Opinion
Case No.: 6:16-cv-01742-JE
08-06-2018
SOPHIE F., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Katherine L. Eitenmiller Mark A. Manning HARDER, WELLS, BARON & MANNING, P.C. 474 Willamette, Suite 200 Eugene, OR 97401 Attorneys for Plaintiff Billy J. Williams, United States Attorney Renata A. Gowie, Assistant United States Attorney 1000 S.W. 3rd Avenue, Suite 600 Portland, OR 97204-2902 Ryan Lu Office of the General Counsel Social Security Administration 701 5th Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant
FINDINGS AND RECOMMENDATION Katherine L. Eitenmiller
Mark A. Manning
HARDER, WELLS, BARON & MANNING, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff Billy J. Williams, United States Attorney
Renata A. Gowie, Assistant United States Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Ryan Lu
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant JELDERKS, Magistrate Judge:
Plaintiff Sophie F. (Plaintiff) brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for Supplemental Security Insurance (SSI) under the Social Security Act (the Act). For the reasons that follow, the Commissioner's decision should be AFFIRMED.
Procedural Background
Plaintiff protectively filed her application for SSI on April 6, 2015, alleging disability beginning February 1, 2007. Tr. 15. The Commissioner denied her application initially and on reconsideration. Plaintiff appeared at a hearing on April 11, 2016, before Administrative Law Judge (ALJ) John Michaelsen. Tr. 30. Plaintiff was represented by counsel and testified; a vocational expert (VE) also testified. Tr. 30-67. The ALJ issued an unfavorable decision on May 11, 2016. Tr. 25. Plaintiff appealed, and the Appeals Council denied Plaintiff's request for review. Tr. 1-3. Plaintiff now timely appeals the Commissioner's final decision.
Factual Background
Plaintiff was born in 1995 and was 11 years old on the date she alleges she became disabled. Tr. 23. Plaintiff did not graduate from high school, but later obtained a GED. Tr. 44, 202. Plaintiff has no past work experience. Tr. 183. Plaintiff alleges disability due to schizoaffective disorder; post-traumatic stress disorder (PTSD); anxiety; and panic attacks. Tr. 201.
Disability Analysis
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920. The five step sequential inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under Step Two. 20 C.F.R. § 416.920(b).
Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have any such impairment is not disabled. If the claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant's case under Step Three. 20 C.F.R. § 416.920(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment "meets or equals" one of the presumptively disabling impairments listed in the Social Security Administration (SSA) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairment does not meet or equal an impairment in the listings, the Commissioner's evaluation of the claimant's case proceeds under Step Four. 20 C.F.R. § 416.920(d).
Step Four. The Commissioner determines whether the claimant is able to perform work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do past relevant work, the Commissioner's evaluation of claimant's case proceeds under Step Five. 20 C.F.R. § 416.920(e), (f).
Step Five. The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that claimant is able to do. The Commissioner may satisfy this burden through the testimony of a vocational expert (VE), or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant is able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. § 416.920(g)(1).
At steps one through four of the sequential inquiry, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show the claimant can perform jobs that exist in significant numbers in the national economy. Id.
ALJ's Decision
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since February 1, 2007, the date she protectively filed her application for SSI. Tr. 17.
At step two, the ALJ determined that Plaintiff had the following severe impairments: PTSD; depression; and attention deficit/hyperactivity disorder (ADHD). Tr. 17.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment as set out in the Listings, 20 C.F.R. Part 404, Subpart P, App.1. Tr. 17-19.
Next, the ALJ found that Plaintiff had the residual functional capacity (RFC) to perform the full range of work at all exertional levels, except she "is limited to simple, repetitive routine tasks requiring no more than occasional interaction with coworkers and the general public." Tr. 19.
At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 23.
At step five, the ALJ found jobs existing in significant numbers in the national economy that Plaintiff could perform, including commercial cleaner, "sweeper-cleaner," and laundry laborer. Tr. 23-24.
Accordingly, the ALJ found that Plaintiff had not been under a disability within the meaning of the Act. Tr. 24.
