Lawrence v. Colvin

Filing 19

ORDER REVERSING COMMISSIONER'S DECISION AND REMANDING FOR FURTHER PROCEEDINGS by Judge Lewis T. Babcock on 7/27/17. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 16-cv-02898-LTB
MARK H. LAWRENCE,
v.

Plaintiff,

NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Plaintiff Mark H. Lawrence appeals Defendant’s (the “Commissioner”) final
administrative decision denying his claim for supplemental security income under
Title XVI of the Social Security Act (the “Act”). Jurisdiction in this appeal is proper
pursuant to 42 U.S.C. § 405(g). Oral argument would not materially assist in the
determination of this appeal. After consideration of the briefs and the record, I
reverse the Commissioner’s decision and remand the case for further proceedings.
I. Statement of the Case
Following a hearing before an ALJ, Plaintiff’s disability claim was denied in a
decision dated June 22, 2016. The Appeals Council denied Plaintiff’s request for
review thereby rendering the ALJ’s June 22, 2016 decision the Commissioner’s final
decision for purposes of my review. Plaintiff timely filed this appeal seeking review
of the Commissioner’s final decision.

II. Statement of Facts
A. Plaintiff’s Disability Hearing
At the May 19, 2016 hearing on his disability claim, Plaintiff testified that he
could lift or carry about 50 pounds and stand for a couple of hours but not walk very
far due to problems with his breathing. AR 62. Plaintiff further testified that he
experienced daily asthma flare-ups; had difficulty concentrating and getting along
with other people; and is frequently ill. AR 59 & 69. Plaintiff indicated that he
spends a typical day looking for a job. AR 62.
The VE identified Plaintiff’s past work as a courtesy clerk, a sorter/pricer,
and a material handler. AR 71. The ALJ asked the VE if a person who could
perform work at the medium exertional level with a maximum SVP of 2 but could
not climb ladders and scaffolds, work at unprotected heights or with dangerous
machinery, work in extreme heat or cold, be exposed to pulmonary irritants, or have
any interaction with the public as part of his job duties could perform any of
Plaintiff’s past work. AR 71-2. The VE responded that such an individual could not
perform Plaintiff’s past work but could perform the medium exertional level jobs of
buffet attendant and hand packager. AR 72. The ALJ declined the VE’s offer to
further identify light exertional level jobs that Plaintiff was capable of performing.

Id.
B. The ALJ’s Decision
In her June 22, 2016 decision, the ALJ applied the five-step sequential
process outlined in 20 C.F.R. §§ 404.1520(a). At the first step of the sequential

2

process, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the August 14, 2015 filing date of his application for supplemental security
income. AR 35. At the second step, the ALJ found that Plaintiff had severe
impairments of asthma, obesity, mood disorder/depression, and generalized anxiety
disorder. Id. At the third step, the ALJ concluded that Plaintiff did not have an
impairment or a combination of impairments that met or medically equaled one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ next concluded that Plaintiff had the RFC to perform medium work
as defined in 20 C.F.R. § 416.967(c) but was limited to simple, routine, repetitive
work with a maximum SVP of 2. AR 37. The ALJ further determined that Plaintiff
was unable to climb ladders and scaffolds; work at unprotected heights; work with
dangerous machinery; work in extreme heat or cold; come in contact with
pulmonary irritants; have more than occasional interactions with supervisors and
coworkers; or have any interaction with the public as part of his job duties. Id.
The ALJ then found that Plaintiff had no past relevant work but concluded that
there were jobs existing in significant numbers in the national economy that
Plaintiff could perform such as buffet attendant and hand packager. AR 41. Thus,
the ALJ ultimately concluded that Plaintiff was not disabled within the meaning of
the Act since the August 14, 2015 filing of his application for supplemental security
income. AR 41.
III. Standard of Review
In reviewing the Commissioner's decision, I must determine whether
3

substantial evidence in the record as a whole supports the factual findings and
whether the correct legal standards were applied. Castellano v. Secretary of Health

& Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1992); Hamilton v. Secretary of
Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Hamilton, supra, 961 F.2d at 1498. I “may neither
reweigh the evidence nor substitute [my] discretion for that of the Administrative
Law Judge.” Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
IV. Analysis
On appeal, Plaintiff argues that the ALJ erred (1) by concluding that Plaintiff
could perform the jobs of buffet attendant and hand packager; and (2) in her
assessment of Plaintiff’s RFC.
A. The Jobs Identified By the ALJ at Step 5
1. Plaintiff’s Ability to Work as a Buffet Attendant
Plaintiff argues that the job of buffet attendant is inconsistent with the ALJ’s
finding in her RFC assessment that Plaintiff could have no interaction with the
general public. This argument is premised on the following exchange between the
VE and Plaintiff’s attorney at Plaintiff’s disability hearing:
Q: With the buffet attendant, what are there just [sic] basic duties?
A: The duties are to keep an eye on the buffet and simply reclean and
re-fill items as they empty.

4

Q: Okay. Would they also be expected to if someone needs a glass of
water or cup of coffee or something like that to assist with those types
of duties?
A: You know, that’s a different position.
Q: Okay.
A: I’ve seen it happen though. It’s I think varies [sic] on the
restaurants but they need to be polite and cordial to the customers so
they might go out of their way and help with something like that.
AR 73-4.
I disagree that this exchange establishes that the position of buffet attendant
necessarily encompasses some degree of interaction with the public. The VE first
testified that the position of buffet attendant does not include responsibility for
interacting with customers regarding drink requests. The VE then added that he
had seen such interaction by buffet attendants and explained that “they might go
out of their way” to assist in this manner. This latter testimony does not alter the
VE’s earlier testimony that interacting with customers is not part of a buffet
attendant’s job duties. I therefore conclude that the ALJ did not err in concluding
that Plaintiff’s assessed RFC would allow him to work as a buffet attendant.
2. Plaintiff’s Ability to Work as a Hand Packager
Plaintiff argues that the job of hand packager is inconsistent with the ALJ’s
findings in her RFC assessment that Plaintiff cannot work in extreme heat and
must avoid pulmonary irritants. In support of this argument, Plaintiff cites the
DOT which provides that a hand packager must “frequently” deal with exposure to
extreme heat and atmospheric conditions such as fumes, dusts, and noxious odors
5

that affect the respiratory system. See DOT job number 920.587-018; DOT,
Appendix D, Environmental Conditions. I agree that the ALJ erred in concluding
that Plaintiff could perform the job of hand packager based on the record before me.
The VE testified that his opinion about the jobs Plaintiff was able to perform
was “not inconsistent with the DOT” because the DOT does not address issues such
as pulmonary irritants and excessive heat or cold with any specificity. AR 72-3.
The VE further testified that in addition to the DOT, he was relying on his work as
a vocational rehabilitation counselor for over 30 years to support his opinions of
Plaintiff’s work capabilities. AR 73. In light of the DOT’s identification of frequent
exposure to extreme heat and atmospheric conditions which clearly encompass
“pulmonary irritants” as characteristics of the job of hand packager, however, there
is a clear inconsistency between the DOT and the VE’s opinion that Plaintiff could
perform in this capacity despite his assessed RFC which precludes all exposure to
such conditions. Thus, the VE was not relying on his professional experience to
merely supplement DOT’s job description but rather to modify it.
Citing Gibbons v. Barnhart, 85 Fed. App’x 88 (10th Cir. 2003), the
Commissioner argues that any unexplained inconsistency between the DOT’s job
description for hand packager and the VE’s opinion that Plaintiff is capable of
performing this job despite conflicting limitations in his assessed RFC does not
constitute reversible error because Plaintiff’s attorney failed to raise this issue at
Plaintiff’s disability hearing. This is an expansive reading of Gibbons which does
not expressly impose any such obligation on counsel. In addition, the Plaintiff in
6

