Sears v. Colvin
MEMORANDUM DECISION AND ORDER - The Court Remands the Commissioner's decision to the ALJ for Further findings. Signed by Magistrate Judge Evelyn J. Furse on 10/6/2015. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION AND
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Magistrate Judge Evelyn J. Furse
Ms. Sears seeks review of denial of her claim for disability insurance benefits under Title
II of the Social Security Act. She alleges a disability onset date of June 30, 2009. The ALJ
found Ms. Sears not disabled at step four because the ALJ found Ms. Sears could perform past
relevant work. (Admin. R. 57–71, certified copy tr. of R. of admin. proceedings: Jackie Sears
(hereinafter “Tr. __”), ECF No. 26.)
Based on the Court’s careful consideration of the record, the parties’ memoranda and oral
arguments, and relevant legal authorities, the Court REMANDS the Commissioner’s decision to
the ALJ for further findings. The Residual Functional Capacity (RFC) analysis lacks any
mention of Ms. Sears’s non-severe but medically determinable mental impairments of depression
and mood disorder. Neither the Court nor the ALJ may rely on step-two findings of mild mental
impairments as a substitute for an RFC analysis.
Ms. Sears filed a Title II application for a period of disability and disability insurance
benefits on February 24, 2010. (Tr. 187–88.) Ms. Sears claimed disability based on retinal
detachment and defect; hand tremors; hearing loss; obesity; asthma; and depression and anxiety.
(Pl.’s Opening Br., 1, ECF No. 18; Tr. 109–10.) Ms. Sears’ claim was denied initially and on
reconsideration. (Tr. 108–34, 138–40.) On October 26, 2011, the ALJ conducted a hearing, (tr.
72–107), and later issued a decision finding Ms. Sears not disabled as defined by the Act, (tr. 57–
71). The Appeals Council denied Ms. Sears’ request for review, (tr. 5–10), making the ALJ’s
decision the Commissioner’s final decision for purposes of judicial review under 42 U.S.C. §
1383(c)(3). See 20 C.F.R. § 416.1481.
On October 6, 2015, the Court heard oral argument from both parties on appeal. This
STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether the record as a
whole contains substantial evidence in support of the Commissioner’s factual findings and
whether the SSA applied the correct legal standards. 42 U.S.C. § 1383(c)(3); Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007). In addition to a lack of substantial evidence, the Court may
reverse where the Commission uses the wrong legal standards or the Commissioner fails to
demonstrate reliance on the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395
(10th Cir. 1994); Thomson v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y
of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993).
The ALJ evaluated Ms. Sears’ claim through step four, and concluded Ms. Sears did not
qualify as disabled. (Tr. 57–71.) The ALJ found Ms. Sears has the residual functional capacity
(RFC) to perform her past relevant work as an administrative assistant or copy assistant. (Tr.
A claimant’s RFC reflects the ability to do physical, mental, and other work activities on
a sustained basis despite limitations from the claimant’s impairments. See 20 C.F.R. §§
404.1545, 416.945. In determining the claimant’s RFC, the decision maker considers all of the
claimant’s medically determinable impairments, including those considered not “severe.” See 20
C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). The ALJ must conduct the RFC assessment on a
function-by-function basis and include both exertional and nonexertional limitations for both
severe and nonsevere impairments. SSR 96-8p, 1996 WL 374184, *5 (July 2, 1996).
In support of her claim that this Court should reverse the Commissioner’s decision, Ms.
Sears argues that the ALJ: (1) failed to consider all of her impairments in the RFC
determination; (2) failed to properly identify Ms. Sears’ past work, in order to determine if Ms.
Sears could, in fact, return to it; and (3) erroneously discounted the testimony of Ms. Sears and
third party witnesses. (Pl.’s Opening Br., 9, ECF No. 18.)
A. The ALJ’s Consideration of Impairments in the RFC Determination.
Ms. Sears asserts that the ALJ failed to support her decision with substantial evidence
when the ALJ did not consider all of Ms. Sears’ impairments in determining her RFC. (Pl.’s
Opening Br., 11–12, ECF No. 18.) In particular, Ms. Sears argues that the ALJ failed to consider
her depression, eyesight limitations, and tremors properly in the RFC assessment. (Id.)
Ms. Sears argues that the ALJ erred in failing to consider Ms. Sears’s non-severe mental
impairments in her RFC, as evidenced by the ALJ finding no mental or non-exertional imitations
in the RFC.
During step two, the ALJ found Ms. Sears’s depression and mood disorder non-severe
impairments because they did not “cause more than minimal limitation in the claimant’s ability
to perform basic mental work activities.” (Tr. 59.) The ALJ does not analyze Ms. Sears’s nonsevere depression and mood disorder during step four and does not mention any affect such
impairment might have on the RFC or explain why it has no effect. The ALJ erred in failing to
analyze Ms. Sears’s depression and mood disorder at step four. See SSR 96-8p, at *5 (“While a
“not severe” impairment(s) standing alone may not significantly limit an individual’s ability to
do basic work activities, it may—when considered with limitations or restrictions due to other
impairments—be critical to the outcome of a claim.”).
After a number of unreported decisions came out with conflicting conclusions regarding
whether an ALJ’s step two analysis of a non-severe mental impairment could substitute for a step
four analysis regarding that impairment, the Tenth Circuit issued a reported decision explicitly
addressing the matter. Wells v. Colvin, 727 F.3d 1061, 1064 n.2 (10th Cir. 2013). The court
stated, “most importantly, the ALJ's ‘RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts ... and
after stating his conclusion that Ms. Wells' mental impairments were non-severe,
the ALJ stated that “[t]hese findings do not result in further limitations in workrelated functions in the [RFC] assessment below.” He then reiterated his
conclusion that the mental impairments were non-severe. The language used
suggests that the ALJ may have relied on his step-two findings to conclude that
Ms. Wells had no limitation based on her mental impairments. If so, this was
inadequate under the regulations and the Commissioner's procedures.
727 F.3d at 1069 (internal citations omitted). In the instate case, the ALJ does not even go so far
as to say the step two findings do not result in further limitations in the RFC. The ALJ simply
never mentions the mental impairment again after finding it non-severe.
In this case, the ALJ found Ms. Sears’s mental impairment imposed a mild limitation on
her activities of daily living, and concentration, persistence, and pace at step two. (Tr. 60.) By
comparison, the ALJ in Wells found mild limitations in these two areas as well as in the
claimant’s social functioning. 727 F.3d at 1068. The analysis that does occur in this case at step
two, while certainly thorough, does not address the detailed functions that Ms. Sears can
perform. Without a function-based analysis as opposed to a category-based analysis, the Court
cannot review the ALJ’s Decision for substantial evidence. See SSR 96-8p, at *4; see also
Wells, 727 F.3d at 1065; Catlin v. Colvin, No. 12-1474-JWL, 2014 WL 2922403, at *3 (D. Kan.
June 27, 2014).
On that basis, the Court remands for further findings with respect to whether Ms. Sears's
mental impairments impact the RFC consideration. Because of that finding, the Court will not
reach the other issues raise as any additional limitations added to the RFC could impact the
remaining findings of the ALJ.
DATED this _6th___ day of October, 2015.
BY THE COURT:
EVELYN J. FURSE
United States Magistrate Judge
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