Opinion
Case No. CIV-18-512-R
02-21-2019
EPPERT LOWERY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Eppert Lowery (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge David L. Russell has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 12.
After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record will refer to its original pagination.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was disabled during the relevant timeframe. AR 20-21; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
(1) had the severe impairment of "transient cerebral ischemia status post November 2013 cerebrovascular accident";AR 12-18.
(2) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(3) had the residual functional capacity for light work with various additional restrictions;
(4) was able to perform certain past relevant work (PRW); and thus
(5) had not been under a disability as defined by the Social Security Act since his alleged onset date of December 22, 2014.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
2. Appeals Council's findings.
The Social Security Administration's Appeals Council found no reason to review that decision, so the ALJ's decision is the Commissioner's final decision in this case. Id. at 1-6; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084. A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013 (citation omitted).
B. Issues for judicial review.
Plaintiff argues the ALJ's RFC determination is not supported by substantial evidence because the ALJ did not properly consider Plaintiff's subjective complaints about his loss of balance and because the RFC is internally inconsistent. Doc. 15, at 4-5, 5-7. Plaintiff further argues that the ALJ improperly delegated portions of the step-four analysis to the vocational expert (VE). Doc. 15, at 7-12. Additionally, Plaintiff contends that the ALJ failed to apply certain factors when considering available occupations. Doc. 15, at 13-14.
1. Consideration of past relevant work.
"Step four of the sequential analysis . . . is comprised of three phases." Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). "In the first phase, the ALJ must evaluate a claimant's physical and mental [RFC], and in the second phase, he must determine the physical and mental demands of the claimant's past relevant work." Id. (citation omitted). "In the final phase, the ALJ determines 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. "At each of these phases, the ALJ must make specific findings." Id. Those findings must be supported by substantial evidence. Best-Willie v. Colvin, 514 F. App'x 728, 737 (10th Cir. 2013). Plaintiff retains the burden to establish that he is unable to perform his past relevant work (here, as a printing machine operator and hand packager) both as he actually performed it and as it is generally performed in the national economy. See O'Dell v. Shalala, 44 F.3d 855, 859-60 (10th Cir. 1994).
Plaintiff challenges each phase.
2. Phase one: whether the ALJ properly considered Plaintiff's loss of balance.
a. Consideration of subjective reports of loss of balance.
At phase one, Plaintiff argues that the "RFC determination is not supported by substantial evidence because it does not consider the severity of [Plaintiff's] loss of balance from his severe impairment of Transient Cerebral Ischemia, status post November 2013 cerebrovascular accident." Doc. 15, at 4. Plaintiff cites the transcript of the administrative hearing and asserts that the ALJ "seemed to accept" Plaintiff's testimony regarding dizziness and vertigo. Doc. 15, at 5 (citing AR 47). Plaintiff then complains that the ALJ found Plaintiff "not credible in the credibility template." Id. (citing AR 15). However, the ALJ's precise finding was that Plaintiff's "statements concerning the intensity, persistence and limiting effects of [his alleged] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." AR 15.
The medical evidence set forth by the ALJ included a review of medical treatments for Plaintiff's complaints of dizziness, all of which occurred more than a year prior to his alleged onset date and only one of which occurred after the November 2013 cerebrovascular accident; all of which resulted in normal test and examination results; and none of which required additional treatment other than urging medication compliance. See id. at 16 (reviewing medical evidence from July 17, 2013; Nov. 17, 2013; and Dec. 16, 2013). The ALJ also considered medical treatment Plaintiff sought for stroke-related symptoms and found that symptoms improved, test results were normal, and Plaintiff was released in stable condition with no reoccurring incidents. See id. at 16, 17 (reviewing medical evidence from Nov. 22-24, 2013; and Oct. 15, 2015). The ALJ further noted that, subsequent to one incident on October 15, 2015, "there were no other documented incidents of dizziness or treatment for st[r]oke related symptoms." Id. at 17.
The ALJ then considered opinion evidence in the record and gave "great weight" to the opinions of the state agency medical consultants that Plaintiff was able to perform light work with additional postural and environmental limitations. Id. The ALJ found those opinions "consistent with the record as a whole, including clinical finding[s] noting [Plaintiff] recovered following his acute stroke[, that Plaintiff's] gait and station were normal, the results of a head CT scan were within normal limits, and the results of an EKG showed normal sinus rhythm." Id.
Finally, the ALJ considered other evidence in the record, including statements from Plaintiff and from a third party. Id. at 17-18. The ALJ found that Plaintiff was able to do a number of activities of daily living. Id. at 17. As such, the ALJ considered the objective medical evidence, Plaintiff's statements regarding his symptoms, information from medical sources, and other relevant evidence in the record. See SSR 16-3p, 2017 WL 5180304, at *4 (Mar. 16, 2016) (providing the framework for an ALJ to consider a claimant's symptoms, including pain, and determine the extent to which the symptoms are consistent with the evidence in the record). The ALJ thoroughly reviewed the evidence and fully substantiated his decision that Plaintiff's subjective complaints of the degree of functional limitation caused by loss of balance was inconsistent with the record. See Arterberry v. Berryhill, 743 F. App'x 227, 231-32 (10th Cir. 2018) ("Credibility determinations are peculiarly the province of the finder of fact, and should not be upset if supported by substantial evidence.") (internal quotation marks and alteration omitted). The undersigned finds no reversible error in the ALJ's consideration of Plaintiff's subjective complaints of symptoms.
b. Internal inconsistency.
