Opinion
Case No. CIV-18-141-F
09-10-2018
LISA ANN TATRAI, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Lisa Tatrai, seeks judicial review of the Social Security Administration's denial of her application for supplemental security income (SSI). This matter has been referred by United States District Judge Stephen P. Friot for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR) [Doc. No. 13], and both parties have briefed their respective positions. For the reasons set forth below, it is recommended that the Court affirm the Commissioner's decision.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On April 30, 2013, Plaintiff protectively filed an application for SSI. See AR 10. The Social Security Administration denied the application initially and on reconsideration. AR 104, 117. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated on February 21, 2017. AR 7-32. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. § 416.920. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity since her amended onset date of April 30, 2013. AR 12.
At step two, the ALJ determined Plaintiff had the severe impairments of osteoarthritis, chronic obstructive pulmonary disorder (COPD), depressive, bipolar, and related disorders, polysubstance use, and anxiety and obsessive-compulsive disorders. AR 12-17. 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, Appendix 1. AR 17-20.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding:
[Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except [Plaintiff] can lift/carry/push/pull 10 pounds frequently and 20 pounds occasionally. [Plaintiff] can sit for 6 hours total in an 8-hour workday. [Plaintiff] can stand/walk for a total of 6 hours in an 8-hour work day. [Plaintiff] cannot have even moderate exposure to fumes, odors, dusts, gases, humidity, and temperature extremes. [Plaintiff] can perform simple tasks with routine supervision. [Plaintiff] can have no public contact. [Plaintiff] can do no customer service work. [Plaintiff] is able to interact appropriately with supervisors and co-workers on a superficial work basis. [Plaintiff] is able to adapt to work situations. [Plaintiff] is able to maintain adequate level of attention and concentration most of the time. Pace is adequate for employment. Persistence is variable. [Plaintiff] has lapses in attention and concentration from time to time. [Plaintiff] can perform better in a setting where she could mostly work alone with limited requirements to interact with co-workers.Id. at 20-25. The ALJ then found Plaintiff could not perform any past relevant work. AR 25. Relying on the testimony of a vocational expert (VE), the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—office cleaner, garment sorter, and monitor. AR 25-26. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 26.
III. 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 as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
IV. Claims Presented for Judicial Review
Plaintiff alleges the ALJ erred by including "improper terms" in the RFC. Pl.'s Br. 3-8. The Court disagrees and finds this argument is without merit.
V. Analysis
Plaintiff contends the RFC and hypothetical questions posed to the VE contained several terms that were so "open to interpretation" that they "corrupted the RFC." Pl.'s Br. 4. Specifically, Plaintiff takes issue with the ALJ's determination that she was "able to maintain adequate level of attention and concentration most of the time," that her "pace was adequate for employment," that her "persistence is variable," and that she "has lapses in attention and concentration from time to time." Id. at 5-7. Plaintiff argues that the ALJ failed to define what she meant by these terms, did not clarify what she meant for the VE to understand from these hypotheticals, and used terms "open for interpretation by the listener and, included vocational findings in her RFC which usurped the role of the VE." Id. at 5. As a result, Plaintiff asserts the work-related mental limitations included in the RFC were too imprecise for the Court to meaningfully evaluate the ALJ's decision "without making an assumption about what the ALJ meant and how the VE took what she meant." Id. at 6.
Plaintiff also contends that the ALJ's finding that Plaintiff's ability to maintain pace was "adequate for employment" constitutes a vocational conclusion rather than a work-related limitation that could be evaluated by the vocational expert. Id. at 6. While Social Security Ruling (SSR) 96-8p provides that in assessing the RFC, non-exertional limitations must be expressed in terms of work-related functions, it is clear that by "adequate" the ALJ meant Plaintiff has no limitations with regard to pace that would preclude employment. As such, the inclusion of this statement in the RFC is essentially meaningless and has no impact on the VE's conclusions. To the extent the ALJ erred with regard to this point, the error is harmless. See Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (holding finding of harmless error is appropriate when the court can "confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way").
More specifically, Plaintiff argues the phrase "most of the time" is excessively vague and could mean Plaintiff can maintain attention for anywhere between "51% of the time or 90% of the time." Id. at 5. Plaintiff also argues that the ALJ's finding that Plaintiff's persistence is "variable" can "be interpreted in many ways" and that the phrase is too "indeterminate" to be useful as guidance to a VE "without knowing its definition before answering." Pl.'s Br. 6. Plaintiff raises a similar objection to the ALJ's finding that Plaintiff has "lapses in attention and concentration from time to time," arguing that the ALJ was unclear about the number and duration of the lapses Plaintiff would have during the workday. Id. at 6-7. Plaintiff contends that without defining these imprecise terms, the ALJ has crafted an RFC that is not properly reviewable by the Court, and that the Court has no way of knowing how the VE understood the "vague, imprecise" terms used in the RFC." Id. at 7. The Court finds Plaintiff's argument does not constitute error.
