Mondragon v. Colvin
DUPLICATE DOCKET ENTRY - DISREGARD - ORDER vacating Defendant's denial of disability insurance benefits and supplemental security income and remanding this case to Defendant for further proceedings as directed pursuant to sentence four in 42 U.S.C. § 405(g). Entered by Judge Raymond P. Moore on 3/28/2016. (cpear) Modified on 3/29/2016 to edit text (cpear).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-02599-RM
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
This matter is before the Court on Christopher Mondragon’s (“Plaintiff”) request for
judicial review pursuant to 42 U.S.C. § 405(g). (ECF No.1.) Plaintiff challenges the final
decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration (“Commissioner”), denying Plaintiff’s applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI,
respectively, of the Social Security Act (“Act”). An Administrative Law Judge (“ALJ”) ruled
Plaintiff was not disabled within the meaning of the Act and therefore not entitled to DIB or SSI.
Defendant provided the Court with the administrative record. (ECF Nos. 13; 13-1; 13-2;
13-3; 13-4; 13-5; 13-6; 13-7; 13-8; 13-9; 13-10; 13-11.) The matter is fully briefed and ripe for
adjudication. (ECF Nos. 16; 17; 18.)
For the reasons set forth below, the Court vacates the denial of Plaintiff’s applications
and remands for proceedings consistent with this Order.
Plaintiff applied for DIB and SSI in January 2012, alleging he was disabled as of March
21, 2010, due to the following conditions that limit his ability to work: left foot, dropped foot,
left hip pain, right shoulder pain, left internal dead kidney, reconstructed stomach wall (Admin.
R. (“Tr.”) 149-58, 205.) Plaintiff amended his applications to reflect an onset date of January 24,
2012, due to mental health issues. (Tr. 40-41.) After Plaintiff’s applications were initially
denied (Tr. 65-88), Plaintiff requested a hearing before an ALJ (Tr. 98-99). The ALJ denied
Plaintiff’s applications. (Tr. 16-35.) Plaintiff requested review of the ALJ’s decision (Tr. 14-15)
and, in July 2014, the Appeals Council denied such review (Tr. 1-5). Plaintiff timely requested
judicial review before the Court.
Background and Relevant Medical Evidence1
Plaintiff was born in 1987. (Tr. 149.) Plaintiff completed eleventh grade. (Tr. 206.)
Plaintiff passed the GED. (Tr. 52.) Plaintiff’s past relevant work history, as referenced in the
Dictionary of Occupational Titles, includes: fast food cook, fast food worker, stocker, and
managing stocker. (Tr. 60.)
Plaintiff claims he is disabled due to a combination of physical and mental health
In March 2010, Plaintiff was in a motor vehicle accident from which he suffered
damaged internal organs, broken ribs, a right-shoulder fracture, a dislocated left hip, and multiple
fractures of the left leg, ankle, and foot. (Tr. 249-330, 350-82, 479-540.)
In 2010, Plaintiff’s third and fourth toes on Plaintiff’s left foot were amputated. (Tr.
565.) In 2010, Plaintiff also developed a left foot drop. (Tr. 561-62.)
The Court will not discuss impairments or conditions that are not at issue in Plaintiff’s opening brief.
Also in 2010, Plaintiff completed occupational therapy to increase the functioning of his
right arm. (Tr. 578-613.)
In December 2010, Plaintiff returned to work as a stocker at Wal-Mart. (Tr. 43, 189.)
Plaintiff testified that he could not perform the functions of his job at Wal-Mart because of his
disabilities, and he was therefore, terminated. (Tr. 43-46, 50-51.)
In March 2012, Tim Moser, M.D., provided a consultative examination of Plaintiff in
relation to Plaintiff’s application for disability benefits. (Tr. 573-77.) Dr. Moser opined Plaintiff
had some limitations in postural and manipulative activities; could not lift and carry more than
20 pounds occasionally and 10 pounds frequently; could stand and walk for fewer than two hours
in an eight-hour workday but could sit for an unlimited amount of time; and required use of a
brace and cane to walk. (Tr. 577.)
Plaintiff testified that his physical pain causes him trouble with focusing and
concentrating. (Tr. 58.)
In January 2012, Plaintiff received mental health treatment from Spanish Peaks Mental
Health Center (“SPMHC”). (Tr. 629-48.) Plaintiff was diagnosed with post-traumatic stress
disorder (“PTSD”), anxiety, and depression. (Tr. 645-46.) In mid-2012, Plaintiff was
discharged from treatment because he did not attend group therapy sessions as required as well
as did not respond to SPMHC’s attempts to engage him in treatment. (Tr. 639.)
