Opinion
Case No. 03-2580-JWL.
August 6, 2004
MEMORANDUM ORDER
Plaintiff Eugenia Bivines brings this action pursuant to 42 U.S.C. § 1383(c)(3) seeking judicial review of the decision of defendant, the Commissioner of Social Security, to deny her application for supplemental security income under Title XVI of the Social Security Act. According to plaintiff, defendant failed to establish that plaintiff could perform other jobs in the national economy. As explained in more detail below, the court rejects plaintiff's argument and affirms defendant's decision.
I. Procedural Background
On July 19, 2001, plaintiff filed her application for supplemental security income, claiming disability primarily due to pain in her feet, high blood pressure and depression. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge ("ALJ") held a hearing on July 1, 2003, at which both plaintiff and her counsel were present. On September 19, 2003, the ALJ rendered a decision in which he determined that plaintiff was not under a "disability" as defined by the Social Security Act and, thus, not eligible for supplemental security income payments. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council. The Appeals Council denied plaintiff's request for review on November 3, 2003, rendering the ALJ's decision the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)). The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Castellano, 26 F.3d at 1028). In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant. Id.
Although plaintiff's complaint is brought pursuant to 42 U.S.C. § 1383(c)(3), that section provides that the "final determination of the Commissioner of Social Security . . . shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title."
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . ." Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (1982)). The Social Security Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, see id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)), and the ALJ in this case followed the five-step process. 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. Id. Step one determines whether the claimant is presently engaged in substantial gainful activity. Id. If he or she is, disability benefits are denied. Id. If he or she is not, the decision maker must proceed to the second step. Id. Here, the ALJ determined that plaintiff's earnings after her alleged onset of disability were inconsistent with substantial gainful work and, thus, concluded that plaintiff was not engaged in substantial gainful activity and proceeded to the second step.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)). This determination is governed by certain "severity regulations," is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)). Pursuant to the severity regulations, the claimant must make a threshold showing that his or her medically determinable impairment or combination of impairments significantly limits his or her ability to do basic work activities. Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 416.921(b) (1986)). If the claimant is unable to show that his or her impairments would have more than a minimal effect on his or her ability to do basic work activities, the claimant is not eligible for disability benefits. Id. at 751. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Id. The ALJ in this case concluded that plaintiff suffered from two impairments that satisfied the severity requirement — depression and bilateral foot deformities — and, thus, the ALJ proceeded to step three.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291). If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. Id. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291). If the claimant is able to perform his or her previous work, the claimant is not disabled. Id. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations.
At the fourth step, the ALJ concluded that plaintiff had no past relevant work (plaintiff had worked as a cashier, but not at the substantial gainful rate within the past fifteen years) and, thus, proceeded to the fifth and final step of the sequential evaluation process — determining whether the claimant has the RFC "to perform other work in the national economy in view of [her] age, education, and work experience." See id. (quoting Bowen v. Yuckert, 107 S.Ct. at 2291). At that point, the ALJ concluded that plaintiff was capable of performing a wide range of work performed at the light exertional level and that a significant number of jobs existed in the state and national economies which plaintiff would be able to perform.
IV. Discussion
In her motion, plaintiff contends only that defendant did not sustain her burden of proof at step five of the sequential evaluation process. Specifically, plaintiff contends, citing to the Tenth Circuit's opinion in Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999), that the ALJ failed to resolve a conflict between the vocational expert's testimony and the Dictionary of Occupational Titles (DOT). The court rejects this argument.
In Haddock, the Tenth Circuit held that before an ALJ may rely on evidence from a vocational expert (VE) to support a finding of nondisability at step five, the ALJ "must ask the expert how his or her testimony as to the exertional requirement of identified jobs corresponds with the Dictionary of Occupational Titles, and elicit a reasonable explanation for any discrepancy on this point." See id. at 1087. After the Circuit's opinion in Haddock, Social Security Ruling 00-4p was promulgated, which explains that when a VE provides evidence about the requirement of a job or occupation, the ALJ has "an affirmative responsibility" to ask about any possible conflict between the expert's testimony and the DOT, and if the VE's testimony "appears to conflict with the DOT," to "obtain a reasonable explanation for the apparent conflict." See Holcom v. Barnhart, 2003 WL 22422421, at *1 (10th Cir. Oct. 24, 2003) (quoting SSR 00-4p).
The court's review of the record demonstrates that the ALJ satisfied his obligations under Haddock and SSR 00-4p. During the hearing, the VE testified that a person with plaintiff's limitations could perform the position of assembler, the position of packager, and the position of laundry worker. At the ALJ's request, the VE provided the corresponding DOT numbers for each of these positions. Thus, because the DOT was the source for the VE's information, the ALJ had no further duty to investigate. See Gibbons v. Barnhart, 2003 WL 22969357, at *4 (10th Cir. Dec. 18, 2003). Moreover, plaintiff does not suggest that the exertional level of these positions as described in the DOT is at odds with the testimony of the VE. Similarly, plaintiff does not suggest that the positions described in the DOT and identified by the VE do not match plaintiff's limitations. In short, there are simply no unexplained conflicts between the VE's response to the ALJ's hypothetical question and the DOT.
Plaintiff, however, attempts to create a conflict by highlighting a portion of the VE's testimony in response to a question from plaintiff's counsel. Specifically, plaintiff's counsel asked the VE whether the job base that she described in response to the ALJ's hypothetical question would erode if the ALJ had included in his hypothetical question a limitation on standing. In response, the VE testified that the job base would erode somewhat because the specific assembler position that she had identified would not allow a sit/stand option, but that several other assembler positions did allow for a sit/stand option (though fewer jobs existed in the national and local economies than the assembler job initially identified by the VE in response to the ALJ's question). Plaintiff's counsel then asked the VE whether the DOT description of those other assembler positions allowed a sit/stand option. The VE responded that "The Dictionary of Occupational Titles does not give the sit/stand option at the — . . . ." Plaintiff's counsel did not permit the VE to finish her sentence; he interrupted her response and asked her another, unrelated question.
According to plaintiff, the ALJ had a duty to investigate the conflict between the VE's testimony concerning the assembler positions that permitted a sit/stand option and the DOT's description that apparently does not contain the option. But there simply is no conflict. The ALJ did not include a sit/stand option in his hypothetical question to the VE and did not include such a limitation in plaintiff's residual functional capacity. Shepherd v. Apfel, 184 F.3d 1196, 1203 (10th Cir. 1999) (ALJ is required to accept and include in the hypothetical question only those limitations supported by the record). Thus, the fact that the DOT's description of the various assembler positions identified by the VE does not contain a sit/stand option is entirely consistent with the VE's testimony regarding a person with plaintiff's limitations — limitations that did not include a sit/stand option.
Plaintiff does not challenge the ALJ's determination with respect to plaintiff's residual functional capacity.
In sum, having carefully reviewed the record in this case and having considered plaintiff's argument in light of the record, the court concludes that substantial evidence supports defendant's decision to deny Ms. Bivines' application for supplemental security income and that no deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment (doc. #8) is denied and defendant's decision is affirmed.