Westlake v. Social Security Administration

Filing 32

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; remanding case ; accepting 29 Report and Recommendation (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TINA K. WESTLAKE,

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

Case No. 13-CV-152-GKF-TLW

OPINION AND ORDER
Before the court are the Report and Recommendation of United States Magistrate
Judge T. Lane Wilson on the judicial review of a decision of the Commissioner of the Social
Security Administration denying Social Security disability benefits [Dkt. #29] and the
Commissioner’s Objection to the Report and Recommendation. [Dkt. #30].
Plaintiff Tina K. Westlake (“Westlake”) asserts the Commissioner’s decision should be
reversed and remanded because the ALJ:
1. ignored the opinions of two of her treating physicians, who imposed postural and
exertional restrictions on her ability to work;
2. failed to properly analyze a third party function report completed by her boyfriend;
3. in determining her residual functional capacity, failed to include limits on overhead
reaching, failed to impose a sit/stand option and failed to incorporate mental
limitations found at step two into her findings at step four; and
4. did not perform a proper credibility assessment.

The Magistrate Judge recommended the decision be reversed and remanded based on the
first ground asserted by Westlake.1
I. Procedural History
Westlake filed her application for disability insurance benefits and supplemental security
income benefits on November 17, 2009, with a protective filing date of October 29, 2009. [R.
111-115, 123-125]. She alleged a disability onset date of September 7, 2007. [R. 111].
Westlake alleged she was unable to work due to a variety of problems, including back, neck and
knee injuries, anxiety and panic attacks. [R. 127]. Her claim for benefits was denied initially on
May 11, 2010, and on reconsideration on August 30, 2010. [R. 56-61, 66-68]. Westlake
requested a hearing before the Administrative Law Judge (“ALJ”), and the ALJ conducted a
hearing on August 23, 2011. [R. 24-55, 69-70]. Westlake was represented by counsel at the
hearing. [R. 14]. The ALJ issued her decision on November 23, 2011, denying benefits and
finding Westland not disabled because she was able to perform other work. [R. 11-23]. The
Appeals Council denied review, and Westlake appealed. [R. 1-5].
II. Standard of Review
Pursuant to Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to. However, even under a
de novo review of such portions of the Report and Recommendation, this court’s review of the
Commissioner’s decision is limited to a determination of “whether the factual findings are
supported by substantial evidence in the record and whether the correct legal standards were
applied.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It
1

The Magistrate Judge did not address the remaining three grounds, but recommended that if the court finds remand
on the first issue is not required, the matter be recommitted to the Magistrate Judge for an additional report and
recommendation on the remaining issues. [Dkt. #29 at 8].
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is more than a scintilla, but less than a preponderance. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007). The court will “neither reweigh the evidence nor substitute [its] judgment for that of
the agency.” White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001).
A claimant for disability benefits bears the burden of proving a disability. 42 U.S.C.
§ 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). “Disability” is defined under the Social
Security Act as an “inability 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). A physical or mental impairment “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). To meet this burden,
plaintiff must provide medical evidence of an impairment and the severity of that impairment
during the time of her alleged disability. 20 C.F.R. §§ 404.1512(c), 416.912(c). “A physical or
mental impairment must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by [an individual’s] statement of symptoms.” 20 C.F.R. §§
404.1508, 416.908. A plaintiff is disabled under the Act only if his “physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his 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)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a
disability claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (setting forth the five steps in detail). The claimant bears the burden of proof at
steps one through four. Williams, 844 F.2d at 751 n.2. At step one, a determination is made as

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to whether the claimant is presently engaged in substantial gainful activity. Id. at 750. At step
two, a determination is made whether the claimant has a medically determinable severe
impairment or combination of impairments that significantly limit her ability to do basic work
activities. Id. at 750-51. At step three a determination is made whether the impairment is
equivalent to one of a number of listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. Id. at 751. If it is, the claimant is entitled to
benefits. Id. If it is not, the evaluation proceeds to the fourth step, where the claimant must
show that the impairment prevents her from performing work she has performed in the past. Id.
If the claimant is able to perform her previous work, she is not disabled. Id. If she is not able to
perform her previous work, then the claimant has met her burden of proof, establishing a prima
facie case of disability. The evaluation process then proceeds to the fifth and final step:
determining whether the claimant has the residual functional capacity (“RFC”)2 to perform other
work in the national economy in view of her age, education, and work experience. Id. The
Commissioner bears the burden at step five, and the claimant is entitled to benefits if the
Commissioner cannot establish that the claimant retains the capacity “to perform an alternative
work activity and that this specific type of job exists in the national economy.” Id.
III. The ALJ’s Decision
At Step One, the ALJ found that Westlake had not engaged in any substantial gainful
activity since her application date of October 24, 2009. [R. 16]. At Step Two, the ALJ found
Westlake had severe impairments of fibromyalgia, degenerative disc disease, status post cervical
spine fusion, history of left knee surgery, plantar fasciitis, obesity and generalized anxiety
disorder. [Id.]. At Step Three, she found that Westlake did not have an impairment or
2

