Lydon v. Commissioner, Social Security Administration

Filing 16

OPINION AND ORDER: The Commissioner's decision is reversed and remanded. Upon reconsideration, the Commissioner shall consider all pertinent evidence through the 2017 hearing date. Judgment shall enter in favor of Ms. Lydon, by Judge Marcia S. Krieger on 8/14/2019. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 18-cv-01526-MSK
SANDRA LYDON,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.

OPINION AND ORDER REVERSING AND REMANDING
THE COMMISSIONER’S DECISION

THIS MATTER comes before the Court on the Plaintiff’s Complaint (# 1), the
Plaintiff’s Opening Brief (# 12), the Defendant’s Response (# 13), and the Plaintiff’s Reply
(#14). For the following reasons, the Commissioner’s decision is reversed, and the matter is
remanded for further proceedings.
I.

JURISDICTION

The Court has jurisdiction over an appeal from a final decision of the Commissioner
under 42 U.S.C. § 405(g).
II.
A.

BACKGROUND

Procedural History
Plaintiff Sandra Lydon (“Ms. Lydon”) seeks judicial review of a final decision by the

Defendant Commissioner (“Commissioner”) denying her claim for disability insurance benefits
(“DIB”) under the Social Security Act. In February 2015, Ms. Lydon filed for DIB, claiming
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she became disabled as of October 10, 2012. (# 9-6 at 173-76). Following a hearing held on
April 26, 2017 before an Administrative Law Judge (“ALJ”), Ms. Lydon received an unfavorable
decision in May 2017 (“Decision”). (# 9-2 at 14-26). Ms. Lydon appealed that Decision to the
Appeals Council. However, on April 25, 2018, the Appeals Counsel denied her Request for
Review. (# 9-2 at 1-7). Ms. Lydon now appeals the final agency action to this Court.
B.

Factual Background
The Court offers a brief summary of the facts here and elaborates as necessary in its

analysis. Ms. Lydon was born in July 1965. (# 9-6 at 173). She was 47 years old on her
initially-alleged disability onset date in October 2012 and 51 years old at the time of the ALJ’s
Decision. (# 9-6 at 173). She has a high school education and work history as a head cashier
for a building supply retail store. (# 9-7 at 193, 220).
On October 10, 2012, Ms. Lydon had surgery to treat a cystocele (a prolapsed bladder)
with mesh and a suburethral sling. (# 9-8 at 299-306). Due to surgical complications including
unusually significant pain radiating down her right leg, Ms. Lydon underwent a second surgery
the following day to remove a suture that was compressing a nerve. This ultimately led to an
injury to her sciatic nerve. (# 9-8 at 308; # 9-10 at 442). Ms. Lydon continued to have chronic
pain and spasms and has undergone the following multiple subsequent surgeries: October 2013
(mesh removal) (# 9-12 at 551-555, 588); December 2013 (posterior repair and sling) (# 9-12 at
553-554; # 9-13 at 600); March 2014 (repair prolapse using tissue rather than mesh) (# 9-13 at
607); and April 2014 (drain implanted but failed to work properly) (# 9-13 at 617). As a result
of numerous complications from these procedures, Ms. Lydon had urinary and rectal catheters
placed and must self-catheterize daily. Ms. Lydon reported she experiences chronic pain in her

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pelvis, back, and legs. (# 9-16 at 744-85; # 9-2 at 22). In addition, the record reflects mental
health impairments, including a diagnosis of anxiety and depression, which are the focus of this
appeal. However, since Ms. Lydon does not contest the ALJ’s treatment of the medical records
and opinions or the ALJ’s findings of the relevant conditions and impairments, the Court need
not further detail the medical record. (# 12 at 15).
C.

The ALJ’s Decision
To determine disability, the ALJ analyzed this case pursuant to the sequential five-step

inquiry. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1998) (explaining the five steps in detail). At step one, the ALJ found
Ms. Lydon had not engaged in substantial gainful activity since her alleged onset date of October
10, 2012. (# 9-2 at 16). At step two, the ALJ found Ms. Lydon had the following severe
impairments: pelvic organ prolapse; vaginal mesh placement and removal; pudenal neuralgia;
carpal tunnel release; and right shoulder surgery. (# 9-2 at 17). The ALJ also noted that Ms.
Lydon has been diagnosed with anxiety and depression. However, the State agency
psychological consultant found this impairment to be non-severe, and the ALJ concurred giving
this assessment “great weight.” (# 9-2 at 17).
At step three, the ALJ found Ms. Lydon’s impairments did not meet or equal the severity
of a listed impairment in the appendix of the regulations. In making this finding, the ALJ
considered Ms. Lydon’s mental impairments, finding she had mild limitations in the activities of:
“understanding, remembering, or applying information;” “interacting with others;”
“concentrating, persisting, or maintaining pace;” and “adapting or managing oneself.”1 (# 9-2

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The ALJ’s analysis followed the process for evaluating mental impairments, and the
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at 17-18).
The ALJ then assessed Ms. Lydon’s Residual Functional Capacity (“RFC”) and
determined that:
[Ms. Lydon] has the residual functional capacity to perform less than the
full range of light work as defined in 20 § C.F.R. 404.1567(b) except: the
claimant is limited to lifting and carrying 20 pounds occasionally and 10
pounds frequently. The claimant is limited to sitting (with normal breaks)
for about 6 hours out of an 8-hour workday. The claimant is limited to
standing or walking (with normal breaks) for about 6 hours out of an 8-hour
workday. The claimant is limited to pushing and pulling within the weight
limitation of lifting and carrying. The claimant is limited [to] never
climbing ladders, scaffolds or ropes. The claimant is limited to occasional
balancing, stooping, kneeling, crouching, or crawling and climbing ramps
or stairs. The claimant is limited to frequent bilateral overhead reaching
and reaching in all directions. The claimant is limited to frequent handling,
fingering and feeling. The claimant is limited to occasional exposure to
extreme cold or heat and having no exposure to unprotected heights and
moving mechanical parts.
(# 9-2 at 18- 19). The ALJ then found, at step four, that Ms. Lydon was able to perform her
past relevant work as a “head cashier I” as described in the Dictionary of Occupational Titles
(“D.O.T.”) 211.362-010, which is classified as sedentary, skilled work.. (# 9-2 at 24). The
ALJ noted that “the job of head cashier I has a specific vocational preparation (“SVP”) rating of
5.” (# 9-2 at 24). Based on the testimony of the vocational expert (“VE”), the ALJ then made
the alternate finding that although she is capable of performing her past relevant work, Ms.

categories of such impairments, as prescribed by the Commissioner’s regulations. These
include the “psychiatric review technique,” or “PRT,” and the so-called “paragraph B” and
“paragraph C” criteria for describing adult mental disorders. See generally 20 C.F.R. §§
404.1520a(c)–(d); see also Social Security Ruling 96-8P, 1996 WL 374184, at *4 (July 2, 1996).
The regulations identify four functional areas in which the ALJ will rate the degree of a
claimant’s functional limitations, including: (1) the ability to understand, remember or apply
information; (2) the ability to interact with others; (3) the ability to concentrate, persist, or
maintain pace; and (4) the ability to adapt or manage oneself. 20 C.F.R. § 404.1520a(c)(3).
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Lydon could perform jobs that exist in significant numbers in the national economy. (# 9-2 at
24-25). Specifically, the ALJ determined that Ms. Lydon could work in occupations such as:
credit card interviewer (sedentary unskilled work), document preparer (sedentary unskilled
work), and food and beverage order clerk (sedentary unskilled work). (# 9-2 at 25-26). The
ALJ therefore found that Ms. Lydon was not disabled as defined by the Social Security Act.
III.

STANDARD OF REVIEW

Judicial review of the Commissioner of Social Security’s determination that a claimant is
not disabled within the meaning of the Social Security Act is limited to determining whether the
Commissioner applied the correct legal standard and whether the Commissioner’s decision is
supported by substantial evidence. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003);
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990).
Substantial evidence means evidence a reasonable mind would accept as adequate to
support a conclusion. Brown, 912 F.2d at 1196; Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007). It requires more than a scintilla but less than a preponderance of the evidence. Lax, 489
F.3d at 1084; Hedstrom v. Sullivan, 783 F. Supp. 553, 556 (D. Colo. 1992). “Evidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Although a reviewing court must
meticulously examine the record, it may not weigh the evidence or substitute its discretion for
that of the Commissioner. Id.
In addition, if the ALJ failed to apply the correct legal standard, the decision must be
reversed, regardless of whether there was substantial evidence to support factual findings.

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Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
IV.

DISCUSSION

Ms. Lydon raises four challenges to the Commissioner’s Decision: (1) after the ALJ
found mild limitations as to understanding, remembering, applying information, interacting with
others, concentration, persistence, and pace, the ALJ failed to account for that finding in
formulating Ms. Lydon’s RFC, as well as in the dispositive hypothetical question to the VE; (2)
the ALJ’s RFC finding was not supported by any medical opinions; (3) the ALJ
mischaracterized Ms. Lydon’s past job as a head cashier I and erred in considering it to be past
relevant work; and (4) the ALJ failed to properly consider whether Ms. Lydon was able to
sustain competitive work activity as defined by the Commissioner. Having considered these
issues and the applicable law, the Court finds that reversal and remand is necessary due to
several errors of law at step four.
At step four in the disability analysis, the ALJ is required to asses a claimant’s RFC
based on all relevant evidence, medical (physical and mental) or otherwise. 20 C.F.R. § 1545.
Initially, the impairments, including mental impairments, which an ALJ identifies at steps two
and three are distinct from the functional limitations which must be identified and described in
an RFC. The RFC finding requires a “more detailed assessment.” Social Security Ruling 968P, 1996 WL 374184, at *4 (July 2, 1996); Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir.
2013); Bales v. Colvin, 576 F.App’x 792, 797 (10th Cir. 2014). However, the RFC must be
assessed based on all of the relevant evidence and must account for “all of [the claimant’s]
medically determinable impairments ... including [claimant’s] impairments that are not ‘severe.’”
20 C.F.R. § 404.1545(a)(1)–(2). In addition, the “RFC assessment must include a narrative

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discussion describing how the evidence supports each conclusion, citing specific medical facts []
and nonmedical evidence.” Wells, 727 F.3d at 1065 (quoting Social Security Ruling 96-8P)
(internal quotation marks omitted).
Further, “mental functions . . . ‘are not skills but, rather, general prerequisites for most
work at any skill level.’” Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (quoting
Wayland v. Chater, 76 F.3d 394, 1996 WL 50459, at * 2 (10th Cir. 1996) (table)); Vialpando v.
Colvin, 2015 WL 1433293, at *6 (D. Colo. March 26, 2015) (stating “a limitation of skill level
just accounts for issues of skill transfer, not impairment of mental functions …”) (citing Chapo,
682 F.3d at 1290 n.3). Agency guidance draws the same distinction:
Because response to the demands of work is highly individualized, the skill
level of a position is not necessarily related to the difficulty an individual
will have in meeting the demands of the job. A claimant’s condition may
make performance of an unskilled job as difficult as an objectively more
demanding job. … Any impairment-related limitations created by an
individual’s response to demands of work, however, must be reflected in
the RFC assessment.
Social Security Ruling 85-15, 1985 WL 56857, at * 6.
The Tenth Circuit’s discussion in Wayland is illustrative; and, although unpublished, was
cited with approval by the published opinion in Chapo:
[W]hen mental impairments diminish a claimant’s residual functional
capacity, our cases generally require the production of expert vocational
testimony or other similar evidence to establish the existence of jobs [the
mentally impaired claimant could still perform] in the national economy to
satisfy the Secretary’s burden at step five. …
Moreover, while 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, that is clearly not the case here. Indeed, deficiencies in
concentration like plaintiff’s may well be especially disruptive of
production, and perhaps even physically dangerous to the claimant and/or
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her coworkers, in the kinds of repetitive tasks typically involved in unskilled
work. In short, the tacit premise in the ALJ’s analysis, i.e., that a cognitive
or emotional impairment may be functionally equated with the lack of a
skill, as that term is employed in the Secretary’s regulations, is wrong.
Numerous authorities illustrate the basic point that intact mental aptitudes
are not skills, but, rather, general prerequisites for most work at any skill
level.
Wayland, 1996 WL 50459, at * 2 (citations and internal quotation marks omitted; alterations as
in original); see also Chapo, 682 F.3d at 1290 n.3.
Here, the Court finds the ALJ’s RFC was insufficient to account for the impairments the
ALJ found, particularly the ALJ’s finding of mild limitations in understanding, remembering,
applying information, interacting with others, concentration, persistence, and pace. Indeed, the
ALJ’s RFC determination was silent as to any mental impairments whatsoever and relates only
to physical impairments. No accommodation in the RFC relates to or accounts for the finding of
Ms. Lydon’s mental impairments or limitations.
In response, the Commissioner asserts that “even assuming that the ALJ should have
included some limitation, any error was harmless because … the ALJ identified unskilled jobs
in the national economy that [Ms. Lydon] could perform.” (# 13 at 13). Although the
Commissioner relies on the Tenth Circuit’s decisions in both Smith v. Colvin, 821 F.3d 1264,
1269 (10th Cir. 2016) and in Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) in support
of its argument, the Court is not persuaded. Both Smith and Vigil held that the RFC
limitations stated by the ALJ were sufficient to account for the impairments reflected in the
evidentiary record. Neither Smith nor Vigil reflects a blanket rule that a generally-stated
limitation to “unskilled” work is sufficient to account for any or all mental health impairments.
Indeed, Vigil states that a “finding of a moderate limitation in concentration, persistence or

