Sanchez v. Astrue
Filing
20
MEMORANDUM DECISION that the ALJ erred by failing to explain his apparent rejection of the medical evidence provided by Leslie Eckford, RN, LCSW. Therefore, the case is REMANDED to the agency to address this issue. Signed by Magistrate Judge David Nuffer on 09/30/2011. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
YOUNG SANCHEZ,
MEMORANDUM DECISION & ORDER
Plaintiff,
vs.
Case No: 2:09-CV-1116 DN
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Magistrate Judge David Nuffer
Defendant.
Plaintiff Young Sanchez seeks judicial review of the Commissioner’s decision denying
her application for Social Security disability benefits and supplemental security income under
Titles II and XVI of the Social Security Act.1 Sanchez alleges that she became unable to work at
the age of fifty-eight, primarily due to mental problems.2 The case is before the magistrate judge
by consent of the parties under 28 U.S.C. § 636(c).3 After a careful review of the entire record
and the parties’ submissions, the court concludes that the case should be remanded to the
Commissioner for further proceedings.
1
42 U.S.C. §§ 401-434, and 1381-1383f, respectively.
2
Tr. 90, 105.
3
Docket no. 9, filed April 28, 2011.
PROCEDURAL HISTORY
Sanchez applied for social security disability insurance benefits4 and supplemental
security income5 with a protective filing date of March 26, 2003.6 Her applications were denied
initially7 and on reconsideration.8 Sanchez then obtained a hearing before an Administrative Law
Judge (ALJ) which was held June 17, 2005.9 The ALJ concluded that Sanchez was not disabled
because she was capable of performing her past relevant work.10 After the Appeals Council
declined to review the ALJ’s decision,11 Sanchez filed suit in district court which resulted in a
remand.12 After a second hearing on August 11, 2008,13 Sanchez was again found not disabled
because she could perform her past relevant work.14 The Appeals Council denied review15
making the ALJ’s decision the final decision of the Commissioner.
4
Tr. 59-61.
5
Tr. 293-96.
6
Tr. 355.
7
Tr. 30.
8
Tr. 29; 32-34.
9
A transcript of the hearing may be found in the administrative record at pages 298-338.
10
Tr. 25.
11
Tr. 4-6.
12
See Tr. 445-50.
13
A transcript of the second hearing appears at pages 382-429 of the administrative record.
14
Tr. 369.
15
Tr. 339-41.
-2-
SUMMARY OF EVIDENCE
A. Background
Sanchez was born in Korea and has no formal education or training.16 In addition to her
mental impairment, she also suffers from breathing and heart problems.17
B. Administrative Hearing
At the first hearing held June 17, 2005, a Korean interpreter was present to provide
assistance as needed.18 Sanchez testified that she was 61 years old and had no children.19 She
stated that she does not drive a car because she is too scared. She does not go outside very much.
She stated that she sometimes sees “wrong things”. For example, when she is sitting in the house
watching TV, she sometimes has the impression that someone is passing her by. But when she
turns to look, no one is there.20
She had worked as a tester at EDO Corporation. She stated that she had a problem for
twenty-four years with co-workers and supervisors. She never let it out because she needed to
survive. When she went home, she would cry it out.21 She stated that her job with EDO ended
16
Tr. 110,301.
17
Tr. 105, 397-98.
18
Tr. 300.
19
Tr. 304.
20
Tr. 304.
21
Tr. 305.
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when she was evicted from her apartment and had to live out of her car. She became angry and
had an argument with her boss.22
From 2000 to 2002, she worked for Harmon Music Store. She was laid off when
production was outsourced to China.23 She tried to find another job, but was unsuccessful.24 She
stated that she would have been able to keep working if she had not been laid off.25
In 2003, she lived with a roommate. She was able to prepare simple meals, and would
walk to the grocery store to shop.26 She stated that she stayed in the house and was scared to go
outside; she was traumatized. She kept busy with household chores. She might clean a little bit;
then her mind would go blank and she would sit down and watch TV. When her mind came
back, she would wash clothes and things like that. She also cared for five cats.27
In 2004, she was seeing a psychiatrist. Someone would pick her up, take her to the
psychiatrist, and take her back home.28 She could not get out of the house to go anywhere.29 She
stated, however, that about once a week, she would walk to a tanning salon where she would
22
Tr. 306.
