Holzworth v. Astrue

Filing 28

MEMORANDUM DECISION and ORDER Remanding Case for Further Consideration and Striking Hearing. Signed by Magistrate Judge Brooke C. Wells on 12/09/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JAY R. HOLZWORTH,

v.

MEMORANDUM DECISION AND ORDER
REMANDING CASE FOR FURTHER
CONSIDERATION AND STRIKING
HEARING

CAROLYN W. COLVIN,

Case No. 2:12-CV-916 BCW

Plaintiff,

Defendant.

Magistrate Judge Brooke Wells

Plaintiff-appellant Jay Holzworth seeks review of the decision of the Commissioner of
Social Security denying his claim for disability insurance benefits and supplemental security
income. The Court set oral argument in this matter for December 18, 2014. 1 Having considered
the parties’ memoranda, the history of this case, and relevant law, the Court STRIKES the
hearing set for December 18, 2014 and enters the following decision REMANDING THIS
MATTER for further consideration.
The single issue in this case concerns the Administrative Law Judges’ Step 5 decision 2
that Mr. Holzworth could perform other work in the national economy including the
representative occupations of final assembler and cutter-paster. 3 Pertinent to the Court’s
decision to remand is the procedural history in this case. Mr. Holzworth filed his applications
for benefits in November 2008, 4 alleging that he became disabled in September 2007. 5 After
Plaintiff’s claims were denied 6 an administrative law judge (ALJ) held a hearing in February

1

Docket no. 26.
For additional information about the five-step sequential evaluation process used in determining whether a
claimant is disabled see Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
3
Tr. 571. Tr. refers to the transcript of the case record before the Court.
4
Tr. 168.
5
Tr. 141.
6
Tr. 76, 82, 85.
2

2010 7 and issued a decision in April 2010 finding Plaintiff not disabled under the Act. 8 The ALJ
concluded at Step 5 that Mr. Holzworth could perform the occupations of final assembler and
cutter-paster. 9 Plaintiff then sought review of the 2010 decision. The 2010 decision was
remanded by the Court to the Social Security Appeals Council at the Commissioner’s request. 10
In that order the Court directed the Appeals Council to have an ALJ hold a supplemental hearing
and issue a new decision. Specifically, the Court ordered the re-evaluations of
Plaintiff’s residual functional capacity, particularly with regard to manipulative
restrictions; further evaluate the opinions of Dr. McDermott (Exhs. 12F and 17F),
Dr. Humphreys (Exh. 14F) and Dr. Taggart (Exh. 15F); explain the weight
assigned to those opinions; and obtain evidence from a vocational expert. 11
Pursuant to the Court’s order, the Appeals Council remanded the first matter to the ALJ
for further administrative proceedings and provided specific instructions. 12 These instructions
included the need to obtain
supplemental evidence from a vocational expert to clarify the effect of the
assessed limitations on the claimant’s occupational base . . . . The hypothetical
questions should reflect the specific capacity/limitations established by the record
as a whole. The Administrative Law Judge will ask the vocational expert to
identify examples of appropriate jobs and to state the incidence of such jobs in the
national economy. 13
The ALJ held a second hearing in July 2012 14 and issued a second decision finding
Plaintiff not disabled at Step 5 under the Act (2012 decision). 15 The ALJ concluded that once
again Mr. Holzworth could perform the occupations of final assembler and cutter-paster. The
Vocational Expert (VE) at the second hearing testified that Mr. Holzworth could perform the
7

Tr. 27.
Tr. 12.
9
Tr. 19.
10
Tr. 660.
11
Tr. 661-62. Order dated January 23, 2012, case no. 2:11-cv-396 SA, docket no. 22.
12
Tr. 669-71.
13
Tr. 671.
14
Tr. 605
15
Tr. 571.
8

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occupation of “office helper” 16 but did not address the jobs of final assembler and cutter-paster.
The ALJ failed to mention the occupation of office helper in the 2012 decision and it is clear
from a review of the record that the ALJ relied upon the VE testimony from the previous
administrative proceedings. Appellant contends that the ALJ erred by relying upon the VE
testimony from the prior administrative proceeding without incorporating the prior testimony
into the record. Specifically, Mr. Holzworth argues that because the ALJ’s hypothetical to the
vocational expert at the second hearing did not include the same limitations as the ALJ
ultimately included within Plaintiff’s residual functional capacity (RFC), substantial evidence
does not support the ALJ’s finding that Plaintiff could work as a final assembler and cutterpaster. Thus, the ALJ erred at Step 5 of the required sequential analysis and Plaintiff urges this
Court to reverse the decision and award benefits, or in the alternative, remand for further
proceedings. The Court is persuaded by Mr. Holzworth’s arguments.
The Court has reviewed the record and it is clear the ALJ relied upon the VE testimony
from the 2010 administrative hearing and failed to disclose this in the 2012 decision. It is also
evident from the record that the hypothetical given to the VE at the second hearing does not
match with the RFC in the ALJ’s 2012 decision. The Tenth Circuit has previously stated,
“[t]estimony elicited by hypothetical questions that do not relate with precision to all of a
claimant's impairments cannot constitute substantial evidence to support the Secretary's
decision.” 17 Defendant argues that some discrepancies in the RFC and hypothetical are due to a
“scrivener’s error” and that is not a basis for remand. 18 When a scrivener’s error does not affect

16

Tr. 629.
Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotations omitted).
18
Op. p. 7.
17

3

the outcome of a case remand is not necessary. 19 Here, however, the ALJ failed to disclose the
reliance upon the prior VE testimony, so this is not a case of only a scrivener’s error. Further,
the Appeals Council specifically ordered the ALJ to obtain supplemental evidence from a VE
and clarify Mr. Holzworth’s occupational base with accurate hypothetical questions. 20 The ALJ
did not comply with this directive. The ALJ should have either incorporated the new VE
testimony into the 2012 decision, or at a minimum, at least disclosed the fact that he was relying
upon the prior VE testimony from 2010 that met the Appeals Council directive. 21
Defendant argues that it is permissible for the Court to “mix and match,” or in essence
use the VE’s testimony from the 2010 hearing as support for the ALJ’s 2012 decision denying
benefits. Defendant asserts that an ALJ at a second hearing is not precluded from considering
the VE’s testimony from the first hearing and offers Garza v. Apfel 22 in support of this principle.
In Garza the Tenth Circuit stated that “[s]o long as the ALJ's findings about plaintiff's physical
and mental limitations were reflected in the hypothetical question propounded to the VE at the
first hearing, the ALJ could rely upon the first VE's testimony in determining at step five of the
sequential analysis that plaintiff was not disabled.” 23 The Court finds this principle inapplicable
in this case because in Garza the ALJ “determined that plaintiff’s RFC had not changed since the
first hearing and incorporated the testimony of the VE from that hearing into the record.” 24
Here, the ALJ failed to make any such finding concerning changes in Mr. Holzworth’s RFC and
failed to disclose the incorporation of the prior testimony. Additionally, in remanding the 2010

19

See, e.g., Poppa v. Astrue, 569 F.3d 1167, 1172 n.5 (10th Cir. 2009); Ramsey v. Barnhart, 117 F.App’x 638, 642
(10th Cir. 2004) (unpublished).
20
Tr. 671.
21
See 20 C.F.R. §§ 404.977(b), 416.1477(b), (“The administrative law judge shall take any action that is ordered by
the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand
order.”).
22
162 F.3d 1173, 1998 WL 778041 (10th Cir. 1998).
23
Id. at *3.
24
Id. at *2.

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decision this Court ordered a re-evaluation of Mr. Holzworth’s RFC. The ALJ failed to comply
with this requirement in the 2012 decision. Thus, the Court finds that the VE’s testimony does
not provide substantial evidence in support of the ALJ’s Step 5 decision.
Finally, Mr. Holzworth urges the Court to reverse and award benefits. The Court
acknowledges that this case comes very close to an award of benefits on appeal because of the
procedural errors. But the Court declines to award benefits because there is not an
overwhelming showing of disability. 25 The Court therefore remands this matter for further
proceedings and an administrative hearing before an ALJ other than the one who conducted the
first two administrative hearings.
ORDER
Based upon the foregoing, the Court finds the Commissioner’s decision is not supported
by substantial evidence. This matter is remanded for further proceedings consistent with this
decision and the judgment of the Commissioner is REVERSED and REMANDED. The Clerk of
Court is directed to enter judgment and close this case.

DATED this 9 December 2014.

Brooke C. Wells
United States Magistrate Judge

25

C.f. Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (awarding benefits because disability was clearly
established and remanding would “serve no useful purpose”).

5