Crabill v. Astrue
Filing
19
ORDER. ORDERED that this case is REVERSED AND REMANDED to the Commissioner for further fact finding pursuant to sentence four in 42 U.S.C. § 405(g) by Judge Wiley Y. Daniel on 03/21/13. (jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-02280-WYD
RANDLE S. CRABILL,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
ORDER
THIS MATTER is before the Court on review of the Commissioner’s decision that
denied Plaintiff’s claim for Disability Insurance Benefits [“DIB”] and Supplemental
Security Income Benefits [“SSI”]. For the reasons stated below, this case is reversed
and remanded for further fact finding.
I.
INTRODUCTION AND BACKGROUND
Plaintiff was 42 years old on his alleged disability onset date. (Transcript [“Tr.”]
113.) He received a GED (id. 29), and worked as a fiberglass mold maker and a janitor
prior to September 7, 2006, his alleged onset date. (Id. 118-119.) Plaintiff alleged
disability due to “Ac separation arthritis bursitis of left shoulder.” (Id. 118.)
Plaintiff applied for Social Security benefits under Titles II and XVI of the Social
Security Act [“the Act”], alleging disability beginning on September 7, 2006. (Tr. 272279.) His applications were denied (id. 43-44), and he requested a hearing before an
ALJ. (Id. 50.) A hearing was held on December 3, 2009, at which Plaintiff and a
vocational expert testified. (Id. 27-40.) On January 20, 2010, the ALJ issued a decision
finding that Plaintiff was not disabled under the Act. (Id. 10-21.)
More specifically, the ALJ found at step one that Plaintiff had not engaged in
substantial gainful activity since September 7, 2006, the alleged onset date. (Tr. 12.)
At step two, the ALJ determined that Plaintiff has a severe left shoulder impairment.
(Id.) He found at step three, after considering section 1.00 of the Listings concerning
musculoskeletal impairments, that Plaintiff does not have an impairment or condition of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Id.)
The ALJ then determined that Plaintiff retained the residual functional capacity
[“RFC”] to perform light work “with no lifting or carrying over 10 pounds; no over chest
level work with dominate [sic] upper extremity [i.e., right arm]1, and the use of nondominate [sic] upper extremity [i.e., left arm] to assist dominate [sic] upper extremity
[i.e., right arm]”. (Tr. 12-13). The ALJ found that Plaintiff had no severe mental health
impairments and no “limitations due to mental health problems. . . .” (Id. 19.) He also
found that Plaintiff’s “medically determinable impairment could reasonably be expected
to cause the alleged symptoms”; however, “Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of the symptoms are not credible to the extent
they are not supported by the evidence of record. (Id. 17.) The ALJ does not explain as
to this finding what symptoms he is referring to.
1
The Commissioner believes that the ALJ meant to state “no over chest level work with nondominant upper extremity.” (Def.’s Resp. Br. at 8.)
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At step four, the ALJ found that Plaintiff is unable to perform any past relevant
work. (Tr. 19.) After considering Plaintiff’s age, education, work experience, RFC, and
the testimony of the vocational expert, the ALJ found at step five that Plaintiff is capable
of making a successful adjustment to other work that exists in significant numbers in the
national economy. (Id. 20.) Accordingly, he found that Plaintiff was not disabled under
the Act. (Id.)
The Appeals Council declined Plaintiff’s request for review on July 14, 2011. (Tr.
1-3.) Plaintiff timely requested judicial review, and this appeal followed.
Plaintiff argues that the ALJ did not correctly assess his mental impairments or
weigh Dr. Vega’s mental health opinion. He also argues that the ALJ’s decision at step
five is not supported by substantial evidence as he should not have found Plaintiff
capable of performing the representative jobs identified by the vocational expert. In
response, the Commissioner argues that the ALJ’s decision is supported by substantial
evidence and free of reversible legal error.
II.
ANALYSIS
A.
Standard of Review
A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
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evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
“Evidence is not substantial if it is overwhelmed by other evidence in the record
or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). Further, “if the ALJ failed to apply the correct legal test, there is a ground for
reversal apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993).
B.
Whether the ALJ’s Decision is Supported by Substantial Evidence
1.
The Assessment of Plaintiff’s Mental Health Impairments
a.
The Special Technique for Assessment of Mental Health
Impairments
Plaintiff first argues that the ALJ erred at step two in the evaluation of Plaintiff’s
mental health impairments as he failed to follow the special technique required under
the regulations. Under that technique, the ALJ “must first evaluate [the claimant's]
pertinent symptoms, signs, and laboratory findings to determine whether [the claimant
has] a medically determinable mental impairment[ ]” and “specify the symptoms, signs,
and laboratory findings that substantiate the presence of the impairment[.]” 20 C.F.R.
§ 404.1520a(b)(1).
If the ALJ finds a medically determinable impairment, he is then required to rate
the degree of the claimant's functional limitations caused by those impairments in the
areas of activities of daily living; social functioning, concentration, persistence, or pace;
and episodes of decompensation. Stokes v. Astrue, No. 07-5046, 2008 WL 1766788, at
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*2 (10th Cir. 2008) (unpublished) (citing 20 C.F.R. §§ 404.1520a(c), (d)(1-2)). “The ALJ
then applies those ratings in determining whether the claimant's mental impairments are
severe at step two and, if so, whether these severe impairments ‘meet[] or [are]
equivalent in severity to a listed mental disorder’ at step three.” Id. (quotation omitted).
The ALJ's written decision must incorporate his pertinent findings and conclusions. 20
C.F.R. § 404.1520a(e)(3).
Here, the ALJ did not evaluate Plaintiff’s mental impairments at step two.
Indeed, the only step two analysis was a conclusion without any explanation that
Plaintiff has only a severe left shoulder impairment. (Tr. 12.) However, the ALJ did
discuss Plaintiff’s mental health impairments later in the decision when evaluating
Plaintiff’s RFC and credibility. (Id. 13-19.) While most of that discussion relates to
Plaintiff’s left shoulder, the ALJ also discussed in a cursory way Plaintiff’s mental
impairments and concluded that “[n]o severe mental health impairments are found in
this case.” (Id. 19). In so finding, the ALJ gave no weight to the mental health
assessment by Dr. Vega (id. 17)—a psychologist who examined Plaintiff, made
diagnoses and medical findings as to his mental impairments, and assessed moderate
to extreme limitations on work-related activities as a result of same. (Id. 419-25.)
Despite the ALJ’s discussion of the evidence and the fact that the ALJ did
ultimately find that the mental health impairments were not severe, I still find the ALJ’s
decision was deficient as he did not properly analyze the mental health evidence in
accordance with the special technique. He did not properly evaluate Plaintiff’s
“pertinent symptoms, signs, and laboratory findings” to determine whether Plaintiff had a
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medically determinable mental impairment” or specify what, if any, “symptoms, signs,
and laboratory findings” substantiate the presence of such impairment. 20 C.F.R.
§ 404.1520a(b)(1). This first step of the “special technique” is not concerned with
severity but simply whether there is a medically documented impairment.
In this case, Plaintiff was diagnosed with multiple mental impairments by
Dr. Vega, Dr. McIntosh, the treatment providers at High Plains Community Health
Center, and Southeast Mental Health. These diagnoses included depression, panic
disorder and pain disorder, and anxiety. The record also contained symptoms and
signs that substantiated the presence of such impairments. For example, Dr. Vega
found in his mental status examination that Plaintiff’s “[a]ffect was blunted, with a
depressed and anxious mood”. (Tr. 421.) Treatment records from Southeast Mental
Health Services noted as a justification for further treatment that Plaintiff has “[s]erious
symptoms, frequent anxiety attacks, moderate to severe depression.” (Id. 399.) The
ALJ’s failure to properly consider this evidence and making the findings required by the
special technique is error that requires a remand. Hill v. Sullivan, 942 F.2d 972, 975
(10th Cir. 1991) (since the record contained evidence of a mental impairment that
impacted the plaintiff’s ability to work , the Commissioner “was required to follow the
procedure for evaluating the potential mental impairment set forth in the regulations and
to document the procedure accordingly”); see also Salazar v. Barnhart, 468 F.3d 615,
622 (10th Cir. 2006) (“[t]he ALJ’s failure to consider Ms. Salazar’s borderline personality
disorder, singly and in combination with her other impairments, requires that we
reverse”).
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Further, the ALJ was required to analyze the degree of Plaintiff’s functional
limitations caused by those impairments before addressing whether Plaintiff’s mental
impairments were severe. Grotendorst v. Astrue, No. 09-2132, 2010 WL 1049791, at *4
(March 22, 2010) (unpublished). The ALJ did not do this. While the ALJ did note that
the state agency physician assessed only mild restrictions (Tr. 19), he did not state what
weight he gave to that assessment or whether he agreed with the assessment. I
“cannot simply presume the ALJ applied the correct legal standards in considering [the
state agency physician’s] opinion. Wade v. Astrue, No. 07-6154, 2008 WL 193236
(10th Cir. Jan. 23, 2008) (unpublished).
Also, the ALJ appeared to base his finding that the impairments were not severe
on the fact that Plaintiff was not treated during the relevant period. (Tr. 17, 19.) This
was also error. As noted in Grotendorst:
. . . . the regulations set out exactly how an ALJ is to determine severity, and
consideration of the amount of treatment received by a claimant does not
play a role in that determination. This is because the lack of treatment for an
impairment does not necessarily mean that the impairment does not exist or
impose functional limitations. Further, attempting to require treatment as a
precondition for disability would clearly undermine the use of consultative
examinations. Thus, the ALJ failed to follow the regulations in reaching her
limitations were not severe at step two of the
determination that Ms. Grotendorst's mental sequential evaluation.
Id.
Based on the foregoing, I find legal errors in connection with the ALJ’s
assessment of Plaintiff’s mental impairments. These errors require a remand of the
case for a proper assessment. This is not a situation where Plaintiff is simply asking the
Court to reweigh the medical evidence, as argued by the Commissioner.
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b.
The ALJ’s Weighing of Dr. Vega’s Opinions and Other
Medical Evidence
Plaintiff also argues that the ALJ failed to properly weigh Dr. Vega’s opinions.
Dr. Vega was a consulting psychologist who examined Plaintiff at her attorney’s
request. He found that Plaintiff was “significantly depressed, anxious, suffering from
chronic pain.” (Tr. 423.) He further found that Plaintiff’s “condition at the present time
would seem to be one where he would have difficulty in meeting demands of
competitive employment”, and noted that Plaintiff was “encouraged to seek out mental
health treatment for his depression and anxiety.” (Id.)
In connection with his report, Dr. Vega provided a functional assessment of
Plaintiff’s mental impairments, finding that Plaintiff had moderate to extreme limitations
in many areas of mental functioning. Among other things, he indicated that Plaintiff had
“marked” (i.e., severely limited) or “extreme” (i.e., “no useful ability”) limitations since
2006 in understanding and memory, sustained concentration and persistence, and
adaptation. (Tr. 424-25.) If Dr. Vega’s functional limitations had been accepted, the
vocational expert opined that all competitive employment was eliminated. (Id. 38-39.)
As discussed previously, the ALJ gave “no weight” to this assessment. (Id. 17.)
Turning to my analysis, an ALJ is required to evaluate a medical opinion from a
non-treating physician using the same factors applicable to treating physician opinions.
Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003). The ALJ need not “apply
expressly” each factor in evaluating opinion evidence, Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007), but the record must reflect that the ALJ actually considered the
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factors. Andersen v. Astrue, 319 F. App’x 712, 719 (10th Cir. 2009) (unpublished). As
long as the ALJ provides “good reasons in his decision for the weight he gave” to the
medical opinion, that is all that is required. Oldham, 509 F.3d at 1258.
Here, the ALJ obviously did not expressly discuss the relevant factors. Thus, the
issue becomes whether he provided good reasons in his decision for the weight he
gave to Dr. Vega’s opinions. Accordingly, I turn to the reasons expressed by the ALJ in
giving no weight to Dr. Vega’s report.
The ALJ first found that Dr. Vega’s opinions should be rejected because “[t]here
are no office or treatment notes supporting this assessment and the examination does
not support the limits given.” (Tr. 17.) I find that this decision is not supported by
substantial evidence. Dr. Vega did not treat Plaintiff and, as such, would not have
treatment notes. The issue is whether his opinions were supported by objective medical
evidence. See 20 C.F.R. § 404.1529(a). A psychological opinion may rest either on
observed signs and symptoms or on psychological tests.” Robinson v. Barnhart, 366
F.3d 1078, 1083 (10th Cir. 2004). Here, Dr. Vega stated objective findings that
supported his opinion. As discussed previously, he found that Plaintiff’s “[a]ffect was
blunted, with a depressed and anxious mood” and also noted that Plaintiff was tearful in
the course of the evaluation. (Tr. 421.) Dr. Vega also found that Plaintiff showed “poor
attention and concentration”, “had difficulty performing simple arithmetical calculations”,
had “some difficulty in remote memory”, and that Plaintiff’s “ability to
abstract” was “more concrete”. (Id.) He stated that the results of his evaluation
supported his Diagnostic Impression.” (Id. 422.)
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Based on the foregoing, Dr. Vega’s evaluation was obviously supported by
observed signs and symptoms, and the ALJ’s finding that his examination does not
support the limits given is an improper lay judgment or speculation on the part of the
ALJ. Winfrey v. Chater, 92 F.3d 1017, 1021-22 (10th Cir. 1996) (an ALJ is not entitled
to reject a doctor’s opinions without adequate justification or to substitute his own
judgment for that of mental health professionals). Further, Dr. Vega made observations
about Plaintiff’s mental limitations which constitute specific medical findings. Robinson,
366 F.3d at 1083. The ALJ errs in rejecting those opinions in the absence of conflicting
evidence. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Indeed, in
Thomas v. Barnhart, No. 04-7191, 2005 WL 2114163, at *4 (10th Cir. Sept. 2, 2005)
(unpublished), the Tenth Circuit found that the ALJ's decision to reject a doctor’s opinion
because he based it, in part, on the plaintiff’s responses to his psychological tests
involving memory and concentration impermissibly put the ALJ in the position of judging
a medical professional on the assessment of medical data.” The same finding applies
here.2
The Commissioner argues, however, that Dr. Vega “based his findings heavily on
Plaintiff’s subjective complaints.” (Def.’s Resp. Br. at 12.) Indeed, he notes that
“Dr. Vega devoted over two-and-one-half pages of his three-and-one-half-page
narrative to Plaintiff’s subjective complaints.” (Id. at 7.) However, the practice of
2
The fact that Dr. Vega did not administer objective psychiatric tests such as the Minnesota
Multiphasic Personality Inventory or Beck Depression Inventory does not support the Commissioner’s
argument in support of the ALJ’s decision to reject Dr. Vega’s opinions, as his report is otherwise
supported by objective psychiatric evidence as referenced above. Further, this is an improper post-hoc
argument made by the Commissioner.
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psychology is necessarily dependent, at least in part, on a patient’s subjective
statements.” Thomas, 2005 WL 2114163, at *4. This was not a basis to reject
Dr. Vega’s opinions, particularly since his report was also supported by observed signs
and symptoms, as discussed previously. See McGoffin v. Barnhart, 288 F.3d 1248,
1252 (10th Cir. 2002) ( an ALJ may reject a physician’s opinion “only on the basis of
contradictory medical evidence and not due to his or her own credibility judgments. . . .)
(emphasis in original).
The ALJ also found that Dr. Vega’s evaluation is not consistent with or supported
by the evidence of record. (Tr. 17.) The Commissioner argues in support of the ALJ’s
finding that none of Plaintiff’s treating providers opined that he had any functional
limitations from his mental impairments. He asserts that Ms. Bradley and Ms. Muller
consistently opined that Plaintiff’s depression and anxiety were well-controlled on
medication, and that Plaintiff was psychologically normal on examination over a twoyear period (see, e.g., Tr. 318-42, 346-47, 383-393 – noting that mental and cognitive
status was normal and an euthymic mood)). While Ms. Bradley and Ms. Muller were not
“acceptable medical sources,” they treated Plaintiff over a lengthy period. As such, the
Commissioner argues that the ALJ could reasonably rely on evidence they provided
about Plaintiff’s mental functional limitations and reject Dr. Vega’s more extreme, lesssupported limitations.
There are flaws with the Commissioner’s arguments. First, the ALJ did not
actually state that he gave weight to Ms. Mullen’s and/or Ms. Bradley’s opinions. See
SSR 96-2p, 1996 WL 374188, at *5 (1996) (the ALJ’s decision must be sufficiently
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specific to make clear to any subsequent reviewer the weight that was given to a
medical opinion). Thus, this appears to be an improper post hoc argument by the
Commissioner. See Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
Second, there is no indication in the record that either Ms. Bradley or Ms. Muller
were asked to provide a functional assessment of Plaintiff’s mental impairments. Thus,
it is mere speculation to assume that they believed Plaintiff had no such limitations.
See Baker v. Barnhart, 84 F. App’x 10, 17 (10th Cir. 2003) (unpublished) (where no
doctor had defined claimant’s functional limitations, there was “a lack of evidence about
what she could do”, and “the ALJ was not in a position to make any RFC
determination.)3 Since their medical evidence was inadequate to determine their
opinions on whether Plaintiff had functional limitations, the ALJ should have contacted
these providers on the issue if he intended to rely on their findings. McGoffin, 288 F.3d
at 1252.
Third, the ALJ ignored the fact that Ms. Muller, a therapist at Southeast Mental
Health, found that Plaintiff had “[s]erious symptoms, frequent anxiety attacks, moderate
to severe depression” and assessed a GAF score of 47 consistent with this. (Id. 399.)4
3
For example, Ms. Bradley, a nurse practitioner, noted in assessing Plaintiff’s neurological
condition that his mental and/or cognitive status was normal. This does not, however, provide any
guidance as to whether she believed that Plaintiff’s depression or anxiety functionally limited him in any
way.
4
The GAF is a subjective determination based on a scale of 100 to 1 of the clinician’s judgment
of the individual’s overall level of functioning. Langley v. Barnhart, 373 F.3d 1116, 1122 n. 3 (10th Cir.
2004). A GAF score between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, inability to keep a job)”. Lee v. Barnhart, No. 03-7025, 2004 WL 2810224, at
*3 (10th Cir. Dec. 8, 2004) (unpublished) (quoting DSM-IV 34). The ALJ can not simply ignore this
evidence, as the ALJ is “tasked with determining the level of [the claimant’s] functioning within the six
domains.” Simien v. Astrue, No. 06-5153, 2007 WL 1847205, at *2 (10th Cir. June 28, 2007)
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Given these findings, it is reasonable to assume that Ms. Muller may well have believed
that Plaintiff had functional limitations which impacted his ability to work. See Groberg
v. Astrue, No. 09-4203, 2011 WL 538870, at *5 (10th Cir. Feb. 17, 2011) (unpublished)
(a GAF score of 50 “demonstrates that Groberg's mental impairments were serious and
likely to have some effect on his ability to work). The ALJ erred in ignoring this
evidence, particularly since it provides support for Dr. Vega’s assessment that Plaintiff
had serious symptoms which had an effect on Plaintiff’s to work. See Carpenter, 537
F.3d at 1270 (holding that a doctor’s opinion from an evaluation had to be considered
“in light of the other record evidence as well as the factors set out in the regulations”).
Indeed, an ALJ is required to consider all the evidence, and must “discuss ‘the
significantly probative evidence he rejects. . . .’” Id. at 1266 (quotation omitted).
Finally, the ALJ gave no weight to Dr. Vega’s assessment because “it was based
on a one time appointment with the claimant just two weeks prior to the hearing” and
appears “to show the claimant’s attorney trying to manage the case and evidence.” (Tr.
17) (citing 5 of Exhibit 18F.) The latter finding is mere conjecture and is clearly not an
appropriate basis to discount a medical opinion with medical findings. Further, this
finding fails to take into account the fact that when a claimant is represented by counsel,
counsel has duty “to structure and present [the] claimant’s case in a way that the
claimant’s claims are adequately explored.’” Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008) (quotation omitted).
(unpublished).
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The Commissioner also argues as to Dr. Vega that his report is somehow
undercut by the fact that Plaintiff skipped several therapy sessions because he was
doing well or was too busy, Plaintiff engaged in drug-seeking behavior and misused his
prescription medication, and Plaintiff’s increased treatment coincided with his denial of
disability benefits and legal troubles. The Commissioner asserts that Dr. Vega’s report
never addressed any of this evidence. This evidence does not, however, allow the ALJ
to discount medical findings Dr. Vega made based on his examination of Plaintiff. To
the extent the ALJ questioned whether Dr. Vega’s opinion would have been impacted by
knowledge of this information, the ALJ should have contacted Dr. Vega to inquire about
the issue, not simply discounted his opinions. McGoffin, 288 F.3d at 1252.
Finally, the Commissioner argues that the ALJ properly weighed state agency
physician Dr. Frommelt’s opinion. It appears he is arguing that the ALJ found
Dr. Frommelt’s opinion outweighed the opinion of Dr. Vega. However, the ALJ did not
actually state what weight, if any, he assigned to Dr. Frommelt’s opinions. (Tr. 19.)
This is error, as the ALJ must explain the weight he is giving to a nonexamining source
if he intends to rely on it. Robinson, 366 F.3d at 1084.5 This should be clarified on
remand. In doing so, the ALJ should keep in mind that the opinion of an agency
physician or psychologist who has never seen the claimant is generally entitled to the
least weight of all. Id. Further, if the ALJ relies on the opinions of a nonexamining
doctor, those “opinions must themselves find adequate support in the medical
5
I thus reject the Commissioner’s argument that the ALJ’s decision was sufficiently specific to
make clear to any subsequent reviewers what weight have gave to the opinion and the reasons for that
weight.
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evidence”. Lee v. Barnhart, No. 03-7025, 2004 WL 2810224, at *3 (10th Cir. Dec. 8,
2004) (unpublished).
2.
The ALJ’s Findings at Step Five
Plaintiff also argues that the ALJ’s finding at step five is not supported by
substantial evidence. I first note that the ALJ may need to reevaluate his findings at this
step on remand anyway, as I have asked the ALJ to reassess Plaintiff’s mental
impairments.
Nonetheless, I also direct the ALJ on remand to clarify for the record whether the
limitation on Plaintiff’s non-dominant upper extremity (which is limited to assisting the
dominant upper extremity (Tr. 37), would impact Plaintiff’s ability to perform the
occupations the vocational expert testified. Those occupations require occasional
and/or frequent reaching, handling and fingering. It appears, then, that there may be a
conflict between the VE’s testimony and that of the DOT that was not sufficiently
explored by the ALJt. This must be resolved on remand. Haddock v. Apfel, 196 F.3d
1084, 1091 (10th Cir. 1999) (when the findings of the VE are in conflict with the DOT,
“the ALJ must investigate and elicit a reasonable explanation for any conflict between
the Dictionary and expert testimony before the ALJ may rely on the expert's testimony
as substantial evidence to support a determination of nondisability”); see also Smith v.
Barnhart, 172 F. App’x 795, 799 (10th Cir. 2006) (unpublished). When the ALJ fails to
elicit such an explanation, the case must be reversed and remanded to allow the ALJ to
address the apparent conflict. Haddock, 196 F.3d at 1092.
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III.
CONCLUSION
Based upon the foregoing, I find that the ALJ erred in assessing Plaintiff’s mental
impairments and in weighing the evidence related to same. I further find that the ALJ
must resolve the apparent conflict between the vocational expert’s testimony and the
DOT in connection with the step five finding. This case must be remanded to the
Agency for further fact finding on these and the other issues discussed in this Order. It
is therefore
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding pursuant to sentence four in 42 U.S.C. § 405(g).
Dated: March 21, 2013.
BY THE COURT:
s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE
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