Plaintiff next argues that "[t]he RFC is internally inconsistent and therefore error." Doc. 15, at 6. Pointing to the ALJ's limitation of occasional balancing, Plaintiff argues that such restriction necessarily eliminates all jobs in the light category "because any person performing light work is required to balance continuously while standing and/or walking (any reasonable person can conclude that standing and walking require balance.)" Id.; see also AR 14. Plaintiff cites no authority for this proposition and the undersigned has found none.
Per the regulatory definition:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.20 C.F.R. §§ 404.1567(b), 416.967(b). As such, the definition of light work does not require continuous standing, walking, or balancing, thus undermining Plaintiff's argument. Moreover, Plaintiff has cited no evidence indicating that he is unable to perform the strength demands of walking and/or standing as required for light work. See Doc. 15, at 6-7. Plaintiff's argument is without merit.
In assessing a claimant's RFC, the ALJ will consider both exertional and nonexertional limitations of function. Limitations are classified as exertional if they affect a claimant's ability to meet the strength demands of jobs. "The classification of a limitation as exertional is related to the United States Department of Labor's classification of jobs by various exertional levels (sedentary, light, medium, heavy, and very heavy) in terms of the strength demands for sitting, standing, walking, lifting, carrying, pushing, and pulling." 20 C.F.R. §§ 404.1569a, 416.969a. Limitations that affect a claimant's ability to meet the demands of jobs other than the strength demands are considered nonexertional. Balance is an example of a nonexertional limitation. See id.; see also Keeling v. Colvin, CIV-13-498-M, 2014 WL 4388411, at *8 (W.D. Okla. Sept. 5, 2014) (explanation of exertional and nonexertional limitations).
3. Phase two: whether the ALJ improperly delegated responsibility to the VE.
a. Fact-finding.
In his phase-two challenge, Plaintiff maintains the ALJ improperly delegated his responsibility to make findings to the VE. Doc. 15, at 7-10. Plaintiff correctly notes that, at phase two, "'the ALJ must make findings regarding the physical and mental demands of the claimant's past relevant work.' To make such findings, an 'ALJ must obtain adequate factual information about those work demands which have a bearing on the medically established limitations.'" Id. at 7-8 (quoting Winfrey, 92 F.3d at 1024). To make the findings required by phase two of step four, an ALJ must obtain adequate "factual information about those work demands which have a bearing on the medically established limitations." Wells v. Colvin, 727 F.3d 1061, 1074 (10th Cir. 2013) (quoting SSR 82-62, 1982 WL 31386, at *3 (1982)).
The ALJ based his findings on Plaintiff's description of his past job duties and the VE's testimony that Plaintiff's past work fell within certain occupations as defined in the Dictionary of Occupational Titles (DOT). AR 18, 58-59, 61-62. An ALJ may rely upon the descriptions in the DOT and/or the testimony of a VE in determining the demands of a claimant's PRW as it is generally performed in the national economy or as the claimant actually performed it. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). Here, the ALJ permissibly relied on the testimony of the VE in deciding Plaintiff's PRW is that of "printing machine operator ([DOT] 652.685-074, light, unskilled at Specific Vocational Preparation Level (SVP) 2); and a hand packager (DOT 559.687-074, light, skilled, medium to heavy as performed, SVP 2)." AR 18. By citing the DOT, the ALJ incorporated that agency-approved source by reference in his decision. See Campbell v. Astrue, 525 F. Supp. 2d 1256, 1264 (D. Kan. 2007) (holding that the ALJ incorporated the source containing the DOT descriptions by referencing the "physical and mental demands of the jobs . . . as described by the [DOT]"). This served adequately to establish the ALJ's findings regarding the demands of Plaintiff's PRW at phase two of step four. See Parise v. Astrue, 421 F. App'x 786, 789 (10th Cir. 2010) (holding "the ALJ's phase-two findings . . . adequate" where ALJ did not make findings regarding claimant's PRW but referenced the pertinent DOT job listing); Campbell, 525 F. Supp. 2d at 1264 (holding that by incorporating the DOT descriptions, the "ALJ substantially complied with the requirement that he make findings setting forth the physical and mental demands of the job."). And the ALJ is "presumptively entitled" to rely on the DOT. Adams v. Colvin, 616 F. App'x 393, 395 (10th Cir. 2015) (citing Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1051-52 (10th Cir. 1993)); see also Gaines v. Colvin, 2016 WL 8674691, at *4 (W.D. Okla. Jan. 29, 2016), adopted 2016 WL 3189275 (W.D. Okla. June 7, 2016) (adopting similar analysis). Substantial evidence supports the ALJ's phase-two analysis.
b. Purported conflict with the DOT.
