Webb v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

RYSHANA W., )

)

Plaintiff, )

)

v. ) Case No. 20-CV-541-CDL

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration,1 )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review of a decision of the Commissioner of the Social

Security Administration (Commissioner) denying Social Security disability benefits. The

parties have consented to proceed before a United States Magistrate Judge in accordance

with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the Court reverses the

Commissioner’s decision denying benefits and remands for further proceedings.

I. Standard of Review

The Social Security Act (the Act) provides disability insurance benefits to

qualifying individuals who have a physical or mental disability. See 42 U.S.C. § 423. The

Act defines “disability” as an “inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be

1 Pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo Kijakazi is substituted

as the defendant in this action, effective upon her appointment as Acting Commissioner of

Social Security in July 2021. No further action need be taken to continue this suit by reason

of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” See 42 U.S.C. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “‘is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S. Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may

not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d

at 1178.

II. Procedural History

On June 14, 2018, Plaintiff filed an application for a period of disability and

disability insurance benefits under Title II of the Social Security Act (Act), and a Title XVI

application for supplemental security income. (R. 10). Plaintiff initially alleged a disability

onset date of May 17, 2016, but later amended the alleged onset date to February 6, 2018.

Id. Plaintiff alleged that she became disabled due to severe osteoarthritis in both hips,

depression, post-traumatic stress disorder (PTSD), and anxiety. (R. 92). Plaintiff was 31

years old on her alleged onset date. Before her alleged disability, Plaintiff worked as a

preschool teacher’s aide, an office assistant, and a restaurant server. (R. 290-295).

The Commissioner denied Plaintiff’s application on initial review and on

reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge

(ALJ). The ALJ held a hearing on January 22, 2020. Testimony was given by the Plaintiff

and a Vocational Expert (VE). On March 20, 2020, the ALJ issued a decision denying

disability benefits. (R. 7). The Appeals Council affirmed the decision on August 19, 2020,

and Plaintiff timely filed a Complaint in this Court. (R. 1; see Doc. 2). (R. 1). Accordingly,

the Court has jurisdiction to review the ALJ’s March 20, 2020 decision under 42 U.S.C. §

405(g).

III. The ALJ’s Decision

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. § 404.1520(a)(4)(i)-

(v). A finding that the claimant is disabled or is not disabled at any step ends the analysis.

See id.; see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Williams v.

Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). The claimant bears the burden on steps one

through four. Lax, 489 F.3d at 1084.

At step one, the claimant must demonstrate that he is not engaged in any substantial

gainful activity. See Lax, 489 F.3d at 1084. Here, the ALJ determined Plaintiff had not

engaged in substantial gainful activity since her amended alleged onset date of February 6,

2018. (R. 12). The ALJ’s determination at step one is not challenged and is supported by

substantial evidence.

At step two, the claimant must establish an impairment or combination of

impairments that is severe. See id. A claimant who does not have a severe impairment is

not disabled. See Williams, 844 F.2d at 1084. Here, the ALJ determined that Plaintiff has

severe impairments of osteoarthritis of the bilateral hips (post-bilateral hip replacement

surgery), osteoarthritis of the bilateral knees, sacroiliitis, obesity, bipolar disorder, PTSD,

and anxiety. (R. 13).

At step three, the ALJ determines whether the claimant’s severe impairment or

impairments is equivalent to one that is listed in Appendix 1 of the regulation, which the

Commissioner “acknowledges are so severe as to preclude substantial gainful activity.”

Williams, 844 F.2d at 751 (internal quotation and citation omitted); see 20 C.F.R. §§

404.1520(d); 20 C.F.R. Part 404, subpt. P, app’x 1 (Listings). If the claimant has an

impairment that meets all the criteria of a Listing, the claimant is presumed to be disabled

and is entitled to benefits. Otherwise, the ALJ proceeds to step four.

At step three, the ALJ found that Plaintiff’s physical and mental impairments do not

meet or equal the criteria for any Listing, specifically noting Listings under Sections 1.00

(Musculoskeletal system) and 12.00 (Mental disorders), as well as the criteria set forth in

Social Security Ruling (SSR) 19-2p regarding obesity. (R. 13-15).2

2 Because the issues in this appeal relate only to Plaintiff’s physical impairments, the

Opinion and Order does not detail the ALJ’s findings with respect to her mental

impairments.

