Atwood v. Colvin

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 28 Report and Recommendations. The decision of the ALJ is reversed, and the case is remanded. Signed by Judge Robert J. Shelby on 3/7/2017. (jds)

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

ANN E. ATWOOD
ORDER
Plaintiff,
v.

Case No. 2:15-cv-00431-RJS-BCW

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Judge Robert J. Shelby
Magistrate Judge Brooke Wells

Defendant.
This case arises out of the Social Security Commissioner’s denial of Plaintiff Ann
Atwood’s application for disability benefits. Atwood filed suit in this court, and Magistrate
Judge Wells, to whom this case was referred, issued a Report and Recommendation
recommending the court reverse the Administrative Law Judge’s (ALJ) decision and remand for
further proceedings, finding the ALJ improperly calculated Atwood’s residual functional capacity
(RFC) and improperly concluded Atwood was not disabled. The Commissioner timely objected
to the Report and Recommendation. For the reasons below, after de novo review, the court
adopts Judge Wells’s Report and Recommendation, and reverses and remands.
In the proceedings below, the ALJ determined in relevant part that: (a) Atwood suffered
severe physical and mental impairments; (b) she retained the RFC to perform “the full range of
simple, light work as defined in 20 CFR 404.1567(b)”; and (c) given that RFC, the Social
Security “grids” dictate that there are jobs in the national economy that Atwood can perform, so
she is not disabled. Atwood contends this was error in two respects: (1) the ALJ found Atwood
had a severe mental impairment but did not include that in her RFC; and (2) because she has a
severe mental impairment, the grids, which assess only physical impairments, should not have
1

been used to determine disability. The Commissioner disagrees, arguing that Atwood’s RFC can
be read to include her mental limitations and that Atwood’s mental limitations were not
sufficiently severe to bar use of the grids.
As to the RFC, the parties agree that a claimant’s RFC must include all severe
impairments (in addition to nonsevere impairments), but they disagree about whether this RFC
covers Atwood’s mental impairments in addition to her physical impairments. As discussed, the
ALJ concluded that Atwood “had the full residual functional capacity to perform the full range of
simple, light work as defined in 20 CFR 404.1567(b).” It is undisputed that “light work” refers
to exertional restrictions, which is to say, restrictions related to physical impairments. Thus, the
dispute is over the ALJ’s use of the word “simple.” The Commissioner contends this
encapsulates Atwood’s mental restrictions, while Atwood argues it refers to physical restrictions.
The court agrees with Atwood that the ALJ’s use of the word “simple” either refers to
physical impairments, or, if meant to cover Atwood’s mental impairments, is insufficient to meet
the ALJ’s burden of “consider[ing] and discuss[ing]” each impairment.1 The most natural
reading of “simple, light work” is that it relates to physical impairments only. “Light work” is,
as discussed, a physical restriction, and “simple” seems merely to modify it. This interpretation
is borne out by use of the modifier “as defined in 20 CFR 404.1567(b).”2 Section 404.1567(b) is
titled “Physical Exertion Requirements,” and appropriately so—it concerns only a claimant’s
physical restrictions, not her mental restrictions. That the ALJ cabined his RFC assessment with
this regulation suggests he was addressing only physical, not mental restrictions.

1

Wells v. Colvin, 727 F.3d 1061, 1064 (10th Cir. 2013).

2

AR 21.
2

But even assuming the ALJ meant “simple” to cover mental, rather than physical
impairments, the word “simple” is insufficient to describe Atwood’s mental limitations. When
an ALJ distills a record of medical evidence into an RFC, he is instructed to “use . . .
[established] definitions.”3 “Light work” is one of those definitions.4 “Simple . . . work” is not.
Rather, mental limitations are to be described using terms of art like “unskilled work,” “semiskilled work,” or “skilled work.”5
The Commission now argues that use of the word “simple” is a “perhaps unartful[]”
attempt by the ALJ to conclude that Atwood could perform “unskilled work” because one of the
regulations describes some of the demands of unskilled work as “remember[ing] simple
instructions” and another refers to the ability to make “simple work-related decisions.”6 But the
mere fact that the word “simple” is used in some of the regulations to describe unskilled work
does not does not mean the ALJ’s use of the word equates to a limitation to unskilled work. If
the ALJ concluded that Atwood could perform unskilled work, he was required, per the
regulations, to use that term. He did not, and the court declines to read it into his opinion.
The second point of dispute concerns the ALJ’s use of the “grids.” When an ALJ
concludes that a claimant has limitations that preclude performing the claimant’s past work, he is
next tasked with determining whether, given the claimant’s RFC, there are sufficient jobs in the
national economy she could perform such that she is not “disabled.” Often, this determination

