JOE HEATON, District Judge
Plaintiff Dorothy C. Bode filed this action seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for disability insurance and supplemental security income benefits. Consistent with 28 U.S.C. § 636(b)(1)(B), the case was referred to Magistrate Judge Doyle W. Argo, who recommends that the Commissioner's decision be reversed and the matter remanded for further proceedings. The magistrate judge found the Administrative Law Judge's step-five finding that plaintiff could perform other work was not supported by substantial evidence.
The parties, having failed to object to the Report and Recommendation, waived their right to appellate review of the factual and legal issues it addressed. United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). See 28 U.S.C. § 636(b)(1)(C). Accordingly, the court adopts Magistrate Judge Argo's Report and Recommendation, REVERSES the final decision of the Commissioner and REMANDS the case for further proceedings consistent with the Report and Recommendation, a copy of which is attached to this order.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of the Social Security Administration (Commissioner) denying her applications for disability insurance and supplemental security income benefits. Pursuant to an order entered by United States District Judge Joe Heaton, the matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The Commissioner has answered and filed the administrative record (hereinafter Tr. _____). Both parties have briefed their respective positions and thus the matter is at issue. For the reasons stated herein, it is recommended that the decision of the Commissioner be reversed and the matter be remanded for further administrative proceedings.
I. PROCEDURAL HISTORY
Plaintiff filed her applications for disability insurance and supplemental security income benefits on June 3, 2008, with a protective filing date of May 22, 2008, alleging that she became disabled as of January 1, 2008, due to diabetes mellitus, back problems, and depression. Tr. 86-90, 91-93, 113, 118. The applications were denied on initial consideration and on reconsideration at the administrative level. Tr. 40, 41, 42, 43, 44-48, 49-52, 55-57, 58-60. Pursuant to Plaintiff's request, a hearing was held before an administrative law judge on September 2, 2009. Tr. 22-39. Plaintiff appeared in person and with her attorney, and she offered testimony in support of her applications. Tr. 24, 25-35. A vocational expert also testified at the request of the administrative law judge. Tr. 35-38, 83. The administrative law judge issued his decision on October 22, 2009, finding that Plaintiff was not disabled within the meaning of the Social Security Act and that she was thus not entitled to disability insurance or supplemental security benefits. Tr. 8-10, 11-21. Plaintiff's request for review of the administrative law judge's decision was denied by the Appeals Council on June 11, 2010. Tr. 1-4. Thus, the decision of the administrative law judge became the final decision of the Commissioner. Tr. 1.
II. STANDARD OF REVIEW
The Tenth Circuit Court of Appeals has summarized the applicable standard of review as follows:
[W]e
independently determine whether the [administrative law judge's] decision is "free from legal error and supported by substantial
evidence." Although we will "not reweigh the evidence or retry the case," we "meticulously examine the record as a whole, including anything that may undercut or detract from the [administrative law judge's] findings in order to determine if the substantiality test has been met."
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Our determination of whether the [administrative law judge's] ruling is supported by substantial evidence "must be based upon the record taken as a whole." Consequently, we remain mindful that "[e]vidence is not substantial if it is overwhelmed by other evidence in the record."
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted).
To determine whether a claimant is disabled, the Commissioner employs a five-step sequential evaluation process:
Step one requires the agency to determine whether a claimant is "presently engaged in substantial gainful activity." If not, the agency proceeds to consider, at step two, whether a claimant has "a medically severe impairment or impairments."An impairment is severe under the applicable regulations if it significantly limits a claimant's physical or mental ability to perform basic work activities. At step three, the [administrative law judge] considers whether a claimant's medically severe impairments are equivalent to a condition "listed in the appendix of the relevant disability regulation." If a claimant's impairments are not equivalent to a listed impairment, the [administrative law judge] must consider, at step four, whether a claimant's impairments prevent her from performing her past relevant work. Even if a claimant is so impaired, the agency considers, at step five, whether she possesses the sufficient residual functional capability to perform other work in the national economy.
Wall, 561 F.3d at 1052 (citations omitted). The claimant bears the burden to establish a prima facie case of disability at steps one through four.
Williams v. Bowen, 844 F.2d 748, 751 n. 2 (10th Cir. 1988). If the claimant successfully carries this burden, the burden shifts to the Commissioner at step five to show that the claimant retains sufficient residual
functional capacity to perform work in the national economy given the claimant's age, education, and work experience.
Id. at 751.
III. THE DECISION OF THE ADMINISTRATIVE LAW JUDGE
In determining that Plaintiff was not disabled, the administrative law judge followed the sequential evaluation process set forth in 20 C.F.R. § 404.1520 and § 416.920. Tr. 12-13. He first found that Plaintiff had not engaged in substantial gainful activity since January 1, 2008, the alleged disability onset date. Tr. 13. At step two, the administrative law judge found that Plaintiff suffered from the following severe impairments: diabetes mellitus; degenerative disc disease of the spine; polycystic ovarian disease; knee and shoulder pain; obesity; depression; and anxiety. Tr. 13. However, at step three he found that these impairments were not severe enough to meet or equal one of the impairments listed in 20 C.F.R. Part 404, Appendix 1, Subpart P, Social Security Regulations, No. 4. Tr. 14. The administrative law judge also found that Plaintiff suffered from fibromyticulosis breast disease and a history of substance abuse, but that these were non-severe impairments. Tr. 13. The administrative law judge next found that Plaintiff had the residual functional capacity to perform sedentary work, limited to simple repetitive tasks and to work involving only incidental contact with the public. Tr. 15. The administrative law judge found at step four of the sequential evaluation process that Plaintiff could not perform any of her past relevant work. Tr. 20. At step five, using the Medical-Vocational Guidelines as a framework and the testimony of the vocational expert, he further found that a person with Plaintiff's residual functional capacity and vocational factors could perform work such as grinding machine operator and assembler. Tr. 20-21. Accordingly, the administrative law judge found that Plaintiff was not disabled and was not entitled to benefits. Tr. 21.
IV. DISCUSSION
Plaintiff raises one issue on appeal: that the administrative law judge's step five determination is not supported by substantial evidence. Plaintiff's Opening Brief, 5. She contends that both of the jobs identified by the vocational expert are listed as "light" work by the Dictionary of Occupational Titles (DOT), and there is no explanation for the conflict between the DOT and the vocational expert's testimony that a claimant limited to a range of sedentary work could perform those jobs. Id. at 7, 9. Thus, she claims that the administrative law judge's step five finding that she could perform other work is not supported by substantial evidence. Plaintiff's Opening Brief, 10-11.
The Commissioner concedes that the vocational expert's testimony does not provide substantial evidence to support the administrative law judge's finding that Plaintiff can perform other work. Commissioner's Brief, 3. However, the Commissioner argues that this error is not "fatal" because Plaintiff can perform the full range of sedentary, unskilled work, and is thus per se not disabled according to the Medical Vocational Guidelines (the grids). Id. at 3-4. (citing 20 C.F.R. Pt 404, Subpt. P, App. 2, 201.18, 201.19). The Commissioner contends that even in light of the nonexertional limitations of "simple, repetitive tasks and incidental contact with the public," Plaintiff is able to perform a full range of unskilled sedentary work. Commissioner's Brief, 4. The Commissioner concludes that the administrative law judge did not need the testimony of a vocational expert because application of the grids is appropriate and provides substantial evidence supporting the administrative law judge's step five finding. Id. at 4.
Given the Commissioner's concession that the vocational expert's testimony does not support the step five finding, the only issue remaining for determination is whether the error was harmless. The undersigned does not find this argument persuasive for one reason: the administrative law judge found that Plaintiff's "ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations," making conclusive reliance on the grids improper. Tr. 20-21. In arguing the applicability of the harmless error doctrine, the Commissioner ignores this finding. Instead, he relies on the administrative law judge's RFC finding to argue that the lack of vocational expert testimony was harmless.
The Commissioner cites no authority for the proposition that the Court may reject an explicit finding that Plaintiff's nonexertional limitations have eroded the range of work to an extent that the grids cannot be conclusively applied. Instead, the Commissioner offers a post hoc rationalization that the administrative law judge's RFC finding did not preclude conclusive application of the grids because unskilled work involves little or no judgment and involves work dealing primarily with objects rather than data or people. Commissioner's Brief, 4.
