Doom v. Colvin

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION for 21 Report and Recommendation. REVERSES the final decision of the Commissioner, and REMANDS the case for further proceedings consistent with the Report and Recommendation. This decision does not suggest or imply any view as to whether Plaintiff is or is not disabled,or what result should be reached on remand. Signed by Honorable David L. Russell on 6/13/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAMES DOOM,
Plaintiff,
v.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-15-409-R

ORDER
Plaintiff James Doom filed this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of the decision of the Commissioner of the Social Security Administration
denying his application for disability insurance benefits (“DIB”) under the Social Security
Act. Pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), this Court referred the matter to United
States Magistrate Judge Shon T. Erwin for preliminary review. Judge Erwin issued a
Report and Recommendation wherein he recommended that the decision of the
Commissioner be reversed and the case remanded. Doc. No. 21. The matter is currently
before the Court on the Commissioner’s objection to the Report and Recommendation
(Doc. No. 22), giving rise to the Court’s obligation to conduct a de novo review. For the
reasons discussed below, the undersigned concurs with Judge Erwin and ADOPTS his
Report and Recommendation. The decision of the Commissioner is reversed, and the
matter remanded for further administrative proceedings.

I.

Background
Plaintiff James Doom appeals the decision of the ALJ which found that he was not

disabled. Judge Erwin found that remand was warranted based on the ALJ’s assessment
of Plaintiff’s mental impairment. 1 As only the Commissioner has objected to the Report
and Recommendation, the Court addresses only this ground.
II.

The Report and Recommendation
Judge Erwin recommended that the case be remanded because the Administrative

Law Judge (“ALJ”) did not properly account for certain opinions by the state-agency
consultant, Dr. Diane Hyde, relating to Plaintiff’s mental impairments. Dr. Hyde
identified the following work-related limitations:
 Marked limitations in his ability to understand, remember, and carry out
detailed instructions,
 The ability to perform simple tasks with routine supervision,
 The ability to relate to others on a superficial basis,
 The ability to adapt to a work situation for simple, work-related purposes,
and
 The inability to have contact with the general public.
Transcript of Administrative Record (“Tr.”) at 897-99. The ALJ explicitly acknowledged
some of Dr. Hyde’s opinions regarding Plaintiff’s ability to perform simple tasks with
routine supervision and relate to others superficially. Tr. at 18, 51. However, as Judge
Erwin noted, the ALJ’s RFC and hypothetical to the vocational expert only included a
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Judge Erwin also concluded that the ALJ did not err in failing to perform a “function-by-function” assessment, nor did the ALJ err in its conclusions regarding Mr. Doom’s physical
impairments or the ALJ’s consideration of Mr. Doom’s impairments regarding his “degenerated knees and back and inability to fully use his dominant hand.” Plaintiff has not filed
an objection to the Magistrate Judge’s Report and Recommendation and therefore has waived appellate review as to these issues. United States v. One Parcel of Real Property, 73
F.3d 1057, 1059-60 (10th Cir. 1996).

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limitation regarding Plaintiff’s interaction with the general public. Doc. No. 21, at 8, 11.
This inconsistency, Judge Erwin concluded, represented an apparent rejection of some of
Dr. Hyde’s opinions. Doc. No. 21, at 8. Because this rejection was unaccompanied by an
explanation, Judge Erwin concluded, remand was appropriate on this basis alone. Doc.
No. 21, at 7-9 (citing to Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2017), Lopez v.
Colvin, 2016 WL 766408 (10th Cir. Feb 29, 2016); Martinez v. Astrue, 422 F. App’x 719
(10th Cir. 2011)).
However, Judge Erwin also considered the Commissioner’s argument that the ALJ
accounted for these mental impairments by limiting Plaintiff to unskilled work. At the
outset, Judge Erwin noted that the Commissioner’s argument was factually inaccurate.
That is, the ALJ did not – in either his RFC or his hypothetical to the vocational expert –
actually include a limitation on unskilled work.
Even if the ALJ had included such a limitation, Judge Erwin reasoned, it would not
be sufficient to accommodate the mental impairments at issue. In reaching this
conclusion, Judge Erwin analyzed Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), upon
which Plaintiff heavily relied, and Vigil v. Colvin, 805 F.3d 1199 (10th Cir. 2015), upon
which the Commissioner heavily relied. Judge Erwin concluded that Vigil is
distinguishable and Chapo is applicable:
The distinguishing factors in Vigil and Chapo are decisive to
resolution of the issue here. In Vigil, the work-related
limitation dealt only with skill level and was expressed
accordingly, by the ALJ’s limitation in the RFC to “unskilled
work.” Thus, the Court found no error because the workrelated limitation and the RFC dealt only with skill level. But
in Chapo, the work-related limitations went beyond “skill
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level,” including limitations like the ones espoused by Dr.
Hyde in the instant case. And like in Chapo, the ALJ here
only included one limitation in the hypothetical to the
VE—regarding Mr. Doom’s inability to deal with the general
public.
Id. at 9-10.
Accordingly, Judge Erwin recommended reversal and remand on the alternative
ground that a limitation to unskilled work would be insufficient to address the mental
impairments at issue.
III.