A claimant’s RFC to do work is what the claimant is still functionally capable of doing on a regular and continuing
basis, despite his impairments: the claimant’s maximum sustained work capability. Williams, 844 F.2d at 751.

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combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. [R. 16-18]. The ALJ found that
Westlake had moderate restriction in activities of daily living; social functioning; and
concentration, persistence or pace. [R. 17]. She found the severity of Westlake’s mental
impairments, considered singly and in combination, did not meet or medically equal the criteria
of a listing. [R. 16-17].
The ALJ reviewed the testimony of Westlake and her boyfriend. [R. 19]. Westlake
testified she is unable to work because of mood swings, inability to sit or stand for long periods,
and pain which is five out of ten on an average day and sometimes an eight or nine out of ten.
[Id.]. She reported she has pain in her lower back, neck, left foot and left knee. She can stand for
20-30 minutes and maybe two hours in an eight-hour day; sit for one hour at a time and a total of
three hours in an eight-hour day; and walk half a block and lift three pounds. [Id.]. Her ability
to lift a gallon of milk depends on the day. [Id.] She can feed and dress herself most days, but
twice a month she is unable to put her shoes on. [Id.]. Her friend or her brother does most of the
household chores. [Id.]. She goes somewhere every week to two weeks and is able to go to the
casino. She goes to church on occasion. [Id.].
Westlake’s boyfriend, Frank Culp, provided a Function Report – Adult (Third Party)
dated December 23, 2009. [Id.] He reported that Westlake’s only problem with personal care is
that she is sometimes unable to brush her hair. [Id.]. He stated that she cooked daily and did
laundry and dishes; went outside three times a week; and was able to drive a car. [Id.].
Additionally, he reported that she was able to shop once a week and did not have any problems
with money except that she forgets to pay bills sometimes. [Id.]. He stated that people came to
visit Westlake once or twice a week, and that they talk and watch movies. [Id.].

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The ALJ also reviewed recent medical evidence including a July 20, 2009 doctor’s visit
to Morton Comprehensive Health Services; visits on April 28, 2010 and May 19, 2010 to
Neighbor for Neighbor; a June 23, 2010 assessment by Associated Center for Therapy; and xrays taken on July 8, 2010. [R. 20].
The ALJ noted that, in the July 20, 2009 visit to Morton, Westlake had been advised to
contact Family and Children’s Services for further evaluation but had not done so. [Id.].
Additionally, her physical examination was normal except for claimant’s elevated weight, and
she denied any fevers, chills, vision changes, chest pain, palpitations, shortness of breath,
abdominal pain, headache or dizziness. [Id.]. The ALJ stated, “It is reasonable to assume, that
someone with debilitating impairments would seek out every avenue of help possible, yet by not
making the appointment with Family and Children’s Services as advised, it was indicated that
the impairments may not be as severe as alleged.” [Id.].
Regarding the Neighbor for Neighbor visits, the ALJ stated that on April 28, 2010, it was
noted that Westlake’s normal blood pressures had been in the one-hundred thirties over eighties,
but on that day, her blood pressure was high and that her weight had never been that high. [Id.].
She had chest wall tenderness and normal cardiovascular sounds; there were no limitations given
with regard to either her elevated blood pressure or the chest wall pain. [Id.]. On May 19, 2010,
her blood pressure was back to one-hundred twenty-two over seventy-four. [Id.].
In the June 23, 2010 assessment by the Associated Center for Therapy, it was noted that
Westlake “had some ongoing mood swings, daily anxiety and moderate depression and “[h]er
affect was somewhat flat but she engaged with minimal encouragement.” [Id.] (emphasis in
original). Westlake appeared to be alert and oriented with adequate hygiene. It was noted that
Westlake was not compliant with the treatment plan; she had kept only four out of seven therapy

