Sobczak v. Social Security Administration
Filing
28
MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa granting 23 MOTION to Remand or Reverse. (kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JORI ANN SOBCZAK,
Plaintiff,
vs.
Civ. No. 16-968 KK
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 16) filed December 12, 2016, in support of Plaintiff Jori Ann Sobczak’s (“Plaintiff”)
Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying
Plaintiff’s claim for Title II disability insurance benefits and Title XVI supplemental security
income benefits.
On March 20, 2017, Plaintiff filed her Motion to Remand or Reverse
(“Motion”). (Doc. 23.) The Commissioner filed a Response in opposition on May 16, 2017
(Doc. 25), and Plaintiff filed a Reply on June 6, 2017. (Doc. 26.) The Court has jurisdiction to
review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having
meticulously reviewed the entire record and the applicable law and being fully advised in the
premises, the Court finds the Motion is well taken and is GRANTED.
1
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Carolyn Colvin as the Acting
Commissioner of the Social Security Administration. Fed. R. Civ. P. 25(d).
2
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 4, 6, 10.)
I. Background and Procedural Record
Claimant Jori Ann Sobczak (“Ms. Sobczak”) alleges that she became disabled on July 3,
2014, at the age of thirty-seven because of broken back, fibromyalgia, post-traumatic stress
disorder, mood disorder, depression due to chronic pain, and five slipped discs. (Tr. 273, 277.3)
Ms. Sobczak completed the tenth grade, and worked as a gas station/convenience store cashier
and disabled adult and elder adult caretaker. (Tr. 278.)
On July 11, 2014, Ms. Sobczak filed an application for Social Security Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C.
§ 1381 et seq.
(Tr. 218-19.) Ms. Sobczak’s applications were initially denied on December 18,
2014. (Tr. 93, 94, 95-106, 107-118, 147-50, 151-54.) They were denied again at reconsideration
on March 12, 2015. (Tr. 119-31, 132-44, 145, 146, 161-66.) On April 1, 2015, Ms. Sobczak
requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 168-69.) The ALJ
conducted a hearing on January 1, 2016. (Tr. 60-92.) Ms. Sobczak appeared in person at the
hearing with attorney Michelle Baca. (Id.) The ALJ took testimony from Ms. Sobczak (Tr. 6583), and an impartial vocational expert (“VE”), Diane Weber. (Tr. 84-91.) On March 10, 2016,
the ALJ issued an unfavorable decision. (Tr. 39-54.) On July 29, 2016, the Appeals Council
issued its decision denying Ms. Sobczak’s request for review and upholding the ALJ’s final
decision. (Tr. 1-6.) On August 29, 2016, Ms. Sobczak timely filed a Complaint seeking judicial
review of the Commissioner’s final decision. (Doc. 1.)
3
Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 16) that was lodged with the Court on
December 12, 2016.
2
II. Applicable Law
A.
Disability Determination Process
An individual is considered disabled if she is unable “to engage in any substantial gainful
activity by reason of any 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.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1)
At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”4 If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her medical condition.
(2)
At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment(s)
or combination of impairments that is severe and meets the duration
requirement, she is not disabled.
(3)
At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.
(4)
If, however, the claimant’s impairments do not meet or equal in severity
one of the listing described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform her “past relevant
work.” Answering this question involves three phases. Winfrey v. Chater,
92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the
relevant medical and other evidence and determines what is “the most
[claimant] can still do despite [her physical and mental] limitations.” 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
4
Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less, get
paid less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity that
you do for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).
3
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
416.945(a)(3). Second, the ALJ determines the physical and mental
demands of claimant’s past work. Third, the ALJ determines whether,
given claimant’s RFC, the claimant is capable of meeting those demands.
A claimant who is capable of returning to past relevant work is not
disabled.
