Jacobs v. Commissioner of Social Security

Filing 24

OPINION AND ORDER. The decision of the Commissioner is reversed and the case remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by Magistrate Judge Charles B Goodwin on 06/30/2017. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CRYSTAL G. JACOBS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,1
Defendant.

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Case No. CIV-16-611-CG

OPINION AND ORDER
Plaintiff Crystal G. Jacobs 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 application for supplemental security income
(“SSI”) under the Social Security Act, 42 U.S.C. §§ 1381-1383f. The parties have
consented to the jurisdiction of a United States Magistrate Judge. Upon review of the
administrative record (Doc. No. 8, hereinafter “R. _”), and the arguments and authorities
submitted by the parties, the Court reverses the Commissioner’s decision and remands the
case for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her SSI application on May 21, 2012, alleging disability
due to several physical conditions. R. 198, 241, 245. Following denial of her application

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The Current Acting Commissioner is substituted as Defendant in this action pursuant to
Federal Rule of Civil Procedure 25(d) and 42 U.S.C. § 405(g).

initially and on reconsideration, a hearing was held before an Administrative Law Judge
(“ALJ”) on September 3, 2014. R. 7-30. In addition to Plaintiff, a vocational expert (“VE”)
testified at the hearing. R. 31, 36-55. The ALJ issued an unfavorable decision on January
12, 2015. R. 10-24.
The Commissioner uses a five-step sequential evaluation process to determine
entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since May 21, 2012. R. 12. At step two, the ALJ determined
that Plaintiff had the severe impairments of degenerative disc disease, carpal tunnel
syndrome by history, and obesity. R. 12-20. At step three, the ALJ found 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”). R. 20.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
of her medically determinable impairments. R. 20-23. The ALJ found:
[Plaintiff] has the [RFC] to lift and carry 20 pounds occasionally and 10
pounds frequently. [Plaintiff] can sit for about 6 hours during an eight-hour
workday and can stand and walk for about 6 hours during an eight-hour
workday. [She] can occasionally climb, balance, stoop, kneel, crouch, and
crawl. [Plaintiff] can frequently handle and finger.
R. 20.
At step four, the ALJ found that Plaintiff’s RFC allowed her to perform her past
relevant work of Cashier (Box Office Attendant). R. 23. The ALJ therefore concluded
that Plaintiff had not been disabled within the meaning of the Social Security Act during
the relevant time period. R. 24.

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Plaintiff’s request for review by the SSA Appeals Council was denied, and the
unfavorable determination of the ALJ stands as the Commissioner’s final decision. See R. 14; 20 C.F.R. § 416.1481.
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, 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 ALJ’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).
ANALYSIS
In this action, Plaintiff argues that remand is required because (i) the ALJ failed to
properly evaluate Plaintiff’s cervical-spine impairment and resulting limitations, and (ii)
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the ALJ erred in finding that Plaintiff could return to her past relevant work. See Pl.’s Br.
(Doc. No. 15) at 2-10; Pl.’s Reply (Doc. No. 23) at 1-3.
I.

Plaintiff’s Cervical-Spine Impairment
Plaintiff first asserts that the ALJ erred at step two by failing to consider Plaintiff’s

