Gerhard v. Commissioner of Social Security

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION 20 of Magistrate Judge Shon Erwin and reverses the final decision of the Commissioner and remands this case for further proceedings consistent with the attached Report and Recommendation. Signed by Honorable Joe Heaton on 01/29/2015. (Attachments: # 1 Attachment Report and Recommendation)(lam)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THELMA K. GERHARD,
v.

Plaintiff,

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No. CIV-14-188-HE

REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Commissioner of the Social Security Administration (“SSA”)
denying Plaintiff's applications for disability insurance benefits. United States District
Judge Joe Heaton has referred this matter to the undersigned magistrate judge for
initial proceedings consistent with 28 U.S.C. § 636(b) and Rule 72(b) of the Federal
Rules of Civil Procedure. The Commissioner has answered and filed the administrative
record (ECF No. 12) (hereinafter “Tr.”). The parties have briefed their positions, and the
case is now ready for decision. For the reasons discussed below, it is recommended
that the Commissioner's decision be REVERSED AND REMANDED for further
administrative proceedings.
I. PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff filed concurrent applications for DIB and SSI alleging disability due to
degenerative disc disease, neuropathy, high blood pressure, and depression. (Tr. 176).

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Following denial of her applications initially and on reconsideration, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on December 16,
2011. (Tr. 30-50). Plaintiff testified and was represented by an attorney at the hearing.
(Tr. 32, 35-49). The ALJ issued an unfavorable decision on January 17, 2012. (Tr. 1825, 26-29).
The Commissioner uses a five-step sequential evaluation process to determine
entitlement to disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity during the period from her alleged disability
onset date through the date of the decision. (Tr. 20). See 20 C.F.R. §§ 404.1571,
416.971. At step two, the ALJ determined that Plaintiff had the following severe
impairments: degenerative disc disease, diabetes mellitus, hypertension, depression,
and anxiety. (Tr. 20). See 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ
determined that Plaintiff's condition did not meet or equal any of the presumptively
disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). (Tr. 21). See 20 C.F.R. §§ 404.1520(d), 416.920(d).
The ALJ next assessed Plaintiff's residual functional capacity (“RFC”) based on all
of her impairments. (Tr. 22). See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
The ALJ found that Plaintiff had the RFC to perform a full range of light work. (Tr. 22).
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
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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.
20 C.F.R. § 404.1567(b) (defining “light work”); accord, 20 C.F.R. § 416.967(b).
Based upon this RFC, the ALJ determined that Plaintiff “is capable of performing
past relevant work as a customer care rep, cashier, direct care specialist and
housekeeper. This work does not require the performance of work related activities
precluded by the claimant’s residual functional capacity.” (Tr. 24) (citing 20 C.F.R. §§
404.1565, 416.965)). The ALJ stated as follows in support of this finding: “In comparing
the claimant’s residual functional capacity with the physical and mental demands of this
work, the undersigned finds that the claimant is able to perform it as actually and
generally performed.” (Tr. 24). On that basis, the ALJ held that Plaintiff had not been
disabled within the meaning of the Social Security Act at any time through the date of
the decision. (Tr. 24-25) (citing 20 C.F.R. §§ 404.1520(f), 416.920(f)).
The Appeals Council denied Plaintiff's request for review, making the ALJ's
unfavorable determination the final decision of the Commissioner. (Tr. 8-10).
II. STANDARD OF REVIEW
Judicial review of the Commissioner's final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole
and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167,
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1169 (10th Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d
758, 760 (10th Cir. 2003) (internal quotation marks omitted). “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.” Branum v. Barnhart, 385 F.3d 1268, 1270
(10th Cir. 2004) (internal quotation marks omitted). The court “meticulously examine[s]
the record as a whole,” including any evidence that may undercut or detract from the
administrative law judge's findings, to determine if the substantiality test has been met.

Wall, 561 F.3d at 1052 (internal quotation marks omitted). While the court considers
whether the Commissioner followed applicable rules of law in weighing particular types
of evidence in disability cases, the court does not reweigh the evidence or substitute its
own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272
(10th Cir. 2008).
III. ANALYSIS
Plaintiff raises one claim of error on appeal: that the ALJ failed to perform the
proper analysis in determining that Plaintiff's RFC allowed Plaintiff to perform her past
relevant work. Plaintiff’s Opening Brief, 6 (ECF No. 15:6). In particular, Plaintiff argues
that the ALJ neither inquired as to the physical and mental demands of her past
relevant work, nor called a vocational expert to offer testimony at the administrative
hearing. Plaintiff’s Opening Brief, 7 (ECF No. 15:7). Indeed, Plaintiff contends that there
are no findings “specifying, discussing, detailing, or explaining the demands of the
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Plaintiff’s past relevant work either as Plaintiff actually performed the work or as it is
customarily performed in the national economy.” Plaintiff’s Opening Brief, 8 (ECF No.
15:8). Plaintiff concludes that this shortcoming precludes the court from conducting a
meaningful review. Plaintiff’s Opening Brief, 8-9 (ECF No. 15:8-9).
In response, the Commissioner claims that the ALJ “implicitly determined the
residual functional capacity of Plaintiff’s past relevant work” by “implicitly [finding] that
the past work required light exertion or less. Brief in Support of Commissioner’s
Decision (Commissioner’s Brief), 5 (ECF No. 19:5). The Commissioner then argues that
one of Plaintiff’s past jobs—that of housekeeper—required only light exertion, and so
despite the fact that the “ALJ’s form did not exactly dovetail with the Commissioner’s
policy, Plaintiff has not shown harm.” Commissioner’s Brief, 6 (ECF No. 19:6). Thus, the
Commissioner concludes, Plaintiff has not met her burden of showing reversible error.
A. The Three Phases of the Step Four Determination
As noted above, the ALJ denied Plaintiff's claims at step four on the basis that
Plaintiff retained the ability to return to her past relevant work. Step four of the
sequential analysis comprises three phases:
In the first phase, the ALJ must evaluate a claimant's
physical and mental residual functional capacity (RFC), and
in the second phase, he must determine the physical and
mental demands of the claimant's past relevant work. In the
final phase, the ALJ determines whether the claimant has
the ability to meet the job demands found in phase two
despite the mental and/or physical limitations found in phase
one. At each of these phases, the ALJ must make specific

