Opinion
Civil Action No. 04-0339 Section "J" (1).
December 13, 2004
ORDER AND REASONS
Before the Court is Plaintiff's Objection to the Magistrate's Report and Recommendations. After considering the complaint, the record, the applicable law, the Magistrate Judge's Report and Recommendation, and Plaintiff's Objection to the Magistrate's Report and Recommendation, the Court finds that Plaintiff's Objection should be overruled and the Magistrate's Report and Recommendation should be adopted.
Rec. Doc. 11.
BACKGROUND
Plaintiff filed an application for social security benefits in February of 2000. After exhausting his administrative remedies, which resulted in unsatisfactory decisions, Plaintiff filed a complaint in federal court. The case was automatically referred to Magistrate Judge Shushan. As ordered by the Magistrate's minute entry of August 20, 2004, the parties filed cross-motions for summary judgment. On October 14, 2004, the Magistrate issued a Report and Recommendation granting Defendant's Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment. On October 25, 2004, Plaintiff filed an objection to the Magistrate's Report and Recommendation, which is now before the Court.
Rec. Doc. 1.
Rec. Docs. 6, 8.
The Magistrate's Report and Recommendation was entered on October 14, 2002.
Plaintiff's Objections to the Magistrate's Report and Recommendations (Rec. Doc. 11).
Standard of Review
Judicial review by the federal court of the Social Security Commissioner's denial of benefits is limited to determining whether "(1) the final decision is supported by substantial evidence and (2) whether the proper legal standards were used to evaluate the evidence." "Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance." If the findings are supported by substantial evidence, they must be affirmed. "The court does not reweigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision." "It is the responsibility of the Commissioner to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the Commissioner, not the courts." Furthermore, an administrative law judge is entitled to make any findings that are supported by substantial evidence, regardless of whether other conclusions are also permissible.Discussion
Plaintiff's objection is based on the following three issues: (1) Whether the administrative law judge erred in finding that Plaintiff was able to perform other jobs in the economy? (2) Whether the administrative law judge erred in failing to utilize Social Security Ruling 85-15? (3) Whether the administrative law judge erred in finding that Plaintiff's asserted limitations in the work setting were not credible?(1) Did the administrative law judge err in finding that Duhe was able to perform other jobs in the economy?
Relying on the testimony of a vocational expert ("VE"), the ALJ determined that Plaintiff is able to perform other jobs in the economy. Plaintiff asserts that his non-exertional limitations of function preclude him from performing the jobs listed by the VE. In his motion, Plaintiff scrutinizes the jobs referred to by the VE by noting the job descriptions found in the Dictionary of Occupational Titles. Plaintiff argues that due to his vision and hearing impediments, he cannot meet the requirements of the jobs referenced by the VE. Essentially, Plaintiff argues that the ALJ should not have accepted the testimony of the VE. As stated above, the ALJ is entitled to make any findings supported by substantial evidence, even if other conclusions are permissible.
Plaintiff's Objections to the Magistrate's Report and Recommendations, pp. 5-8 (Rec. Doc. 11).
Plaintiff's Objections to the Magistrate's Report and Recommendations, pp. 6-8 (Rec. Doc. 11).
Notably, counsel was afforded the opportunity to question the VE as to Plaintiff's ability to perform the jobs available jobs, but this was not asked.
Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).
(2) Did the administrative law judge err in failing to utilize Social Security Ruling 85-15?
Plaintiff contends that he fits directly into Social Security Ruling 85-15 and, therefore, he should be found disabled. Social Security Ruling 85-15 states the following:
Plaintiff's Objection to the Magistrate's Report and Recommendations, pp. 8-10 (Rec. Doc. 11).
As a general rule, even if a person's visual impairment(s) were to eliminate all jobs that involve very good vision (such as working with small objects or reading small print), as long as he or she retains sufficient visual acuity to be able to handle and work with rather large objects (and has the visual fields to avoid ordinary hazards in a workplace), there would be a substantial number of jobs remaining across all exertional levels. However, a finding of disability could be appropriate in the relatively few instances in which the claimant's vocational profile is extremely adverse, e.g., closely approaching retirement age, limited education or less, unskilled or no transferable skills, and essentially a lifetime commitment to a field of work in which good vision is essential.
