The opinion
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ROKERRIA G.D., )
)
Plaintiff, )
)
v. ) Case No. 19-CV-0006-CVE-CDL
)
KILOLO KIJAKAZI,1 )
Acting Commissioner of Social Security )
Administration, )
)
Defendant. )
OPINION AND ORDER
Before the Court is the report and recommendation (Dkt. # 19) of United States Magistrate
Judge Frank H. McCarthy recommending that the Court affirm the Commissioner’s decision to
deny plaintiff’s application for Title XVI disability benefits. Plaintiff filed a timely objection (Dkt
# 20), and the defendant filed a response (Dkt. # 23).
I.
Plaintiff is a 24-year-old woman who was 20-years old at the time of her initial application
for disability benefits. Dkt # 10, at 84. She alleges disability as of the date of her application for
benefits, February 23, 2016. Id. at 17, 84. In her initial disability application, she alleged disability
due to back pain, arthritis in both hands, migraines, and thyroid problems. Id. at 17. Though not
listed as a separate disabling impairment in the application, plaintiff also has limited use of her
hands due to a congenital abnormality that caused her to be born with “vestigial thumbs.” Id. at
203, 439, 444–47.
1 On July 11, 2021, President Biden named Kilolo Kijakazi, as acting commissioner of the Social
Security Administration, replacing Andrew Saul.
On May 5, 2016, the Commissioner denied plaintiff’s claim at the initial determination
stage, after which she retained counsel and requested reconsideration. Id. at 12, 98, 102, 105. The
Commissioner again denied her claim on September 1, 2016. Id. at 108–10. Plaintiff then filed a
request for a hearing before an administrative law judge. Id. at 111–12. ALJ Deirdre O. Dexter
conducted a hearing on January 24, 2018.
During the hearing, plaintiff testified that she lives with her mother and five-year-old
daughter, leading to the following exchange:
Q: And are you able to do things for your daughter, you know, help her get dressed,
fix her things to eat, those kind of things?
A: Half of the time, yeah, but most likely, my mom help me most of the time.
Q: And so what kind of things can you do for your daughter?
A: I can fix her a cup, like a cup of water, maybe a juice and like try to hand her a
spoon and other than that, I basically help her like tie her shoes and put her shoes
on, help her with underwears and help her get to the restroom.
Id. at 51. During her application process, plaintiff also reported that she cares for herself, but she
needs help from her mother to dress and, when her hands hurt, to do her hair. Id. at 220. She
reported that she prepares sandwiches, frozen dinners, and unspecified “meals,” which can take
several hours to prepare due to her limitations. Id. at 221.
Plaintiff also testified about her work history. Most recently she worked part time at a call
center, but she was unable to properly handle the phones and keyboard “so they let [her] go.” Id.
at 53–54. In 2015-2016, she worked as a car hop at a drive-up restaurant but was fired after
repeatedly dropping trays. Id. at 56, 62, 68. In 2014–2015, she held a job in another call center for
one month. Id. at 55. In 2012, she had a summer job working as a receptionist for the Tunica
County Board of Supervisors in Mississippi. Id. at 54, 58, 194. When asked why she was unable
to work any longer, plaintiff said:
[i]t’s because of my hands. They’ll cramp up as I try to hold things . . . or they’ll
stiffen up, that I can’t be able to do the things I have to do. So I have to have
someone around to be able to do help me in order for me to be able to do something.
Id. at 57.
X-rays showed that plaintiff’s thumbs are little more than small, bony protrusions growing
from the knuckles of her index fingers. Id. at 444–47. As a result of the deformity, plaintiff
testified, her index fingers do not bend properly, so she uses them as the “thumbs” to grip things
with her middle and ring fingers. Id. at 65. This allows her some functionality, she said, but it
causes her chronic pain and limits her ability to carry objects for long periods. Id. at 63–66. She
said that she has also been diagnosed with arthritis in both wrists and wears braces to limit their
movement, but the braces are only “somewhat” helpful. Id. at 58.
