Schultz v. Colvin
OPINION AND ORDER by Magistrate Judge Michael J. Watanabe on 09/25/17 re: 1 Complaint filed by Craig Schultz. The Commissioners decision is VACATED and REMANDED for further fact-finding and such other proceedings as the Administrative Law Judge deems appropriate. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02202-MJW
CRAIG CURTIS SCHULTZ,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
OPINION AND ORDER
MICHAEL J. WATANABE
United States Magistrate Judge
The government determined that Plaintiff is not disabled for purposes of the
Social Security Act. (AR 1 30). Plaintiff has asked this Court to review that decision. The
Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have
this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Docket No.
Standard of Review
In Social Security appeals, the Court reviews the decision of the administrative
law judge (“ALJ”) to determine whether the factual findings are supported by substantial
evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue,
500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more
than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269,
All references to “AR” refer to the sequentially numbered Administrative Record filed in this
case. (Docket Nos. 11 through 11-12).
1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed
must, exercise common sense” and “cannot insist on technical perfection.” KeyesZachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the
evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”), as is relevant here:
. . . [Plaintiff] has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except that he can lift and
carry a maximum of 10 pounds frequently and 10 pounds occasionally, sit
for six hours total in an eight-hour workday, and stand and/or walk for six
hours total in an eight-hour workday. The claimant can never climb
ladders, ropes, or scaffolds; can occasionally climb ramps and stairs,
stoop, and crawl; and can frequently balance. He can frequently reach in
all directions bilaterally.
(AR 23). The ALJ explained that “[d]ue to his cervical spine surgeries, lumbar spine
condition, and right clavicle surgery the claimant is limited to lifting 10 pounds
occasionally and 10 pounds frequently, because lifting more than this amount would
likely aggravate his neck pain and upper extremity symptoms.” (AR 25). The ALJ further
explained: “physical examinations have shown mild weakness in his upper extremities,
which justifies a limitation to lifting 10 pounds, although on occasion the claimant
demonstrated full strength in his upper extremities.” (AR 25). At the June 25, 2015
hearing, the ALJ asked Deborah Christensen, the Vocational Expert (“VE”) whether
Plaintiff could perform his past work and also about potential jobs he could perform. (AR
68-70). The VE testified that, based on the above limitations, Plaintiff could not perform
his past work. (AR 69). The ALJ then had the following exchange with the VE:
ALJ: Okay. So for someone closely approaching advanced age with more
than a high school education would there be other jobs that would be
possible in the light category?
VE: Yes, there would. All righty. Okay, one example would be that of a
small products assembler. That DOT code number is 706.684-022. It is
light, SVP 2 and these jobs occur nationally at a rate of approximately
116,000 and regionally or within the state of Colorado at a rate of
Well, let’s see here, one moment, and you know, Your Honor, I believe
that’s my only example.
ALJ: Okay. And would there be skills that would transfer to sedentary work
within those limitations?
ALJ: And would the small product assembler be possible if the reaching in
all directions were occasional rather than frequent?
The ALJ ultimately found that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform. (AR 29). The ALJ included the following
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.14. However, the claimant’s ability to perform
all or substantially all of the requirements of this level of work has been
impeded by additional limitations. To determine the extent to which these
limitations erode the unskilled light occupational base, the Administrative
Law Judge asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity. The vocational expert
testified that given all of these factors the individual would be able to
perform the requirements of representative light exertion, unskilled
occupations such as small products assembler, DOT 706.684-022, with
1000 positions in Colorado and 116,000 in the national economy.
(AR 29). Based on that, the ALJ concluded that “claimant is capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy, a finding that the claimant is not disabled is therefore appropriate under the
framework of the above-cited rule and the testimony of the vocational expert.” (AR 29).
20 C.F.R. § 404.1567(b) defines “light work” to involve “lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. § 404.1567(a) defines sedentary work to involve “lifting no more than 10
pounds at a time and occasional lifting or carrying articles like docket files, ledgers, and
small tools.” The first issue that Plaintiff raises is that the ALJ denied benefits based on
the existence of the job of small product assembler that the VE testified was defined as
“light” without any clarification by either the ALJ or the VE of whether the 10-pound
lifting limit would eliminate that job as a job that Plaintiff could perform. By definition, a
“light” job could require someone to lift up to 20 pounds. Further, the VE testified that
there were no other jobs that exist in sufficient numbers that Plaintiff could perform that
were defined as “sedentary”. Therefore, the ALJ’s conclusion that Plaintiff could perform
the job of small product assembler is based on an important ambiguity about whether
that job is “light” as defined in the Code of Federal Regulations or if the VE was
testifying that this position is defined as “light” but could also accommodate someone
who is limited to lifting only 10 pounds. The Court concludes that this case must be
remanded for further fact-finding to clarify this ambiguity.
Because the Court concludes that this case must be remanded to allow the ALJ
to clarify this issue and further develop the record if necessary, the Court does not
address the remaining arguments raised by Plaintiff.
For the reasons set forth above, the Commissioner’s decision is VACATED and
REMANDED for further fact-finding and such other proceedings as the Administrative
Law Judge deems appropriate.
Dated this 25th day of September, 2017.
BY THE COURT:
/s/ Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge
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