Walling v. Commissioner of Social Security Administration

Filing 28

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 Honorable Charles Goodwin on 02/25/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT JOHN WALLING,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-17-884-CG

OPINION AND ORDER
Plaintiff Robert John Walling 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
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, id. §§
1381-1383f. The parties have consented to the jurisdiction of a United States Magistrate
Judge. Upon review of the administrative record (Doc. No. 13, hereinafter “R. _”),1 and
the arguments and authorities submitted by the parties, the Court reverses the
Commissioner’s decision and remands for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed his DIB and SSI applications on September 30, 2013; his
alleged disability-onset date was ultimately amended to, June 29, 2013. R. 20, 42, 233-54.
With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
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Following denial of his applications initially and on reconsideration, a hearing was held
before an Administrative Law Judge (“ALJ”) on December 15, 2015. R. 37-79, 133-37,
138-41, 144-46, 147-49. The ALJ issued an unfavorable decision on March 24, 2016. R.
17-30.
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. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since June 29, 2013, the alleged disability-onset date. R. 22.
At step two, the ALJ determined that Plaintiff had the severe impairments of status post
remote right ankle surgery, status post right inguinal hernia repair, left thumb injury status
post repair, and degenerative disc disease by history. R. 22-25. 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. R. 25.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
his medically determinable impairments. R. 25-29. The ALJ found:
[Plaintiff] has the [RFC] to lift and carry 50 pounds occasionally and 25
pounds frequently. [Plaintiff] can sit for about six hours during an eight-hour
workday and stand or walk for about six hours during an eight-hour workday.
[Plaintiff] can occasionally stoop. [Plaintiff] can frequently, but not
continuously, handle with his left upper (non-dominant) extremity.
R. 25.
At step four, the ALJ considered the hearing testimony of a vocational expert
(“VE”) and found that Plaintiff was able to perform his past relevant work as a milk truck
driver. R. 29. The ALJ therefore determined that Plaintiff had not been disabled within
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the meaning of the Social Security Act during the relevant time period. R 29; see 20 C.F.R.
§§ 404.1520(a)(4)(iv), (f), .1560(b)(3); id. §§ 416.920(a)(4)(iv), (f), .960(b)(3). Plaintiff’s
request for review by the Appeals Council was denied, and the unfavorable determination
of the ALJ stands as the Commissioner’s final decision. R. 1-6; see 20 C.F.R. §§ 404.981,
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 a reviewing 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).

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ANALYSIS
In this action, Plaintiff challenges the ALJ’s omission of a fingering limitation from
Plaintiff’s RFC, as well as the ALJ’s failure to discuss Plaintiff’s nonsevere mental
impairment in his RFC assessment. See Pl.’s Br. (Doc. No. 22) at 8-10, 11-13.
I.

THE ALJ’S FAILURE TO INCLUDE A FINGERING LIMITATION IN PLAINTIFF’S RFC
Plaintiff objects that the ALJ erred in omitting a left-hand fingering limitation from

Plaintiff’s RFC, rendering the RFC unsupported by substantial evidence. See id. at 11-13.
In support, Plaintiff points to Plaintiff’s 2011 left-thumb surgery that fused the
interphalangeal joint, see R. 403-05, 413, and the findings of Jennifer Brown, MD, that
Plaintiff had mild clubbing in his distal fingertips and reduced range of motion in his left
thumb. See R. 422, 426-27. Plaintiff also objects that the ALJ misrepresented Plaintiff’s
hobbies of painting and papier-mâché to unfairly discredit Plaintiff’s testimony regarding
the severity of his fingering-related symptoms. Specifically, Plaintiff argues the ALJ
ignored Plaintiff’s testimony that he performed these hobbies only for short periods of time
and only with his right, rather than left, hand. See Pl.’s Br. at 12; R. 26, 28, 54, 56.
As noted above, in evaluating whether an RFC determination is supported by
substantial evidence, a reviewing court defers to the ALJ’s determination so long as there
is more than “a mere scintilla of evidence supporting it” and it is not “overwhelmed by
other evidence in the record.” Branum, 385 F.3d at 1270 (internal quotation marks
omitted). The possibility of drawing two different conclusions from the same facts “does
not prevent an administrative agency’s findings from being supported by substantial
evidence,” and the Court may not “displace the agency’s choice between two fairly
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conflicting views, even though the court would justifiably have made a different choice
had the matter been before it de novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (alteration and internal quotation marks omitted).
The ALJ’s finding that Plaintiff can frequently, but not continuously, handle with
his left hand but that Plaintiff does not have any fingering limitations is supported by
substantial evidence in the record. See R. 25. On May 7, 2014, Dr. Brown performed a
consultative physical examination on Plaintiff. See R. 420-28 (Ex. 4F). Dr. Brown found
that the flexion of Plaintiff’s left-thumb proximal phalange was 40 degrees out of a possible
70 degrees and that the flexion of Plaintiff’s left-thumb distal phalange was zero degrees
out of a possible 90 degrees. R. 426-27. However, Dr. Brown also found that Plaintiff
could effectively oppose his thumb to his fingertips, could manipulate small objects, and
could effectively grasp tools such as a hammer. R. 427. On May 14, 2014, state-agency
medical consultant James Metcalf, MD, assessed that Plaintiff had no manipulative
limitations. R. 87, 97. At the reconsideration level, state-agency medical consultant Sean
Neely, DO, reviewed the record and opined that Plaintiff “has some decreased [range of
motion] of the [left] thumb[;] however he is thought to have intact handling and fingering.”
R. 438.

