Anderson v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge T Lane Wilson reversing and, remanding case (terminates case) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MICHAEL J. ANDERSON,
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Plaintiff,
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vs.
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CAROLYN W. COLVIN,1
Acting Commissioner of Social Security, )
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Defendant.
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Case No. 12-cv-366-TLW
OPINION AND ORDER
Plaintiff Michael J. Anderson seeks judicial review of the decision of the Commissioner
of the Social Security Administration denying his claim for social security disability benefits
under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), and 423. In accordance
with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States
Magistrate Judge. (Dkt. # 29). Any appeal of this decision will be directly to the Tenth Circuit
Court of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
Court’s review is based on the record, and the Court will “meticulously examine the record as a
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Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, Acting
Commissioner of Social Security, is substituted as the defendant in this action. No further action
need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act. 42 U.S.C. § 405(g).
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a 34-year old male, applied for Title II benefits on June 3, 2009. (R.11213). Plaintiff alleged a disability onset date of January 1, 1997. Id. Plaintiff claimed that he was
unable to work due to a number of mental impairments, including panic attacks, social anxiety
disorder, and depression. (R. 126). Plaintiff’s claim for benefits was denied initially on
December 8, 2009, and on reconsideration on March 1, 2010. (R. 65-66). Plaintiff then requested
a hearing before an administrative law judge (“ALJ”). (R.78). The ALJ held the hearing on
December 16, 2010. (R. 23-64). The ALJ issued a decision on April 22, 2011, denying benefits
and finding plaintiff not disabled because he was able to perform his past relevant work as a
kitchen helper and janitor. (R. 6-22). The Appeals Council denied review, and plaintiff appealed.
(R. 1-5).
The ALJ’s Decision
The ALJ found that plaintiff had not performed any substantial gainful activity between
his alleged disability onset date of January 1, 1997, through his last insured date of March 31,
2010. (R. 11). The ALJ found that plaintiff had the severe impairment of anxiety disorder. Id.
Plaintiff’s other impairments were either non-severe or not medically determinable. (R. 11-12).
Under the “paragraph B” criteria, plaintiff had mild restrictions in activities of daily living;
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moderate difficulties with social functioning and concentration, persistence, and pace; and no
episodes of decompensation. (R. 12-13). Plaintiff’s impairments did not meet or medically equal
a listed impairment. (R. 12).
After reviewing plaintiff’s testimony, the medical evidence, and other evidence in the
record, the ALJ concluded that plaintiff could perform work at all exertional levels with the
following limitations: to “perform simple tasks in a habituated work setting with superficial
contact with co-workers, preferably in small groups rather than large groups, and no public
contact.” (R. 14). The ALJ then found that plaintiff’s residual functional capacity permitted him
to return to his past relevant work as a janitor or a kitchen helper, both unskilled medium jobs
with an SVP of 2. (R. 18). Accordingly, the ALJ found at step four that plaintiff was not
disabled.2 Id.
ANALYSIS
On appeal, plaintiff raises a number of issues. First, plaintiff argues that the ALJ failed to
properly address the mental demands of plaintiff’s past relevant work under Winfrey v. Chater,
92 F.3d 1017 (10th Cir. 1996). (Dkt. # 13). Next, plaintiff argues that the ALJ failed to make a
proper determination that plaintiff could return to his past relevant work because the evidence
did not establish that plaintiff engaged in substantial gainful employment. Id. Plaintiff then
contends that the ALJ’s hypothetical to the vocational expert during the hearing, not addressed in
the decision, failed to match the residual functional capacity findings at step four. Id. Plaintiff
also contends that the ALJ did not properly weigh the medical source opinions, including the
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The ALJ took testimony from a vocational expert about other work plaintiff could perform, and
the vocational expert testified that plaintiff could perform a number of medium and light work
jobs, including hand packer, dishwasher, and bench assembler. (R. 56). In the Court’s
experience, in cases where an ALJ determines that a claimant can return to past relevant work,
the ALJ usually includes an alternative step five analysis. In this case, however, the ALJ did not
include this step five evidence in his decision.
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letter from the social worker finding plaintiff disabled, the consultative examining psychologist’s
opinion, and the agency physician’s opinion. (Dkt. # 13) Finally, plaintiff contends that the ALJ
did not perform a proper credibility assessment.
