Garcia v. Astrue
Filing
19
ORDER the Commissioners decision is REVERSED and this case is REMANDED to the Commissioner for rehearing, by Judge William J. Martinez on 3/14/2013. (ervsl, )
<![CDATA[
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-00052-WJM
ANNA M. GARCIA,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
ORDER REVERSING ADMINISTRATIVE LAW JUDGE’S DECISION AND
REMANDING TO THE COMMISSIONER
This is a social security benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff Anna Garcia (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
and social security benefits. The denial was affirmed by an administrative law judge
(“ALJ”), who ruled Plaintiff was not disabled within the meaning of the Social Security
Act (“Act”). This appeal followed.
For the reasons set forth below, the ALJ’s denial of benefits is reversed and the
case is remanded to the Commissioner for rehearing.
I. BACKGROUND
Plaintiff filed a claim for Disability Insurance Benefits on March 2, 2010. (Admin.
Record ("R.") at 10). Plaintiff alleged a disability onset date of July 29, 2009. (Id.) The
hearing before ALJ Nagle resulted in an unfavorable decision for Plaintiff dated July 28,
2011. (R at 22).
Plaintiff was 43 years old on the alleged onset date. (R. at 20.) Plaintiff has a
high school education and has past work experience as a certified nursing assistant, a
mental aid, a secretary, and a waitress. (Id.) The ALJ found Plaintiff’s impairments to
be severe—including degenerative disc disease with back pain, obesity and adjustment
disorder. (R. at 13).
Plaintiff injured her back on the job while working with an autistic child in the
developmental disability program. (R at 251). Plaintiff was knocked backwards by a
client and struck a couch with her right lateral thigh and fell to the ground. (Id.) Plaintiff
developed immediate thigh pain and increasing lower back pain with tightness and
tingling into her leg. (Id.) At the hearing before ALJ Nagle, Plaintiff testified that doing
chores around her house takes a long time because she has to alternate between
sitting and standing. (R. at 39).
Plaintiff testified that her calves feels like they are on fire, pain shoots through her
legs, and she feels stabbing pains on the front of her legs. (R. at 46-47.) Plaintiff stated
that she takes prescriptive medication, sits down, and lies down about three hours per
day to help relieve her leg pain. (R. at 47-48, 53.) Plaintiff testified that she
experiences pain in her lower back constantly, and that she ranks a 9 on a 1-10 pain
scale. (R. at 49.) Plaintiff indicated that sitting for prolonged periods triggers her back
pain and in order to relieve the pain she does stretches and lies down. (Id.)
Plaintiff obtained medical treatment through the Colorado Workers’
Compensation system from Dwight Caughfield, D.O. (R. at 344-387). Dr. Caughfield
ultimately released Plaintiff with permanent restrictions including lifting a maximum of 15
pounds, but only five pounds repetitively; standing and walking four to six hours per day,
2
but only fifteen minutes at a time, and no more than thirty minutes per hour; sitting for
30 minutes between breaks; and assuming various postures occasionally. (R. at
344). The ALJ assigned “great weight” to Dr. Caufield’s opinion. (R. at 19.)
Plaintiff was given a Functional Capacity Evaluation as part of her Workers’
Compensation case. (R. at 319). This test showed, inter alia, that Plaintiff can stand
and walk for ten to fifteen minutes at a time, limited to thirty minutes per hour; and can
sit for thirty minutes before needing a break to “stand/stretch.” (R. at 323). The State
agency psychologist, Dr. Levy, stated that Plaintiff’s mental impairments limit her to
“three step tasks performed at a moderate pace,” “routine and predictable tasks,” and
“occasional public contacts.” (R. at 398). The ALJ “adopted” Dr. Levy’s opinion of
mental restrictions. (R. at 19.)
A vocational expert also testified at the hearing. (R. at 67-77.) The ALJ asked
three hypothetical questions; the second being particularly relevant for the purposes of
this Order as addressed below.