Dr. Neely also found that Plaintiff was limited in handling (i.e., gross

manipulation) on his left side but not fingering (i.e., fine manipulation). R. 112, 125.
Specifically, Dr. Neely opined that Plaintiff was limited to “[f]requent but not continuous
use of [his left] hand [due to] [left-]thumb fusion” and that “[e]xams indicate that use of
the [left] hand for fine and gross manipulation is preserved.” R. 112, 125. Plaintiff does

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not challenge the ALJ’s assignment of great weight to the assessments of Dr. Metcalf and
Dr. Neely. R. 28.
Because more than “a mere scintilla” of evidence supports the ALJ’s omission of a
fingering limitation from the RFC, the Court may not reverse on this point. Branum, 385
F.3d at 1270 (internal quotation marks omitted).
II.

THE ALJ’S CONSIDERATION OF PLAINTIFF’S NONSEVERE IMPAIRMENTS
Plaintiff also challenges the ALJ’s failure to evaluate Plaintiff’s nonsevere mental

impairment in the RFC analysis. See Pl.’s Br. at 8-10.
A. The Relevant Record and the Written Decision
Plaintiff did not allege disability due to any mental impairment in his DIB and SSI
applications. R. 81, 91, 103, 116. In April 2014, however, state-agency psychological
consultant Joan Holloway, PhD, determined that Plaintiff had mild restriction of activities
of daily living, mild difficulties in maintaining social functioning, and mild difficulties in
maintaining concentration, persistence, or pace. R. 85-86, 95-96.
Following this assessment, the SSA referred Plaintiff to Stephanie Crall, PhD, for a
psychological examination, which was performed in July 2014. See R. 432-35. Dr. Crall
reported that Plaintiff was “alert, oriented, pleasant, and cooperative throughout the
evaluation” and that his speech was “logical, goal-directed, and fully intelligible.” R. 432.
Dr. Crall noted, however, that Plaintiff “appeared depressed,” that his appearance was
“somewhat disheveled,” and that his “clothing appeared dirty.” R. 432. Plaintiff reported
to Dr. Crall that he experienced symptoms of depression including “depressed mood on
most days, sleep disturbance, loss of interest in previously enjoyed activities, low energy,
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poor appetite, poor concentration, feelings of worthlessness, and suicidal ideation.” R.
432. Plaintiff reported having “difficulty concentrating” and “a tendency to become easily
distracted, to lose important items frequently, and to experience difficulty with
organizational skills.” R. 433. He also reported a history of alcohol abuse, being extremely
hyperactive in his youth, and continuing to struggle with impulsive behavior as an adult.
R. 433. After performing a mental examination, Dr. Crall diagnosed Plaintiff with major
depressive disorder (moderate), attention-deficit/hyperactivity disorder (provisional), and
alcohol use disorder. R. 434. Dr. Crall opined that
[Plaintiff’s] ability to engage in work-related mental activities, such as
sustaining attention, understanding, and remembering and to persist at such
activities was likely adequate for simple and some complex tasks. In the
opinion of this evaluator, the presence of depression, physical limitations (i.e.
chronic pain), and lack of high school diploma or GED likely interfered with
his ability to obtain and maintain competitive employment, however.
R. 434.
In September 2014, state-agency psychological consultant Edith King, PhD,
determined on reconsideration of Plaintiff’s applications that Plaintiff had mild restriction
of activities of daily living, mild difficulties in maintaining social functioning, and mild
difficulties in maintaining concentration, persistence, or pace. R. 109-10, 122-23. Dr.
King assessed Plaintiff’s mental impairment as nonsevere. R. 110, 123.
At step two of his written decision, the ALJ determined that Plaintiff had the
nonsevere impairments of depression and a history of alcohol abuse. R. 22. In accordance
with the state-agency psychologists, the ALJ determined that Plaintiff’s mental impairment
caused mild limitations in his activities of daily living, social functioning, and

