Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES D. P.,1 )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 25-1077-JWL
FRANK BISIGNANO, )
Commissioner of Social Security, )
)
Defendant. )
______________________________________)
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Social Security Disability Insurance (SSDI) benefits and Supplemental Security
Income (SSI) benefits pursuant to sections 216(i), 223, and 1614(a)(3)(A) of the Social
Security Act, 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3)(A) (hereinafter the Act). Finding
error in the Administrative Law Judge’s (ALJ’s) consideration of the inconsistencies
between the physical demands of Plaintiff’s past relevant work (PRW) and the residual
functional capacity (RFC) assessed, the court ORDERS that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the Commissioner’s
final decision for further proceedings consistent herewith.
1 The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of disability claimants, it has determined to
caption Social Security decisions using only the initial of the Plaintiff’s last name.
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I. Background
Plaintiff protectively filed an application for SSDI benefits on January 6, 2022,
and an application for SSI benefits on January 20, 2022. (R. 17, 176-92). After
exhausting administrative remedies before the Social Security Administration (SSA),
Plaintiff filed this case seeking judicial review of the Commissioner’s decision pursuant
to 42 U.S.C. § 405(g).
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). “Substantial evidence” refers to
the weight, not the amount, of the evidence. It requires more than a scintilla, but less
than a preponderance; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
Consequently, to overturn an agency’s finding of fact the court “must find that the
evidence not only supports [a contrary] conclusion, but compels it.” I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
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Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (brackets in
Bowling)). Nonetheless, the determination whether substantial evidence supports the
Commissioner’s decision is not simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion.
Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation process. Id.
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The Commissioner next evaluates steps four and five of the process—determining
at step four whether, considering the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, he is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the
burden is on Plaintiff to prove a disability that prevents performance of past relevant
work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter,
245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs in the economy which are
within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). The ALJ made his determination at step four and found that Plaintiff could
perform his PRW as he had performed it. Therefore, he did not continue to step five to
determine whether other work existed in the economy of which Plaintiff is capable. The
court addresses the error alleged in Plaintiff’s Social Security Brief.
II. Discussion
Plaintiff acknowledges the ALJ found him capable of performing his PRW as a
forklift operator and as a carpenter supervisor as he previously performed each job at the
light exertion level. (Pl. Brief 5). Plaintiff points to the Work History Report he
completed and states that he had to sit and to climb for eight hours per workday as a
forklift driver, and to stand and to walk ten hours per workday and to lift/carry fifty
pounds as a carpenter. Id. at 6 (citing R. 260, 261-64). He claims the ALJ erred by
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failing “to resolve a material conflict between the Plaintiff’s documented account of his
job duties and the vocational expert’s [(VE’s)] testimony.” Id. at 5. And he claims:
Despite the stark inconsistency, the ALJ failed to elicit any testimony from
the VE reconciling how Plaintiff’s self-described job duties, which included
sitting, standing, and walking for over 6 hours in an 8-hour day, lifting 50
lbs. or more, and climbing for 8 hours as a forklift operator, could be
consistent with a limitation to sit/stand/walk no more than 6 hours in an 8-
hour day, lifting no more than 20 lbs., occasionally climbing ramps/stairs,
and never climbing ladders/ropes/scaffolds/heights.
Id. at 6.
The Commissioner points out that although Plaintiff argues his work as a
construction supervisor involved lifting 50 pounds, his Work History Report reveals he
performed one construction supervisor job at the light exertion level, and he reported his
forklift operator job “involved no heavy lifting and no substantial exertion.” (Comm’r
Br. 5)2 (citing R. 260, 262). He also points out the VE “provided testimony about the
demands of Plaintiff’s past work [as a] carpentry supervisor and [as a] forklift operator as
performed. Id. (citing R. 54-55).
The Commissioner argues Plaintiff bears the burden to demonstrate he cannot
perform his past relevant work, at the hearing Plaintiff was represented by counsel who
did not question the VE’s testimony regarding his PRW, and “[t]he ALJ should be
‘entitled to rely on the claimant’s counsel’ to ‘adequately explore’ his claims.” Id. at 6
(quoting Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004); and citing Glass v.
Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994) (declining to remand for further
2 The Commissioner’s Brief does not include page numbers, and the court uses the page
numbers assigned by its .pdf software.
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examination of the VE, where claimant’s counsel said he had no objections to the
expert’s testimony); and Gay v. Sullivan, 986 F.2d 1336, 1340 n.2 (10th Cir. 1993)
(rejecting challenge to VE testimony where claimant’s counsel did not adequately cross-
examine the expert at the hearing)). Plaintiff reiterates his arguments in his Reply Brief
and distinguishes Branum and Gay. (Reply 2-3).
A. Standard for Evaluating Past Relevant Work at Step Four
At step four of the sequential evaluation process, the ALJ is required to make
specific findings in three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)
(citing Soc. Sec. Ruling (SSR) 82-62, 1975-1982 West=s Soc. Sec. Reporting Serv.,
Rulings 809 (1983)). In phase one, “the ALJ should first assess the nature and extent of
[the claimant’s] physical limitations.” Winfrey, 92 F.3d at 1023. In phase two, the ALJ
must “make findings regarding the physical and mental demands of the claimant’s past
relevant work.” Winfrey, 92 F.3d at 1024. Finally, in phase three, the ALJ must
determine “whether the claimant has the ability to meet the job demands found in phase
two despite the mental and/or physical limitations found in phase one.” Id., 92 F.3d at
1023. These findings are to be made on the record by the ALJ. Id. at 1025; see also, SSR
82-62, 1975-1982 West’s Soc. Sec. Reporting Serv., Rulings, at 813 (“decision must
contain ... specific findings of fact” regarding each of the three phases).
The Tenth Circuit has explained that an ALJ may properly rely upon VE
testimony in making his findings at phase two and phase three of step four. Doyal v.
Barnhart, 331 F.3d 758, 761 (10th Cir. 2003). The ALJ may not delegate the step-four
analysis to the VE. He may, however, rely on information supplied by the VE regarding
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the demands of Plaintiff’s past relevant work and whether a person with Plaintiff’s RFC
could meet those demands, and he may accept the VE’s opinions. Doyal, 331 F.3d at
761. The critical distinction is whether the ALJ relied upon the VE testimony in making
the findings or whether the ALJ delegated the phase two and phase three findings to the
VE. Id. 331 F.3d at 761. Where the ALJ made the phase two and three findings and
merely quoted the VE testimony approvingly in support of those findings, he has properly
relied upon the VE testimony. Id.
B. The ALJ’s Findings
The ALJ found Plaintiff’s RFC
limited to lifting no more than 20 pounds occasionally, and 10 pounds
frequently, able to sit, stand and walk no more than 6 hours in 8-hour day,
occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl.
No climbing ladders, ropes, scaffolding or unprotected heights. Occasional
reaching and working overhead, with no limitation in any other directions.
(R. 21) (finding no. 6, bold omitted).
The court quotes the entirety of the ALJ’s step four analysis:
7. The claimant is capable of performing past relevant work as a
forklift operator, DOT #921.683-050, (light-as performed), semi-skilled
(SVP-3), and carpenter supervisor, DOT #860.137-010, (light as
performed), skilled (SVP-7). This work does not require the
performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565 and 416.965).
Specifically, regarding the above jobs, the vocational expert testified the
claimant could perform the job of carpenter supervisor job [sic], with 63
percent of those jobs requiring no overhead reaching, and only 8 percent
requiring occasional reaching. She also testified for the forklift operator
job, 50 percent of those jobs require no overhead reaching, and only 27
percent of the jobs require occasional overhead reaching. As noted above,
occasional reaching is consistent with the above-stated residual functional
capacity.
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She further testified the DOT does not differentiate between the different
types of reaching, with her stating she relied on the occupational
requirement survey from the Bureau of Labor Statistics, which breaks down
the physical requirements of jobs.
In comparing the claimant’s residual functional capacity with the physical
and mental demands of this work, the undersigned finds that the claimant is
able to perform the above jobs as actually performed, based on the
testimony of the vocational expert, and her testimony is consistent with the
DOT, other than as discussed above.
(R. 30) (bold in original).
C. Analysis
Both the VE and the ALJ are correct that Plaintiff reported that his PRW consisted
of light exertion in terms of lifting and carrying. Plaintiff reported that he lifted less than
10 pounds in his job as a forklift operator (R. 260) which is sedentary lifting, but the VE
explained, “I would assume that with some climbing onto and off of that [forklift] it
would be at light, rather than sedentary” and the ALJ obviously accepted that
explanation. (R. 55). Plaintiff’s objection that his construction supervisor job required
lifting 50 pounds fails because he reported four jobs as a construction supervisor and
although in two of the jobs he reported 50 pounds as the heaviest weight lifted (R. 261,
264), in one he reported 20 pounds as the heaviest weight lifted; id., 262; and in one he
left that question blank. Id. 263. The court finds no error in this regard.
However, Plaintiff also argues that in his PRW as a forklift driver and construction
supervisor he sat, stood, walked, and/or climbed more than the ALJ assessed his
capabilities in the RFC. The ALJ assessed Plaintiff with the capability to perform less
than the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
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limiting him “to lifting no more than 20 pounds occasionally, and 10 pounds frequently,”
“to sit, stand and walk no more than 6 hours in 8-hour day,” and to “occasionally climb
ramps, [and] stairs” with “[n]o climbing ladders, ropes, [or] scaffolding.” (R. 21)
(bolding omitted). He also found Plaintiff
is capable of performing past relevant work as a forklift operator, DOT
#921.683-050, (light-as performed), semi-skilled (SVP-3), and carpenter
supervisor, DOT #860.137-010, (light as performed), skilled (SVP-7). This
work does not require the performance of work-related activities precluded
by the claimant’s residual functional capacity (20 CFR 404.1565 and
416.965).
Id. 30 (bold omitted). The ALJ does not cite his source for finding Plaintiff’s PRW was
performed at the light exertional level, but either he accepted the VE’s testimony to that
effect; id., 54-55; or he looked at Plaintiff’s Work History Report and determined it was
light work based upon Plaintiff’s report of the weight lifted in those jobs. Id. 260, 262-
63. In either case, he erred.
The record reveals Plaintiff reported his job as a forklift driver was ten-hour days,
six days a week and he sat and climbed 8 hours each in a day; id., 260; he reported the
carpenter supervisor job in which he clearly did light exertion was twelve-hour days, six
days a week and he walked and stood ten hours each in a day; id., 262; in the carpenter
supervisor job in which he provided no lifting requirements, he reported ten-hour days,
six days a week, also with ten hours each of walking and standing each day. Id., 263.
SSR 96-8p explains, “RFC is an assessment of an individual's ability to do sustained
work-related physical and mental activities in a work setting on a regular and continuing
basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an
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equivalent work schedule.” 1996 WL 374184, *1 (SSA July 2, 1996). Ten or twelve
hours each day for six days a week is not an equivalent work schedule to eight hours a
day for five days a week. It is error to find that it is—without at least some explanation
regarding the ALJ’s rationale for determining that an individual capable of light exertion
work and sitting, standing, and walking six hours in an eight-hour workday, five days a
week is able to stand and walk for longer periods in a longer workday for more days in
the week; or justifying rejecting Plaintiff’s report of the requirements of his PRW; or
showing that other forklift driver or construction supervisor jobs exist in the national
economy requiring only light exertion, only six hours sitting, standing, and walking in a
workday; only eight-hour workdays, only five days a week; and in sufficient numbers to
justify finding that they are available to an individual such as Plaintiff. Finally, in
addressing the forklift driver job, there must be some explanation of the rationale that the
capability for occasional climbing ramps and stairs is sufficient capability in a forty-hour
workweek to substitute for climbing eight hours a day in ten-hour days, six days a week.
Here, it appears the ALJ delegated the step four, phase two and three findings to
the VE (R. 56), accepted her findings, and did not fully investigate the facts behind those
findings himself as discussed above. This is error requiring remand. Doyal, 331 F.3d at
761.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) REMANDING the Commissioner’s final decision
for further proceedings consistent herewith.
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Dated April 7, 2026, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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