Goddard v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Frank H McCarthy reversing and, remanding case (terminates case) (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TERESA LYNN GODDARD,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 13-CV-190-FHM

OPINION AND ORDER
Plaintiff, Teresa Lynn Goddard, 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 decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the
Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th

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Plaintiff Teresa Lynn Goddard’s application was denied initially and upon reconsideration.
A hearing before Administrative Law Judge (ALJ) Gene M. Kelly was held August 16, 2011. By
decision dated September 16, 2011, the ALJ entered the findings which are the subject of this appeal.
The Appeals Council denied Plaintiff’s request for review on January 31, 2013. The decision of the
Appeals Council represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R.
§§ 404.981, 416.1481.

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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 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., 993 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 37 years old on the alleged date of onset of disability and 41 years old
on the date of the ALJ’s denial decision. She has a 12th grade education and previously
worked as a car hop, fast food worker, and receptionist. Plaintiff claims to have been
unable to work since November 1, 2008, due to bipolar disorder. [R. 147].
The ALJ’s Decision
The ALJ determined that the Plaintiff has a severe impairment relating to depression,
anxiety, bipolar disorder, organic mental disorder, and substance abuse. [R. 15]. The ALJ
further determined that Plaintiff has the residual functional capacity to perform light2 and

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Pursuant to CFR § 404.1567, light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.

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sedentary3 work. Plaintiff has these additional limitations. She has a poor ability to read,
write, and use numbers. She is able to lift 20 pounds; stand and/or walk (with normal
breaks) 6 hours in an 8-hour workday, sit (with normal breaks) 6 hours in an 8-hour
workday, slight limitation in bending and stooping, slight limitation between continuous and
frequent in fingering, feeling, and gripping, should not do extensive small tedious tasks with
hands and fingers, occasional climb, squat, kneel, crouch, crawl, and reach overhead, and
avoid dust, fumes, gases, and cold. Work should be kept simple, repetitive, and routine,
limiting stress and content, and limited contact with the public, co-workers, and supervisors.
If Plaintiff is to work on an assembly line, there should be ample room between her and any
other co-worker, so she will not have to carry on any social interaction. Plaintiff can attend
shift and team meetings and things of that nature, but she should be working alone or in
very limited contact with other people. Plaintiff is afflicted with symptomatology from a
variety of sources that produces mild to moderate to chronic pain sufficiently severe as to
be noticeable to her at all times, but she will remain reasonably alert to perform work
functions in the work setting. She takes medication for the relief of that symptomatology,
but the medications will not preclude work at the light and sedentary levels, and she will
remain reasonably alert to perform required work functions in the work setting. Plaintiff will
find it necessary to alter positions from time to time to relieve the symptomatology. [R. 17].

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Sedentary work involves lifting no more than 10 pounds at a time, no more than 2 hours of walking
and standing a day, and 6 hours of sitting a day. Social Security Ruling (SSR) 83-10: see 20 C.F.R. §§
404.1567(a), 416.967(a)(2012).

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Although Plaintiff was unable to perform her past relevant work and her ability to
perform work at all exertional levels is limited, based on the testimony of the vocational
expert, the ALJ found that there are a significant number of jobs in the national economy
that Plaintiff could perform with these limitations. [R. 23-24]. Therefore, the ALJ found that
the Plaintiff was not disabled. The case was thus decided at step five of the five-step
evaluative sequence for determining whether a claimant is disabled. See Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that: 1) the ALJ failed to perform a proper credibility determination;
2) the RFC is not supported by substantial evidence; and 3) the ALJ failed to perform a
proper step five determination.
Analysis
Credibility Determination
In answer to Plaintiff’s assertion that the ALJ failed to perform an adequate credibility
analysis, the Commissioner admits that the ALJ’s analysis is not a model of clarity and
must be teased from the decision. The court finds that the ALJ failed to perform an
adequate credibility analysis. In this case the ALJ did not provide a “narrative discussion”
that “contain[s] specific reasons for the finding . . . , supported by the evidence in the case
record”; the decision was not “sufficiently specific to make clear . . . the weight the
adjudicator gave to the individual’s statements and the reasons for that weight,” as he is
required to do. See SSR 96-7p, 1996 WL 374186, *2; SSR 96-8p, 1996 WL 374184, at *7.
The decision contains only a conclusory boilerplate statement concerning Plaintiff’s

