Allen v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER stating that Defendant's decision denying Plaintiff disability benefits is REVERSED AND REMANDED FOR AN IMMEDIATE AWARD OF DISABILITY INSURANCE BENEFITS to the Plaintiff. The amount of payments is to be determined by the Commissioner on remand. Signed by District Judge Julie A. Robinson on 3/31/2014. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GEORGE ALLEN,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil No. 13-1122-JAR

MEMORANDUM AND ORDER
This matter is before the Court for review of the final decision of Defendant
Commissioner of Social Security denying Plaintiff George Allen’s applications for disability
insurance benefits under Title II of the Social Security Act.1 Because the Court finds that the
Commissioner erred at step five of the analysis, the Court reverses the decision of the
Commissioner and remands for an immediate award of benefits.
I.

Procedural History
Plaintiff George Allen protectively filed an application for Title II disability insurance

benefits on February 5, 2004, alleging an onset date of January 7, 2003. Plaintiff was last
insured for disability benefits on June 30, 2007. Plaintiff’s application was denied initially and
upon reconsideration in 2004. Plaintiff timely requested a hearing before an administrative law
judge (“ALJ”). After a hearing in 2007, the ALJ issued a decision finding that Plaintiff was not
disabled; in 2009 the Appeals Council denied Plaintiff’s request for review of the ALJ’s

1

42 U.S.C. §§ 401–434.

1

decision. Plaintiff then timely sought judicial review and in 2010, United States District Judge
Sam A. Crow issued a decision reversing and remanding this case.2
In light of the ALJ’s rejection of the opinion of Plaintiff’s treating physician, Dr.
Rettinger, Judge Crow’s order directed the Commissioner to consider re-contacting Plaintiff’s
treating physician(s) for additional information and/or obtain a detailed examination from a
consulting physician to address Plaintiff’s functional limitations. Judge Crow further directed
the Commissioner to re-evaluate the medical opinions of Dr. Rettinger consistent with the
standards for evaluating the opinions of treating physicians and to explain and identify any
claimed inconsistencies. Judge Crow also directed the Commissioner to consider the opinions of
Dr. Maguire, the treating surgeon, as well as Dr. Kim, who performed a physical Residual
Functional Capacity (“RFC”) assessment. Judge Crow directed the Commissioner to include in
the RFC findings the specific frequency of Plaintiff’s need to alternate sitting and standing, in
order to determine the impact on Plaintiff’s ability to work. Judge Crow further directed the
Commissioner to review the medical and other evidence on the issue of Plaintiff’s ability to push
and pull and determine if a limitation was warranted.
Upon remand, Plaintiff had a hearing and a supplemental hearing before the ALJ, and in
April 2011, the ALJ issued a decision finding that Plaintiff was not disabled. In September
2011, Plaintiff sought review before the Appeals Council; the Appeals Council declined
jurisdiction in February 2013. Plaintiff then timely sought judicial review.
II.

Standard for Judicial Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant’s decision is

2

See No. 09-1271-SAC, Doc. 21 (July 21, 2010).

2

supported by substantial evidence in the record as a whole and whether defendant applied the
correct legal standards.3 The Tenth Circuit has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”4 In the course
of its review, the court may not re-weigh the evidence or substitute its judgment for that of
Defendant.5
III.

Legal Standards and Analytical Framework
Under the Social Security Act, “disability” means the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment.”6 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.”7 The Secretary has
established a five-step sequential evaluation process to determine whether a claimant is
disabled.8 If the ALJ determines the claimant is disabled or not disabled at any step along the
way, the evaluation ends.9

3

See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec’y of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
4

Id. (quoting Castellano, 26 F.3d at 1028).

5

Id.

6

42 U.S.C. §§ 423(d)(1)(A); 416(i).

7

Id. § 423(d)(2)(A).

8

Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1983).

9

Id.

3

Plaintiff does not challenge the ALJ’s determination at step one that Plaintiff has not
engaged in substantial gainful activity since January 7, 2003, the alleged onset date. Nor does
Plaintiff challenge the ALJ’s determination at step two that Plaintiff has medically “severe”
impairments: a history of chronic headaches and neck and shoulder pain. Nor does Plaintiff
challenge that ALJ’s determination at step three that Plaintiff’s impairments did not meet or
equal a listing.
Plaintiff challenges the ALJ’s determination of Plaintiff’s Residual Functional Capacity
(“RFC”) at step four because the RFC failed to include any limitation for reaching. And,
Plaintiff challenges the ALJ’s determination at step 5, because the ALJ erred in relying on
testimony of the vocational expert (“VE”) that was based on the erroneous RFC and that
conflicted with the Dictionary of Occupational Titles (“DOT”)10 and its companion publication,
The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles (“SCO”).11 Plaintiff also challenges the ALJ’s determination to accord “little weight” to
the opinions of treating physician Dr. Rettinger.
IV.

Discussion
A.

RFC Determination

The ALJ determined that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except being limited to
standing/walking six hours total in an eight-hour workday and sitting six hours
total in an eight hour workday. He has an unlimited ability to push/pull. He can
occasionally perform all postural positions and never climb ladders, ropes or
scaffolds. He should avoid concentrated exposure to extreme cold and hazards

10

Dictionary of Occupational Titles (4th ed.1991)

11
The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles
(1993 ed.).

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such as machinery and heights. He has the ability to understand and perform
tasks given appropriate supervision, may have some difficulty with written types
of materials and has the ability to focus, attend and concentrate.12
Here, the ALJ’s RFC determination was silent on the issue of a limitation in reaching.
The ALJ is responsible for assessing a claimant’s RFC considering all the relevant evidence,
including the claimant’s description of limitations, the medical evidence, and observations of
physicians and others.13 SSR 96-8p14 requires that the ALJ perform a function-by-function
assessment of the claimant’s functional limitations and expressly identify the functional
limitations or restrictions that affect the claimant’s work-related abilities.15 In addition to
exertional capacities, the RFC must address the claimant’s nonexertional capacities, which
includes reaching.16
To be sure, an ALJ is not required to discuss every piece of evidence so long as the
record demonstrates that he considered all of the evidence.17 But the record is replete with
medical evidence from treating physicians, consultants, and agency physicians that Plaintiff had
a functional limitation in reaching. Treating physician Dr. Rettinger, to whom the ALJ accorded
“little weight,” opined that Plaintiff could only reach on an occasional basis. Treating physician
Dr. Maguire, to whom the ALJ accorded “little weight,” opined that Plaintiff could never

12

R. at 848.

13

See 20 C.F.R. § 416.945.

14

SSR 96-8p, 1996 WL 374184 (July 2, 1996).

15

See Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (ruling that where all of the functions that the
ALJ specifically addressed in the RFC were those in which he found a limitation, a court can reasonably believe that
those functions that he omitted were those that were not limited).
16

SSR 96-8p, 1996 WL 374184, at *6 (July 2, 1996).

17

Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996).

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perform overhead work. The medical expert, Dr. Colmey, to whom the ALJ accorded “great
weight,” opined that Plaintiff had a limited ability to reach overhead with either upper extremity
but could reach in all directions below the shoulder level. And, despite Judge Crow’s earlier
direction to consider the opinions of Dr. Kim, who performed an RFC assessment in 2004, the
ALJ did not mention Dr. Kim in this decision and seemingly did not consider or evaluate the
weight to be given to Dr. Kim’s opinion that Plaintiff had limited reaching ability in all
directions, not just overhead.
Given the RFC’s silence on the limitation of reaching in the face of uncontroverted
evidence that there was some limitation on reaching, this Court cannot find that there is
substantial evidence supporting the ALJ’s RFC determination.
B.

Step 5 Errors

Defendant argues that the ALJ’s error in excluding a reaching limitation in the RFC is
harmless error, for in her hypothetical question to VE, the ALJ included a reaching limitation.
The ALJ’s reaching limitation question was probably prompted by the testimony of Dr. Colmey
that in his opinion Plaintiff had limitations in overhead reaching bilaterally,18 but that Plaintiff
should be able to reach in all directions below the shoulder level.19 After Dr. Colmey’s
testimony, the ALJ examined VE Jerry Beltramo, posing a hypothetical question that included
the limitation that Plaintiff “could not engage in overhead work with bilaterally with the upper
extremities.”20

18

R. at 1117–18.

19

R. at 1119.

20

R. at 1139.

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While the principle of harmless error may generally apply in the context of administrative
review of social security disability cases, the Tenth Circuit has cautioned that outside of “certain
technical errors” that did not “undermine confidence in the determination of th[e] case,” or
“procedural impropriety. . . [that] had not altered the evidence before the ALJ,” it has never held
harmless the ALJ’s failure to make a dispositive finding of fact that was not clearly established
in the record.21 The Tenth Circuit further observed that it “may be appropriate to supply a
missing dispositive finding under the rubric of harmless error in the right exceptional
circumstances, i.e., where, based on the material the ALJ did at least consider (just not properly),
we could confidently say that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.”22
This is not such an exceptional circumstance. The ALJ did not include any reaching
limitation in the RFC despite the unanimous opinions of treating, consulting and agency
physicians that Plaintiff had some degree of reaching limitation. Yet these physicians do not
agree in the degree of reaching limitation—their opinions vary from an occasional limitation on
reaching, to a limitation on reaching overhead with either upper extremity, to a limitation on all
directional reaching. This Court simply cannot find harmless error in this case. There is no
discrete “missing dispositive finding” on the degree of reaching limitation from which the Court
could conclude that the limitation as articulated in the ALJ’s hypothetical question to the VE was
clearly established in the record and a limitation that no reasonable administrative factfinder
would have determined differently. On the basis of this record, the ALJ’s failure to assess,

21

Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (quotations and citations omitted).

22

Id.

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discuss, and include the reaching limitation in the RFC precludes the Court from finding
harmless error.
Plaintiff points to still more errors in the ALJ’s step 5 determination that he was able to
perform jobs in the national economy. For example, in response to the ALJ’s questions, the VE
testified that his testimony that Plaintiff could perform the work of marker, collater/copier, or
laundry bagger.23 But the VE explained that while his testimony was consistent with the DOT
and SOC, at times he deviated from those publications based on his “knowledge and experience
with human resources practices in businesses or industry. Those would be primarily related to
the amount of time a person could be away from work for, having to lie down or take
breaks . . . .”24 In light of this testimony about departing from the DOT and SCO, the ALJ
should have inquired further of the VE. In Haddock v. Apfel,25 the Tenth Circuit ruled that when
a conflict exists between the VE’s testimony and the DOT, the ALJ must investigate and elicit a
reasonable explanation for the discrepancy, before the ALJ can properly rely on the VE’s
testimony.
As Plaintiff points out, the VE’s testimony may have conflicted with the DOT beyond the
VE’s reference to human resources and business practices related to taking breaks or laying
down. For example, the DOT that the jobs of marker, collater/copier and laundry bagger26 all
require “Reaching: Frequently-Exists from 1/3 to 2/3 of the time,”27 This requirement appears
23

Tr. 1140

24

Tr. 1146-1147.

25

196 F.3d 1084, 1089 (10th Cir.1999).

26

DOT Codes 209.587-034, 208.685.010, 920.687-018.

27

Id.

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inconsistent with the limitation articulated by the ALJ to the VE: a claimant who could not
engage in overhead work . . . bilaterally with the upper extremities.”28 Moreover, both SSR 8515 and the SOC provide that reaching is defined as “extending the hands and arms in any
direction.”29
C.

Evaluation of Treating Physician

Plaintiff also argues that the ALJ failed to properly evaluate the opinions of treating
physician Dr. Rettinger, despite Judge Crow’s direction to do so. The Court notes that the ALJ
did extensively catalogue the treatment notes of Dr. Rettinger and Dr. Maguire, but the ALJ did
not expressly tie that to her findings that the opinions of the treating physicians were not
supported by the medical evidence. And, the ALJ again did not mention or discuss Dr. Kim’s
opinion and RFC, despite Judge Crow’s earlier order to do so. In any event, given the error in
the RFC determination and the errors at step 5, the Court need not further discuss this issue.
V.

Conclusion
Plaintiff seeks a reversal and remand for an immediate award of benefits. It is within the

Court’s discretion to remand for an award of immediate benefits.30 The Court should consider
the length of time the matter has been pending and “whether or not given the available evidence,
remand for additional fact-finding would serve any useful purpose but would merely delay the
receipt of benefits.”31

28

R. at 1139.

29

SSR 85-15, 1985 WL 56857, at *7; SCO, app. C ¶ 8.

30

Salazar v. Barnhart, 468 F.3d 615, 625 (10th Cir. 2006).

31

Id. (quotation and citation omitted).

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Plaintiff first applied for benefits ten years ago, alleging a disability that began in 2003.
After Plaintiff’s application was denied in 2004, he did not have a hearing before an
administrative law judge until 2007. Two years later, in 2009, Defendant rendered an adverse
decision. Plaintiff then timely filed for judicial review. In 2010, Judge Crow reversed and
remanded on the basis of a number of errors, and specifically directed the Commissioner to
obtain a detailed examination from a consulting physician in light of the fact that at that point
Plaintiff’s alleged onset date was seven years earlier. Judge Crow also directed the
Commissioner to re-evaluate, consider and discuss the opinions of treating physicians and
explain and identify any claimed inconsistencies in the record.
The ALJ has now rendered a second opinion, again giving little weight to the opinions of
the treating physicians. Although this time the ALJ provided an an extensive catalogue of the
treatment notes of the physicians, the ALJ did not expressly tie that to her findings that the
opinions of the treating physicians were not supported by the medical evidence. Despite Judge
Crow’s direction to consider the RFC evaluation of Dr. Kim, upon remand, the ALJ did not do
so and does not mention or discuss Dr. Kim’s evaluation in the second ALJ opinion.

Judge

Crow also directed the Commissioner to include in the RFC specific findings on the frequency of
Plaintiff’s need to alternate sitting and standing. While the ALJ did that, in this second opinion,
the ALJ erred in the RFC determination, for the ALJ included no assessment of Plaintiff’s
reaching limitation despite the fact that all physicians had noted some degree of limitation.
Although the ALJ issued the second opinion denying benefits in April 2011, the Appeals
Council did not decline jurisdiction until February 2013.
In short, over the course of ten years, the Commissioner has had two opportunities to

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hear evidence and render a legally sufficient decision. The Commissioner did not completely
follow the directions of Judge Crow upon the first reversal and remand; and in the second round,
the ALJ committed new errors. As the Tenth Circuit has noted, “The [SSA] is not entitled to
adjudicate a case ‘ad infinitum until it correctly applies the proper legal standard and gathers
evidence to support its conclusion .’”32 The Court finds that remand for additional fact finding
would serve no useful purpose under these circumstances. For these reasons, the Court reverses
and remands for an immediate award of benefits.
IT IS THEREFORE ORDERED BY THE COURT THAT Defendant’s decision
denying Plaintiff disability benefits is REVERSED AND REMANDED FOR AN
IMMEDIATE AWARD OF DISABILITY INSURANCE BENEFITS to the Plaintiff.
IT IS FURTHER ORDERED BY THE COURT THAT the amount of payments is to
be determined by the Commissioner on remand.
IT IS SO ORDERED.
Dated: March 31, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

32

Sisco v. United States Department of Health and Human Services, 10 F.3d 739, 746 (10th Cir.1993)
(citation omitted).

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