The only medical record that includes substantial discussion of plaintiff’s hand
impairments is the Medical Source Statement of Kenneth Trinidad, D.O., a non-treating physician.
Id. at 20, 438–47. During her examination, plaintiff reported difficulty lifting more than five
pounds and loss of fine-motor movement, such as that required to button buttons, open bottle tops,
and pick up coins. Id. at 20, 438. Dr. Trinidad found that these complaints were substantiated by
his examination. Id. at 20, 438–43. He concluded that plaintiff’s hand deformities cause
“significant impairment of her hand function” and “significantly alter[] her ability to do any lifting,
gripping, or fine motor activities,” including the ability to “type or do fine assembly work.” Id. at
439. He ultimately opined that (1) plaintiff can “occasionally” (i.e., up to one third of an eight-
hour day) lift up to five pounds, and (2) her “use of hands for repetitive movement” is “limited”
with respect to “grasping” and “fingering.” Id. at 441–42.
Dr. Trinidad also noted that plaintiff suffers from “chronic ongoing low back problems”
due to an injury she suffered when she was six. Id. at 439. A musculoskeletal examination revealed
“tenderness and spasm at L5-S1 bilaterally.” Id. Dr. Trinidad concluded that, due to plaintiff’s
hand deformity and back pain, she would be unable to reenter the work force. Id. at 440.
During the hearing, the ALJ posed a series of hypotheticals to a vocational expert in order
to determine what jobs a person with plaintiff’s education and experience could perform, given
various limitations. Id. at 75–79. In her final hypothetical, the ALJ instructed the vocational expert
to consider an individual with the following residual functional capacity (RFC):
Please . . . assume that this hypothetical individual is able to lift/carry, push or pull
up to five pounds frequently and ten pounds occasionally. Is able to sit for up to six
hours in an eight-hour workday; is able to stand and/or walk up to six hours in an
eight-hour workday; the need to change positions from sitting to standing or
walking can be accommodated by the 15-minute morning and afternoons breaks
and the 30-minute lunch period during an 8- hour workday. This individual is able
to frequently climb ramps or stairs; is able to occasionally climb ladders, ropes or
scaffolds or kneel. The job should not involve concentrated exposure to dust, odors,
fumes or pulmonary irritants.
. . . .
[T]his hypothetical individual is able to occasionally handle or finger.
Id. at 77, 79. The vocational expert opined that a person with this hypothetical RFC would be able
to perform the tasks of “surveillance monitor” and “call-out operator” as those positions are
defined by the Dictionary of Occupational Titles (DOT). Call-Out Operator, DOT 237.367-014,
1991 WL 672186; Surveillance-System Monitor, DOT 379.367-010, 1991 WL 673244. The
vocational expert testified that 92,000 surveillance monitor jobs and 40,000 call-out operator jobs
existed in the national economy. Dkt. # 10, at 77, 79.
After the ALJ completed her hypotheticals, plaintiff’s attorney posed a hypothetical of his
own:
I think this might be kind of close to the [ALJ’s final hypothetical], but I want to
go ahead and put it out there. Looking at an individual with no mental limitations,
high school education, same past relevant work that you’ve discussed with the
Court here today, limiting this individual to sedentary work, mainly because of
lifting required of light work, looking at an individual with upper extremity
limitations . . . as follows; looking at an individual that’s not capable of any fine
manipulation, this would be bilaterally because of no pinch strength or no use or no
oppositional use of a thumb. We’re also looking at an individual that’s capable of
occasional gripping, grasping and twisting of the hands, but it would be less than
five pounds and that would on each hand, again, bilaterally. We’re looking at an
individual that’s capable of frequently reaching in all directions. We’re looking at
an individual that without thumbs bilaterally, not able to use ordinary hand tools,
pliers, screwdrivers and hammers, and we’re also looking at an individual limited
to pushing and pulling occasionally and again limit that to five pounds bilaterally.
Id. at 80–81. Asked if the additional limitations would “change the Judge’s last hypothetical,” the
vocational expert testified that a person with the described RFC would be able to work only in the
surveillance-monitor position. Id. at 81.
