Harrigan v. Commissioner of Social Security

Filing 16

ORDER declining to adopt Report and Recommendation 13 and reversing and remanding this matter to the Social Security Administration for further proceedings.. Signed by Honorable David L. Russell on 03/09/2015. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JO HARRIGAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

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Case No. CIV-14-113-R

ORDER
Plaintiff filed this action seeking review of the decision of the Commissioner
denying her application for disability insurance benefits. Pursuant to 28 U.S.C. §
636(b)(1)(B), the matter was referred to United States Magistrate Judge Gary M. Purcell
for preliminary review.

On January 20, 2015, Judge Purcell issued a Report and

Recommendation wherein he recommended that the decision of the Commissioner be
affirmed. Doc. No. 13, at 1. The matter is currently before the Court on Plaintiff’s
objection to the Report and Recommendation [Doc. No. 14], giving rise to the Court’s
obligation to conduct a de novo review.
Plaintiff challenges the Report and Recommendation on three grounds. First, she
argues that, contrary to Social Security Ruling 96-8p, the Administrative Law Judge’s
(“ALJ”) finding of Plaintiff’s residual functional capacity (“RFC”) did not express her
“nonexertional capacity … in terms of work-related functions” or “[w]ork-related mental
activities.” Doc. No. 14, at 2 (quoting Jaramillo v. Colvin, 576 F. App’x 870, 874 (10th

Cir. 2014) (unpublished)). Second, she contends that the ALJ did not explain why he
found the opinion of Plaintiff’s treating physician to be inconsistent with or not supported
by the evidence. Id. at 5. Finally, Plaintiff argues that the ALJ erred in not explaining
why he did not adopt the opinion of the Consultative Examiner, who found that she has a
Global Assessment of Functioning score of 48, that her prognosis is “fair,” and that she
was “emotionally vacant” during her evaluation. Id. at 6-7. Because the Court finds
Plaintiff is entitled to reversal and remand on the first of these arguments, the
undersigned addresses only that issue.
Evaluation Process
The Social Security Act defines a disability as the “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). The Commissioner follows a five-step evaluation process to determine
whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4); Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988) (describing process). In the first four steps, the claimant
bears the burden of establishing a prima facie case of her disability. Williams, 844 F.2d at
751 & n.2. If she succeeds, the fifth step involves “determining whether the claimant has
the residual functional capacity (RFC) ‘to perform other work in the national economy in
view of [her] age, education, and work experience.’” Id. at 751 (quoting Bowen v.
Yuckert, 482 U.S. 137, 142 (1987)). The RFC “represents the most that an individual can
do despite his or her limitations or restrictions.” SSR 96-8P, 1996 WL 374184, at *4
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(July 2, 1996). At this last step, the burden shifts to the Commissioner to establish that
despite the claimant’s medical impairments, she “retains the capacity ‘to perform an
alternative work activity and that this specific type of job exists in the national
economy.’” Williams, 844 F.2d at 751 (citations omitted).
“To meet this burden, the Secretary may rely on the Medical-Vocational
Guidelines (grids), 20 C.F.R., pt. 404, subpt. P, App. 2 (1986).” Id. “The grids are
matrices of the ‘four factors identified by Congress—physical ability, age, education, and
work experience—and set forth rules that identify whether jobs requiring specific
combinations of these factors exist in significant numbers in the national economy.’”
Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998) (quoting Heckler v. Campbell,
461 U.S. 458, 461–62 (1983)). Use of the grids is not appropriate unless the ALJ finds
“(1) that the claimant has no significant nonexertional impairment, (2) that the claimant
can do the full range of work at some RFC level on a daily basis, and (3) that the claimant
can perform most of the jobs in that RFC level.” Thompson v. Sullivan, 987 F.2d 1482,
1488 (10th Cir.1993).
Standard of Review
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citation
omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (citation omitted).