At step four, the claimant must show that her impairment or combination of

impairments prevents her from performing work she has performed in the past. If the

claimant can perform her previous work, she is not disabled. Step four includes three

distinct phases. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). The ALJ first

determines the claimant’s residual functional capacity (RFC) based on all the relevant

medical and other evidence. 20 C.F.R. § 404.1520(e). The ALJ next determines the

physical and mental demands of the claimant’s past relevant work. Winfrey, 92 F.3d at

1023 (citing 20 C.F.R. § 404.1520(e)). Finally, the ALJ determines whether the RFC from

phase one allows the claimant to meet the job demands found in phase two. Id.

Here, the ALJ determined that Plaintiff has the RFC

to perform sedentary work as defined in 20 CFR 404.1567(a) and

416.967(a) with additional limitations. [Plaintiff] should not climb

ropes ladders, or scaffolds. She should not crawl or stoop.

Crouching, kneeling, balancing, and climbing of ramps or stairs can

be done occasionally. Due to mental impairments, [Plaintiff] can

understand, remember, and carry out simple or intermediate level

instructions, and perform simple and some tasks of intermediate

level difficulty under routine supervision, such that she is capable of

doing simple or semi-skilled work. [Plaintiff] can maintain

concentration and persist for two-hour periods during the workday

with normally scheduled work breaks between periods. [Plaintiff]

can relate to supervisors and co-workers on a superficial and work-

related basis and can adapt to a work situation. [Plaintiff] can have

occasional contact with the general public.

(R. 16). Citing the VE’s hearing testimony in response to a hypothetical reflecting these

limitations, the ALJ found that Plaintiff cannot return to her past relevant work due to her

mental impairments. (R. 24). Accordingly, the ALJ proceeded to step five.

If the claimant satisfies her burden at steps one through four—thus establishing a

prima facie case of disability—the burden of proof shifts to the Commissioner to show at

step five that the claimant retains the capacity to perform other work available in significant

numbers in the national economy, in light of the claimant’s age, education, and work

experience. Id.

Here, citing the VE’s hearing testimony, the ALJ determined that Plaintiff can

perform the requirements of “representative occupations,” such as:

 Optical Goods Assembler, DOT # 713.689-018; sedentary exertion, with a

specific vocational preparation (SVP) level of 2; unskilled; with 72,000 jobs

estimated nationally;

 Table Worker, DOT # 739.687-182; sedentary; SVP level 2; unskilled; with

192,000 jobs estimated nationally; and

 Small Product Assembler, DOT # 706.684-030; sedentary; SVP level 2;

unskilled; with 98,000 jobs estimated nationally.

(R. 25). The ALJ found that these jobs exist in significant numbers in the national economy.

(R. 25-26). Accordingly, the ALJ found Plaintiff not disabled at step five. (R. 26).

IV. Discussion

A. Listing 1.02

Plaintiff argues that her impairments meet or medically equal the criteria of Listing

1.02 for major dysfunction of a joint. Under the regulations applicable to Plaintiff’s claim,

Listing 1.02 requires evidence of

gross anatomical deformity (e.g., subluxation, contracture, bony or

fibrous ankylosis, instability) and chronic joint pain and stiffness

with signs of limitation of motion or other abnormal motion of the

affected joint(s), and findings on appropriate medically acceptable

imaging of joint space narrowing, bony destruction, or ankylosis of

the affected joint(s).

20 C.F.R. § 404, Subpt. P, App’x 1 (effective Dec. 15, 2017 to Apr. 1, 2018). As applicable

to Plaintiff’s claim, the claimant must also establish the “[i]nvolvement of one major

peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate

effectively, as defined in 1.00B2b.” Id. (emphasis added). An inability to ambulate is

defined as “an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes

very seriously with the individual’s ability to independently initiate, sustain, or complete

activities.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00.3

Under the Commissioner’s regulations, Plaintiff had the burden to prove that she

was unable to ambulate effectively for a continuous period of 12 months. See Lax, 489 F.3d

3 Listing 1.00B2b(2) explains that

[t]o ambulate effectively, individuals must be capable of sustaining

a reasonable walking pace over a sufficient distance to be able to

carry out activities of daily living. They must have the ability to

travel without companion assistance to and from a place of

employment or school. Therefore, examples of ineffective

ambulation include, but are not limited to, the inability to walk

without the use of a walker, two crutches or two canes, the inability

to walk a block at a reasonable pace on rough or uneven surfaces,

the inability to use standard public transportation, the inability to

carry out routine ambulatory activities, such as shopping and

banking, and the inability to climb a few steps at a reasonable pace

with the use of a single hand rail. The ability to walk independently

about one’s home without the use of assistive devices does not, in

and of itself, constitute effective ambulation.