(5)
If the claimant does not have the RFC to perform her past relevant work,
the Commissioner, at step five, must show that the claimant is able to
perform other work in the national economy, considering the claimant’s
RFC, age, education, and work experience. If the Commissioner is unable
to make that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is
deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has
the initial burden of establishing a disability in the first four steps of this analysis. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden
shifts to the Commissioner at step five to show that the claimant is capable of performing work
in the national economy. Id. A finding that the claimant is disabled or not disabled at any point
in the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health &
Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.
Standard of Review
This Court must affirm the Commissioner’s denial of social security benefits unless
(1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the
proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
4
1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported
by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed
by other evidence in the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an
ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the
ALJ considered all of the evidence,” and “the [ALJ’s] reasons for finding a claimant not
disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996).
III. Analysis
The ALJ made her decision that Ms. Sobczak was not disabled at step five of the
sequential evaluation. Specifically, the ALJ found that Ms. Sobczak met the insured status
requirements through December 31, 2017, had not engaged in substantial gainful activity since
her alleged onset date of July 3, 2014 and had severe impairments of degenerative disc disease,
obesity, fibromyalgia, post-traumatic stress disorder and depression that did not meet or
medically equal the severity of a listing. (Tr. 44-45.) She found that Ms. Sobczak had the
residual functional capacity to perform less than a full range of light work as defined in 20 CFR
404.1567(a) and 416.967(a).
In addition, the claimant can occasionally climb stairs. The claimant should never
climb ladders or scaffolds. The claimant can occasionally balance and stoop. The
claimant should never kneel, crouch or crawl. The claimant can frequently but
not constantly, handle and finger with her right hand, which is her dominant hand.
The claimant is limited to simple, work related decisions, few work place changes
and only occasional and superficial interaction with the public or coworkers.
5
Light work involves lifting up to 10 pounds frequently and 20 pounds
occasionally, with pushing and pulling within the same weight restrictions;
standing or walking for up to 6 hours per day with normal breaks; and sitting 2 to
6 hours per day with normal breaks.
(Tr. 46.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Sobczak
was incapable of performing her past relevant work, but that there were jobs that existed in
significant numbers in the national economy that the claimant could perform. (Tr. 52-54.)
Ms. Sobczak asserts several arguments in support of her Motion as follows: (1) the ALJ
failed to use the correct legal standards in weighing the treating and examining source evidence,
including why she rejected the opinion of the consulting psychologist; (2) the RFC is contrary to
the substantial evidence of record because the ALJ failed to weigh the evidence properly, and
failed to consider Ms. Sobczak’s ability in all areas of functioning; (3) the ALJ failed to properly
assess Ms. Sobczak’s statements regarding the intensity, persistence, and limiting effects of her
symptoms; and (4) the ALJ failed to clarify the inconsistency between the VE testimony and the
DOT information regarding Ms. Sobczak’s limitation to simple work related decisions and the
reasoning three level jobs the VE identified. (Doc. 23 at 6-24.) The Court finds grounds for
remand as discussed below.
A.
RFC Assessment
Ms. Sobczak argues that the ALJ’s RFC is not supported by substantial evidence because
the ALJ failed to weigh the medical evidence properly and failed to consider Ms. Sobczak’s
abilities in all areas of functioning. (Doc. 23 at 13-22.) In particular, Ms. Sobczak asserts that
the ALJ failed to consider functional limitations related to her mental health problems; her neck,
back and hand impairments; her chronic pain; and her obesity. (Id.) Ms. Sobczak also asserts
that the ALJ improperly assessed her statements regarding the intensity, persistence, and limiting
effects of her symptoms. (Id.) Ms. Sobczak further contends that the ALJ failed to provide a
6
narrative discussion describing how the evidence supported her conclusions.
(Id.)
The
Commissioner asserts that the ALJ provided a thorough summary and reasonable analysis of the
record that supports the ALJ’s RFC. (Doc. 25 at 12-17.)
