Romero v. Astrue

Filing 24

MEMORANDUM DECISION reversing and remanding the decision of the Commissioner of the Social Security Administration. Signed by Magistrate Judge Paul M. Warner on 03/27/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

PRESTINE J. ROMERO,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:12-cv-0089-PMW

CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Prestine J. Romero’s (“Plaintiff”) appeal of the Commissioner’s final
decision denying Plaintiff’s claims for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, see 42 U.S.C. §§ 401-434, and Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act, see id. §§ 1381-1383f. After careful consideration of the
written briefs and the complete record, the court has determined that oral argument is
unnecessary in this case.

1

On February 14, 2013, Carolyn W. Colvin (“Commissioner”) became the Acting
Commissioner of Social Security. Accordingly, she has been automatically substituted for
Michael J. Astrue as the defendant in this action. See 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”); Fed.
R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.”).

BACKGROUND
In October 2009, Plaintiff applied for DIB and SSI, alleging disability beginning on
August 31, 2009.2 Plaintiff’s applications were denied initially and upon reconsideration.3
Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”),4 and that hearing
was held on June 27, 2011.5 On July 11, 2011, the ALJ issued a written decision denying
Plaintiff’s claims for DIB and SSI.6 On November 23, 2011, the Appeals Council denied
Plaintiff’s request for review,7 making the ALJ’s decision the Commissioner’s final decision for
purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981,
416.1481.
On January 26, 2012, Plaintiff filed her complaint in this case, which was assigned to
District Judge Dee Benson.8 The Commissioner filed her answer on April 20, 2012,9 and the
court received the Administrative Record the same day.10

2

See docket no. 5, Administrative Record (“Tr.

3

See Tr. 54-59.

4

See Tr. 75-76.

5

See Tr. 27-40.

6

See Tr. 12-26.

7

See Tr. 3-6.

8

See docket no. 3.

9

See docket no. 4.

10

See docket no. 5.
2

”) 115-125.

Plaintiff filed her opening brief on August 27, 2012.11 After receiving an extension of
time,12 the Commissioner filed her answer brief on October 29, 2012.13 After also receiving an
extension of time,14 Plaintiff filed her reply brief on November 19, 2012.15
On January 16, 2013, Judge Benson referred the case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).16 The same day, both parties consented to having a United
States Magistrate Judge conduct all proceedings in the case, including entry of final judgment,
with appeal to the United States Court of Appeals for the Tenth Circuit.17 Consequently, the case
was reassigned to Magistrate Judge Warner as the presiding judge pursuant to 28 U.S.C. § 636(c)
and rule 73 of the Federal Rules of Civil Procedure.18
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and

11

See docket no. 10.

12

See docket nos. 11-12.

13

See docket no. 13.

14

See docket nos. 15-16.

15

See docket no. 17.

16

See docket no. 18.

17

See docket no. 19.

18

See id.
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citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation
omitted). “In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor
substitute [its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th
Cir. 2006) (quotations and citation omitted). “The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process). If a
determination can be made at any one of the steps that a claimant is or is not disabled, the
subsequent steps need not be analyzed. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one determines whether the claimant is presently
engaged in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the decision
maker must proceed to step two: determining whether the claimant
has a medically severe impairment or combination of
impairments. . . . If the claimant is unable to show that his
impairments would have more than a minimal effect on his ability
to do basic work activities, he is not eligible for disability benefits.
If, on the other hand, the claimant presents medical evidence and
makes the de minimis showing of medical severity, the decision
maker proceeds to step three.

4

Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R.
§§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At
the fourth step, the claimant must show that the impairment prevents performance of his “past
relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “If the claimant is able to
perform his previous work, he is not disabled.” Williams, 844 F.2d at 751. If, however, the
claimant is not able to perform his previous work, he “has met his burden of proof, establishing a
prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If it is determined that the claimant “can make an
adjustment to other work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is not disabled.
If, on the other hand, it is determined that the claimant “cannot make an adjustment to other
work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.

