Opinion
Civil Action No. 15-cv-01622-JLK
04-07-2017
TRACY JO KEARNES, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER
Plaintiff Tracy Jo Kearnes suffers from osteoarthritis, fibromyalgia, degenerative changes in her spine, carpal tunnel syndrome, pars planitis, headaches, a learning disorder, bipolar disorder, post-traumatic stress disorder, a pain disorder, anxiety, and depression. In April 2010, Kearnes filed her applications for Social Security Income (SSI) and Disability Insurance Benefits (DIB), which the Acting Commissioner of Social Security (Commissioner) denied in September of that year. At Kearnes's request, an ALJ held a hearing in July 2011. The ALJ found that she was not disabled, and Kearnes sought review of the decision by the Social Security Appeals Council. In July 2013, the Appeals Council reversed the ALJ's decision and remanded the claim for another hearing with instructions for the ALJ to consider new and material evidence. The hearing on remand was held, and in December 2013, the same ALJ issued a second unfavorable decision. The Appeals Council denied further review a year and a half later, and Kearnes filed this appeal of the Commissioner's final decision. All administrative prerequisites for appeal have been satisfied, and jurisdiction is proper under 42 U.S.C. § 405(g).
Pars planitis is an inflammation of the pars plana region of the eye.
On appeal, Kearnes argues that the ALJ (1) failed to include any nonexertional limitations resulting from her severe mental impairments in the residual functional capacity (RFC) determination, (2) did not properly consider her ability to perform sustained work activities, and (3) failed to analyze whether the number of jobs identified by the vocation expert is significant. Because the ALJ's order is inconsistent with respect to Kearnes's mental impairments and limitations, I REVERSE and REMAND the case.
I. Legal Standard
The exclusive questions for review on a Social Security appeal are whether there is substantial evidence supporting the final decision of the Commissioner and whether the correct legal standards were applied by the ALJ. See Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citing Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.1992). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (citation omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record." Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014) (internal quotation omitted). In reviewing the decision of the Commissioner, I cannot substitute my judgment for that of the ALJ or reweigh the evidence. Id. (citation omitted).
To qualify for SSI under 42 U.S.C. § 1382(a)(1), a claimant must be aged, blind, or disabled and must be eligible based on his income and resources. To qualify for DIB under 42 U.S.C. § 423(a), a claimant must, among other requirements, be found to be under a disability while insured for disability benefits. A claimant can only be found to be disabled "if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. §§ 1382c(a)(3)(B), 423(d)(2)(A). A claimant's disability must have lasted or be expected to last for at least 12 months. Id. §§ 1382c(a)(3)(A); 423(d)(1)(a). In determining whether a claimant is disabled, the ALJ must follow the five-step sequential protocol set forth in §§ 404.1520(a)(4) and 416.920(a)(4) of Title 20 of the Code of Federal Regulations.
At step one of the sequential protocol, the ALJ must determine that the claimant is not engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(4)(i), 416.920(a)(4)(i). If the claimant is not, then the ALJ must determine at step two that the claimant has a medically determinable impairment that is severe. Id. §§ 404.1520(4)(ii), 416.920(a)(4)(ii). At step three, the ALJ considers whether the claimant's impairment meets or is equivalent to one of the listed impairments in Appendix 1 of Title 20 of the Code of Federal Regulations, Part 404, Subpart P. If the claimant's impairment meets or equals in severity one of these listed impairments, the analysis ends and the ALJ will find the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Otherwise, the analysis continues to step four, where the ALJ must determine the claimant's residual functional capacity (RFC). Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Based on the claimant's RFC, the ALJ must conclude that the claimant cannot perform any of her past relevant work (PRW) or the claimant will be found to be not disabled. Id. Lastly, at step five, the Commissioner is responsible for providing evidence that other work exists in significant numbers in the economy and that the claimant can perform such work given her RFC, age, education, and work experience. Id. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g). If the Commissioner carries her burden, the claimant is not disabled, but if the claimant is found unable to do other work available in the economy, she is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the ALJ finds at any step that the claimant is not disabled, the process need go no further. Id. §§ 404.1520(4), 416.920(a)(4).
If my decision is appealed, the Tenth Circuit will review it de novo to "independently determine whether the ALJ's decision is free from legal error and supported by substantial evidence." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted). Consequently, the analysis I provide in this order is primarily for the understanding of the parties.
II. Background
Kearnes was born in 1967. She is a high school graduate and in the past worked as a loan processor, office assistant, and printing coordinator. She has not worked since 2008, however, due to her pain. R. at 173. Her chief complaints at the most recent hearing were the pains in her neck, back, shoulder and right hip radiating to her leg and foot. R. at 158. Kearnes testified that she could not sit at computer or typewriter because it hurts her neck, makes her lightheaded and dizzy, and causes numbness in her arms and hands. R. at 157-58. She cannot reach overhead and has trouble sitting or walking for long periods. R. at 158. Her attempts to compensate for her neck pain and immobility further irritate her lower back. R. at 157. She also has daily headaches for which she takes two medications. R. at 159. Kearnes testified that being in pain every day is very depressing for her in that it greatly limits her activities. Id.
Medical Evidence
Dr. Wendy Day treated Kearnes until 2009 when she lost her health insurance and then starting again in 2012 when she qualified for Medicaid. R. at 802. Dr. Day completed a Colorado Department of Human Services Functional Limitations Assessment for Kearnes in July 2008, reporting that Kearnes could not bend, squat, kneel, crawl, climb ladders, balance, lift over 10 pounds, reach above her shoulders, or rotate her head and neck and would need frequent breaks to stretch her back. R. at 441. Dr. Day also indicated in that assessment that Kearnes could only sit, stand, walk, lift up to 10 pounds, push, pull, and perform fine finger manipulations up to 33% of an eight-hour day. Id. In September 2013, Dr. Day further opined, in a Physical Residual Capacity Questionnaire, that Kearnes's concentration is constantly affected by her pain; that she can only sit or stand for 20 minutes at a time; that she must walk every 20 minutes for five minutes; that she will need to shift positions between sitting, standing, and walking at will; that she will need to take unscheduled breaks of ten minutes once an hour; and that she will miss more than four days of work per month. R. at 762-65.
Licensed marriage and family therapist Kathe Skinner developed a treatment relationship with Kearnes over many months and ultimately concluded, in 2009, that she suffers from significant emotional abuse that has led to many psychosocial symptoms, which are also influenced by a significant biological component. R. at 484. Ms. Skinner additionally filled out a Colorado Department of Human Services Mental Health Report, stating that Kearnes's pain and fatigue limit her work tolerance and that her depression impacts her memory and ability to concentrate. R. at 444. Kearnes's records from the Switzer Community Counseling Center document treatment for her symptoms of depression, anxiety, and self-harming behaviors from 2009 to 2010.
Kearnes was treated by Dr. Laurence Lopez at Peak Vista Community Health Centers from 2009 to 2011. He referred her for mental health counseling multiple times. See R. at 524, 549, 555. Dr. Lopez wrote a letter on her behalf in January 2011 opining that she had been unable and would be unable in the foreseeable future to hold a job due to her medical problems. R. at 684. In May 2011, he completed a disability questionnaire, responding that Kearnes suffered from osteoarthritis, degenerative disc disease, and facet arthritis and met a listing for disorders of the spine. R. at 658-60.
State agency psychologist Dr. MaryAnn Wharry determined, in February 2010, that Kearnes had moderate difficulties in maintaining social functioning and concentration, persistence, or pace. R. at 193. She concluded that Kearnes may have difficulty understanding and remembering detailed instructions, cannot work closely with supervisors or coworkers, and should have no interaction with the public. R. at 194-95.
In August 2010, consultative psychologist Dr. Neufeld found Kearnes to have mild to moderate difficulty with understanding and recalling instructions and moderate impairment in social interactions. R. at 600. He also opined that her persistence and pace were affected both by her emotional state and physical difficulties. Id.
After observing Kearnes weekly at the Rockies Counseling Center over seven months in 2011, psychology student Catherine Ware opined that Kearnes's physical pain contributes significantly to her depression and limits her performance on work-related tasks. R. at 683. Ms. Ware completed a Mental Impairment Questionnaire, in which she stated that Kearnes had no deficits in attention, recall, orientation, or the ability to follow simple instructions and yet also noted that she had no opportunity to observe whether Kearnes could remember work-like procedures or maintain attention for a two-hour segment. R. at 679. Ms. Ware indicated that Kearnes had mild to no limitations in activities of daily living; in social functioning; in concentration, persistence, or pace; or from episodes of decompensation. R. at 681.
From late 2011 through 2012, Kearnes treated with Dr. Sonia Suefer, also at Peak Vista, for her depression, anxiety, and bipolar disorder, among other issues. See R. at 687, 702, 705-06, 709, 718, 720, 722-23, 726, 728, 787. Dr. Suefer wrote a letter in June 2012 stating that Kearnes was unable to work as a result of her multiple, likely permanent medical conditions and the side effects of her medications. R. at 685. Dr. Suefer additionally completed a Colorado Department of Human Services Med-9 form in which she opined that Kearnes had been disabled since June 5, 2008, due to her "osteoarthritis in spine, degenerative disc disease, flattening of spinal cord, buldging/hurniated [sic] discs cervical and lumbar, nerve damage, fibromyalgia, sciatica, bone spur in right hip, par plantis, PTSD, depression, [and] bipolar 2." R. at 694.
The Second Hearing and Decision
A medical expert, a psychological expert, a vocational expert, and Kearnes all testified at the second hearing in November 2013. Medical expert Dr. Nancy Ann Winkler, who is board certified in internal medicine and rheumatology, reported that Kearnes has cervical and lumbar degenerative disc disease, minimal thoracic degenerative disc disease, psychological problems, and minimal osteoarthritis of her right hip with a small spur. R. at 135-36. She opined that Kearnes would not meet or equal any listings, though, because she had no documented muscle atrophy or neurologic impairment. R. at 138. Based on the fact that she "didn't see a lot of focus on actual treatment" in Kearnes's medical records, R. at 144, Dr. Winkler concluded that Kearnes should be limited to: lifting or carrying ten pounds frequently; pushing or pulling ten pounds occasionally; standing or walking for four hours of an eight hour day; changing positions once every two hours; never crawling or climbing ladders, ropes, or scaffolding; occasionally stooping, crouching, or climbing ramps or stairs; and balancing frequently. R. at 138-39. She further recommended that Kearnes avoid unprotected heights, fast moving machinery, and concentrated exposure to cold, wetness, humidity, and vibration. R. at 139-40. Although Dr. Winkler did not provide maximal physical limitations for Kearnes, she noted: "[I]t does appear she has some significant psychological issues and certainly some people with psychological issues have more difficulties in terms of handling pain issues." R. at 143.
Clinical psychologist Dr. Nancy Winfrey found Kearnes to suffer from pain disorder with psychological and medical factors, but determined that the diagnoses of bipolar two disorder and post-traumatic stress disorder in her records were not well-supported. R. at 148-49. Dr. Winfrey pointed out that Kearnes had not received mental health treatment for almost two years and was capable of self-care, taking a class at her church, and planning her sister's wedding. R. at 151. As a result, she rated Kearnes as having mild limitations in her activities of daily living, mild to moderate social functioning limitations due to her dieting and avoidance traits, and mild limitations in her concentration, persistence, and pace. R. at 150-51. Dr. Winfrey additionally testified that Kearnes would be able to make judgments for simple one or two-step tasks; respond appropriately to supervision, coworkers, and usual work situations; deal with changes in a routine work setting; and understand, remember, and carry out simple instructions for unskilled tasks. R. at 152-53.
Vocational expert Nora Dunn stated that Kearnes could not perform any of her past jobs. R. at 160-62. But, based on the hypothetical limitations presented to her by the ALJ, she determined that Kearnes could perform other work in the region or national economy as a document preparer, of which there are 423 jobs in Colorado and 45,000 nationally; a surveillance system monitor, of which there are 176 jobs in Colorado and 3,859 nationally, and an addresser of which there are 55 jobs in Colorado and 8,997 nationally. R. at 162.
