United States District Court, D. Colorado
MIA M. TONDER, an individual, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
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 ...