cervical-spine condition and find that such condition was a severe, medically determinable
impairment (“MDI”). See Pl.’s Br. at 3-8; Pl.’s Reply at 1-2. The undersigned agrees that
significant medical evidence in the record indicates that Plaintiff’s cervical-spine condition
was a MDI pursuant to 20 C.F.R. § 416.921 and was “severe” in nature—i.e., that the
condition “significantly limit[ed]” Plaintiff’s “ability to do basic work activities,” 20
C.F.R. § 416.920(c).
In the course of his regular treatment of Plaintiff’s pain and other issues, Harvey
Jenkins, PhD, MD, referred Plaintiff for MRI studies of her cervical and lumbar spine. R.
617-19. These studies were performed on July 29, 2014. See R. 608 (MRI of lumbar
spine), 609 (MRI of cervical spine). With respect to the cervical-spine images, the
reviewing physician found: “[m]ild facet degenerative changes” at C3-4 and C4-5,
“[m]oderate right C6-7 neural foraminal orifice stenosis,” and “[d]isc osteophyte
complexes with mild acquired central spinal canal stenosis at C6-7 and C5-6.” R. 609.
After reviewing both MRIs, Dr. Jenkins determined that Plaintiff “has some degenerative
changes present as well as some neuroforaminal stenosis.” R. 614. In addition, the record
contains clinical findings of reduced motor strength in the biceps and triceps, pain and/or
stiffness associated with the cervical spine and shoulders, and a positive Spurling test on
the left side. R. 504, 507, 511, 619.
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The Commissioner does not dispute that Plaintiff’s impairment should have been
found to be a severe MDI but argues that the ALJ’s error was harmless. See Def.’s Br.
(Doc. No. 20) at 7. It is true that “a failure to find an impairment medically determinable”
may be harmless “if the ALJ consider[s] the non-medically determinable impairment in
assessing the RFC.” Ray v. Colvin, 657 F. App’x 733, 734 (10th Cir. 2016). Similarly, a
failure to find a MDI to be severe at step two is usually harmless if the ALJ “finds another
impairment is severe and proceeds to the remaining steps of the evaluation,” because in so
doing the ALJ will be required to consider “all [MDIs], severe or not . . . at those later
steps.” Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010) (emphasis omitted);
see also 20 C.F.R. §§ 416.923, .945(a)(2). As explained below, although the ALJ found
other severe MDIs and proceeded through steps three and four of the sequential evaluation,
the ALJ’s written decision does not reflect that the ALJ properly considered Plaintiff’s
cervical-spine impairment and associated limitations at those steps.
First, as noted by Plaintiff, the ALJ failed at step three to specifically evaluate the
relevant impairment for purposes of Listing 1.04, which addresses disorders of the spine and
spinal cord. See R. 20; Pl.’s Br. at 5-6 (citing evidence in the record as allegedly supporting
the presence of Listing 1.04(A) factors “nerve root compression characterized by neuroanatomic distribution of pain,” “limitation of motion of the spine,” and “motor loss”
“accompanied by sensory or reflex loss”); 20 C.F.R. pt. 404, subpart P app. 1, § 1.04(A). In
the written decision, the ALJ broadly held that various types of evidence that would have
“me[t] the requirements for listed musculoskeletal impairments or neurological impairments”
were not present in the record, but the ALJ did not “identify the relevant Listing or Listings”
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or “discuss the evidence” that was present in the record. R. 20; Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). In response, the Commissioner points to evidence in the record
that supports the ALJ’s step-three finding, but the Commissioner does not specifically dispute
that Plaintiff’s cited items reasonably implicate consideration of Listing 1.04 and does not
adequately explain the ALJ’s failure to address that Listing. See Def.’s Br. at 7-8. Under
these circumstances, the ALJ’s “bare conclusion” fails to allow “meaningful judicial review”
of the step-three determination. Clifton, 79 F.3d at 1009; see also Grogan v. Barnhart, 399
F.3d 1257, 1263 (10th Cir. 2005) (“[T]he district court may not create post-hoc
rationalizations to explain the Commissioner’s treatment of evidence when that treatment
is not apparent from the Commissioner’s decision itself.”).
Second, in determining Plaintiff’s RFC, the ALJ relied on the lack of a relevant MDI
to reject alleged physical limitations that are consistent with a cervical-spine MDI. See R. 20,
23. Thus, in this instance the ALJ’s error at step two is not resolved by the subsequent RFC
assessment, but fatally undermines it. In the written decision, the ALJ discussed much of the
medical evidence in the record, including a report of a consultative medical examination
performed by John Saidi, MD, on November 20, 2013. See R. 13-14, 17, 18, 20, 13 (citing
R. 502-11 (Ex. 15F)). Relevant here, Dr. Saidi found that Plaintiff had a normal range of
motion for her shoulders but with associated pain and stiffness, a “stiff” range of motion for
her cervical spine, pain and stiffness associated with her shoulder joints, and 4/5 motor
strength in her biceps and triceps. R. 504, 507, 511. Dr. Saidi opined that Plaintiff could
reach overhead, handle, or push/pull only “[o]ccasionally” (up to ⅓ of the time) and could
reach (otherwise), finger, and feel “[f]requently” (⅓ to ⅔ of the time). R. 504.
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The ALJ gave “some weight” to Dr. Saidi’s medical opinion, concurring with many
of the limitations imposed by the physician. R. 23. But the ALJ’s RFC omitted any
limitations on reaching, feeling, or pushing/pulling, stating:
[T]he record shows no medically determinable impairments related to
shoulders or overhead reaching limitations. The [ALJ] notes in 2013, the
claimant had unremarkable CT scans of cervical, lumbar, thoracic spine, and
head (Exhibit 10F).
R. 23; see R. 20. Because the ALJ’s primary rationale for rejecting the limitations on
reaching—“no medically determinable impairments”—relies on a finding that is not
reasonably supported by the record that was before the ALJ in January 2015, the ALJ’s
evaluation of Dr. Saidi’s opinion in that regard, and resulting RFC determination, is not
supported by substantial evidence.
Further, although the ALJ’s RFC determination discusses in detail Plaintiff’s lumbarspine MRI of July 29, 2014, the ALJ fails entirely to mention that Plaintiff also had a cervicalspine MRI performed on that same date or to discuss this latter MRI. See R. 15, 23. The ALJ
also mistakenly characterizes Dr. Jenkins’ assessment of both MRI studies as an assessment
of only the lumbar-spine study. R. 15 (citing R. 614). This omission and error undermine the
RFC determination, because the ALJ may not properly “pick and choose among medical
reports, using portions of evidence favorable to his position while ignoring other evidence.”
Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004); see also Clifton, 79 F.3d at 1009,
1010 (explaining that the “record must demonstrate that the ALJ considered all of the
evidence” and that “in addition to discussing the evidence supporting his decision, the ALJ