The ALJ issued his Decision a month after the hearing. Using the familiar five-step paradigm, the ALJ first found that Kearnes had not engaged in substantial gainful activity since March 23, 2010, the alleged onset date. At step two, the ALJ determined that Kearnes has the following severe impairments: degenerative changes in the cervical, thoracic and lumbar spine; minimal osteoarthritis in the right hip; fibromyalgia; a learning disorder; a bi-polar disorder; post-traumatic stress disorder (PTSD); and a pain disorder with psychological and medical factors. The ALJ found her pars plantis, right carpal tunnel syndrome, headaches, and other mental health issues not to be severe. At step three, the ALJ analyzed Kearnes's spinal changes, fibromyalgia, and mental health issues and concluded that Kearnes does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
The ALJ uses "global references to multi-page exhibits, without pinpoint citations to specific pages therein." Romo v. Colvin, 83 F.Supp.3d 1116, 1120 n.4 (D. Colo. 2015). These references make review nearly impossible and do not constitute substantial evidence in support of his findings. For example, he finds, "The claimant has also received a number of rule-out assessments and 'traits', which were never verified through additional psychological studies (Exhs. B5F; B9F; B21F; B23F). Neither the 'rule outs' nor traits rise to the level of medically determinable impairments . . . ." R. at 22. The ALJ's citation is to 93 pages of the record, which simply is not specific enough to demonstrate that his findings are based on substantial evidence.
The ALJ then determined, at step four, that Kearnes has the residual functional capacity to perform sedentary work, except that she should only: stand and/or walk up to four hours and sit up to six hours in an eight-hour workday; sit, stand and/or walk for 30 to 60 minutes on rare occasions and otherwise alternate between these activities; push or pull occasionally with the upper extremities and frequently with the lower extremities. The ALJ further found Kearnes should not crawl, stoop, kneel, bend, crouch, or climb ladders, ropes, scaffolds, stairs or ramps and should avoid concentrated exposure to temperature extremes, wetness, humidity, vibration and hazards. Lastly, the ALJ limited Kearnes to only unskilled work. In reaching that RFC, the ALJ declined to give controlling weight to the opinions of Drs. Lopez and Suefer, two of Kearnes's treating physicians, instead finding they merited no weight. He gave limited weight to the assessment of another of Kearnes's treating physicians, Dr. Day, to the extent that she recommended a sit-stand option and avoidance of extreme weather for Kearnes. He further assigned little weight to the opinion of State agency psychologist Dr. Wharry; limited weight to Dr. Neufeld's conclusion to the extent that he indicated Kearnes would have difficulties with attention and concentration, persistence, and pace; and partial weight to the findings of Ms. Ware that Kearnes had no difficulties with attention, recall, or the ability to follow simple instructions. In comparison, the ALJ accorded great weight to the opinions of Drs. Winkler and Winfrey provided during the hearing. Citing the opinion of the vocational expert, which was premised on the above RFC, the ALJ found that Kearnes was unable to perform any of her past relevant work. Ultimately, the ALJ concluded, at step five, that Kearnes was not disabled because she could adjust to other work that exists in significant numbers in the national economy.
The ALJ refers to Dr. Wendy Day as Dr. Wendy Davis. See R. at 121.
At the first hearing, vocational expert Daniel Best testified that a claimant subject to the limitations in the ALJ's hypothetical, which included moderate limitations due to psychological impairments, "would be limited to production type work as opposed to customer service type occupations and then further [that] the moderate limitation . . . would really interfere with [her] ability to maintain [her] . . . concentration in those production environments. [She] would not be able to . . . adequately interact with supervisors or coworkers up to a third of a given workday or shift. Subsequently, [she] would not be capable of maintaining competitive work . . . ." R. at 184. The ALJ then found, at step four of his first Decision, that limiting Kearnes to unskilled work satisfactorily compensated for her psychological impairments and that she was thus capable of performing her past relevant work as a mail clerk. R. at 215-20.
III. Discussion
As argued by Kearnes, the ALJ's residual functional capacity determination does not include sufficient limitations to account for her severe and nonsevere mental impairments, which constitutes error. Any conclusions based on that RFC, including that a significant number of jobs are available in the national economy, are not, therefore, supported by substantial evidence. Kearnes's additional argument that the ALJ failed to consider her capacity to perform sustained work activities in formulating her RFC falls short. A. Nonexertional Limitations Resulting from Mental Impairments
A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). Thus, once an impairment "is considered to be severe, it must be included in the residual functional capacity assessment . . . ." Hargis v. Sullivan, 945 F.2d 1482, 1488 (10th Cir. 1991). An ALJ must also consider the combined effect of all of the claimant's medically determinable impairments and include both severe and nonsevere mental impairments in the RFC assessment. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013).
