Opinion
Case No. CIV-18-1177-D
09-23-2019
FLORETHA HAWKINS, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Floretha Hawkins, seeks judicial review of the Social Security Administration's denial of her application for disability insurance benefits (DIB). Chief United States District Judge Timothy D. DeGiusti has referred the matter for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR), [Doc. No. 15], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On February 13, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 27-43. The Appeals Council denied Plaintiff's request for review. Id. at 1-9. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. § 404.1520. The ALJ first determined that Plaintiff meets the insured status requirement through December 31, 2020 and has not engaged in substantial gainful activity since December 14, 2015, her alleged onset date. AR 29.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: "osteoarthrosis, an infectious or parasitic disorder, and costochondritis." Id at 30. Then, at step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 34-35.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that:
[she can] perform light exertion work . . . except . . . must avoid concentrated exposure to extreme heat and extreme cold; . . . can communicate simple information; and . . . can use a telephone to communicate. [She] has no other physical limitations or restrictions. [She] has no mental limitations or restrictions.Id. at 35.
Finally, at step four, the ALJ determined Plaintiff can perform her past relevant work as a housekeeper, Dictionary of Occupational Titles (DOT) #323.687-014, and is not disabled for purposes of the Social Security Act. Id. at 41.
III. Claims Presented for Judicial Review
Although Plaintiff identifies only two claims, her twenty-six-page brief raises numerous interrelated grounds for relief. In essence, Plaintiff alleges the ALJ: (1) erred in finding she can perform her past work as housekeeper; (2) erred in considering her speech limitations; (3) erred in assessing her subjective complaints; (4) failed to order a consultative examination to assess Plaintiff's academic limitations; (5) improperly evaluated the medical evidence; and (6) erred in finding Plaintiff did not meet a Listing at step three. See Pl.'s Br. at 6-25. The Court addresses these allegations in an order it finds most logical.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009); see also Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (holding that the court only reviews an ALJ's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied" and in that review, "we neither reweigh the evidence nor substitute our judgment for that of the agency" (citations and internal quotation marks omitted)). Under such review, "common sense, not technical perfection, is [the Court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012). The burden to show prejudicial error on appeal rests with Plaintiff. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
V. Analysis
A. The ALJ's Alleged Error in Finding Plaintiff's Impairments Did Not Meet a Listing at Step Three
At step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. AR at 34-35. Specifically, the ALJ considered Listing 3.02, which "requires evidence of certain threshold findings on pulmonary function testing, or of complications or exacerbations requiring three hospitalizations within a 12-month period." Id. at 35. Plaintiff did not have the requisite hospitalizations and thus the ALJ and Plaintiff focus on four pulmonary function studies (PFS). Id.; see also Pl.'s Br. at 22-23.
To meet Listing 3.02, a claimant must show that for her height, she had a forced expiratory volume (FEV1) value below a certain threshold. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 3.02(A). Plaintiff is 5 feet 2 inches, see AR 527, or 62 inches, so an FEV1 value of 1.15 or lower meets Listing 3.02. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 3.02(A). The FEV1 is tested through a spirometer. AR 527, 531, 536, 541. According to the Listings:
Spirometry, which measures how well you move air into and out of your lungs, involves at least three forced expiratory maneuvers during the same test session. A forced expiratory maneuver is a maximum inhalation followed by a forced maximum exhalation, and measures exhaled volumes of air over time. The volume of air you exhale in the first second of the forced expiratory maneuver is the FEV1. The total volume of air that you exhale during the entire forced expiratory maneuver is the FVC. We use your highest FEV1 value to evaluate your respiratory disorder under 3.02A . . ., regardless of whether the values are from the same forced expiratory maneuver or different forced expiratory maneuvers.20 C.F.R. § Pt. 404, subpt. P, App. 1, 3.00(E)(1). Further,
During testing, if your FEV1 is less than 70 percent of your predicted normal value, we require repeat spirometry after inhalation of a bronchodilator to evaluate your respiratory disorder under these listings, unless it is medically contraindicated. If you used a bronchodilator before the test and your FEV1 is less than 70 percent of your predicted normal value, we still require repeat spirometry after inhalation of a bronchodilator unless the supervising physician determines that it is not safe for you to take a bronchodilator again (in which case we may need to reschedule the test). If you do not have post-bronchodilator spirometry, the test report must explain why. We can use the results of spirometry administered without bronchodilators when the use of bronchodilators is medically contraindicated.Id. 300(E)(2)(b), (c).
