Opinion
Civil Action No. 03-2469-CM.
December 17, 2004
MEMORANDUM AND ORDER
This is a proceeding under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq. Section 405(g) provides for judicial review of a "final decision" of the Commissioner of the Social Security Administration. On July 28, 2000, plaintiff filed an application for disability benefits under Title II. The application was denied initially and on reconsideration. On March 5, 2001, following a hearing, an administrative law judge (ALJ) found that plaintiff was not under a "disability" as defined in the Act at any time when he met the insured status requirements of the law. On July 11, 2003, after considering new evidence, the Appeals Council of the Social Security Administration denied plaintiff's request for review. Thus, the decision of the ALJ stands as the final decision of the Commissioner.
I. Standard
Pursuant to 42 U.S.C. § 405(g), a court may render "upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). The Supreme Court has held that "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." Richardson v. Perales, 402 U.S. 389 (1971). In reviewing the record to determine whether substantial evidence supports the Commissioner's decision, the court may neither reweigh the evidence nor substitute its discretion for that of the Commissioner. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992). Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Holloway v. Heckler, 607 F. Supp. 71, 72 (D. Kan. 1985).
The court also reviews the decision of the Commissioner to determine whether the Commissioner applied the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). The Commissioner's failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis. Id. The court thus reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether the correct legal standards were applied. Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1497 (10th Cir. 1992).
To determine disability, the Commissioner uses a five-step sequential evaluation. The Commissioner determines: (1) whether the claimant is presently engaged in "substantial gainful activity"; (2) whether the claimant has a severe impairment, one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.
II. Discussion
Plaintiff alleges that he is disabled due to shoulder, left elbow, and hand injuries. Plaintiff contends that the ALJ improperly determined that he (plaintiff) could return to his past relevant work. Specifically, plaintiff argues that the ALJ failed to make any factual findings about how his impairments related to his past work as an inspector.
At step four, the ALJ is required by Social Security Ruling (SSR) 82-62 to make findings of fact regarding (1) the claimant's residual functional capacity (RFC); (2) the physical and mental demands of prior work; and (3) the ability of the claimant to return to past relevant work given his RFC. Henrie v. United States Dep't of HHS, 13 F.3d 359, 361 (10th Cir. 1993). The ALJ must make specific findings at each of these three phases, examining both the exertional and nonexertional demands of past relevant work. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996).
In this case, the ALJ found that plaintiff retained the RFC to lift fifteen pounds and that plaintiff had to avoid activities involving overhead lifting, pushing or pulling. Plaintiff's RFC also included the inability to perform a job requiring fine finger manipulation with his dominant left hand and repeated bending and lifting bilaterally. Plaintiff does not contend that the ALJ's findings regarding his RFC were incorrect. Plaintiff, however, argues that the ALJ made no findings of fact regarding the physical and mental demands of plaintiff's prior work and the plaintiff's ability to return to that past relevant work.
In reporting information about his prior work on his Disability Report, plaintiff identified the job of a port of entry inspector as his longest held job. Plaintiff indicated that, in that job, he wrote and completed reports, he sat for eight hours a day and did no lifting, walking, standing, climbing, stooping, kneeling, crouching, crawling, or handling. During the administrative hearing, the ALJ asked the vocational expert (VE) to examine the functional demands of plaintiff's past relevant work. The VE testified that plaintiff indicated that he performed the job of an inspector from 1980 through 1986 at the sedentary, semi-skilled level. The ALJ also presented a hypothetical question to the VE describing a person of the same age, education, and work history as plaintiff who could not do fine finger manipulation with the dominant upper extremity or overhead reaching, pushing, or pulling. The ALJ included a sedentary work restriction with no repeated bending and lifting bilaterally. In response, the VE testified that plaintiff could perform his past work as an inspector.
The court recognizes that the VE assessed the job of an inspector as sedentary, while the Dictionary of Occupational Titles (DOT) indicates that the job of inspector has an exertional demand of light work. During the hearing, the VE correctly noted this discrepancy. However, the VE relied on plaintiff's own description of his past work as an inspector. A determination at step four based upon a plaintiff's own description of past relevant work is appropriate. See SSR 82-62 ("The RFC to meet the physical and mental demands of jobs a claimant has performed in the past (either the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy) is generally a sufficient basis for a finding of `not disabled.'"); see also Hutchins v. Sullivan, 986 F.2d 1427, 1993 WL 34716 (10th Cir. 1993).