Plaintiff testified that he loses focus a lot and that while he is watching TV he will “daze
out.” (Tr. 52-53.)
The ALJ’s Decision
On March 7, 2013, ALJ Debra Boudreau issued her decision in this matter denying
Plaintiff DIB and SSI. (Tr. 16-35.) In reaching her decision, ALJ Boudreau followed the fivestep sequential evaluation process for evaluating disability claims. (Tr. 21-31.) ALJ Boudreau
found that Plaintiff has met the disability insured status of the Act through December 31, 2016
and has not engaged in substantial gainful activity since January 24, 2012, the amended alleged
onset date. (Tr. 21.) ALJ Boudreau found that Plaintiff has the following severe impairments:
“left foot drop; status post multiple left lower extremity fractures; status post right shoulder
fracture; degenerative joint disease of left foot.” (Tr. 21-23.) ALJ Boudreau found that Plaintiff
does not have an impairment or combination of impairments that meets or medically equals one
of the listed impairments in Appendix 1 of the Social Security Regulations, specifically
considering Listings 1.02, 1.00B2b, 1.00B2c, 1.06, and 1.07. (Tr. 23-24.) ALJ Boudreau found
Plaintiff’s residual functional capacity (“RFC”) to be as follows:
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that
the claimant can occasionally lift and/or carry up to 20 pounds and can frequently
lift and/or carry up to 10 pounds. In addition, the claimant can stand and/or walk
for a total of less than 2 hours in an 8-hour workday. The claimant has no
limitation on sitting. Moreover, he requires the use of a cane and a brace to
ambulate but can carry light items, such as files, in his free hand while
ambulating. The claimant can never climb. He can occasionally balance. The
claimant should never stoop, kneel, crouch, or crawl. The claimant can reach,
handle, finger, and feel with his right dominant hand on an occasional basis. He
has no limitations on the use of his left hand. The claimant should avoid
concentrated exposure to vibrations, temperature extremes, hazardous machinery,
and unprotected heights.
(Tr. 24-29.) ALJ Boudreau found that Plaintiff has past relevant work and that he is unable to
perform such work. (Tr. 29.)
Based on the vocational expert’s testimony, which in turn was predicated on ALJ
Boudreau’s hypotheticals and in consideration of Plaintiff’s age, education, and work experience,
ALJ Boudreau found that Plaintiff could perform jobs that exist in significant numbers in the
national economy, including: call out operator and surveillance systems monitor. (Tr. 30-31.)
Therefore, ALJ Boudreau concluded that Plaintiff was not disabled. (Tr. 31.)
Plaintiff appealed the ALJ’s decision at issue in this matter. (Tr. 15.) On July 28, 2014,
the Appeals Council denied Plaintiff’s request for review. (Tr. 1-5.) Plaintiff appeals that
decision by bringing this lawsuit. (ECF No. 1.)
Standard of Review
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial
evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.
Id. “It requires more than a scintilla, but less than preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007).
Although a district court will “not reweigh the evidence or retry the case,” it
“meticulously examine[s] the record as a whole, including anything that may undercut or detract
from the ALJ’s findings in order to determine if the substantiality test has been met.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42 U.S.C. ' 405(g). Evidence is not
substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may not
substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir.
Many C.F.R. citations are to part 404—which addresses DIB claims. All cited regulations have parallel citations
in part 416—which addresses SSI claims.
2006). As the Tenth Circuit Court of Appeals observed in Baca v. Dep’t of Health & Human
Servs., 5 F.3d 476 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to “fully and fairly
develop the record as to material issues.” Id. at 479-480 (citations omitted). This duty exists
even when the claimant is represented by counsel. Id. at 480 (citation omitted).
Also, “[t]he failure to apply the correct legal standard or to provide [a reviewing] court
with a sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (citation and
internal quotation marks omitted); see also Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.
1996) (“[T]he Secretary’s failure to apply the correct legal standards, or to show us that [he] has
done so, are . . . grounds for reversal.”).
Evaluation of Disability
The criteria to obtain DIB under Title II of the Act are that a claimant meets the insured
status requirements, is younger than 65 years of age, files an application for a period of
disability, and is under a “disability” as defined under Title II of the Act. 42 U.S.C. §§ 416(i),
423(a); Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). In addition, the individual’s
disability must have begun before his or her disability-insured status has expired. 20 C.F.R. §
404.101; Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *8 (1983).
