Smith v. Social Security Administration
Filing
21
OPINION AND ORDER by Judge Claire V Eagan ; remanding case (terminates case) ; accepting 19 Report and Recommendation (Re: 2 Social Security Complaint, 19 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy , 20 Objection to Report and Recommendation ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CARL SMITH,
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
Case No. 14-CV-0412-CVE-FHM
OPINION AND ORDER
Before this Court is the Report and Recommendation (Dkt. # 19) of Magistrate Judge Frank
H. McCarthy recommending that the Court reverse the decision of the Commissioner of the Social
Security Administration denying plaintiff Social Security disability benefits and remand for further
consideration. Defendant has filed an objection (Dkt. # 20) to the report and recommendation and
seeks affirmance of the Commissioner’s decision. Plaintiff has not filed a response to defendant’s
objection, and the time to do so has expired.
I.
On June 3, 2011, plaintiff applied for benefits, alleging that he had been disabled as of
December 31, 2008.1 Dkt. # 11-3, at 230. Plaintiff later amended the onset date to January 1, 2009.
Id. Plaintiff also protectively filed an application for supplemental security income on May 15,
2011. Id. Both of plaintiff’s applications stated that he suffered from physical and psychological
1
Plaintiff previously filed an application for benefits on October 5, 2007 that was denied.
Dkt. # 11-3, at 244. Plaintiff also had a period of disability from February 2004 through
June 2005. Id.
conditions that left him unable to work, including right wrist impairment due to two resections of
ulnar nerve neuroma, chronic fatigue since heart valve surgery, lumbosacral radiculopathy,
headaches, depression, and anxiety. Id. at 232. Plaintiff’s claims were denied initially on October
11, 2011 and on reconsideration on January 24, 2012. Dkt. # 11-4, at 3, 11. Plaintiff requested a
hearing before an administrative law judge (ALJ) and that hearing was held on November 6, 2012.
Dkt. # 11-3, at 230.
Plaintiff appeared at the hearing and was represented by an attorney. Id. Plaintiff was fortyfive years old at the time of the hearing and lived with his wife and three minor children. Id. at 24648. He testified to a variety of physical and psychological complaints, including depression, anxiety,
high blood pressure, sciatica, chronic fatigue, and injuries to his right hand. Id. at 252-53. For these
conditions, plaintiff took a number of medications, both prescription and over-the-counter. Id. at
253, 256. Plaintiff left school after the 10th grade and he did not earn a GED. Id. at 248.
The ALJ called vocational expert (VE) Bonnie Ward to testify about plaintiff’s previous
work history and his ability to work. Id. at 272. The VE testified that plaintiff had been a radial drill
press operator and a warehouse worker. Id. at 273. The ALJ posed hypothetical questions to the
VE, asking if a hypothetical person with specific restrictions would be able to perform either
plaintiff’s past work or other work available in the economy. Id. at 274-78. Among other
restrictions, the hypothetical person needed to “alter position from time to time,” “avoid rough,
uneven surfaces, unprotected heights, fast and dangerous machinery,” and only be exposed to “low
light and low noise.” Id. at 276-77. The VE stated that the hypothetical person could perform other
occupations as described in the Dictionary of Occupational Titles (4th ed. rev. 1991) [DOT]; her
representative examples of such occupations included: “parking lot attendant” (DOT § 915.667-
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014), “rental clerk” (DOT § 295.357-018), “arcade attendant” (DOT § 342.667-014), “clerical
mailer” (DOT § 209.587.010), and “order clerk” (DOT § 209.567-014) Id. at 275-76 However, a
person with plaintiff’s ailments as the VE had testified to them at the hearing would not be able to
perform plaintiff’s past work. Id. at 277.
On December 5, 2012, the ALJ issued a written decision finding plaintiff was not disabled.
Id. at 238. The ALJ found that plaintiff had not engaged in substantial gainful activity since the
application date, that he had severe impairments affecting his ability to work, and that his
impairments were not equivalent to one of those listed in 20 C.F.R., Part 404, Subpart P, Appendix
1. Id. at 232. The ALJ next formulated plaintiff’s residual functional capacity (RFC), taking into
account the medical evidence and testimony. Id. at 233-34. He found that plaintiff had the RFC to
occasionally lift or carry up to 20 pounds, could stand/walk or sit for six hours in an eight hour work
day, and could occasionally climb, bend, stoop, squat, kneel, crouch, crawl, push/pull with the right
upper extremity and occasionally operate foot controls. Id. The ALJ found certain restrictions,
including: exposure to low light and sound; avoidance of rough, uneven surfaces, unprotected
heights, and fast, dangerous machinery; slight limitations while twisting his head and on his
fingering, feeling, and gripping with the right upper extremity; and limitation to simple, routine, and
repetitive tasks. Id. at 234. The ALJ found no restrictions relating to plaintiff’s depression and
anxiety. Id. He also found that plaintiff could perform other occupations present in the economy,
specifically listing the parking lot attendant, rental clerk, arcade attendant, order clerk, and clerical
mailer positions previously identified by the VE. Id. at 237. He concluded by stating that plaintiff
“was capable of making a successful adjustment to other work that exists in significant numbers in
the national economy.” Id.
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On May 22, 2014, the Appeals Council denied plaintiff’s request for review of the ALJ’s
decision. Dkt. # 11-2, at 2. Plaintiff thereafter sought judicial review, arguing that the ALJ
committed several errors, including: his failure to include depression and anxiety in the RFC, his
failure to express RFC limitations in terms of work-related limitations, and his failure to properly
apply the treating-physician rule. Dkt. # 2, at 2. The Court referred the case to the magistrate judge,
who entered a report and recommendation recommending the Court reverse the ALJ’s decision and
remand for further consideration. Dkt. # 19, at 11. Defendant has objected to the report and
recommendation solely as to the magistrate judge’s recommendation to remand the matter to the
ALJ for consideration in the first instance of whether the position of clerical mailer exists in
significant numbers in the economy.2 Dkt. # 20, at 3.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within fourteen days of service of the recommendation.
Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d
573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the
magistrate judge in whole or in part. FED. R. CIV. P. 72(b).
2
Defendant’s objection is silent as to the other issues addressed in the report and
recommendation. Accordingly, the Court will not discuss those issues further. See 28
U.S.C. § 636(b)(1).
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III.
The Social Security Administration has established a five-step process to review claims for
disability benefits. See C.F.R. § 404.1520. The Tenth Circuit has outlined the five-step process:
Step one requires the agency to determine whether a claimant is “presently engaged in
substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)]. If
not, the agency proceeds to consider, at step two, whether a claimant has “a medically severe
impairment or impairments.” Id. An impairment is severe under the applicable regulations
if it significantly limits a claimant’s physical or mental ability to perform basic work
activities. See 20 C.F.R. § 404.1521. At step three, the ALJ considers whether a claimant’s
medically severe impairments are equivalent to a condition “listed in the appendix of the
relevant disability regulation.” Allen, 357 F.3d at 1142. If a claimant’s impairments are not
equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant’s
impairments prevent her from performing her past relevant work. See id. Even if a claimant
is so impaired, the agency considers, at step five, whether she possesses the sufficient
residual functional capability to perform other work in the national economy. See id.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The ALJ decided the case at step five of the analysis, concluding that plaintiff could not
perform his past relevant work but that he could perform other work existing in the national
economy. Dkt. # 11-3, at 230. Having so decided, the ALJ found plaintiff not disabled and denied
his claims for benefits. Id. The magistrate judge recommended that the ALJ’s decision be reversed
and remanded. Dkt. # 19, at 11. The magistrate judge determined that, although the ALJ
acknowledged the restrictions imposed by plaintiff’s treating physician, he failed to incorporate them
into the formulation of plaintiff’s RFC. Id. at 8. The restrictions imposed by plaintiff’s treating
physician included a permanent restriction against lifting anything over fifteen pounds and a
prohibition against using vibrating tools. Id. The magistrate judge determined that these restrictions
excluded jobs requiring light exertion, including those of rental clerk, parking lot attendant, and
arcade attendant. Id. at 9. The magistrate judge further found that, when applying the limitation for
simple, routine and repetitive tasks, only the position of clerical mailer remained, of which there
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were 5,000 positions available regionally and 92,000 positions available nationally. Id. at 10. The
magistrate judge recommended reversing the ALJ’s decision and remanding for further
consideration of whether the available clerical mailer positions exist in a significant number. Id.
In her objection, defendant contends that the ALJ’s decision should be affirmed because, under the
harmless error doctrine, the Court may determine the remaining available positions constitute a
significant number. Dkt. # 20, at 3.
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ, but,
instead, reviews the record to determine if the ALJ applied the correct legal standard and if his
decision is supported by substantial evidence. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). “A
decision is not based on substantial evidence if it is overwhelmed by other evidence in the record
or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004). The court must meticulously examine the record as a whole and consider any
evidence that detracts from the Commissioner’s decision. Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994).
At step five, the ALJ must consider a claimant’s RFC, age, education, and work experience
to determine if other work exists in the economy that a claimant is able to perform. Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988). If the claimant can adjust to work beyond his past
relevant work, the ALJ shall enter a finding that the claimant is not disabled. 42 U.S.C.
§ 423(d)(2)(A). However, the ALJ must find that a claimant is disabled if insufficient work exists
in the national economy for an individual with the claimant’s RFC. Wilson v. Astrue, 602 F.3d
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1136, 1140 (10th Cir. 2010). The Commissioner bears the burden to present sufficient evidence to
support a finding of not disabled at step five. Emory v. Sullivan, 936 F.2d 1092, 1094 (10th Cir.