On March 26, 2018, the ALJ issued a written decision finding that plaintiff was not disabled
within the meaning of the Social Security Act. Id. at 13, 24. At steps one and two of the analysis,
the ALJ determined that plaintiff had not engaged in substantial gainful activity since February 23,
2016, and had severe impairments consisting of “vestigial thumbs, migraine, asthma[,] and
osteoarthritis.” Id. at 14–15. At step three, she found that these impairments did not equal the
severity of any listed impairment. Id. at 15. At step four, the ALJ adopted an RFC consistent with
the one she proposed in her final hypothetical to the vocational expert. Id. at 16.
In explaining her RFC determination, the ALJ found that plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, but her statements about
“the intensity, persistence, and limiting effects of his or her symptoms . . . are inconsistent because
a review of the medical evidence shows the claimant has described daily activities that are not
limited to the extent one would expect, given the complaints of disabling symptoms and
limitations.” Dkt. # 10, at 18, 20. Specifically, the ALJ cited the fact that plaintiff “lives with
family and cares for her daughter [and] provides her own personal care except that her mother
occasionally fixes her hair and helps her dress.” Id. at 21. “She prepares meals, does laundry[,]
and does some household cleaning. She shops in stores and can walk for 30 minutes before
resting for 30 minutes.” The ALJ also noted that plaintiff has worked after the alleged onset of
her disability. Id.
Regarding Dr. Trinidad’s statement, the ALJ reasoned as follows:
Dr. Trinidad’s opinion related to the claimant’s use of her hands is given great
weight as this opinion is generally supported by the medical evidence. The
description of the claimant’s congenital issue with her thumbs, including her
reduced grip and fine manipulation skills is confirmed by imaging in the file. See,
e.g., Exhibit 8F. In contrast, Dr. Trinidad’s opinions related to the claimant’s back
pain are given little weight. These opinions are not generally supported by the
medical evidence of record and appear to be based on the claimant’s report without
objective evidence supporting the limitations opined. (Exhibit 8F).
The medical source statement provided by Dr. Trinidad is given little weight as to
the claimant’s ability to sit, stand and walk. The ability to lift and carry to the extent
it is consistent with sedentary exertion considered and given weight; however, the
limitation of no frequent lift/carry is not consistent with the medical evidence and
therefore given little weight. Dr. Trinidad’s opinion regarding claimant’s ability to
use foot controls, grasp and finger is given significant weight, but the postural
limitations are given little weight[.] The opinion of environmental limitations of
dust, odors and fumes are given significant weight, but the remainder of
environmental limitations are given little weight (Exhibit 8F, pages 4-6).
Id. at 22–23.
Ultimately, the ALJ concluded at step five of the analysis that plaintiff was not disabled
within the meaning of the Social Security Act. Id. at 24. Citing the vocational expert’s testimony,
the ALJ found that plaintiff was capable of work as a surveillance monitor or call-out operator,
occupations existing in significant numbers in the national economy. Because plaintiff was
“capable of making a successful adjustment to other work that exists in significant numbers in the
national economy,” the ALJ concluded that a finding of “not disabled” was appropriate under the
Commissioner’s rules. Id.
Plaintiff asked the Appeals Council to review the ALJ's decision, but the Appeals Council
found no basis to review the decision. Id. at 1–4. Plaintiff then filed this case seeking judicial
review of the denial of her claim. Dkt. # 2.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a
claim to a magistrate judge for a report and recommendation. Fed. R. Civ. P. 72(b). However, the
parties may object to the magistrate judge’s recommendation within fourteen days of service of
the recommendation. 28 U.S.C. § 636(b)(1); Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968,
975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The Court “shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court may accept,
reject, or modify the report and recommendation of the magistrate judge in whole or in part. Fed.
R. Civ. P. 72(b).
III.