5

ANALYSIS
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
presents several arguments. One of those arguments is dispositive of Plaintiff’s appeal because it
mandates reversal. Accordingly, the court will address only that argument here and “will not
reach the remaining issues raised by [Plaintiff] because they may be affected by the ALJ’s
treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003);
see also Gilbert v. Astrue, 231 Fed. App’x 778, 785 (10th Cir. 2007) (“In light of the remand of
this case, we do not reach the remainder of [the plaintiff’s] claims on appeal . . . .”).
Plaintiff argues that the ALJ erred in his analysis at step four of the sequential evaluation
process. Step four consists of three phases. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th
Cir. 1996). In the first phase, the ALJ is required to evaluate a claimant’s RFC. See id. In the
second phase, the ALJ “must determine the physical and mental demands of the claimant’s past
relevant work.” Id. “In the final phase, the ALJ determines whether the claimant has the ability
to meet the job demands found in phase two despite the mental and/or physical limitations found
in phase one.” Id.
Plaintiff’s specific argument is that the ALJ erred at phase one in his assessment of
Plaintiff’s RFC. Plaintiff contends that the ALJ did not provide a “function-by-function”
analysis as required by Social Security Ruling (“SSR”) 96-8p and, instead, stated Plaintiff’s RFC
in terms of the exertional category of light work. SSR 96-8p.

6

In relevant part, SSR 96-8p provides that
[t]he RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis, including the functions in
paragraphs (b), (c), and (d) of 20 [C.F.R. §§] 404.1545 and
416.945. Only after that may RFC be expressed in terms of the
exertional levels of work, sedentary, light, medium, heavy, and
very heavy.
Id. In assessing Plaintiff’s RFC, paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and
416.945 require the ALJ to specifically assess a claimant’s physical abilities, mental abilities, and
other abilities affected by the claimant’s impairment(s). See 20 C.F.R. §§ 404.1545(b)-(d),
416.945(b)-(d); see also SSR 96-8p. Paragraph (b) requires the ALJ to consider “certain physical
demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or
other physical functions (including manipulative or postural functions, such as reaching,
handling, stooping or crouching).” 20 C.F.R. §§ 404.1545(b), 416.945(b); see also SSR 96-8p.
Paragraph (c) requires the ALJ to consider “certain mental activities, such as limitations in
understanding, remembering, and carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting.” 20 C.F.R. §§ 404.1545(c),
416.945(c); see also SSR 96-8p.
In this case, the ALJ did not provide a function-by-function analysis of Plaintiff’s
work-related abilities. Instead, the ALJ expressed Plaintiff’s RFC as the ability “to perform light
work” with certain limitations.19 The ALJ erred in that regard because, as mandated by SSR
96-8p, he was not allowed to simply state Plaintiff’s RFC in terms of an exertional category, such

19

Tr. 18.
7

as light work, unless he first identified Plaintiff’s “functional limitations or restrictions and
assess . . . her work-related abilities on a function-by-function basis, including the functions in
paragraphs (b), (c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945.” SSR 96-8p. When
addressing the same issue, the Tenth Circuit and district courts in the Tenth Circuit have reached
the same conclusion. See, e.g., Alexander v. Barnhart, 74 Fed. App’x 23, 28 (10th Cir. 2003);
Hodgson v. Apfel, No. 98-2067, 1999 U.S. App. LEXIS 1487, at *10-11 (10th Cir. Feb. 3, 1999);
Guana v. Astrue, No. 11-cv-02781-LTB, 2013 U.S. Dist. LEXIS 10954, at *15-16 (D. Colo. Jan.
28, 2013); Baysinger v. Astrue, No. 11-cv-00333-WYD, 2012 U.S. Dist. LEXIS 42381, at *8-9
(D. Colo Mar. 28, 2012); Henderson-Harrison v. Astrue, No. 10-1218-JWL, 2011 U.S. Dist.
LEXIS 42050, at *9-14 (D. Kan. Apr. 18, 2011).
Based on the foregoing, the court concludes that the ALJ erred in his analysis at step four
of the sequential evaluation process. Accordingly, this case must be reversed and remanded.
CONCLUSION AND ORDER
The court concludes that the ALJ erred at step four of the sequential evaluation process,
as detailed above. Accordingly, IT IS HEREBY ORDERED that the Commissioner’s decision
in this case is REVERSED AND REMANDED.
IT IS SO ORDERED.
DATED this 27th day of March, 2013.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge
8