Assessing a claimant’s residual functional capacity is an administrative determination left
solely to the Commissioner. 20 C.F.R. §§ 404.1546(c) and 416.946(c) (“If your case is at the
administrative law judge hearing level or at the Appeals Council review level, the administrative
law judge or the administrative appeals judge at the Appeals Council . . . is responsible for
assessing your residual functional capacity.”); see also SSR 96-5p, 1996 WL 374183, at *2
(stating that some issues are administrative findings, such as an individual’s RFC). In assessing
a claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s medically
determinable impairments, and review all of the evidence in the record. Wells v. Colvin, 727
F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. §§ 404.1545(a)(2) and (3) and 416.945(a)(2) and
(3). The ALJ must consider and address medical source opinions and must always give good
reasons for the weight accorded to a treating physician’s opinion. 20 C.F.R. §§ 404.1527(c)(2)
and 416.927(c)(2)5; SSR 96-8p, 1996 WL 374184, at *7. If the RFC assessment conflicts with
an opinion from a medical source, the ALJ must explain why the opinion was not adopted. SSR
96-8p, 1996 WL 374184 at *7. Most importantly, the ALJ’s “RFC assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts . . . and nonmedical evidence.” Wells, 727 F.3d at 1065 (quoting SSR 96-8p, 1996
WL 374184, at *7). The ALJ must explain how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved. SSR 96-8p, 1996 WL 374184, at
5
For all claims filed on or after March 27, 2017, 20 C.F.R. §§ 404.1527 and 416.927 are rescinded and replaced
with 20 C.F.R. §§ 404.1520c and 416.920c. 82 Fed. Reg. 5844, 5869. Further, the Social Security Administration
rescinded SSR 96-2p effective March 27, 2017, to the extent it is inconsistent with or duplicative of final rules
related to Giving Controlling Weight to Treating Source Medical Opinions found in 20 C.F.R. §§ 404.1527 and
416.927. 82 Fed. Reg. 5844, 5845.
7
*7. When the ALJ fails to provide a narrative discussion describing how the evidence supports
each conclusion, citing to specific medical facts and nonmedical evidence, the court will
conclude that her RFC conclusions are not supported by substantial evidence. See Southard v.
Barnhart, 72 F. App’x 781, 784-85 (10th Cir. 2003). The ALJ’s decision must be sufficiently
articulated so that it is capable of meaningful review; the ALJ is charged with carefully
considering all of the relevant evidence and linking her findings to specific evidence. See Spicer
v. Barnhart, 64 F. App’x 173, 177-78 (10th Cir. 2003) (unpublished). It is insufficient for the
ALJ to only generally discuss the evidence, but fail to relate that evidence to her conclusions.
Cruse v. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th Cir. 1995).
Here, the ALJ summarized certain of Ms. Sobczak’s medical evidence, but failed to
include a narrative discussion describing how the evidence supported her RFC assessment. The
ALJ must explain how she reaches her decision. When an ALJ merely summarizes the facts,
notes that she has considered all of the facts, and then announces her decision, there is nothing
for the court to review. In other words, the Court is unable to determine how the ALJ analyzed
the evidence.
See SSR 96-8p, 1996 WL 374184, at 7 (providing narrative discussion
requirements). When the evidence is contradictory or ambiguous, as it is in most cases, the
Court cannot know which evidence was given what weight, or how the ambiguities were
resolved. Therefore, to determine whether substantial evidence supports the conclusion, the
Court would have to reweigh the evidence, which is precluded by law. See Lax v. Astrue, 489
F.3d 1080, 1084 (the Court will not reweigh the evidence of substitute its judgment for the
Commissioner’s). In Howard v. Barnhart, 379 F.3d 945, 947-48 (10th Cir. 2004), the Tenth
Circuit stated that the lack of analysis accompanying the ALJ’s RFC determination was troubling
and noted that it had previously urged ALJs to include reasoning in their decision to make
8
appellate review not only possible but meaningful. Id. at 947. In that case, the Court went on to
find however, that none of the medical evidence conflicted with the ALJ’s conclusion that the
claimant could perform light work and concluded that when the ALJ does not need to reject or
weigh evidence unfavorably in order to determine a claimant’s RFC, the need for express
analysis is weakened. Id. That is not the case here. Here, the ALJ’s summary of the medical
evidence is incomplete and the ALJ excluded evidence that is at odds with the RFC she assessed.
See Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996) (an ALJ, in addition to
discussing the evidence supporting her decision, must also discuss the uncontroverted evidence
she chooses not to rely upon, as well as significantly probably evidence she rejects).
1.
Degenerative Disc Disease and Fibromyalgia
The ALJ summarized certain of Ms. Sobczak’s medical source notes related to her
degenerative disc disease and fibromyalgia, improperly emphasizing the parts that were
favorable to a finding of nondisability while ignoring other probative evidence. See Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“[a]n ALJ is not entitled to pick and choose
through an uncontradicted medical onion, taking only the parts that are favorable to a finding of
nondisability.”).6 For example, the ALJ noted that on July 22, 2013, Ms. Sobczak reported to
PA-C Heather Dountas of ABQ Health Partners that aquatic therapy was really helping her and
that her pain was well managed with Hydrocodone, Gabapentin and Ibuprofen, but failed to
include that Ms. Sobczak nonetheless complained of joint, muscle and back pain, and was
“slightly stiff to get out of chair or ambulate unassisted.” (Tr. 383-84.) The ALJ noted that on
September 23, 2013, PA-C Dountas indicated Ms. Sobczak had done remarkably better after
completing seven aquatic therapy sessions, but failed to include that Ms. Sobczak complained of
6
The medical evidence record does not contain, nor does the ALJ point to, any evidence that contradicts
Ms. Sobczak’s diagnoses of degenerative disc disease and fibromyalgia.
9
joint, muscle and back pain, had to alternate between sitting and standing during the visit to
make herself comfortable, and had problems lifting her young daughter. (Tr. 397-97.) The ALJ
noted that on October 23, 2013, DO Clare Castiglia of ABQ Health Partners indicated “normal
gait” on physical exam, but failed to include that Ms. Sobczak complained of limb, muscle, and
back pain, neurologic numbness down her left leg, and reported that her physical impairments
impeded her ability to exercise and/or lose weight. (Tr. 403-04.) The ALJ noted that on
December 19, 2013, PA-C Dountas indicated that Ms. Sobczak’s degenerative intervertebral disc
disease, lumbar stenosis, lumbar radiculopathy, fibromyalgia, and right foot pain were stable, but
failed to include that Ms. Sobczak complained of joint, neck, muscle and back pain.7 (Tr. 411.)
The ALJ’s summary also completely omitted all of Ms. Sobczak’s ABQ Health Partner
medical source8 records from 2014 that demonstrated Ms. Sobczak’s persistent complaints of
joint, muscle, neck and back pain, noted her need to stand throughout entire appointments due to
pain, and on at least one occasion indicated that she had limited active and passive range of
motion. (Tr. 464-66, 417, 423, 474, 521-22, 535-36.) The medical evidence that the ALJ
ignored or failed to include in her summary conflicts with the ALJ’s conclusions regarding
Ms. Sobczak’s ability to do work related physical activities.
2.
Morbid Obesity
The ALJ’s medical summary included references to medical source diagnoses of
Ms. Sobczak’s morbid obesity,9 but the ALJ failed to discuss how she considered Ms. Sobczak’s
7
The ALJ also failed to define what stable looks like for Ms. Sobczak. See Robinson v. Barnhart, 366 F.3d 1078,
1083 (10th Cir. 2004) (finding that references to claimant being “stable” on medication may have simply meant
claimant was not suicidal).
8
Tej Bhavsar, M.D. and Heather Dountas, PA-C. (Tr. 464-66, 417, 423, 474, 521-22, 535-36.)
