Christie v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER. The Commissioner's decision is reversed and remanded. The case is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order. Signed by District Judge John W. Broomes on 5/31/2018. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LORI CHRISTIE,
Plaintiff,
v.

Case No. 17-1079-JWB

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the Commissioner of Social Security
denying plaintiff disability insurance benefits. The matter has been fully briefed by the parties and
the court is prepared to rule. (Docs. 17, 23, 26.) The decision is REVERSED and REMANDED
for the reasons set forth herein.
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 Commissioner's decision will be reviewed to determine only whether the decision
was supported by substantial evidence and whether the Commissioner applied the correct legal
standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more
than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable
mind might accept to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).
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

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the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D.
Kan. 1992). 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 Commissioner has established a five-step sequential evaluation process to determine
disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). 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.” Williams v. Bowen, 844 F.2d 748, 750
(10th Cir. 1988). At step two, the agency will find non-disability unless the claimant shows that
he or she has a severe impairment. 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. Id. at 750-51. If the claimant’s impairment does not meet or equal
a listed impairment, the agency determines the claimant’s residual functional capacity (“RFC”).
20 C.F.R. § 404.1520(e). The 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(f, g). At step four, the agency must determine
whether the claimant can perform previous work. If a claimant shows that she cannot perform the
previous work, 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 the analysis. Blea v. Barnhart,
466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show

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that the claimant can perform other work that exists in the national economy. Id.; 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.
II.

History of Case
On January 15, 2016, the ALJ entered an unfavorable decision on Plaintiff’s petition for

disability benefits. (R. at 13-27.) The ALJ determined at step two that Plaintiff had the following
severe impairments: degenerative disc disease, degenerative joint disease, spondylosis of the
cervical spine, fibromyalgia, anxiety and a thought disorder. (R. at 18.) At step three, the ALJ
determined that Plaintiff’s impairments did not meet or exceed the severity of one of the listed
impairments. (R. at 19.) Specifically, with respect to Plaintiff’s mental health, the ALJ determined
that “with regard to concentration, persistence or pace, the claimant has moderate difficulties. The
claimant can concentrate to perform simple household chores. She can concentrate to drive.” (R.
at 20.) The ALJ specifically stated that the limitations identified in step three are not a residual
functional capacity assessment. The ALJ went on to establish the Plaintiff’s RFC. The RFC sets
out Plaintiff’s physical limitations (to which there is no objection) and then also states that Plaintiff
is “limited to performing unskilled work only.” (R. at 20.)
In evaluating Plaintiff’s RFC, the ALJ considered the evidence from the hearing, the
medical records, and the opinions of the state agency consultants. With respect to Plaintiff’s
testimony, the ALJ determined her testimony was not fully credible but that the impairments
required a reduction of the RFC. (R. at 25.) However, the ALJ did lend some weight to Plaintiff’s
testimony. Notably, the state psychological consultant found that Plaintiff did not have any mental
health impairments and determined that there were no limitations in any of the criteria of the
listings, including difficulties in maintaining concentration, persistence or pace. The ALJ afforded

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the opinion of the psychological consultant “limited weight as evidence submitted at the hearing
level indicates she is more limited than determined by the agency consultants.” (R. at 25.)
Plaintiff’s testimony, that was considered by the ALJ with respect to her mental health, included
the following: “she has ‘fibro fog’;” “her medications make her tired and she does not care about
anything;” “she has memory problems and loses her train of thought;” and “at times, she is afraid
to leave the house.” (R. at 21.) The RFC does not specifically refer to any work limitation related
to Plaintiff’s mental health impairments.
At step five, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform given her age, education, work experience and RFC.
Plaintiff has sufficiently exhausted her administrative remedies prior to filing this action.
III.

Analysis
Plaintiff asserts two errors by the ALJ in this matter. First, Plaintiff contends that the ALJ

erred in failing to provide a detailed RFC assessment as it does not account for Plaintiff’s mental
limitations. Second, Plaintiff argues that there is a conflict between the testimony of the vocational
expert and the Dictionary of Occupational Titles (“DOT”) that was not resolved by the ALJ. The
court will address the arguments in turn.
A. RFC Determination
Plaintiff argues that the ALJ erred by failing to include a detailed assessment regarding
Plaintiff’s mental limitations in his RFC and that the ALJ’s limitation of unskilled work is
insufficient to account for Plaintiff’s mental limitations. The Commissioner responds that the
ALJ’s RFC limitation of unskilled work accounted for Plaintiff’s moderate mental limitations.
At step three, the ALJ determined that Plaintiff was moderately limited in concentration,
persistence and pace. Step three determinations are used to rate the severity of Plaintiff’s mental