In these circumstances, the administrative law judge's error cannot be regarded as "harmless." In 2004, the Tenth Circuit Court of Appeals approved application of harmless error to social security cases in certain circumstances:
it nevertheless may be appropriate to supply a missing dispositive finding under the rubric of harmless error in the right exceptional circumstance, i.e., where, based on material the [administrative law judge] did at least consider (just not properly), we could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). Here, the Commissioner argues that despite the administrative law judge's finding to the contrary, he
could have properly found that the nonexertional limitations did not erode the occupational base to an extent that would preclude application of the grids. However, this iteration of harmless error is directly contrary to the standard of review applicable to appeals such as this: the Court is empowered only to review the administrative law judge's decision for substantial evidence, and is not in a position to draw factual conclusions on behalf of the administrative law judge.
Allen, 357 F.3d at 1144 (citing
Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) Unless the Court holds as a matter of law that the administrative law judge erred in finding that the range of sedentary work had been reduced by nonexertional limitations so as to preclude mechanical application of the grids, his factual finding must be accepted if it is supported by substantial evidence. It is not the office of this Court to substitute its view of the facts for that of the administrative law judge, even if the substituted finding might have withstood judicial review had it been made. The Commissioner's argument that the doctrine of harmless error allows this Court to substitute its own factual finding for that of the administrative law judge runs directly counter to the well established rule that a reviewing court is not to "reweigh the evidence or retry the case."
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
In reaching this recommended disposition, the undersigned has considered the Commissioner's argument that a 2009 United States Supreme Court case involving veterans' benefits, Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009), articulated a different test for harmlessness. In Shineski, the Court was considering the framework for decision used by the Federal Circuit when reviewing appeals from the Veterans Court based upon certain types of notice errors in the administrative proceeding. Id. at 1701. Under that framework, the Federal Circuit required the Veterans Court to presume that a notice error is "prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication." Id. at 1702. The Supreme Court found this framework to be contrary to statutory law requiring the Veterans Court to "take due account of the rule of prejudicial error" in reviewing administrative decisions. Id. at 1701. After noting that the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination, id. at 1706, the Court stated:
In fact, in making his harmless error argument, the Commissioner does not even cite Allen.
To say that the claimant has the "burden" of showing that an error was harmful is not to impose a complex system of "burden shifting" rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence.
Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the
party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error.
Shinseki, 129 S.Ct. at 1706 (emphasis added). Since the
Shinseki decision, the Tenth Circuit Court of Appeals has not directly addressed the effect
Shineski has on the test for harmlessness established in
Allen, but has thus far merely cited the decision.
Compare Armijo v. Astrue, No. 09-1305,
385 Fed. Appx. 789, 793 n. 4 (10th Cir. June 16, 2010) (applying the
Allen test and declining to apply a different standard urged by the Commissioner "from outside of the social-security context"), with
Jimenez v. Astrue, No. 09-6225,
385 Fed. Appx. 785, 788 (10th Cir. June 16, 2010) (contemporaneously citing
Shinseki for a determination on harmlessness in a case involving social security disability benefits).
The undersigned concludes that the Supreme Court's general observation of the role of harmless error in the appeal of administrative decisions — in a case outside the social security context, no less — does not render the
Allen test for harmless error infirm. At least as of the date of this Report and Recommendation,
Allen is the law of this circuit, and informs harmless error analysis in this Court.
Unpublished dispositions are cited pursuant to Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
Furthermore, the undersigned finds that under either standard the error here would not be harmless. At step five, in which the Commissioner bears the burden of proving the existence of other work in significant numbers, the administrative law judge's implicit finding that the grids do not apply requires vocational evidence from some other source to meet this burden. See Social Security Ruling 83-14, 1983 WL 31254 at *4. Denying benefits based on testimony that the Commissioner concedes cannot meet this burden is not a harmless error. Accordingly, it is recommended that this matter be reversed and remanded for further administrative proceedings.
RECOMMENDATION
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the administrative law judge, and the pleadings and briefs of the parties, the undersigned Magistrate Judge finds that the decision of the administrative law judge is not supported by substantial evidence. Accordingly, it is recommended that the final decision of the Commissioner of Social Security Administration be reversed and that the matter be remanded for further administrative proceedings consistent with this Report and Recommendation. The parties are advised of their right to file an objection to the Report and Recommendation with the Clerk of this Court by March 24, 2011, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.