23
Tr. 307.
24
Tr. 307-08.
25
Tr. 307-08.
26
Tr. 309.
27
Tr. 310.
28
Tr. 311.
29
Tr. 312.
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meditate.30 She stated that sometimes she cannot recall what happened yesterday.31 Sometimes
she gets dizziness on her medication and her energy leaves her.32
The day before the hearing, she got up about seven o’clock and went for a walk. When
she returned home around eleven o’clock, she cleaned the house, washed some clothes, prepared
some simple meals, and played with her cats.33 She went to bed about midnight. She took a
sleeping pill which causes her to not be able to walk very well, so she has to crawl. When she
lies down, she keeps hearing and seeing the “wrong things.” She told her doctor that she was
afraid someone was trying to kill her, so that is why she takes the sleeping medication. She
stated that people hurt her so much. She hates people, and she is scared to death.34
She testified that she would not be able to do her old job at Harmon’s Music Store
because lots of time she forgets, and because of anxiety.35 She took an anxiety pill before the
hearing. She stated that before suffering a coma, she could have worked at her jobs. The coma
changed everything including her personality. She was different emotionally, experienced more
anxiety, and had trouble with memory.36 She stated that she has conflicts with people. If a boss
criticized her work, she would get mad. She also stated that she was sad because she is alone
30
Tr. 313-15.
31
Tr. 316.
32
Tr. 318.
33
Tr. 317-18.
34
Tr. 319.
35
Tr. 320.
36
Tr. 321.
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with no family.37 She stated that people put her down which makes her very angry. Her
medication controls her anxiety, but it does not always help.38
At the second hearing held August 11, 2008, Sanchez’s husband testified that in October
2005, he took her to the hospital with heart problems. She had surgery and received a stent. He
stated that she was in a coma for three days, and has not been the same person since.39 He stated
that her phobias are worse; she will start to panic in a room with more than three people; she
wants to jump out of the car if he drives more than fifty miles an hour; and she does not like
walking over bridges.40 She has a lot of anxiety and will start shaking. She has had a suicide
attempt since the last hearing.41 He stated that her memory is not all there; she is scared to go out
of the house; she does not walk like she used to; and gets winded easily. She will not drive a car
or take public transportation. She does not socialize except for calling the pastor once in a
while.42 She is able to focus only about a third as well as before.43 He stated that she has
problems with both long- and short-term memory which causes her to get angry and frustrated. If
anyone is critical of her, she gets very angry and starts shaking.44
37
Tr. 322-23.
38
Tr. 323.
39
Tr. 397-98.
40
Tr. 400.
41
Tr. 401.
42
Tr. 402-03.
43
Tr. 404.
44
Tr. 405.
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Sanchez again testified that people put her down and humiliate her, and she gets angry.45
She stated that this interferes with her ability to work.46 She also testified that she was treated
badly at the hospital, and she could hear people laughing at her.47
C. Other Evidence
The court will discuss the testimony of the Vocational Expert and portions of the medical
evidence pertinent to the parties’ arguments in the body of this decision.
DISCUSSION
A. Legal Standard
Under the Social Security Act, “disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.”48 The Act further provides that an
individual shall be determined to be disabled “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.”49
45
Tr. 406-09.
46
Tr. 409.
47
Tr. 409-10.
