Janis v. Social Security Administration
Filing
19
OPINION AND ORDER by Magistrate Judge Frank H McCarthy reversing and remanding (FHM1, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
BELVA M. JANIS,
Plaintiff,
vs.
Case No. 11-CV-526-FHM
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Belva M. Janis, seeks judicial review of a decision of the Commissioner of
the Social Security Administration denying Social Security disability benefits.1
In
accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the record as a whole contains substantial
evidence to support the decision and whether the correct legal standards were applied.
See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v.
Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs.,
26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept
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Plaintiff's February 8, 2007, application for disability benefits was denied initially and on
reconsideration. A hearing before Adm inistrative Law Judge ("ALJ") Deborah L. Rose was held July 7, 2009.
By decision dated October 28, 2009, the ALJ entered the findings that are the subject of this appeal. The
Appeals Council denied Plaintiff’s request for review on July 27, 2011. The decision of the Appeals Council
represents the Com m issioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment
for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d
799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. Hamilton v.
Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 48 years old on the date of her application for Supplemental Security
Income and 51 on the date of the ALJ’s decision. She completed the ninth grade and
formerly worked as a housekeeper. She claims to have been unable to work since April
1, 2005 as a result of hypertension, diabetes, obesity, chronic obstructive pulmonary
disorder, mental problems, and a sun allergy.
The ALJ’s Decision
The ALJ determined that Plaintiff retains the residual functional capacity (RFC) to
perform less than the full range of light work. She can lift/carry 20 pounds occasionally or
10 pounds frequently. During an 8-hour workday, she can stand and/or walk for 6 hours
a day and she can sit for 6 hours daily. She can have occasional interaction with the public
and can tolerate incidental contact with coworkers and supervisors that is not dependent
on job performance. She is restricted to simple unskilled tasks. [R. 17]. The ALJ found
that Plaintiff can perform her past relevant work as a housekeeper with these limitations.
[R. 20]. In addition, based on the testimony of a vocational expert, the ALJ found that there
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are a significant number of jobs in the national economy that Plaintiff could perform with
these limitations. The case was thus decided at step four of the five-step evaluative
sequence with an alternate step five finding. See Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ erroneously rejected the opinions of the state agency
doctors who reviewed her medical record and that the RFC finding was not based on
substantial evidence.
Analysis
The record contains a Physical Residual Functional Capacity Assessment form
completed by Dr. K.A. Jenson, a physician who reviewed Plaintiff’s medical records and
rendered an opinion about her RFC for the state Disability Determination Service (DDS).
[R. 254-261]. In the denial decision, the ALJ stated that her RFC finding “is supported by
the Disability Determination Service’s Physical Residual Functional Capacity Assessment
(Exhibit 13F).” [R. 20]. The DDS form contains postural limitations, [R. 256], and
environmental limitations, [R. 258], which were not included in the ALJ’s RFC finding. The
ALJ’s decision contains no discussion about why those limitations were not included in the
RFC.
Plaintiff argues that the decision should be reversed because the ALJ failed to
include the DDS environmental restrictions.2 Plaintiff also asserts that the case should be
2
Plaintiff m akes no argum ent concerning the postural restrictions.
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remanded for an immediate award of benefits because the vocational expert testified that
the environmental restrictions would preclude competitive employment.
The court finds that the ALJ was required to address the environmental restrictions
contained in the DDS form. In Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)
the Court stated that the ALJ is not required to discuss every piece of evidence, but “in
addition to discussing the evidence supporting [the] decision, the ALJ also must discuss
the uncontroverted evidence [s]he chooses not to rely upon as well as significantly
probative evidence [s]he rejects.” That Plaintiff may have some environmental restrictions
related to the chronic obstructive pulmonary disease the ALJ found was a severe
impairment at step 2 is supported by the RFC assessment in Exhibit 13F cited by the ALJ
and by another such form completed at an earlier date. [R. 227]. The environmental
restrictions are significantly probative evidence that the ALJ apparently rejected without
discussion. The case must therefore be remanded for the ALJ to consider and discuss the
environmental restrictions.
The court declines to remand the case for an immediate award of benefits. Contrary
to Plaintiff’s assertions, it does not appear from the record that additional fact finding would
serve no useful purpose.
See Dollar v. Bowen, 821 F.2d 530, 534 (10th Cir.
1987)(discussing when remand for benefits is appropriate). The vocational expert’s
testimony that the restriction to exposure to fumes, odors, dust, gasses, and poor
ventilation would preclude employment was not absolute. Whether employment was
precluded depended on the precise definition of the terms used in the RFC form. [R. 390391]. The vocational expert testified that it was a “very fine line” between whether
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employment would be precluded, or not. Id. Under these circumstances further fact
finding would be useful.
The court also declines to adopt the Commissioner’s suggestion that a harmless
error analysis be applied to the case based on the job descriptions in the Dictionary of
Occupational Titles for the jobs identified by the vocational expert. In view of the vocational
expert’s testimony about the availability of jobs when environmental restriction are added
to the RFC, this is not a case where a mere technical error was made which is so minor
that confidence in the determination of the case is not undermined. Further, evaluation of
the significance of the vocational expert’s testimony is an essential function committed in
the first instance to the administrative process. See Allen v. Barnhart, 357 F.3d 1140,
1145 (10th Cir.2004)(discussing the appropriate application of harmless error in Social
Security disability appeals).
Conclusion
The ALJ’s denial decision is REVERSED and the case is REMANDED for further
proceedings.
SO ORDERED this 7th day of September, 2012.
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