Ferguson v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER: the judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 6/12/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MAX FERGUSON II,
Plaintiff,
vs.

Case No. 16-1348-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).
1

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of 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 really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
3

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

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

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On March 25, 2016, administrative law judge (ALJ) James

Harty issued his decision (R. at 16-29).

Plaintiff alleges that

he has been disabled since July 10, 2013 (R. at 16).

Plaintiff

is insured for disability insurance benefits through December
4

31, 2018 (R. at 18).

At step one, the ALJ found that plaintiff

did not engage in substantial gainful activity since the alleged
onset date (R. at 18).

At step two, the ALJ found that

plaintiff had a severe combination of impairments (R. at 18).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 19).

After

determining plaintiff’s RFC (R. at 20-21), the ALJ found at step
four that plaintiff is unable to perform any past relevant work
(R. at 27).

At step five, the ALJ found that plaintiff could

perform other jobs that exist in significant numbers in the
national economy (R. at 28-29).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 29).
III.

Does substantial evidence support the ALJ’s determination

at step five that plaintiff can perform other work in the
national economy?
At step five, the burden shifts to the Commissioner to show
that the claimant can perform other work that exists in the
national economy.

Nielson, 992 F.2d at 1120; Thompson v.

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

The Commissioner

meets this burden if the decision is supported by substantial
evidence.

Thompson, 987 F.2d at 1487.

Included in his RFC findings, the ALJ found that plaintiff
can perform a range of medium work, and more specifically, can
stand and/or walk for 6 hours in an 8-hour workday (R. at 205

21).

In making this finding, the ALJ adopted the exertional

limitations of Dr. Coleman and Dr. Braverman, who both opined
that plaintiff could stand and/or walk for “about 6 hours in an
8-hour workday” (R. at 88-90, 101-103, 26).2
At the hearing, after being provided with the ALJ’s RFC
findings, including a finding that plaintiff could stand for six
hours out of eight (R. at 59), the vocational expert (VE)
testified that plaintiff could perform the jobs of hand
packager, linen room attendant and a dining room attendant (R.
at 60).

Based on this testimony, the ALJ concluded that

plaintiff could perform other work that exists in significant
numbers in the national economy (R. at 28-29).
During the hearing, the VE was asked by plaintiff’s counsel
about the above 3 jobs identified:
Q (by attorney): On these three medium
positions, are these positions where they
are either standing or walking the full
eight hours, or is there so roughly 2 hours
w[h]ere they can sit?
A (by VE): The linen remittance3 does have
opportunities to sitting. The other two
jobs are standing and walking [INAUDIBLE].
Q: When you say the living room attendant4
would have some time for sitting, how much
time, typically?
2

According to Social Security Ruling 83-10, a full range of medium work requires standing or walking, off and on,
for a total of approximately 6 hours in an 8-hour workday. In most medium jobs, being on one’s feet for most of the
workday is critical. SSR 83-10, 1983 WL 31251 at *6.
3
Presumably, linen remittance is a reference to the linen room attendant position previously identified.
4
Presumably, living room attendant is also a transcription error which was in fact a reference to the linen room
attendant position previously identified.
6

A: That can vary from employer to employer.
I’m not sure if I can break it - bring it
down any further than that other than there
are opportunities for brief positional
change, but it is going to require a lot of
being on the feet.
Q: I guess just clarify, would it be would they have the full two hours?
A: I don’t believe it would be a full two
hours for that job.
(R. at 60-61).
“RFC is not the least an individual can do despite his or
her limitations or restrictions, but the most.”
WL 374184 at *1.

SSR 96-8p, 1996

The ALJ indicated in his decision that

plaintiff can stand and/or walk for “6 hours in an 8-hour
workday” (R. at 21).

At the hearing, the ALJ indicated in the

hypothetical question to the VE that plaintiff could “stand six
hours out of eight” (R. at 59).
The VE identified three jobs, hand packager, linen room
attendant, and dining room attendant, as jobs that plaintiff
could perform given the RFC limitations posed by the ALJ (R. at
59-60).

The ALJ relied on that testimony to find that plaintiff

could perform jobs that exist in significant numbers in the
national economy, and therefore was not disabled (R. at 28-29).
However, at the hearing, the VE testified that the jobs of
hand packager and dining room attendant involve only standing
and walking.

On the other hand, the job of linen room attendant
7

has opportunities for sitting.

