Mooring v. Colvin

Filing 19

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE, by Judge William J. Martinez on 11/29/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2645-WJM
KENDRA L. MOORING,
Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, 1
Defendant.

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE

This is a Social Security benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff Kendra L. Mooring (“Mooring”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for
supplemental security income. The denial was affirmed by an administrative law judge
(“ALJ”), who ruled that Mooring was not disabled within the meaning of the Social
Security Act. This appeal followed.
For the reasons set forth below, the ALJ’s decision is vacated and this case is
remanded to the Commissioner for further proceedings consistent with this order.
I. BACKGROUND
Mooring was born in 1978 and was 33 years old on the alleged onset date of
September 9, 2012. (Administrative Record (“R.”) (ECF No. 11) at 60.) She has an
eighth-grade education. (R. at 35.) In the fifteen years preceding the alleged onset date,
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Nancy Berryhill is automatically substituted for Carolyn Colvin under Federal Rule of Civil
Procedure 25(d).

she worked as a construction laborer and warehouse worker. (R. at 17.)
Mooring applied for supplemental security income on May 10, 2013, with a
protective filing date of April 29, 2013. (R. at 170, 188.) She claimed that she is disabled
due to neck and back injuries that she suffered in a car accident. (R. at 29, 192.) Her
application was denied on October 17, 2013. (R. at 74.) She requested and received a
hearing in front of an ALJ, Earl W. Shaffer. (R. at 24–38.) On May 5, 2015, the ALJ
issued a written decision in accordance with the Commissioner’s five-step sequential
evaluation process. 2
At step one, the ALJ found that Mooring had not engaged in substantial gainful
activity since April 29, 2013. (R. at 14.)
At step two, the ALJ found that Mooring suffered from “the following severe
impairments: spinal degenerative changes.” (Id.)
At step three, the ALJ found that Mooring’s impairments, while severe, did not
meet or medically equal any of the “listed” impairments in the Social Security regulations.
(Id.)
Before proceeding to step four, the ALJ assessed Mooring’s residual functional
capacity (“RFC”). The ALJ concluded that Mooring has the RFC
to perform light work as defined in 20 CFR 416.967(b). The
claimant can stand four hours and walk four hours, for a
combined total of at least six hours, in an eight-hour workday.
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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 her
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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The claimant can sit six hours in an eight-hour workday. The
claimant must be able to alternate from standing or walk[ing]
to sitting every 30 minutes, for as long as necessary, while
remaining on the task at hand. The claimant can push and
pull with upper and lower extremities at the light exertional
range. The claimant cannot climb ladders, ropes or scaffolds.
The claimant can occasionally climb stairs and ramps. The
claimant cannot balance. The claimant can occasionally
stoop, kneel, crouch and crawl. The claimant should avoid
exposure to extreme cold, vibration and hazards such as
unprotected heights and unprotected major manufacturing
machinery. The claimant can perform work at the unskilled
level.
(Id.) Then, at step four, the ALJ concluded that Mooring could not perform any of her
past relevant work in light of this RFC. (R. at 17–18.)
At step five, the ALJ found that Mooring’s RFC permitted her to work as a selfservice store sales attendant, an assembler of small products, and a cashier; and that
each of these jobs exists in sufficient numbers in the regional and national economy.
(R. at 18.)
Accordingly, the ALJ found that Mooring was not entitled to Social Security
benefits. (R. at 19.) Mooring appealed to the Socials Security Appeals Council (R. at 8),
which denied review (R. at 1). Mooring then filed this action seeking review of the ALJ’s
May 5, 2015 decision. (ECF No. 1.)
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
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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
Mooring offers two major arguments why the ALJ’s decision should be vacated.
The Court finds that it need only address one of those arguments, regarding the
connection, or lack thereof, between the RFC and the hypotheticals propounded to the
vocational expert (“VE”) at Mooring’s in-person hearing. (See ECF No. 14 at 14–16.)3
The ALJ first asked the VE whether there would be jobs in the regional and
national economy that could accommodate, among other restrictions, no more than a
light exertional level; the ability to stand and/or walk for four hours out of an eight-hour
day; the ability to sit for six hours in an eight-hour day; and “[t]he ability to alternate the
postures from standing and walking every 30 minutes to the seated posture for as long as
necessary, either of which not to distract or pull the person away from the task at hand.”
(R. at 35.) The VE responded that the limitations on standing and walking, combined
with an eighth-grade education, eliminated all potential jobs. (R. at 36.) The ALJ then
altered the hypothetical to remove the need for alternating between standing or walking
to sitting. (Id.) The VE still believed that the remaining restrictions would eliminate all
potential jobs. (R. at 36–37.) Finally, the ALJ asked the VE if his opinion would change
3