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appointments. Further, it was reported the claimant had worked towards acceptance of her
physical changes and felt that her medication management was working well for her. The ALJ
stated, “The findings in this assessment are not indicative of disabling impairments.” [Id.].
The ALJ observed that the July 8, 2010 x-rays of claimant’s knee showed no fracture or
other abnormalities, and stated, “The findings in this record do not support the credibility of the
allegation of disabling knee pain. [Id.].
The ALJ also observed that on November 15, 2010, Westlake asked to be discharged
from Associated Centers for Therapy so that she could participate in a research program for
chronic pain. [Id.]. At that time, it was reported that Westlake could manage her activities of
daily living with minimal assistance, she had excellent symptom control with her medication
regimen and that she enjoyed water aerobics. [Id.]. The ALJ stated, “The information contained
in this discharge record indicated that the alleged mental impairment was not as severe as
alleged, if the claimant was able to manage her daily activities with minimal assistance and she
experienced excellent symptom control with medication.” [Id.].
Citing medical records from OSU Physicians – Family Medicine, the ALJ stated that
despite Westlake’s allegations of debilitating pain, on July 25, 2011, it was noted she stands
when at the casino and was doing multiple exercises including door pushes, picking up towel,
frozen bottle/can exercises, tip toe exercises and continuing pool exercises. [Id.]. And she stated,
“The notes in this record do not support allegations of disabling pain, standing at a casino and
doing the aforementioned exercises is not commensurate with the pain as alleged.” [R. 21].
The ALJ acknowledged that the State Disability Determination Services rated the
claimant at light exertion, but stated, “I give that opinion little weight because it did not take into
account the combination of the claimant’s back, neck, knee, feet and obesity, which are more

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likely to limit her standing and walking to no more than two hours.” [Id.]. She also noted that
Westlake’s attorney had asked for additional time after the hearing to submit a medical source
statement from Dr. Hannan, but the attorney failed to submit the report; therefore, the ALJ made
“a negative inference that the opinion was either not favorable to the claimant or Dr. Hannan
refused to complete the report, even though he does so in many cases, because he could not
provide a favorable opinion in this case.” [Id.].
The ALJ found that Westlake’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, her statements concerning the intensity,
persistence and limiting effect of these symptoms were not credible to the extent they were
inconsistent with the RFC assessment. [R. 19]. She found that Westlake’s “allegations of
extreme pain and functional loss in her testimony appear to be an overstatement, given the
factors above” and “[t]hese inconsistencies do not reflect positively on her overall credibility.”
[R. 21].
Based on these findings, the ALJ determined that Westlake had the residual functional
capacity (“RFC”) to perform a wide range of sedentary work with the following restrictions:
occasionally lift and/or carry 10 pounds and frequently lift and/or carry up to ten pounds; stand
and/or walk for six hours in an eight-hour workday and sit for six hours in an eight-hour
workday; push and/or pull ten pounds occasionally and up to ten pounds frequently; frequently
balance and occasionally climb, stoop, kneel, crouch and crawl; maintain superficial workrelated interaction with co-workers, supervisors and the public, no requirement “to make
judgments or perform detailed tasks in interactions;” and conduct “simple routine and some
complex tasks but not more detailed tasks.” [R. 18].

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At Step Four, the ALJ determined that Westlake was unable to perform any past relevant
work, as all past relevant work exceeded her RFC. [R. 21].
At Step Five, the ALJ found, based on the testimony of the vocational expert, there were
a significant number of jobs in the national economy that Westlake could perform, including
circuit board assembler and food and beverage order clerk. [R. 21-22]. Therefore, the ALJ found
that Westlake was not disabled at any time from October 24, 2009, through the date of her
decision. [R. 23].
IV. Medical Evidence
The court concurs with the Magistrate Judge’s finding that the ALJ’s decision fairly
summarizes Westlake’s post-application medical records. However, the ALJ’s decision does not
address any of the medical records that pre-date plaintiff’s November 2009 application. Those
records establish that Westlake received extensive treatment for on-the-job injuries she sustained
on August 23, 2007, when she fell down a flight of granite stairs, suffering a concussion and
injuring her neck, back and left elbow. [R. 216].
Dr. Eugene G. Feild, a board-certified orthopedic surgeon, evaluated Westlake’s head,
neck, back and left elbow on December 12, 2007. [R. 272]. On April 28, 2008, Dr. Feild
performed a diskectomy and fusion of Westlake’s C5-6 and C6-7. [R. 254-255]. On August 20,
2008, he released her to return to work with the permanent restriction that she perform no
“prolonged overhead activities.” [R. 247-248]. On October 9, 2008, Westlake returned to Dr.
Feild’s office complaining of severe sacroiliac pain. [R. 243-244]. The doctor injected her left
sacroiliac area, reviewed stretching exercises with her for her back and commented, “It is
important that she drop her weight down.” [Id. 243].