Your forced expiratory maneuvers must be satisfactory. We consider a forced expiratory maneuver to be satisfactory when you exhale with maximum effort following a full inspiration, and when the test tracing has a sharp takeoff and rapid rise to peak flow, has a smooth contour, and either lasts for at least 6 seconds or maintains a plateau for at least 1 second.
Plaintiff alleges that on her first PFS, she had a "near" Listing level. Pl.'s Br. at 22. On that test, her highest FEV1 was 1.22, AR 527, which is insufficient to meet the Listing for her height. See supra at 4. Next, Plaintiff alleges she met the Listing in her second test. See Pl.'s Br. at 22. But there, the predicted FEV1 was 2.06 and Plaintiff scored only a .55, which is well below the 70% required, and Plaintiff was unable to complete the test after using a bronchodilator. AR 531. On her third PFS, Plaintiff again scored under 70% of the predicted FEV1. See id. at 536. This led the examiner to note "further examinations recommended," and "Caution: No Acceptable Maneuvers - Interpret with Care." Id. at 537. Finally, on her fourth test, Plaintiff again scored below the 70% requirement and was noted as being unable to provide consistent efforts. See id. at 541.
Based on this evidence, a State agency physician opined that the SSA was "unable to get reproducible PFS results." Id. at 138. The ALJ considered the tests, and the State agency physician's opinion, and concluded that Plaintiff did not meet or equal Listing 3.02. See id. at 35. Notably, Plaintiff's hearing attorney agreed. See id. at 86-87 (ALJ: "As best I can tell from reading those, she doesn't meet or equal any medical listing on the . . . pulmonary function studies, does she?" Attorney: "No, Judge.").
Plaintiff does not allege that the ALJ misinterpreted the PFS results and does not point to any PFS-related evidence the ALJ overlooked. Instead, she argues the ALJ failed to consider "her limited education and lack of mental capacity in concluding the PFS reports were invalid." Pl.'s Br. at 23. The Court addresses that argument below, see infra at 8-10, and finds no grounds for reversible in that decision.
In sum, the ALJ considered the medical evidence and concluded that it was insufficient to show Plaintiff met Listing 3.02. This Court cannot reweigh that evidence, see supra at 3, and thus finds no reversible error in the ALJ's step three decision.
B. The ALJ's Alleged Errors in Evaluating the Medical Evidence
The ALJ gave the State agency psychologists' opinions great weight. AR 31-32. Plaintiff challenges that decision and relatedly claims the ALJ failed to weigh a treating psychiatrist's opinion. See Pl.'s Br. at 19-22. The Court examines these allegations in reverse order and finds no grounds for reversal.
1. Dr. Gabriel Cuka, M.D.
Dr. Cuka was one of several psychiatrists who provided Plaintiff's mental health treatment at Hope Community Services, Inc. (Hope). See generally AR 349-79, 462-77, 546-65, 575-610. The ALJ considered the exhibits which included the Hope treatment records but did not specifically discuss Dr. Cuka's notes. See id. at 32-34 (discussing exhibits 2F, 5F, 6F, 12F, 16F). According to Plaintiff, the ALJ committed reversible error in failing to weigh Dr. Cuka's opinion or explain why he disregarded Dr. Cuka's opinion as it was in "direct conflict" with the State agency psychologists' opinions. Pl.'s Br. at 20-21; see also Krauser, 638 F.3d at 1330-32 (explaining process for evaluating opinion of a treating physician). Relevant here, the State agency psychologists, Drs. Bruce Lochner, Ph.D. and Mary Rolison, Ph.D., concluded that Plaintiff suffers from a non-severe mental impairment which causes only mild restrictions in daily living, maintaining social functioning, and maintaining concentration. AR 31, 123-24, 139-40.