1991).
The Tenth Circuit has emphasized that “the issue of numerical significance entails many factspecific considerations requiring individualized evaluation” and, as such, “the evaluation ‘should
ultimately be left to the ALJ’s common sense in weighing the statutory language as applied to a
particular claimant’s factual situation.’” Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004)
(quoting Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992)). However, the court in Allen
also stated that “it nevertheless may be appropriate to supply a missing dispositive finding under the
rubric of harmless error in the right exceptional circumstance . . . . Such an approach might have
been open to us here had the number of available jobs identified by the VE not been one hundred
but considerably greater.” Id. at 1145.
The magistrate judge recommended remanding to allow the ALJ to consider in the first
instance whether the number of available clerical mailer jobs constitutes a significant number. But
the magistrate judge made this recommendation without considering whether 5,000 regional
positions and 92,000 national positions constitute a significant number under the harmless error
analysis. Before determining whether remand is appropriate, the Court must consider whether the
harmless error doctrine applies. The Tenth Circuit has noted that “[h]armless error is seldom used
to supply a missing dispositive finding . . . because this court must avoid ‘usurping the
administrative tribunal’s responsibility to find the fact’ and must not ‘violate[] the general rule
against post hoc justification of administrative action.’” Stokes v. Astrue, 274 F. App’x 675, 684
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(10th Cir. 2008) (unpublished)3 (second alteration in original) (quoting Allen, 357 F.3d at 1145).
But the Tenth Circuit has applied the harmless error rule in instances in which the available jobs
were of such numbers that the court could not conclude that “any reasonable factfinder . . . could
have determined that suitable jobs did not exist in ‘significant numbers.’” Shockley v. Colvin, 564
F. App’x 935, 940 (10th Cir. 2014) (unpublished).
Here, the number of available clerical mailer positions is 5,000 regionally and 92,000
nationally. Although the number of available positions does not fit neatly within the Tenth Circuit’s
prior decisions regarding harmless error, this number is considerably lower than those present in
circumstances where the Tenth Circuit has determined, in the first instance, that particular positions
existed in significant numbers in the economy. See Bainbridge v. Colvin, __ F. App’x __, 2015 WL
4081204, at *6 (10th Cir. July 7, 2015) (unpublished) (applying harmless error analysis and finding
position existed in significant number when 20,000 were available regionally and 500,000 were
available nationally); Shockley, 564 F. App’x at 940 (finding 17,000 positions available regionally
and 215,000 available positions nationally constituted a significant number under the harmless error
analysis); Stokes, 274 F. App’x at 684 (applying harmless error rule to determine that 11,000
positions available regionally and 152,000 positions available nationally constituted a significant
number). The number of available clerical mailer positions is more analogous to the number of
available positions in instances where the Tenth Circuit has declined to apply the harmless error
doctrine, instead remanding to allow the ALJ to make the numerical significance determination. See
Norris v. Barnhart, 197 F. App’x 771, 777 (10th Cir. 2006) (unpublished) (remanding to ALJ to
3
This and all other unpublished decisions are not precedential; they are cited for their
persuasive value only. See FED. R. APP. P. 32.1; 10TH CIR. R. 32.1.
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determine in first instance whether 1,300-1,600 positions available regionally and 190,000-210,00
positions available nationally constituted a significant number); Chavez v. Barnhart, 126 F. App’x
434, 436 (10th Cir. 2005) (unpublished) (declining to apply the harmless error doctrine and
remanding to the ALJ to determine whether 199 positions available regionally and 49,957 positions
available nationally constituted a significant number). Mindful that “‘the evaluation should
ultimately be left to the ALJ’s common sense in weighing the statutory language as applied to a
particular claimant’s factual situation,’” the Court declines to apply the harmless error doctrine and
find that the number of available positions is significant as a matter of law. Allen, 357 F.3d at 1144
(quoting Trimiar, 966 F.2d at 1330). The Court thus leaves to the ALJ the numerical significance
evaluation, allowing the ALJ to “give explicit consideration to the factors the [Tenth Circuit] has
recognized should guide the ALJ’s commonsense judgment.” Id.
In summary, the Court finds that the ALJ’s analysis at step five is incomplete and, for that
reason, the ALJ’s finding at step five is in error. On remand, the ALJ should determine, based on
the specific facts of plaintiff’s case, whether a significant number of clerical mailer positions are
available.
IT IS THEREFORE ORDERED that the Report and Recommendation (Dkt. # 19) is
accepted as revised herein, and the Commissioner’s decision is reversed and remanded for
further proceedings. A separate judgment is entered herewith.
DATED this 11th day of September, 2015.
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