9
On July 22, 2013, Heather Dountas, PA-C, noted Ms. Sobczak was morbidly obese and that she was to have
weight loss surgery, but that did not occur. (Tr. 49, 378, 382.) On July 29, 2013, Gerhard Nyase, M.D., indicated
on physical exam that Ms. Sobczak was obese. (Tr. 49, 389.) In October 2012, Heather Dountas, PA-C, noted that
10
morbid obesity in the RFC assessment.10 Social Security Ruling 02-1p provides guidance and
instructions on how an ALJ must consider obesity in the RFC assessment. See SSR 02-1p, 2002
WL 34686281. “When we identify obesity as a medically determinable impairment . . . , we will
consider any functional limitations resulting from the obesity in the RFC assessment, in addition
to any limitations resulting from any other physical or mental impairments that we identify.” Id.
at *7. The Social Security Ruling instructs that
[o]besity can cause limitation of function. The functions likely to be limited
depend on many factors, including where the excess weight is carried. An
individual may have limitations in any of the exertional functions such as sitting,
standing, walking, lifting, carrying, pushing, and pulling. It may also affect
ability to do postural functions, such as climbing, balance, stooping, and
crouching. The ability to manipulate may be affected by the presence of adipose
(fatty) tissue in the hands and fingers. The ability to tolerate extreme heat,
humidity, or hazards may also be affected.
The effects of obesity may not be obvious. For example, some people with
obesity also have sleep apnea. This can lead to drowsiness and lack of mental
clarity during the day. Obesity may also affect an individual’s social functioning.
An assessment should also be made of the effect obesity has upon the individual’s
ability to perform routine movement and necessary physical activity within the
work environment. Individuals with obesity may have problems with the ability
to sustain a function over time. As explained in SSR 96-8p . . . , our RFC
assessments must consider an individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing
basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week,
or an equivalent work schedule. In cases involving obesity, fatigue may affect the
individual’s physical and mental ability to sustain work activity. This may be
particularly true in cases involving sleep apnea.
Ms. Sobczak had a consultation for weight loss surgery, but had not had her endoscopy in follow up. (Tr. 49, 402.)
In July 2015, Dr. Ronald Sautter advised Ms. Sobczak that weight loss would significantly improve or eliminate her
pain. (Tr. 51, 633.)
10
The record is replete with references to Ms. Sobczak’s morbid obesity and its impact of her ability to function.
(See e.g., Tr. 663 (“Jori has continually put on weight as a result of her pain that worsens her ability to function”);
Tr. 398 (“Unfortunately, I do not think her [pain] symptoms will improve, unless she has significant weight loss.”);
Tr. 414 (Morbid Obesity – Worse); Tr. 422 (“Pt. has difficult time working in a physically demanding occupation
because of her chronic pain issues, back and muscular pain issues and weight. . . . She is still continuing to struggle
with her weight.”); Tr. 376, 383, 396, 403, 411, 417, 441, 465, 473, 522, 528, 535, 597 (BMI over 40).)
11
The combined effects of obesity with other impairments may be greater than
might be expected without obesity. For example, someone with obesity and
arthritis affecting a weight-bearing joint may have more pain and limitation than
might be expected from the arthritis alone.
...
As with any other impairment, we will explain how we reached our conclusions
on whether obesity caused any physical or mental limitations.