See 20 C.F.R. §§ 404.1567, 404.1568 (“When we make disability determinations under
this subpart, we use the following definitions . . . .”).
3

Id. § 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. . . .”).
4

5

Id. § 404.1568.

See Dkt. 29 at 2 (citing SSR 85-15, 1985 WL 56857, at *4; Social Security
Administration Program Operations Manual System (POMS) DI 25020.010(A)(3)) (emphasis
added).
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3

requires testimony of a vocational expert. But in certain, straightforward cases, the process can
be shortcutted by relying on the generalized Medical Vocational Guidelines, or the “grids.” The
grids are charts that direct a finding of disabled or not disabled based solely on a claimant’s age,
education, prior work experience, and degree of exertional impairment.
Importantly, however, the grids generally apply only to physical impairments. Because
mental impairments are not as easily generalized or quantified as physical impairments, the grids
do not “appl[y] to direct a conclusion of ‘Disabled’ or ‘Not disabled’ where an individual has a
nonexertional limitation or restriction.”7 Only if a claimant has solely physical, exertional
restrictions, or if her mental restrictions are sufficiently minor such that they do not significantly
impact her ability to perform at a given exertional limit, can the grids be used to determine
disability.8
The ALJ did not find that Atwood had solely physical, exertional restrictions. To the
contrary, he found she had “severe . . . mental difficulties.” And he made no finding that
Atwood’s severe mental impairments were sufficiently minor that they did not significantly
impact the level of work Atwood could otherwise perform. Yet, he used the grids to determine
Atwood was not disabled. This was error.
The Commission argues that this error was harmless because the ALJ limited Atwood to
unskilled work, and the jobs included in the grids assume a limitation of unskilled work, so use
of the grids implicitly accommodated Atwood’s restriction to unskilled work. This argument is
founded on the mistaken premise that the ALJ concluded Atwood could perform unskilled work.
The ALJ concluded only that Atwood could perform “simple, light work as defined in 20 CFR

7

Social Security Ruling 83-14.

8

Social Security Ruling 85-15.
4

404.1567(b),” which, as discussed above, says nothing about her mental limitations. It may be
that Atwood’s severe mental limitations render her unable to perform even unskilled work, in
which case she would be disabled regardless of what the grids say about her exertional
limitations.9 Or, it may be that she is able to perform unskilled work, but with environmental
restrictions.10 In that case, the question would be whether those restrictions are severe enough to
preclude reliance on the grids. Alternatively, the ALJ may ultimately conclude that Atwood can
perform unskilled work, in which case reliance on the grids may be proper. But without any
indication of how Atwood’s severe mental limitations affect her RFC, reliance on the grids was
error.
In short, the ALJ cannot both determine that Atwood has a severe mental impairment and
simultaneously fail to include that impairment in her RFC. Similarly, he cannot rely solely on
the grids to find Atwood not disabled where Atwood has a severe mental impairment that may
affect the type of work she can perform. Judge Wells’s Report and Recommendations is adopted
in full. The decision of the ALJ is reversed, and the case is remanded.
SO ORDERED this 7th day of March, 2017.
BY THE COURT:
___________________________
ROBERT J. SHELBY
United States District Judge

See id. (noting that “[a] substantial loss of ability to meet any of the[] basic work-related
activities [of unskilled work] would . . . justify a finding of disability”).
9

Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (“There may be cases in which an
ALJ's limitation to ‘unskilled’ work does not adequately address a claimant's mental
limitations.”).
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