Allen v. Barnhart, 03-7036.

• Decision Date: 04 February 2004
• Docket Number: No. 03-7036.,03-7036.
• Parties: Thomas Joel ALLEN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

357 F.3d 1140

Thomas Joel ALLEN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.

No. 03-7036.

United States Court of Appeals, Tenth Circuit.

February 4, 2004.

Michael D. Clay, Tulsa, OK, for Plaintiff-Appellant.

Sheldon J. Sperling, United States Attorney; Cheryl Triplett, Assistant United States Attorney; Tina M. Waddell, Regional Chief Counsel, Michael McGaughran, Deputy Regional Chief Counsel, Michelle M. Montemayor, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Region VI, Dallas, TX, for Defendant-Appellee.

Before SEYMOUR, BRISCOE, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff Thomas Joel Allen appeals from a district court order affirming the denial of his application for disability benefits. The district court (adopting the magistrate judge's findings and recommendations) effectively conceded that the administrative law judge (ALJ) erred in his analysis, but upheld the denial of benefits nonetheless by relying upon certain analytical revisions offered on judicial review. Affirming this post hoc effort to salvage the ALJ's decision would require us to overstep our institutional role and usurp essential functions committed in the first instance to the administrative process. Because the ALJ's decision cannot stand on its own erroneous rationale, we reverse and remand the case for further proceedings before the agency.¹

Upon receiving an application for disability benefits, an ALJ is required to assess whether or not the claimant is disabled in a five-step, sequential analysis. This analysis evaluates whether (1) the claimant is presently engaged in substantial gainful activity, (2) the claimant has a medically severe impairment or impairments, (3) the impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation,² (4) the impairment prevents the claimant from performing his or her past work, and (5) the claimant possesses a residual functional capability (RFC) to perform other work in the national economy, considering his or her age, education, and work experience. 20 C.F.R. § 404.1520(a)(4) (2003); see also, Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir.1992); Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).

In order to help evaluate the step five requirement, whether or not there are sufficient jobs in the economy that the claimant can perform given his or her age, education, and work experience, the Social Security Administration has created Medical-Vocational Guidelines, also known as "the grids." See 20 C.F.R. § 404.1567; id. pt. 404, subpt. P, app. 2; Trimiar, 966 F.2d at 1332. Five degrees of residual functional capacity are outlined in the grids by general exertional level — sedentary, light, medium, heavy, and very heavy exertion. 20 C.F.R. § 404.1569a; Trimiar, 966 F.2d at 1332 n. 22. Residual functional capacity reflects "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs." 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c). If the ALJ finds that a claimant's exertional capacity, education, age, and skills fit precisely within the criteria of a particular grid level, the ALJ may conclude the claimant is not disabled. Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir.1999).

Based on medical records indicating a history of chronic back problems, the ALJ determined that Allen's severe spinal impairment precluded his return to past relevant work. Finding that his impairment did not foreclose all significant opportunities for gainful employment, however, the ALJ denied disability benefits at step five of the controlling analytical sequence, erroneously concluding that Allen was not disabled because he retained the capacity to perform light work. The difficulty with the ALJ's decision stems from his failure to link his findings regarding Allen's RFC to his conclusion regarding Allen's vocational opportunities, resulting in a flawed assessment of Allen's disability status.

While the ALJ found Allen capable of light work, this finding was qualified by many additional physical restrictions including: limits on climbing stairs, ramps, ladders, scaffolds or ropes; on bending, stooping, crawling or crouching; on operating controls either overhead or with foot pedals; and on working in unprotected heights or near dangerous moving machinery. Further qualifying Allen's RFC with significant nonexertional restrictions, the ALJ included limits on more than simple or moderately detailed work instructions; on more than superficial interaction with co-workers and supervisors; and on more than occasional interaction, in person or by phone, with the public. After acknowledging that this restrictive RFC precluded Allen's return to his past work, the ALJ's decision splintered into two distinct rationales — one relying upon an erroneous application of the Medical-Vocational Guidelines and the other relying upon a flawed specification of jobs available — both of which are plainly at odds with the RFC findings.

During Allen's disability hearing, the ALJ questioned a vocational expert (VE) fairly extensively regarding other jobs Allen could perform, yet his findings do not comport with these inquiries. Specifically, the ALJ asked the VE to list jobs that a hypothetical individual with Allen's RFC could perform. In response, the VE suggested surveillance systems monitor. Then the ALJ proposed another hypothetical matching Allen's RFC, but without the public contact restrictions. To this latter question, the VE replied by listing jobs such as toll booth operator and self-service cafeteria worker.

"[B]ased upon the claimant's age, education, work experience, and the RFC described ...," the ALJ found that "the `Medical-Vocational Guidelines' (commonly know as the `Grids') ... would apply and direct a conclusion that the claimant is `not disabled.'" Aplt.App., Vol. II at 22-23. To reach this conclusion, the ALJ ignored the many additional physical and mental restrictions that he found qualified Allen's RFC and simply applied the grids for light work-contrary to the pertinent regulations and a large body of circuit precedent precluding use of the grids unless the claimant's RFC precisely matches the RFC specified for the grid relied upon. See 20 C.F.R. §§ 404.1569, 404.1569a; id. pt. 404, subpt. P, app. 2, § 200.00(e); Haddock, 196 F.3d at 1088 ("When a claimant's exertional level, age, education, and skill level (i.e., work experience) fit precisely within the criteria of a grid rule, an ALJ may base a determination of nondisability conclusively on the grids."); Channel v. Heckler, 747 F.2d 577, 581-82 (10th Cir.1984) (citing case law recognizing that an ALJ's conclusive reliance on grids is erroneous when the ALJ fails to make findings regarding non-exertional impairments). This error is so plain that the grid rationale set out in the ALJ's dispositional findings is not even a subject of discussion in the Appellee's briefs.

The district court defended the ALJ's decision as a determination based not on the grids but on the VE's identification of specific jobs in response to the ALJ's inquiries incorporating Allen's RFC and associated limitations. This facially more creditable rationale for the decision is based on statements made in the body of the ALJ's decision, yet this rationale was not carried forward into the final dispositional section. In any event, this reconstructed version of the ALJ's decision ultimately founders on the same RFC complications that undercut the grid rationale. The ALJ recited that the VE had "identified jobs in significant numbers ... within the limits set by [Allen's] RFC," and then named "surveillance monitor," "toll booth operator," and "self-service (cafeteria) cashier." Aplt.App., Vol. II at 21. Again, the problem is that the VE had specifically omitted the latter two obviously public occupations when the ALJ limited his query to Allen's precise RFC, which included limitations on public interaction. See id. at 19-20, 379-80.

Painted into a corner by these undeniable errors in the ALJ's decision, the Appellee makes the only argument left: that the denial of benefits is supportable on the basis that the remaining (one hundred statewide) surveillance-monitor jobs identified by the VE constitute "work which exists in significant numbers" under 42 U.S.C. § 423(d)(2)(A). See Trimiar, 966 F.2d at 1330. Attempting to bolster this position, the Appellee cites a few cases in which courts affirmed an ALJ's judgment that a small number of statewide jobs satisfied the "significant numbers" condition set out in the statute. None of these cases involved a number as low as one hundred. Overriding the bare numbers is the procedural fact that these cases involved court review of a finding of numerical significance made by the ALJ; they were not deciding in the first instance that a particular number was significant under the circumstances. This court has made it clear that judicial line-drawing in this context is inappropriate, that the issue of numerical...