Here, the ALJ concluded that limiting Kearnes to unskilled work would adequately account for her mental impairments, including her learning disorder, bipolar disorder, PTSD, and pain disorder, which were all deemed to be severe. Specifically, he found:
There is documentation of restricted or tearful affect, anxious mood, frustration and allegations of a history of dyslexia and special education classes as well as subjective complaints of pain—all of which were considered when determining the residual functional capacity—but overall, the undersigned finds no basis to conclude the claimant is incapable of performing the basic mental functional capacities of understanding, remembering and carrying out simple instructions, making simple judgments, responding appropriately to supervisors, coworkers and unusual work situations, and dealing with changes in routine work settings.R. at 118. Yet he was "persuaded that the combination of claimant's focus on her objectively mild physical concerns, her alleged history of dyslexia and her anxiety would restrict her to unskilled work." R. at 119; see also R. at 122-23.
"The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting." SSR 85-15, 1985 WL 56857, at 4. The Tenth Circuit specifically recognized, in Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015), that "[t]here may be cases in which an ALJ's limitation to 'unskilled' work does not adequately address a claimant's mental limitations." This is necessarily true because impairment of mental functions is not so much skill-related but, rather, pertains to "'general prerequisites for most work at any skill level.'" Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (quoting Wayland v. Chater, 76 F.3d 394, 1996 WL 50459, at *2 (10th Cir. 1996) (unpublished)). For example, mental limitations like "deficiencies in concentration . . . may well be especially disruptive of production, and perhaps even physically dangerous to the claimant and/or her coworkers, in the kinds of repetitive tasks typically involved in unskilled work." Wayland, 1996 WL 50459, at *2.
The Commissioner refers to the Social Security Administration Program Operations Manual System section on "Mental Limitations," which lists the mental abilities critical for performing unskilled work. One requirement is that a claimant be able to "maintain attention for extended periods of 2-hour segments (concentration is not critical)." DI 25020.010(B)(3). This statement is gibberish. Concentration is defined as "a directing of the attention or of the mental faculties toward a single object." Webster's Third New International Dictionary, Unabridged 469 (3d ed. 1981). If one is "maintaining attention," he or she is concentrating. I find the reasoning of the Tenth Circuit and Kearnes on the necessity of concentration for unskilled work to be much more logical and persuasive. See Wayland, 1996 WL 50459, at *2; Reply at 2-3, ECF No. 20.
There are a multitude of medical opinions in the record regarding Kearnes's limitations due to her mental impairments, including those of Dr. Neufeld, Dr. Winfrey, and Dr. Wharry, but it is not my job to reweigh the evidence. Instead, I find that the inconsistencies within the ALJ's own Decision invalidate the given RFC. The ALJ first determined that Kearnes has numerous mental impairments that are severe, meaning that they significantly limit her ability to do basic work activities. Then, he concluded that Kearnes should be limited to unskilled work due to "[h]er focus on physical symptoms, her pain complaints, and her alleged history of dyslexia and special education classes." R. at 122. Notably absent from consideration are Kearnes's bipolar disorder and PTSD. Her severe impairments cannot be wholly represented by the unskilled work and other physical limitations the ALJ provided. It is conceivable that limiting Kearnes to unskilled work that only requires simple instructions could relate to her mental impairments, and perhaps there is some connection between those impairments and the limitation to sedentary work. But I cannot discern from the ALJ's Decision how the given RFC represents all of the significant limitations Kearnes must have based on the ALJ's determination that she has numerous severe mental impairments. If severe mental impairments like bipolar disorder and PTSD beget significant limitations, how does unskilled work represent those limitations for Kearnes? After review of the record and sources cited by the parties, I am certain it does not.
It seems that some of these exertional limitations, such as alternating between sitting, standing, and walking, would even exacerbate Kearnes's mental symptoms, like her concentration, persistence, and pace issues.
