Hartman v. Commissioner, Social Security Administration

Filing 20

ORDER affirming the Denial of Social Security DisabilityBenefits and Supplemental Security Income, by Judge Christine M. Arguello on 8/6/2018. (swest)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello

Civil Action No. 17-cv-01987-CMA
GWENDOLYN L. HARTMAN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER AFFIRMING THE DENIAL OF SOCIAL SECURITY DISABILITY BENEFITS
AND SUPPLEMENTAL SECURITY INCOME
______________________________________________________________________

This matter is before the Court on review of the Social Security Commissioner’s
decision denying Plaintiff Gwendolyn L. Hartman’s application for disability insurance
benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401–34, and
for supplemental security income, filed pursuant to Title XVI of the Social Security Act,
42 U.S.C. §§ 1382–85. Jurisdiction is proper under 42 U.S.C. § 405(g).
Plaintiff argues that the administrative law judge (“ALJ”) improperly accorded the
opinion of a non-examining, non-treating medical consultant, Dr. S. Latchamsetty, only
moderate weight. (Doc. # 14 at iv.) The Commissioner argues that Plaintiff’s argument
fails because it relies on an incorrect finding of the ALJ—that Plaintiff did not have any
past relevant work. (Doc. # 15 at 1.) For the reasons set forth below, the Court affirms

the decision of the Commissioner to deny Plaintiff’s applications for disability insurance
benefits and supplemental security income.
I.
A.

BACKGROUND

PLAINTIFF’S APPLICATION AND OPINION EVIDENCE
Plaintiff, born June 28, 1955, was fifty-four years old on March 10, 2010, the date

she initially alleged her disability began. 1 (Doc. # 11-5 at 129.)2 For fifteen years prior
to the alleged onset of her disability, Plaintiff worked as a housekeeper at hotels, and in
2010, she held various temporary positions for approximately one month each. (Doc.
# 11-6 at 183; Doc. # 11-5 at 148.)
On October 11, 2011, Plaintiff filed an application for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401–34, and an application for
supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1382–85. 3 (Doc.
# 11-5 at 127–37.) She alleged that a “[b]ack injury, high blood pressure, stroke[s],
[and] [m]ental breakdown[s]” precluded her from working. (Doc. # 11-6 at 182.) Plaintiff
stated that her pain was located in her head and her lower back “each and every day”
and was made worse by “movement and cold weath[er] and walking.” (Id. at 190–91.)
She further described, “I am sad all the time. I cry all the time. I want to kill myself all
the time. I am just no[t] me.” (Id.)
1

Plaintiff later amended her alleged date of the onset of her disability to January 4, 2012, as the
Court explains later in this Order. See (Doc. # 11-2 at 32.) Plaintiff was fifty-five years old on
January 4, 2012.
2
All of the exhibits filed Doc. # 11 constitute the Administrative Record in this matter. The Court
cites the docket number of the exhibit (e.g., Doc. # 11-5) and the page number from the
Administrative Record (e.g., at 129).
3
Plaintiff had filed applications for disability insurance benefits and supplemental security
income on December 6, 2010. (Doc. # 11-5 at 117–26.) The record does not indicate what
became of those applications.
2

Dr. Brett Valette, Ph.D., conducted a psychiatric consultative examination on
Plaintiff on January 4, 2012. (Doc. # 11-7 at 282–84.) Dr. Valette described Plaintiff as
“vague with symptoms,” not appearing to be in pain, and irritable with him and his staff.
(Id. at 283.) “It [was] difficult to diagnose [Plaintiff] because of her vagueness with her
symptoms,” he wrote, but he nonetheless diagnosed her with “Nonspecific Mood
Disorder, depression.” (Id. at 284.) Dr. Valette had concerns “about symptom
exaggeration” and about Plaintiff’s lack of effort during the evaluation. (Id.) Of her
limitations, Dr. Valette wrote:
I think she was able to understand and follow my directions. I think her
understanding and memory is probably intact. Her concentration and
persistence is maybe mildly impaired because of depression and pain. . . .
As far as work limitations, from a psychological perspective, I do not see
any work limitations at this time. Her main complaint is back pain.
(Id.)
Dr. Marshall Meier, M.D., conducted a physical consultative exam on January 7,
2012. (Doc. # 11-7 at 285–91.) Plaintiff complained of back pain that began in March
2010, when she lifted a box over her head and felt a crack, and of right hip pain that
began in late 2011. (Id. at 285.) Dr. Meier observed that Plaintiff “showed excessive
movement during the exam. She was bending over, standing up, and extremely
animated. She did not appear to be in any distress . . . and appeared to be
comfortable.” (Id. at 286.) He noted that there was not an acute abnormality in her
spine, though he observed “[m]ild degenerative disc and degenerative facet disease.”
(Id. at 289.) Dr. Meier wrote the following functional assessment:
I feel the claimant’s current condition will not impose any restrictions on
her standing or walking capacity. Sitting capacity, no restrictions.
3

Assistive device, no restrictions. Lifting and carrying capacity, no
restrictions occasionally or frequently. Postural activities: There are
postural limitations recommended at this time. Manipulative activities: I
would have concerns with patient swelling in her PIP joints, excessive
manipulative activities may cause worsening of her symptoms.
(Id. at 289–90.)
On February 23, 2012, a single decision maker (“SDM”) at the regional Social
Security Administration office in Pueblo, Colorado, decided that Plaintiff was not
disabled and therefore denied Plaintiff’s applications for benefits. (Doc. # 11-3 at 65,
79.) The SDM assessed Plaintiff’s physical residual functional capacity based on the
record and determined Plaintiff was capable of “light work.” (Id. at 60.) He indicated
that Plaintiff was capable of occasionally lifting or carrying twenty pounds, of frequently
lifting or carrying ten pounds, of standing or walking with normal breaks for a total of six
hours in an eight-hour workday, and of sitting with normal breaks for a total of six hours
in an eight-hour workday. (Id. at 60–61.) The SDM determined that Plaintiff did not
have postural, manipulative, visual, or communicative limitations. (Id. at 61.) Also as
part of the Administration’s review, its psychological consultant, Dr. MaryAnn Wharry,
Psy.D., reviewed Plaintiff’s medical records and concluded that Plaintiff “retain[ed] [the]
mental ability to do work not involving significant complexity or judgment” and “[could]
respond appropriately to supervision [and] coworkers but must have minimal to no
interaction with the general public.” (Id. at 63, 77.) On February 23, 2012, the Social
Security Administration informed Plaintiff that she did not qualify for benefits. (Doc.
# 11-4 at 81–84.)

4

On March 1, 2012, the Administration’s medical consultant, Dr. S. Latchamsetty,
M.D., reviewed the SDM’s assessment of Plaintiff’s physical residual functional
capacity. (Doc. # 11-7 at 297–98.) Dr. Latchamsetty checked off that he agreed with
the SDM’s conclusions about Plaintiff’s physical limitations and symptoms. (Id. at 297.)
Dr. Latchamsetty concluded that the SDM’s assessment of Plaintiff’s physical residual
functional capacity was “not unreasonable.” (Id.)
On March 7, 2012, another medical consultant, Dr. J.V. Rizzo, Ph.D., reviewed
the Administration’s psychiatric assessment of Plaintiff. (Id. at 299–303.) Dr. Rizzo
checked off that he agreed with the Dr. Valette’s, Dr. Wharry’s, and the Administration’s
assessments of Plaintiff’s mental functional limitations. (Id. at 300.) Dr. Rizzo
concluded that Plaintiff’s “statements regarding a mental disability were partially
credible” because they were consistent “with [the] diagnosis on file,” but “objective
[consultative examination] findings [did] not show severity of mental limitations that
[Plaintiff] reports subjectively.” (Id. at 299.) He described:
She is oriented and in contact with reality. She has generally adequate
cognitive functioning. . . . Claimant has a severe mood disorder, but she
retains the mental ability to perform simple and detailed tasks and
activities with ordinary supervision. She can interact appropriately in
brief/superficial contacts, but she can be abrasive in close/frequent
interactions. She can adapt to ordinary workplace expectations and
changes.
(Id.)
Plaintiff requested a hearing by an ALJ on April 4, 2012. (Doc. # 11-4 at 85.) A
hearing before an ALJ was scheduled for January 3, 2013. (Id. at 96.)

5

On May 11, 2012, another medical consultant, Dr. Rudolf Titanji, M.D.,
completed a physical residual functional capacity assessment based on the evidence in
Plaintiff’s file. (Doc. # 11-7 at 304–11.) He determined that Plaintiff was able to
occasionally lift or carry 50 pounds, frequently lift or carry 25 pounds, stand or walk with
normal breaks for a total of six hours in an eight-hour workday, and sit with normal
breaks for a total of six hours in an eight-hour workday. (Id. at 305.) As to Plaintiff’s
postural limitations, Dr. Titanji determined she was capable of climbing, balancing,
stopping, kneeling, crouching, and crawling frequently. (Id. at 306.) Dr. Titanji noted
that Plaintiff did not have any manipulative, visual, communicative, or environmental
limitations. (Id. at 307–08.) He concluded that Plaintiff’s “statements [were] partially
credible based on the totality of the evidence,” noting that Plaintiff’s “alleged physical
limitations [were] not fully supported by findings” in her medical record. (Id. at 309.)
On December 5, 2012, Plaintiff retained attorney Ms. Rachael A. Lundy. (Doc.
# 11-4 at 108–09.)
On December 27, 2012, Dr. José Vega, Ph.D., retained by Plaintiff’s counsel,
performed a mental status examination on Plaintiff. (Doc. # 11-8 at 376–84.) In a letter
to the Commissioner’s attorney dated December 29, 2012, Dr. Vega recounted
Plaintiff’s explanation of her work history (she “indicated that she ha[d] always worked”),
medical issues, mental health treatment, and history of traumas. (Id. at 377–79.) Dr.
Vega observed that Plaintiff appeared “to function between the borderline to low
average range of intelligence” and “did not appear to present with any significant pain
behavior in the course of [her] interview.” (Id. at 380.) He assessed her limitations in

6

understanding and memory as moderate to marked, in sustained concentration and
persistence as moderate to marked, in social interaction as marked to extreme, and in
adaptation as moderate to extreme. (Id. at 383–84.) Dr. Vega concluded:
The results of this evaluation indicate that [Plaintiff] presents with
significant depression and anxiety. . . . It is seen that she is in need of
mental health treatment. She does not tolerate being around other
people; prefers to be by herself, reporting being angry, irritable, and easily
upset. The results of this evaluation, in part, are consistent with that of Dr.
Valette’s findings. However, Dr. Valette’s findings may well be clouded by
the poor rapport that was established in the beginning of that evaluation.
(Id. at 381–82.)
B.

THE ALJ’S FIRST DECISION
ALJ Debra Boudreau conducted a hearing on Plaintiffs’ applications on January

3, 2013. See (Doc. # 11-2 at 29–50.) Plaintiff, her counsel, and an impartial vocational
expert, Mr. Martin Rauer, were present. (Id. at 29.) Plaintiff first amended her alleged
date of the onset of her disability to January 4, 2012. (Id. at 32.) She explained to the
ALJ that she was injured when she was “working at the Marriott” as a “house maid” and
“laundry person;” she “went down to pick up something and [she] heard a crack in her
back.” (Id. at 39.) The vocational expert, Mr. Rauer, categorized Plaintiff’s past work in
2005 and 2006 as “a housekeeping cleaner,” requiring light exertion, and as a laundry
worker,” requiring medium exertion. 4 (Id. at 45.) The ALJ presented the vocational
expert with two hypothetical individuals, and the vocational expert answered that both
4

With regard to physical exertion, “medium work” is defined as involving “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20
C.F.R. § 404.1567(c); 20 C.F.R. § 416.967(c). “Heavy work” “involves lifting no more than 100
pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds.” 20
C.F.R. § 404.1567(d); 20 C.F.R. § 416.967(d). “Light work” is defined as involving “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(c); 20 C.F.R. § 416.967(c).
7

individuals would be able to perform work as a housekeeping cleaner, an electronic
worker, a machine operator, and a plastic press molder. (Id. at 45–48.)
On January 25, 2013, the ALJ issued her decision that Plaintiff was capable of
returning to work that she had performed in the past and, therefore, was not entitled to
disability insurance benefits or supplemental security income. (Id. at 9–28.) The ALJ
applied the five-step sequential evaluation process 5 to determine that Plaintiff was not
disabled. At the first step, the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity since January 4, 2012, the amended alleged onset date. (Id.
at 15.) At the second step, the ALJ identified the following severe impairments in
Plaintiff: mild degenerative disc and joint disease of the lumbar spine; a mood disorder;
and a depressive disorder. (Id.) At the third step, the ALJ determined that Plaintiff’s
severe impairments did not meet or medically equal the severity of a listed impairment
in the regulations. (Id. at 16–18.) The ALJ then concluded that Plaintiff had:
[T]he residual functional capacity to perform medium work . . . except that
she can sit, stand and/or walk for six hours during an eight-hour workday;
she has no postural, manipulative, visual, or environmental limitations; she
can understand and remember both simple and moderately complex tasks
that can be learned and mastered within three months; her work duties
should not require social interactions with the general public; she can
interact appropriately with coworkers and supervisors; she can tolerate

5

The Commissioner has established a five-step sequential evaluation process to determine
whether a claimant is disabled. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The steps of
the evaluation are whether: (1) the claimant is currently working; (2) the claimant has a severe
impairment; (3) the claimant’s impairment meets an impairment listed in Appendix 1 of the
relevant regulation; (4) the impairment precludes the claimant from doing her past relevant
work; and (5) the impairment precludes the claimant from doing any work. See 20 C.F.R. §§
404.1512(g), 404.1560(c), 416.912(g), 416.960(c); Pisciotta v. Astrue, 500 F.3d 1074, 1076
(10th Cir. 2007). A finding that a claimant is or is not disabled at any point in the five-step
evaluation process is conclusive and terminates the analysis. Casias v. Sec’y of Health &
Human Serv., 933 F. 2d 799, 801 (10th Cir. 1991).
8

work changes, plan and set goals, travel and recognize and avoid work
hazards.
(Id. at 18.) In support of that conclusion, the ALJ gave an overview of the medical
evidence and reasoned that though Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” Plaintiff’s “statements
concerning the intensity, persistence, and limiting effects of these symptoms and her
allegedly restricted daily activities [were] not well supported by the evidence.” (Id. at
21.)
She assigned Dr. Meier’s opinion that Plaintiff had “no exertional restrictions”
“substantial weight” and assigned Dr. Latchamsetty’s opinion less weight than Dr.
Meier’s opinion because she believed Dr. Latchamsetty’s assessment “represent[ed]
the least” Plaintiff “could perform” and because Dr. Meier “actually examined [Plaintiff].”
(Id. at 21–22.) The ALJ assigned Dr. Valette’s opinion of Plaintiff’s psychological fitness
“considerable weight” and Dr. Wharry’s opinion “significant weight,” as it was “well
supported by, and consistent with, the record as a whole, showing no attempt to pursue
mental health treatment, mild impairment in cognitive functioning, and some difficulties
with interpersonal relations.” (Id. at 22.) Dr. Vega’s opinion warranted “little weight,” the
ALJ stated, observing that his assessment was arranged by Plaintiff’s counsel and that
Dr. Vega was not aware of the Administration’s requirements for a finding of disability.
(Id.)
At the fourth step, the ALJ held that Plaintiff was “capable of performing past
relevant work as a housekeeping cleaner and laundry worker,” which, she stated,
required light and medium levels of exertion, respectively, citing the Dictionary of
9

Occupational Titles. (Id. at 23) (emphasis added). Because the ALJ concluded that
Plaintiff was “capable of returning to work that she performed in the past,” she was “not
disabled” and not entitled to disability insurance or supplement security benefits. (Id.)
The ALJ did not reach the fifth step of analysis.
Plaintiff requested that the Appeals Council review the ALJ’s decision on
February 26, 2013. (Id. at 8.) The Appeals Could denied Plaintiff’s request for review
on April 17, 2014. (Id. at 1–6.) When the Appeals Council declined review, the ALJ’s
decision became the final decision of the Commissioner. 20 C.F.R. § 404.981; 20
C.F.R. § 416.1481; see Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006).
C.

THE COURT’S REMAND
Plaintiff then sought judicial review of the ALJ’s adverse decision by filing

Hartman v. Colvin, No. 14-cv-01510-MEH, 2015 WL 1609806 (D. Colo. April 9, 2015).
(Doc. # 11-10 at 466–504.)
The Court affirmed in part and reversed in part the ALJ’s decision, and it
remanded the ALJ’s decision. Id. at *1. First, the Court agreed with Plaintiff’s argument
that the ALJ, in determining that Plaintiff could perform “medium” work, failed to account
for the postural limitations that Dr. Meier recommended, despite assigning his opinion
substantial weight. Id. at *9–10. The Court described it as “puzzling” that Dr. Meier
concluded that “[t]here [were] postural limitations recommended” but did not note why or
what limitations were recommended. Id. at *9; see also (Doc. # 11-7 at 289, 286.) The
Court held that the ALJ’s “failure to explain why she accepted Dr. Meier’s opinion but
did not apply the postural limitations” required remand. Id. at *11. Second, the Court

10

also remanded the ALJ’s decision because “the ALJ failed to weigh, or even to mention,
Dr. Rizzo’s opinion.” Id.; see also (Doc. # 11-7 at 299–303.) The Court explicitly
affirmed the ALJ’s findings as to Dr. Wharry’s and Dr. Vega’s opinions. Id. at *17; see
also (Doc. # 11-3 at 51–80; Doc. # 11-8 at 376–84.)
D.

THE ALJ’S SECOND DECISION
After the Court’s remand, the ALJ conducted a second hearing on December 29,

2015. See (Doc. # 11-9 at 417–35.) Plaintiff and her new counsel, Mr. Michael Seckar,
see (Doc. # 11-1 at 555–57), appeared, as did impartial vocational expert Ms. Nora
Dunne. (Doc. # 11-9 at 417.) The ALJ informed Plaintiff at the beginning of the hearing
that “[t]he only decision that [she was] bound by . . . [was] that of the District Court and
the Appeals Council remand order.” (Id. at 419.) The ALJ admitted all exhibits she had
admitted in the first hearing, as well as numerous new exhibits. (Id. at 420.) Plaintiff
testified about her symptoms and how they limited her activities. (Id. at 421–28.) The
ALJ did not inquire about Plaintiff’s employment history.
When the vocational expert took the stand, the ALJ asked her to categorize
Plaintiff’s “past work over the preceding 15 years,” and the vocational expert testified
that Plaintiff had worked as a housekeeper, a laundry worker, a waitress, a bar maid, a
general construction worker, and a highway worker:
She worked as a housekeeper. That’s [Dictionary of Occupational Titles]
of 323.687-014. It is light. It has a skill level of 2. She was a laundry
worker, 361.685-018. That is medium. She was a waitress, 311.477-030.
That’s light, with a skill level of 3. . . . And highway worker, 899.684-014.
And that job’s medium and it has a skill level of 3.

11

(Id. at 428–29.) The ALJ posed a hypothetical about the employment opportunities for a
claimant with Plaintiff’s age of 60, “a vocational profile similar to that which [the
vocational expert] just described,” and one year of college, with certain physical and
mental limitations. (Id. at 429–30.) The vocational expert answered that such a
hypothetical individual could work as a laundry worker and a housekeeper, as well as
other “medium” jobs, such as a cook/helper or a hospital cleaner. (Id. at 430–31.)
The ALJ issued her second decision on March 28, 2016, again concluding that
Plaintiff was not disabled and not entitled to disability insurance benefits or
supplemental security income. (Id. at 393–416.) At the first three steps of the five-step
analysis, the ALJ arrived at the same determinations as in her first decision: (1) Plaintiff
has not engaged in substantial gainful activity since the alleged onset of her disability;
(2) Plaintiff has the following severe impairments: degenerative disc disease of the
lumbar spine 6, mood disorder, and depression; and (3) Plaintiff does not have an
impairment or combination of impairments that met or medically equaled the severity of
those in the listings. (Id. at 398–401.) The ALJ stated that Plaintiff has the residual
functional capacity to:
[P]erform medium work . . . as [Plaintiff] is able to lift and carry fifty
pounds occasionally and twenty-five pounds frequently, stand and/or walk
[and sit] up to six hours in an eight-hour workday. . . . [Plaintiff] can
frequently climb, balance, stoop, kneel, crouch, and crawl. [Plaintiff] is
able to understand and remember moderately complex instruction that can
be learned and mastered within a three month period. [Plaintiff] can
sustain concentration, persistence, and pace for those instructions in a low
stress environment. . . . work duties should not require more than rare
interaction with the general public . . . , but [Plaintiff] is able to interact
6

The ALJ described Plaintiff’s degenerative disc disease of the lumbar spine as “mild” in her
previous decision. See (Doc. # 11-2 at 15.)
12

appropriately with coworkers and supervisors, tolerate supervision and
work changes, plan and set goals, travel, and recognize and avoid work
hazards.
(Id. at 401–02) (emphasis added). The ALJ explained that on remand, she gave “only
moderate weight to the opinion of Dr. Meier” because the limitations Dr. Titanji found
“were supported by reliable evidence in the record.” (Id. at 405.) Dr. Titanji’s opinion
that Plaintiff is capable of a range of medium work warranted “great weight,” the ALJ
continued, because the medical record, “including physical examinations showing
[Plaintiff] had a normal gait with full range of motion, 5/5 strength in all planes of the
spine, [and] normal sensation,” indicated Plaintiff is capable of medium work. (Id. at
406–07.) The ALJ accorded moderate weight to Dr. Latchamsetty’s opinion. (Id. at
407.) Finally, the ALJ assigned the opinions of Dr. Wharry and Dr. Rizzo “great weight”
because they were “internally consistent and well supported by the record of evidence.”
(Id.)
At the fourth step, the ALJ stated—without explanation—that Plaintiff “has no
past relevant work.” (Id.) She proceeded directly on to the fifth step, where she relied
on the testimony of the vocational expert to conclude that Plaintiff is able to perform the
requirements of representative medium occupations, such as cook helper, hospital
cleaner, and laundry worker. (Id. at 408.) Because Plaintiff “is capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy,” the ALJ held that Plaintiff is not disabled and not entitled to benefits. (Id.)
Plaintiff submitted written objections to the ALJ’s decision to the Appeals Council
on April 12, 2016. See (id. at 389.) The Appeals Council declined to review the ALJ’s

13

decision on July 25, 2017, (id. at 385–80), and the ALJ’s decision became the final
decision of the Commissioner, 20 C.F.R. § 404.981; 20 C.F.R. § 416.1481.
Plaintiff initiated the action presently before the Court on August 17, 2017. (Doc.
# 1.) After the administrative record was filed, Plaintiff submitted her Opening Brief on
November 15, 2017. (Doc. # 14.) The Commissioner responded in support of the ALJ’s
decision on December 12, 2017 (Doc. # 15), to which Plaintiff replied on December 27,
2017 (Doc. # 18).
II.

STANDARD OF REVIEW

When reviewing the Commissioner’s decision, the Court is limited to determining
“whether the findings are supported by substantial evidence and whether the Secretary
applied the correct legal standards.” Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir.
1991); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
First, the Supreme Court has defined “substantial evidence” as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Consol.
Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). “Substantial evidence is more
than a scintilla, but less than a preponderance . . . .” Campbell v. Bowen, 822 F.2d
1518, 1521 (10th Cir. 1987).
In reviewing the record to make the substantial evidence determination, the Court
“may not reweigh the evidence nor substitute [its] judgment for the Secretary’s.” Glass
v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). In addition, the Court “may not
displace the agency’s choice between two fairly conflicting views, even though the

14

[C]ourt would justifiably have made a different choice had the matter been before it de
novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and
citation omitted). Also, the Court “defer[s] to the ALJ on matters involving the credibility
of witnesses.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “A finding of ‘“no
substantial evidence” will be only where there is a “conspicuous absence of credible
choices” or “no contrary medical evidence.”’” Trimiar v. Sullivan, 966 F.2d 1326, 1329
(10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Second, in addition to the absence of substantial supporting evidence, “[f]ailure
to apply the correct legal standard or to provide this court with a sufficient basis to
determine that appropriate legal principles have been followed is grounds for reversal.”
Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see also Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993). “There are specific rules of law that must be
followed in deciding whether evidence is substantial in these disability cases.” Frey v.
Bowen, 816 F.2d 508, 512 (10th Cir. 1987).
However, not every error in evaluating evidence or applying the correct legal
standard warrants reversal or remand. “Courts may not reverse and remand for failure
to comply with a regulation without first considering whether the error was harmless.”
Bornette v. Barnhart, 466 F. Supp. 2d 811, 816 (E.D. Tex. 2006); see also Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (recognizing that the Tenth Circuit has
“specifically applied [the principle of harmless error] in social security disability cases”
and collecting cases). The standard for harmless error requires a finding that,
considering the evidence before the ALJ, the Court can “confidently say that no

15

reasonable administrative factfinder, following the correct analysis, could have resolved
the factual matter in any other way.” Allen, 357 F.3d at 1145; see also Armijo v. Astrue,
385 F. App’x 789, 792 (10th Cir. 2010); Lynn P. v. Berryhill, No. 17-CV-212-JFJ, 2018
WL 3142937, *3 (N.D. Okla. June 27, 2018). Where the court “can follow the [ALJ’ s]
reasoning in conducting [its] review, and can determine that correct legal standards
have been applied, merely technical omissions in the ALJ’s reasoning do not dictate
reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
III.

ANALYSIS

Plaintiff’s sole argument on appeal is that the ALJ “did not have a valid reason for
failing to follow Dr. Latchamsetty’s opinion of physical restrictions.” (Doc. # 14 at 4.)
Plaintiff characterizes Dr. Latchamsetty’s review as an “agree[ment]” with the SDM’s
limitations findings and Dr. Latchamsetty’s “restrictions” as “fit[ting] the light work
category because lifting is limited to twenty pounds.” (Id.); see (Doc. # 11-7 at 297–98.)
Plaintiff explains:
Dr. Latchamsetty’s light duty restrictions are relevant because, if adopted,
the grid rules would require the ALJ to award disability benefits as of
[P]laintiff’s fifty-fifth birthday. Grid rule 202.06 directs an award of
disability for a claimant over fifty-five who is restricted to light work and
has no transferable skills. The ALJ found that transferability of skills is
not an issue because [P]laintiff had no past relevant work from which
skills could have been acquired. Therefore, the case turns on the issue of
whether the ALJ had valid reasons for rejecting Dr. Latchamsetty’s opinion
of light duty restrictions.
(Id. at 4–5) (emphasis added).

16

A.

THE GRID RULE
The Commissioner’s Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P,

App. 2,—commonly referred to as the “grids,” Anders v. Berryhill, 688 F. App’x 514, 517
(10th Cir. 2017)—provide “a tool to aid in making uniform, efficient decisions in
determining the types and numbers of jobs existing in the national economy for certain
classes of claimants.” Perbeck v. Astrue, 487 F. Supp. 2d 1267, 1272 (D. Kan. 2007)
(citing Heckler v. Campbell, 461 U.S. 458, 468 (1983)). “Where the findings of fact
made with respect to a particular individual’s vocational factors and residual functional
capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion
as to whether the individual is or is not disabled.” 20 C.F.R. Pt. 404, Subpt. P, App. 2,
200.00.
Rule 202.06 of the grids provides that a claimant is presumptively disabled if the
claimant is of “advanced age,” 7 is a “high school graduate or more-does not provide for
direct entry into skilled work,” and has “skilled or semiskilled-skills not transferable” work
experience.. 20 C.F.R. Pt. 404, Subpt. P, App. 2, 202.06. Stated differently:
[F]or individuals of advanced age who can no longer perform vocationally
relevant past work and who have a history of unskilled work experience, or
who have only skills that are not readily transferable to a significant range
of semi-skilled or skilled work that is within the individual's functional
capacity, or who have no work experience, the limitations in vocational
adaptability represented by functional restriction to light work warrant a
finding of disabled.
20 C.F.R. Pt. 404, Subpt. P, App. 2, 202.00(c) (emphasis added). See Daniels v. Apfel,
154 F.3d 1129, 1131–31 (10th Cir. 1998) (“Had an ALJ applied the next higher age
7

“Advanced age” is defined in the grids as “55 and over.” 20 C.F.R. Pt. 404, Subpt. P, App. 2,
201.00(f).
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category, the claimant would have been presumptively disabled” under Rule 202.06);
Ancona v. Astrue, No. 09-cv-01764, 2010 WL 3874196, *2 (D. Colo. Sept. 29, 2010)
(stating that had the ALJ accepted limitations that precluded the claimant’s past relevant
work, the plaintiff “would have been found disabled under Grid Rule 202.06 (as [the
plaintiff] was of advanced age of 56 and her limitations were at or less than the light
exertional level).”)
B.

