Westfal v. Social Security Administration, Commissioner of

Filing 20

MEMORANDUM AND ORDER - It is ordered that the 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 with this opinion. Signed by District Judge John W. Lungstrum on 04/14/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DARYL R. WESTFAL,

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)
Plaintiff,
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v.
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)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
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Defendant.
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________________________________________ )

CIVIL ACTION
No. 12-1466-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits 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 Commissioner’s assessment of
Plaintiff’s residual functional capacity (RFC), the court ORDERS that the decision shall
be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42

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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this
opinion.
I.

Background
Plaintiff applied for SSD and SSI, alleging disability beginning February 7, 2010.

(R. 11, 181-87, 190-96). In due course, Plaintiff exhausted proceedings before the
Commissioner, and now seeks judicial review of the final decision denying benefits. He
alleges that after a hearing the Commissioner erred by reassigning the case to another
Administrative Law Judge (ALJ) who erroneously issued the decision without holding a
hearing himself; that the ALJ erred in many respects in assessing RFC; and that the ALJ
erred at step four of the sequential evaluation process by failing to make specific, on-therecord findings regarding the physical and mental demands of Plaintiff’s past relevant
work.
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 evidence as a reasonable mind

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might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
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 he
has a severe impairment(s), and whether the severity of his 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 his
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 because the ALJ assessed an RFC for
light work without first performing a function-by-function assessment of Plaintiff’s
ability to stand, walk, or sit. Because the court finds remand is necessary, it will not
provide an advisory opinion on the remaining errors alleged by Plaintiff. He may make
arguments regarding those issues, if desired, to the Commissioner on remand.
II.

RFC Assessment
Plaintiff claims that the ALJ made numerous errors in assessing Plaintiff’s RFC.

The court finds that Plaintiff’s first argument in this regard requires remand, and it does
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not address Plaintiff’s remaining allegations of error. As relevant to this decision,
Plaintiff argues that the ALJ assessed Plaintiff with the RFC “to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b)” (R. 17) without first making a functionby-function assessment of his ability to walk, stand, or sit. (Pl. Br. 15-17). The
Commissioner argues that although the regulations do not define a particular requirement
for sitting, standing, or walking in light work, they do note that light work requires a
“good deal of walking or standing.” (Comm’r Br. 7-8) (quoting 20 C.F.R.
§§ 404.1567(b), 416.967(b)). She points out that Social Security Ruling (SSR) 83-10
explains “that the full range of light work requires standing and/or walking, off and on,
for a total of approximately six hours of an eight-hour workday with intermittent sitting
during the remaining time,” and that consequently “the ALJ’s reference to light work
properly addressed Plaintiff’s capacity to sit, stand, and walk.” (Comm’r Br. 8).
A.

Analysis

As Plaintiff’s Brief suggests, Social Security Ruling 96-8p explains that
assessment of RFC involves a function-by-function consideration of each work-related
ability before expressing RFC in terms of the exertional categories of “sedentary,”
“light,” and so forth. West’s Soc. Sec. Reporting Serv., Rulings 143, 145-46 (Supp.
2013). SSR 96-8p explains that this procedure is necessary because failure to perform a
function-by-function assessment may result in an improper finding at step four regarding
plaintiff’s ability to perform his past relevant work as he actually performed it. Id.
Moreover, because certain occupations do not require the capacity to meet all the strength
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demands of the full range of work in a particular exertional category, a failure to do a
function-by-function assessment may result in improper findings at step four regarding
plaintiff’s ability to perform his past relevant work as it is generally performed in the
national economy, or at step five regarding plaintiff’s ability to perform other work in the
national economy. Id. at 145-46 (also see examples 1-3, p. 146).
Plaintiff argues that because the ALJ first determined that Plaintiff is able to
perform light work, he never specifically assessed Plaintiff’s limitations with regard to
walking, standing, or sitting. The Commissioner responds that although the ALJ did not
state Plaintiff’s walking, standing, and sitting limitations, he found that Plaintiff could
perform light work “as defined in 20 CFR 404.1567(b) and 416.967(b).” (Comm’r Br. 78) (quoting R. 17). She argues that the cited regulations define light work as requiring a
“good deal of walking or standing,” that SSR 83-10 explains that the full range of light
work requires the ability to stand and/or walk for a total of approximately six hours in an
eight-hour workday, and that therefore, “the ALJ’s reference to light work properly
addressed Plaintiff’s capacity to sit, stand, and walk.” Id. at 8.
The Commissioner’s argument confirms the error in the decision. As she tacitly
admits, the ALJ addressed nothing in his decision to consideration of Plaintiff’s abilities
with regard to sitting, standing, and/or walking during a workday. “A good deal of
walking or standing” as required by the regulations to which the ALJ cited, addresses a
wide range of jobs with different sitting, and walking and/or standing limitations which
would be classified as light work. However, other than assessing an exertional capacity
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for light work, the ALJ said nothing with regard to how much of the sitting, stand, and
walking required by light work was within Plaintiff’s capability. This problem cannot be
resolved by looking to the testimony of the vocational expert, because in the hypothetical
presented to that expert, the ALJ only stated that Plaintiff was “capable of light work” (R.
69), and did not provide any indication that he had specifically considered Plaintiff’s
ability to sit, stand, or walk.
While it is true that SSR 83-10 explains that the full range of light work requires
the ability to stand and/or walk approximately 6 hours in a workday, and the regulations
imply there is no substantial difference in the sitting requirements between sedentary
work and the full range of light work, the decision does not reveal that the ALJ was
relying on SSR 83-10 or on the similarity between the sitting requirements of light and
sedentary work. Beyond the fact that the ALJ summarized Plaintiff’s testimony regarding
his sitting, standing, and walking limitations and found that testimony “not credible” (R.
18), there is simply no indication that the ALJ considered or made a finding regarding
Plaintiff’s actual abilities in this regard.
This is the very problem the function-by-function assessment requirement in SSR
96-8p was designed to forestall. SSR 96-8p explains that “[w]ithout a careful
consideration of an individual’s functional capacities to support an RFC assessment based
on an exertional category, the adjudicator may either overlook limitations or restrictions
that would narrow the ranges and types of work an individual may be able to do, or find
that the individual has limitations or restrictions that he or she does not actually have.”
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West’s Soc. Sec. Reporting Serv., Rulings 146 (Supp. 2013) (example 3). While the
Commissioner argues that the ALJ did not overlook limitations regarding sitting,
standing, and/or walking, the ALJ did not even state the sitting, standing, and/or walking
limitations attributed to Plaintiff, and there is simply no basis within the decision (or even
within the hypothetical questions presented to the vocational expert) to support the
Commissioner’s assertion that the ALJ considered Plaintiff’s specific limitations in that
regard.
Remand is necessary for the Commissioner to ensure that a function-by-function
assessment of Plaintiff’s ability to sit, stand, and/or walk is made in accordance with the
dictates of SSR 96-8p before the exertional level of Plaintiff’s abilities is assessed.
IT IS THEREFORE ORDERED that the 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 with this opinion.
Dated this 14th day of April 2014, at Kansas City, Kansas.

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

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