Id. § 1.00B2b1.

at 1084. “[S]pecific medical findings” are required to meet the criteria of a Listing. See

Lax, 489 F.3d at 1085 (citing 20 C.F.R. § 404.1525).

Here, the ALJ acknowledged objective medical evidence in the record documenting

Plaintiff’s osteoarthritis. (R. 14). However, the ALJ concluded that Plaintiff’s impairments

do not meet or equal a Listing, because Plaintiff “maintained the ability to ambulate

effectively.” Id. The ALJ concluded, for instance, that Plaintiff did not require the use of

an assistive device for walking before she had bilateral hip replacement surgeries in 2019.

(See R. 24). Plaintiff testified that before the surgeries, she sometimes used a walker. (R.

17). However, during a consultative examination with Ashlin Paz, D.O. on September 15,

2018, Plaintiff reported that she did not require an assistive device to ambulate. (R. 21).

Dr. Paz observed that Plaintiff “moved about the room with a normal gait, with normal

safety and stability.” (R. 21). Dr. Paz concluded that, although Plaintiff exhibited a slow

pace and “limited hip flexion when walking” during the examination, she did not require

the use of assistive devices to walk. Id.

Furthermore, on January 8, 2019, Kenneth Reed, M.D. observed that Plaintiff

“ambulated without difficulty,” despite her complaints of pain. (R. 18-19). On September

19, 2019, Justin Reid, M.D., an orthopedic surgeon, observed that, while Plaintiff displayed

a “very antalgic gait,” she was “not currently using a cane or walker.” (R. 19, 794). Plaintiff

also reported to Dr. Reid that she could “walk about a block,” although she was limited by

pain. (R. 794). And in January 2020, shortly after her second hip surgery, Plaintiff “was

walking with minimal gait disturbance.” (R. 23).

As such, substantial evidence supports the ALJ’s conclusion that Plaintiff’s

impairments do not meet or equal Listing 1.02, even prior to her surgeries. See 20 C.F.R.

pt. 404, subpt. P, app. 1, § 1.00B2b1 (inability to ambulate effectively could be shown by

inability “to walk a block at a reasonable pace on rough or uneven surfaces”). Furthermore,

Plaintiff does not point to any medical opinion that she is unable to ambulate effectively.

Nor has the Court located evidence that Plaintiff reported being unable to walk without an

assistive device. In contrast, two state agency physicians who reviewed Plaintiff’s record

opined that she could stand and/or walk up to two hours in a workday. (See R. 24).

Plaintiff points to her testimony that walking is difficult and exacerbates her pain,

and that she uses a motorized cart when shopping. (See Doc. 15 at 5-6). However, other

statements in the record indicate that Plaintiff is able to go out alone (R. 285), can do her

own laundry (R. 284), and goes to church (R. 298). Where substantial evidence supports

the ALJ’s decision, as it does here, the fact that Plaintiff would weigh the evidence

differently does not constitute reversible error. See Oldham v. Astrue, 509 F.3d 1254, 1257-

58 (10th Cir. 2007) (on appeal, court reviews only sufficiency of evidence, not its weight);

Lax, 489 F.3d at 1084 (court may not reweigh evidence and displace agency choice

between two fairly conflicting views). Accordingly, the Court cannot reverse the ALJ’s

step-three findings on this basis. See id. (internal citations and alterations omitted) (“‘The

possibility of drawing two inconsistent conclusions from the evidence does not prevent an

administrative agency’s findings from being supported by substantial evidence.’ We may

not ‘displace the agency’s choice between two fairly conflicting views, even though the

court would justifiably have made a different choice had the matter been before it de

novo.’”).

