Ramos v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER - It is ordered that the Commissioner's final decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 03/22/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DIANA RAMOS,

)
)
Plaintiff,
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v.
)
)
)
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
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)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 16-4069-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Administrative Law Judge’s
(ALJ) hypothetical questioning of the vocational expert, the court ORDERS that the
decision shall be REVERSED and that judgment shall be entered pursuant to the fourth

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On Jan. 20, 2017, Nancy A. Berryhill, became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent
with this decision.
I.

Background
Plaintiff applied for DIB and SSI benefits, alleging disability beginning January 1,

2011. (R. 20, 198, 202). Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying benefits. Plaintiff argues that the
Administrative Law Judge (ALJ) erred in evaluating Plaintiff’s condition under Listing
1.02 and provided an inadequate narrative discussion, that the evidence does not support
his credibility determination, that he did not evaluate the medical opinions properly, and
that his hypothetical questioning of the vocational expert did not relate with precision to
the residual functional capacity (RFC) assessed.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

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389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804
(10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner

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assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary here because the ALJ’s hypothetical
questioning of the vocational expert did not include his finding that Plaintiff “is not able
to communicate in English, and is considered in the same way as an individual who is
illiterate in English.” (R. 27) (finding no. 8). The court also notes that the ALJ here did
not provide extensive discussion which resolved the ambiguities regarding his findings,
and consequently there is merit in other arguments made by the plaintiff. For example,
the ALJ did not explain how his finding that “there is no indication that the [plaintiff] has
an inability to ambulate effectively,” can be reconciled with his finding that she is unable
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to climb ramps and stairs. (R. 24). Moreover, the ALJ did not explain how the
inconsistencies (between Dr. Bean’s statement that Plaintiff’s noncompliance with
medication was related to a lack of funds and Plaintiff’s testimony that she was compliant
with medication, or any of the other evidentiary inconsistencies) regarding Plaintiff’s
credibility would provide a basis to discount Dr. Bean’s medical opinion. (R. 27).
Because remand is clearly necessary to correct the error regarding hypothetical
questioning, the court need not address the remaining allegations of error, and it will not
provide an advisory opinion with regard to those issues. Nevertheless, the Commissioner
should consider Plaintiff’s remaining arguments and take steps to eliminate ambiguity in
her decision after remand.
II.

Hypothetical Questioning
Plaintiff claims that although the ALJ found Plaintiff unable to communicate in

English, he did not include that fact in any hypothetical scenario presented to the
vocational expert. (Pl. Br. 33). She argues that although a Spanish interpreter was used
at the hearing Plaintiff’s ability to communicate in English was never discussed, and even
though the vocational expert testified that the representative jobs were suited to an
individual who could not read or write English, she did not testify that they can be
performed by someone who is unable to understand or speak English orally. Id.
The Commissioner argues that the hypothetical questioning included all facts
necessary to the decision. (Comm’r Br. 15). She points out that the ALJ specifically
noted the use of the interpreter and that the vocational expert was present in the hearing
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room with Plaintiff and the interpreter. Id. She argues that all of the representative jobs
mentioned are unskilled jobs and “the inability to communicate in English ‘has the least
significance’ in unskilled jobs.” Id. (quoting 20 C.F.R., Pt. 404, Subpt. P, App. 2
§ 201.00(i)). She notes that ability to communicate in English is an “education” factor
and the ALJ included in his hypothetical scenarios an individual with education similar to
Plaintiff. Id. 15-16. Finally, she argues that any error in failing to include inability to
communicate in English is harmless because all of the representative jobs include math
and language levels of one, and the vocational expert testified that in such jobs “the need
to communicate through written form [was] minimal.” Id. at 16 (quoting R. 66).
In her Reply Brief Plaintiff points out that even though the vocational expert was
aware of the interpreter at the hearing, and the ALJ included a hypothetical person with
education similar to Plaintiff, there is no authority for the expert to add limitations such as
inability to communicate in English based merely on her observation of the plaintiff at the
hearing. (Reply 9). Moreover, she points out that the work summary prepared by the
expert before the hearing reflected a twelfth grade education, Plaintiff testified at the
hearing she completed the ninth grade, and there is nothing from which the vocational
expert should assume an inability to communicate in English even if she had the authority
to do so. Id. at 9-10. Finally, she argues that even though the expert testified that the
representative jobs required minimal communication in written form, the inability to
communicate includes verbal communication, and the expert did not testify that the jobs
did not require verbal instructions or communication. (Reply 10).
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“‘[T]estimony 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.’” Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993)
(citing Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quoting Ekeland v.
Bowen, 899 F.2d 719, 722 (8th Cir. 1990))).
As Plaintiff argues, the ALJ found that Plaintiff is unable to communicate in
English. (R. 27). And, as the ALJ noted in his decision, an individual who is unable to
communicate in English will be considered in the same manner as an individual who is
illiterate. (R. 27) (citing 20 C.F.R. §§ 404.1564, 416.924). As Plaintiff points out, an
individual who is unable to communicate in English, is limited to sedentary, unskilled
work, and who is 45-49 years of age, must be found disabled in accordance with the
Medical-Vocational Guidelines (the Grids). 20 C.F.R., Pt. 404, Subpt. P, App. 2
§ 201.17. And, the regulations indicate that “the functional capability for a full range of
sedentary work represents sufficient numbers of jobs to indicate sufficient numbers of
jobs for those individuals age 18-44 even if they are illiterate or unable to communicate in
English.” Id. § 201.00(i) (emphases added). The regulations recognize that “[t]he
capability for light work, which includes the ability to do sedentary work, . . . represents
substantial vocational scope for younger individuals (age 18-49) even if illiterate or
unable to communicate in English.” Id. § 201.00(g).
But, the ALJ found that Plaintiff could do a limited range of light work, and
Plaintiff became 45 years of age almost a year before the decision in this case. Thus,
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Plaintiff’s situation lies between the Grid rules. It is just such situations where use of a
vocational expert may be necessary to fill the gaps. And the ALJ properly chose to use a
vocational expert in this case. But he did not inform the expert completely regarding the
educational level upon which he eventually relied in his decision. Therefore, the reader
of his decision, such as a reviewing court, cannot ascertain whether the representative
jobs relied upon can be performed by an individual 45 or over who is unable to
communicate in English.
As Plaintiff suggests, the court may not assume that the vocational expert saw that
Plaintiff was using an interpreter and assumed an inability to communicate in English.
First, the use of an interpreter does not imply an inability to communicate in English.
Many times interpreters are used in hearings merely for clarity or to enable hearings to
proceed more expeditiously. And, for the vocational expert to assume an inability to
communicate in English and to rely upon that assumption as a part of the hypothetical
without being instructed to do so would violate her duty as an expert and would render
review of such testimony impossible. Finally, the Commissioner’s argument that the ALJ
instructed the expert to consider a hypothetical individual with education similar to the
Plaintiff merely complicates the problem. As Plaintiff points out, in addition to failing to
instruct the expert that Plaintiff is unable to communicate in English, the ALJ did not
inform the expert how much formal education to consider for the hypothetical individual
despite being aware of inconsistent evidence in that regard. (R. 26) (noting Plaintiff
variously reported four years, nine years, and twelve years of formal education).
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Remand is necessary to resolve these issues. Plaintiff argues that “[r]emand for an
award of benefits is appropriate in this case” (Pl. Br. 35) because the record is fully
developed “and substantial and uncontradicted evidence establishes that the plaintiff is
disabled.” Id. at 35-36. She argues that “even if the plaintiff were capable of the full
range of sedentary work . . . she would [have been] disabled under Rule No. 201.17" of
the Grids on her 45th birthday. Id. at 36.
Plaintiff is correct that whether to remand the case for additional fact-finding or for
an immediate calculation and award of benefits is within the discretion of the district
court. Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993); Taylor v. Callahan, 969
F. Supp. 664, 673 (D. Kan. 1997) (citing Dixon v. Heckler, 811 F.2d 506, 511 (10th Cir.
1987)). And, the decision to direct an award should be made only when the
administrative record has been fully developed and when substantial and uncontradicted
evidence on the record as a whole indicates that the claimant is disabled and entitled to
benefits. Gilliland v. Heckler, 786 F.2d 178, 184, 185 (3rd Cir. 1986). In this case,
however, the evidence of disability is not uncontradicted. At the very least, and as
Plaintiff acknowledges, Dr. Parsons, the state agency non-examining physician, opined
that Plaintiff is capable of a range of light work. (R. 102-05, 114-17). Moreover, as
explained above, the grid rules are not determinative in this case. Therefore, the court
will remand for further proceedings.

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IT IS THEREFORE ORDERED that the Commissioner’s final decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Dated this 22nd day of March 2017, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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