Dilts v. Berryhill

          ORDER

          R. Brooke Jackson United States District Judge

         This matter is before the Court on review of the Social Security Administration (“SSA”) Commissioner's decision denying claimant Bradley Dilts's application for disability insurance benefits (“DIB”) under Title XVI of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons below, the Court reverses and remands the Commissioner's decision.

         STANDARD OF REVIEW

         A person is disabled within the meaning of the Social Security Act only if his physical and /or mental impairments preclude him from performing both his previous work and any other “substantial gainful work which exists in the national economy.” 42 U.S.C. §432(d)(2). To be disabling, a claimant's conditions must be so limiting as to preclude any substantial gainful work for at least twelve consecutive months. See Kelly v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).

         In reviewing a final decision by the Commissioner, the District Court examines the record and determines whether it contains substantial evidence to support the Commissioner's decision and whether the Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). The District Court's determination of whether the ALJ's ruling is supported by substantial evidence “must be based upon the record taken as a whole.” Washington v. Shalal, 37 F.3d 1437, 1439 (10th Cir.). A decision is not based on substantial evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may also be appropriate if the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal standards have been followed. Winfrey, 92 F.3d at 1019.

         BACKGROUND

         A. Factual Background.

         Mr. Dilts worked as a concrete supervisor, a concrete pointer, and a waterproofing and caulking machine operator. R.36. He was 52 years old on the date of the ALJ's decision, R. 36, which the regulations define as “closely approaching advanced age.” 20 CFR § 404.1563(d). Mr. Dilts contends that beginning in February 2014, pain in his neck and back arising from cervical and lumbar disc degeneration and issues with a damaged shoulder and numb hand has prevented him from engaging in substantial gainful employment.

         The medical evidence before the ALJ showed that in March 2014, Mr. Dilts first complained of neck, back, and shoulder pain to his primary care provider. R. 318. Over the next two and half years, Mr. Dilts underwent multiple types of diagnostic imaging and tried various treatments including chiropractic care, R. 251, physical therapy, R. 273, a steroid injection in his shoulder, R. 350, surgery on his shoulder, R.352, and two surgeries on his neck, R. 484-506, 610-12, 640. Mr. Dilts testified that despite these treatments, his conditions have worsened since 2013, and that he continued to experience pain and a lack of mobility that prevented him from working consistently in this time. R. 52-63.

         B. Procedural Background.

         Mr. Dilts filed his claim for disability on January 7, 2015 alleging the following conditions: neck pain, compressed discs, a numb hand, neuropathy, an upcoming neck surgery, right arm rotator cuff issues, previous shoulder surgery, a damaged shoulder, and issues with his lower back. R. 94-95. The disability adjudicator determined that though Mr. Dilts's conditions caused pain and fatigue and limited his ability to perform work, they did not prevent him from performing lighter work. R. 104. Accordingly, his claim was denied on March 2, 2015. Following the denial of his claim, Mr. Dilts timely requested a hearing by the Administrative Law Judge (ALJ). R. 74-75. On October 17, 2017 Mr. Dilts appeared and testified before ALJ Jennifer B. Millington in Denver, Colorado. R. 29-37. An impartial vocational expert, Cynthia Ann Bartmann, also appeared at the hearing. R. 29. After the hearing, Mr. Dilts amended the alleged date of onset of his disability from March 5, 2013 to February 18, 2014. R. 29.

         C. The ALJ's Decision.

         The ALJ issued a decision denying benefits after evaluating the evidence according to the Social Security Administration's standard five-step process. See 20 C.F.R. § 416.920; see also Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.2004). First, she found that Mr. Dilts had not engaged in substantial gainful activity from his amended alleged onset date of February 18, 2014 through his date last insured was December 31, 2016. R. 31. At step two, the ALJ found that Mr. Dilts had the following severe impairments: degenerative disc disease of the lumbar spine; degenerative disc disease of the cervical spine, status post cervical fusion; and obesity. R.31. Mr. Dilts also alleged disability based on a left shoulder injury, testifying that he had difficulty reaching overhead. R.31. The ALJ found that his July 2014 shoulder surgery was effective in addressing his torn shoulder and that the pain in his neck and arms appear to relate to his ongoing cervical spine condition instead. As a result, she concluded that his left shoulder injury was not a severe impairment. R. 32. At step three, the ALJ found that Mr. Dilts did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

         At step four, the ALJ found that Mr. Dilts had the residual functional capacity (RFC) to perform light work except he could only lift or carry a maximum of 10 pounds. Further, for postural limitations, the ALJ found that Mr. Dilts could occasionally climb ramps and stairs, climb ladders, ropes or scaffolds, balance, stoop, kneel, crouch, or crawl. R.32. She did not find manipulative limitations (limitations in reaching, handling, or fingering). The ALJ concluded that Mr. Dilts is unable to perform any past relevant work. R. 35-36. At step five, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Mr. Dilts can perform. A vocational expert testified that a person who could do light work activities but lift a maximum of 10 pounds (instead of the 20 pounds normally associated with light work) and who could occasionally engage in postural activities would be able to perform the requirements of the following occupations: small parts assembler, with 50, 000 jobs in the United States; production assembler, with 25, 000 jobs in the United State; and bakery conveyor with 30, 000 jobs in the United States.^[1] R. 36. As a result, the ALJ concluded that Mr. Dilts was not disabled. R. 37.

         DISCUSSION

         Mr. Dilts contends that the ALJ erred in three ways. First, Mr. Dilts argues that the ALJ failed to properly evaluate the medical evidence and medical source opinions in determining the RFC. He takes issue with the limited weight given to Mr. Newman's Med-9 form and the finding of no manipulative limitations. Second, Mr. Dilts argues that the ALJ failed to evaluate Mr. Dilts's subjective complaints of disabling pain as required by law in determining that he had an RFC to perform a range of light work. He contends that his limited daily activities and persistence in finding relief from his pain lend credibility to his testimony that he needs to lie down often during the day and is not able to perform postural activities. Third, he contends that the ALJ reached a conclusion at step five that is unsupported by substantial evidence - an argument that is an extension of arguments one and two. ECF No. 14 at 16. I agree with Mr. Dilts's second argument. Although plaintiff requests a directed award of benefits, I find this case does not represent an appropriate circumstance for the exercise of my discretion in that regard, see Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993), and remand the case.

         A. Evaluation of the Medical Evidence and Source Opinions in RFC Determination.

         1) Limited Weight Given to Mr. Newman's Med-9 Form.

         Mr. Dilts argues that it was not proper for the ALJ to give Physician Assistant Newman's opinion limited weight on the basis that he “was not an acceptable medical source.” R. 34. In August 2014, Mr. Newman completed a Colorado Department of Human Services Med-9 form in which he opined that Mr. Dilts would be disabled for at least 12 months due to chronic cervicalgia. R. 353. The ALJ “gave little weight” to Mr. Newman's statements because “it addresses a different definition of disability than that of the Agency. In addition, Mr. Newman is not an acceptable medical source and ...