PLAINTIFF’S PAST RELEVANT WORK
Relevant here, Rule 202.06 provides that a claimant: (1) of advanced age, (2)

who does not have work experience and, (3) is functionally restricted to light work, is
presumptively disabled. Plaintiff argues that Rule 202.06 applies to her and that she is
therefore entitled to benefits. (Doc. # 14 at 4–5.) First, it is undisputed that Plaintiff
turned 55 years old on June 28, 2010, and is therefore of “advanced age.” Second, the
ALJ stated in her second decision that Plaintiff “has no past relevant work” and
therefore “transferability of job skills is not an issue.” (Doc. # 11-9 at 407.) And third, in
Plaintiff’s Opening Brief, she argues that she is functionally restricted to light work, in
accordance with her interpretation with Dr. Latchamsetty’s report. (Doc. # 14 at 4.)
Plaintiff concludes that she is disabled pursuant to Rule 202.06. Her conclusion
seemingly turns on the third factor, whether she is functionally restricted to light work or
medium work. (Id. at 5.)
Plaintiff’s argument on appeal assumes that Rule 202.06 applies because she
does not have any past relevant work, as the ALJ stated. See (Doc. # 11-9 at 407.)
However, this assumption is not so easily made. The ALJ’s determination, delivered

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without explanation, that Plaintiff “has no past relevant work” is not supported by
substantial evidence. The Court cannot find, nor does Plaintiff cite to, any evidence in
support of that determination. The Court is not in a position to speculate why the ALJ
determined in her second decision that Plaintiff has no past relevant work; the
Commissioner concedes that the ALJ “mistakenly stated” this (Doc. # 15 at 5).
It seems to the Court that substantial evidence instead supports a finding that
Plaintiff previously performed light and medium work at substantial gainful levels. See
(Doc. # 11-2 at 45; Doc. # 11-3 at 64–65, 78–79; Doc. # 11-6 at 199–210; Doc. # 11-9
at 429; Doc. # 11-12 at 597–98, 605–12). The ALJ concluded as much in her first
decision, issued in 2013: Plaintiff “is capable of performing past relevant work as a
Housekeeping Cleaner and Laundry Worker.” (Doc. # 11-2 at 23.) And when the ALJ
held a second hearing, after her decision was remanded, the ALJ again stated that
Plaintiff had past work requiring light and medium levels of exertion over the preceding
fifteen years. (Doc. # 11-9 at 428–29.)
The Court therefore holds that the ALJ’s determination that Plaintiff has no past
relevant work at the fourth step of analysis was not supported by substantial evidence.
C.

HARMLESS ERROR ANALYSIS
However, the ALJ’s erroneous determination that Plaintiff “has no past relevant

work” was harmless. See (id. at 407.) As the Court just explained, substantial evidence
supports a finding that Plaintiff previously performed light and medium work, such as
work as a housekeeping cleaner and a laundry worker. The ALJ concluded that Plaintiff
still had the RFC to perform medium work:

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[Plaintiff] has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c), as [Plaintiff] is able to lift
and carry fifty pounds occasionally and twenty-five pounds frequently,
stand and/or walk up to six hours in an eight-hour workday, and sit for up
to six hours in an eight-hour workday. However, [Plaintiff] can frequently
climb, balance, stoop, kneel, crouch, and crawl.
(Id. at 401) (emphasis added). Had the ALJ correctly assessed Plaintiff’s past relevant
work at the fourth step of analysis by applying Plaintiff’s RFC to her past experiences
doing light and medium work as a housekeeping cleaner and a laundry worker, the ALJ
would have concluded that Plaintiff is still capable of performing her past relevant work
as a housekeeping cleaner and a laundry worker, just as the vocational expert testified,
(id. at 430), and as the ALJ concluded in her first decision, (Doc. # 11-2 at 23). The
Court is confident that the ALJ, had she applied the fourth step correctly, could not have
resolved the factual matter in any other way, nor could have any reasonable
administrative factfinder. See Allen, 357 F.3d at 1145.
It follows that the ALJ, and every reasonable administrative factfinder, would
have therefore concluded that Plaintiff was capable of returning to work that she
performed in the past and that a finding of “not disabled” was appropriate. The ALJ
would have arrived at the same decision that she did here: that Plaintiff was not entitled
to benefits under the Social Security Act. The ALJ’s error was therefore harmless.
Because the Court holds that the ALJ’s determination that Plaintiff has no past
relevant work lacks even a scintilla of supporting evidence, the Court need not reach
Plaintiff’s argument about the applicability of Rule 202.06.

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IV.

CONCLUSION

For the foregoing reasons, it is ORDERED that the ALJ’s denial of disability
benefits is AFFIRMED.

DATED: August 6, 2018
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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