Summers v. Astrue

Full title: KIMBERLY D. SUMMERS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the…

Court: United States District Court, W.D. Oklahoma

Date published: Mar 21, 2011

NO. CIV-10-0311-HE (W.D. Okla. Mar. 21, 2011)

Opinion

NO. CIV-10-0311-HE.

March 21, 2011

ORDER

JOE HEATON, District Judge

Plaintiff Kimberly D. Summers filed this case seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her supplemental security income benefits. Consistent with 28 U.S.C. § 636(b)(1)(B), the case was referred to Magistrate Judge Valerie K. Couch, who recommends that the Commissioner's decision be reversed and the matter remanded for further proceedings. The magistrate judge found the administrative law judge ("ALJ") committed error when the ALJ did not present the vocational expert with a hypothetical question including all of plaintiff's impairments during the ALJ's step-five analysis. Report and Recommendation [Doc. # 16].

The parties, having failed to object to the Report and Recommendation, waived their right to appellate review of the factual and legal issues it addressed. United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). See 28 U.S.C. § 636(b)(1)(C); LCvR72.1(a). Accordingly, the court adopts Magistrate Judge Couch's Report and Recommendation, REVERSES the final decision of the Commissioner and REMANDS the case for further proceedings consistent with the Report and Recommendation, a copy of which is attached to this order.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

Plaintiff, Ms. Kimberly D. Summers, seeks judicial review of a denial of supplemental security income benefits (SSI) by the Social Security Administration. This matter has been referred for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). It is recommended that the Commissioner's decision be reversed and remanded for further proceedings consistent with this Report and Recommendation.

I. Procedural Background

II. The ALJ's Decision

See See Fisher-Ross v. Barnhart431 F.3d 729 731^th20 C.F.R. § 416.92020 C.F.R. Part 404

The ALJ next determined Ms. Summers' residual functional capacity (RFC):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work with a sit/stand option. The claimant can perform simple jobs, relate adequately to co-workers and supervisors and work in a low stress atmosphere with minimal interaction with the general public.

AR 15.¹ At step four, the ALJ concluded that Ms. Summers is unable to perform her past relevant work as delivery driver or sales representative. AR 20.

1 The ALJ concurred with "state mental health experts" in finding that Ms. Summers' nonexertional mental limitations would restrict her to jobs performed in a "low stress atmosphere" and found "substantial support" in the record for their opinions and conclusions. See AR 18. See also AR 262.

At step five, the ALJ concluded that there are jobs existing in significant numbers in the national economy that Ms. Summers could perform. Based on the testimony of the vocational expert (VE), the ALJ found that Ms. Summers is able to perform unskilled sedentary occupations in the broad categories of assembly jobs and machine tender jobs. The ALJ further stated that the testimony of the VE is consistent with information contained in the Dictionary of Occupational Titles (DOT). AR 21.²

2 This conclusory statement is not supported by the record. The ALJ failed to question the VE about the consistency of her testimony with information found in the DOT. See AR 341-344.

III. Standard of Review

IV. Issues Raised on Appeal

See Poppa v. Astrue 569 F.3d 11671169^th Doyal v. Barnhart331 F.3d 758760^th Branum v. Barnhart385 F.3d 12681270^th Wall v. Astrue561 F.3d 10481052^th Bowman v. Astrue511 F.3d 12701272^th

V. Analysis

Ms. Summers contends that the ALJ erred in relying on incompetent vocational evidence to support his step-five finding that jobs Ms. Summers could perform exist in significant numbers in the national economy despite her impairments and limitations. As Ms. Summers correctly notes, the ALJ's hypothetical question to the VE did not include the need to identify work which could be performed in a "low stress atmosphere." See supra at note 2. Additionally, the ALJ did not ask the VE whether her testimony conflicted with information in the DOT. These points are well-taken. The faulty hypothetical question and the vague, imprecise job titles identified by the VE preclude meaningful review of the ALJ's decision.

At the administrative hearing, the ALJ's question to the VE did not include the necessity of identifying jobs which are performed in a low stress atmosphere:

I don't know what I'm going to find when I read all of those lovely documents in this yellow folder, and the ones dealing with her health problems. But assume for the minute that I find she can do sedentary work with a stand/sit option or a sit/stand option. If she can do that kind of work, are there jobs present in the economy that she probably could perform?

AR 342. Based on transferable skills Ms. Summers should have gained from her past relevant work, the VE identified several skilled and semi-skilled jobs. AR 342. Ms. Summers' counsel then provided the VE with the following hypothetical question:

Now if an individual could only perform simple non-complex and non-detailed type job instructions, and could only interact with the public on a superficial basis, what impact would that have on the jobs you've identified?

AR 343. The VE answered that all skilled and semi-skilled jobs previously identified would be eliminated leaving only sedentary unskilled jobs. The ALJ then asked the VE to identify sedentary unskilled jobs with the hypothetical restrictions outlined by Ms. Summers' counsel. The VE identified sedentary unskilled assembly jobs of which, she testified, there are an estimated 70,000 in the national economy, and sedentary unskilled machine tender operator jobs of which, she testified, there are an estimated 38,000 nationwide. AR 343-344.

In his step-five determination, the ALJ relied upon the VE's testimony and found that Ms. Summers could perform the sedentary unskilled jobs identified by the VE ( i.e., assembly jobs and machine tender jobs). Yet the VE was never presented with a question regarding the existence of those jobs which could be performed in a "low stress atmosphere." Citing Wendelin v. Astrue, 366 Fed. Appx. 899 (10^th Cir. Feb. 19, 2010) (unpublished op.), the Commissioner argues that "unskilled work takes into account the necessity to work in a low stress environment." Social Security Response Brief [Doc. #15] at 29. The issue in Wendelin, however, was whether a person with impaired concentration could perform unskilled work. The Tenth Circuit held that the "ALJ did take into account" the claimant's limited ability to concentrate "by confirming with the VE that all of the jobs she identified had a specific vocational preparation (SVP) of two." Id. at 904.³ Wendelin does not address the issue presented in this case — whether unskilled sedentary work, by its nature, is work performed in a low stress atmosphere.

3 Specific Vocational Preparation (SVP) is defined as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT Appendix C, 1991 WL 688702. An SVP of 2 is defined as "[a]nything beyond a short demonstration up to and including 1 month." Id.

Because the VE was never presented with a hypothetical question including all of Ms. Summers' impairments, the ALJ's step-five finding — that there are jobs Ms. Summers could perform existing in significant numbers in the national economy — is not supported by substantial evidence. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10^th Cir. 1991) (testimony elicited by hypothetical questions that do not relate with precision all of the claimant's impairments cannot constitute substantial evidence to support the Commissioner's decision).

RECOMMENDATION

It is recommended that the Commissioner's decision be reversed and remanded for further proceedings consistent with this Report and Recommendation.

NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by March 16^th , 2011. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10^th Cir. 1991).

STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the District Judge in this matter.

ENTERED this 22^nd day of February, 2011.