48
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
49
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
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A person seeking social security benefits bears the burden of proving that because of his
disability, he is unable to perform his prior work activity.50 Once the claimant establishes that he
has such a disability, the burden shifts to the Commissioner to prove that the claimant retains the
ability to do other work and that jobs which he can perform exist in the national economy.51
The Commissioner’s decision must be supported by substantial evidence.52 “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”53 Evidence is not substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion.54
The Commissioner’s findings of fact, if supported by substantial evidence, are conclusive
upon judicial review.55 In reviewing the Commissioner’s decision, the court may not reweigh the
evidence or substitute its judgment for that of the agency.56 However, the court should carefully
examine the record and review it in its entirety.57 Failure of the Commissioner to apply the
correct legal standard is grounds for reversal.58
50
Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
51
Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996); Miller, 99 F.3d at 975.
52
Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998); Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997).
53
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v NLRB, 305 U.S. 197, 229 (1938)).
54
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992); Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir.
1991).
55
42 U.S.C. §§ 405(g), 1383(c)(3); Perales, 402 U.S. at 390.
56
Hinkle, 132 F.3d at 1351; Decker v. Chater, 86 F.3d 953, 954 (10th Cir. 1996).
57
Musgrave, 966 F.2d at 1374; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
58
Daniels, 154 F.3d at 1132; Hinkle, 132 F.3d at 1351.
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The Commissioner has established the following five-step process for determining
whether a person is disabled:
(1)
A person who is working is not disabled. 20 C.F.R. § 416.920(b).
(2)
A person who does not have an impairment or combination of
impairments severe enough to limit his ability to do basic work activities
is not disabled. 20 C.F.R. § 416.920(c).
(3)
A person whose impairment meets or equals one of the impairments listed
in the “Listing of Impairments,” 20 C.F.R. § 404, subpt. P, app. 1, is
conclusively presumed to be disabled. 20 C.F.R. § 416.920(d).
(4)
A person who is able to perform work he has done in the past is not
disabled. 20 C.F.R. § 416.920(e).
(5)
A person whose impairment precludes performance of past work is
disabled unless the [Commissioner] demonstrates that the person can
perform other work available in the national economy. Factors to be
considered are age, education, past work experience, and residual
functional capacity. 20 C.F.R. § 416.920(f).59
B. The ALJ’s Decision
The ALJ performed the sequential analysis, finding as follows: (1) Sanchez has not
engaged in substantial gainful activity since October 5, 2002, the alleged onset date;60 (2) she has
severe impairments including asthma, mild chronic obstructive pulmonary disease (COPD),
anxiety-related disorders, and an affective disorder with psychotic features;61 (3) she does not
have an impairment or combination of impairments that meets or equals the listings;62 and (4) she
59
Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988).
60
Tr. 358.
61
Tr. 358.
62
Tr. 358.
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is capable of performing her past relevant work as a production assembler.63 Based on these
findings, the ALJ concluded that Sanchez was not disabled as defined by the Social Security
Act.64
Sanchez raises three arguments in support of her disability claim: (1) the ALJ improperly
rejected the opinions of her treating and examining medical providers; (2) the ALJ improperly
rejected her own testimony; and (3) the ALJ failed to conduct a proper assessment at step four of
the sequential analysis.65
C. ALJ’s Evaluation of Medical Opinions
Sanchez asserts that the ALJ committed legal error by failing to provide specific,
legitimate reasons for rejecting the opinions of her treating and examining medical providers.66
The court agrees.
Leslie Eckford, RN, LCSW, was one of Sanchez’s medical providers at Valley Mental
Health. The parties refer to Ms. Eckford as “Nurse Eckford,” so the court will do so as well.
Nurse Eckford began treating Sanchez at the end of 2003 and saw her on a fairly regular basis
through March 2005.67
On April 6, 2005, Nurse Eckford completed a Mental Residual Functional Capacity
Assessment in which she found that Sanchez was “moderately limited” in four categories: (1)
63
Tr. 369.
64
Tr. 369.
65
Opening Brief at 11, docket no. 13, filed June 27, 2011.
66
Opening Brief at 12-15.
67
Tr. 236-68.
