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Allen v. Colvin

United States District Court, D. Kansas

March 31, 2014

GEORGE ALLEN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This matter is before the Court for review of the final decision of Defendant Commissioner of Social Security denying Plaintiff George Allen's applications for disability insurance benefits under Title II of the Social Security Act.[1] Because the Court finds that the Commissioner erred at step five of the analysis, the Court reverses the decision of the Commissioner and remands for an immediate award of benefits.

I. Procedural History

Plaintiff George Allen protectively filed an application for Title II disability insurance benefits on February 5, 2004, alleging an onset date of January 7, 2003. Plaintiff was last insured for disability benefits on June 30, 2007. Plaintiff's application was denied initially and upon reconsideration in 2004. Plaintiff timely requested a hearing before an administrative law judge ("ALJ"). After a hearing in 2007, the ALJ issued a decision finding that Plaintiff was not disabled; in 2009 the Appeals Council denied Plaintiff's request for review of the ALJ's decision. Plaintiff then timely sought judicial review and in 2010, United States District Judge Sam A. Crow issued a decision reversing and remanding this case.[2]

In light of the ALJ's rejection of the opinion of Plaintiff's treating physician, Dr. Rettinger, Judge Crow's order directed the Commissioner to consider re-contacting Plaintiff's treating physician(s) for additional information and/or obtain a detailed examination from a consulting physician to address Plaintiff's functional limitations. Judge Crow further directed the Commissioner to re-evaluate the medical opinions of Dr. Rettinger consistent with the standards for evaluating the opinions of treating physicians and to explain and identify any claimed inconsistencies. Judge Crow also directed the Commissioner to consider the opinions of Dr. Maguire, the treating surgeon, as well as Dr. Kim, who performed a physical Residual Functional Capacity ("RFC") assessment. Judge Crow directed the Commissioner to include in the RFC findings the specific frequency of Plaintiff's need to alternate sitting and standing, in order to determine the impact on Plaintiff's ability to work. Judge Crow further directed the Commissioner to review the medical and other evidence on the issue of Plaintiff's ability to push and pull and determine if a limitation was warranted.

Upon remand, Plaintiff had a hearing and a supplemental hearing before the ALJ, and in April 2011, the ALJ issued a decision finding that Plaintiff was not disabled. In September 2011, Plaintiff sought review before the Appeals Council; the Appeals Council declined jurisdiction in February 2013. Plaintiff then timely sought judicial review.

II. Standard for Judicial Review

Judicial review under 42 U.S.C. ยง 405(g) is limited to whether Defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards.[3] The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[4] In the course of its review, the court may not re-weigh the evidence or substitute its judgment for that of Defendant.[5]

III. Legal Standards and Analytical Framework

Under the Social Security Act, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment."[6] An individual "shall be determined to be under a disability only 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."[7] The Secretary has established a five-step sequential evaluation process to determine whether a claimant is disabled.[8] If the ALJ determines the claimant is disabled or not disabled at any step along the way, the evaluation ends.[9]

Plaintiff does not challenge the ALJ's determination at step one that Plaintiff has not engaged in substantial gainful activity since January 7, 2003, the alleged onset date. Nor does Plaintiff challenge the ALJ's determination at step two that Plaintiff has medically "severe" impairments: a history of chronic headaches and neck and shoulder pain. Nor does Plaintiff challenge that ALJ's determination at step three that Plaintiff's impairments did not meet or equal a listing.

Plaintiff challenges the ALJ's determination of Plaintiff's Residual Functional Capacity ("RFC") at step four because the RFC failed to include any limitation for reaching. And, Plaintiff challenges the ALJ's determination at step 5, because the ALJ erred in relying on testimony of the vocational expert ("VE") that was based on the erroneous RFC and that conflicted with the Dictionary of Occupational Titles ("DOT")[10] and its companion publication, The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles ("SCO").[11] Plaintiff also challenges the ALJ's determination to accord "little weight" to the opinions of treating physician Dr. Rettinger.

IV. Discussion

A. RFC ...


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