The Commissioner uses a five-step, sequential process to determine whether a claimant is
disabled and therefore entitled to benefits. See 20 C.F.R. § 416.920(a)(4). “The claimant bears the
burden of establishing a prima facie case of disability at steps one through four.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th
Cir. 2005)). “Step one requires the claimant to demonstrate ‘that he is not presently engaged in
substantial gainful activity.’” Id. (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th
Cir.2005)). “At step two, the claimant must show ‘that he has a medically severe impairment or
combination of impairments.’” Id. (quoting Grogan, 399 F.3d at 1261). “At step three, if a claimant
can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled
and entitled to benefits.” Id. (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988)). "If a
claimant cannot meet a listing at step three, he continues to step four, which requires the claimant
to show ‘that the impairment or combination of impairments prevents him from performing his
past work.’” Id. (quoting Grogan, 399 F.3d at 1261). If the claimant meets this burden, the analysis
continues to step five, where the burden of proof shifts to the Commissioner to show that the
claimant retains sufficient RFC to perform work in the national economy, given the claimant’s
age, education, and work experience. Id. (citing Hackett, 395 F.3d at 1171).
In reviewing the ALJ’s decision, the Court may not reweigh the evidence or substitute its
judgment for that of the ALJ; the Court’s task is to review the record to determine if the ALJ
applied the correct legal standard and if her decision is supported by substantial evidence. Bowman
v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” O’Dell v. Shalala, 44
F.3d 855, 858 (10th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). “A
decision is not based on substantial evidence if it is overwhelmed by other evidence in the record
or if there is a mere scintilla of evidence supporting it.” Bernal v. Bowen, 851 F.2d 297, 299 (10th
Cir.1988). The Court must meticulously examine the record as a whole and consider any evidence
that detracts from the Commissioner’s decision. Washington v. Shalala, 37 F.3d 1437, 1439 (10th
Cir. 1994).
IV.
Broadly stated, plaintiff argues (1) that the ALJ’s RFC failed to properly account for the
limitations caused by her hand deformity; (2) that the RFC should have included limitations related
to plaintiff’s pain; and (3) that the ALJ erred in finding that other work existed in “significant
numbers” in the national economy. Dkt. # 20.2
A. RFC: Hand Limitations
The ALJ did not adequately explain her RFC finding as it relates to plaintiff’s use of her
hands. In determining a claimant’s RFC, an ALJ “must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings)
and nonmedical evidence (e.g., daily activities, observations).” SSR 96–8p, 1996 WL 374184, at
*7. The ALJ “must also explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.” Id. Furthermore, “[i]f the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was
not adopted.” Id. When the ALJ fails to include this reasoning, her RFC finding is not supported
by substantial evidence. See Southard v. Barnhart, 72 F. App’x 781, 784–85 (10th Cir. 2003).
Although purely technical omissions do not require remand, the ALJ’s explanation must be such
that a reviewing court can follow her reasoning and determine whether the correct legal standards
were applied. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
2 Plaintiff divides her objection into four points of error: (1) “Evidence of Severe Congenital
Thumb Deformity,” (2) “Dr. Trinidad’s Opinions,” (3) “Claimant’s Pain,” and (4) “Job Numbers.”
Because points one and two both attack the ALJ’s RFC finding as it pertains to plaintiff’s ability
to use her hands, which is also the focus of Dr. Trinidad’s opinion, Court addresses them together.
Here, the ALJ failed to follow these directives with respect to her exertional finding that
plaintiff can “lift, carry, push or pull up to 5 pounds frequently,” and her nonexertional finding
that plaintiff can “occasionally handle or finger.” Dkt. # 10, at 16, 441.
1. Exertional Finding:
The ALJ did not adequately explain why her exertional limitation conflicted with that of
Dr. Trinidad. The Commissioner evaluates occupations according to the degree to which certain
physical demands are present: “never,” “occasionally” (the activity exists up to one-third of the
work day), “frequently” (between one-third and two-thirds of the day), or “constantly” (more than
two-thirds of the day). See U.S. Dep’t Lab., Emp. Training Admin., Selected Characteristics of
Occupations Defined in the Dictionary of Occupational Titles (SCO), app. C: Physical Demands
(1993). Here, the ALJ found that plaintiff had the capacity to move five pounds “frequently,” while
Dr. Trinidad opined that plaintiff could do so only “occasionally.” Dkt. # 10, at 16, 441.