The criteria for SSI payments under Title XVI of the Act are determined on the basis of
the individual’s income, resources, and other relevant characteristics. 42 U.S.C. § 1382(c)(1). In
addition to being financially eligible, the individual must file an application for SSI and be under
a disability as defined in the Act. 42 U.S.C. § 1382.
The Act defines “disability” as the inability “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment [that] can be expected to
result in death or [that] has lasted or can be expected to last for a continuous period of not
[fewer] than twelve months.” 42 U.S.C. § 1382c(a)(3)(A) (definition for benefits under SSI); see
also 42 U.S.C. § 423(d)(2)(A) (definition for benefits under DIB); Barnhart v. Walton, 535 U.S.
212, 214-15 (2002).
There is a five-step sequent for evaluating a disability. See 20 C.F.R. §§ 404.1520,
416.920(a)(4); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step analysis). If
it is determined that a claimant is or is not disabled at any point in the analysis, the analysis ends.
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). First, the
claimant must demonstrate that he or she is not currently involved in any substantial, gainful
activity. 20 C.F.R. §§ 404.1520(b), 416.920(a)(4)(i). Second, the claimant must show a
medically severe impairment or combination of impairments that significantly limits his or her
physical or mental ability to do basic work activities. Id. at §§ 404.1520(c), 416.920(a)(4)(ii).
Third, if the impairment matches or is equivalent to an established listing under the governing
regulations, the claimant is judged conclusively disabled. Id. at §§ 404.1520(d),
416.920(a)(4)(iii). If the claimant’s impairment does not match or is not equivalent to an
established listing, the analysis proceeds to the fourth step. Fourth, the claimant must show that
the “impairment prevents [him or her] from performing work [he or she] has performed in the
past.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (citations omitted); accord 20
C.F.R. §§ 404.1520(f), 416.920(a)(4)(iv). If the claimant is able to perform his or her previous
work, he or she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(a)(4)(iv). Fifth, the
Commissioner must demonstrate: (1) that based on the claimant’s residual functional capacity
(“RFC”), age, education, and work experience, the claimant can perform other work; and (2) the
work that the claimant can perform is available in significant numbers in the national economy.
Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987); see also 20 C.F.R. §§ 404.1520(g),
Plaintiff raises numerous issues for the Court’s consideration, including that: (1) the ALJ
erred in finding Plaintiff’s mental health impairments non-severe (ECF No. 16 at 5-6); (2) the
ALJ erred in failing to order a psychological consultative examination (ECF No. 16 at 6-7); and
(3) the ALJ erred in her Step-Five determination due to a lack of substantial evidence (ECF No.
16 at 7-9). As a subspecies of Plaintiff’s argument in favor of vacating Defendant’s decision,
Plaintiff argues that the ALJ erred in failing to consider Plaintiff’s mental health impairments in
fashioning the RFC. (See ECF No. 16 at 6 (“Even if his mental health issues are not, in and of
themselves, disabling, they nevertheless must be considered along with every other
impairment.”), 7 (the ALJ engaged in “an incomplete assessment of [Plaintiff’s] condition and
resulting limitations”); ECF No. 18 at 1-2 (“A moderate impairment in sustaining focused
attention and concentration is more than a slight abnormality with more than a minimal effect on
the ability to do basic work activities per SSR 96-3p.”, 3 (“[I]t is not harmless error where the
ALJ’s RFC assessment failed to include any limitations related to [Plaintiff’s] mental health
conditions.”).) Defendant construed Plaintiff’s argument as raising an issue with respect to the
ALJ’s RFC determination. (ECF No. 17 at 14-18.)
Because the Court finds the ALJ committed legal error due to her failure to discuss
Plaintiff’s mental impairments in fashioning the RFC and the RFC is not based upon substantial
evidence, the Court VACATES Defendant’s decision.
Because this error alone requires remand, the Court does not address the other arguments
raised by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ’s
error affected the analysis as a whole, a court properly declined to address other issues raised on
appeal); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the
remaining issues raised by appellant because they may be affected by the ALJ’s treatment of this
case on remand.”). The Court expresses no opinion as to Plaintiff’s other arguments and neither
party should take the Court’s silence as tacit approval or disapproval of how the evidence was
considered. The Court does not intend, by the opinion, to suggest the result that should be
reached on remand; rather, the Court encourages the parties (as well as the ALJ) to consider all
of the evidence and the issues anew.