SSR 02-1p, 2002 WL 34686281, at *6-7. The ruling further explains that “[o]besity is a lifelong disease” and that “most treatments for obesity do not have a high rate of success.” Id. at *89. The ruling also discusses that behavior modification is the usual treatment for levels I and II
obesity (BMI 30.0-39.9), but when obesity has reached level III (BMI of 40 or great), physicians
generally recommend surgery. Id. at 8. Here, the record supports that Ms. Sobczak had a BMI
over 40 and was encouraged to pursue bariatric surgery.11 (See fn. 5, supra; Tr. 378, 382, 398,
417, 419, 516, 530.) PA-C Dountas also recommended Ms. Sobczak have a sleep study given
her morbid obesity. (Tr. 419.) The ALJ determined at step two that Ms. Sobczak had a
medically determinable severe impairment of obesity. (Tr. 44.) The ALJ also determined that
she had, inter alia, severe impairments of degenerative disc disease and fibromyalgia. (Id.) As
such, she was required to consider any functional limitations resulting from Ms. Sobczak’s
obesity, and the combined effect of her obesity with her other impairments. SSR 02-1p, 2002
WL 34686281, at *6-7.
The ALJ’s RFC determination is silent regarding any of these
considerations.
11
On December 19, 2013, Ms. Sobczak informed Heather Dountas, PA-C, that she had put bariatric surgery on hold
because she was having difficulty finding placement for her daughter to be cared for while she goes out and does
endoscopy at Sandoval Regional Medical Center and complying with what was required prior to surgery. (Tr. 410.)
On December 10, 2014, Ms. Sobczak informed Heather Dountas, PA-C, that she was “waiting for bariatric surgery
at a point so that she can manage this with her family responsibilities.” (Tr. 530.)
12
3.
Hand Pain
The ALJ also excluded probative evidence related to Ms. Sobczak’s complaints of hand
pain. The ALJ stated in her determination that the record was devoid of any diagnosis regarding
significant limitations in handling or reaching. (Tr. 48.) Then, as part of her medical summary,
the ALJ listed Dr. Ronald Sautter’s March 27, 2015, record in in which he assessed Ms. Sobczak
with Raynaud’s disease12 and stated that Ms. Sobczak complained of only right hand pain.
(Tr. 50.)
The ALJ’s summary, however, failed to include that Ms. Sobczak presented to
Dr. Sautter of ABQ Health Partners on February 20, 2015, with complaints of, inter alia,
worsening pain and numbness and weakness in her hands bilaterally. (Tr. 596.) On March 27,
2015, Ms. Sobczak followed up with Dr. Sautter and reported she had increased pain in her
hands, particularly in the right hand, and that they were turning colors, such as blue and then red
and white. (Tr. 589.) On physical exam, Dr. Sautter noted bluish discoloration throughout the
[right] hand, particularly the fingers, which changed to more of a red color during the
examination. (Tr. 590.) Dr. Sautter diagnosed Raynaud’s disease. (Tr. 585.) On April 10,
2015, Ms. Sobczak saw Allison Richards, M.D., of ABQ Health Partners, and complained of
right hand pain for about a year with more consistent swelling, and numbness primarily
involving the right index finger and thumb. (Tr. 615.) Dr. Richards’ impression was “episodes
of swelling and rash formation about the right thumb MCP joint and second and third MCP joints
that occurs 3-4 times per week.” (Tr. 610.) Thus, the medical evidence related to Ms. Sobczak’s
12
Raynaud's disease causes some areas of your body — such as your fingers and toes — to feel numb and cold in
response to cold temperatures or stress. In Raynaud's disease, smaller arteries that supply blood to your skin narrow,
limiting blood circulation to affected areas (vasospasm). https://www.mayoclinic.org/diseases-conditions/raynaudsdisease/symptoms-causes/syc-20363571.
13
hand pain and diagnoses conflicts with the ALJ’s conclusions regarding Ms. Sobczak’s ability to
do work related physical activities.
For the foregoing reasons, the ALJ failed to provide a narrative discussion describing
how the evidence supported her conclusions. The Court, therefore, finds that the ALJ’s RFC is
not supported by substantial evidence. See Southard v. Barnhart, 72 F. App’x 781, 784-85 (10th
Cir. 2003).
B.