Alternatively, Plaintiff argues that the ALJ failed to articulate adequate reasons for

finding she does not meet or medically equal Listing 1.02. The Social Security Act requires

the Commissioner to make findings of fact based on the evidence and to discuss the

evidence, stating the reasons for an unfavorable decision. 42 U.S.C. § 405(b)(1). The ALJ

“must consider all evidence in making a finding that an individual’s impairment(s) does

not medically equal a listing.” SSR 17-2p. However, if the ALJ “believes that the evidence

already received in the record does not reasonably support a finding that the individual’s

impairment(s) medically equals a listed impairment, the [ALJ] is not required to articulate

specific evidence supporting his or her finding that the individual’s impairment(s) does not

medically equal a listed impairment.” SSR 17-2p. Rather, the ALJ’s “articulation of the

reason(s) why the individual is or is not disabled at a later step in the sequential evaluation

process will provide rationale that is sufficient for a subsequent reviewer or court to

determine the basis for the finding about medical equivalence at step 3.” Id.

Under this standard, the ALJ reasonably found that Plaintiff does not satisfy the

“inability to ambulate effectively” criterion of Listing 1.02. As set forth above, the ALJ

articulated good reasons for this conclusion. See SSR. 17-2p. Nothing further was required,

and Plaintiff has shown no reversible error at step three.

B. RFC

Plaintiff argues that the RFC is not supported by substantial evidence, because the

ALJ failed to properly consider both her subjective statements and objective medical

evidence showing that she cannot sit upright for the duration required by sedentary work.

Plaintiff testified as follows regarding her part-time work as an operations manager:

Q: Do you have a special chair when you’re at your work location?

A: Yes.

Q. Is it designed specifically for your impairment? Or . . . what’s

special about it?

A: It’s just . . . my boss’s chair. He lets me sit in it because it’s more

comfortable for me. . . . It reclines back a little bit. It has armrests.

It’s very cushioned and I have a pillow underneath it also I sit on.

Q: And what’s your longest work shift currently?

A: I try to do four hours a day, five hours. It’s spaced out, so I can

work a couple hours in the morning if I want and then maybe some

in the evening just as long as I try to get the work done that needs to

be done for that day. . . .

Q: And when you work at home . . . where do you work, from bed,

from the chair?

A: From a reclining chair.

Q: And have you always done that?

A: To be able to be comfortable and work, yeah.

Q: And do you work a set shift when you’re working this job?

A: . . . I try to get started at nine and . . . sometimes I do two or three

in the morning and then . . . some in the afternoon or the evening.

It’s just pretty flexible. What I can’t do my boss picks up the slack.

Q: So if you have an unfinished project at the end of the day you let

the boss know?

A: Yes, I didn’t get to this today, I wasn’t feeling well or just

whatever the case may be and he will pick up the slack.

. . .

Q: Now do you sit in the chair . . . the entire four-hour shift?

A: No.

Q: How long can you sit before you have to change positions?

A: It just depends. I move my legs around a lot to try to get

positioned right. I stand up, sit down maybe, I don’t know, 15

minutes, sometimes 30 minutes. It just depends on how I’m feeling

that day.

Q: And do you have to take breaks while the shift is going on?

A: Yeah. . . . maybe three times, three or four times.

Q: Three or four times. How long would each break be?

A: I usually try to keep it under 30 minutes maybe.

. . .

Q: Now if you’re not feeling well can you cut your shift short or shift

work to later in the day?

A: Yes, as I said before, sometimes a couple hours in the morning,

in the evening. If I have a doctor’s appointment, I will leave and go

to my doctors’ appointments, come back and pick up just whatever

I need to do to make sure that the work is done . . . .

Q: So your employer will allow you to do that as long as the work is

done?

A: Yes, he’s very lenient.

(R. 68-71). Later during the hearing, the VE testified that there are no jobs for an individual

who “would only be able to sit intermittently for no more than four hours out of an eight-

hour day and can stand or walk for only about one hour per day,” with the remaining time

spent on “unscheduled breaks of indefinite duration resting in a reclining or other position

as necessary to alleviate chronic pain.” (R. 83-84). The VE also stated that competitive

employment would be precluded for a hypothetical claimant who would need to recline

during the workday with her feet elevated to approximately waist-level. (R. 85-86).

Because the ALJ rejected the above hypothetical limitations in determining

Plaintiff’s RFC, the ALJ was required to explain how he weighed Plaintiff’s testimony and

other subjective statements regarding her limitations in sitting for prolonged periods. See

SSR 16-3p (ALJ’s decision must provide “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 [ALJ]

evaluated the individual’s symptoms”). In evaluating such statements, an ALJ must

consider: “(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.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna

v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)).4

In assessing the intensity and persistence of a claimant’s pain, the Commissioner

4 While the Commissioner now describes the analysis as involving a two-step

process, the current regulatory policy generally comports with the approach as outlined in

previous cases, including Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) and Keyes-

Zachary v. Astrue, 695 F.3d 1156 (10th Cir. 2012). See Paulek v. Colvin, 662 F. App’x

588, 593-94 (10th Cir. 2016) (unpublished). (Under 10th Cir. R. 32.1(A), “[u]npublished

decisions are not precedential, but may be cited for their persuasive value.”).

will consider all of the evidence presented, including information about your

prior work record, your statements about your symptoms, evidence submitted

by your medical sources, and observations by our employees and other

persons. . . . Factors relevant to your symptoms, such as pain, which we will

consider include:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or

other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication you take or have taken to alleviate your pain or other

symptoms;

(v) Treatment, other than medication, you receive or have received for

relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and

restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c); see also Branum v. Barnhart, 385 F.3d 1268, 1273-74 (10th Cir.

2004) (quoting Hargis v. Sullivan, 945 F2d. 1482, 1489 (10th Cir. 1991)) (describing

several similar factors which should be analyzed); see also Keyes-Zachary, 695 F.3d at

1167.

Here, the ALJ found that Plaintiff’s symptoms were not as disabling as alleged

during the period prior to her hip surgeries. The ALJ cited two reasons for finding Plaintiff

was not as limited as alleged: (1) her ability to sustain work activity on a part-time basis,

and (2) evidence that prior to the surgeries, Plaintiff did not require the use of assistive

devices to ambulate. (R. 24). Only the former reason relates to Plaintiff’s ability to remain

seated during a workday.

In light of all evidence in the record, substantial evidence does not support the RFC

determination for sedentary work with additional limitations. Although the ALJ cited

Plaintiff’s part-time work history in explaining the RFC determination, the ALJ did not

address why he discounted Plaintiff’s allegations that she required frequent breaks and

needs to be in a reclining position in order to complete a four-hour shift at her part-time

job. While an ALJ’s evaluation of symptom allegations “warrant particular deference,”

White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001), the ALJ must set forth the specific

evidence he relies on in evaluating a claimant’s subjective symptoms, and must give

specific reasons for his findings that are closely linked to substantial evidence. See White

v. Massanari, 271 F3d. 1256, 1261 (10th Cir. 2001); Kepler v. Chater, 68 F.3d 387, 390

(10th Cir. 1995).

Additionally, the ALJ’s decision did not address any potential link between the

objective medical evidence and Plaintiff’s alleged sitting limitations. During a consultative

examination in September 2018 (prior to Plaintiff’s hip surgeries), Dr. Paz found that

Plaintiff’s bilateral hip flexion is limited to 60 degrees, compared to a full range of motion

of 100 degrees. (R. 684). Dr. Paz also noted that Plaintiff had “significant pain” with hip

flexion bilaterally. Id. Plaintiff’s passive hip extension was noted to be 30 degrees

bilaterally, representing a full range of motion, but with pain. See id. Bilateral hip abduction

and internal rotation were both noted to be 30 degrees out of a full range of motion of 40

degrees, with pain. Id.

The ALJ acknowledged that Dr. Paz found a “decreased range of motion of

[Plaintiff’s] bilateral hips with extension, flexion, and abduction.” Id. The ALJ also noted

that x-rays from September 7, 2018 showed severe osteoarthritis in both hips. See id.

However, the ALJ did not discuss any further details of Dr. Paz’s range-of-motion findings.

Plaintiff asserts that most sedentary work requires 90-degree flexion of the hips,

which exceeds the limitations observed by Dr. Paz. (Doc. 15 at 8-9). Plaintiff also notes,

correctly, that sedentary work requires the ability to sit for up to six hours in an eight-hour

workday. Id. Plaintiff argues that her testimony, as well as objective evidence from Dr.

Paz’s report, support additional limitations in sitting.

Defendant contends that the ALJ properly relied on the opinions of two state agency

reviewing physicians. The agency consultants concluded that Plaintiff retains an RFC for

sedentary work involving six hours of sitting per eight-hour workday. (R. 23). Defendant

also correctly notes that the record lacks a medical source statement or examining medical

opinion directly addressing Plaintiff’s ability to sit. In appropriate circumstances, the

reviewing physicians’ opinions could be considered substantial evidence supporting the

ALJ’s RFC determination. See Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)

(“The non-examining physician’s opinion is an acceptable medical source, which the ALJ

was entitled to consider.”); Franklin v. Astrue, 450 F. App’x 782, 790 (10th Cir. 2011)

(unpublished); see also Sturgeon v. Colvin, No, 15-cv-52-PJC, 2016 WL 1248905, at *7

(N.D. Okla. Mar. 29, 2016) (finding that opinions of agency nonexamining consultants

were substantial evidence that supported the ALJ’s RFC assessment).

Here, however, the record before the ALJ included additional, subsequent hearing

testimony that Plaintiff is unable to sit for the duration of a four-hour shift at her part-time

job, as well as objective medical evidence consistent with those allegations. As such, the

ALJ had a duty to address objective medical evidence, including Dr. Paz’s range-of-motion

findings, in weighing Plaintiff’s statements. The failure to do so is error, because the ALJ

was required to consider all of the evidence in determining whether Plaintiff’s pain was

disabling. See Keyes-Zachary, 695 F.3d at 1166-67.

Furthermore, Plaintiff’s testimony undermines the ALJ’s sole reason for finding that

she can sit for six hours in an eight-hour workday. The ALJ’s proffered reason—the fact

that Plaintiff had been performing part-time work—ignores Plaintiff’s testimony about her

need for frequent and extended breaks from sitting during her part-time shifts. Plaintiff also

testified that she required help from her mother when putting on her socks and shoes, due

to her limited range of motion. (R. 17, 76). As the ALJ noted during the hearing, a “total

hip replacement [is] not usual” for a person of Plaintiff’s age (33 to 34 at the time of her

surgeries). (R. 58-59). Plaintiff’s “hips had to be in pretty bad shape . . . for them to do

that.” (R. 59).

In these circumstances, Plaintiff’s ability to sustain work activity on a part-time

basis, alone, is not substantial evidence that Plaintiff can sustain seated work for up to six

hours in an eight-hour workday. See 20 C.F.R. §§ 404.1571-76, 416.971-76 (while

Commissioner may consider as evidence the fact that a claimant performed work below

the level of substantial gainful activity, “[i]f your work is done under special conditions,

we may find that it does not show that you have the ability to do substantial gainful

activity”). Additionally, because Plaintiff’s part-time work is the only basis the ALJ’s

decision cited for rejecting Plaintiff’s alleged sitting limitations, the Court cannot

determine whether the ALJ considered the appropriate factors in evaluating Plaintiff's

subjective statements. See 20 C.F.R. § 404.1529, 416.929.

The Court notes that the ALJ hearing occurred shortly after Plaintiffs hip surgeries,

and therefore Plaintiff's testimony related primarily to her limitations prior to 2020.

Plaintiff does not contend that she remained so limited after the procedures, and she

testified that she hoped to return to work full-time after recovering from surgery. (R. 77;

see also R. 74 (Plaintiff's counsel indicated that “if we had a crystal ball we might amend

to a closed period” of disability, due to Plaintiff's expected improvement following

surgery)). However, remand is necessary to determine whether Plaintiff was under a

disability during any 12-month period between the amended alleged onset date (February

6, 2018) and Plaintiffs recovery post-surgery.

V. Conclusion

For the reasons set forth above, the Court finds the ALJ’s RFC determination is not

supported by substantial evidence and does not reflect the application of proper legal

standards. Therefore, the decision of the Commissioner finding Plaintiff not disabled for

the relevant period is reversed and remanded for further proceedings consistent with this

opinion.

ORDERED this 22nd day of March, 2022.

CUnristere Q Liber

Christine D. Little

United States Magistrate Judge

18