Larson v. Saul

ANNETTE EVELYN LARSON, Plaintiff, v. ANDREW SAUL,Commissioner of the Social Security Administration, Defendant.

Case No. 19-cv-067-STE

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

November 25, 2019

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's applications for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ___). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court REVERSES AND REMANDS the Commissioner's decision.

I. PROCEDURAL BACKGROUND

Initially and on reconsideration, the Social Security Administration denied Plaintiff's applications for benefits.¹ Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 12-25). The Appeals Council denied Plaintiff's request for review. (TR. 1-8). Thus, the decision of the ALJ became the final decision of the Commissioner.

II. THE ADMINISTRATIVE DECISION

The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 24, 2010, her alleged onset date. (TR. 14). At step two, the ALJ determined that Plaintiff had the following severe impairments: lumbar degenerative disc disease, with sciatica; and obesity. (TR. 15). At step three, the ALJ found that Plaintiff's impairments or combination thereof did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR. 17).

At step four, the ALJ concluded that Plaintiff retained the residual functional capacity (RFC) to perform sedentary work with the following additional limitations:

requires a sit/stand option, in that [Plaintiff] can sit for about 20 minutes at any one time before standing briefly at the workstation for less than 3minutes; occasionally climb ramps and stairs, balance, and stoop; never kneel, crouch, crawl, and climb ropes, ladders, or scaffolds; avoid exposure to industrial type vibration; and must avoid exposure to workplace hazards, such as dangerous moving machinery and unprotected heights.

(TR. 18). The ALJ further found that Plaintiff could not perform her past relevant work. (TR. 22).

The ALJ then proceeded to make findings at step five. The ALJ consulted with a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. Given the limitations presented by the ALJ, the VE identified three sedentary, unskilled jobs from the Dictionary of Occupational Titles (DOT): addresser, tube operator, and document preparer. (TR. 23). Relying upon the testimony of the VE, the ALJ concluded that Plaintiff was not disabled based on her ability to perform the identified jobs. (TR. 23-25).

III. STANDARD OF REVIEW

This Court reviews the Commissioner's final "decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Under the "substantial evidence" standard, a court looks to an existing administrative record and asks whether it contains "sufficient evidence" to support the agency's factual determinations. Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal citation, alteration, and quotation marks omitted). "Substantial evidence . . . is more than a mere scintilla . . . and means only—such relevant evidence as areasonable mind might accept as adequate to support a conclusion." Id. (internal citations and quotation marks omitted).

While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

IV. ISSUES PRESENTED

On appeal, Plaintiff alleges the ALJ (1) failed to fully develop the record and, thus, the RFC is not supported by substantial evidence, and (2) failed to sustain his step-five burden. (ECF No. 15:6-11).

V. ANALYSIS

A. The RFC is unsupported by substantial evidence with respect to Plaintiff's mental health impairments.

At issue in both of Plaintiff's arguments are alleged errors in the ALJ's consideration of Plaintiff's mental health impairments and corresponding limitations. The undersigned agrees that the ALJ erred. As an initial matter, with respect to Plaintiff's mental impairments and limitations, the ALJ "afforded great weight to the opinions of the State agency mental health physicians who indicated [Plaintiff's] mental impairments are not severe." (TR. 22). The only State agency mental health physician opinions found in the record are those for Plaintiff's DIB application, in which the physicians found that Plaintiff's mental impairments were not severe based solely on "insufficient evidence to rate at the time [Plaintiff] was last insured for disability." See TR. 71-72, 79-80.

But Plaintiff applied for both DIB and SSI. (TR. 12, 25; ECF No. 18:2). And the date Plaintiff was last insured for disability is irrelevant to her SSI claim. "While a Title II claimant seeking disability insurance benefits must prove disability prior to her [date last insured], there is no such requirement for Title XVI claimant seeking SSI." Gabaldon v. Barnhart, 399 F. Supp. 2d 1240, 1250 (D.N.M. 2005) (citing SSR 83-20, 1983 WL 31249, at *1 (Jan. 1, 1983)); cf. Tucker v. Barnhart, 201 F. App'x 617, 621 (10th Cir. 2006) (recognizing that the period under consideration for plaintiff's DIB claim was the date of alleged onset to the date last insured, while the period for her SSI claim was her protective filing date to the date of the ALJ's decision). As such, the opinions of the State agency mental health physicians, and the underlying reasoning therefore, are not substantial evidence for the ALJ's determination regarding Plaintiff's SSI mental health claims. Accepting the ALJ's statement that his decision governs both Plaintiff's DIB claim and her SSI claim, the Court finds reversible error with respect to Plaintiff's SSI claim.

Next, the ALJ addressed Plaintiff's claims of mental health impairments and stated that he "limited her to understanding, remembering, and carrying out simple instructions and having only superficial contact with co-workers and supervisors, and no public contact." (TR. 22). The ALJ did not, however, actually include these limitations in the RFC, nor did he explain the omission. Compare TR. 18, with TR. 22. An ALJ must explain the resolution of any material evidentiary inconsistencies or ambiguities in assessing an RFC. SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Here, because the RFC does not include all the limitations the ALJ found to exist, but the ALJ did not explain why, theALJ's decision to omit the limitations from the RFC was flawed. Accordingly, remand is warranted for both Plaintiff's DIB and SSI claims.

B. The ALJ failed to sustain her burden at step five.

Finally, in addition to the ALJ's errors at step four, the ALJ also failed to sustain his step-five burden to show that Plaintiff could perform the identified jobs despite her mental health impairments and limitations. At steps one through four of the sequential evaluation process, the burden of proof is on the claimant to "establish[] a prima facie case of disability." Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). But at step five, the burden shifts to the ALJ to "show that there are jobs in the regional or national economies that the claimant can perform with the limitations the ALJ has found [her] to have." Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff argues that the ALJ did not meet his burden at step five because the VE's testimony, on which the ALJ relied, is inconsistent with information in the Dictionary of Occupational Titles (DOT). The undersigned agrees. It is well established that an ALJ has a duty to determine whether evidence provided by a VE is consistent with information in the DOT. Haddock, 196 F.3d at 1089, 1091. If the ALJ fails this duty and there is an unresolved conflict between the VE's information and the DOT, that information cannot constitute substantial evidence to support a determination of non-disability. Id. at 1091; accord Hackett, 395 F.3d at 1175; SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000).

Here, Plaintiff contends that the DOT information for the jobs relied upon by the VE, and the ALJ, conflict with the limitations included in the hypothetical the ALJ providedthe VE. (ECF No. 15:9-10). Specifically, Plaintiff points to the limitations that the hypothetical individual can only:

• understand, remember, and carry out simple instructions;

• make only simple work decisions;

• deal with only occasional changes, work processes, and environment;

• have no contact with the general public; and

• only incidental or superficial work-related type contact with coworkers and supervisors.

(ECF No. 15:9; TR. 63). Though these limitations do not appear in Plaintiff's RFC, see TR. 18, the ALJ included them in the only hypotheticals to which the VE responded by listing the jobs of addresser, tube operator, and document preparer—the jobs ultimately relied upon by the ALJ. (TR. 62-63). Thus, regardless of...