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also must discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects”).
For all of these reasons, the ALJ’s errors at step two, step three, and in the RFC
determination require remand.
II.

Plaintiff’s Ability to Perform Past Relevant Work
The ALJ’s deficient RFC additionally undermines his step-four conclusion that

Plaintiff was not disabled because she could return to her prior work as a box-office cashier
as it is actually and generally performed. See R. 23. As noted above, Dr. Saidi opined that
Plaintiff was limited to only occasional (up to ⅓) or frequent (⅓ to ⅔) types of reaching, R.
504, and the ALJ’s rejection of these limitations is premised upon a finding that is not
supported by substantial evidence in the record. The Dictionary of Occupational Titles
(“DOT”) states, however, that the occupation of box-office cashier requires “[c]onstant[]”
reaching—i.e., that activity occurs two-thirds or more of the time. See DOT (4th rev. ed.
1991) 211.467-030 (Ticket Seller), 1991 WL 671853. Thus, if Dr. Saidi’s limitations on
reaching were accepted, Plaintiff would not be able to perform her past relevant work.
Moreover, the ALJ’s step-four conclusion is otherwise unsupported by substantial
evidence and based on legal error. At the administrative hearing, the ALJ asked the VE
whether an individual who could perform light work but only “frequently handle and
finger” would be able to perform a box-office cashier job, and the VE answered yes. R.
53-54. The ALJ relied on that testimony in determining that Plaintiff can return to her prior
work as a box-office cashier. R. 23. The VE, however, did not note the discrepancy
between the abilities of the hypothetical and those in the DOT description for box-office
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cashier, the latter of which requires not just frequent but “[c]onstant[]” handling and
fingering. See R. 53, 54; DOT 211.467-030, 1991 WL 671853.
Before relying upon a VE’s testimony “to support a disability . . . decision, [ALJs]
must . . . [i]dentify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by VEs . . . and information in the [DOT] . . . and [e]xplain
in the . . . decision how any conflict that has been identified was resolved.” SSR 00-4p,
2000 WL 1898704, at *1 (Dec. 4, 2000). Here, the ALJ failed to either “identify” or
“explain” the direct conflict between the DOT and the VE’s evidence, and he relied solely
upon that latter evidence in finding that Plaintiff could return to her past relevant work.
See R. 23, 54.
The Commissioner does not dispute the discrepancy but argues that the ALJ did not
err because no conflict was “apparent”—i.e., specifically raised to the ALJ’s attention
during the administrative hearing. See Def.’s Br. at 10-11. This response misapprehends
how the term “apparent” is used in the relevant Ruling and improperly conflates the ALJ’s
duty “to ask” the VE about possible conflicts with the ALJ’s duty to resolve all conflicts
in the final disability decision.
When vocational evidence provided by a VE . . . is not consistent with
information in the DOT, the [ALJ] must resolve this conflict before relying
on the VE . . . evidence to support a . . . decision that the individual is or is
not disabled. The [ALJ] will explain in the . . . decision how he or she
resolved the conflict. The [ALJ] must explain the resolution of the conflict
irrespective of how the conflict was identified.
SSR 00-4p, 2000 WL 1898704, at *4 (emphasis added); see also id. at *2.

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Because the ALJ failed to “investigate and elicit a reasonable explanation” for the
conflict between the DOT and the VE’s testimony, or to resolve this conflict in the written
decision, the VE’s testimony cannot stand as “substantial evidence to support a
determination of nondisability.” Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999);
see R. 23; cf. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited
by hypothetical questions that do not relate with precision all of a claimant’s impairments
cannot constitute substantial evidence to support the Secretary’s decision.” (alteration and
internal quotation marks omitted)). Remand is required.
CONCLUSION
The decision of the Commissioner is reversed and the case remanded for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment
shall be entered.
ENTERED this 30th day of June, 2017.

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