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the ability to understand and remember detailed instructions, (2) the ability to carry out very short
and simple instructions, (3) the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods, (4) and the ability to ask simple questions or
request assistance.68 In addition, Nurse Eckford found marked limitations in three categories: (1)
the ability to carry out detailed instructions, (2) the ability to accept instructions and respond
appropriately to criticism from supervisors, and (3) the ability to travel in unfamiliar places or
use public transportation.69
In response to questioning at the hearing by Sanchez’s counsel, the Vocational Expert
(VE) testified that a marked limitation in the ability to accept instructions and respond
appropriately to criticism from supervisors would preclude all work.70 In his written decision, the
ALJ stated that he accepted the medical findings and opinions of Sanchez’s treating physicians as
being supported by the objective medical evidence and the longitudinal record. With regard to
other medical providers including Nurse Eckford, the ALJ noted that they are not acceptable
treating sources. He stated, however, that those sources provided a “very good picture” of
Sanchez’s medical problems and prognosis based on the progress reports which “are supportive
of one another.” He therefore “applied weight” to the medical findings of these other providers.71
Further, the ALJ specifically discussed the Mental RFC assessment completed by Nurse Eckford
68
Tr. 232-33.
69
Tr. 232-33.
70
Tr. 427.
71
Tr. 368.
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and her findings of moderate and marked limitations in certain areas as discussed above. The
ALJ then stated that he accepted most of Nurse Eckford’s findings except for her finding as to
Sanchez’s inability to complete a normal workday and workweek due to psychologically based
symptoms, which the ALJ found was not supported by the record.72 The ALJ did not specifically
reject Nurse Eckford’s finding of a marked limitation in the ability to accept instructions and
respond appropriately to criticism from supervisors which the VE testified would preclude all
work.
The Commissioner makes two arguments in support of his determination on this issue.
First, he states that the ALJ’s decision is supported by substantial evidence in the record.
Second, he argues that because Nurse Eckford was not an acceptable medical source, her opinion
is not entitled to controlling weight.73 The court finds neither of these arguments availing.
In support of his argument that the ALJ’s conclusions are supported by substantial
evidence, the Commissioner has sifted through the record to find medical evidence that supports
the ALJ’s findings. However, the court may not rely on post hoc rationalizations that are not
apparent from the ALJ’s opinion.74 The court is only empowered to review the ALJ’s decision
for substantial evidence. It may not draw factual conclusions on behalf of the ALJ.75
72
Tr. 365.
73
Answer Brief at 12-18, docket no. 16, filed August 17, 2011.
74
Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007); Allen v. Barnhart, 357 F.3d 1140, 1142, 1145 (10th Cir.
2004).
75
Allen, 357 F.3d at 1144.
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Although the Commissioner correctly states that Nurse Eckford is not an acceptable
medical source, the ALJ was still required to consider her opinion as an “other source.” Due to
the growth of managed health care and the increasing use of health care providers who are
technically not “acceptable medical sources,” the Agency promulgated Social Security Ruling
06-03p.76 Only “acceptable medical sources” such as licensed medical doctors may provide
evidence to establish the existence of a medically determinable impairment, provide medical
opinions, or be considered treating sources.77 However, the regulations also contemplate the use
of information from “other sources,” both medical and non-medical.78 The category of “other
medical sources’ includes, but is not limited to, “nurse-practitioners, physicians’ assistants,
naturopaths, chiropractors, audiologists, and therapists.”79 These sources may provide evidence
concerning the severity of a claimant’s impairments and how it affects her ability to work.80
Nurse Eckford’s treatment notes indicate that she is a licensed clinical social worker as
well as a registered nurse. Based on her credentials, the court concludes that she qualifies as an
“other medical source.” Indeed, SSR 06-03p lists licensed clinical social worker as an “other
medical source.”81
76
Frantz v. Astrue, 509 F.3d 1299, 1301-02 (10th Cir. 2007); Social Security Ruling 06-03p, Titles II and XVI:
Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability
Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, 2006 WL
2329939, at *3 (Aug. 9, 2006).
77
Frantz, 509 F.3d at 1301; see 20 C.F.R. §§ 404.1513(a), 404.1527(a)(2), 404.1527(d).
78
Frantz, 509 F.3d at 1301; see 20 C.F.R. §§ 404.1502, 404.1513(d).
79
Frantz, 509 F.3d at 1301; 20 C.F.R. § 404.1513(d).
80
Frantz, 509 F.3d at 1301; 20 C.F.R. §§ 404.1513(d)
81
SSR 06-03p,2006 WL 2329939, at *2.
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Under the facts of a particular case, the opinion of an “other medical source” can
outweigh the opinion of an acceptable medical source, including a treating source.82 The Ruling
states that these opinions “are important and should be evaluated on key issues such as
impairment severity and functional effects.”83 Under the regulations, the ALJ is required to
consider the opinions of “other medical sources” and weigh them in the same manner that he
weighs the opinions of acceptable medical sources.84 Importantly for this case, the Ruling
instructs the adjudicator to explain the weight given to these opinions or otherwise ensure that
the discussion of the evidence allows a claimant or subsequent reviewer “to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the case.”85
As discussed, the ALJ stated that he accepted Nurse Eckford’s findings except for her
finding with regard to Sanchez’s inability to complete a normal workday or workweek due to
psychologically based symptoms which the ALJ found was not supported by the record.86 He
also stated that he gave weight to Nurse Eckford’s findings.87 However, the ALJ’s finding that
Sanchez could perform her past relevant work is in direct contradiction to the VE’s testimony
that another of Nurse Eckford’s findings, a marked limitation in the ability to accept instructions
82
Frantz, 509 F.3d at 1302; SSR 06-03p, 2006 WL 2329929, at *5.
83
Frantz, 509 F.3d at 1302 (quoting SSR-06-3p, 2006 WL 2329939, at *3).
84
Frantz, 509 F.3d at 1302; SSR 06-03p, 2006 WL 2329929, at *4.
85
Frantz, 509 F.3d at 1302 (quoting SSR 06-p, 2006 WL 2329939, at *6).
86
Tr. 365.
87
Tr. 368.
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and respond appropriately to criticism from supervisors, would preclude all work.88 Although the
ALJ mentioned this finding,89 he did not discuss it or give any explanation for rejecting it. This
was legal error.
“[I]n addition to discussing the evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.”90 Accordingly, the case should be remanded to allow the
Commissioner to explain whether he rejected Nurse Eckford’s findings, and if so, his reasons for
doing so.
D. ALJ’s Credibility Assessment
Sanchez asserts that the ALJ improperly rejected her subjective complaints.91 Generally,
credibility determinations are the province of the ALJ and should not be disturbed if supported
by substantial evidence.92 Nevertheless, the ALJ’s findings “should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the guise of findings.”93 In Kepler v.
Chater, the Tenth Circuit held that the ALJ must give specific reasons for rejecting a claimant’s
88
Tr. 427.
89
Tr. 365.
90
Frantz 509 F.3d at 1302 (alteration in original)(quoting Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)).
91
Opening Brief at 15-17.
92
McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002); White v. Barnhart, 287 F.3d 903, 909 (10th Cir.
2001).
93
McGoffin, 288 F.3d at 1254 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)).
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subjective allegations of pain and other symptoms.94 However, so long as the ALJ sets forth the
specific evidence he relies on in assessing credibility, the requirements of Kepler are satisfied.95
In evaluating a claimant’s subjective allegations of pain and other symptoms, the ALJ
must determine (1) whether the claimant has established by objective medical evidence that she
has a pain- or symptom-producing impairment; (2) whether there is a “loose nexus” between the
impairment and the claimant’s subjective allegations; and (3) if so whether considering all of the
evidence, both objective and subjective, the claimant’s alleged symptoms are in fact disabling.96
In this case, the ALJ followed the proper analysis finding that Sanchez’s medically
determinable impairments could reasonably be expected to produce her alleged symptoms, but
concluded that her statements concerning the intensity, persistence, and limiting effects of her
symptoms were not entirely credible.97
As the Commissioner points out, Sanchez’s argument concerning the ALJ’s credibility
assessment is vague and fails to articulate any specific challenge to the ALJ’s credibility
findings.98 She does not cite any particular testimony that she feels was rejected by the ALJ or
how it would bear on the disability determination.
94
68 F.3d 387, 391 (10th Cir. 1995).
95
White, 287 F.3d at 909.
96
Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004).
97
Tr. 368.
98
Defendant’s Answer Brief at 18.
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The ALJ thoroughly summarized the testimony of Sanchez and her husband,99 as well as
the medical evidence.100 He noted that much of her testimony was focused on her perception of
how she was treated by other people. It really did not support an inability to work although it did
show that she needed to work in an environment with little exposure to the general public.101 The
ALJ acknowledged that a coma episode experienced by Sanchez in November 2002 resulted in
some cognitive and memory deficits and also exacerbated her mood problems and increased her
focus on situational memories which made her more anxious.102 In the ALJ’s opinion, however,
subsequent medical reports showed Sanchez’s mental problems continued to improve with
treatment. In support of this conclusion, the ALJ cited to the medical evidence of record.103 The
court concludes that the ALJ provided adequate reasons for his credibility determination which is
supported by substantial evidence in the record. Accordingly, the court declines to disturb the
ALJ’s credibility determination.
E. Step-four Assessment
Sanchez asserts that the ALJ failed to conduct a proper assessment at step four of the
sequential analysis. Step four of the evaluation process is comprised of three phases:
(1) determination of the claimant’s physical and mental residual functional capacity,
(2) determination of the physical and mental demands of the claimant’s past work, and
99
Tr. 361.
100
Tr. 362-67.
101
Tr. 367.
102
Tr. 363.
103
Tr. 363-66.
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(3) determination of whether the claimant has the ability to meet the job demands found in phase
two despite the limitations found in phase one. At each of the three phases, the ALJ is required
to make specific findings.104
Plaintiff contends that the ALJ erred at each of the three phases. She states that he erred
at phase one by failing to include all of her limitations in the RFC assessment. At phase two, he
failed to identify the specific demands of her past work. And at phase three, he failed to compare
her limitations with the specific demands of her past work.105
The ALJ asked the VE at the second hearing to consider Sanchez’s past relevant jobs.
The VE classified her job at EDO Electronics as that of an electronics tester, which was light,
semi-skilled work.106 He classified her job at Harmon Music as that of production assembler, any
industry, which was light and unskilled.107
The ALJ provided the following RFC assessment in his hypothetical to the VE:
•
The hypothetical person would have the ability to perform the full range of
light and sedentary work, except that she would need a clean climatecontrolled environment.
•
The work would have to be at the lower stress level which has four
elements:
•
Low to average production level.
•
Essentially no working with the general public.
104
Frantz, 509 F.3d at 1303; Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996).
105
Opening Brief at 17-18; Reply Brief at 6-7, docket no. 19, filed September 2, 2011.
106
Tr. 420.
107
Tr. 421-22.
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•
•
•
Only minimal contact with supervisors and co-workers on
the job, but still having the ability to respond appropriately
to supervision, co-workers, and work situations.
Ability to deal with only minimal changes in a routine work
setting.