The ALJ Erred in Failing to Analyze Plaintiff’s Mental Impairments in
Consideration of the Applicable RFC and Substantial Evidence Does Not
Support the RFC
In this matter, the ALJ acknowledged that Plaintiff’s DIB and SSI applications were, in
part, based upon Plaintiff’s mental health impairments. (Tr. 22.) The ALJ determined that
Plaintiff’s “medically determinable mental impairments of posttraumatic stress disorder,
generalized anxiety disorder, and major depressive disorder, considered singly and in
combination, do not cause more than minimal limitation in [Plaintiff’s] ability to perform basic
mental work activities and are therefore nonsevere.” (Tr. 22.) Further, the ALJ found Plaintiff
“has a moderate limitation in his ability to sustain focused attention and concentration
sufficiently long to permit the timely and appropriate completion of tasks commonly found in
work settings.” (Tr. 23.)
Although the ALJ applied the special technique required by the regulations, 20 C.F.R. §
404.1520a, in considering the broad categorical function limitations stemming from Plaintiff’s
mental impairments (Tr. 21-23), the ALJ did not discuss Plaintiff’s medically determinable
mental impairments in her RFC discussion. (See generally Tr. 24-29.) The ALJ used boilerplate
language. Specifically the ALJ, in fashioning the RFC, stated
the undersigned has considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR 404.1529 and
416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion
evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
(Tr. 25.) Further, the ALJ stated that “she has considered all the evidence of record, including
Exhibits 1A through 12F, whether explicitly discussed in this decision or not.” (Tr. 27.) The
Tenth Circuit, however, has rejected such boilerplate language. Hardman v. Barnhart, 362 F.3d
676, 679 (10th Cir. 2004). The ALJ must explain what specific evidence led her to her RFC
determination. See Hardman, 362 F.3d at 679; see also Kepler v. Chater, 68 F.3d 387, 391 (10th
Cir. 1995). Despite Defendant’s argument to the contrary (ECF No. 17 at 17 n.8), the ALJ’s
blanket statement that she considered all of the evidence fails to inform the Court, in a
meaningful and reviewable way, of the specific evidence the ALJ considered in determining
Plaintiff’s mental health impairments (specifically, his moderate concentration impairment)
complaints were not credible and thus, did not need to be included in the RFC or that they were
accounted for in the RFC. See Hardman, 362 F.3d at 679.
The RFC is defined as the most that a claimant can do in a work setting despite the
claimant’s mental and physical limitations. 20 C.F.R. § 404.1545(a)(1). “The determination of
RFC is an administrative assessment, based upon all the evidence of how the claimant's
impairments and related symptoms affect her ability to perform work-related activities.” Young
v. Barnhart, 146 F. App’x 952, 955 (10th Cir. 2005) (unpublished). “The final responsibility for
determining RFC rests with the Commissioner, based upon all the evidence in the record, not
only the relevant medical evidence.” Id.
“‘The RFC assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).’” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir.
2014) (quoting SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996)). Also relying on SSR 96-8p,
the Tenth Circuit in Lawton v. Barnhart, 121 F. App’x 364, 374 (10th Cir. 2005) (unpublished)
described the analysis required in the RFC as follows:
The ALJ must discuss the individual's ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis ... and describe the
maximum amount of each work-related activity the individual can perform based
on the evidence available in the case record.
Id. (quoting SSR 96-8p, 1996 WL 374184, at *7). The ALJ must also explain how any material
inconsistencies or ambiguities in the case record were considered and resolved. Id. In this
matter, the ALJ did not explain how she considered and resolved Plaintiff’s diagnosis of several
mental-health impairments (Tr. 634, 645-46) with the RFC determination. There exists an
inconsistency (Tr. 23) between the ALJ’s finding Plaintiff suffered from a functional limitation
(“has a moderate limitation in his ability to sustain focused attention and concentration
sufficiently long to permit the timely and appropriate completion of tasks commonly found in
work settings”) and her finding that Plaintiff’s level of activity is inconsistent with said
determination (“although the [Plaintiff] testified to problems with focus and concentration, he
has reported playing video games and watching a lot of television, activities which often require
a great deal of concentration”) (Tr. 28). (See generally Tr. 21-29.)3
“The RFC assessment must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as consistent with the
medical and other evidence.” SSR 96-8p, 1996 WL 374184, at *7. In this matter, the ALJ
And the ALJ impermissibly ignores other testimony to the effect that Plaintiff will “daze out” while watching
television (Tr. 53). See Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008) (citation omitted).
discussed why Plaintiff’s reported “problems with focus and concentration” cannot reasonably
be accepted as consistent with a disabled finding. (Tr. 28.) It is axiomatic, however, that all of
the ALJ’s required findings, including the RFC, must be supported by substantial evidence.
Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). Thus, where the ALJ fails to point to
specific evidence supporting each conclusion, the RFC findings are not supported by substantial
evidence and a remand is required. See also Moon v. Barnhart, 159 F. App’x 20, 23 (10th Cir.
2005) (unpublished) (remanding the case to the Commissioner where “the ALJ never specified
what he believed the credible medical evidence to be, either for the purpose of rejecting the
doctors’ RFC assessments or for the purpose of supporting his own finding” and where the court
was thus unable to determine what evidence the ALJ relied on in connection with the RFC); see
also Southard v. Barnhart, 72 F. App’x 781, 784-85 (10th Cir. 2003) (unpublished). In this
matter, the ALJ identified that the activities of “playing video games and watching a lot of
television . . . require a great deal of concentration.” (Tr. 28 (emphasis added).) But whether
these activities “require a great deal of concentration” are not facts in the record (and the ALJ
does not cite to such facts). For this reason, the ALJ’s credibility determination—which in turn
assisted in the ALJ’s RFC determination—lacks substantial evidence. See 96-7p, 1996 WL
374186, at *4 (July 2, 1996) (“The finding on the credibility of the individual’s statements
cannot be based on an intangible or intuitive notion about an individual’s credibility. The
reasons for the credibility finding must be grounded in the evidence and articulated in the
determination or decision.”) (Emphasis added). When an ALJ does not provide an explanation
based upon substantial evidence for rejecting evidence, i.e., Plaintiff’s subjective complaints
regarding his inability to concentrate and focus, the Court cannot meaningfully review the ALJ’s
determination. Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (quoting Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (holding “[i]n the absence of ALJ findings
supported by specific weighing of the evidence, we cannot assess whether relevant evidence
adequately supports the ALJ's conclusion”); Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995)
(holding ALJ's listing of factors he considered was inadequate when court was “left to speculate
what specific evidence led the ALJ to [his conclusion]”)).
“[A]n ALJ is required to consider all of the claimant’s medically determinable
impairments, singly and in combination; the statute and regulations require nothing less” and a
failure to do so “is reversible error.” Salazar, 468 F.3d at 621 (citations omitted); accord 42
U.S.C. § 423(d)(2)(B); accord 20 C.F.R. § 404.1523. At Steps 4 and 5, the ALJ “must consider
the combined effect of all of the claimant’s medically determinable impairments, whether severe
or not severe.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (citing 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2)) (emphasis in original). “[T]he Commissioner’s procedures do
not permit the ALJ to simply rely on his finding of non-severity as a substitute for a proper RFC
analysis.” Wells, 727 F.3d at 1065 (citing SSR 96-8p, 1996 WL 374184, at *4). Although the
ALJ found Plaintiff’s mental impairments to be non-severe (Tr. 22-23), this finding did not
excuse the ALJ from considering Plaintiff’s mental impairments in relation to Plaintiff’s RFC.
“[T]he ALJ’s ‘RFC assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts . . . and nonmedical evidence.’” Wells,
727 F.3d at 1065 (citing SSR 96-8p, 1996 WL 374184 at *7).
Defendant argues, without citation to the record, that “the ALJ reasonably did not find
that Plaintiff’s mental condition satisfied the durational requirements of the regulations.” (ECF
No. 17 at 17.) First, the ALJ did not make a finding that Plaintiff’s mental health impairments
were not of sufficient duration. (See generally Tr. 19-31, 23 (the ALJ stated that Plaintiff’s
“treatment was short-term and appeared to be situational” not that his mental health impairments
were short-term) (emphasis added).) 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). “‘Affirming this post hoc effort to salvage the ALJ’s decision would require us to
overstep our institutional role and usurp essential functions committed in the first instance to the
administrative process.’” Id. at 1084-85 (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th
Cir. 2004); see also Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (holding that a
post hoc rationale is improper because it usurps the agency’s function of weighing and balancing
the evidence in the first instance and that judicial review is limited to the reasons stated in the
ALJ’s decision). Second, whether Plaintiff’s mental impairments satisfied the durational
requirements necessary for a disabled finding is a separate inquiry from whether Plaintiff has
medically determinable mental health impairments (which the ALJ found) and thus, what
functional limitations, if any, result from such impairments. In this matter, the ALJ did not
discuss Plaintiff’s mental impairments, i.e., posttraumatic stress disorder, generalized anxiety
disorder, and major depressive disorder, in fashioning the RFC. (See generally Tr. 24-29.) A
function-by-function evaluation is necessary in order to arrive at an accurate RFC. SSR 96-8p,
1996 WL 374184 at *3-4 (“[A] failure to first make a function-by-function assessment of the
[claimant's] limitations or restrictions could result in the adjudicator overlooking some of [the
claimant's] limitations or restrictions.”).
