Lemmon v. Colvin

Filing 31

MEMORANDUM DECISION AND ORDER- The Court REVERSES and REMANDS the decision of the Commissioner for further administrative proceedings. The Clerk of the Court is directed to enter judgment in favor of Plaintiff and against the Commissioner. Signed by Judge Bruce S. Jenkins on 6/16/2016. (las)

JOHN J. BORSOS (#384)
Attorney for Plaintiff
P.O. Box 112347
Salt Lake City, Utah 84147-2347
[phone] Fax: [phone]

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
Civil Action No. 2:14-CV-00554

ROBERT M. LEMMON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

MEMORANDUM DECISION AND
ORDER REMANDING THE
DECISION OF THE
COMMISSIONER
Magistrate Judge Paul M. Warner

Plaintiff, Robert Lemmon, seeks judicial review1 of the decision of the Acting
Commissioner of Social Security (Commissioner) denying his claim for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI) benefits.2 After careful review of the
entire record, the parties’ briefs, and arguments presented at a hearing held on May 19, 2016, the
Court concludes that the Administrative Law Judge’s decision3 is not supported by substantial
evidence nor free from harmful legal error and is, therefore, REVERSED and REMANDED to
the Social Security Administration for further action.

1

Pursuant to 42 U.S.C. § 405(g).

2

Sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act (the Act).

3

Because the Appeals Council denied review (Tr. 1-4), the ALJ’s decision is the
Commissioner’s final decision for purposes of this appeal. See Doyal v. Barnhart, 331 F.3d 758,
759 (10th Cir. 2003). See 20 C.F.R. §§ 404.981, 422.210(a).

BACKGROUND4
Plaintiff protectively applied for DIB and SSI in March 2007,5 claiming that he became
disabled on November 10, 2006. After the agency denied Plaintiff’s applications at the initial
and reconsideration levels, an administrative law judge (ALJ) held a hearing in February 2009
and, in March 2009, issued a decision finding that Plaintiff was not disabled under the Act.6 The
agency’s Appeals Council granted review of the ALJ’s decision and remanded in July 2009 for
further proceedings.7
On remand, the ALJ held a hearing in March 20108, received a new consultative physical
examination,9 and in October 2010, issued a second decision finding that Plaintiff had failed to
establish disability under the Act.10 The Appeals Council denied review of this second decision
in July 2014. This appeal followed.
Plaintiff was 39 years old in November 2006, when he claimed he became disabled by
pain in his feet and shoulders, lung problems, and high blood pressure.11 He completed the tenth

4

The parties fully set forth the background of this case, including the medical history, in
their memoranda. The Court does not repeat this background in full detail.
5

Tr. 333, 341, 395.

6

Tr. 205-210, 214-219, 116-179, 188-196.

7

Tr. 199-201.

8

Tr. 43-64.

9

Tr. 72-115.

10

Tr. 43-64, 72-115.

11

Tr. 376, 394.
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grade and had past relevant work as a kitchen helper, prep cook, and dining room attendant.12 At
a March 2010 administrative hearing, the ALJ asked an independent vocational expert (VE) to
assume a hypothetical individual with a vocational profile, in part, as follows:
I am going to use for my first hypothetical our medical expert's limitations that he
testified to based in part on my prior decision, and his own review of the records here,
indicating a capacity to do a range of light work. Lifting 20 pounds occasionally and 10
pounds frequently, able to stand or walk at least two hours out of an eight-hour day, able
to sit for about six hours out of an eight-hour day with an option to sit or stand at will.
(Tr. 103-104.)
The ALJ then asked the VE to identify “unskilled, entry level, light, and sedentary
occupations” consistent with these limitations.13 The VE testified that there were 53,000 jobs that
could be performed by two light jobs14 along with one sedentary job.15 The VE testified that, in
the national economy, there were 10,000 final assembler positions (after a 50% reduction) that
would accommodate all of the hypothetical limitations.16 The VE testified that she reduced the
available numbers of these positions based upon “having visited these types of job sites,
analyzed[d] these jobs, [and] surveyed workers and employers with respect to these issues.”17
The ALJ issued his opinion following the five-step sequential evaluation process for the

12

13

Tr. 103, 124, 169-70.
Tr. 105.

14

Tr. 106. Parking lot attendant, Dictionary of Occupational Titles (DOT) number
915.473-010; and ticket seller, DOT number 211.467-010.
15

Tr. 106. Final assembler, DOT number 713.687-018.

16

Tr. 106.

17

Tr. 107.
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consideration of disability claims.18 The ALJ found that Plaintiff retained the sedentary RFC to
perform less than the full range of light work19 but that he was able to perform all the three jobs
identified by the vocational expert.
STANDARD OF REVIEW
This Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied.20 “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”21 In reviewing the ALJ’s decision the Court
evaluates the record as a whole, including that evidence before the ALJ that detracts from the
weight of the ALJ’s decision.22 The Court may neither “reweigh the evidence [n]or substitute
[its] judgment for the [ALJ’s].”23 Where the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision must be affirmed.24
ANALYSIS
Plaintiff presented a very narrow argument to the Court challenging the ALJ’s step-five
finding that Plaintiff could perform work existing in significant numbers in the national economy

18

Tr. 46-64. 20 C.F.R. § 404.1520(a)(4) (outlining the process).

19

Tr. 63.

20

Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006).

21

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).

22

Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

23

Lax, 489 F.3d at 1084 (citation omitted).

24

Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
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based upon the vocational expert’s testimony concerning jobs requiring the lifting in excess or
up to 20 pounds when the ALJ’s decision found that Plaintiff could only lift 10 pounds. As
conceded by the Commissioner, the ALJ’s assessment of Plaintiff’s RFC precluded two of the
three jobs identified by the Vocational Expert. Specifically, the Vocational Expert testified that
the parking lot attendant and ticket seller positions were light, not sedentary, so it was error for
the ALJ to include them as occupations that Plaintiff could perform.
The third job offered by the Vocational Expert is a sedentary, unskilled job which is
consistent with the ALJ’s assessment of Plaintiff’s RFC. The Vocational Expert testified that
after a 50% reduction there were 10,000 final assembler positions nationwide. This Court
declines to apply the harmless error doctrine in this case and cannot conclude as a matter of law
that the number of available positions is significant. Because the ALJ erroneously relied upon
two positions that conflicted with Plaintiff’s RFC, the ALJ never had the occasion to determine
whether the number of final assembler positions (10,000, as determined by the vocational expert;
and 13,000 as determined by the ALJ) alone constituted a significant number of jobs in the
national economy and this Court is unwilling to determine that any reasonable fact-finder would
be compelled to conclude that the vocational expert’s 10,000 positions was a significant number
of jobs for purposes of a step-five determination.
Accordingly, this Court concludes that the ALJ’s analysis at step five is incomplete and,
for that reason, the ALJ’s finding at step five is in error. On remand, the ALJ should determine,
based on the specific facts of Plaintiff’s case, whether a significant number of jobs exist in the
national economy that Plaintiff can perform.
CONCLUSION
Based on the foregoing, the Court concludes that the ALJ’s finding that Plaintiff could
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perform three occupations existing in significant numbers in the national economy is
unsupported by substantial evidence. The Court REVERSES and REMANDS the decision of
the Commissioner for further administrative proceedings. The Clerk of the Court is directed to
enter judgment in favor of Plaintiff and against the Commissioner.
IT IS SO ORDERED.
DATED this 16th day of June, 2016.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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