Language skills and abilities–the person speaks Korean. On the job she
could understand and speak only a few simple words in English. So the
job would have to be learned by demonstration with little communication
in English required. It should be mostly repetitive assembly work.108
The VE responded that she would be able to do both of her past relevant jobs.109
The ALJ then changed the hypothetical to include only unskilled work at the lower
concentration level and work at the lower memory level.110 The VE stated that she would still be
able to do the production assembler job, but at reduced numbers in the national economy.111
Sanchez argues that the ALJ erred at phase one by failing to include all of her limitations
in the hypothetical to the ALJ.112 This argument hinges on the ALJ’s apparent rejection of some
of the findings of Nurse Eckford. On remand, the ALJ should clarify whether he indeed rejected
Nurse Eckford’s findings. If so, he should explain the basis for the rejection. If he accepts her
findings, he should adjust his RFC assessment accordingly.
Sanchez also argues that even if the ALJ’s RFC findings are correct, the ALJ erred by
accepting testimony from the VE that conflicts with the Dictionary of Occupational (DOT).
108
Tr. 422.
109
Tr. 423.
110
Tr. 423. The ALJ’s RFC assessment found at tr. 359-60 reflects the second hypothetical.
111
Tr. 423.
112
Opening Brief at 18; Reply at 6-7.
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When the ALJ relies on expert testimony to deny a claim, he must ask the VE whether his
testimony conflicts with the DOT and elicit a reasonable explanation of any discrepancy.113 In
this case, the ALJ did ask the VE whether there was a conflict, and the VE responded that there
was not.114
Sanchez argues, however, that there were a number of inconsistencies. First, she notes
that the ALJ found that her work could not require more than simple words in English. She
states that the DOT indicates that the job of electronics assembler is rated at Level 2 on the scale
of general educational development (GED).115 Level 2 language development appears to require
English language abilities significantly beyond the ability to speak and understand simple
English words as specified in the ALJ’s RFC assessment.
The Commissioner responds that because the VE classified Sanchez’s past relevant work
as that of production assembler, any industry, rather than electronics assembler, Sanchez’s
argument regarding the conflict with the DOT on language skills is not germane.116 The court
agrees. Further, as the Commissioner also points out, Sanchez had been able to perform her past
work for over twenty-six years despite her language limitations.117
Plaintiff states that contrary to the Commissioner’s argument, the VE erroneously cited
the job as production assembler, any industry, but clearly had in mind the job of electronics
113
Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005).
114
Tr. 427.
115
Opening Brief at 18-20; Reply at 8-9.
116
Answer Brief at at 24, note 11.
117
Answer Brief at 24.
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assembler.118 At the hearing, the ALJ pressed the VE to give an example of a job that Sanchez
would be capable of performing at a work site that the VE had visited in the last five years.
During this testimony, the VE talked about electronics jobs because electronics plants were the
only types of assembly plants that he had recently visited. He stated, however, that electronics
assembly is a semi-skilled job, rather than unskilled. Thus, he did not testify that Sanchez was
capable of performing the job of electronics assembler. This VE’s testimony concerning
electronics assembly appears to be a digression caused by the ALJ’s insistence about naming a
particular job at a particular plant. The VE clearly testified earlier that someone with the
limitations specified in the hypothetical could perform the job of production assembler, any
industry.
Pointing to the VE’s comment about a job at Micron where workers would have to be
“very meticulous in their assembly and . . . “too many mistakes you’re out the door,”119 Sanchez
asserts that neither the production assembler nor electronics assembler meets her need for a lowstress environment.120 However the ALJ did not find that Sanchez was capable of performing the
electronic assembly job. Further, the ALJ specified in his hypothetical that the job should be low
stress which included a lower production rate. In response, the VE testified that he had reduced
the number of jobs to reflect a lower production rate. Accordingly, the court concludes that the
ALJ did not err at step four.
118
Reply at 9.
119
Tr. 424.
120
Opening Brief at 20; Reply at 9-10.
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ORDER
The ALJ erred by failing to explain his apparent rejection of the medical evidence
provided by Leslie Eckford, RN, LCSW. Therefore, the case is REMANDED to the agency to
address this issue.
September 30, 2011.
BY THE COURT:
_____________________________
David Nuffer
U.S. Magistrate Judge
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