In explaining this discrepancy, the ALJ asserted that the doctor’s “limitation of no frequent
lift/carry [was] not consistent with the medical evidence and therefore given little weight,” but she
did not identify any evidence contradicting this portion of his opinion. See id. at 23. Nor is it at all
clear what this evidence would be. The only relevant medical evidence in the record, other than
Dr. Trinidad’s report, seems to be the X-rays, which the ALJ found to support the hand-related
portion of Dr. Trinidad’s opinion. Id. at 20. Because the Court can only guess as to the ALJ’s
reasons for rejecting Dr. Trinidad’s opinion that plaintiff cannot “frequently” lift and carry loads
of up to five pounds, the ALJ necessarily failed to adequately explain the conflict between her
RFC and Dr. Trinidad’s opinion.
This error was material because an exertional limitation in line with Dr. Trinidad’s findings
might have resulted in a different outcome. The DOT classifies the occupations of surveillance-
system monitor and call-out operator as “sedentary work,” meaning that a worker must have the
ability to exert up to ten pounds of force occasionally and “a negligible amount of force”
“frequently.” See SCO, app. C: Physical Demands; Call-Out Operator, DOT 237.367-014, 1991
WL 672186; Surveillance-System Monitor, DOT 379.367-010, 1991 WL 673244. Thus, had the
ALJ adopted Dr. Trinidad’s exertional limitation, it is possible that neither job would have been
appropriate for plaintiff, resulting in a finding of “disabled.”3 On remand, the ALJ need not adopt
Dr. Trinidad’s opinion, but she must adequately explain her reasons if she decides to reject it.
2. Nonexertional Finding
The ALJ also failed to resolve an evidentiary ambiguity related to her nonexertional finding
that plaintiff can “occasionally handle and finger.” Dkt. # 10, at 16. The Commissioner evaluates
occupations according to the degree to which they require reaching, handling, fingering, and
feeling, with each activity requiring progressively finer usage of the upper extremities. SSR 85-
15, 1985 WL 56857, at *7. Handling involves seizing, holding, grasping, turning or otherwise
3 Most courts and ALJs appear to equate the ability to exert “negligible force” with the ability
to move weights such as files or documents weighing up to five pounds. See, e.g., Valentin v.
Berryhill, No. 16-cv-01071, 2017 U.S. Dist. LEXIS 166768, at *27, *29 (W.D. Mo. Oct. 10, 2017);
Major v. Berryhill, No. 16-04296-CV, 2017 U.S. Dist. LEXIS 143876, at *3, (W.D. Mo. Sep. 6,
2017); Smith v. Saul, No. 18-CV-78, 2019 U.S. Dist. LEXIS 224780, at *7-8 (N.D. Iowa Dec. 9,
2019); Mannella v. Astrue, No. CV 06-469-TUC-CKJ (BPV), 2008 U.S. Dist. LEXIS 53669, at
*23, *54 (D. Ariz. Feb. 20, 2008). Under this interpretation, it appears that plaintiff would be
unable to perform even sedentary work if she were limited to lifting and carrying objects of up to
five pounds only occasionally.
Some courts, however, have construed “negligible force” as something less than the ability to
carry up to five pounds. See, e.g., Powell v. Astrue, No. SKG 10-02677, 2013 U.S. Dist. LEXIS
99568, at *22 (D. Md. July 17, 2013). And some vocational experts have testified that claimants
can perform sedentary work even under a five-pound weight limitation. See Arredondo v. Colvin,
No. CV 15-01927, 2016 U.S. Dist. LEXIS 93265, at *10 (C.D. Cal. July 18, 2016). On remand, if
the ALJ adopts an “occasional” five-pound limitation, and the vocational expert testifies that
plaintiff would still be capable of performing as a surveillance-system monitor or callout operator,
the ALJ should ask the vocational expert to explain the apparent discrepancy. See SSR 00-04p,
2000 WL 1898704.
working primarily with the whole hand or hands, while fingering involves picking, pinching, or
otherwise working primarily with the fingers. Id.