Under Tenth Circuit authority, and the SSA's regulations, the ALJ must determine whether a treating physician's opinion should be given "controlling weight" on the matter to which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). But here, Dr. Cuka did not give an opinion or provide any functional limitations. Instead, his few treatment notes merely summarize Plaintiff's diagnosis and treatment plan. AR 350-55, 563-65, 577-79. Where a physician has not specified any functional limitations, there are no opinions which the ALJ is required to discuss. See Duncan v. Colvin, 608 F. App'x 566, 574 (10th Cir. 2015) ("Given that the ALJ did not reject the medical impairments . . . and there were no medical opinions regarding . . . work-related functional limitations, there was no opinion . . . for the ALJ to weigh."); see also Moua v. Colvin, 541 F. App'x 794, 797-98 (10th Cir. 2013) ("Dr. Bhakta's treatment notes do not offer any medical opinions concerning [the plaintiff's] abilities or limitations. . . . Thus, there was no pertinent medical opinion for the ALJ to weigh."). Accordingly, the Court finds no grounds for reversal in the ALJ's failure to specifically discuss Dr. Cuka's few treatment notes.
2. Drs. Lochner and Rolison
Relatedly, Plaintiff challenges the ALJ's decision to give great weight to Drs. Lochner and Rolison's opinions that she has only mild restrictions in daily living, maintaining social functioning, and maintaining concentration. Specifically, Plaintiff alleges these opinions were stale, as they were "rendered 10/10/2016" and did not have the benefit of 2017 treatment notes from Hope, including a new diagnosis of schizophrenia. Pl.'s Br. at 15-16, 19-20. In support, Plaintiff cites two treatment notes. The first is dated July 25, 2017, and shows Plaintiff self-reported "crying, sad, and worthless, helpless and hopeless, no energy, isolates[,] loss of interest and motivation." Id. at 20 (citing AR 595, 609). But the State agency experts considered Plaintiff's prior treatment notes which often included similar descriptions. AR 122, 124, 137, 140, 353-54, 359-60, 369, 371-72. Plaintiff's second example is a treatment note dated April 6, 2018 which shows a diagnosis of "schizoaffective disorder, depressive type." Pl.'s Br. at 15 (citing AR 20). However, aside from listing Plaintiff's medications, the treatment note includes no other details or notes from any medical provider. AR 20. So, the Court finds the July 25, 2017 and April 6, 2018 treatment notes do not demonstrate a material change in Plaintiff's impairment so as to render the State agency psychologists' opinions patently stale. See Tarpley v. Colvin, 601 F. App'x 641, 644 (10th Cir. 2015) (finding no error in the ALJ's giving great weight to an agency opinion that was formulated before subsequent medical records were available, in part because "nothing in the later medical records . . . supports . . . a material change in [the plaintiff's] condition that would render [the physician's] opinion stale"). Additionally, as mentioned above, the ALJ considered all the Hope treatment notes, including those post-dating Drs. Lochner and Rolison's opinions. See supra at 7. Under the circumstances, the Court finds no grounds for reversal. See Kearns v. Colvin, 633 F. App'x 678, 682-83 (10th Cir. 2015) (rejecting plaintiff's argument that the ALJ impermissibly relied on a stale opinion where it was clear the ALJ considered all the medical evidence in formulating the RFC).
As Plaintiff points out, that same treatment note also referenced a suicide attempt "about 8 months ago." AR 595. But there are no other treatment notes which mention a suicide attempt and Plaintiff does not explain how this information - standing alone - demonstrates such a material change in her impairment to render the State agency opinions stale. See infra at 8.
The Appeals Council considered the April 6, 2018 treatment note as it was created after the ALJ rendered his opinion. AR 2 (Appeals Council's description of evidence reviewed).
