Wyche v. Colvin

Filing 21

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE, by Judge William J. Martinez on 4/24/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-0784-WJM
VICKI L. WYCHE,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE

This is a social security benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff Vicki L. Wyche (“Wyche”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
insurance benefits and supplemental security income. The denial was affirmed by an
administrative law judge (“ALJ”), who ruled that Wyche was not disabled within the
meaning of the Social Security Act. This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Wyche’s application
for disability insurance benefits and supplemental security income is VACATED and the
case is REMANDED for further proceedings consistent with this Order.
I. BACKGROUND
Wyche was born in 1962, and was 45 years old on the alleged disability onset
date. (Admin. Record (“R.”) (ECF No. 11) at 49.) Wyche completed the eighth grade
and has, in the last twenty-five years, worked as a housekeeper, waitress, and fast-food

worker. (R. at 177–81, 99.)
Wyche filed an application for a period of disability and disability insurance
benefits on December 3, 2010, alleging that she has been disabled since Septem ber 1,
2007 due to multiple impairments, including: arthritis in the lower back, hands, and left
arm, leg problems, learning disability, and breathing problems. (R. at 60.) Plaintiff also
filed an application for supplemental security income on December 21, 2010, alleging
the same disabilities. (R. at 49.) Wyche’s applications were initially denied and she
requested a hearing, which was held on May 23, 2012. (R. at 58, 69.) The ALJ,
William Shaffer, denied benefits on a finding that she was not disabled. (R. at 20.) The
Social Security Appeals Council denied review, which made the ALJ’s decision the final
decision of the Commissioner. Wyche sought judicial review, and on April 17, 2015 this
Court remanded for further proceedings. (R. at 431.) A second administrative hearing
was held on November 24, 2015 in front of a different ALJ, William Musseman. (R. at
379.) On January 28, 2016, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process. (R. at 347.) 1
At step one, the ALJ found that Wyche had not engaged in substantial gainful
activity “during the period from her alleged onset date of September 1, 2007, through
her date last insured of September 30, 2008,” nor had she “engaged in substantial

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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
his past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th
Cir. 1988). The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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gainful activity since December 21, 2010, the application date.” (R. at 353.)
At step two, the ALJ found that Wyche did not suffer from any severe
impairments through the date last insured, effectively ending his review of Wyche’s
disability insurance benefits application. (R. at 352–53 (“If the claimant does not have a
severe medically determinable impairment or combination of impairments, she is not
disabled.”).) However, as of December 21, 2010, the protected filing date for Wyche’s
supplemental security income application, the ALJ found that Wyche suffered from the
following severe impairments: rheumatoid arthritis and osteoarthritis, obesity, and
“probable gout.” (R. at 360.)
At step three, the ALJ found that Wyche’s impairments, while severe, did not
meet or medically equal any of the listed impairments listed in the Social Security
regulations. (R. at 364.)
Before proceeding to step four, the ALJ assessed Wyche’s residual functional
capacity (“RFC”). The ALJ concluded that W yche has the RFC to “perform light work.”
(R. at 365.) Next, at step four, the ALJ concluded that W yche “has no past relevant
work.” (R. at 370.) Thus, the ALJ proceeded to step five and found that there are jobs
that exist in the national economy that Wyche could perform, such as: gate guard,
furniture rental consultant, and car dealer accounts investigator. (R. at 371.)
Accordingly, the ALJ found that Wyche was not entitled to either disability
insurance benefits or supplemental security income. (R. at 372.) The ALJ’s decision
became final after sixty days. See 20 C.F.R. § 404.984(d). Wyche then filed this action
seeking review of the ALJ’s January 28, 2016 decision. (ECF No. 1.)

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II. 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 such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a
preponderance.” Lax, 489 F.3d at 1084. 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
neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar
v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, 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).
III. ANALYSIS
On appeal, Wyche makes five arguments as to why the ALJ’s decision should be
reversed: (1) the ALJ failed to properly determine Wyche’s RFC, which in turn affected
his step-five determination; (2) specifically as to RFC, the ALJ’s finding does not
account for Wyche’s mental health limitations; (3) the ALJ generally failed to consider “a
great number of impairments[;]” (4) the ALJ did not base his credibility finding in
substantial evidence; and (5) the ALJ improperly discounted the opinions of Dr. Marten,
Dr. Suyeishi, Dr. Caldwell, and Ms. Gerig. (ECF No. 15–23.) As the Court finds the
second argument dispositive, it will address this argument first.