Gibbons failed to identify any discrepancies between the DOT and the VE’s
testimony that would have warranted further investigation in any event. Id. at 93.
Here, the discrepancies are obvious.
By asserting that his testimony was “not inconsistent with the DOT, the VE
effectively deprived both the ALJ and Plaintiff’s attorney of an opportunity to
obtain the requisite explanation for the inconsistency during Plaintiff’s disability
hearing. Failure to obtain such an explanation was error. See Social Security
Ruling 00-4p, 2000 WL 1898704 at *4 (“If the VE’s ... evidence appears to conflict
with the DOT, the [ALJ] will obtain a reasonable explanation for the apparent
conflict.”).
The Commissioner argues that reversal and/or remand is nonetheless
unnecessary because the 20,000 buffet attendant positions identified by the VE are
alone sufficient to support the ALJ’s determination at step 5 that there were
sufficient jobs in the national economy available to Plaintiff. I disagree.
The Tenth Circuit has rejected a bright-line approach to the number of jobs
that constitute a “significant number” and instead leaves this determination “to the
[ALJ’s] common sense in weighing the statutory language as applied to a particular
claimant’s factual situation.” Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir.
1992) (citation omitted). I must therefore remand this case so that the ALJ can
consider whether the buffet attendant job, standing alone, exists in significant
numbers in the national economy to support a finding that Plaintiff is not disabled.
In making this determination, the ALJ must be mindful of the relevant factors that
7

go into this consideration including the level of Plaintiff’s disability and the
reliability of the VE’s testimony, as well as the VE’s testimony that a person
coughing more than once or twice a day would not be able to maintain employment
as a buffet attendant. Id. (citation omitted). See also AR 74.
On remand, the ALJ may also choose to develop the record further by
addressing the conclict btween the DOT and the VE’s testimony regarding the hand
packager position and/or identifying any light level jobs that Plaintiff is capable of
working. See AR 72 (ALJ responding “no” to VE’s question “[w]ould you like me to
continue with light positions?”).
B. The ALJ’s Assessment of Plaintiff’s RFC
Plaintiff first argues that the ALJ’s assessment of his RFC was deficient
because the ALJ failed to cite specific pages in the record to support her discussion
of Plaintiffs severe respiratory impairment. AR 38. While more specific citations to
the record are unquestionably preferable, the ALJ’s failure to provide them in this
case does not in and of itself preclude a finding that there is substantial evidence to
support the ALJ’s conclusions about Plaintiff’s respiratory impairment. First, the
ALJ’s wholesale citation to exhibits largely support general statements that
Plaintiff does not dispute. By way of example, the ALJ cites four exhibits in
support of her finding that Plaintiff has a history of asthma with episodes of
wheezing, coughing, and shortness of breath prior to his application date and five
exhibits in support of her finding that Plaintiff has been regularly treated by a
pulmonologist and been treated periodically in the emergency room for
8

exacerbations of his condition since filing his application for disability benefits. Id.
Next, Plaintiff has only identified one instance where the medical records
allegedly contradict the ALJ’s conclusions regarding Plaintiff’s severe asthma, and,
in this instance, the ALJ cited specific pages of an exhibit to allow for meaningful
review. Specifically, the ALJ stated that “[l]ongitudinal spirometry testing does not
show that [Plainitff’s] asthma is near listing level and he responds well to
treatment.” AR 38. Although Plaintiff objects to the ALJ’s characterization of these
pages as reflective of a “longitudinal” testing, they do show a comparison to testing
done approximately 6 months prior. AR 1064. It is less clear how the cited pages
support the ALJ’s finding that Plaintiff responds well to treatment. The
Commissioner, however, has provided other citations to the record that support this
finding. See Response Brief, p. 13. See also AR 501, 660, 673, 739 & 897. It is
therefore unnecessary to require the ALJ to review this finding and provide
supporting citations to the record.
Plaintiff also argues that the ALJ erred in concluding that he was capable of
working on a sustained basis and would not miss work more than once a month. In
concluding that Plaintiff was physically able to perform medium work with some
limitations, the ALJ relied primarily on the opinion of state agency physician
Michael Canham, M.D., and Plaintiff’s own testimony. AR 39-40. A review of the
relevant record fails to support any inference that Dr. Canham’s opinion, Plaintiff’s
testimony, or the ALJ’s findings and conclusions did not reflect Plaintiff’s physical
capabilities on a sustained basis. AR 62-3 & 85-7. Clearly, Plaintiff has sought
9