C. The ALJ's Evaluation of Plaintiff's Subjective Complaints
The ALJ determined that Plaintiff's statements concerning "the intensity, persistence and limiting effects of [her] symptoms" were not entirely consistent with the record evidence. AR 40. Such a determination is peculiarly "the province of the finder of fact, and [the Court] will not upset such determinations when supported by substantial evidence." Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (internal quotation marks omitted). The SSA has provided comprehensive guidance on how an ALJ considers claimants' statements regarding their symptoms when deciding whether he believes their assertions of severity. See id. (discussing the various factors and ALJ should consider).
In 2016, the SSA "eliminat[ed] the use of the term 'credibility' from [its] sub-regulatory policy" and "clarif[ied] that subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p, 2017 WL 5180304, at *2. Nevertheless, this evaluation remains "the province of the finder of fact." See Arterberry v. Berryhill, 743 F. App'x 227, 231-32 and n.3 (10th Cir. 2018). --------
Plaintiff alleges that the ALJ "wreck[ed] her credibility" but "had it all wrong." Pl.'s Br. at 18. More specifically, Plaintiff claims the ALJ erred when he used the negative PFS results against her and improperly found Plaintiff was lying about her education and ability to read and write. See id. at 15, 18-19. The Court disagrees.
The Court first notes that the ALJ engaged in an extensive comparison of Plaintiff's allegations to the evidence of record. AR 30, 32-34, 35-37. Relevant to Plaintiff's specific allegations, the ALJ noted that Plaintiff attempted four different pulmonary function tests but was never able to achieve a valid result. See id. at 35. The ALJ considered that after the first test. Plaintiff exhibited a "very difficult time" and "could hardly speak" and yet later the same day her breath sounds were "normal," "without rales, rhonchi, or wheezes" and her speech was "100% intelligible." Id. (internal quotation marks omitted). After the next test, Plaintiff complained of chest pain but did not follow the examiner's recommendation to go to the emergency room. Id. Then at her final test, the examiner found her cooperation to be only "fair." Id. (internal quotation marks omitted).
Plaintiff complains that the ALJ should have considered that Plaintiff did poorly on the tests because she is uneducated, had a "lack of mental capacity," and was diagnosed with schizophrenia. Pl.'s Br. at 15, 18, 23. But the ALJ considered Plaintiff's education, see infra at 10, and her mental health, see supra at 6-8, and Plaintiff wholly fails to explain how either interfered with her abilities to adequately perform on a PFS. Indeed, Plaintiff's claim is little more than a request for this Court to reweigh the ALJ's subjective evaluation decision as it relates to the pulmonary function tests, a task we cannot do. See supra at 3; see also Adcock v. Comm'r, SSA, 748 F. App'x 842, 849 (10th Cir. 2018) ("[Plaintiff's] argument is an invitation for us to reweigh the evidence underlying the ALJ's credibility finding. It is not our role to reweigh the evidence, however, and we decline to do so.").
The Court also finds no error in the ALJ's consideration of Plaintiff's education level. That is, Plaintiff claimed at the hearing that she had only a 5th grade education and "can't read [or] write." AR 56. The ALJ considered this testimony but concluded that it conflicted with the record, noting Plaintiff: (1) admitted in paperwork she could read and write and had completed the 11th grade; (2) told various treatment providers she completed the 11th grade; (3) stated she "is a certified nurse technician;" (4) told a medical provider she read "for fun;" and (5) completed numerous forms in handwriting that matched handwriting completed at treatment appointments. Id. at 32. Additionally, the ALJ noted that numerous treatment providers described Plaintiff as having "an age-appropriate vocabulary" and a SSA employee interviewed Plaintiff "and reported she had no difficulty reading." Id. at 32-33. Plaintiff obviously disagrees with this decision but she provides no concrete examples of any alleged error in the assessment. Instead, Plaintiff again asks this Court to reweigh the evidence and come to a different conclusion. The Court cannot do so. See supra at 3.
In sum, the ALJ examined the entire record and weighed the evidence in accordance with the applicable standards and the Court finds no grounds for reversal in his evaluation of Plaintiff's subjective complaints.
D. The ALJ's Alleged Error in Failing to Order a Consultative Examination
In a rather conclusory fashion, Plaintiff suggests the ALJ erred in failing to order a consultative examination "if he disbelieved" Plaintiff's claim that she could not read or write. Pl.'s Br. at 19. The Court finds no error here.