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Analysis
Plaintiff contends that the ALJ’s RFC finding does not sufficiently convey his
separate findings of her nonexertional limitations. Under Social Security Ruling 96-8p,
“nonexertional capacity [which includes mental limitations] must be expressed in terms
of work-related functions” or “[w]ork-related mental activities.” Jaramillo, 576 F. App’x
at 874 (quoting SSR 96-8P). When a claimant’s capacity to perform a particular workrelated mental function is impaired, this fact “must be related with sufficient precision …
in an RFC finding.” Id. at 876.
The Tenth Circuit recently ruled in an unpublished decision that an ALJ’s
hypothetical to a Vocational Expert (“VE”) did not clearly convey the moderate
impairments that a physician concluded the claimant had, when the ALJ had placed
“great weight” on this physician’s opinion. Id. at 876-77. The physician found the
claimant to be “moderately limited in his ability to (1) carry out instructions, (2) attend
and concentrate, and (3) work without supervision.” Id. at 872. In that case, the ALJ
conveyed to the VE that the claimant “retained the residual functional capacity (RFC) to
perform sedentary work, but was ‘limited to simple, routine, repetitive and unskilled
tasks,’ and had to avoid all exposure to direct sunlight.” Id. at 872. The Tenth Circuit held
that “the ALJ’s reliance on the jobs the VE identified in response to the hypothetical was
not supported by substantial evidence” because “[t]he limitation to simple, routine,
repetitive, and unskilled tasks the ALJ included in his hypothetical” was not “logically
connected to any of the moderate limitations that [the physician] found.” Id. at 876-77.

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Here, the ALJ found that Plaintiff’s severe mental impairments cause her to have
“moderate difficulties in maintaining social functioning[ and] moderate difficulties in
maintaining concentration, persistence, or pace.” Social Security Administration Record,
Doc. No. 9, at 21-22. “[A] moderate impairment is not the same as no impairment at all,”
but rather “supports the conclusion that the individual’s capacity to perform the activity is
impaired.” Jaramillo, 576 F. App’x at 876 (quoting Haga v. Astrue, 482 F.3d 1205, 1208
(10th Cir. 2007); Social Security Administration’s Program Operations Manual System
DI 24510.063 B.2). Therefore, these moderate impairments “must be related with
sufficient precision … in an RFC finding.” Id.
The ALJ outlined Plaintiff’s RFC as follows:
Since December 15, 2010, the claimant has possessed the residual
functional capacity to perform a wide range of semi-skilled, light work as
defined in 20 CFR 404.1567(b) and 404.1568(b). Specifically, she can lift,
carry, push, and pull 10 pounds frequently and 20 pounds occasionally;
stand and/or walk 6 hours in an 8-hour work day; sit 6 hours in an 8-hour
work day; frequently grasp, feel, twist, turn, reach, and work overhead;
frequently vs. [sic] occasionally climb, balance, stoop, kneel, crouch, and
crawl. She must avoid more than occasional exposure to concentrated
levels [of] fumes, odors, dust, gases, poor ventilation, and etc. She can
understand, remember, and carry out simple job[s] and some complex
instructions and tasks; adequately make adaptations to working
environments and adequately deal with changes in work processes and
environment; and frequently relate to and interact with co-workers,
supervisors, and patients and occasionally related [sic] to and interact with
the general-public.
Social Security Administration Record, Doc. No. 9, at 22. Nothing in this finding
conveys Plaintiff’s moderate limitation, which the ALJ himself found, with regard to
“maintaining concentration, persistence, or pace.” The Tenth Circuit has held in
unpublished decisions that an ALJ’s failure to incorporate moderate difficulties in
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maintaining concentration, persistence, or pace in an RFC finding conveyed to a
Vocational Expert was reversible error.1 The ALJ’s failure to relate this limitation in his
RFC finding violates Social Security Ruling 96-8p, which requires a claimant’s
impairment to be conveyed in an RFC finding with sufficient precision. Jaramillo, 576 F.
App’x at 876.
This error was not harmless because “a failure to first make a function-by-function
assessment of the individual’s limitations or restrictions” could cause the ALJ to
“overlook limitations or restrictions that would narrow the ranges and types of work an
individual may be able to do.” SSR 96-8P, 1996 WL at *3-4. If the ALJ had incorporated
Plaintiff’s moderate limitation of maintaining concentration, persistence, or pace into his
RFC finding, he would have been more likely to consider and explain whether this
limitation was significant enough to preclude use of the grids to determine whether
Plaintiff was disabled. See Thompson, 987 F.2d at 1488. The conclusory manner in which
the ALJ applied the grids leads the Court to conclude that he did, in fact, overlook
Plaintiff’s nonexertional limitation regarding maintaining concentration, persistence, or
pace.
“The mere presence of a nonexertional impairment does not preclude reliance on
the grids.” Thompson, 987 F.2d at 1488 (citations omitted). The ALJ is precluded from
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Crowder v. Colvin, 561 F. App’x 740, 746 (10th Cir. 2014) (“If the ALJ again chooses to assess
moderate impairments in concentration, persistence, and pace at step three, but not to include any
limitation in concentration, persistence, and pace in the RFC at step four, he should explain the basis for
his decision.”); Wiederholt v. Barnhart, 121 F. App’x 833, 839 (10th Cir. 2005) (“The relatively broad,
unspecified nature of the description ‘simple’ and ‘unskilled’ does not adequately incorporate the ALJ’s
additional, more specific findings regarding Mrs. Wiederholt’s mental impairments. Because the ALJ
omitted, without explanation, impairments that he found to exist, such as moderate difficulties
maintaining concentration, persistence, or pace, the resulting hypothetical question was flawed.”).
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using the grids only when the “nonexertional impairments are significant enough to limit
[the claimant’s] ability to perform the full range of jobs” available. Channel v. Heckler,
747 F.2d 577, 582-83 (10th Cir. 1984). It is appropriate to use the grids when “the
claimant can perform a substantial majority of the work in the designated RFC category.”
Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (citations omitted).
The ALJ found that Plaintiff possesses the RFC “to perform a wide range of semiskilled, light work.” Social Security Administration Record, Doc. No. 9, at 22. “The basic
mental demands of competitive, remunerative, unskilled work include the abilities (on a
sustained basis) to understand, carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting.” Jaramillo, 576 F. App’x at 875 (quoting SSR 85-15,
1985 WL 56857, at *4 (Jan. 1, 1985)) (emphasis added) (footnote omitted). It would be
reasonable to conclude that a claimant who is moderately limited in her ability to
maintain concentration, persistence, or pace would not be able to engage even in the
above activities required for unskilled work on a sustained basis. Thus, one would expect
an explanation for why the ALJ used the grids in this case, given his finding that Plaintiff
has this particular limitation. Instead, after repeating several rules that apply to the grids,
the ALJ stated in a conclusory fashion that Plaintiff’s “additional limitations have little or
no effect on the occupational base of unskilled light work.” Social Security
Administration Record, Doc. No. 9, at 27-28. He provided no explanation for this
determination.