Standard of Review
A claimant is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which. . . has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(3)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and of establishing that a claimant can perform "other work" at step five of the disability analysis process. Tackett, 180 F.3d at 1098.
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The Commissioner's decision must be upheld if "the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039-40.
Discussion
Plaintiff alleges the ALJ erred by failing to properly evaluate: (1) her subjective symptom testimony; (2) the lay witness testimony of Plaintiff's grandmother; (3) the opinion of Plaintiff's treating counselor; and (4) Plaintiff's RFC.
1. Plaintiff's Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Garrison v. Colvin, 759 F.3d 995, 1014-15 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). "The clear and convincing standard is the most demanding required in Social Security cases." Id. at 1015 (citations omitted). Therefore, an ALJ "may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
When evaluating a claimant's subjective symptom testimony, an ALJ must consider the entire record, including the claimant's activities of daily living ("ADLs"); the location, duration, frequency, and intensity of the claimant's pain or other symptoms; medications taken and their effectiveness; treatment other than medication; measures other than treatment used to relieve pain or other symptoms; and "other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms." 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p; SSR 16-3p. Findings that are premised exclusively on a claimant's apparent character for truthfulness, rather than the listed factors, may constitute error. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017); see Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (general credibility findings are insufficient) (citations omitted). If substantial evidence supports the ALJ's determination, it may be upheld even if some of the reasons cited by the ALJ are erroneous. Carmickle v. Comm'r of Sec. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008).
Plaintiff reported that she suffered blackouts, panic attacks, and anxiety, which caused her to dissociate and "freak out." Tr. 211, 218. She also reported difficulty sleeping, that she was "not very social," was afraid of speaking with people, and spent most of her time in her bedroom. Tr. 211. Plaintiff's conditions allegedly affected her memory and ability to talk, complete tasks, concentrate, understand, follow instructions, and get along with others. Tr. 216. Plaintiff also noted difficulty communicating with others because her mind "wander[ed]" and she easily became overwhelmed when speaking to others. Tr. 216.
The ALJ gave little weight to Plaintiff's subjective symptom testimony. First, the ALJ noted that Plaintiff's activities of daily living conflicted with her testified limitations in social situations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (an ALJ may give little weight to a plaintiff's symptom testimony if such testimony conflicts with the plaintiff's activities of daily living). Here, for example, although Plaintiff testified that she needed an escort to mitigate her anxiety while using public transport, the record shows that Plaintiff rode a Greyhound bus from Oregon to Arizona by herself. Tr. 36, 341, 453. Indeed, Plaintiff reported that "she actually likes to travel to new places" and spoke with passengers on the bus about her artwork. Tr. 453. The record also reflects that Plaintiff took "some trips out of town to visit friends and family," including to Seattle. Tr. 344, 415. Furthermore, Plaintiff not only tolerated attending music venues to see shows, she was actually the lead singer of a band. Tr. 349. Plaintiff "was able to perform with her band in a venue in Albany, and got great feedback for her singing," despite Plaintiff's testimony that the band was informal and did not play shows. Tr. 53, 349. Plaintiff also testified that she lost most of her friends and, consequently, spent most of her time alone, yet she reported "difficulty with balancing appointments with providers and her social life" to a treating provider. Tr. 672. Because the ALJ identified the foregoing rationales, the ALJ did not err in discrediting Plaintiff's subjective symptom testimony.
Plaintiff argues that she engaged in the activities described above as "exposure" therapy to help overcome her disabling anxiety. Even assuming that Plaintiff's contention is true, her ability to ride a bus from Oregon to Arizona, sing at a music venue, and carry on a relatively busy social life directly contradict her alleged limitations. Plaintiff also argues numerous records show that she attended therapy appointments by telephone in order to cope with her allegedly debilitating social phobias. However, because the ALJ's interpretation of the record was reasonable, it must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (the ALJ's rational interpretation of the evidence must be upheld, even if the record is susceptible to other rational interpretations).