When asked how much time the job

of linen room attendant would have for sitting, the VE testified
that he did not believe that it would be the full two hours for
that job (R. at 60-61).
At step five, the burden shifts to the Commissioner to show
that the claimant can perform other work that exists in the
national economy.

The RFC findings of the ALJ is not the least

an individual can do despite his or her limitations or
restrictions, but the most.

According to the ALJ, plaintiff can

stand and/or walk for 6 hours in an 8-hour workday.

However,

the VE clearly testified that the jobs of hand packager and
dining room attendant require standing and walking, and only the
job of linen room attendant has an opportunity for sitting.

The

VE further testified that she did not believe that it would be a
full two hours of sitting for the job of linen room attendant.
Therefore, based on the ALJ’s RFC finding that plaintiff can
only stand and/or walk for 6 hours in an 8-hour workday, the
testimony of the VE that two of the identified jobs require
standing and walking, while the third identified job allows for
sitting for less than 2 hours in an 8-hour workday, and the lack
of any evidence that plaintiff can perform any other jobs in the
national economy, the court finds that substantial evidence does
not support the ALJ’s determination that other jobs exist in

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significant numbers in the national economy that plaintiff can
perform.
Defendant argues that, even accepting plaintiff’s argument
that the ALJ did not sufficiently explain his reliance on the
jobs of hand packager and dining room attendant in light of the
VE’s testimony that these occupations would require near
constant standing and walking, substantial evidence still
supports the ALJ’s reliance on the VE testimony with respect to
the linen room attendant position.

Defendant notes that the VE

testified that the time for sitting on this job would vary from
employer to employer and would probably not entail two full
hours of sitting (Doc. 12 at 5-6).

Both Dr. Coleman and Dr.

Braverman indicated that plaintiff could stand and/or walk for
“about” 6 hours in an 8-hour workday (R. at 88, 101).

A full

range of medium work requires standing and/or walking, off and
on, for a total of “approximately” 6 hours in an 8-hour workday.
SSR 83-10, 1983 WLL 31251 at *6.
First, SSR 96-8p makes clear that the RFC is not the least
an individual can do despite his or her limitations or
restrictions, but the most.

The VE testimony is clear that none

of the three jobs she identified require no more than 6 hours of
standing and/or walking in an 8-hour workday.

There is no

evidence in the record that plaintiff, with all of the

9

limitations set out in the ALJ’s RFC findings, can perform the
three jobs identified by the ALJ, or any other medium work.
Second, even if the court were to find that a reasonable
factfinder could conclude that plaintiff could perform the job
of linen room attendant, which allows for somewhat less than 2
hours for sitting, the VE testimony is that 30,000 such jobs
exist in the national economy.

Defendant argues that this

represents a significant number of jobs in the national economy.
The statute and case law are clear that the Commissioner
must show that the claimant can perform other kinds of work that
exists in significant numbers in the national economy.

See

Raymond v. Astrue, 621 F. 3d 1269, 1274 (10th Cir. 2009).

The

proper focus generally must be on jobs in the national, not
regional, economy.

The Commissioner is not required to show

that job opportunities exist within the local area.
Astrue, 621 F.3d at 1274.

Raymond v.

The question for the court is

whether, on the facts of this case, the ALJ’s error regarding
the number of jobs that plaintiff can perform given the RFC
limitations established by the ALJ constitutes harmless error.
Courts should apply the harmless error analysis cautiously
in the administrative review setting.
431 F.3d 729, 733 (10th Cir. 2005).

Fischer-Ross v. Barnhart,

However, it may be

appropriate to supply a missing dispositive finding under the
rubric of harmless error in the right exceptional circumstance
10

where, based on material the ALJ did at least consider (just not
properly), the court could confidently say that no reasonable
factfinder, following the correct analysis, could have resolved
the factual matter in any other way.

Fischer-Ross, 431 F.3d at

733-734; Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004).
In Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir.
1992), the court refused to draw a bright line establishing the
number of jobs necessary to constitute a “significant number.”
The court set out several factors that go into the proper
evaluation of what constitutes a significant number, including
the level of a claimant’s disability, the reliability of the VE
testimony, the distance claimant is capable of travelling to
engage in the assigned work, the isolated nature of the jobs,
and the types and availability of such work.

Id.

Judicial

line-drawing in this context is inappropriate, and the
determination of a numerical significance entails many factspecific considerations requiring individualized evaluation.
Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004).

The

decision should ultimately be left to the ALJ’s common sense in
weighing the statutory language as applied to a particular
claimant’s factual situation.

Allen, 357 F.3d at 1144; Trimiar,

966 F.2d at 1330.

11

In Trimiar, the court found that the ALJ gave proper
consideration to the factors that go into the evaluation of what
constitutes a significant number, and upheld the ALJ’s decision
that 650-900 jobs in the state of Oklahoma constitutes a
significant number of jobs.

966 F.2d at 1330-1332.

By

contrast, in Allen, the ALJ had found that plaintiff could
perform 3 jobs that exist in significant numbers.

However, the

VE had testified that claimant could only perform 1 of those
jobs (surveillance systems monitor) given the RFC limitations
set forth by the ALJ.

There were only 100 surveillance systems

monitor jobs in the state.

Id. at 1143-1144.

In light of the

ALJ’s failure to consider whether 100 jobs constituted a
significant number in connection with the Trimiar factors, the
court declined to find harmless error, stating that it would be
an improper exercise of judicial factfinding rather than a
proper application of harmless-error principles.

The court held

that it is the ALJ’s primary responsibility to determine what
constitutes a significant number of jobs in light of the various
case-specific considerations outlined in Trimiar.

Allen, 357

F.3d at 1145.
In Stokes v. Astrue, 274 Fed. Appx. 675, 683-684 (10th Cir.
April 18, 2008), the court found that plaintiff could only
perform 2 of the 4 jobs identified by the ALJ.

The court noted

that 11,000 of those 2 jobs existed regionally, and 152,000 of
12

those 2 jobs existed nationally.

The court found that no

reasonable factfinder could have determined that suitable jobs
did not exist in significant numbers in either the region in
which the claimant lived or nationally.
In Chrismon v. Colvin, 531 Fed. Appx. 893, 899-900 (10th
Cir. Aug. 21, 2013), the ALJ had failed to include in his
hypothetical question a limitation to simple, repetitive tasks.
Only 2 of the 4 jobs identified by the VE were consistent with
this limitation.

Regionally, 17,500 of those 2 jobs existed,

and nationally 212,000 of those 2 jobs existed.

On these facts,

the court held that any error in failing include a limitation to
simple, repetitive tasks was harmless error.
In Shockley v. Colvin, 564 Fed. Appx. 935, 940-941 (10th
Cir. April 29, 2014), only 2 of the 4 jobs identified by the VE
and the ALJ were consistent with the claimant’s limitations.
Regionally, 17,000 of those 2 jobs existed, and 215,000 of those
2 jobs existed nationally.

On these facts, the court found that

the inclusion of other jobs by the ALJ was harmless error.

See

also Bainbridge v. Colvin, ___ Fed. Appx. ___, 2015 WL 4081204
(10th Cir. July 7, 2015 at *6)(harmless error when remaining jobs
totaled 20,000 jobs in the state and 500,000 nationally);
Anderson v. Colvin, 514 Fed. Appx. 756, 764 (10th Cir. April 4,
2013)(harmless error when remaining jobs totaled 5,900 in the
state and 650,000 nationally); Johnson v. Barnhart, 402 F.
13

Supp.2d 1280, 1284-1285 (D. Kan. 2005)(the range of remaining
jobs which plaintiff can perform is from 3,040 in the state and
212,000 nationally; court held this was sufficient to show that
work exists in significant numbers).
However, in Chavez v. Barnhart, 126 Fed. Appx. 434, 436-437
(10th Cir. Feb. 3, 2005), the ALJ had found that plaintiff could
perform 3 jobs; however, only 1 job was properly identified as
suitable for the claimant.

The VE testified that there were

49,957 of these jobs nationally, and only 199 in the region.
The court, noting that the number of jobs available in the
region is relatively small, declined the invitation to find
harmless error on the ground that the number of jobs is
significant as a matter of law, and remanded the case for a
determination of whether the number of jobs is sufficient to
qualify as significant.
In Vyskocil v. Astrue, Case No. 11-1135-JWL, 2012 WL
2370200 at *3 (D. Kan. June 22, 2012), the court held that the
ALJ erred by failing to consider the opinion of Dr. Goering, who
had opined that plaintiff was limited to occasional fingering.
With this limitation, only one job would remain available; 450
of those jobs were available in Kansas and 55,000 in the
national economy.

The court noted that the ALJ had not made a

determination of whether this number of jobs constituted a
significant number of jobs.

The court, after citing to Trimiar,
14

Allen, Raymond and Chavez, remanded the case in order for the
ALJ to explain the weight to be accorded to Dr. Goering’s
opinion, and if he accepted the limitation, to determine if
there are a significant number of jobs available in the economy
to a person with such a limitation.
In Brillhart v. Colvin, Case No. 14-1387-JWL, 2015 WL
7017439 at *5 (D. Kan. Nov. 10, 2015), the court held that it
could not hold as a matter of law that the 39,000 jobs remaining
nationally was significant as a matter of law.

The court was

unwilling to find that no reasonable fact-finder could find that
there are not a significant number of jobs available to
plaintiff.

See also Ladenburger v. Colvin, 2017 WL 1352274 at

*2-5 (D. Colo. April 13, 2017)(court held that no case law comes
close to finding that 44,000 jobs is a significant number of
jobs as a matter of law; case remanded for ALJ to make findings
required by Trimiar); Evans v. Colvin, 2014 WL 3860653 at *4-5
(D. Colo. Aug. 6, 2014)(remaining jobs totaled 272 in the region
and 18,000 nationally; court, citing to Chavez, and ALJ’s
failure to discuss Trimiar factors, held that it could not rule
as a matter of law that 18,000 jobs is so significant that no
reasonable factfinder could reach the opposite conclusion; the
court noted that while it would not be surprised if the ALJ
determined that 18,000 jobs is sufficient, that decision is for
the ALJ to make, not the court).
15

In summary, the 10th Circuit has not drawn a bright line
establishing the number of jobs necessary to constitute a
significant number of jobs.

In general, that determination

should be made by the ALJ after considering a number of factors,
and weighing the statutory language as applied to a particular
claimant’s factual situation.

However, in a number of cases,

the 10th Circuit determined that the ALJ committed harmless error
because the court found that when the remaining number of jobs
regionally range from 11,000 to 17,500 and nationally range from
152,000 to 215,000 (Stokes, Chrismon, and Shockley), no
reasonable factfinder could have determined that a suitable
number of jobs do not exist in significant numbers.
On the other hand, in Chavez, the 10th Circuit determined
that when the remaining number of jobs was 199 in the region and
49,957 nationally, the court declined to find harmless error and
remanded the case in order for the ALJ to make a determination
of whether the remaining number of jobs was sufficient to
qualify as a significant number of jobs.

In Vyskocil, Judge

Lungstrum held that when the remaining number of jobs was 450 in
the state and 55,000 in the national economy, the court declined
to find harmless error and remanded the case.

In Brillhart,

Judge Lungstrum held that when the remaining number of jobs was
39,000 in the national economy, the court declined to find
harmless error and remanded the case.
16

In Evans, the court held

that when 18,000 jobs remained nationally, it was for the ALJ to
decide if a significant number of jobs remained; and in
Ladenburger, the court held that when 44,000 jobs remained
nationally, it was for the ALJ to decide if a significant number
of jobs remained..
In the case before the court, the remaining number of jobs
is 30,000 nationally.

Thus, the remaining number of jobs is

lower than in Chavez (49,957), Vyskocil (55,000), Ladenburger
(44,000) and Brillhart (39,000), all cases in which the courts
declined to find harmless error on the grounds that the
remaining number of jobs nationally is significant as a matter
of law, and remanded the case for a determination of whether the
number of jobs is sufficient to qualify as significant.

Based

on the facts of this case, and the guidance provided by the
cases cited above, the court declines to find harmless error on
the ground that the remaining number of jobs is significant as a
matter of law.5
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
5

Defendant cites to the case of Rogers v. Astrue, 312 Fed. Appx. 138, 141-142 (10th Cir. Feb. 17, 2009), which
found that 11,000 sedentary jobs which existed could be relied on by the ALJ as substantial evidence to support her
determination of nondisability. However, the 10th Circuit subsequently noted that the district court below held that
the number in Rogers was stated in dictum and harmless error was not at issue in the case. Evans v. Colvin, 640
Fed. Appx. 731, 735 (10th Cir. Jan. 29, 2016); see Ladenburger, 2017 WL 1352274 at *3 (whether such a number
was significant was clearly not an aspect of the Circuit’s analysis). See also Brillhart, 2015 WL 7017439 at *6
(distinguishing Rogers, noting that the decision was not absolutely clear, and finding that the record evidence will
support an ALJ’s decision is a far cry from weighing the evidence in the first instance and determining whether a
significant number of jobs are available in the economy to meet the needs of a particular situation). It is clear from
Rogers that the court in that case did not address the issue of harmless error. For these reasons, the court declines to
find Rogers persuasive.
17

of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 12th day of June 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

18