling symptoms
associated with these impairments not credible, noting that they were inconsistent with
the medical evidence, plaintiff’s peripatetic course of treatment and statements to his
medical providers, his activities of daily living, and his ongoing efforts to find work during
the period of alleged disability. (Tr. 22-23.)
Nevertheless, and contrary to the opinion of the reviewing state agency
psychologist (see Tr. 87-94),5 the ALJ credited plaintiff’s “allegations that his depression
Nevertheless, on remand, the ALJ should take care to explicitly set forth the weight she assigns
to each of the medical source opinions of record and her reasons for her determinations in that regard.
See Alexander v. Colvin, 2015 WL 5579436 at *3-4 (D. Colo. Sept. 23, 2015).
This state agency psychologist suggested plaintiff did not suffer from a severe medical
impairment. The ALJ afforded that opinion “little weight,” noting that the medical source had not reviewed
the entirety of the medical evidence or considered plaintiff’s credible testimony. (Tr. 24.)
and anxiety result in decreased concentration, a poor tolerance for stressful situations,
and impaired social functioning” (Tr. 23), and thus sought to craft a residual functional
capacity which would account for these “moderate” limitations (Tr. 20). She did so, inter
alia, by limiting plaintiff to simple, repetitive tasks to account for his concentration
deficits. (Tr. 21, 23-24.) However, the ALJ’s unexamined equivalence of plaintiff’s
stress tolerance with his ability to do simple, repetitive work cannot bear scrutiny.
The law in this circuit is plain: a limitation to “unskilled” or “simple” work (or even
“unskilled, simple” work) is insufficient to account adequately for deficits in the mental
abilities required to engage in competitive employment. The Commissioner herself has
recognized a distinction between the skill level required to do a job and the mental
demands of that job:
Because response to the demands of work is highly
individualized, the skill level of a position is not necessarily
related to the difficulty an individual will have in meeting the
demands of the job. A claimant's condition may make
performance of an unskilled job as difficult as an objectively
more demanding job.
Social Security Ruling 85-15, 1985 WL 56857 at *6 (SSA 1985). See also Chapo v.
Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012); Cira v. Colvin, 67 F.Supp.3d 1206,
1209 (D. Colo. 2014). Accordingly, “[a] limitation to ‘simple work’ . . . is generally
insufficient to address a claimant's mental impairments.” Groberg v. Astrue, 505 Fed.
Appx. 763, 770 (10th Cir. Dec. 14, 2012).
More particularly, the Tenth Circuit has held that moderate limitations in, inter
alia, the ability to maintain concentration, persistence, and pace – such as the ALJ
endorsed here (Tr. 20) – are not adequately captured by a limitation to work requiring
only simple, routine, and/or repetitive tasks.6 Jaramillo v. Colvin 576 Fed. Appx. 870,
876 (10th Cir. Aug. 27, 2014); Knuutila v. Colvin, – F.Supp.3d –, 2015 WL 5116723 at
*3 (D. Colo. Aug. 1, 2015). Recognizing that “a moderate impairment is not the same
as no impairment at all,” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007), and
“supports the conclusion that the individual's capacity to perform the activity is
impaired,” Program Operations Manual System (“POMS”) DI 24510.063 B.2,7 the
Tenth Circuit has required such limitations be accounted for with precision in the
ultimate determination of the claimant’s residual functional capacity, Jaramillo, 576
Fed. Appx. at 876. This requirement in turn “demands that the ALJ express plaintiff’s
moderate impairments in mental functioning ‘in terms of work-related functions’ or
‘[w]ork-related mental activities.’” Id. (quoting Social Security Ruling 96-8p, 1996 WL
374184 at *6 (SSA July 2, 1996)). A residual functional capacity expressed as being
limited only to work requiring simple, repetitive tasks is insufficient to meet these
requirements. See id. See also Knuutila, 2015 WL 5116723 at *3 n.2 (noting circuit
split on this issue).
The cases on which the Commissioner relies for her contrary position either are not directly
apposite, see Wendelin v. Astrue, 366 Fed. Appx. 899, 904 (10th Cir. Feb. 19, 2010) (upholding ALJ’s
determination not to impose limitations on plaintiff’s ability to concentrate due to pain because no medical
source had suggested such limitations); Aragon v. Colvin, 2015 WL 292824 at *3 (D. Colo. Jan. 20,
2015) (finding that plaintiff failed to point to any evidence to support the imposition of mental limitations on
plaintiff’s ability to work), or actually support a contrary conclusion, see Summers v. Astrue, 2011 WL
1085980 at *3 (W.D. Okla. Feb. 22, 2011) (recommending remand because ALJ failed to inquire of
vocational expert whether unskilled, sedentary work is necessarily coextensive with a low-stress
environment and distinguishing Wendelin), adopted, 2011 WL 1004628 (W.D. Okla. March 21, 2011).
The POMS is “a set of policies issued by the Administration to be used in processing claims.”
McNamar v. Apfel, 172 F.3d 764, 766 (10th Cir. 1999). The court “defer[s] to the POMS provisions unless
[it] determine[s] they are ‘arbitrary, capricious, or contrary to law.’” Ramey v. Reinertson, 268 F.3d 955,
964 n. 2 (10th Cir. 2001) (quoting McNamar, 172 F.3d at 766).
Accordingly, remand is required to allow the ALJ to attempt to substantiate her
findings in this regard. Although plaintiff requests a directed award of benefits, I find
that this case does not present a proper occasion for the exercise of my discretion in
that regard.8 See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993).
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. Reevaluate her opinions at steps four and five of the sequential
evaluation in accordance with this order, in particular, stating plaintiff’s
mental residual functional capacity in terms of specific, work-related
functions which account for the moderate limitations found to be supported
by the record, and ensuring further that any hypothetical propounded to a
vocational expert includes such specific, work-related limitations;
b. Reevaluate the medical opinions of record, making specific findings
regarding the weight assigned to each such opinion and the reasons
c. Recontact any medical or other source, seek the testimony of medical
or vocational experts, order further consultative examinations, or
otherwise further develop the record as she deems necessary; and
d. Reassess the disability determination; and
By this decision, I do not find or imply that plaintiff is or should be found to be disabled.
3. That plaintiff is awarded his costs, to be taxed by the clerk of the court in the
time and manner provided in Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28
U.S.C. § 2412(a)(1).
Dated March 21, 2016, at Denver, Colorado.
BY THE COURT:
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