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“[I]t is well settled that administrative agencies must give reasons for their
decisions.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (citation omitted). To
find that a nonexertional impairment has a negligible effect on the range of jobs
available, the ALJ must “back such a finding … with the evidence to substantiate it.”
Talbot v. Heckler, 814 F.2d 1456, 1465 (10th Cir. 1987). “Here, the ALJ gave his
conclusion but not the reason for his conclusion.” Kepler, 68 F.3d at 391. He simply
applied the grids instead of explaining why Plaintiff’s “additional limitations have little
or no effect on the occupational base of unskilled light work,”2 indicating that he
overlooked his prior finding of her moderate limitation regarding maintaining
concentration, persistence, or pace. This was likely caused, at least in part, by his failure
to express this moderate limitation in his RFC finding in terms of work-related functions.
Conclusion
Because use of the grids is appropriate only when any nonexertional impairments
are not significant enough to limit the claimant’s ability to perform the full range of jobs
available, and the RFC finding in this case did not incorporate one of Plaintiff’s
nonexertional impairments relevant to her ability to perform unskilled work, the ALJ’s
finding directed by the grids that Plaintiff is not disabled is not supported by substantial
evidence. The Court declines to adopt the Report and Recommendation [Doc. No. 13],

2

See Roth-Riemann v. Colvin, No. CIV-12-1287-W, 2014 WL 199003, at *4-5 (W.D. Okla. Jan. 16.,
2014) (finding the ALJ’s conclusive reliance on the grid improper, in part, because the RFC assessment
was “overly broad” and did not explain why the plaintiff’s nonexertional impairments did not preclude
her from performing unskilled work); Noble v. Astrue, No. 09-1386-JWL, 2010 WL 4792494, at *6 (D.
Kan. Nov. 17, 2010) (“[T]he ALJ did not explain how he determined these limitations have little or no
effect on the occupational base of unskilled light work.”).
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and this matter is reversed and remanded to the Commissioner for additional proceedings
consistent herewith.
IT IS SO ORDERED this 9th day of March, 2015.

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