Here, the ALJ purported to rely on Dr. Trinidad’s opinion in finding that plaintiff is capable
of “occasionally” handling and fingering, but Dr. Trinidad made no quantitative findings regarding
those activities, likely due to the format of the Medical Source Statement questionnaire. Unlike
the portion of the form dedicated to exertional functions, which uses the Commissioner’s
never/occasionally/frequently/constantly scale, the portion of the form dedicated to “the claimant’s
use of hands for repetitive movement” leaves physicians only two options: “yes” the function is
“limited,” or “no” it is not. Id. at 441–42. Thus, although Dr. Trinidad indicated that plaintiff’s
abilities were “limited,” it is unclear from his statement exactly how limited he found them to be.
A person whose manual dexterity is “limited” may be capable of handling and fingering for a third
of every workday, something less than that, or not at all. Given Dr. Trinidad’s qualitative finding
of “significant impairment of [plaintiff’s] hand function,” Dkt # 10, at 439, the ALJ should have
explained why she resolved the ambiguity in favor of a quantitative finding that plaintiff is capable
of “occasionally” handling and fingering.
Further explanation is required because a more restrictive nonexertional limitation might
have changed the outcome. The DOT provides that the job of call-out operator requires “Finger
Dexterity: Level 3,” defined as that held by the middle one-third of the population, and “Manual
Dexterity: Level 4,” defined as that held by the lowest one-third of the population, excluding the
bottom ten percent. Call-Out Operator, DOT 237.367-014, 1991 WL 672186. The position also
requires handling and fingering “occasionally.” Thus, had the ALJ been more descriptive
regarding plaintiff’s manual dexterity, or specified that plaintiff was capable of handling and
fingering for a lesser duration, the occupation of call-out operator might have been beyond
plaintiff’s RFC. Indeed, when plaintiff’s attorney offered a hypothetical describing a person with
no opposable thumbs who was not capable of any fine manipulation, the vocational expert testified
that the person would be unable to work as a call-out operator. Id. at 80–81. On remand, the ALJ
should either explain why Dr. Trinidad’s opinion is consistent with a finding that plaintiff is
capable of “occasionally” handling and fingering or amend plaintiff’s RFC and proceed
accordingly.
B. RFC: Pain
Plaintiff argues that the ALJ failed to properly assess her “complaints of pain associated
with her severe impairments.” Dkt. # 20, at 5. Plaintiff’s arguments regarding the effect of her pain
on her ability to concentrate are without merit for the reasons explained by Judge McCarthy in the
report and recommendation, see dkt. # 19, at 8–11, but the Court finds that the ALJ nevertheless
erred by failing to properly evaluate the pain plaintiff allegedly suffers when using her hands for
an extended period.
The Tenth Circuit has mandated a three-step analysis for evaluating a claimant’s subjective
complaints of pain. An ALJ must consider and determine:
(1) whether the claimant established a pain-producing impairment by objective
medical evidence; (2) if so, whether the impairment is reasonably expected to
produce some pain of the sort alleged (what we term a “loose nexus”); and (3) if
so, whether, considering all the evidence, both objective and subjective, the
claimant’s pain was in fact disabling.
Brownrigg v. Berryhill, 688 F. App’x 542, 545 (10th Cir. 2017) (quoting Keyes-Zachary v. Astrue,
695 F.3d 1156, 1166–67 (10th Cir. 2012)); see also 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL
5180304, at *3. The determination “must contain specific reasons for the weight given to the
individual’s symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated
the individual’s symptoms.” Brownrigg, 688 F. App’x at 546 (quoting SSR 16-3p, 2017 WL
5180304, at *10).