The ALJ Failed to Resolve the Conflict Between the VE’s Testimony
and the Job Descriptions in the DOT
Ms. Sobczak argues that the ALJ’s step five findings are not supported by substantial
evidence because, inter alia, the ALJ failed to resolve the conflict between the VE’s testimony
and the job descriptions in the DOT. (Doc. 23 at 22-24.) Ms. Sobczak explains that the jobs the
VE identified based on the ALJ’s hypothetical require reasoning levels that are incompatible
with the ALJ’s mental RFC limiting her to simple, work-related decisions. (Id.) As such,
Ms. Sobczak asserts there was an apparent conflict between the VE’s testimony and the DOT
that the ALJ had a duty to resolve. (Id.) The Commissioner contends that Ms. Sobczak’s
argument fails because “simple, work related decisions” relates to the specific vocational
preparation (SVP)13 rating in the DOT that describes the skill level required for a particular job,
and that all three jobs the VE identified were unskilled. (Doc. 25 at 19-23.) The Commissioner
explains that the reasoning level is part of the General Education Development (GED)
framework and reflects the educational level necessary for satisfactory job performance and not
the mental or skill requirements of the job. (Id.) In the alternative, the Commissioner argues that
13
“Specific Vocational Preparation is defined as the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average performance in a specific jobworker situation.” Dictionary of Occupational Titles – Appendix C – Components of the Definition Trailer, 1991
WL 688702 (2008).
14
any conflict between the VE’s testimony and the ALJ’s RFC limitation to “simple, work related
decisions,” was harmless error because the VE identified one job with level two reasoning which
is not inconsistent with a limitation to simple work. (Id.)
At step five, the burden shifts to the Commissioner to show that the claimant can perform
other work that exists in the national economy. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial
evidence. Id. The Tenth Circuit has held that “an ALJ must investigate and elicit a reasonable
explanation for any conflict between the Dictionary and expert testimony before the ALJ may
rely on the expert testimony as substantial evidence to support a determination of nondisability.”
Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). After the Tenth Circuit’s holding in
Haddock, the Social Security Administration promulgated Social Security Ruling 00-4p and
further clarified the ALJ’s affirmative responsibility to ask about conflicts. SSR 00-4p instructs
that
[w]hen vocational evidence provided by a VE or VS is not consistent with
information in the DOT, the [ALJ] must resolve this conflict before relying on the
VE or VS evidence to support a determination or decision that the individual is or
is not disabled. The [ALJ] will explain in the determination or decision how he or
she resolved the conflict. The [ALJ] must explain the resolution of the conflict
irrespective of how the conflict was identified.
SSR 00-4p, 2000 WL 1898704, at *4. In Hackett v. Barnhart, 395 F.3d 1168 (10th Cir. 2005),
the Tenth Circuit agreed with the claimant that there was an apparent conflict between a
claimant’s inability to perform more than simple and repetitive tasks and the level-three
reasoning required by the jobs identified. Hackett, 395 F.3d at 1176. The Court there remanded
to allow the ALJ to address the conflict. Id.
The Commissioner argues that Hackett does not apply here because it did not consider
whether the apparent conflict at issue could be explained by the fact that GED describes a job
15
performer’s educational background rather than the job’s mental or physical requirements. (Doc.
25 at 21-23.)
The Court does not agree. The SVP level measures the skill level necessary to
perform a particular job; however, a claimant’s skill level is not the only factor an ALJ considers
in determining whether there are jobs available in significant numbers in the national economy
that a claimant can do. 20 C.F.R. §§ 404.1560(c)(1) and 416.960(c)(1) (Commissioner considers
RFC and vocational factors of age, education, and work experience to decide whether claimant
can adjust to work). Thus, even acknowledging that the GED ratings generally correspond to a
person’s level of formal and informal education that makes them suitable for a job, Anderson v.