Second, the ALJ noted that although Plaintiff consistently reported depression, panic, and anger to her treating provider, those symptoms were described as "mild." See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (the ALJ permissibly discredited the plaintiff's subjective testimony due to inconsistencies in reported symptoms); Tr. 660, 666, 672, 678. Furthermore, Plaintiff's sleep difficulties were eventually adequately controlled with medication, after several other medications were reportedly ineffective. Tr. 620. Plaintiff's treating therapist, Amy Kammerer, Licensed Marriage and Family Therapist (LMFT), noted that Plaintiff "clearly" appeared "in a more regulated state," and taking sleep medication made "a big difference in mood and functioning." Tr. 620-21. Additionally, one treating provider indicated that Plaintiff's alleged sleep deficiencies originated from an inconsistent sleep schedule, which was exacerbated by Plaintiff's lack of work or school schedule. Tr. 660. The ALJ also observed that Plaintiff's otherwise-manageable anxiety and panic attacks increased in response to situational stressors. For example, Plaintiff was "in a 'panic'" the day after she found out a friend of hers had died, and reported increased instances of panic attacks after a second friend died. Tr. 383, 461. Plaintiff also experienced increased anxiety at the prospect of "aging out" of the foster care system without a confirmed place to live. Tr. 344. Indeed, as the ALJ noted, Plaintiff took herself off antidepressants in 2015 because she did not "feel all that depressed," although she reported to a treating provider that she thought she should begin taking medication again. Tr. 666. Ultimately, while the record demonstrates panic attacks and elevated anxiety, the ALJ's interpretation of the record is reasonable because the record reflects Plaintiff's symptoms became manageable shortly with medication and following the removal of situational stressors.
2. Lay Witness Testimony
Lay testimony describing a plaintiff's apparent symptoms and activities is competent evidence which must be considered. Molina v. Astrue, 675 F.3d 1104, 1114 (9th Cir. 2012) (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1995)). The ALJ must provide "germane" reasons for rejecting such evidence. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
Plaintiff's grandmother, Debra B. (Ms. B.), completed a third-party adult function report on June 1, 2015. Tr. 219. Ms. B. reported that Plaintiff suffered from PTSD, anxiety, panic attacks, and difficulty sleeping, and that Plaintiff's conditions affected her ability to talk, hear, complete tasks, concentrate, understand, follow instructions, get along with others, and remember information. Tr. 219, 220, 224. Ms. B. completed another third-party adult function report on April 11, 2016 where she gave similar testimony. Tr. 262. She noted that Plaintiff had issues with sleep and trusting others, which negatively affected her ability to function normally, including her inability to reliably attend medical appointments. Tr. 262. Ms. B. further testified that Plaintiff worried excessively over every task she was given, called her "in a panic" at least twice per week, and required step-by-step instructions. Tr. 262.
In the interest of privacy, this opinion uses only the first name and the initial of the last name of Plaintiff's grandmother.
The ALJ noted that Ms. B.'s first report showed greater functionality than Plaintiff's testimony; for example, Ms. B. stated that Plaintiff shopped at a mall for three to four hours every other month, yet, at the hearing, Plaintiff denied going to a mall since she was 13 years old. Tr. 222. Furthermore, Plaintiff denied seeing friends regularly, yet Ms. B. stated that Plaintiff slept over at friend's house "once or twice" per month. Tr. 20.
The ALJ observed that the remainder of Ms. B.'s testimony, including the second adult function report, was consistent with Plaintiff's testimony. Because the ALJ appropriately discredited Plaintiff's subjective symptom testimony due to conflicts with her activities of daily living, it follows Ms. B.'s consistent testimony was also properly discredited. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (an ALJ may discredit lay witness testimony when such testimony is substantially similar to a plaintiff's discredited subjective symptom testimony). Plaintiff argues the ALJ failed to discredit Ms. B.'s testimony that Plaintiff's tendency to miss medical appointments stemmed from her anxiety and lack of sleep. However, the ALJ noted generally that Ms. B.'s testimony conflicted with Plaintiff's robust activities outside the house, including sleeping over at a friend's house, going to the mall, carrying on a busy social life, riding a bus from Oregon to Arizona, and singing in a band. Tr. 20. Such activities indicate at least a minimal ability to reliably attend events despite allegedly disabling social anxiety and, as such, the ALJ did not err.