findings.

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Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (citations omitted); SSR 82–62,
1982 WL 31386, at *4 (Aug. 20, 1980); 20 C.F.R. §§ 404.1520(f), 416.920(f) (emphasis
added).
B. Phase Two: The Demands of Plaintiff's Past Relevant Work
Thus, in the second phase of step four, the ALJ “must determine the physical
and mental demands of the claimant's past relevant work.” Winfrey, 92 F.3d at 1023;
SSR 82–62, 1982 WL 31386, at *4; 20 C.F.R. §§ 404.1520(f), 416.920(f).
The agency's professed “need to know about ... any ...
physical ... duties” of the claimant's past jobs, 20 C.F.R. §§
404.1565(b), 416.965(b), along with the agency's extensive
requirements concerning the claimant's RFC, see 20 C.F.R.
§§ 404.1545, 416.945, necessarily imply that the ALJ must
make corresponding findings as to the demands of
claimant's past jobs.

Norris v. Apfel, 215 F.3d 1337 (10th Cir. 2000).
The undersigned finds that the ALJ's determination as to the demands of
Plaintiff's past relevant work is conclusory to an improper degree, and does not contain
the “specific findings” required by Winfrey and SSR 82–62. Winfrey, 92 F.3d at 1024;

Norris, 2000 WL 504882, at *4–5. Plaintiff's hearing testimony as to her previous work
was minimal and did not in any way shed light upon “the physical and mental demands”
of the three jobs discussed at the hearing: switchboard operator, rehabilitation
specialist, and cashier. (Tr. 45); Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d
359, 361 (10th Cir. 1993) (reversing for failure to comply with SSR 82–62 where “[t]he
transcript of the hearing before the ALJ reveal[ed] there was no inquiry regarding the
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nature of, and physical and mental demands associated with,” the claimant's previous
occupation). Plaintiff did fill out a form describing her previous jobs in a Disability
Report submitted to the SSA, Tr. 184-90, but the ALJ's decision contains no specific
findings either accepting or rejecting Plaintiff's description of the demands of the job or
otherwise matching any findings to the evidence. See Norris, 2000 WL 504882, at *5.
Nor does the ALJ make any reference to the DOT's definitions in order to explore the
demands of Plaintiff's past jobs and how such jobs are performed in the national
economy. See SSR 82–62, 1982 WL 31386, at *4.
For the ALJ's conclusion at step four to be valid, the ALJ was required to have
made “specific findings” of fact regarding each of the three phases contained therein.

See id. at *1; Sissom v. Colvin, 512 F. App'x 762, 769 (10th Cir. 2013); SSR 82–62,
1982 WL 31386, at *4. “Requiring the ALJ to make specific findings on the record at
each phase of the step four analysis provides for meaningful judicial review.” Winfrey,
92 F.3d at 1025. Here, the ALJ failed to “conduct an appropriate analysis at phase two
and, therefore, his findings at phase three of the analysis were naturally compromised.”

See Sissom, 512 F. App'x at 769; accord Winfrey, 92 F.3d at 1026. The undersigned
cannot conclude that this failure was harmless in view of the fact that the ALJ did not
make an alternative finding at step five that Plaintiff could adjust to other work. Cf.

Best–Willie v. Colvin, 514 F. App'x 728, 738 (10th Cir. 2013) (holding that step-four legal
error was harmless in view of ALJ also finding at step five that the claimant could
perform other jobs that existed in significant numbers in the national economy); 20
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C.F.R. §§ 404.1520(g), 416.920(g). Accordingly, remand is required for further findings
and analysis. See Sissom, 512 F. App'x at 769.
IV. RECOMMENDATION
Having reviewed the evidence of record, the transcript of the administrative
hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the
undersigned magistrate judge finds that the decision of the Commissioner should be
REVERSED AND REMANDED for further administrative proceedings.
The parties are advised of their right to file specific written objections to this
Report and Recommendation. 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such
objections should be filed with the Clerk of the District Court by January 5, 2015. The
parties are further advised that failure to make timely objection to this Report and
Recommendation waives the right to appellate review of the factual and legal issues
addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation terminates the referral by the District Judge in
this matter.
ENTERED on December 22, 2014.

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