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impairments. Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013). The mental RFC assessment,
however, “requires a more detailed assessment by itemizing various functions contained in the
broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the
Listing of Impairments, and summarized on the [Psychiatric Review Technique Form].” Id. While
the ALJ did a detailed assessment regarding the medical evidence, Plaintiff’s testimony and the
state consultants, the ALJ failed to address how Plaintiff’s limitations would affect her “ability to
meet the …mental…requirements of work.” 20 C.F.R. § 416.945. Section 416.945 requires the
ALJ to
first assess the nature and extent of [the claimant’s] mental limitations and restrictions and
then determine [the claimant’s] residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental activities, such as
limitations in understanding, remembering, and carrying out instructions, and in
responding appropriately to supervision, coworkers, and work pressures in a work setting,
may reduce your ability to do past work and other work.
Id.
The Commissioner contends that the ALJ’s limitation of “unskilled work” in the RFC is
sufficient to account for the moderate limitations in concentration, persistence or pace, citing Smith
v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016). In Smith, the ALJ reviewed the medical evidence
and determined that the claimant “could not engage in face-to-face contact with the public and []
could engage in only simple, repetitive, and routine tasks…. Through these findings, the
administrative law judge incorporated the functional limitations of Ms. Smith's moderate
nonexertional impairments.” 821 F.3d at 1269.
Contrary to Smith, however, the ALJ’s decision fails to identify in the analysis how
Plaintiff’s mental limitations impact her ability to do work. Therefore, the Smith opinion does not
support upholding the ALJ’s decision in this matter. Notably, while the ALJ’s RFC includes a
limitation to unskilled work, the ALJ’s decision fails to indicate the reason for determining that
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Plaintiff is limited to unskilled work. Both Plaintiff and the Commissioner assume that the
limitation to unskilled work is to encompass Plaintiff’s moderate mental limitations. However,
the decision is silent as to the reason for the limitation. The court will not assume that the limitation
to unskilled work is to account for Plaintiff’s moderate mental limitations when the record fails to
indicate as such. “[T]he district court may not create post-hoc rationalizations to explain the
Commissioner's treatment of evidence when that treatment is not apparent from the
Commissioner's decision itself.” Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005)
(citations omitted). Moreover, the Court cannot reweigh evidence or make credibility decisions.
Campbell v. Astrue, 525 F. Supp. 2d 1256, 1262 (D. Kan. 2007).
The Commissioner also cites to Vigil v. Colvin, 805 F.3d 1199 (10th Cir. 2015) in support
of the position that an ALJ may restrict a claimant to unskilled work when there is a moderate
limitation in concentration, persistence or pace. The Circuit held that the limitation to unskilled
work in Vigil adequately addressed the claimant’s mental limitations because the ALJ discussed
the mental limitations and the ability to perform work tasks. Specifically, the ALJ
found some evidence indicating that Vigil had some problems with concentration,
persistence, and pace “such that [he] could not be expected to perform complex tasks.”
Admin. R. at 17 (citing findings of impaired delayed recall, inability to spell in reverse, or
recall the President's name). But, the ALJ further found that “the findings of a normal
ability to recall items on immediate recall, and an ability to spell words forward, as well as
finding of normal thought processes, indicate[d] that Vigil retain[ed] enough memory and
concentration to perform at least simple tasks.” Id.
Vigil, 805 F.3d at 1203-04.
In this matter, the ALJ clearly found that Plaintiff had moderate limitations in
concentration, persistence and pace at step three. The ALJ found Plaintiff’s testimony at the
hearing to be credible, although not fully credible. Notably, Plaintiff’s testimony as to her mental
limitations included evidence that “her medications make her tired and she does not care about

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anything,” “she has memory problems and loses her train of thought,” and “at times, she is afraid
to leave the house.” (R. at 21.) The ALJ then made no attempt to explain how this evidence,
which he found somewhat credible, translated into work limitations, if any. Although the state
consultants determined that Plaintiff had no severe mental health limitations, the ALJ rejected that
portion of the opinions based on Plaintiff’s testimony and her prior mental health records. The
ALJ then failed to sufficiently address how Plaintiff’s limitations would affect her “ability to meet
the …mental…requirements of work.” 20 C.F.R. § 416.945.
The Commissioner further contends that the “need for express analysis is weakened” when
the “ALJ does not need to reject or weigh evidence unfavorably.” (Doc. 12 at 6) (citing Howard
v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004).) However, in this matter, the ALJ clearly found
that Plaintiff had mental health limitations as the ALJ rejected the opinions of the state consultants
and found the evidence at the hearing credible. The ALJ, however, failed to address how those
limitations impacted Plaintiff’s ability to work.
The “ALJ was required to express those [mental] impairments ‘in terms of work-related
functions’ or ‘[w]ork-related mental activities.’” Jaramillo v. Colvin, 576 F. App'x 870, 876 (10th
Cir. 2014) (citing SSR 96–8p, 1996 WL 374184, at *6). Although this requirement was raised by
Plaintiff, the Commissioner does not address why this requirement is not applicable in this matter.
The Court recognizes that the Tenth Circuit in Vigil has stated that a limitation to unskilled work
can be sufficient, in some cases, to address moderate limitations to concentration, persistence and
pace. However, as previously discussed, such a determination can only be made when an ALJ has
explained the mental limitations in terms of work related functions and why a limitation to
unskilled work addresses those mental limitations. See Vigil, 805 F.3d at 1203-04; Dettmer v.
Colvin, No. 14-2602-CM, 2016 WL 183513, at *4 (D. Kan. Jan. 14, 2016) (“The ALJ merely