In the decision, the ALJ discussed the VE's testimony. The ALJ noted that the VE classified plaintiff's work as an inspector as sedentary. The ALJ also stated that, based upon a hypothetical question assuming plaintiff's age, education, work experience, and RFC limitations, the VE testified that plaintiff could return to his past relevant work as an inspector. The ALJ then concluded: "The claimant's past relevant work as an inspector did not require the performance of work-related activities precluded by the residual functional capacity established above." (Tr. at 28).
Significant to the court is the absence of any factual findings by the ALJ regarding the demands of plaintiff's past relevant work and a comparison of the demands of plaintiff's past work with plaintiff's capabilities.
In Jason v. Chater, 1995 WL 275725, at *3 (10th Cir. 1995), the Tenth Circuit stated: "We are . . . troubled by the ALJ's asserted failure to comply with SSR 82-62, which specifies the responsibilities of the ALJ at step four of the sequential disability analysis. Once the claimant's RFC is established, the ALJ must develop an adequate factual record regarding the pertinent physical and mental demands of the claimant's past relevant work." The court went on:
[T]this case includes — indeed ultimately turns on — a vocational expert's opinion that the claimant could meet the demands of a past occupation. Similar opinion testimony is routinely accepted as substantial evidence of nondisability in the step-five context. . . .
On the other hand, while SSR 82-62, considered together with the related SSR 82-61, indicates that a vocational expert may supply information at step four regarding the demands of various occupations, nowhere does either ruling suggest that an expert may assume the ALJ's ultimate responsibility for determining whether those demands are within the claimant's capacities. Moreover, allowing the expert to do so would effectively remove the critical comparative assessment involved from judicial review, at least where, as here, the record contains only the expert's conclusory response to a typical hypothetical inquiry. . . .Id. (citations omitted).
Although the Tenth Circuit generally does not favor citation to an unpublished opinion, such an opinion may be cited if, as in the present case, it has persuasive value on a material issue.
In this case, the ALJ essentially skipped the second phase of the step-four analysis. The ALJ assessed plaintiff's RFC, noted the VE's testimony, and then concluded that plaintiff's past relevant work as an inspector did not require plaintiff to perform activities precluded by his RFC. The ALJ did not make any findings regarding the physical and mental demands of plaintiff's work as an inspector, either as he actually performed that job or as it is generally performed throughout the national economy. The law in the Tenth Circuit is clear that the ALJ must make the necessary findings at this phase. Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996) ("[T]he Secretary's own rule dictates that the ALJ make the necessary findings at phases two and three of the step four inquiry." (citing SSR 82-62)); see also Clardy v. Barnhart, 2004 WL 737486, at *6 (10th Cir. 2004) (reversing and remanding because the ALJ did not make any findings regarding the pertinent customary demands of the receptionist occupation, either as she actually performed that job or as it is generally performed throughout the national economy).
Accordingly, on remand, the ALJ shall make specific factual findings regarding the demands of plaintiff's past relevant work as an inspector. Moreover, after the ALJ performs the required analysis at phase two, the ALJ shall then proceed to examine how plaintiff's RFC meshes with the demands of his past relevant work as an inspector. In other words, the ALJ must assess plaintiff's ability to perform each of the seven strength demands (sitting, standing, walking, lifting, carrying, pushing and pulling) and then carefully compare plaintiff's restrictions with the functional demands of sedentary (per the VE) or light work (per the DOT).
Because the ALJ failed to make any findings regarding the requirements of plaintiff's past relevant work, the court can evaluate neither the factual nor legal correctness of the ALJ's decision that plaintiff could return to his past relevant work. Put succinctly, the ALJ's decision is not supported by substantial evidence. The court therefore remands this action for further proceedings.
IT IS THEREFORE ORDERED that, on remand, the ALJ should consider all of the evidence submitted by plaintiff and then make the necessary step four findings, as outlined above. If further record development is necessary to make the required findings, the ALJ should gather the necessary evidence. This case is REMANDED to the Commissioner for further proceedings consistent with this order and judgment.