Harmless error analysis is applicable if “no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way.”
Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005). This analysis is applied
cautiously in the administrative context. Id. at 733. Where the Court “can follow the
adjudicator’s reasoning in conducting [its] review, and can determine that correct legal standards
have been applied, merely technical omissions in the ALJ’s reasoning do not dictate reversal.”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). In this matter, Defendant does
not advocate that the Court apply harmless error analysis. Further, the Court does not find the
harmless error analysis applicable in this matter. Specifically, the Court is unable to discern how
the ALJ’s finding that Plaintiff has “a moderate limitation in his ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate completion of
tasks commonly found in work settings” (Tr. 23) comports with the finding that Plaintiff has no
functional limitations related to his mental health in the RFC (see generally Tr. 24-29).4
Defendant argues that “[t]he ALJ accounted for Plaintiff’s minimal limitations in mental
work-related activities by confirming with the VE that all of the jobs identified were unskilled
jobs. . . .” (ECF No. 17 at 18.) The RFC, however, contains no limitation to unskilled work.
(See generally Tr. 24-25.) While the limitation to unskilled work could properly account for
moderate concentration impairments, see Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015),
because the limitation to unskilled work is not in the RFC (see generally Tr. 24-25), the ALJ
erred in her RFC assessment. Additionally, the ALJ decision states that she “asked the
vocational expert whether jobs exist in the national economy for an individual with the
[Plaintiff’s] age, education, work experience, and residual functional capacity.” (Tr. 30.) Again,
the RFC does not include a limitation to unskilled work. (See generally Tr. 24-25.) The Court
recognizes that the ALJ posed as a hypothetical to the vocational expert the limitation to
unskilled work, to which the vocational expert testified that Plaintiff could still perform the jobs
Further, in discussing the severity of Plaintiff’s mental impairments (Tr. 21-23), the ALJ appears to create a
contradiction. Initially, the ALJ states Plaintiff has “mild difficulties” with respect to “concentration, persistence or
pace.” (Tr. 23.) Then, a few sentences later, the ALJ states that Plaintiff “has a moderate limitation in his ability to
sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of
tasks commonly found in work settings.” (Tr. 23.) Because the Court is unable to follow the ALJ’s reasoning for
how she resolved these apparent inconsistencies, the Court vacates Defendant’s decision.
of call out operator or surveillance systems monitor. (Tr. 62-63.) The ALJ, however, also added
an additional hypothetical which concerned the amount of time a worker would be off task as
twenty percent, presumably based on an inability to concentrate, to which the vocational expert
testified that limitation would eliminate all competitive employment. (Tr. 63.) The Court cannot
conclude that the ALJ’s RFC error was rendered harmless by the vocational expert hypotheticals
because it is not apparent that the dispositive hypothetical encompassed all of the functional
limitations properly suggested by the ALJ’s finding of a moderate concentration impairment (Tr.
23), i.e., whether a worker can remain on task. See Wiederholt v. Barnhart, 121 F. App’x 833,
839-40 (10th Cir. 2005) (unpublished) (holding that “[t]he relatively broad, unspecified nature of
the description ‘simple’ and ‘unskilled’ does not adequately incorporate the ALJ’s additional,
more specific findings regarding [the plaintiff’s] mental impairments . . . such as moderate
difficulties maintaining concentration, persistence, or pace, [and thus,] the resulting hypothetical
question was flawed”); see also Porter v. Colvin, Case No. CIV-14-850-D, 2015 WL 5672603,
*5 (W.D. Okla. Aug. 31, 2015).
Based on the foregoing, the Court:
VACATES Defendant’s denial of disability insurance benefits and supplemental
security income; and
REMANDS to Defendant for further proceedings as directed in this Order
pursuant to sentence four in 42 U.S.C. § 405(g).
DATED this 28th day of March, 2016.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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