Tenth Circuit case law and Social Security regulations establish that an ALJ may rely upon VE testimony in determining whether a Plaintiff is disabled at step five of the sequential evaluation. See SSR 00-4p, 2000 WL 1898704 at *2; Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990) ("The ALJ properly relied on the testimony of a vocational expert that plaintiff had residual functional capacity for a limited range of light work and there were jobs he could perform. This testimony is substantial evidence supporting the ALJ's conclusion that plaintiff was not disabled."); see also Rogers v. Astrue, 312 F. App'x. 138, 142 (10th Cir. 2009) (unpublished) ("Providing this type of professional, experience-based evidence is precisely what reliance on evidence from a VE is meant to accomplish. The whole point of vocational testimony is to go beyond facts already established through publications eligible for judicial or administrative notice and provide an alternative avenue of proof.").
While the inclusion of more precise durational terms may have been helpful to the VE, as the Commissioner correctly notes, there is nothing in SSR 96-8p that requires "the exacting definitions that Plaintiff seeks" for an ALJ's decision to be supported by substantial evidence. Def.'s Br. 11. Indeed, the inclusion of vague terms in the RFC does not equate to reversible error in all instances. See Burnette v. Astrue, No. 2:08-CV-009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) ("The limitation that plaintiff may have 'some problem'" with social interaction and adaptive functioning may not be a medically precise term of art. However, it adequately communicates to the VE that the claimant may have difficulty in these areas of functioning in the work world. Plaintiff's potential problems with social interaction and adaptive functioning do not lend themselves to easy qualification or expression."). This is particularly true where the VE understood the ALJ's hypothetical. In a case from the United States District Court for the Middle District of Louisiana, the plaintiff argued that the ALJ used vague terms subject to multiple interpretations in the hypothetical. Finley v. Colvin, No. CV 14-430-SDD-RLB, 2015 WL 5162476, at *4 (M.D. La. Aug. 12, 2015), report and recommendation adopted, No. CV 14-430-SDD-RLB, 2015 WL 5162396 (M.D. La. Sept. 1, 2015). The court noted that the transcript of the hearing showed no sign of confusion on the part of the VE because the VE did not ask for clarification of the terms and the plaintiff did not cite any evidence suggesting the VE was confused. Id.; see also Gerbrick v. Comm'r, Soc. Sec. Admin., No. CIV. SAG-13-1881, 2014 WL 4826158, at *2 (D. Md. Sept. 22, 2014) (rejecting an argument that a term in a hypothetical was ambiguous when the plaintiff failed to object to the question and the VE did not appear confused by it). Further, the terms utilized by the ALJ in Finley were "commonplace terms with everyday meaning that did not require further elaboration or clarification." Finley, 2015 WL 5162476, at *4; see also Bede-Morrell v. Colvin, No. C2:13-CV-01317-JCC, 2014 WL 2807661, at *4 (W.D. Wash. May 16, 2014), report and recommendation adopted, No. C13-1317-JCC, 2014 WL 2807670 (W.D. Wash. June 20, 2014) (affirming denial of benefits and noting that the plaintiff cited "no authority that an ALJ is required to define, cite to, or cross-reference each and every descriptive word used in explaining the RFC").
Plaintiff cites Chapo v. Astrue, 682 F.3d 1285, 1290, n.3 (10th Cir. 2012), and Groberg v. Astrue, 505 F. App'x 763, 770 (10th Cir. 2012) (unpublished), for the proposition that limiting an individual to "simple work" is too vague and analogized it to the terms used by the ALJ in this matter. Those cases were specific to the phrase "simple work," and the Court does not find those cases applicable to the facts in this matter.
Here, the VE did not ask any follow-up questions or offer any commentary on whether the terms appeared vague. AR 91-103. At no point during the hearing did the VE appear confused by the terminology used by the ALJ or seek clarification about the meaning of the terms used in the RFC. Id. Notwithstanding Plaintiff's argument to the contrary, the Court finds the terms and phrases at issue—"adequate," "most of the time," "variable," and "from time to time"—are common phrases with meaning readily understandable by a VE. As such, the Court finds no error.
The Court also notes that Plaintiff's counsel at the administrative hearing did not object to the terms utilized by the ALJ, but did take an active role in questioning the VE. Id. --------
RECOMMENDATION
For the foregoing reasons, it is recommended that the Commissioner's decision be affirmed.
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 September 24, 2018. 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 District Judge in this matter.
ENTERED this 10th day of September, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE