Sharo v. Colvin

Filing 21

MEMORANDUM DECISION AND ORDER: It is Hereby Ordered that the Commissioner's decision is Reversed and Remanded for further proceedings with special instructions to reevaluate whether jobs exist in significant numbers in the national economy that Plaintiff can preform at step five of the sequential evaluation. Signed by Magistrate Judge Brooke C. Wells on 6/5/2014. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JENNIFER M. SHARO,

MEMORANDUM DECISION AND ORDER
REVERSING AND REMANDING THE
DECSION OF COMMISSIONER

Plaintiff,
v.

Case No. 2:13-cv-667-BCW
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

Magistrate Judge Brooke Wells

All parties have consented to having United States Magistrate Judge Brooke C. Wells
conduct all proceedings in this case, including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit. 1
Plaintiff Jennifer M. Sharo (“Plaintiff’) seeks judicial review of the determination of the
Commission of the Social Security Administration that denied her application for Social Security
Disability and Disability Insurance Benefits. After careful consideration of the written briefs and
the administrative record, the Court has determined that oral argument is unnecessary and issues
the following Memorandum Decision and Order REVERSING and REMANDING the decision
of the Commissioner.
BACKGROUND
A. Procedural History
Plaintiff, Jennifer M. Sharo, who was born on February 8, 1956, 2 filed an application for
Disability and Disability Insurance Benefits on February 10, 2010. 3 Plaintif alleges an onset date
of disability of April 15, 2005. 4 Plaintiff meets the insured requirements through June 30, 2008. 5

1

See 28 U.S.C. § 636(c); F.R.C.P. 73; docket no. 15.

Plaintiff contends she is disabled due to “cervical disc disease status post anterior cervical
discectomy and fusion, lumbar disc disease status post discectomy and fusion, and traumatic
osteoarthritis as a result of a left foot crush injury.” 6 Plaintiff’s disability claim was initially
denied on May 21, 2010, and upon reconsideration on June 3, 2010. 7 On October 6, 2010,
Plaintiff requested an administrative hearing. 8 On September 21, 2011 a hearing was held in
Plaintiff’s case before and Administrative Law Judge (“ALJ”). 9
On November 9, 2011, the ALJ issued a partially favorable decision regarding Plaintiff’s
claims for benefits. 10 That decision was amended by the ALJ on November 17, 2011 to reflect
an error made with regard to Plaintiff’s Date Last Insured. The subsequent November 17, 2011
decision denied Plaintiff’s claims for benefits entirely. 11 Plaintiff then appealed this denial of
benefits to the Social Security Appeals Council which denied a review of the ALJ’s decision on
June 17, 2013. 12 Thus, the ALJ’s November 17th decision is the final decision of the
Commissioner for purposes of judicial review. 13
B. Hearing before the ALJ-September 21, 2011.
At the hearing before the ALJ, testimony was received from Plaintiff, Plaintiff’s
Attorney, Andrew J. Reichardt, medical expert, Sterling E. Moore, M.D., and vocational expert
Dina Galli. 14

2

Administrative Record, docket no. 10 at 71 [hereinafter referred to as “Tr.”]
Tr. at 70.
4
Tr. at 199.
5
Tr. at 32.
6
Opening Br., docket no. 17 at p. 2.
7
Tr. at 97, 102, 109.
8
Tr. at 107.
9
Tr. at 141.
10
Tr. at 51-61.
11
Plaintiff indicates in a footnote to her Opening Brief that she does not challenge the ALJ’s recalculation of
Plaintiff’s Date Last Insured so only the amended decision is at issue before this Court. See fn. 1, docket no. 17.
12
Tr. at 1.
13
See 42 U.S.C. § 405(g); 20 C.F.R. § 404.971.
14
Tr. at 68.
3

2

Plaintiff’s counsel testified that Plaintiff worked after her date of last insured but this
employment did not rise to the level of substantial gainful activity. 15 Plaintiff’s counsel also
argued that under the listings and grid rules if Plaintiff was found to be able to work only at a
sedentary level, then she would be found disabled. 16
Next, Plaintiff testified she lives with her husband and some roommates. 17 Plaintiff
testified she graduated from high school and that her most recent job was part-time, four hours a
day, five days a week, cleaning a credit union. 18 Plaintiff is currently taking Percocet, Soma,
Ambien CR and a stomach pill. 19 Plaintiff testified that these medications made her “very
tired.” 20 Plaintiff further testified that she has difficulty walking up and down stairs and on
uneven ground due to her impairments. 21
The ALJ then heard testimony from the medical expert, Dr. Moore. Dr. Moore
chronicled Plaintiff’s medical history and opined that Plaintiff’s impairments meet the light work
requirements during the relevant time period. However, Plaintiff does not meet the requirements
for sedentary work until after the date Plaintiff was last insured. 22 As to restrictions with regard
to Plaintiff standing and walking, the ALJ and Dr. Moore had the following exchange:
ALJ:

A:

…with the light work that you opined she was—would have been able to
do prior to January 1, 2009, would there be any restrictions as far as
standing and walking?
Judge, there’s not enough in there to say. I think there would be. I don’t—
I think that she could have, you know, stand/walk at six hours, but I think
she would have needed the ability to change positions. Probably either
standing or sitting every 30 minutes for 1 to 2 minutes each time because,

15

Tr. at 72.
Id.
17
Tr. at 73.
18
Tr. at 73-76.
19
Tr. at 76.
20
Id.
21
Tr. at 76-77.
22
Tr. at 81-82.
16

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clearly, she was having some pain and that break in the positions tends to
offer some relief. 23
Lastly, the ALJ heard testimony from vocational expert, Dina Galli. Ms. Galli testified
that in the past Plaintiff had been mainly employed in two jobs—a waitress, which is a light semskilled job and as a cook, which is a medium skilled job. 24 The ALJ and Ms. Galli then had the
following exchange that is relevant for purposes of this appeal:
ALJ: But if the Claimant were limited to less than a full range of light work; she
would need a sit/stand option; would not be able to climb ropes, ladders or
scaffolds and the other postural limitations, crawling, stooping, et cetera
would be occasional, would she be able to do either her job as a waitress or
a short-order cook?
A:
No, Your honor.
Q:
Could you give me two light jobs that she would be able to do?
A:
Light jobs that allow for the sit/stand option would be those such as a ticket
seller. That’s DOT number 211.467.030. It is light and unskilled. There
are approximately 25,000 in the national economy, but I would make a 30
percent reduction for the sit/stand option. Another possibility would be a
job such as parking lot attendant. It’s light and unskilled. There are
approximately 30,000 in the national economy and I would make the same
30 percent reduction.
Q.
And if—would there be any transferable skills to sedentary work?
A:
No, Your Honor. 25
C. The ALJ’s Decision
The ALJ found at Step One of the required sequential evaluation process 26 that Plaintiff
had not engaged in substantial gainful activity since April 15, 2005, the alleged onset date
through the date that Plaintiff was last insured, June 30, 2008. 27 At Step Two, the ALJ found
Plaintiff had the following severe impairments: (1) degenerative disc disease of the lumbar and
cervical spine status post fusion; (2) crushed foot injury status post-surgery; and (3) degenerative

23

Tr. at 82.
Tr. at 85.
25
Tr. 86-87.
26
See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)(explaining the five-step evaluation process for
determining if a claimant is disabled).
27
Tr. at 32.
24

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joint disease of the left foot. 28 At Step Three, the ALJ found that through the date Plaintiff was
last insured, she did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments contained within the regulations. 29
Next, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform
light work with the following additional limitations:
•
•
•

The claimant must have the option to alternate positions from sitting to
standing at will (the sit/stand option)’
The claimant must never climb ladders, ropes or scaffolds;
The claimant is limited to occasional climbing of ramps and stairs,
stooping, kneeling, crouching and crawling. 30

At Step Four, the ALJ found Plaintiff had past relevant work as a waitress and cook. 31
However, based upon the testimony of the vocational expert, the ALJ found Plaintiff was unable
to perform her past relevant work because these positions do not allow an individual to sit or
stand at will. 32 After considering Plaintiff’s “age, education, work experience, and residual
functional capacity,” the ALJ found “there were jobs in that existed in significant numbers in the
national economy that the claimant could have performed” through her date of last insured. 33
Namely, the ALJ found Plaintiff could work as a “Ticker Seller” and “Parking Lot Attendant.” 34
Therefore, the ALJ found Plaintiff was not disabled within the meaning of the Social Security
Act. 35

28

Tr. at 33.
Id.
30
Tr. at 34.
31
Tr. at 39.
32
Id.
33
Tr. at 39.
34
Tr. at 40.
35
Id.
29

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STANDARD OF REVIEW
This Court’s review of the ALJ’s decision is limited to determining whether his findings
are supported by “substantial evidence” and whether the correct legal standards were applied. 36
If supported by substantial evidence, the findings are conclusive and must be affirmed. 37
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” 38 Thus, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” 39 Moreover, a decision is not based on substantial evidence
“if it is overwhelmed by other evidence in the record.” 40
Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not
required to discuss all evidence. 41 In its review, the Court should evaluate the record as a whole,
including that evidence before the ALJ that detracts from the weight of the ALJ’s decision. 42
However, a reviewing Court should not re-weigh the evidence or substitute its own judgment for
that of the ALJ’s. 43 Further, the Court “…may not ‘displace the agenc[y]’s choice between two
fairly conflicting views, even though the Court would justifiably have made a different choice
had the matter been before it de novo.” 44 Lastly, “[t]he failure to apply the correct legal
standard[s] or to provide this court with a sufficient basis to determine that appropriate legal
principles have been followed [are] grounds for reversal.” 45

36

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); Ruthledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000);
Glenn v. Shalala, 21 F.3d 983 (10th Cir. 1993).
37
Richardson v. Perales, 402 U.S. 389, 401 (1981).
38
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
39
Zolanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).
40
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)(internal citation omitted).
41
Id. at 1066.
42
Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).
43
Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).
44
Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).
45
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)(internal citations omitted).

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In applying these standards, the Court has considered the Administrative Record, relevant
legal authority, and the parties’ briefs and arguments. The Court deems oral argument to be
unnecessary, and finds as follows:
ANALYSIS
Plaintiff raises one issue upon appeal. Plaintiff argues that the ALJ’s Determination at
Step Five of the analysis in which he opined Plaintiff could perform jobs existing in significant
numbers in the national economy is not supported by substantial evidence. Specifically, Plaintiff
argues that the ALJ erred by adopting a RFC that differs from the hypothetical questions posed
to the vocational expert at the hearing.
At Step Five of the sequential evaluation process, the burden of proof shifts to the
Commissioner, and the ALJ must determine “whether the claimant has the [RFC]…to perform
other work in the national economy in view of [her] age, education, and work experience.” 46 If it
is determined that the claimant “can make an adjustment to other work, [she] is not disabled.” 47
Further, “[t]estimony elicited from a vocational expert by hypothetical questions…must ‘relate
with precision all of a claimant’s impairments.’ 48 Otherwise, the testimony cannot constitute
substantial evidence to support an ALJ’s decision.” 49
Here, in the ALJ’s RFC assessment, he found Plaintiff “must have the option to alternate
positions from sitting to standing at will (the sit/stand option).” 50 Plaintiff argues that the
hypothetical posed to the Vocational Expert at the administrative hearing did not contain the “at
will” option. Therefore, the ALJ erred in adopting the opinion of the Vocational Expert because

46

Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1998); see 20 C.F.R. § 404.1520(a)(4)(v), 416.920(a)(4)(v).
Id.
48
Armijo v. Colvin, No: 2:12-cv-330-BCW, 2013 WL 1870590, at *4 (May 3, 2013)(unpublished)(citing Hargis v.
Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991).
49
Id. (citing Ekeland v. Bowen, 899 F.2d 719, 724 (8th Cir. 1990).
50
Tr. at 34.
47

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the ALJ’s hypothetical did not “relate with precision” all of Plaintiff’s limitations. 51 In response,
Defendant argues that the ALJ’s failure to specifically state in his hypothetical to the Vocational
Expert that Plaintiff must be able to sit/stand at will adequately described Plaintiff’s RFC
because the ALJ was using the terms “sit/stand option” and “at will” interchangeably. Moreover,
Defendant argues that the hypothetical question adequately expressed Plaintiff’s need to change
positions.
Upon review and consideration, the Court agrees with the arguments set forth by
Plaintiff. Specifically, the Court finds Plaintiff’s arguments with regard to SSR 83-12 have
merit. As demonstrated by Plaintiff, SSR 83-12 provides:
In some disability claims, the medical facts lead to an assessment of RFC which
compatible with the performance of either sedentary or light work except that the
person must alternate periods of sitting and standing. The individual may be able
to sit for time, but must then get up and stand or walk for awhile before returning
to sitting. Such an individual is not functionally capable of doing either the
prolonged sitting contemplated in the definition of sedentary work (and for the
relatively few light jobs which are performed primarily in a seated position) or the
prolonged standing or walking contemplated for most light work. (Persons who
can adjust to any need to vary sitting and standing by doing so at breaks, lunch
periods, etc., would still be able to perform a defined range of work.)
There are some jobs in the national economy -- typically professional and
managerial ones -- in which a person can sit or stand with a degree of choice. If an
individual had such a job and is still capable of performing it, or is capable of
transferring work skills to such jobs, he or she would not be found disabled.
However, must jobs have ongoing work processes which demand that a worker be
in a certain place or posture for at least a certain length of time to accomplish a
certain task. Unskilled types of jobs are particularly structured so that a person
cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit
or stand, a [vocational specialist] should be consulted to clarify the implications
for the occupational base. 52

Therefore, this lead Social Security Regulation leads to the conclusion that in this case, if
the ALJ truly meant for Plaintiff to have the “at will” sit/stand option, that should have been
51
52

See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)(internal quotations and citation omitted).
SSR 83-12.

8

articulated to the vocational expert in a hypothetical because it is a special circumstance.
Because the “at will” language was not in the ALJ’s hypothetical to the vocational expert and the
implications of that such a statement to the vocational expert are unknown, the Court cannot
conclusively find that the ALJ’s decision is free from legal error and based upon substantial
evidence.
Accordingly, the Court finds the ALJ did not apply the correct legal standard[s] or
provide this court with a sufficient basis to determine that appropriate legal principles have been
followed. 53 Thus, the ALJ’s decision must be reversed on this basis.
CONCLUSION AND ORDER
For the foregoing reasons, the Court finds Plaintiff’s arguments regarding the lack of
precision between the ALJ’s hypothetical to the vocational expert and the written decision have
merit and warrant remand for further proceedings to clarify the ALJ’s intent. Therefore, IT IS
HEREBY ORDERED that the Commissioner’s decision is REVERSED AND REMANDED for
further proceedings with special instructions to reevaluate whether jobs exist in significant
numbers in the national economy that Plaintiff can perform at Step Five of the sequential
evaluation.

DATED this 5 June 2014.

Brooke C. Wells
United States Magistrate Judge

53

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