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concentration, persistence, or pace. R. 23-24. The ALJ discussed the state-agency
psychological consultants’ assessments, as well as Dr. Crall’s mental examination and
opinion, at step two of his decision, but he did not address them again at any subsequent
step in the sequential analysis. See R. 24, 25.
B. Discussion
In assessing a claimant’s RFC, an ALJ must “consider the combined effect of all of
the claimant’s medically determinable impairments, whether severe or not severe.” Wells
v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2). As noted, the ALJ found both severe and nonsevere impairments at step
two of the sequential analysis. See R. 23-24. Specifically, the ALJ determined that
Plaintiff’s nonsevere impairments included “depression and a history of alcohol abuse.”
R. 22. Plaintiff asserts that, in contravention to regulatory directive and Wells, the ALJ
failed to take his nonsevere mental impairment into account when assessing his RFC. See
Pl.’s Br. at 8-10; 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
In Wells, the ALJ had determined at step two that the plaintiff’s mental impairments
were not severe and had stated that “these findings do not result in further limitations in
work-related functions in the RFC assessment below.” Wells, 727 F.3d at 1069 (alterations
and internal quotation marks omitted). Noting that this statement “suggests that the ALJ
may have relied on his step-two findings to conclude that [the claimant] had no limitation
based on her mental impairments,” the Tenth Circuit held that “the Commissioner’s
regulations demand a more thorough analysis” for the RFC determination. Id. at 1069,
1071.
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The Court agrees that the ALJ’s discussion in this case reflects the type of conflation
of the step-two and step-four analyses criticized in Wells. Unlike Wells, the ALJ did
explicitly acknowledge at step two that the limitations identified in the “paragraph B”
criteria at step two “are not a residual functional capacity assessment” and that the RFC
assessment used at steps four and five “requires a more detailed assessment by itemizing
various functions contained in the broad categories found in paragraph B of the adult
mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).” R. 24. The
ALJ failed to present this “more detailed assessment” in the RFC analysis, however. In
fact, the ALJ failed to engage in any analysis of mental functions or Plaintiff’s nonsevere
mental impairment in his RFC discussion, limiting the discussion, instead, solely to
Plaintiff’s severe impairments. See R. 25-29; cf. Suttles v. Colvin, 543 F. App’x 824, 826
(10th Cir. 2013) (distinguishing Wells where the ALJ discussed evidence at step four
relating to a nonsevere mental impairment).
Further, the ALJ made statements in his RFC discussion that indicated the RFC
determination was based solely on limitations caused by Plaintiff’s severe impairments.
See, e.g., R. 28 (“Therefore, the evidence supports that the claimant experienced some
limiting symptoms related to his severe impairments.”), 29 (“Therefore, due to the
symptoms caused by his severe impairments previously discussed, the undersigned finds
that the claimant retained the ability to perform work with the limitations described in the
residual functional capacity outlined above.”). These statements, in conjunction with the
ALJ’s complete omission of Plaintiff’s nonsevere impairments from the RFC discussion,
show that the ALJ impermissibly “relied on his step-two findings” to determine that
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Plaintiff’s nonsevere impairments did not cause or contribute to functional limitations.
Wells, 727 F.3d at 1069. “[T]he Commissioner’s procedures do not permit the ALJ to
simply rely on his finding of non-severity as a substitute for a proper RFC analysis.” Id.
at 1065. Accordingly, the ALJ’s failure to consider the impact of Plaintiff’s nonsevere
mental impairment in the RFC analysis was error under Wells and 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2).
The resulting question is whether this error may be viewed as harmless. When an
ALJ disregards nonsevere mental impairments when assessing a claimant’s RFC, such
error does not necessarily warrant remand if “the evidence in [the] case does not support
assessing any functional limitations from mental impairments.” Alvey v. Colvin, 536 F.
App’x 792, 794 (10th Cir. 2013) (“We may employ a harmless-error analysis sua sponte
on appeal when, as here, the record is not overly long or complex, harmlessness is not fairly
debatable, and reversal would result in futile and costly proceedings.”); see Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (explaining that the application of harmless
error is appropriate only under “exceptional circumstance[s],” where “based on material
the ALJ did at least consider (just not properly), we could confidently say that no
reasonable administrative factfinder, following the correct analysis, could have resolved
the factual matter in any other way”).
Plaintiff argues that the application of harmless error would be inappropriate
because the evidence of record supports a finding of functional limitations related to
Plaintiff’s difficulties in activities of daily living, social functioning, and concentration,
persistence, or pace. See Pl.’s Br. at 9-10 (arguing that Plaintiff had difficulties in
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“persistence and interacting with supervisors,” was observed to have social isolation and a
“depressed and disheveled appearance” during Dr. Crall’s examination, and testified to
“losing jobs due to conflicts with supervisors as well as deficits in concentration and
organizational skills”).