Plaintiff further asserts that the ALJ's phase-two analysis was improper because the jobs relied upon conflict with the RFC limitation of "avoid[ing] exposure to workplace hazards, such as dangerous moving machinery" and working in a controlled environment. Doc. 15, at 8-9; AR 14. In support of this argument, Plaintiff purports to cite to the DOT definitions of printing machine operator (DOT 652.685-074) and hand packager (DOT 559.687-074). See Doc. 15, at 8-9. The language Plaintiff cites, however, does not appear in the referenced DOT definitions; rather, the undersigned found substantially similar language in the 2006-2007 edition of the Occupational Outlook Handbook (OOH, a resource offering career information published by the Bureau of Labor Statistics).
The language Plaintiff cites for Printing Machine Operator appears in the section captioned "Printing Machine Operators," while the language cited for Hand Packager is found under "Inspectors, Testers, Sorters, Samplers, and Weighers." Occupational Outlook Handbook, pp. 601, 615, U.S. Dep't of Labor (2006-07 Library Ed.). It is unclear whether the cited language is present in more recent editions of the OOH.
Plaintiff has not presented authority or properly developed an argument that OOH general descriptions of industry-wide working conditions outweigh the VE's testimony that the Plaintiff could perform his PRW with the restrictions included in the RFC. See AR 58-59 (VE testifying that "both of those occupations can be performed" when asked about avoiding workplace hazards and working in a controlled environment and whether it would impact the ability to perform the occupations of printing machine operator or hand packager). Nor has Plaintiff presented authority or properly developed an argument that such OOH descriptions are more relevant than the specific DOT definitions indicating that the restricted activities (e.g., moving mechanical parts or high exposed places) or conditions (e.g., exposure to extreme heat or cold) do not exist in the occupation. See DOT 652.685-074 (printing machine operator), 1991 WL 685759; DOT 559.687-074 (hand packager), 1991 WL 683797. Cf. Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 158 (6th Cir. 2009) ("However, while the ALJ is certainly authorized to take administrative notice of job data from various sources, including [testimony based upon the OOH], he was not required to accept [that testimony] over that of the vocational expert who based his opinion on the contents of the DOT."); accord Davis v. Comm'r of Soc. Sec., 2018 WL 2436411, at *4 (W.D. Okla. May 30, 2018). Plaintiff's argument is unavailing.
4. Phase three: whether the ALJ erred in his phase-three analysis.
Plaintiff argues the ALJ's inappropriate phase-two analysis "naturally compromised" his phase-three findings. Doc. 15, at 11. He further argues improper delegation of the ALJ's fact-finding responsibilities, asserting that the ALJ "merely adopted the VE's opinion that [Plaintiff] was not precluded from performing his PRW." Id. at 11-12. The ALJ, however, posed hypotheticals to the VE containing limitations ultimately included in the RFC, to which the VE responded. See AR 58-59. The ALJ then noted the VE's testimony and determined Plaintiff could perform those jobs. Id. at 18. The ALJ also confirmed that the VE's testimony was consistent with the information contained in the DOT. Id. Substantial evidence supports the ALJ's phase-three analysis. See Adcock v. Comm'r, SSA, 748 F. App'x 842, 847-848 (10th Cir. 2018) (holding an ALJ's analysis sufficient where "the ALJ expressly told the VE the claimant was limited", the "VE responded that such a claimant could perform [her] past jobs", the "ALJ then cited the VE's testimony with approval", and the ALJ "confirmed the [VE's] testimony [was] consistent with . . . the [DOT]"); Doyal v. Barnhart, 331 F.3d 758, 760-61 (10th Cir. 2003) (holding that ALJ did not improperly delegate his step four duties to the VE where "he quoted the VE's testimony approvingly, in support of his own findings at phases two and three of the analysis").
Finally, Plaintiff cites to Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992) to argue that the ALJ should have reviewed specific factors when considering whether jobs exist in significant numbers in the national economy. Doc. 15, at 12-13. However, the Trimiar factors are relevant at step five of the sequential evaluation. See Trimiar, 966 F.2d at 1330; see also Barnhart v. Thomas, 540 U.S. 20, 22, 29-30 (2003) (upholding agency policy that step four does not involve an inquiry into "whether previous work exists in significant numbers in the national economy"). Here, the ALJ found Plaintiff not disabled at step four of the sequential evaluation and did not reach step five. See Trimiar, 966 F.2d at 1329 ("If at any point in the process the Secretary finds that a person is disabled or not disabled, the review ends.") (internal quotation marks omitted). Substantial evidence supports the ALJ's phase three analysis.
5. Conclusion
In sum, Plaintiff has not carried his step-four burden of "proving [his] inability to return to [his] particular former job and to [his] former occupation as that occupation is generally performed throughout the national economy," and substantial evidence supports the ALJ's conclusions. See O'Dell, 44 F.3d at 859-60.
III. Recommendation and notice of right to object.
Based on the foregoing, the undersigned recommends affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 14th day of March, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
ENTERED this 21st day of February, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE