Tonder v. Saul

          ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE

          William J. Martinez United States District Judge

         This matter is before the Court on review of Defendant Commissioner of the Social Security Administration Andrew M. Saul's (“Defendant's” or “the Commissioner's”) decision denying Plaintiff Mia M. Tonder's (“Plaintiff's”) application for supplemental security income. Plaintiff filed an opening brief on June 17, 2019 (ECF No. 20), Defendant filed a response on August 7, 2019 (ECF No. 23), and Plaintiff filed a Reply on June 9, 2019 (ECF No. 24). For the reasons set forth below, Defendant's decision to deny Plaintiff's application for supplemental security income is vacated, and this case is remanded for further proceedings consistent with this Order.

         I. BACKGROUND

         Plaintiff Mia Tonder was born in October 1967, and was 44 years old at the alleged disability-onset date of December 17, 2011. (ECF No. 14-5 at 24.) Plaintiff has completed high school and one year of community college, and is certified as a nurse's assistant. (ECF No. 14-4 at 43-44.) Plaintiff last worked in March 2011, as a part-time nurse's assistant. (Id.) She additionally has held other part-time jobs, such as a cashier at two fast-food restaurants. (Id. at 36-37; ECF No. 14-5 at 37.)

         Plaintiff applied for supplemental security income on April 12, 2015, alleging the that the following medical conditions preclude her from engaging in substantial gainful activity: chronic back pain, spondoloysis of back with stress fractures; arthritis; nerve pain; memory loss; and type 2 diabetes. (ECF No. 14-8 at 6.) A hearing in front of an Administrative Law Judge (“ALJ”) was held on November 1, 2017. (ECF No. 14-4 at 28.) On January 16, 2018, the ALJ found Plaintiff to be “not disabled” under § 1614(a)(3)(A) of the Social Security Act (ECF No. 14-2 at 25), and the Social Security Administration's Appeals Council denied review of that decision (id. at 2). On December 12, 2018, Plaintiff appealed the ALJ's decision to this Court. (ECF No. 1.)

         The administrative record indicates that Plaintiff suffered a workplace injury to her back in the year 2000 (ECF No. 14-9 at 66), and thereafter was diagnosed with degenerative disc disease of the lumbar spine/grade 1 anterolisthesis (id. at 73). Plaintiff alleges resulting constant and debilitating back pain. (Id. at 66.) Plaintiff additionally has been diagnosed with the following: obesity; diabetes mellitus; hypertension; basal cell carcinoma; mild asthma; vitamin D deficiency; esophagitis; acute hypoxemia/respiratory failure; sinus tachycardia; as well as major depression and anxiety. (ECF No. 14-2 at 13.) Medical records suggest that Plaintiff's psychiatric conditions are a result, at least in part, of the deaths of her father and husband. (ECF No. 14-9 at 78.)

         II. THE ALJ'S DECISION

         The ALJ denied Plaintiff's claim for benefits in a decision dated January 16, 2018. (ECF No. 14-2 at 25.) In the sequential evaluation process required by law, ^[1] the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of December 17, 2011. (Id. at 13.)

         At step two, the ALJ found that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine/grade 1 anterolisthesis, and obesity. (Id. at 13.) The ALJ found the following medical conditions of Plaintiff's to be non-severe: diabetes mellitus; hypertension; basal cell carcinoma; mild asthma; vitamin D deficiency; esophagitis; acute hypoxemia/respiratory failure; sinus tachycardia; major depression; and anxiety. (Id. at 13.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at 15.)

         As to the residual-functional capacity (“RFC”), the ALJ found as follows:

[T]he claimant has the residual functional capacity to perform a reduced range of light work as defined in 20 CFR 416.967(b) except the claimant can occasionally carry 20 pounds, and frequently carry 10 pounds.^[2] She can stand and/or walk for six hours in an eight hour workday but must use a cane for standing and walking. She can sit for six hours in an eight-hour workday. She can never climb ladders, ropes, or scaffolds. She can only occasionally stoop, kneel, crouch, crawl, or climb ramps and stairs.

(Id. at 14-15.)

         At step four, the ALJ determined that Plaintiff does not have any past relevant work. At step five, taking into account Plaintiff's age of 52 (44 at the alleged onset date), education, work experience, and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national and regional economies that Plaintiff can perform. (Id. at 23.) Based on the hearing testimony from a vocational expert, the ALJ determined that Plaintiff could perform such jobs as “assembler of small products” (Dictionary of Occupational Titles [“DOT”] # 706.684-022), “sales attendant” (DOT # 299.677-010), and “cashier II” (DOT # 211.462-010). (Id. at 24.) The ALJ accordingly found that Plaintiff “has not been under a disability, as defined in the Social Security Act, ” from the alleged onset date of December 17, 2011 through the date of the ALJ's decision. (Id. at 27.)

         III. LEGAL STANDARD

         The Court's review of a determination that a claimant is not disabled is limited to determining whether the record contains substantial evidence to support the Commissioner's decision and whether the correct legal standards were applied. Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “Evidence is not substantial if it is overwhelmed by other evidence or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Court must “meticulously examine 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.” Grogan, 399 F.3d at 1262. However, the Court “may not reweigh the evidence nor substitute [its] judgment” for the Commissioner's. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). Additionally, “[t]here are specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988). “Failure to follow these rules constitutes reversible error.” Id.

         IV. ANALYSIS

         Plaintiff seeks vacatur of the Commissioner's decision on two grounds: (1) the ALJ's determination of Plaintiff's RFC was erroneous; and (2) the ALJ's determination that there is a significant number of jobs in the national and regional economies that Plaintiff could perform likewise was erroneous. (ECF No. 20 at 18, 33.) The Court agrees with Plaintiff's first argument, and concludes that certain material findings made by the ALJ are not supported by substantial evidence, and therefore that the ALJ committed reversible legal error in determining Plaintiff's RFC.

         A. The ALJ's Error

         The ALJ “gave significant weight” to the opinion of Dr. Paul H. Barrett, M.D., a state-agency medical consultant involved in conducting Plaintiff's initial disability determination. (ECF No. 14-2 at 21.) The ALJ found Dr. Barrett's “assessment to be a correct reflection of the claimant's abilities to perform work related activities and as such, I have adopted his findings into the [RFC] as described above.” (Id.) The ALJ “did add the use of a cane for walking and standing as the claimant's treatment notes consistently indicate that she ambulates with a cane.” (Id.)

         The ALJ's reasons for giving Dr. Barrett's opinion controlling weight were ...