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credibility, [R.19], which does not actually contain any analysis or any reference to the facts
of the case.
A credibility evaluation must contain specific reasons for a credibility finding; the ALJ
may not simply recite the factors that are described in the regulations. Talley v. Sullivan,
908 F.2d 585, 587 (10th Cir. 1990), Social Security Ruling (SSR) 96-7p, 1996 WL 374186
(July 2, 1996). Further, an ALJ's findings with respect to a claimant's credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)(quotation omitted).
Here, the ALJ stated a conclusion, leaving it to the court to pick out of the summary what
evidence might support the credibility finding. This technique falls short of the requirements
of the Commissioner’s regulations and case law. The decision must therefore be reversed
and the case remanded for the ALJ to provide a reasoned credibility determination.
RFC Determination
In the hypothetical question posed to the vocational expert and in the RFC, the ALJ
included the requirement that Plaintiff will find it necessary to alter her position from time
to time to relieve symptomatology. [R. 17, 56]. Plaintiff argues that the ALJ’s failure to
specify the frequency of her need to “alter positions from time to time” in the RFC
assessment and the hypothetical question was error. In support of her argument, Plaintiff
refers to SSR 96-9p which explains the Social Security Administration’s policies regarding
the impact of a RFC assessment for less than a full range of sedentary work. On the issue
of alternating sitting and standing, it states:
An individual may need to alternate the required sitting of
sedentary work by standing (and, possibly, walking)
periodically. Where this need cannot be accommodated by
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scheduled breaks and a lunch period, the occupational base
for a full range of unskilled sedentary work will be eroded. The
extent of the erosion will depend on the facts in the case
record, such as the frequency of the need to alternate sitting
and standing and the length of time needed to stand. The RFC
assessment must be specific as to the frequency of the
individual's need to alternate sitting and standing. It may be
especially useful in these situations to consult a vocational
resource in order to determine whether the individual is able to
make an adjustment to other work.
SSR 96-9p, 1996 WL 374185 at *7. In this case Plaintiff was not limited to sedentary work.
Rather, the ALJ’s RFC determination included light work. As a result, SSR 96-9p is not
applicable to this case.
The ALJ made a specific findings as to Plaintiff’s ability to sit, stand, or walk –
“Plaintiff is capable to stand and/or walk (with normal breaks) 6 hours in an 8-hour workday,
and sit (with normal breaks) 6 hours in an 8-hour workday.” [R. 17]. The ALJ properly
consulted a vocational expert to determine the effect of the need to alter positions from time
to time on the vocational base. Further, Plaintiff has failed to point to record evidence
which demonstrates a more specific formulation is required. The court finds that the ALJ
did not err by failing to specify the frequency with which Plaintiff needs to alter positions.
Plaintiff also argues that the ALJ failed to consider the opinion of agency clerk, J.
Grauer, as a “third party source” pursuant to 20 C.F.R. §§ 404.1529(c)(1) and (3),
416.929(c)(1) and (3) and 416.929(a), 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3), SSR
96-8p, SSR 96-7p and SSR 85-16, and 20 C.F.R. §§ 404.1513(d), 416.913(d). [Dkt. 16, p.
8; Dkt. 20, p. 2]. On October 29, 2009, agency clerk J. Grauer conducted a telephone
interview of Plaintiff who observed:

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I did the interview with Teresa but she really struggled talking
to me. Her mother was in the room with her and she would get
angry at her Mother and start aruging (sic) with her, I had to
redirect her back to me. I spoke with her Mother about the 827
and I could hear Teresa in the back ground say she didn’t do
a good job and I had to have her get back on the telephone to
tell her she did do fine.
[R. 144]. The Tenth Circuit has made it clear that an ALJ is not required to make specific,
written findings regarding each lay opinion when the written decision indicates that the ALJ
considered that opinion. Blea v. Barnhart, 466 F.3d 903, 914-15 (10th Cir. 1996). The
regulations provide that the agency “will consider all of the evidence presented, including
. . . observations by our employees.” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). SSR 967p states that “[i]n evaluating the credibility of the individual’s statements, the adjudicator
must also consider any observations recorded by SSA personnel who have previously
interviewed the individual, whether in person, or by telephone.” Finally, SSR 85-16
instructs that “[d]escriptions and observations of the individual’s restrictions by . . . sources
(including Social Security Administration representatives, such as district office
representatives and ALJ’s) . . . must also be considered in the determination of RFC.”
The one time contact with the agency clerk does not contain any opinions that were
significantly probative nor did it provide significant evidence supporting disability.
Moreover, the ALJ is not required to discuss every piece of evidence in the record. Hamlin
v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004). The ALJ stated he carefully considered
the entire record. [R. 13, 17]. The Tenth Circuit has stated it will take the ALJ at his word
when the entirety of the ALJ’s discussion of the evidence and the reasons for his
conclusions demonstrate that he adequately considered the claimant’s impairments. Wall
v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009). The court finds that the ALJ’s decision
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demonstrates he adequately considered the evidence.
Step Five Determination
Plaintiff argues that because the ALJ’s RFC determination included a need to “alter
positions from time to time,” she would be precluded from performing the two unskilled jobs
identified by the vocational expert – bench assembler (light) and semiconductor assembler
(sedentary). Plaintiff contends that those jobs conflict with SSR 83-12 and the Dictionary
of Occupational Titles (4th ed., 1991)(DOT). SSR 83-12 discusses the use of the
medical-vocational rules as a framework for adjudicating claims in which an individual has
only exertional limitations within a range of work or between ranges of work. [Dkt. 16, p.
9]. The Commissioner contends that SSR 83-12 supports, rather than undermines the
ALJ’s decision. [Dkt. 19, p. 7]. The need to alternate between sitting and standing covered
by SSR 83-12 states as follows:
In some disability claims, the medical facts lead to an
assessment of RFC which is compatible with the performance
of either sedentary or light work except that the person must
alternate periods of sitting and standing. The individual may be
able to sit for a time, but must then get up and stand or walk for
awhile before returning to sitting. Such an individual is not
functionally capable of doing either the prolonged sitting
contemplated in the definition of sedentary work (and for the
relatively few light jobs which are performed primarily in a
seated position) or the prolonged standing or walking
contemplated for most light work. (Persons who can adjust
to any need to vary sitting and standing by doing so at
breaks, lunch periods, etc., would still be able to perform
a defined range of work.) There are some jobs in the
national economy--typically professional and managerial
ones--in which a person can sit or stand with a degree of
choice. If an individual had such a job and is still capable of
performing it, or is capable of transferring work skills to such
jobs, he or she would not be found disabled. However, most
jobs have ongoing work processes which demand that a
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worker be in a certain place or posture for at least a certain
length of time to accomplish a certain task. Unskilled types of
jobs are particularly structured so that a person cannot
ordinarily sit or stand at will. In cases of unusual limitation of
ability to sit or stand, a VS [vocational specialist] should
be consulted to clarify the implications for the
occupational base.
SSR 83-12, 1983 WL 31253 at *4. (Emphasis added).
The court finds no conflict between SSR 83-12 and the ALJ’s findings.. The ALJ
found Plaintiff could sit, stand and/or walk for 6 hours in an 8-hour workday with normal
breaks. Further, the ALJ consulted the vocational expert. The hypothetical question
contained all the limitations found by the ALJ, including a need to change positions from
time to time. Based on all the limitations listed by the ALJ in his hypothetical question, the
vocational expert testified that Plaintiff could perform the jobs of bench assembler and
semiconductor assembler. The vocational expert said there were a total of 40,000 light
bench assembly jobs regionally and a total of 600,000 nationally. He also testified that
there were 80,000 nationally and 6,000 regionally sedentary semiconductor assembler jobs
in the national economy that would accommodate all Plaintiff's limitations, including her
need to change position from time to time. [R. 54-55].
The court finds that the hypotheticals posed to the vocational expert were not
deficient. The ALJ's RFC assessment and the hypotheticals posed to the vocational expert
are supported by substantial evidence in the record. The ALJ's reliance on the vocational
expert's testimony was proper.
Plaintiff also contends that she is unable to perform the job of bench assembler
(DOT 706.684-022) because she cannot work in an assembly group and the ALJ’s RFC