3. "Other Source" Opinion Testimony
The ALJ is required to consider all medical opinion evidence and is responsible for resolving conflicts and ambiguities in the medical testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). In reviewing an ALJ's decision, the court does not assume the role of fact-finder, but instead determines whether the decision is supported by substantial evidence in light of the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Care providers who are not "acceptable medical sources," such as physicians' assistants and counselors are still considered sources under the regulations that the ALJ can use in determining the "severity of [the individual's] impairment(s) and how it affects [the individual's] ability to work." 20 C.F.R. § 416.913(d). An "other" source may not, however, be given "controlling" weight as a treating medical source, See SSR 06-03p; and an ALJ may discount the opinion of an "other source" by providing "germane reasons" for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Plaintiff's treating counselor, Amy Kammerer, LMFT, completed a medical opinion questionnaire on August 26, 2015 indicating that she began treating Plaintiff in 2008. Tr. 332. LMFT Kammerer wrote that she engaged in therapy sessions with Plaintiff two-to-four times per month, and opined that Plaintiff suffered from PTSD, panic, and depression. Tr. 332. LMFT Kammerer noted that Plaintiff was triggered by "conflict or criticism of any kind," and struggled to follow through with major commitments, including school, support programs, and medical appointments. Tr. 333. LMFT Kammerer opined that PTSD caused Plaintiff to experience dissociative reactions to stressors and "exaggerated negative beliefs about herself and others." Tr. 339. She also opined that Plaintiff experienced a depressed mood for most of the day, with loss of energy and difficulty concentrating, and that Plaintiff's panic disorder caused recurrent panic attacks. Tr. 339.
On the check-the-box section of the questionnaire, LMFT Kammerer opined that Plaintiff was markedly impaired in the ability to: maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being distracted by them; complete a normal workday and workweek without psychological interruption; interact appropriately with the public; ask simple questions or request assistance; accept instruction and appropriately respond to criticism; travel to unfamiliar places or to use public transportation; and to set realistic goals or make plans independently of others. Tr. 336-38.
The ALJ gave little weight to LMFT Kammerer's opinion, noting that her assessed "marked" restriction on Plaintiff's ability to travel unfamiliar places or use public transportation was contradicted by the record. See SSR 06-03p, at *4-5 (an ALJ may consider the level of consistency between the "other source" opinion and other evidence of record). Plaintiff used public transportation to travel throughout her community, including to medical appointments and stores. Furthermore, Plaintiff travelled to Arizona on a bus, and travelled to Seattle to visit family, without reported difficulty. Tr. 341, 344, 415, 453. The ALJ did not err in contrasting Plaintiff's travel history with LMFT Kammerer's travel restriction.
Additionally, the ALJ noted that LMFT Kammerer's assessed social restrictions conflict with Plaintiff's ability to "shop, travel, and be social with friends." Tr. 22. As previously noted, Plaintiff travelled to Arizona by bus and spoke with other passengers about her interests, contradicting LMFT Kammerer's opinion that Plaintiff could not interact with members of the general public. Tr. 453. She also reported "difficulty balancing appointments with [treating] providers and her social life," indicating Plaintiff can maintain relationships despite her alleged impairments. Tr. 672. Furthermore, Plaintiff sang at a concert venue as part of a band and received compliments on her singing ability, indicating that she can interact appropriately with others. Tr. 349. While Plaintiff argues for a different interpretation of the record, the ALJ's reading is rational and must be upheld. See Burch, 400 F.3d at 679.
The ALJ also gave little weight to LMFT Kammerer's opinion that Plaintiff struggled to perform activities within a schedule, maintain regular attendance, and sustain an ordinary routine because Plaintiff's lack of work history meant that LMFT Kammerer did not have sufficient information upon which to base her opinion. The ALJ's reading of the record is reasonable when combined with Plaintiff's ability to conform to scheduled events in her social life, like meeting up with friends and conforming to public transportation schedules. However, even if the ALJ erred, he also provided other legally sufficient reasons to give little weight to LMFT Kammerer's opinion, such as conflicts with Plaintiff's daily activities; therefore, the ALJ's overall decision is upheld. See Cassel v. Berryhill, 706 Fed. Appx. 430, 432 (9th Cir. 2017) (applying harmless error rule to rejection of medical source opinion).