All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination.

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assuming that the claimant could stand and walk for four hours each, “for a total of at
least six [hours] out of an eight-hour day.” (R. at 37.) Given that hypothetical, the VE
opined that the claimant could work as a self-service store sales attendant, a small
products assembler, and a cashier. (Id.)
The ALJ’s eventual RFC assessment included one of his original hypothetical
conditions, namely, the need to alternate between standing/walking and sitting every 30
minutes, without going off-task. (R. at 14.) However, Mooring points out that this
condition was not part of the hypothetical that elicited the VE’s third opinion regarding
available jobs—the opinion the ALJ adopted at step five to conclude that jobs exist which
Mooring can perform. (See R. at 18.) Mooring claims that this is reversible error. (ECF
No. 14 at 14–16.) See also Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)
(“Testimony elicited by hypothetical questions that do not relate with precision all of a
claimant’s impairments cannot constitute substantial evidence to support the
[Commissioner’s] decision.” (internal quotation marks omitted; certain alterations
incorporated)).
Apart from a brief summary of the various hypotheticals, the Commissioner’s
entire response is as follows:
Although not explicit, it is clear [the ALJ] did not maintain his
removal of the option to alternate positions limitation [in his
third hypothetical]—and this is reflected in the ultimate RFC
which includes that limitation (Tr. 14 (“the claimant must be
able to alternate from standing or walk to sitting every 30
minutes”)). See Bowen v. Yuckert, 482 U.S. 137, 157 (1987)
(O’Connor, J., concurring) (“To be sure the Secretary faces an
administrative task of staggering proportions in applying the
disability benefits provisions of the Social Security Act.
Perfection in processing millions of such claims annually is
impossible.”).
(ECF No. 16 at 13–14.) There are two basic problems with this argument.
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The first problem is that it is not clear the ALJ “did not maintain his removal of”—
or in other words, re-inserted—the alternating positions restriction in his third
hypothetical. More precisely, it is not clear that the VE understood it that way. The ALJ’s
eventual inclusion of the alternating positions restriction in the RFC suggests that the ALJ
implicitly had this restriction in mind when propounding the third hypothetical. But the
question is whether the VE shaped his opinion to that implicit assumption, and nothing in
the record gives the Court any assurance that he did.
The second problem is that Justice O’Connor’s “perfection is impossible”
concurrence provides no legal standard for this Court to apply. The Court recognizes
that the Commissioner faces an enormous task, and that ALJs will make innocent
mistakes from time to time (just as district judges do). However, the Commissioner has
not argued that the ALJ’s mistake amounted to harmless error. Accordingly, the ALJ
committed reversible error and his decision must be vacated.
Because the Court vacates and remands for this reason only, the Court need not
address the other argument raised by Mooring. See Madrid v. Barnhart, 447 F.3d 788,
792 (10th Cir. 2006). The Court expresses no opinion as to Mooring’s other argument
and neither party should take the Court’s silence as tacit approval or disapproval of that
argument. The Court also does not intend by this opinion to suggest the result 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) (“We 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)).

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IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is VACATED and
this case is REMANDED to the Commissioner for rehearing. The Clerk shall enter
judgment accordingly and shall terminate this case.
Dated this 29th day of November, 2017.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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