On the June 28, 2011, ALJ Nagle issued a written decision in accordance with
the Commissioner’s five-step sequential evaluation process.1 At step one, the ALJ
found that Plaintiff has not engaged in substantial gainful activity since the alleged onset
date. (R. at 12.) At step two, the ALJ found that Plaintiff has various severe physical
1
The five-step process requires the ALJ consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).
3
and mental impairments. (R. at 13.) At step three, the ALJ found that the impairments
do not meet a Listing Impairment. (R at 13.) Before going on to step four, the ALJ
found that Plaintiff has the residual functional capacity (“RFC”) for lifting fifteen pounds
occasionally, and five pounds frequently; standing and walking for a total of four to six
hours per day; engaging in postural activities occasionally; performing three step,
unskilled, routine, predictable tasks; and engaging in occasional public interaction. (R.
15.). At step four, the ALJ found Plaintiff is not able to perform past relevant work. (R.
at 20.) However, at step five, and notwithstanding inaudible sections of the transcript
(R. 67-74), the ALJ relied on opinion evidence from the vocational expert to arrive at the
conclusion that Plaintiff can still perform other work in the national economy. (R. 21.)
The ALJ found that Plaintiff has not been under a disability, and Plaintiff's claim for
Social Security benefits was, therefore, denied. (R. 22.)
II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision on Plaintiff’s entitlement to
disability benefits to determine whether substantial evidence in the record as a whole
supports the factual findings and whether the correct legal standards were applied.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion. Id. “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007).
Although a district court will “not reweigh the evidence or retry the case,” a district
court “meticulously examines the record as a whole, including anything that may
undercut or detract from the ALJ's findings in order to determine if the substantiality test
4
has been met.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42
U.S.C. § 405(g). Evidence is not substantial if it is overwhelmed by other evidence in
the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing
the Commissioner’s decision, the Court may neither reweigh the evidence, nor
substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621
(10th Cir. 2006).
III. ANALYSIS
The Appeals Council denied Plaintiff’s request for review on the ALJ’s decision.
(ECF No. 14 at 10.) Plaintiff then filed this action seeking review of that decision. On
appeal, Plaintiff raises five issues for consideration: (1) the ALJ's RFC finding does not
include all of the limitations contained in the medical opinions that were adopted by the
ALJ; (2) the ALJ's hypothetical questions to the vocational expert did not precisely
reflect Plaintiff's limitations; (3) the ALJ's finding that the vocational expert's testimony is
consistent with the Dictionary of Occupational Titles is not supported by the evidence;
(4) the ALJ did not properly assess the credibility of Plaintiff's testimony; (5) the ALJ did
not properly assess the effect of Plaintiff's severe obesity. (ECF No. 14 at 4.)
Because the Court finds that the ALJ’s RFC was not supported by substantial
evidence, by not including all of the limitations contained in the medical opinions that
were adopted by the ALJ, the Court finds that this error requires remand. Since these
same limitations tainted the second issue—i.e. the ALJ's hypothetical questions to the
vocational expert—the Court also finds that this issue warrants remand.
A.
RFC Not Supported by Substantial Evidence
Plaintiff attacks the ALJ’s RFC findings by contending that the ALJ gave
5
considerable weight to the opinions of Dr. Caughfield and Dr. Levy, but failed to include
all of their limitations in the RFC. (ECF No. 14 at 7.)
The RFC assessment is made by the ALJ “based on all the relevant evidence in
[the claimant's] case record.” 20 C.F.R. § 404.1545(a)(1). The RFC is an assessment
of the most a claimant can do despite his or her limitations. Id. Examples of the types of
evidence required to be considered in making an RFC assessment are the claimant's
medical history, medical signs and laboratory findings, and medical source statements.
Soc. Sec. Ruling (SSR) 96–8p (July 2, 1996). An ALJ must make specific RFC findings
based on all of the relevant evidence in the case record. See Winfrey v. Chater, 92
F.3d 1017, 1023 (10th Cir. 1996); SSR 96–8p, 1996 WL 374184, at *5 (July 2, 1996):
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion,
citing specific medical facts . . . and nonmedical evidence . .
. the adjudicator must discuss the individual's ability to
perform sustained work activities in an ordinary work setting
on a regular and continuing basis . . . and describe the
maximum amount of each work-related activity the individual
can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case
record were considered and resolved
SSR 96–8p.
The ALJ’s findings regarding the RFC must be supported by substantial
evidence. See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
In this case, the ALJ’s RFC is as follows:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a), except
the claimant is able to lift a maximum of fifteen pounds, with
a frequent lift limit of five pounds, is able to stand or walk for
6
approximately four to six hours, and occasionally crawl,
squat, climb or bend. The claimant is limited to three-step
unskilled, routine predictable tasks, in an environment with
only occasional public interactions.
(R. at 19.) Plaintiff challenges the ALJ’s determination on the basis RFC finding did not
accurately reflect the opinions of Dr. Caughfield and Dr. Levy. The ALJ stated that she
assigned “great weight” to Dr. Caughfield’s opinion regarding physical restrictions, and
stated that she “adopted” Dr. Levy’s opinion regarding mental restrictions. (R. at 19).
With respect to Dr. Caughfield’s evidence, Plaintiff asserts that the ALJ omitted
Dr. Caughfield’s limitation of standing/walking for no more than fifteen minutes at a time
(and no more than thirty minutes per hour); and also the limitation of sitting for thirty
minutes “between breaks.” (ECF No. 14 at 14) (emphasis added.) Because of these
omissions, Plaintiff contends that the ALJ erred in its determination.
To support this position, Plaintiff relies on Soc. Sec. Rul. (SSR) 83–12, 1983 WL
31253, at *1-2 (November, 28 1983):
In some disability claims, the medical facts lead to an
assessment of RFC which is 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 a time, but must then get up
and stand or walk for a while 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. (emphasis added.)
See also Soc. Sec. Rul. 96–9P, 1996 WL 374185 at *7 (July 2, 1996) (stating the
RFC assessment must be “specific as to the frequency of the individual’s need to
7
alternate sitting and standing” since such findings may “erode” the “sedentary” job
base.)2
The above Rulings tend to suggest that an omission with respect to
sitting/standing is critical to the types of jobs a claimant may work in. The Court holds
as much and that the ALJ’s omission(s) of Dr. Caughfield’s opinion (after affording it
“great weight”), tainted the ALJ’s final determination. Based on these Rulings, the Court
finds that remand is warranted in this case because there is a lack of substantial
evidence to support the RFC finding. See generally Flaherty, 515 F.3d at 1070 (stating
that a district court “meticulously examines the record as a whole, including anything
that may undercut or detract from the ALJ's findings in order to determine if the
substantiality test has been met.”)
In addition, Plaintiff contends that the ALJ omitted Dr. Levy’s modifier phrase.
That phrase indicated that Plaintiff can only perform three step, routine, predictable
tasks that are performed at a moderate pace. (ECF No. 14 at 14.) Based on this
opinion, fast paced jobs are not allowed. (Id.) Plaintiff submits that ALJ had no reason
for omitting Dr. Levy’s pace limitation from her RFC finding after specifically “adopting”
her opinion. (Id.) The Court agrees. In the Court’s view, this omission (as to Dr. Levy’s
pace limitation) also provides basis for remand in so far that the RFC determination has
not been based on substantial evidence because it lacks a limitation that goes to the
2
The Court notes that upon review of the Commissioner’s Response (ECF No. 16.),
there is nothing in that brief that seeks to refute these Rulings. These Rulings look to be on
point for the purposes of the present case and is not objected to by the Commissioner. Phillips
v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.1992) (“A litigant who fails to press a point . . .
forfeits the point.”)
8
types of jobs that Plaintiff could be employed in.3 See Richardson v. Perales, 402 U.S.
389, 390 (1971).
Accordingly, because the omissions regarding Dr. Caughfield and Dr. Levy’s
limitations are significant, the ALJ’s RFC is not based upon substantial evidence. As
such, the ALJ’s decision is reversed and this case is remanded to the Commissioner for
further proceedings.
B.
The ALJ's hypothetical questions to the vocational expert did not precisely
reflect Plaintiff's limitations
Plaintiff contends that the ALJ’s erred with respect to the hypothetical questions
proposed to the vocational expert because they did not reasonably reflect Plaintiff’s
limitations. (ECF No. 14 at 9.) Such error, Plaintiff says, derives from the RFC
determination. As noted in Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996),
Plaintiff argues that Winfrey (like the present case) illustrates the problems associated
with an incomplete RFC assessment—i.e. the “limitations omitted from the RFC finding
are also omitted from the hypothetical questions propounded to the vocational expert at
step five of the analysis resulting in a defective determination as to Plaintiff’s abilities to
do work in the existing economy.” (ECF No. 14 at 16-17.)
Plaintiff argues, therefore, that the ALJ erred on the basis that it lacks precision
as to all of Plaintiff’s medical limitations. See Hargis v. Sullivan, 945 F.2d 1482, 1492
3
Note: The Commissioner concedes that these limitations were omitted in the RFC.
(ECF No. 16. at 14.) However, the Commissioner argued that these omissions were not
prejudicial because the ALJ provided a hypothetical to the vocational expert that included these
specific limitations. The Court disagrees. Upon review of the transcript, and for reasons stated
later, the Court finds that the ALJ did not provide the vocational expert with the correct
limitations.
9
(10th Cir. 1991) (“Testimony elicited by hypothetical questions that do not relate with
precision to all of a claimant’s impairments cannot constitute substantial evidence to
support the [Commissioner’s] decision.”) The Court agrees.
To support this finding, the Court incorporates by reference the three omitted
limitations discussed with regard to the RFC analysis above. By way of example, and to
show how one these omissions constitutes cause for remand, the Court observes the
following kinks in the ALJ’s chain of reasoning: (1) Dr. Caughfield expressed Plaintiff's
sitting limitation as: “Sit—30 min. duration between breaks” (but this was not identified in
the RFC); (2) the ALJ said that it afforded Dr. Caughfield's opinion “great weight” (but
the ALJ failed to incorporate all of that opinion into the RFC); and (3) in ALJ's second
hypothetical question, the ALJ advised the vocational expert that Plaintiff could perform
sitting for six hours per day as long as Plaintiff could change positions to standing and
then resume sitting—i.e. stand up, sit down (but this does not reflect Dr. Caughfield’s
opinion, which had been afforded “great weight” by the ALJ). (R. at 19 and 73).
In sum, the ALJ’s error can be traced back to what Dr. Caughfield said in his
report—i.e. that Plaintiff can sit for thirty minutes “between breaks.” (R. at 384). The
ALJ, however, did not frame this limitation to the vocational expert this way. Because
the ALJ did not provide the vocational expert with the correct question (because it did
not contain the correct limitation), this mislead, or, at best, confused the vocational
expert into believing that Plaintiff could stand up briefly after sitting for thirty minutes;
rather than taking a full break after sitting for thirty minutes after undertaking work.
This confusion is also reflected in the transcript (R. at 72-74), where constant
clarification is sought by the vocational expert via telephone (much of which was
10
deemed inaudible). The inaudibility in the transcript compounds the confusion for the
vocational expert at a critical juncture of the hearing since a “break” after thirty minutes
of sitting, would require twelve extra breaks per six hour work day, which is quite
different to typical positions in the existing economy. (R. at 70.)
The Court concludes that because the ALJ's omission is material (i.e. not precise
as to the limitations proscribed by Dr. Caughfield and Dr. Levy), it is sufficient to taint
the substantiality of the vocational expert's testimony. See Hargis, 945 F.2d at 1492.
Since the evidence is tainted by omission, substantial evidence is lacking in this case for
the ALJ to have made the correct determination as to Plaintiff's claim to disability
benefits. The Court finds that remand is required to resolve these deficiencies. See
Fischer-Ross, 431 F.3d at 733.
C.
Harmless Error
Finally, it is worth addressing the fact that the Commissioner concedes that the
ALJ omitted the abovementioned limitations. (ECF No. 16 at 13-14.) The
Commissioner argues, however, that these omissions were not prejudicial because the
ALJ allegedly provided a hypothetical to the vocational expert that included the specific
limitations noted by Dr. Caughfiled and Dr. Levy. The Court disagrees—particularly in
light of the deficiencies that have been addressed above.4
4
When making the harmless error argument, the Commissioner contends that the ALJ
provided the correct limitation at R. 70. But upon review of that reference, the Court finds this
not to be the case. Moreover, the Commissioner fails to note that between R.71 through
R73—being key junctures where the vocational expert is providing evidence via telephone— the
transcript indicates that the question and answers are inaudible. This is troubling, particularly
given the importance of the opinion evidence the vocational expert is providing—and the factual
basis from which that opinion is derived (i.e. Dr Caughfield’s report at R. 384.) Between R.7075 in the transcript, there are nine passages where the transcriber notes that a question by the
ALJ (or answer by the expert) is “INAUDIBLE.” This is indicated capitals. Throughout these
11
Courts apply harmless error cautiously in the administrative review setting.
Fischer-Ross., 431 F.3d at 733. An error is only harmless when the Court can
“confidently say that no reasonable administrative fact-finder, following the correct
analysis, could have resolved the factual matter in any other way.’ Id. at 733-34. Here,
the Court has no confidence that the factual deficiencies in this case could be resolved
another way because the deficiencies are critical omissions. As such, the ALJ’s error is
not harmless because the jobs identified by the vocational expert are not predicated on
the correct limitations that derive from Dr. Caughfield and Dr. Levy’s opinions.
Given that the ALJ gave considerable weight to these opinions—and then failed
to provide the vocational expert with the precise physical and mental limitations—the
ALJ’s error is anything but harmless. Indeed, the Court finds this type of error is more
toward the significant end of the spectrum given the weight afforded to both Dr.
Caughfield and Dr. Levy in the ALJ decision.
C.
Remaining Arguments
Plaintiff raises three additional issues related to the sufficiency of the underlying
proceedings. Because the Court finds that the ALJ’s RFC was not supported by
substantial evidence and that this error alone requires remand, it need not address the
other arguments raised by Plaintiff—particularly in circumstances where the
Commissioner’s harmless error argument has been rejected. See Madrid v. Barnhart,
passages in transcript, the vocational expert is seeking further clarification from regarding
Plaintiff’s medical limitations and there is nothing in the record to suggest that the correct
limitations found their way into discussion. The limitations are certainly not found at R. 70
where the relevant hypothetical question was originally asked. See Pinnt v. Chater, 988 F.
Supp. 1354, 1360 (D. Colo. 1997) ("Although the ALJ is entitled to draw reasonable inferences,
his presumptions, speculations and suppositions should not be substituted for evidence.")
12
447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ’s error affected the analysis as a
whole, court declined to address other issues raised on appeal).
The Court expresses no opinion as to Plaintiff’s other arguments and neither
party should take the Court’s silence as tacit approval or disapproval of how the
evidence was considered. It is entirely possible that, given the passage of time and the
positive manner in which it appeared Plaintiff’s life was changing as of the hearing
before the ALJ, the ALJ could arrive at the same conclusion and find that Plaintiff is not
disabled. The Court does not intend by this opinion to suggest the result that should be
reached on remand; rather, the Court encourages the parties, as well as the ALJ, to
consider the evidence and the issues anew.
IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and
this case is REMANDED to the Commissioner for rehearing.
Dated this 14th day of March, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
13
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