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pace at step three does not necessarily translate to a work-related functional limitation for the
purposes of the RFC assessment.” Vigil, 805 F.3d at 1203 (emphasis added). Vigil also
recognized the continuing viability of Chapo, in which the court found it “doubtful” that a
“vague catch-all” limitation such as “to ‘simple’ work” would be sufficient where the record
includes findings of specific “functionally distinct mental limitations” Chapo, 682 F.3d at
1290–91 n.3.
Smith and Vigil therefore left plain that there may be cases in which “an ALJ’s limitation
to ‘unskilled’ work [will] not adequately address a claimant’s mental limitations.” Vigil, 805
F.3d at 1204 (emphasis added). The fact that the ALJ in Vigil adequately accounted for a
finding of moderate impairment “by limiting [the claimant] to unskilled work,” id., does not
mean that a general restriction is adequate where the ALJ’s own findings reflect more specific
impairments, as is true here. In short, a case-specific analysis is required.
Conducting such a review, and informed by case authority, the Court finds that the
mental impairments found by the ALJ here were not adequately reflected in his RFC
formulation. See Wiederholt v. Barnhart, 121 F.App’x 833, 839 (10th Cir. 2005) (finding
reversible error with the RFC’s limitation to simple, unskilled job tasks given the specific mental
limitations found by the ALJ). The ALJ’s identification of unskilled work in the national
economy that Ms. Lydon could perform was inadequate to account for a cognitive limitation as
to understanding, remembering, applying information, interacting with others, concentration,
persistence, and pace, given that skill levels are distinct from mental function.2 See Chapo, 682

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This is especially true here where the ALJ determined Ms. Lydon could perform her past
relevant work as a head cashier I, which has an SVP of 5. In Vigil, the Tenth Circuit reasoned
that the ALJ’s limiting plaintiff to an SVP of any one of two “adequately took into account his
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F.3d at 1290 n.3; Wiederholt, 121 F.App’x at 839; Vialpando, 2015 WL 1433293, at *7.
Further, as a consequence of this omission, the hypothetical question posed to the VE was also
flawed. See Chapo, 682 F.3d at 1291 n.3 (“the failure of [an] ALJ to include his own mental
restriction would be fatal to the validity of the hypothetical to the VE” (citing Barnett v. Apfel,
231 F.3d 687, 690 (10th Cir. 2000)).
The Court finds the ALJ’s omission of any mental limitations in his RFC contravenes
applicable legal standards and thus, the disability conclusion at step four and the alternate
conclusion at step five of the sequential analysis are not supported by substantial evidence.
Thus, the finding that Ms. Lydon is not disabled is reversed, and the matter is remanded for
reconsideration on steps four and five of the sequential analysis, applying the proper legal
standards to the ALJ’s formulation of Ms. Lydon’s RFC.
Although reversal is required as set forth above, the Court addresses Ms. Lydon’s other
step four challenges in the interest of clarity. At step four, the ALJ found that Ms. Lydon was
able to perform her past relevant work as a head cashier I (D.O.T. 211.362-010, sedentary skilled
work), and was therefore, not disabled. (# 9-2 at 24; # 9-7 at 245). However, Ms. Lydon
argues that the ALJ mischaracterized her past job as head cashier I, a job description that does
not exist in the Dictionary of Occupational Titles (“D.O.T.”). Rather, her actual job was
Supervisor, Cashiers (D.O.T. 211.137-101). Upon the Court’s review, it appears Ms. Lydon’s
argument is accurate in that D.O.T. 211.362-010 refers to “Cashier I” and not “head cashier I” as
referenced by the ALJ’s Decision. See http://www.govtusa.com/dot/dot02a.html (last visited
August 13, 2019). Interestingly, the Commissioner does not respond to this argument. Thus,

moderate limitations in concentration, persistence, and pace.” Vigil, 805 F.3d at 1204.
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on remand, the ALJ is directed to conduct the step four analysis anew and accurately characterize
Ms. Lydon’s past work, including whether it qualifies as “past relevant work” under the duration
requirement set forth in 20 C.F.R. § 416.965(a) and whether she can sustain competitive
employment “on a regular and continuing basis.” Social Security Ruling 96-8P, 1996 WL
374184, at *1 (July 2, 1996). The Court expresses no opinion as to the ultimate determination
of whether Ms. Lydon is or should be found to be disabled.
V.

CONCLUSION

For the foregoing reasons, the Commissioner’s decision is REVERSED AND
REMANDED. Upon reconsideration, the Commissioner shall consider all pertinent evidence
through the 2017 hearing date. Judgment shall enter in favor of Ms. Lydon.
Dated this 14th day of August, 2019.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

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