"[T]he tacit premise in the ALJ's analysis, i.e., that a cognitive or emotional impairment may be functionally equated with the lack of a skill, as that term is employed in the Secretary's regulations, is wrong." Wayland, 1996 WL 50459, at *2. Restricting Kearnes to unskilled work and other physical limitations does not adequately represent her severe and nonsevere mental impairments. On remand, this error must be corrected, specifically accounting for Kearnes's "concentration, persistence, and pace issues," see R. at 114, 119, and the significant limitations from her learning disorder, her bipolar disorder, her PTSD, and the psychological factors of her pain disorder. B. Existence of Jobs in Significant Numbers
Kearnes further contends that the ALJ erred in not explicitly analyzing whether the approximately 48,000 jobs in the national economy, about which vocational expert Dunn testified, amount to a significant number of jobs. She argues that the ALJ should have considered the factors articulated in Trimiar v. Sullivan: "'the level of [Kearnes's] disability; the reliability of the vocational expert's testimony; the distance claimant is capable of travelling to engage in the assigned work; the isolated nature of the jobs; the types and availability of such work, and so on.'" 966 F.2d 1326, 1330 (10th Cir. 1992) (citing Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988)). The Tenth Circuit has held, however, that the ALJ is not required to engage in the Trimiar factoral analysis in every case. Raymond v. Astrue, 621 F.3d 1269, 1274 n.2 (10th Cir. 2009). It has also "made it clear that judicial line-drawing in this context is inappropriate, that the issue of numerical significance entails many fact-specific considerations requiring individualized evaluation, and, most importantly, that the evaluation 'should ultimately be left to the ALJ's common sense in weighing the statutory language as applied to a particular claimant's factual situation.'" Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004).
This issue is moot considering the number of jobs in the national economy for which Kearnes has the capacity to perform will likely change based on my findings above. I must comment, however, that it would be sensible for the ALJ to engage in an explicit analysis regarding the numerical significance of the available jobs whenever regional numbers are minimal. Low regional numbers could signify that there are not several other regions of the country in which jobs exist in significant numbers. See 20 C.F.R. §§ 404.1566, 416.966 ("We consider that work exists in the national economy when it exists in significant numbers in the region where you live or in several other regions of the country."). C. Ability to Perform Sustained Work Activities
Kearnes additionally argues that the ALJ's RFC determination does reflect proper consideration of her capacity to perform sustained work activities. An RFC is the "maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis." SSR 96-8p, 1996 WL 374184, at *2. A regular and continuing basis generally means eight hours a day, five days a week. Id. "The sporadic performance [of household tasks or work] does not establish that a person is capable of engaging in substantial gainful activity." Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (internal quotation marks omitted). While I may find it doubtful that Kearnes's RFC represents her ability to perform sustained work, it is clear the ALJ has thoroughly reviewed the record and has evaluated the medical opinions in accordance with the applicable standards. Contrary to her argument, I find the ALJ's limitation of Kearnes to rarely sitting, standing, or walking for 30 to 60 minutes demonstrates that he did consider her capacity over eight hours a day, five days a week. Of course, this finding is subject to my analysis above regarding Kearnes's limitations from her mental impairments.
Vocational expert Dunn's testimony was based on the ALJ's hypothetical that included the strict sitting-standing-walking limitation, and she concluded that moving about with that frequency would not prevent a claimant from performing work in the national economy. R. at 161-62.
IV. Conclusion
I am distressed by the seven years that Kearnes has already waited for resolution of her claim and by the additional delay I am causing with my order today, but remand is the proper remedy in this case. I, therefore, REVERSE the determination of the Commissioner through the ALJ that Kearnes is not disabled. The case is REMANDED for: (a) appropriate limitations resulting from Kearnes's severe and nonsevere mental impairments to be included in her residual functional capacity and (b) the provision of specific citations to the record in support of any and all findings.
Kearnes requests that I order that the case be reviewed by a different ALJ on remand. Under these circumstances, I leave the Social Security Administration to comply with its own procedures on that matter. --------
DATED this 7th day of April, 2017,
/s/_________
JOHN L. KANE
SENIOR U.S. DISTRICT JUDGE