Attachment to Plaintiff's Motion for Summary Judgment (Rec. Doc. 6).
Plaintiff contends that he should be found disabled because he meets three of the four stated examples, i.e., he is closely approaching retirement age, and he has no transferable skills and he has a lifetime commitment to a field of work in which good vision is essential. The Magistrate pointed out that Plaintiff does not possess a limited education, but has completed high school and two years at a theological seminary. Referring to Plaintiff's educational background, the Magistrate concluded that Plaintiff did not fit the profile for "disabled."
Plaintiff's Objection to the Magistrate's Report and Recommendations, p. 10 (Rec. Doc. 11).
Report and Recommendations, p. 13 (Rec. Doc. 10). Notably, when determining that a claimant's vocational profile is extremely adverse under Social Security Ruling 85-15, the examples are cited in the conjunctive, as opposed to the disjunctive.
Report and Recommendations, p. 13 (Rec. Doc. 10).
Additionally, Plaintiff notes that the Magistrate refers to Social Security Ruling 85-12, which concerns self-employment taxes that are not at issue in Plaintiff's case. However, Plaintiff fails to note that the Magistrate incorporated the language of Social Security Ruling 85-15 into her report when purportedly discussing Social Security Ruling 85-12. It is apparent that the reference to 85-12 was a typographical error.
(3) Did the administrative law judge err in finding that Plaintiff's asserted limitations in the work setting were not credible?
Plaintiff notes that his reference to Social Security Ruling 82-53 was mistyped as 83-53 and, therefore, the Magistrate did not evaluate Ruling 82-53. Plaintiff contends that ALJ focused on Plaintiff's volunteer work with at-risk-teens to support his finding that Plaintiff's allegation of symptoms was not credible. Plaintiff accurately notes that Social Security Ruling 82-53 states that "[a]ctivities involving self-care, household tasks, nonremunerative training, hobbies, therapy, school attendance, clubs, social programs, etc., are generally not considered to be [substantial gainful activity]." However, the Magistrate explains that Plaintiff's perception of the ALJ's focus is incorrect. According to the Magistrate, the ALJ's finding regarding Plaintiff's daily activities was not the determinative factor in finding that Plaintiff was able to perform gainful activity. It was only one of the factors relied upon. As stated in the ALJ's findings, the types of work Plaintiff is functionally capable of performing, in combination with his age, education and experience, requires Plaintiff to make a vocational adjustment to work that exists in the economy. Because the determinative factor for the ALJ's findings did not concern the Plaintiff's daily activities, the ALJ did not err in finding that the Plaintiff's asserted limitations were not credible. Accordingly,
Plaintiff's Objection to the Magistrate's Report and Recommendations, p. 11 (Rec. Doc. 11).
Social Security Ruling 82-53 (1980), available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR82-53-di-01.html; Plaintiff's Objection to the Magistrate's Report and Recommendations, p. 11 (Rec. Doc. 11).
Report and Recommendations, p. 14 (Rec. Doc. 10).
Report and Recommendations, pp. 14-15 (Rec. Doc. 10).
Report and Recommendations, pp. 3-4, ¶ 12 (Rec. Doc. 10).
IT IS ORDERED that Plaintiff's Objection to the Magistrate's Report and Recommendations should be and hereby is OVERRULED; IT IS FURTHER ORDERED that the Magistrate's Report and Recommendations should be and hereby are ADOPTED.
JUDGMENT
The Court having approved the Report and Recommendation of the United States Magistrate Judge and having adopted it as its opinion herein; Accordingly,IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of defendant, Jo Anne B. Barnhart, Commissioner of the Social Security Administration, and against the plaintiff, Ronald T. Duhe, affirming the Commissioner's decision.