Colvin, 514 F. App’x 756, 764 (10th Cir. 2013) (unpublished), a claimant’s education is one
vocational factor that bears on the ALJ’s ultimate determination of whether a claimant can adjust
to other work at step five. See 20 C.F.R. §§ 404.1564(b)(2) and (5) and 416.964(b)(2) and (5)
(defining limited education as a vocational factor). Moreover, the Court is not persuaded that
merely identifying jobs that are unskilled neutralizes or supplants the reasoning level conflict as
the Commissioner argues. See McHerrin v. Astrue, 2010 WL 3516433, at *6, 156 Soc. Sec. Rep.
Serv. 598 (E.D. Pa., Aug. 31, 2010) (explaining that a number of courts have found the DOT’s
reasoning levels are much more indicative of whether a claimant is capable of performing more
than simple, repetitive tasks) (internal citations omitted)); see also Chapo v. Astrue, 682 F.3d
1285, 1290, at n. 3 (10th Cir. 2012) (“[w]hile the jobs cited by the VE happen to be unskilled,
that just accounted for issues of skill transfer, not impairment of mental functions – which ‘are
not skills, but, rather, general prerequisites for most work at any skill level’” (quoting Wayland v.
Chater, 76 F.3d 394 (10th Cir. 1996) (unpublished))); see also Craft v. Astrue, 539 F.3d 668,
677-78 (7th Cir. 2008) (holding that a limitation to unskilled work did not account for several
effects of mental impairment); Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997) (explaining that
16
many unskilled jobs require more than the mental capacity to follow simple instructions);
Cooper v. Barnhart, 2004 WL 2381515, *4 (N.D. Ola. Oct. 15, 2004) (finding that a limitation to
simple tasks appears more squarely addressed by a job’s reasoning level, than to its SVP level,
which focuses on vocational preparedness necessary to perform the job); SSR 85-15, 1985 WL
56867, at *6 (“Because response to the demands of work is highly individualized, the skill level
of a position is not necessarily related to the demands of the job. A claimant’s condition may
make performance of an unskilled job as difficult as an objectively more demanding job.”). For
these reasons, the Court declines to adopt the Commissioner’s position that the GED reasoning
levels can be disregarded when addressing the mental demands of jobs listed in the DOT and that
identifying unskilled jobs eliminates any conflicts and accommodates a claimant’s limitation to
do simple work. As such, the ALJ erred in failing to resolve the conflict between the VE’s
testimony and the job descriptions in the DOT.
The question then is whether the Commissioner has carried her burden at step five and
demonstrated that work exists in significant numbers in the national economy that Ms. Sobczak
can perform given that the VE identified only one job suitable to Ms. Sobczak’s mental
limitations. See Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (finding that excusing
the ALJ’s failure to assess whether a significant number of jobs existed from one properly
identified job would be an improper exercise in judicial factfinding rather than a proper
application of harmless-error principles)14; see also Chavez v. Barnhart, 126 F. App’x 434, 43637 (10th Cir. 2005) (unpublished) (declining Commissioner’s invitation to find harmless error on
the ground that the number of jobs was significant as a matter of law and remanding because
ALJ did not have an opportunity to evaluate whether the one properly identified job, standing
14
In Allen v. Barnhart, at issue was whether one hundred surveillance jobs statewide constituted a significant
number under the statute. 357 F.3d 1140, 1144 (10th Cir. 2004).
17
alone, existed in significant numbers).15 The Court is remanding this case because the ALJ’s
RFC is not supported by substantial evidence, and thus declines to resolve this question.
C.
Remaining Issues
The Court will not address Ms. Sobczak’s remaining claims of error because they may be
affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).
IV. Conclusion
For the reasons stated above, Ms. Sobczak’s Motion to Reverse and Remand for
Rehearing (Doc. 23) is GRANTED.
_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent
15
In Chavez v. Barnhart, 126 F. App’x 434, 437-37 (10th Cir. 2005) (unpublished), at issue was whether 49,957 jobs
nationally and 199 jobs in the region constituted a significant number of jobs under the statute.
18
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