The Court finds no error in the ALJ’s decision that warrants reversal, except that the ALJ
erred in finding that plaintiff could return to his past relevant work because the evidence does not
support a finding that plaintiff ever engaged in substantial gainful activity. The regulations define
“past relevant work” as “work that you have done within the past 15 years that was substantial
gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. §
404.1560(b)(1). The regulations also provide a formula for establishing “substantial gainful
activity.” See 20 C.F.R. § 404.1574. In this case, the ALJ found at step two that plaintiff had not
performed any substantial gainful activity since January 1, 1997. (R. 11). The ALJ then found at
step four that plaintiff could return to his past relevant work as a janitor and kitchen helper, both
jobs that plaintiff performed after January 1, 1997. (R. 33, 53, R. 114-25). These findings cannot
be reconciled.
The Commissioner concedes that the ALJ erred in finding that plaintiff had past relevant
work that he could perform, but he argues that the error is harmless because the ALJ heard
testimony from the vocational expert that plaintiff could perform other work; therefore, the ALJ
still would have found plaintiff not disabled. (Dkt. # 17). At a hearing on this matter, the
Commissioner pointed out that the vocational expert’s testimony established a number of other
jobs that plaintiff could perform, in numbers exceeding 80,000 regionally, and that plaintiff
accepted the vocational expert’s qualifications to provide that testimony. (Dkt. # 27, Hearing,
Michael Allen Moss); (R. 53, 56).
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In the context of Social Security disability cases, the Tenth Circuit has established a
harmless error analysis, by which the Court may excuse an ALJ’s error and affirm the
administrative decision. See Allen v. Barnhart, 357 F.3d. 1140 (10th Cir. 2004). That rule
permits the Court
to supply a missing dispositive finding under the rubric of harmless error in the
right exception circumstance, i.e., where, based on material the ALJ did at least
consider (just not properly), [the Court] could confidently say that no reasonable
administrative factfinder, following the correct analysis, could have resolved the
factual matter in any other way.
Allen, 357 F.3d at 1145 (declining to apply the rule when the ALJ’s step five findings yielded
only one job with low numbers statewide but acknowledging that the rule could apply). The
Tenth Circuit has cautioned, however, that courts should apply harmless error “cautiously.”
Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005).
The Tenth Circuit has applied the harmless error rule in cases where the ALJ failed to
discuss a piece of evidence or made erroneous findings at an earlier step in the sequential
process. See, e.g., Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (holding that the
ALJ’s failure to apply the correct legal standard at step two was harmless because the ALJ
proceeded to step three of the analysis); Seever v. Barnhart, 188 Fed.Appx. 747, 752 (10th Cir.
2006) (unpublished)3 (finding the ALJ’s failure to discuss a physician’s findings regarding the
claimant’s ability to handle work pressure harmless error where the ALJ included that limitation
in his hypothetical to the vocational expert). More recently, the Tenth Circuit found harmless
error when the ALJ’s failure to consider postural limitations was “proved inconsequential” by
the ALJ’s decision to limit plaintiff to sedentary work, which required no significant
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10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited
for their persuasive value.”
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requirements to perform postural movements like crouching, kneeling, or balancing. Mays v.
Colvin, 739 F.3d 569, 578-79 (10th Cir. 2014).
The Court finds the Commissioner’s argument to be reasonable and somewhat persuasive
because, in the Court’s experience, the ALJ always accepts the testimony of the vocational
expert. However, the Court interprets the rule to permit application of the harmless error analysis
only to those steps that the ALJ considered, and, at least in the Tenth Circuit, that consideration
is not measured by the evidence in the record but by the language in the ALJ’s decision. The
Court also relies on Martinez v. Astrue, 316 Fed.Appx. 819, 824 (10th Cir. 2009) (unpublished),
in which an erroneous finding regarding past relevant work was harmless only because the ALJ
conducted the step five analysis. Without that analysis, the harmless error rule is not applicable,
and the Court must remand the case for further proceedings.
CONCLUSION
For the reasons stated above, the decision of the Commissioner finding plaintiff not
disabled is REVERSED AND REMANDED for further proceedings. On remand, the ALJ
should analyze whether, based on the record evidence and the vocational expert’s testimony,
plaintiff can perform other work. In light of the Court’s conclusion, it need not address the
remaining issues raised by plaintiff.
SO ORDERED this 18th day of February, 2014.
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