An ALJ may order a consultative examination "to try to resolve an inconsistency in the evidence or when the evidence as a whole is insufficient to support a determination or decision on [the] claim." 20 C.F.R. § 404.1519a(b). Situations in which a consultative examination may be purchased include:
(1) The additional evidence needed is not contained in the records of [the claimant's] medical sources;Id. But absent an attorney's request for a consultative examination, "we will not impose a duty on the ALJ to order a consultative examination unless the need for one is clearly established in the record." Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997).
(2) The evidence that may have been available from [the claimant's] treating or other medical sources cannot be obtained for reasons beyond [the claimant's] control, such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is not available from [the claimant's] treating or other medical sources; or
(4) There is an indication of a change in [the claimant's] condition that is likely to affect [the claimant's] ability to work, or, if [the claimant is] a child, [the claimant's] functioning, but the current severity of [the claimant's] impairment is not established.
Here, Plaintiff's attorney did not request a consultative examination and there was sufficient evidence in the record to support the ALJ's finding that Plaintiff can sufficiently read and write. See supra at 10. So, the Court finds the ALJ adequately developed the record on this issue.
E. The ALJ's Alleged Errors in Considering Plaintiff's Speech Limitation
At a consultative examination in March 2016, the provider noted Plaintiff "spoke in a loud whisper with a raspy voice" but her "speech was understandable." AR 38. At the hearing, the ALJ acknowledged Plaintiff seemed to have "a rough time talking," id. at 56-57, but she admitted she could "make and receive telephone calls[.]" Id. at 69. When posing his hypothetical questions to the vocational expert (VE), the following exchange took place:
ALJ: . . . I'm going to try to figure out how to articulate the communication issue. . . . let's say the way [Plaintiff] has been talking today, both to me, to you and to her lawyer, would explain the ability to talk, the ability to communicate by voice, that the individual has. . . Let's assume the individual is able to utilize a telephone, a regular telephone to communicate. I'm trying to think of a way to quantify in vocational terms the speaking matter that we've been hearing for I guess a couple of hours.Id. at 113-14. Ultimately, the ALJ assessed Plaintiff's RFC as including the ability to "communicate simple information" and "use a telephone to communicate." Supra at 2.
VE: Your Honor, I think . . . to explain to someone else and/or respon[d] verbally as part of a specific job would be very difficult, significantly difficult.
ALJ. Okay. Let me try it a different way to see if I can try to communicate and put into terms what I'm trying to say. The individual you wouldn't want to have as a public speaker. You wouldn't want them perhaps as a dispatcher because of the amount of speaking that would have to be done and the quality of the reception. Certainly [wouldn't] want the individual to be somebody who spoke or sung for a living, somebody that would be on the radio, you wouldn't want that, but it seems to me that hypothetical person would be able to speak certainly for unskilled work and maybe communicate well enough as well for semi-skilled work. It looks to me like that would eliminate the dispatcher job but the cleaner housekeeper, that seems like that would remain. Do you have an opinion on that or not?
VE: . . . I believe that would remain.
Plaintiff alleges reversible error on three grounds. First, she interprets the VE's initial response, stating it would be significantly difficult for someone with Plaintiff's voice to explain or respond verbally as part of a specific job, to "insinuate[]" that Plaintiff cannot work. Pl.'s Br. at 11. She then alleges the ALJ improperly "changed the question" so as elicit the response he wanted. Id. at 11, 16-17. But Plaintiff reads the VE's testimony too narrowly. Obviously, as the ALJ and VE discussed, it would be significantly difficult for Plaintiff to perform many specific jobs with a voice limitation, and in fact, the VE testified many of Plaintiff's past jobs would be eliminated on that ground. AR 113-15. Thus, the ALJ did not improperly ignore an unfavorable answer, he simply asked a follow-up question to clarify if there were any jobs Plaintiff could do despite the limitation.
Second, Plaintiff alleges the ALJ erred by not having "any accurate limitations in his RFC for [Plaintiff's] specific functional speech limitation." Pl.'s Br. at 13 (emphasis in original). But on this issue, Plaintiff does not articulate the limitations the ALJ should have included. This alone is fatal to Plaintiff's argument. See McAnally v. Astrue, 241 F. App'x 515, 518 (10th Cir. 2007) ("[W]e agree with the magistrate judge that, with regard to her hypertension, loss of vision or skin problems, the claimant has shown no error by the ALJ because she does not identify any functional limitations that should have been included in the RFC assessment or discuss any evidence that would support the inclusion of any limitations." (citation, quotation marks, and brackets omitted)); Morgan v. Berryhill, No. CIV-17-413-BMJ, 2018 WL 652335, at *6 (W.D. Okla. Jan. 31, 2018) (affirming the Commissioner's decision where plaintiff failed to identify "any additional functional limitations that the ALJ should have included" in the RFC).
Third and finally, Plaintiff complains that the ALJ's hypothetical question to the VE did not specifically reference "communicate simple information" and "the claimant can use a telephone to communicate." Pl.'s Br. at 18 (emphasis omitted). Plaintiff thus argues the VE's testimony cannot constitute substantial evidence. See id. But again, Plaintiff misreads the testimony. That is, the ALJ specifically asked the VE to consider an individual who can "speak and communicate simple information" and "is able to utilize a telephone . . . to communicate." AR 113.
After thorough review, the Court finds no error in the ALJ's handling of Plaintiff's speech limitation.
F. The ALJ's Alleged Error in Finding Plaintiff Can Perform Her Past Work as a Housekeeper
Plaintiff expends significant energy challenging the ALJ's finding she can perform her past work as a housekeeper, as she performed it or as it is performed in the national economy. See Pl.'s Br. at 6-10. Specifically, Plaintiff claims that the VE testified the job was a "composite job," see id. at 7, which is a job having "'significant elements of two or more occupations and, as such, have no counterpart in the DOT.'" York v. Berryhill, No. CIV-17-835-BMJ, 2018 WL 1884823, at *6 (W.D. Okla. Apr. 19, 2018) (citation omitted). If true, "the ALJ could not have relied on the VE's finding regarding Plaintiff's ability to perform her past relevant work as it is performed in the national economy," id., and according to Plaintiff, she could not perform the work as she performed it because it conflicts with her RFC limitations. See Pl.'s Br. at 6-10.
The overriding flaw in Plaintiff's argument is her misinterpretation of the VE's testimony. Plaintiff performed many past jobs which included cleaning and/or janitorial duties. AR 91-109. Based on that evidence, and relevant to Plaintiff's precise claim, the VE testified Plaintiff's past job at King's Command was a "combination" job including both janitorial and packing duties, id. at 106-107, but most closely identified it with a janitorial job, DOT 381-687.018. See id. at 110. But the VE also identified a separate job of cleaning/housekeeping. See id. at 110. The VE then clarified that he was "not substituting the cleaning for the janitor," he was instead "add[ing] it because it was less than a janitorial type of job." Id. The VE then identified that job as "housekeeping," DOT 323.687-014. Id.
Plaintiff's entire argument rests on the erroneous belief that the ALJ ultimately found Plaintiff could perform her past janitorial work as she performed it at King's Command. See Pl.'s Br. at 6-7. But while the ALJ mentioned the janitorial work (referencing DOT 381.687-018) he ultimately concluded that Plaintiff was not disabled because she could perform her past work as a housekeeper, DOT 323.687-014. AR 41. Accordingly, Plaintiff's challenges relating the reliance on the "composite" job are moot.
G. Summary
Having reviewed Plaintiff's brief, the Court finds no grounds for reversal. Her lengthy arguments purport to challenge the ALJ's legal and factual conclusions but in large part simply ask this Court to reweigh the evidence. This Court cannot do so, and reading the ALJ's decision with commons sense, it finds Plaintiff has failed to meet her burden of showing reversible error on any issue.
RECOMMENDATION
Based on the foregoing, the Court should affirm the Commissioner's decision.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by October 7, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the Chief District Judge in this matter.
ENTERED this 23rd day of September, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE