Ogle v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that the Commissioners decision is reversed and judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) remanding this case for further proceedings consistent with this opinion. Signed by District Judge John W. Lungstrum on 2/13/2014. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Case No. 13-1096-JWL
Carolyn W. Colvin,
Acting Commissioner of Social Security,
MEMORANDUM & ORDER
Plaintiff Regina Ogle brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of the decision of defendant, the Commissioner of Social Security, to deny her
applications for social security disability insurance benefits under Title II of the Social Security
Act and supplemental security income benefits under Title XVI of the Act
plaintiff, the ALJ erred at step three when she concluded that plaintiff did not demonstrate an
inability to ambulate effectively for purposes of Listing 1.02 and erred when she improperly
discredited plaintiff’s testimony regarding her inability to ambulate effectively. Finding error as
alleged by plaintiff in the ALJ’s step three evaluation, the court orders that the Commissioner’s
decision is reversed and that judgment be entered in accordance with the fourth sentence of 42
U.S.C. § 405(g) remanding this case for further proceedings consistent with this opinion.
On July 21, 2010, plaintiff protectively filed an application for disability insurance
benefits and for supplemental security income benefits, alleging disability beginning December
31, 2009. The applications were denied both initially and upon reconsideration. At plaintiff’s
request, an administrative law judge (“ALJ”) held a hearing on February 9, 2012, at which both
plaintiff and her attorney were present. On March 9, 2012, the ALJ rendered a decision in
which she determined that plaintiff was not under a “disability” as defined by the Social
Security Act from December 31, 2009 through the date of the decision.1 Consequently, the ALJ
denied all benefits to plaintiff. After the ALJ’s unfavorable decision, plaintiff requested review
by the Appeals Council. The Appeals Council denied plaintiff’s request for review, rendering
the ALJ’s decision the final decision of defendant.
Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant’s decision is
supported by substantial evidence in the record as a whole and whether defendant applied the
correct legal standards. See Wells v. Colvin, 727 F.3d 1061, 1067 (10th Cir. 2013) (citing
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)). The Tenth Circuit has defined
“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Wilson, 602 F.3d at 1140). In the course of its review, the
Plaintiff met the insured status requirements of the Social Security Act through December 31,
court may not reweigh the evidence or substitute its judgment for that of defendant. Cowan v.
Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008).
Relevant Framework for Analyzing Claim of Disability and the ALJ’s Findings
A “disability” for purposes of the Social Security Act requires both the “inability to
engage in any substantial gainful activity” and “a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” Bussell v. Astrue, 463 Fed. Appx. 779,
781 (10th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Act further
provides that an individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” Wilson, 602 F.3d
at 1140 (quoting Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §
The Social Security Administration has established a five-step sequential evaluation
process for determining whether a claimant is disabled, see id. at 1139, and the ALJ in this case
followed the five-step process. 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. Id. Step one
requires the claimant to show that he or she is not presently engaged in substantial gainful
activity. Id. Here, the ALJ determined that plaintiff was not engaged in substantial gainful
activity and, thus, properly proceeded to the second step. The second step of the evaluation
process involves a determination of whether “the claimant has a medically severe impairment or
combination of impairments” that significantly limits his or her ability to perform basic work
activities. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citing 20 C.F.R. § 404.1521).
At this step, the ALJ concluded that plaintiff had several severe impairments, including asthma,
panic disorder, depressive disorder, lumbar spondylosis, obesity, possible tarsal coalition, ankle
valgus, bilateral osteoarthritis and patellar femoral dysfunction. The ALJ identified plaintiff’s
migraine headaches and hypertension as non-severe impairments. Thus, the ALJ proceeded to
In step three, the ALJ determines whether the impairment “is equivalent to one of a
number of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity.” Best-Willie v. Colvin, 514 Fed. Appx. 728, 733 (10th Cir. 2013).
“If the impairment is listed and thus conclusively presumed to be disabling, the claimant is
entitled to benefits.” Id. If not, the evaluation proceeds to the fourth step, where the claimant
must show that the “impairment or combination of impairments prevents him from performing
his [or her] past work.” Wilson, 602 F.3d at 1139 (quoting Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007)). With respect to the third step of the process in this case, the ALJ determined
that plaintiff’s impairments were not listed or medically equivalent to those listed in the relevant
regulations. Here, the ALJ specifically rejected plaintiff’s argument that she met Listing 1.02
due to her inability to ambulate effectively. According to the ALJ, plaintiff’s ability to ambulate
with the use of a single cane, as opposed to a walker that requires the use of both hands,
necessarily meant that she failed to meet the Listing.
At the fourth step, the ALJ determined that plaintiff retained the residual functional
capacity (RFC) to perform a hybrid of light and sedentary work as defined in 20 C.F.R. §§
404.1567 and 416.967. Among other capabilities, the ALJ concluded that plaintiff could sit for
6 hours in an 8-hour workday and stand or walk for at least 2 hours in an 8-hour workday. The
ALJ concluded that plaintiff would need the ability to alternate between sitting and standing at
least every 30 minutes and would require a job that could be performed while using a handheld
assistive device, which was required for prolonged ambulation and standing.
concluded, however, that plaintiff could stand for at least 30 minutes without the need for an
assistive device. Based on evidence adduced from the vocational expert, the ALJ concluded that
plaintiff, with the limitations established in plaintiff’s RFC, could not perform her past relevant
work as a cook or certified nurse’s aide as the demands of those jobs would exceed plaintiff’s
residual functional capacity.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process–
determining whether the claimant has the residual functional capacity “to perform work in the
national economy, given her age, education, and work experience.” See id. (quoting Lax, 489
F.3d at 1084). At that point, the ALJ properly shifted the burden of proof to defendant to
establish that plaintiff retains a sufficient capacity to perform an alternative work activity and
that there are sufficient jobs in the national economy for a hypothetical person with the
claimant’s impairments. Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). At this
step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that
plaintiff, despite her limitations, nonetheless could perform jobs that exist in significant numbers
in the national economy, such as a Semiconductor Bonder, Lens Inserter and Stringer Machine
The ALJ’s Step Three Evaluation
In her motion, plaintiff contends that the ALJ erred at step three when she concluded that
plaintiff did not demonstrate an inability to ambulate effectively for purposes of Listing 1.02.2
At step three of her evaluation, the ALJ determined that plaintiff failed to meet Listing 1.02
because plaintiff failed to meet her burden to establish an inability to ambulate effectively. It is
undisputed that an “inability to ambulate effectively” is one of the criteria of Listing 1.02. In
pertinent part, the regulations define that phrase as follows:
What We Mean by Inability to Ambulate Effectively
(1) Definition. Inability to ambulate effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities .
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily
living. They must have the ability to travel without companion assistance to and
from a place of employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk without the use of
a walker, two crutches or two canes, the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the inability to use standard public
Plaintiff further contends that the ALJ erred when she improperly discredited plaintiff’s
testimony regarding her inability to ambulate effectively. Because the court is remanding this
case for additional proceedings at step three, the court need not address plaintiff argument that
the ALJ erred in assessing her credibility.
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently about one’s
home without the use of assistive devices does not, in and of itself, constitute
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00B2b. Plaintiff contends that the ALJ’s interpretation
of the phrase “inability to ambulate effectively” was overly prohibitive because the ALJ focused
exclusively on the fact that plaintiff did not require the use of a walker and concluded on that
fact alone that plaintiff could not satisfy the listing. According to plaintiff, the use of an
ambulatory device that preoccupies both hands is simply an example of an inability to ambulate
effectively but is not required to satisfy the Listing.
Plaintiff’s characterization of the ALJ’s analysis on this issue is accurate—the ALJ
expressly held that the pertinent listing “requires the use of handheld assistive device that limits
the functioning of both of the claimant’s upper extremities” and that plaintiff could not meet the
Listing without the use of such a device. Significantly, the Commissioner does not argue that the
ALJ correctly applied the regulations by requiring the use of a device that preoccupies both
hands. Rather, the Commissioner launches directly into a discussion of the harmless error
doctrine and, thus, evidently concedes that the ALJ erred at step three. In any event, the court
agrees with plaintiff that the ALJ erred when she determined that plaintiff could not meet the
Listing without the use of an assistive device that preoccupied both hands. See Moss v. Astrue,
555 F.3d 556, 562-63 (7th Cir. 2009) (claimant may show that he is unable to ambulate
effectively if one or more of the examples in the regulation applies to him, even if he does not
use an assistive device that limits the functioning of both upper extremities).