4. Plaintiff's RFC
The RFC is the most a person can do, considering her physical or mental impairments. See 20 C.F.R. § 416.945. The RFC must contemplate all medically determinable impairments, including those which the ALJ found non-severe, and evaluate all of the relevant testimony, including the opinions of medical providers and the subjective symptom testimony set forth by the claimant. Id.; SSR 96-8p available at 1996 WL 374184. In formulating the RFC, the ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only those limitations which are supported by substantial evidence must be incorporated into the RFC. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).
The ALJ gave great weight to the opinions of the state agency medical consultants, Ben Kessler, Psy.D., and Joshua Boyd, Psy.D., who gave opinions in June and October of 2015. Tr. 79-80, 95-97. However, the ALJ gave no weight to the doctors' assessment that Plaintiff would "benefit from advanced notice and additional training" for changes in the workplace and an "understanding supervisor." Id. The ALJ reasoned Plaintiff's RFC accounted for the recommended "understanding supervisor," advanced notice, and additional training provisions, because the RFC "prevent[ed] exacerbation of anxiety with feelings of being overwhelmed or irritable with others that could lead to inability to sustain work activity on a regular basis." Tr. 23.
Plaintiff's RFC restricts her to simple, repetitive, and routine tasks "requiring no more than occasional interaction with coworkers and the general public." Tr. 19. --------
Plaintiff argues the ALJ erred because the RFC does not accommodate the doctors' assessment and, therefore, the ALJ's hypothetical to the VE was incomplete. The ALJ erred by formulating an RFC that does not comport with Drs. Kessler and Boyd's opinions. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (a hypothetical presented to the VE must include all limitations supported by substantial evidence because the hypothetical is based on the RFC). While Plaintiff's RFC restricts contact with coworkers and the general public, there is no restriction on contact with supervisors. For the purpose of formulating an RFC, supervisors are generally considered a separate "category" from a coworker or the general public. See Dennis v. Colvin, WL 3867506 at *8 (D. Or. 2015) ("limitations on interactions with the public or coworkers do not address the separate dynamic created by the supervisory relationship"); Thomas v. Berryhill, WL 5158666 at *2-3 (D. Or. 2017) (an RFC limiting interactions with coworkers and the public did not include limitations with supervisors); DeMello v. Berryhill, WL 4247984 at *5 (E.D. Cal. 2017) (an RFC limiting contact with coworkers did not include a limitation on contact with supervisors).
The ALJ's error, however, is harmless. See Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an error is harmless if it is inconsequential to the ultimate non-disability decision). Both the sweeper-cleaner and laundry laborer jobs identified by the VE at step five do not require any significant interaction with supervisors, as the DOT indicates that neither position requires talking, speaking, or hearing to perform. DOT 389.683-010, 1991 WL 673279; 361.687-018, 1991 WL 672992. Additionally, neither position involves "[a]ttending to the work assignment instructions or orders of [a] supervisor" in a significant manner. See id.; DOT Appendix B: Explanation of Data, People, and Things, 1991 WL 688701. Moreover, both jobs involve dealing "with standardized situations with occasional or no variables in or from [normal] situations encountered on the job," negating the need for the doctors' assessment that Plaintiff required additional training or notice for changes in the workplace. DOT 389.683-010; 361.687-018. Thus, even if the ALJ included a provision in Plaintiff's RFC requiring limited interaction with supervisors or additional training in the workplace, the jobs identified at step five would remain viable.
RECOMMENDATION
The Commissioner's decision is based on substantial evidence and is free from harmful legal error. For the reasons stated above, the Commissioner's decision should be AFFIRMED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. DATED this 6th day of August, 2018.
/s/John Jelderks
John Jelderks
United States Magistrate Judge