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Westlake again visited Dr. Feild on April 29, 2009, complaining of left elbow pain. [R.
239]. Clinical evaluation found no evidence of decreased range of motion to any direction from
normal, and her tenderness was confined to the ulnar nerve of the left elbow at the elbow. [Id.].
Dr. Feild noted he had seen the patient two years ago and she had a similar finding, but he
ordered a new EMG. [Id.]. The EMG showed no conduction delay nor irritative patterns within
the ulnar nerve, and the doctor concluded the nerve was “sensitive but not being damaged,” and
surgery of the ulnar nerve was not indicated. [R. 237]. Westlake was not able to tolerate the
recommended pain medication, Lyrica. Therefore, Dr. Feild concluded she was “maximally
medically improved.” [Id.].
Westlake began seeing Dr. Christopher Covington on October 21, 2008, for neck and
lower back pain. [R. 216-220]. She reported only aching pain and occasional muscle spasms in
her cervical spine, but complained of low back pain that had been progressive, particularly over
the last couple of months “even though it has been on and off severe since her fall last year.” [R.
219]. Dr. Covington concluded that Westlake had fairly advanced disk disease at L4-5 with a
probable disk herniation in the midline at L4-5, and a degenerative disk at 5-1 without stenosis.
[Id.]. The remaining portion of her spine appeared normal. [Id.]. Dr. Covington concluded no
further treatment of the cervical spine was needed at the time, after the patient expressed a
preference for conservative treatment of the lumbar pain with an epidural steroid injection
initially. [Id.]. Westlake received two epidural steroid injections. [R. 214]. The first lasted a few
days and the pain recurred; the second did not help at all. [Id.]. Because she still complained of
“pretty significant low back pain and bilateral lower extremity paresthesias,” as well as neck
pain, Dr. Covington recommended aqua therapy three times a week for the next four to six
weeks. [Id.]. The doctor stated that Westlake remained temporarily totally disabled. [Id.].

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On January 13, 2009, Westlake returned to Dr. Covington’s office. An MRI showed she
had normal disks at L4 and above, but L4-5 and L5-S1 were collapsed, there was a disk rupture
and she had significant stenosis. [R. 212]. She had only had four or five aqua therapy treatments
because of the flu. [Id.]. Dr. Covington asked her to return after aqua therapy so they could
“make a decision about either return to work or surgery.” [Id.]. The doctor stated she would be a
candidate for a two level posterior lumbar interbody fusion based on her current pathology and
symptoms. [Id.].
On February 17, 2009, Dr. Covington reported that Westlake was in the middle of aqua
therapy but was not sure if it was working and was looking into acupuncture as a means of
treatment. [R. 210]. Since she started physical therapy, she had experienced a “pretty significant
increase in her cervical spine pain that radiates into both shoulders.” [Id.]. The doctor stated that
Westlake’s activities at home included general chores, occasional lifting of groceries, etc. and
occasional cleaning, and she spent maybe two days a week just lying in bed because of the
discomfort. [Id.]. Dr. Covington concluded, “Based on this, the patient’s work restrictions
would include a maximum of 10 pounds, alternating sitting and standing per the patient and all
of the obvious restrictive motions of non-repetitive bending, stooping, crawling, kneeling,
squatting, climbing, working overhead, etc.” [Id.].
On April 14, 2009, Dr. Covington wrote a letter to the worker’s compensation judge
handling Westlake’s case. [R. 206-207]. He reported that Westlake had returned to his office
complaining of pain at the base of the cervical spine radiating up into her shoulders. [R. 206].
He advised that an MRI scan was essentially normal, but showed a slight bulge on the left at C7T1 that was probably a spur. [Id.]. He also stated that while Westlake had a problem in her
lumbar spine it did not appear to be significant or limiting enough to warrant any type of surgical

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intervention. [Id.]. Dr. Covington stated that shortly after Westlake left his office, he was
presented with a video filmed on March 24 and 25, 2009, which showed the patient “very active
for two days in a row,” and which was “quite a discrepancy from her previous statement to me
that she would have several days in a week that she was unable to get out of bed.” [Id.]. The
video showed Westlake, on March 24, going to the Million Dollar Elm Casino on three separate
occasions, going through the drive-throughs at a bank and a fast food establishment, and going to
a facility called “Harvard Garden.” [Id.]. Dr. Covington observed that Westlake walked at a
normal pace with no problem, opened and closed doors with no problem and was able to use her
left arm out the window at the drive-throughs. [Id.]. On March 25, she drove to Oklahoma City
and spent the day at multiple businesses with another female and a small child. [Id.]. She walked
normally and was observed laughing on more than one occasion. “She was then able to sit long
enough to make the drive back to Sand Springs.” [Id.]. Dr. Covington stated:
This video confirms my opinion that while there is a problem in the lumbar spine,
some of which is degenerative and pre-existing, that her symptoms are not severe
enough to warrant surgical treatment. I will mention however, that the patient
was previously given restrictions of no lifting over 10 pounds and no repetitive
bending, twisting or stooping. Nothing that I observed in the video violated these
restrictions. It is my opinion within a reasonable degree of medical certainty that
he patient has reached maximum medical improvement from her injury and can
be released from care with permanent restrictions. On a permanent basis I feel
that she should not lift over 25 to 30 pounds, should not perform work overhead
and should alternate sitting and standing.
[R. 207].
V. Analysis
On appeal, Westlake asserted that the ALJ ignored the opinion of Dr. Covington that she
“should not perform work overhead and should alternate sitting and standing per the patient” and
the opinion of Dr. Feild that she should “avoid prolonged overhead activities.” [R. 207, 247]. In
response, the Commissioner argued (1) Westlake waived the issue by failing to raise the treating
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physicians’ prior restrictions during the ALJ hearing; and (2) even if the issue had not been
waived, the ALJ’s failure to address the restrictions in her decision was harmless because these
opinions did not limit Westlake’s abilities any further than the ALJ’s RFC findings. [Dkt. #21 at
3-6].
Social Security regulations require the ALJ to develop a record of at least 12 months of
medical history preceding the application date. 20 C.F.R. § 416.912(d). The record includes
reports of Drs. Covington and Feild concerning Westlake’s treatment for neck, back and arm
injuries resulting from her on-the-job fall, and in that sense the record was developed.
However, the ALJ should consider all of the relevant medical evidence, including
evidence that predates the disability period. Lackey v. Barnhart, 127 Fed. Appx. 455, 458-59
(10th Cir. 2005) (citing Hamlin v. Barnhart, 365 F.3d 1208, 1223 n.15 (10th Cir. 2004)). The
records at issue cover a period after the alleged onset of the disability and clearly should have
been considered. And while the ALJ, in her decision, need not discuss every piece of evidence in
the record, she “must discuss uncontroverted evidence [s]he chooses not to rely upon, as well as
significantly probative evidence [s]he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th
Cir. 1996). The RFC formulated by the ALJ fails to include the permanent limitations identified
by Drs. Covington and Feild; yet the ALJ included no discussion about why she chose to exclude
them.
A. Waiver
The Commissioner argues Westlake waived this argument by failing to direct the ALJ’s
attention to the evidence during the hearing. The Tenth Circuit has held that “[w]hen the
claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be
entitled to rely on the claimant’s counsel to structure and present claimant’s case in a way that

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the claimant’s claims are adequately explored,” and “[t]hus, in a counseled case, the ALJ may
ordinarily require counsel to identify the issue or issues requiring further development.”
Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). Nonetheless, “unlike the typical
judicial proceeding, a social security disability hearing is nonadverserial, with the ALJ
responsible in every case to ensure that an adequate record is developed during the disability
hearing consistent with the issues raised,” including issues related to the claimant’s RFC. Id. at
1164 (citations omitted). “It is the ALJ’s duty to investigate the facts and develop the arguments
both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111 (2000).
Furthermore, Social Security regulations impose no requirement of issue exhaustion, and
neither the Supreme Court nor the Tenth Circuit has imposed such a requirement with respect to
Social Security appeals. Id at 109-111; Hawkins, 113 F.3d at 1164.
Therefore, the court rejects the Commissioner’s argument that Westlake has waived this
argument.
B. Harmless Error
The Commissioner argues that even if the ALJ erred in failing to discuss the medical
records of Dr. Covington and Dr. Feild, the error was harmless. Citing 20 C.F.R. Pt. 404, Subpt.
P, App. 2, § 201.00(a), she asserts that most unskilled sedentary jobs (85%) are bench-type jobs
that involve working in front of oneself and not reaching overhead, and “certainly not more than
occasional overhead reaching.” [Dkt. #21 at 4].
The fallacy of this argument is that the limitations in the ALJ’s hypothetical to the
vocational expert contained no restriction on any kind of reaching, and both of the jobs the
expert identified require frequent reaching (existing from 1/3 to 2/3 of the time). See Dictionary
of Occupational Titles, 726.684-110 (Touch-up Screener, Printed Circuit Board Assembly);

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209.567-014 (Order Clerk, Food and Beverage). “Reaching” is defined in the Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles
(“SCO”) as “[e]xtending hand(s) and arm(s) in any direction.” See SCO, Appx. C Physical
Demands. And it is impossible to determine based on the job descriptions whether the jobs
require overhead reaching or reaching in another direction.
Citing Segovia v. Astrue, 226 Fed. Appx. 801, 804 (10th Cir. 2007), the Commissioner
contends the overhead reaching limitation does not conflict with the sedentary jobs plaintiff was
found able to perform. In Segovia, the ALJ included the limitation of “only occasional overhead
reaching” in his RFC. Id. at 802. The vocational expert identified two jobs—ticket-taker and
cafeteria attendant—the ALJ found to be consistent with the RFC. Id. at 804. Both required
“frequent” reaching. Id. The Tenth Circuit recognized that given the broad definition of
“reaching,” it was unclear what kind of reaching the jobs required, but noted that “even a job
requiring frequent reaching does not necessarily require more than occasional overhead
reaching.” Id. It reasoned that the vocational expert “was aware of Ms. Segovia’s limitations on
overhead reaching, and he testified . . . that she could perform the jobs he identified.” Id. And it
stated, “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.” Id. (citing Carey v.
Apfel, 230 F.3d 131, 146 (5th Cir. 2000)).
However, in this case—unlike Segovia—the ALJ failed to include a limitation on
overhead reaching, or any type of reaching, in her RFC. The vocational expert had no reason to
consider whether, or to what extent the jobs she identified required overhead reaching, and she

15

identified two sedentary jobs that require frequent lifting. As a result, the record does not reflect
an adequate basis for the vocational expert’s opinion.
In a similar vein, the Commissioner asserts the RFC accommodates the “alternating
sitting and standing per the patient” limitation articulated by Dr. Feilds, because sedentary jobs
require not more than two hours per day of standing. See SSR 83-10 (“Since being on one’s feet
is required ‘occasionally’ at the sedentary level of exertion, periods of standing or walking
should generally total no more than about 2 hours of an 8-hour workday, and sitting should
generally total approximately 6 hours of an 8-hour workday.”). However, although the RFC
stated claimant could perform a sedentary job in which she would be required to sit no more than
six hours in an eight-hour day and stand no more than six hours in an eight-hour day, the RFC
did not address Dr. Feild’s limitation that claimant be permitted to sit or stand “per the patient,”
which this court interprets to mean “as needed.” And the agency’s definition of “sedentary”
sheds no light on the issue. Accordingly, as with the “reaching” issue, the record does not reflect
an adequate basis for the vocational expert’s opinion.
Therefore, the court rejects the Commissioner’s argument that the ALJ’s failure to
address limitations imposed by Dr. Covington and Dr. Feild was harmless error.
VI. Conclusion
For the reasons set forth above, the court overrules the Commissioner’s Objection to
Magistrate Judge’s Report and Recommendation. [Dkt. #30]. The Magistrate Judge’s Report
and Recommendation [Dkt. #29] is accepted and the decision of the Commissioner is reversed
and remanded for further consideration as set forth in the Report and Recommendation.
ENTERED this 16th day of July, 2013.

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