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precludes her from doing extensive amounts of small, tedious tasks with her hands and
fingers as required by the DOT job definition. [Dkt. 16, p. 10]. The RFC and hypothetical
question also fully addressed Plaintiff’s social limitations including work on an assembly
line:
. . . Work should be kept simple, repetitive, and routine, limiting
stress and content, and limited contact with the public, coworkers, and supervisors. If this person is to work on an
assembly line, there should be ample room between her and
any other co-worker, so she will not have to carry on any social
interaction. She can attend shift and team meetings and things
of that nature, but she should be working alone or in very
limited contact with other people.
[R. 17, 56]. The vocational expert referenced DOT code 706.684-022. In the “People”
category, the job identified has a function assignment of “8—Taking Instructions–Helping”
with a “S—Significant” rating. As explained at Appendix B to the DOT, “there are nine
possible function assignments for the “People” category, and the numbering denotes, from
highest (0) to lowest (8), the job's involvement with people. Dictionary of Occupational
Titles, App. B—Explanation of Data, People, & Things, 1991 WL 688701. Function
assignment 8, “Taking Instructions–Helping,” is defined as “[a]ttending to the work
assignment instructions or orders of supervisors. (No immediate response required unless
clarification of instructions or orders is needed.) Helping applies to “non-learning” helpers.
Id. The court finds that there is no inconsistency between the DOT and the RFC.
The job of bench assembler identified by the ALJ is described in the Dictionary of
Occupational Titles (DOT) as follows:

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Performs any combination of the following repetitive tasks on
assembly line to mass produce small products, such as ball
bearings, automobile door locking units, speedometers,
condensers, distributors, ignition coils, drafting table
subassemblies, or carburetors: Positions parts in specified
relationship to each other, using hands, tweezers, or tongs.
Bolts, screws, clips, cements, or otherwise fastens parts
together by hand or using handtools or portable powered tools.
Frequently works at bench as member of assembly group
assembling one or two specific parts and passing unit to
another worker.
Loads and unloads previously setup
machines, such as arbor presses, drill presses, taps, spotwelding machines, riveting machines, milling machines, or
broaches, to perform fastening, force fitting, or light metalcutting operation on assembly line. May be assigned to
different work stations as production needs require or shift from
one station to another to reduce fatigue factor. May be known
according to product assembled.
Dictionary of Occupational Titles (4th ed., 1991)(DOT), 706.684-022, 1991 WL 679050,
(G.P.O.). The DOT indicates that a bench assembler requires, among other things, a
middle degree of motor coordination, finger and manual dexterity. The ALJ specifically
addressed Plaintiff’s hand limitations in the RFC and the hypothetical question posed to the
vocational expert:
Q.

. . . A slight limitation in finger, feel and grip, again I
place that between continuous and frequent, I’m not
saying they can’t use their hands, they just shouldn’t be
doing extensive amounts of small, tedious tasks with
their hands and fingers, like pen and clip fastening,
working with very small nuts and bolts. They could put
their child’s bicycle together without any problems but
they might have trouble playing with her child’s erector
set with the small nuts and bolts involved.

[R. 56]. Plaintiff has not demonstrated that the bench assembler job requires greater
dexterity than the ALJ’s RFC finding.

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Conclusion
The ALJ’s decision is REVERSED and the case is REMANDED for the ALJ to
analyze Plaintiff’s credibility in accordance with the principles set out in SSR 96-7p, 1996
WL 374186 (July 2, 1996). The ALJ is required to affirmatively link the credibility findings
to substantial evidence.
SO ORDERED this 28th day of February, 2014.

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