treatment many times for his asthma but Plaintiff has also failed to complete
recommended follow up care. AR 87, 430, 858 & 1064. It follows that the ALJ could
reasonably conclude that Plaintiff would not miss work more than once a month for
reasons related to his asthma if properly treated.
Next, Plaintiff seemingly asserts that the ALJ erred in not assessing him
with additional limitations based on his mental impairments. See Opening Brief, p.
14. Because Plaintiff has failed to identify any appropriate limitations or to provide
any supporting citations to the record, however, I decline to find any error by the
ALJ in this regard. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir.
2012) (“We will consider and discuss only those ... contentions that have been
adequately briefed for our review.”).
Finally, Plaintiff argues that the ALJ erred in failing to find that he had a
mentally determinable impairment of ADHD. While Plaintiff’s medical records
arguably support such a finding, I conclude that any error by the ALJ in this regard
was harmless in light of the mental limitations that the ALJ took into account in
assessing Plaintiff’s RFC. See Ray v. Colvin, 657 Fed. App’x 733, 734 (10th Cir.
2016) (any error in failing to find an impairment medically determinable is
“obviated if the ALJ considered the non-medically determinable impairment in
assessing the RFC.”).
Here, the ALJ noted that Plaintiff alleged that he suffered from ADHD and
that he reported this alleged condition to Edward Johnson, Ph.D., who performed a
psychological evaluation of Plaintiff on November 24, 2015. AR 35. The ALJ did
10

not include ADHD as one of Plaintiff’s impairments, however, because she found
that “[n]o objective evidence supports this diagnosis.” Id. Indeed, despite
diagnosing Plaintiff with ADHD, “Predominantly Inattentive Type,” Dr. Johnson
noted that Plaintiff “exhibited ... excellent attention and calculation skills” on the
mental status examination he administered to him and rated Plaintiff’s persistence
and pace as “acceptable.” AR 809. Dr. Johnson further opined that Plaintiff had no
limitations in the areas of sustained concentration or persistence and pace. AR 810.
While there are other diagnoses of ADHD in Plaintiff’s medical records, related
notes reflect that Plaintiff’s ADHD responded to prescribed medications. AR 560,
629 & 640.
In any event, the ALJ addressed the limiting effects of Plaintiff’s alleged
ADHD in her consideration of those caused by Plaintiff’s depression and anxiety.
Specifically, the ALJ discussed Plaintiff’s alleged concentration and attention
difficulties and explained that she was discounting them based on test results and
Plaintiff’s activities of daily living. AR 39-40. The ALJ also discussed Plaintiff’s
social difficulties and incorporated related limitations into his RFC. Id. & AR 37.
Any error by the ALJ in failing to find that Plaintiff had a medically determinable
impairment of ADHD was therefore obviated by her consideration of the
corresponding symptoms in assessing his RFC. Ryan, supra.
In sum then, I conclude that there is substantial evidence in the record to
support the ALJ’s assessment of Plaintiff’s RFC.

11

V. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that the
Commissioner’s decision is REVERSED, and the case is REMANDED for further
proceedings consistent with this Order.

Dated: July

27 , 2017 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

12