The court turns, then, to the Commissioner’s argument that a reading of the ALJ’s
opinion as a whole alleviates any concern that plaintiff might have been adjudged disabled at
step three, rendering any error at step three harmless. See Fischer-Ross v. Barnhart, 431 F.3d
729, 730 (10th Cir. 2005). According to the Commissioner, the ALJ’s factual findings at steps
four and five support the conclusion that plaintiff did not establish an inability to ambulate
effectively. The Commissioner points to the ALJ’s findings that in August 2010 plaintiff did
not require the use of a walker or a cane but utilized only a brace or splint; that plaintiff
recovered well from her April 2010 surgery; that a November 2010 examination note indicated
that plaintiff walked through the doctor’s office and examination room without using an
assistive device; that plaintiff received conservative treatment following her April 2010 surgery;
and that plaintiff reported preparing daily meals, shopping and fishing. The Commissioner also
relies heavily—as did the ALJ—on the assessment of Dr. Fanning, plaintiff’s treating orthopedic
surgeon, who opined in August 2010 that plaintiff could work so long as her duties did not
require prolonged walking. Finally, the Commissioner highlights the ALJ’s RFC assessment
that plaintiff could walk for at least 30 minutes at a time without the need for an assistive device.
These findings are insufficient to alleviate “any concern” that plaintiff might have been
adjudged disabled at step three.
The ALJ’s findings do not adequately consider whether
plaintiff is capable of sustaining a reasonable walking pace over a sufficient distance to be able
to carry out activities of daily living. The findings do not consider whether plaintiff in fact
meets the listing based on the provided examples such as an inability to walk a block at a
reasonable pace on rough or uneven surfaces or the inability to carry out routine ambulatory
activities. While plaintiff testified that she occasionally goes shopping, she testified that she
uses an electric cart at Wal-Mart and that her other shopping trips necessitate the use of a walker
or cane and are limited in duration because of her impairment. Moreover, while the ALJ relied
heavily on the assessment of Dr. Fanning, Dr. Fanning did not treat plaintiff after August
2010—approximately 18 months prior to the hearing in this case.
The medical evidence
suggests that plaintiff’s condition worsened after that time—as evidenced by x-rays in June
2011 reflecting degenerative osteoarthritic changes to both of plaintiff’s feet which the ALJ
noted caused plaintiff “significant pain” and limited her ability to stand and walk. The ALJ
even acknowledged that plaintiff’s most recent treating podiatrist opined that plaintiff would be
limited to walking “about five minutes” without an assistive device before she would be in
significant pain. While the ALJ discounted that opinion as inconsistent with Dr. Fanning’s
assessment, the ALJ failed to consider that Dr. Fanning’s last treatment of plaintiff occurred in
2010. As for the ALJ’s conclusion that plaintiff could walk up to 30 minutes without the use of
an assistive device, the court cannot conclude that substantial evidence supports that conclusion
in light of the ALJ’s failure to explain her nearly exclusive reliance on the assessment of Dr.
Fanning without considering whether that assessment remained viable in light of more recent
developments concerning plaintiff’s feet. This is particularly true where plaintiff’s treating
podiatrist opined just days before the hearing that plaintiff could not walk more than 5 minutes
without assistance. Thus, because the ALJ’s findings do not conclusively negate the possibility
that plaintiff can meet Listing 1.02 at step three such that “no reasonable factfinder could
conclude otherwise,” the ALJ’s error at step three is not harmless. Murdock v. Astrue, 458 Fed.
Appx. 702, 705 (10th Cir. 2012).
In sum, finding error as alleged by plaintiff in the ALJ’s step three evaluation, the court
orders that the Commissioner’s decision is reversed and that judgment be entered in accordance
with the fourth sentence of 42 U.S.C. § 405(g) remanding this case for further proceedings
consistent with this opinion.
IT IS THEREFORE ORDERED BY THE COURT THAT the Commissioner’s
decision is reversed and judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. §
405(g) remanding this case for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated this 13 day of February, 2014, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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