Williams v. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Craig B. Shaffer on 09/27/16. It is ordered that the Commissioner's Decision is REVERSED and this case is REMANDED to the Commissioner for further proceedings consistent with this order and judgment. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02786-CBS
DANAE J. WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER

Magistrate Judge Craig B. Shaffer
This action comes before the court pursuant to Title XVI of the Social Security Act (the
“Act”), 42 U.S.C. §§ 1381, et seq., for review of the Commissioner of Social Security’s final
decision denying Danae Williams’ application for Supplemental Security Income (“SSI”).
Pursuant to the Order of Reference dated June 12, 2015, this civil action was referred to the
Magistrate Judge for all purposes. See Doc. 24. The court has carefully considered the Complaint
(filed October 10, 2014) [Doc. 1], Defendant’s Answer (filed February 5, 2015) [Doc. 10],
Plaintiff’s Opening Brief (filed April 1, 2015) [Doc. 14], Defendant’s Response Brief (filed May
20, 2015) [Doc. 18], Plaintiff’s Reply Brief (filed May 28, 2015) [Doc. 19], the entire case file,
the administrative record, and the applicable law. For the following reasons, the court reverses
and remands the Commissioner’s Decision.

1

BACKGROUND
In June 2011, Danae Williams applied for SSI, alleging a disability onset date of July 1,
2009. Doc. 11-3 at 2. Ms. Williams alleged that her ability to work was limited by the following
conditions: “herniated discs,” “disc degeneration,” “bulging discs,” “bad hips,” “early
osteosrthritis [sic],” and “muscle spasms.” Id. at 3. Claimant was born on November 19, 1986,
and she was 22 years old on the onset date of her alleged disability. Id. She completed the 12th
grade and has previous work experience as a potato sorter and fast food worker. Id. at 9; Doc.
11-2 at 31-32. After the denial of Ms. Williams’ initial application, she requested a hearing. Doc.
11-2 at 11. The presiding Administrative Law Judge (“ALJ”), Richard J. Maddigan, continued
the case on November 5, 2012, in order to obtain more substantive evidence and held a video
hearing on March 19, 2013. Id.
On March 25, 2013, the ALJ issued an unfavorable decision that denied benefits to Ms.
Williams. Id. at 8. The ALJ’s Decision followed the five-step process outlined in the Social
Security regulations. 1 At step one, the ALJ found that Claimant had not engaged in substantial
gainful employment since June 29, 2011. Id. at 13. At step two, the ALJ found that Claimant had
the following severe impairments: (1) degenerative disc disease; and (2) obesity. Id. Claimant’s
impairments related to her knees and wrists, as well as her depression, were found to be nonsevere. Id. at 13. At step three, the ALJ found that Ms. Gunn did not have an impairment that met
or medically equaled a listed impairment. Id.

1

The five-step process requires the ALJ to consider whether a claimant: (1) engaged in substantial gainful
activity during the alleged period of disability; (2) had a severe impairment; (3) had a condition which
met or equaled the severity of a listed impairment; (4) could return to past relevant work; and, if not (5)
could perform other work in the national economy. See 20 C.F.R. § 416.920(a)(4); Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988). After step three, the ALJ is required to assess the claimant’s
functional residual capacity. 20 C.F.R. § 416.920(e). The claimant has the burden of proof in steps one
through four whereas the Social Security Administration bears the burden of proof at step five. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
2

The ALJ found Ms. Gunn has the following Residual Functional Capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 416.967(a) except the claimant can occasionally lift 10
pounds; she can sit up to two hours in an eight hour workday; she can stand
and walk up to six hours in an eight hour workday; she can frequently perform
overhead reaching and continuous reaching otherwise; there are no limitations
on handling, fingering, feeling, pushing and pulling; she can occasionally
stoop, kneel, crawl; the claimant can occasionally tolerate heights and extreme
cold; she can rarely bend, squat, or crouch. She requires a break every 15 to 30
minutes to alternate positions to mitigate pain.
Id. at 13-14. The ALJ concluded that although Claimant’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms, the evidence did not support a
finding that she was as limited as she claimed. Id. at 14. The ALJ provided four reasons for
finding that the allegations lacked sufficient credibility to support a finding of disability: (1) “the
claimant went ten years without treatment for her cervical spine;” (2) “[s]he provided mixed
information about the onset of her back and hip pain to her different providers;” (3) “there is
little objective evidence to support the severity of her limitations;” and (4) “[i]n addition to her
chronic narcotic use, the claimant appears to be prone to symptom magnification.” Id. at 14-15.
At step four, the ALJ determined that Ms. Williams is unable to perform any of her past
relevant work as a potato sorter or a fast food worker “due to the requirement of frequent
positional changes to mitigate back pain.” Id. at 17. The ALJ then found at step five that
Claimant is able to perform other jobs existing in significant numbers in the national economy,
namely, parking lot attendant (light work), information clerk (light work), store facility rental
clerk (light work), call out operator (sedentary work), telequotations clerk (sedentary work), and
surveillance system monitor (sedentary work). Id. at 18. In doing so, the ALJ relied on the
vocational expert’s (VE) testimony, which he determined to be consistent with the information

3

contained in the Dictionary of Occupational Titles (“DOT”). Id. Accordingly, the ALJ concluded
that Claimant was not disabled under the Act. Id.
Following the ALJ’s decision, Ms. Williams requested review by the Appeals Council.
Id. at 2. The Appeals Council denied her request on September 8, 2014. Id. As a result, the ALJ’s
Decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481; Nelson v.
Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). On October 10, 2014, Ms.
Williams properly filed this civil action in the United States District Court for the District of
Colorado. Doc. 1; see 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
[Commissioner] made after a hearing to which [s]he was a party … may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to [her] of notice of
such decision ….”).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse an
ALJ simply because it may have reached a different result based on the record; the question
instead is whether there is substantial evidence showing that the ALJ was justified in her
decision. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more
than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (citation
omitted). Moreover, “[e]vidence 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.

4

1992) (citation omitted). The court will not “reweigh the evidence or retry the case,” but must
“meticulously examine 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,
515 F.3d at 1070 (citation omitted). Nevertheless, “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) (citation omitted).
ANALYSIS
On appeal, Ms. Williams contends that the ALJ erred by: (1) failing to obtain an
reasonable explanation from the VE regarding a discrepancy between his testimony and the job
descriptions found in the Dictionary of Occupational Titles (“DOT”); (2) basing disability
decision on availability of six jobs identified by the VE that are precluded by the residual
functional capacity (“RFC”) limitations; (3) failing to apply the exact limitations found in the
opinion of the consulting examining physician, Dr. Easchief; (4) rejecting the opinion of Dr.
Rendler, her treating physician, without stating valid reasons; and (5) failing to address the
opinion of Dr. Valette on the existence of mental impairments and associated limitations. Doc.
14 at 4. Because we conclude the ALJ did not follow the correct legal standards in considering
the VE’s testimony, we reverse and remand for further proceedings. We will not reach the
remaining issues raised by Ms. Williams because they may be affected by the treatment of this
case on remand. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
I.

Vocational Expert’s Testimony
On appeal, Ms. Williams argues that the ALJ erred in relying on the VE’s testimony as

substantial evidence of the existence of other suitable jobs in the national economy. Specifically,
Claimant takes issue with the ALJ’s failure to resolve apparent inconsistencies between the VE’s

5

opinion regarding Ms. Williams’ ability to perform the six occupations identified at the hearing
and the specific requirements of each job listed in the DOT. Doc. 14 at 25-26. Claimant further
asserts that she is entitled to an immediate award of benefits rather than a remand for further
administrative proceedings because additional fact-finding would be futile given the fact that her
RFC limitations preclude other work. Id. at 38-39. In response, the Commissioner contends that
remand is necessary here because “[the ALJ] failed to clearly articulate the extent to which he
accepted the various opinions of consultative physician Dr. Easchief, and his poor articulation
resulted in confusing and unhelpful testimony from the vocational expert.” Doc. 18 at 5.
“A claimant’s RFC to do work is what the claimant is still functionally capable of doing
on a regular and continuing basis, despite [her] impairments: the claimant’s maximum sustained
work capability.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). “If the ALJ concludes
that the claimant cannot perform any of [her] past work with [her] remaining RFC, the ALJ bears
the burden at step five to show that there are jobs in the regional or national economies that the
claimant can perform with the limitation the ALJ has found [her] to have.” Haddock v. Apfel,
196 F.3d 1084, 1088 (10th Cir. 1999) (citing Thompson, 987 F.2d at 1487). The Tenth Circuit
has held that “the ALJ must investigate and elicit a reasonable explanation for any conflict
between the [DOT] and expert testimony before the ALJ may rely on the expert’s testimony as
substantial evidence to support a determination of nondisability.” Haddock v. Apfel, 196 F.3d
1084, 1091 (10th Cir. 1999) (“Questioning a vocational expert about the source of his opinion
and any deviations from a publication recognized as authoritative by the agency’s own
regulations falls within [the ALJ’s duty to develop the record].”). Similarly, Social Security
Ruling 00-4p requires a reasonable explanation for conflicts between a VE’s testimony and the

6

DOT relating to any occupational information. SSR 00-4p, 2000 WL 1898704, at *2 (S.S.A.
Dec. 4, 2000).
At the hearing, the ALJ posed the following hypothetical to the VE:
Now if I had an individual age 24 as of the protected filing date. If that
individual were consistent with the findings from Dr. Jaime Easchief. Was
limited to occasional lifting 10 pounds, sitting for two hours, stand six, walk
six. Frequent overhead reaching, continuous other reaching. No limits on
handle, finger, feel, or push or pull. Only occasional stoop, kneel, crouch, or
crawl. Occasional exposure to heights and extreme cold. Would require breaks
every 15 to 30 minutes to sit and mitigate pain. Rarely bend, squat, crouch, or
stoop.
Doc. 11-2 at 35-36. While the VE opined that an individual with these limitations could not do
any of Ms. Williams’ prior work activities, he identified three sedentary jobs (“call out operator,”
“telephone quotation clerk,” and “surveillance systems monitor”) and three light jobs (“parking
lot attendant,” “information clerk,” and “storage facility rental clerk”) that would be suitable for
such an individual. Id. at 37-39.
Per the DOT, “[s]edentary work invoves [sic] sitting most of the time, but may involve
walking or standing for brief periods of time.” See DICOT 237.367-014 (call-out operator);
DICOT 237.367-046 (telephone quotation clerk); DICOT 379.367-010 (surveillance-system
monitor). The ALJ acknowledged the facial conflict during the hearing, “I’m somewhat
concerned that we’re identifying sedentary jobs where sitting is limited. How do you account for
this?” Doc. 11-2 at 37. However, the VE’s response did not explain how the selected sedentary
jobs survived the strict two-hour sitting limitation. See id. (“Well I tried to identify sedentary
jobs due to the occasional lifting of 10 pounds….”). Likewise, the ALJ’s subsequent questions to
the VE regarding the use of “positional change” breaks to mitigate Claimant’s pain do not
provide a reasonable explanation because they were discussing breaks from standing as opposed
to sitting positions. See id. at 41-43 (VE testified, “[i]t’s hard for me to interpret what the doctor

7

was saying. I mean initially my response was the break would be a positional change from
standing to sit down to get off their feet, the individuals feet and take a break from standing to a
sitting position.”). Moreover, the VE provided no testimony to support the contention that
positional changes, even allowed in fifteen-minute intervals, would enable an individual with a
two-hour sitting limitation to do a job that entails sitting for most of an 8-hour day.
Furthermore, although the ALJ found Ms. Williams to have the residual functional
capacity to do sedentary work, he also relied on the three light jobs identified by the VE as
evidence of the existence of suitable work. 2 The ALJ’s failure to investigate how these higherlevel jobs were compatible with Claimant’s RFC is problematic because it appears that the VC
only considered Ms. Williams’ lifting limitation in determining that these occupations were
suitable. Doc. 11-2 at 38-39 (“But there are light duty jobs that would be okay with the 10 pound
lifting and I could provide a couple of those jobs for you as well.”). Importantly, the ALJ’s
Decision fails to address these inconsistencies. Indeed, it states “[p]ursuant to SSR 00-4p, the
[ALJ] has determined that the vocational expert’s testimony is consistent with the information
contained in the [DOT].” Id. at 18. As such, the ALJ erred in relying on the VE’s testimony to
support his determination of non-disability.
The court is not suggesting that Claimant should be found disabled on remand, rather the
court finds remand necessary in order for the ALJ to engage in additional fact-finding and to

2

The DOT describes how an occupation’s strength requirements impact the decision to classify a job as light work:
Physical demand requirements are in excess of those for Sedentary Work. Even though the
weight lifted may be only a negligible amount, a job should be rate Light Work: (1) when it
requires walking or standing to a significant degree; or (2) when it requires sitting most of the
time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires
working at a production rate pace entailing the constant pushing and/or pulling of materials
even though the weight of those materials is negligible.
See DICOT 915.473-010 (parking lot attendant); DICOT 237.367-018 (information clerk); DICOT 295.367-026
(storage facility rental clerk).

8

clarify his reasoning in the Decision. The court recognizes that there could be valid explanations
for conflicts between the VE’s testimony and the DOT, but it is the ALJ’s duty to elicit this
information. See Haddock, 196 F.3d at 1092-93 (“[a] valid explanation would be that a specified
number or percentage of a particular job is performed at a lower RFC level than the Dictionary
shows the job generally to require.”). Accordingly, the court must reverse the Decision and
remand this case to allow the ALJ to apply the correct legal test.
CONCLUSION
Based on the foregoing reasons, it is ORDERED that the Commissioner’s Decision is
REVERSED and this case is REMANDED to the Commissioner for further proceedings
consistent with this order and judgment.

DATED at Denver, Colorado, this 27th day of September, 2016.

BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge

9