THE COMMISSIONER’S OBJECTION
The Commissioner objects, arguing first that the ALJ “did account for Dr. Hyde’s

opinions – by ultimately finding that Plaintiff could perform unskilled work.” Doc. No.
22 at 2. Second, the Commissioner argues that under Vigil, a limitation to unskilled work
is sufficient to accommodate the mental impairments at issue.
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] 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). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
V.

ANALYSIS
The Commissioner’s arguments in her Objection all suffer from the same fatal

flaw: neither the RFC nor the hypothetical to the vocational expert included a limitation

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for unskilled work. Tr. at 18, 51. Rather, the ALJ determined that Plaintiff could work the
jobs the vocational expert identified – which happened to be unskilled. Tr. at 23.
The Commissioner’s argument that the ALJ “accounted” for the mental
impairments through a limitation of unskilled work requires the Court to read several
rationalizations into the ALJ’s decision. First, the Court would need to read a limitation of
unskilled work into the RFC and the hypothetical to the vocational expert. Next, the Court
would have to read into the ALJ’s analysis that he included this limitation to address the
mental impairments listed above. This type of analysis would be a post-hoc justification
of the ALJ’s decision, something this Court cannot do. Haga, 482 F.3d at 1207-08 (this
court may not create or adopt post-hoc rationalizations to support the ALJ’s decision that
are not apparent from the ALJ’s decision itself); Benavidez v. Colvin, 2016 WL 3135830,
at *3 (10th Cir. May 26, 2016) (declining to entertain post-hoc justifications) (citing id.;
Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007)).
Accordingly, the undersigned agrees with Judge Erwin that it appears that the ALJ
rejected some portions of Dr. Hyde’s opinion while adopting others. The ALJ’s failure to
explain this apparent rejection is alone grounds for reversal. See Haga, 482 F.3d at 1208
(error for ALJ to fail to explain why rejected some restrictions while appearing to adopt
others); Martinez, 422 F. App’x 719 (10th Cir. 2011) (same).
Moreover, the fact that the RFC and the hypothetical failed to include a limitation
to unskilled work makes this case more analogous to Chapo than Vigil. The ALJ in Vigil
specifically addressed evidence that the impairments at issue precluded him from
performing complex tasks. Id. at 1203. The ALJ then accounted for these mental
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impairments by a limitation to unskilled work in the RFC. Id. Similarly, in Hernandez v.
Colvin, another case the Commissioner cites in her Objection, it was apparent from the
ALJ’s decision why the limitation of unskilled work covered the impairment at issue. 567
F. App’x 576, 582-83 (10th Cir. 2014). By contrast, in this case, not only is there no such
limitation, there is not an explanation for how a limitation to unskilled would address the
mental impairments that Dr. Hyde identified, in particular those related to Plaintiff’s (1)
marked limitations in his ability to understand, remember, and carry out detailed
instructions; (2) ability to perform simple tasks with routine supervision, (3) ability to
relate to others only on a superficial basis, and (4) ability to adapt to a work situation for
simple, work-related purposes. If the Court were to affirm the ALJ’s holding, it would
have to read such an explanation, post hoc, into the ALJ’s decision. As discussed above,
the Court is not permitted to do so. Accordingly, the undersigned cannot agree with the
Commissioner that the ALJ accounted for these impairments in his decision.2
Thus, on the record before the Court, it appears that the ALJ either rejected
portions of Dr. Hyde’s opinion without explanation, or failed to account for certain
mental impairments in his decision and thus provided a defective hypothetical to the
vocational expert. Either defect constitutes grounds for reversal and remand.
Accordingly, the undersigned agrees with the analysis of Judge Erwin and finds
reversal and remand is warranted.

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Because the adoption of Commissioner’s position would require impermissible post-hoc
rationalizations, the undersigned need not reach the question of whether, as Judge Erwin found, Dr.
Hyde’s opinions “reached beyond ‘skill level,’” such that a limitation to unskilled work would have been
insufficient.
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VI.

CONCLUSION
For the reasons stated above, the court ADOPTS the Report and Recommendation

[Doc. No. 21], REVERSES the final decision of the Commissioner, and REMANDS the
case for further proceedings consistent with the Report and Recommendation. This
decision does not suggest or imply any view as to whether Plaintiff is or is not disabled,
or what result should be reached on remand.
IT IS SO ORDERED this 13th day of June, 2016.

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