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Wyche contends that the ALJ erred in failing to properly consider her mental
impairments in formulating the RFC. (ECF No. 14 at 21 (“The mental impairment
analysis at step three ended there, in violation of Wells v. Colvin, 727 F.3d 1061,
1064–65 (10th Cir. 2013).”).) Pursuant to the Social Security regulations, “in assessing
the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s
medically determinable impairments, whether severe or not severe.” Wells, 727 F.3d at
1065 (citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)). The ALJ may not “simply rely
on his finding of non-severity as a substitute for a proper RFC analysis.” Id. (citing
Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *4 (July 2, 1996)).
Here, the ALJ found that Wyche suffered from the following medically
determinable mental impairments: depressive disorder, post-traumatic stress disorder
(“PTSD”), and borderline intellectual functioning. (R. at 361.)2 The ALJ mentioned
Wyche’s mental impairments in discussing “paragraph B” criteria, which is an analysis
used to rate the severity of mental impairments in four general areas of functioning at
steps two and three of the sequential evaluation process. (R. at 363-64.) He found that
the evidence showed that Wyche had “no more than ‘mild’ limitation[s]” in the first three
“paragraph B” functional areas and “‘no’ episodes of decompensation,” in the fourth
area, thus concluding that Wyche’s mental impairments were non-severe. (R. at 364.)
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The Court notes that both Brad Marten and Mark Suyeishi, the consulting psychologist
and state agency reviewing psychologist respectively, diagnosed Wyche with borderline
intellectual functioning, depressive disorder, and PTSD. (See R. at 56, 281–87.) It appears
that the ALJ adopted their diagnoses by finding that Wyche suffers from those mental
limitations. However, the ALJ gave “no weight” to either psychologist’s opinion, and after
reviewing the record, the Court finds no evidence supporting a diagnosis of the three named
mental impairments other than what was discussed in those two opinions. Thus, the Court
finds the ALJ’s ambiguity in this respect troubling, and on remand this ambiguity should be
addressed.

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The ALJ’s written decision then quoted directly from Social Security Ruling
96–8p, which states that:
[T]he limitations identified in the “paragraph B”
. . . criteria are not an RFC assessment but are
used to rate the severity of mental
impairment(s) at steps 2 and 3 of the
sequential evaluation process. The mental
RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more
detailed assessment by itemizing various
functions contained in the broad categories
found in paragraphs B and C of the adult
mental disorders listings in 12.00 of the Listing
of Impairments . . . .
SSR 96-8p, 1996 WL 374184, at *4. However, immediately after quoting this language,
the ALJ’s decision summarily concludes that “[t]herefore, the following [RFC]
assessment reflects the degree of limitation the undersigned has found in the
‘paragraph B’ mental function analysis.” (R. at 364.) The decision contains no further
evaluation or discussion of Wyche’s functional limitations based on her mental
limitations.
The Court finds that the ALJ failed to analyze Wyche’s mental impairments in
formulating the RFC. The ALJ properly considered those impairments at steps two and
three in evaluating their possible severity. (See R. at 363-64.) “Under the regulations,
however, a finding of non-severity alone would not support a decision to prepare an
RFC assessment omitting any mental restriction.” Wells, 727 F.3d at 1065. The very
language the ALJ quotes makes clear that the “paragraph B” analysis is insufficiently
detailed to supplant the analysis of the same impairments that must be performed when
formulating the RFC. See SSR 96-8p, 1996 WL 374184, at *4; (R. at 364).
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Nevertheless, the ALJ omitted any discussion of Wyche’s mental impairments in his
RFC analysis. (See generally R. at 365–70.) This “suggest[s] he had excluded the
[mental impairments] from consideration as part of his RFC assessment, based on his
determination of non-severity.” Wells, 727 F.3d at 1065.
The Commissioner contends that the ALJ appears to have attempted to address
Wyche’s mental impairments in reducing the Special Vocational Preparation (“SVP”) 3,
or skill level, of her RFC. (ECF No. 15 at 16 (stating that the “ALJ found at step five
that [Wyche] could perform jobs with an SVP of 2 and 3 (unskilled and low level semiskilled work)”).) However, this does not satisfy the requirement in Social Security
Ruling 96-8p that the ALJ perform a “detailed assessment by itemizing various
functions” in formulating the RFC, nor does it make rational sense. See SSR 96-8p,
1996 WL 374184, at *4. The skill level of a given occupation as defined by SVP is not
analytically parallel to the “paragraph B” functional categories for evaluating the severity
of mental limitations. “Numerous authorities illustrate the basic point that intact m ental
aptitudes are not skills, but, rather, general prerequisites for most work at any skill
level.” Wayland v. Chater, 76 F.3d 394 (10th Cir. 1996). “W hile there may be
circumstances in which a particular mental limitation could be so obviously
accommodated by a reduction in skill level that particularized vocational evidence
addressing that limitation might be dispensed with,” id.; here, the ALJ failed to perform
any RFC analysis of Wyche’s mental limitations at all, let alone an analysis sufficient to

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SVP is defined as the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average performance in
a specific job-worker situation.” Dictionary of Occupational Titles, App.C.II., 1991 WL 688702
(4th ed. 1991).

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permit the Court to determine whether such a circumstance applies here.
Thus, “to the extent the ALJ relied on his finding of non-severity as a substitute
for adequate RFC analysis, the Commissioner’s regulations demand a more thorough
analysis.” Wells, 727 F.3d at 1071. Accordingly, the Court concludes that the ALJ
failed to properly evaluate all of Wyche’s mental limitations when formulating the RFC
and that this error requires remand to the ALJ.
The Court expresses no opinion as to the remainder of Wyche’s arguments, and
neither party should take the Court’s silence as tacit approval or disapproval of how the
evidence was considered. Further, the Court does not intend by this opinion to suggest
the results that should be reached on remand; rather, the Court encourages the parties
and the ALJ to fully consider the evidence and all issues raised anew on remand. See
Kepler v. Chater, 68 F.3d 387, 391–92 (10th Cir. 1995) (“W e do not dictate any result
[by remanding the case]. Our remand simply assures that the correct legal standards
are invoked in reaching a decision based on the facts of the case.” (internal quotation
marks omitted)).
IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is VACATED and
this case is REMANDED to the Commissioner for rehearing.

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Dated this 24th day of April, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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