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limited plaintiff to “unskilled, repetitive work.” The court agrees that the ALJ should have been
more specific in his limitations.”)
When an ALJ has not performed the required analysis as set forth in the regulation and
SSR 96-8p, the court cannot determine whether an RFC of unskilled work has sufficiently
accounted for Plaintiff’s moderate mental limitations. See Jaramillo, 576 F. App'x at 877 (citing
Wiederholt v. Barnhart, 121 Fed. Appx. 833, 839 (10th Cir. 2005) (holding that limitation to
“simple, unskilled job tasks” was insufficient to incorporate “moderate difficulties maintaining
concentration, persistence, or pace”)).
Although the ALJ found that Plaintiff had moderate limitations in concentration,
persistence and pace at step three and then found Plaintiff’s testimony and prior medical records
credible in evaluating the RFC, the ALJ failed to address Plaintiff’s mental limitations in terms of
work related functions in the analysis. The RFC’s limitation of unskilled work is not sufficient to
address the limitations as the decision fails to include any discussion regarding the limitations and
the impact on Plaintiff’s ability to perform work related tasks. Therefore, this matter will be
remanded. On remand, the Commissioner is free to reopen the hearing, if necessary. By
remanding this case, the court does not imply that a finding of disability should be the ultimate
outcome in this matter.
B. Conflict with the DOT
Plaintiff contends that the vocational expert’s testimony conflicts with the DOT because
she was limited to occasional overhead reaching and the jobs identified by the vocational expert
require frequent reaching.  “Before an ALJ may rely on expert vocational evidence as substantial
evidence to support a determination of nondisability, the ALJ must ask the expert how his or her
testimony as to the exertional requirement of identified jobs corresponds with the Dictionary of

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Occupational Titles, and elicit a reasonable explanation for any discrepancy on this point.” Hackett
v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005).
In this matter, considering Plaintiff’s RFC, which included a limitation of only occasional
overhead reaching, the vocational expert testified that Plaintiff could perform the jobs of garment
sorter, mail clerk and office helper. (R. at 59.) The ALJ asked the vocational expert if his
testimony was consistent with the information in the DOT. The vocational expert testified that it
was. (R. at 60.) Plaintiff, however, contends that there is a discrepancy as those jobs require
frequent reaching.
In response, the Commissioner argues that there is no apparent conflict between the RFC
and the jobs identified. The Commissioner cites to the Tenth Circuit opinion in Segovia v. Astrue,
226 F. App’x 801 (10th Cir. 2007), in support. In Segovia, the Circuit discussed this issue as
follows:
Both positions [identified by the vocational expert] require “frequent” reaching, see SCO
§§ 09.05.02, 09.05.08; Aplt.App. at 439, 446, while Ms. Segovia is limited to occasional
overhead reaching. For purposes of the SCO, however, “reaching” is defined as
“[e]xtending hand(s) and arm(s) in any direction.” SCO at C–3 (emphasis added). The SCO
does not separately classify overhead reaching. Thus, under the SCO, even a job requiring
frequent reaching does not necessarily require more than occasional overhead reaching.
The VE was aware of Ms. Segovia's limitations on overhead reaching, and he testified both
that she could perform the jobs he identified and that his opinion of the jobs open to her
was consistent with the DOT's specifications. Aplt.App. at 391–92, 395. In these
circumstances, the VE's testimony does not conflict with the DOT and SCO so much as it
clarifies how their broad categorizations apply to this specific case. See Carey v. Apfel,
230 F.3d 131, 146 (5th Cir.2000) (“To the extent that there is any implied or indirect
conflict between the vocational expert's testimony and the DOT in this case, ... the ALJ
may rely upon the vocational expert's testimony provided that the record reflects an
adequate basis for doing so.... [A]ll kinds of implicit conflicts are possible and the
categorical requirements listed in the DOT do not and cannot satisfactorily answer every
such situation.”).
Segovia, 226 F. App'x at 804.

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In her reply brief, Plaintiff fails to respond to the authority cited by the Commissioner. The
positions identified by the vocational expert do not indicate that overhead reaching is frequently
required. DOT No. 222.687-014 (garment sorter), 1991 WL 672131, No. 209.687-026 (mail
clerk), 1991 WL 671813, No. 239.567-010 (office helper), 1991 WL 672232. Rather, the job
descriptions merely state that frequent reaching is required. Therefore, as held in Segovia, there is
no conflict that the vocational expert needed to resolve and the decision on this issue is supported
by substantial evidence. Segovia, 226 F. App'x at 804.
IV.

Conclusion
The Commissioner's decision is reversed and remanded. The case is remanded pursuant to

the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this
Memorandum and Order.
IT IS SO ORDERED this 31st day of May, 2018.
__s/ John W. Broomes______________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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