Here, the ALJ concluded “the claimant’s statements about the intensity, persistence, and
limiting effects of his or her symptoms . . . are inconsistent because a review of the medical
evidence shows the claimant has described daily activities that are not limited to the extent one
would expect, given the complaints of disabling symptoms and limitations.” Dkt. # 10, at 21. In
support of this conclusion, the ALJ cited plaintiff’s daily activities and the fact that plaintiff had
worked after her alleged onset date. The ALJ also found that “there are inconsistencies regarding
the claimant’s physical limitations and the objective medical evidence.” Id. This explanation was
insufficient.
For one, although the ALJ stated that plaintiff’s testimony was inconsistent with the
medical evidence, she never identified the medical evidence she found to conflict with plaintiff’s
testimony. The Tenth Circuit has consistently rejected the use of such conclusory statements and
boilerplate recitations in place of the detailed analysis required under Commissioner’s rules. See
Brownrigg, 688 F. App’x at 546. If plaintiff’s testimony was not consistent with objective medical
evidence, the ALJ should have clearly identified and explained the discrepency.
Moreover, the ALJ failed to adequately explain how the cited activities are inconsistent
with plaintiff’s alleged symptoms. Plaintiff testified that she gains some functional use of her hands
by using her partially immobile index fingers as “thumbs” to grasp and manipulate objects but said
that this cannot be sustained for very long without causing her pain. Dkt. # 10, at 65. The ALJ
never explains how these complaints are inconsistent with plaintiff’s testimony that she was, with
the help of her mother, able to care for herself and her daughter. None of the activities plaintiff
describes doing—making sandwiches or frozen meals, helping her daughter put on her shoes or
use the restroom, doing laundry, etc.—would require plaintiff to engage in the prolonged activity
alleged to cause her pain. Nor are plaintiff’s complained of symptoms obviously inconsistent with
her brief, post-onset employment, the bulk of which consisted of training and ended in her being
“let go” due, at least in part, to her inability to keep up with the required typing. Id. at 53–54.
Furthermore, although a claimant’s daily activities and work history are proper factors to
consider when evaluating her subjective symptoms, “the ALJ may not rely on minimal daily
activities as substantial evidence that a claimant does not suffer disabling pain.” Thompson v.
Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (citing Frey v. Bowen, 816 F.2d 508, 516 (10th
Cir.1987)). The periodic performance of some household chores “does not establish that a person
is capable of engaging in substantial gainful activity.” Id. (quoting Frey, 816 F.2d at 516–17)).
Thus, it was improper for the ALJ to discount plaintiff’s testimony based on the minimal activities
described. On remand, the ALJ should fully apply the Tenth Circuit’s three-step analysis, explicitly
identifying evidence, medical and nonmedical, that is inconsistent with plaintiff’s reported
symptoms.
C. Numeric Significance
Because the ALJ did not support her findings with substantial evidence and otherwise
failed to explain her reasoning as required, the Court need not reach plaintiff’s argument that the
ALJ erred in finding that 132,000 available jobs was a “significant” number for the purposes of
her step five finding. On remand, the ALJ’s treatment of Dr. Trinidad’s opinion and plaintiff’s
pain may affect plaintiff’s RFC, which in turn might affect her ability to perform one or both of
the occupations proposed for her. Given the relatively small number of available jobs that would
remain if either occupation were eliminated, it may be necessary for the ALJ to consider the factors
relevant to the numeric significance inquiry. See Norris v. Barnhart, 197 F. App’x 771, 777 (10th
Cir. 2006) (citing Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir.1992)).
IT IS THEREFORE ORDERED that the report and recommendation (Dkt. # 19) is
rejected, and the Commissioner's decision denying plaintiff's claim for disability benefits is
reversed and remanded for further administrative proceedings. A separate judgment is
entered herewith.
IT IS FURTHER ORDERED that the Clerk of Court is directed to substitute Kilolo
Kijakazi, Acting Commissioner of the Social Security Administration, for Andrew Saul,
defendant.
DATED this 26th day of July, 2021.