Plaintiff avers that these symptoms implicate the functional

limitations that the VE testified would preclude full-time employment if added to
Plaintiff’s RFC. See id.; see also R. 75-76. Specifically, the VE testified that an individual
with Plaintiff’s RFC who also needed to take “frequent unscheduled breaks,” miss two or
more days of work a month, or be “off task or off pace up to 20 percent of an 8-hour
workday” would be unable to sustain full-time employment. R. 75-76.
Defendant, however, points to Dr. Crall’s opinion that Plaintiff’s “ability to engage
in work-related mental activities, such as sustaining attention, understanding, and
remembering and to persist at such activities was likely adequate for simple and some
complex tasks.” R. 434; see Def.’s Br. (Doc. No. 23) at 6-8. At the hearing, the VE opined
that an individual with Plaintiff’s RFC who was also limited to simple and some complex
tasks would be capable of the “operation of transportation equipment” required in
Plaintiff’s past relevant work. R. 77. Defendant does not contest that a mental limitation
to simple and some complex tasks was supported by the record. 2 In Defendant’s view,

Though the ALJ affords Dr. Crall’s opinion partial weight, he does so at step two of the
sequential analysis, when determining whether Plaintiff’s mental impairment is severe. See
R. 22. This suggests that the ALJ considered (and weighed) the opinion only insofar as it
reflected a judgment about the severity of Plaintiff’s mental impairment, not Plaintiff’s
resulting limitations. See 20 C.F.R. §§ 404.1527(a)(1), 416.927. The assignment of partial
weight to the opinion does not, therefore, preclude the opinion from serving as substantial
evidence that Plaintiff’s nonsevere impairment limited him to simple and some complex
tasks. Nor did the ALJ discount in his credibility analysis Plaintiff’s multiple statements
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however, the VE’s testimony renders harmless any error in omitting this limitation from
the RFC, and substantial evidence does not support mental limitations beyond this
limitation. See Def.’s Br. at 8.
Even assuming a limitation to simple and some complex tasks is the only functional
limitation stemming from Plaintiff’s nonsevere mental impairment that is supported by
substantial evidence in the record, the Court does not find the VE’s testimony regarding
this impairment sufficient to justify a finding of harmless error. The VE testified only that
the additional limitation would not affect Plaintiff’s ability to operate transportation
equipment, which is merely one transferable skill of a milk truck driver. See R. 76-77. The
VE did not address whether or in what way the additional limitation might affect the other
job duties implicit in Plaintiff’s past relevant work. The VE’s testimony that the additional
limitation would not preclude Plaintiff’s performance of one skill cannot serve as
substantial evidence that it would not preclude Plaintiff’s performance of other job duties
associated with his past relevant work. See Winfrey v. Chater, 92 F.3d 1017, 1024 (10th
Cir. 1996) (explaining that when a claimant has a mental impairment, the ALJ must obtain
factual information regarding relevant work demands and “‘care must be taken to obtain a
precise description of the particular job duties which are likely to produce tension and
anxiety . . . in order to determine if the claimant’s mental impairment is compatible with

regarding the severity of Plaintiff’s mental impairment that support this finding. See, e.g.,
R. 432-33 (Plaintiff noting difficulty in concentrating, organization, and getting along with
management and a tendency to become distracted and lose important items); see also SSR
96-7p, 1996 WL 374186, at *2 (July 2, 1996), superseded by SSR 16-3p, 2017 WL
5180304 (eff. Oct. 25, 2017; to be applied to decisions made on or after Mar. 28, 2016).
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the performance of such work’” (quoting SSR 82-62, 1982 WL 31386, at *3 (Jan. 1,
1982))).
Accordingly, the Court finds that the ALJ erred in failing to conduct a more
particularized assessment of Plaintiff’s mental functions in his RFC analysis, that the
harmlessness of this error is “fairly debatable,” and that remand is, therefore, required.
Alvey, 536 F. App’x at 794; see Allen, 357 F.3d at 1145.
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 25th day of February, 2019.

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