Gutto v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 05/09/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding at most harmless error in the
Administrative Law Judge’s (ALJ) decision, the court ORDERS that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the
Commissioner’s final decision.
On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
Plaintiff applied for DIB and SSI benefits, alleging disability beginning June 24,
2012. (R. 12, 164, 168). Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying benefits. She argues that the ALJ
erred in applying the three phases for evaluating step four of the sequential evaluation
process and that the vocational expert (VE) testimony impermissibly conflicts with the
Dictionary of Occupational Titles (DOT).
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). The Act provides that in judicial review “[t]he findings of the
Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.”
42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual findings are
supported by substantial evidence and whether she applied the correct legal standard. Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than
a preponderance; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. Next, the Commissioner assesses claimant’s
residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner then evaluates steps four and five of the sequential process-determining whether, in light of the RFC assessed, claimant can perform her past relevant
work; and at step five whether, when also considering the vocational factors of age,
education, and work experience, claimant is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the
burden is on Plaintiff to prove a disability that prevents performance of past relevant
work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter,
245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs in the economy which are
within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The court addresses Plaintiff’s allegations in the order presented in her Brief, and
finds no reversible error.
At step four of the sequential evaluation process, the ALJ is required to make
specific findings in three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)
(citing Soc. Sec. Ruling (SSR) 82-62, 1975-1982 West’s Soc. Sec. Reporting Serv.,
Rulings 809 (1983)). In phase one, “the ALJ should first assess the nature and extent of
[the claimant’s] physical limitations.” Winfrey, 92 F.3d at 1023. In phase two, the ALJ
must “make findings regarding the physical and mental demands of the claimant’s past
relevant work.” Winfrey, 92 F.3d at 1024. Finally, in phase three, the ALJ must
determine “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., 92 F.3d at
1023. These findings are to be made on the record by the ALJ. Id. at 1025; see also, SSR
82-62, 1975-1982 West’s Soc. Sec. Reporting Serv., Rulings, at 813 (“decision must
contain . . . specific findings of fact” regarding each of the three phases).
The Tenth Circuit has explained that an ALJ may rely upon VE testimony in
making her findings at phase two and phase three of step four. Doyal v. Barnhart, 331
F.3d 758, 761 (10th Cir. 2003). The ALJ may not delegate the step-four analysis to the
VE. She may rely on VE information regarding the demands of Plaintiff’s past relevant
work and whether a person with Plaintiff’s RFC could meet those demands, and she may
accept the VE’s opinions. Doyal, 331 F.3d at 761. The critical distinction is whether the
ALJ relied upon the VE testimony in making the findings or whether the ALJ delegated
the phase two and phase three findings to the VE. Id. 331 F.3d at 761. Where the ALJ
makes the phase two and phase three findings and quotes the VE testimony approvingly
in support of those findings, she has properly relied upon the VE testimony. Id.
Plaintiff acknowledges that the ALJ performed phase one of the step four process
when she assessed RFC. She argues, however, that the ALJ erred at both phase two and
phase three of the step four process. She argues that the ALJ failed to make adequate,
specific, on the record findings regarding the demands of her past relevant work as a
security guard in her position at First Response in 2005 to 2007. This is so, she argues,
because although she provided evidence regarding her work as a security guard in 199395, she did not provide information regarding how she performed the position at First
Response, and the 1993 position occurred too long ago to constitute past relevant work.
(Pl. Br. 11-12). She argues, based upon this court’s decision in Nagengast v. Astrue, 101287-JWL, 2011 WL 3794283, *3 (D. Kan. Aug. 25, 2011), that simply relying upon the
DOT description of an occupation will not satisfy the phase two requirements. (Pl. Br.
12). And, she argues that even the VE testimony regarding the demands of the job at
First Response may not be relied upon because there is no record evidence regarding the
demands of that job upon which the VE could have properly relied. Id. Plaintiff then
argues that because there is no record evidence regarding how she performed her past
relevant work as a security guard, it is impossible at phase three of step four to determine
whether Plaintiff is able to meet those unknown job demands. (Pl. Br. 13).
The Commissioner argues that Plaintiff bears the burden at step four, so her
argument that the record does not contain sufficient evidence to demonstrate the demands
of Plaintiff’s past relevant work is misplaced. (Comm’r Br. 4-5). She argues that an ALJ
may rely upon the DOT description unless the claimant provides evidence showing
otherwise. Id. at 5. She argues that, in any case the record evidence supports the finding
that Plaintiff can perform the job of a security guard as that job is usually performed in
the economy, based on the DOT and the testimony of the VE. Id. at 5-6.
The court finds no error in the ALJ’s step four determination. As Plaintiff
acknowledges, she testified at the hearing (at which the VE also appeared) that in 200507 she worked as a security guard for First Response, “a truck company.” (R. 33). She
testified that she worked “[c]hecking out trucks and coming in and out and walking the
grounds.” Id. The ALJ found that a job as a security guard is “light in exertion with an
SVP [(specific vocational preparation)] of 3, [and] semi-skilled.” (R. 17). As Plaintiff’s
Brief suggests, this is the DOT’s description of the job. (Pl. Br. 12). And, as Plaintiff
points out this court has held that a DOT job description is insufficient alone to satisfy the
phase two requirements of SSR 82-62. Nagengast, 2011 WL 3794283, at *3. However,
the ALJ in this case did not rely on the DOT job description alone to satisfy the
requirement that she determine the demands of claimant’s past relevant work.
Here, the ALJ had Plaintiff’s testimony that her job as a security guard for a truck
company required checking out trucks, coming in and out, and walking the grounds, and
the ALJ had the assistance of the VE who reviewed the record, listened to Plaintiff’s
testimony, and testified herself, (as the ALJ specifically noted) “that a hypothetical
individual, like claimant, could perform this job based upon the above found residual
functional capacity.” (R. 18). Moreover, as the Commissioner points out the ALJ had
Plaintiff’s Work History Report, in which she reported that she had worked as a security
guard in 1993-95, and checked trucks in and out, walked the parking lot and the grounds,
did no lifting, and did not use machines, tools, or equipment, or technical knowledge or
skills. (R. 224, 228). While the work done in 1995 was not within fifteen years of
Plaintiff’s alleged onset date and consequently (as Plaintiff points out) does not qualify as
past relevant work, the duties listed are remarkably similar to those described in
Plaintiff’s testimony regarding her work at First Response. Further, the VE listened to
Plaintiff’s testimony, and based on that testimony and her review of Section E of the
record in this case (“Disability Related Development” - including Plaintiff’s Work
History Report) classified Plaintiff’s past relevant work as a security guard as light, semiskilled, with an SVP of 3. (R. 48-49). Another critical difference between this case and
Nagengast is that here the ALJ relied upon testimony of a VE, whereas in Nagengast the
ALJ did not even call on the services of a VE. Thus, in Nagengast, the ALJ was acting as
his own vocational specialist and there was nothing in the decision to indicate whether he
considered “the job’s demands in work-related activities that the ALJ found restricted.”
Nagengast, 2011 WL 3794283, at *3.
Plaintiff argues that what is missing in this case is any testimony or other evidence
regarding the physical demands of her work for First Response with regard to “stooping,
kneeling, crouching, crawling, and exposure to cold environments, all work-related
activities the ALJ found restricted.” (Pl. Br. 12). Plaintiff is not entirely correct in this
assertion. Plaintiff testified that she worked as a security guard for a truck company.
Inherent in that testimony are certain implications upon which the VE, and by extension
the ALJ might properly (and did) rely in formulating her opinion regarding the demands
of Plaintiff’s past relevant work. As the Commissioner suggests, the burden of proof is
on Plaintiff at step four of the sequential evaluation process, and it is Plaintiff’s burden to
establish the demands of her past work--at least as those demands differ materially from
her testimony or reports, or from the mine run of jobs in the occupation in which her past
relevant work appears. Plaintiff did not testify that her past work at First Response
required greater stooping, kneeling, crouching, crawling, or exposure to cold
environments than an expert would expect in the mine run of security guard jobs for a
truck company, and in her Work History Report she reported her security guard job in
1993-95 required no stooping, kneeling, crouching, or crawling. To the extent Plaintiff
argues that it was the ALJ’s duty to ask more specific questions in that regard, the court
notes that Plaintiff was represented by an attorney before the Social Security
Administration and at the hearing, and:
in cases such as this one where the claimant was represented by counsel,
“‘the ALJ should ordinarily be entitled to rely on the claimant's counsel to
structure and present [the] claimant’s case in a way that the claimant’s
claims are adequately explored,’ and the ALJ ‘may ordinarily require
counsel to identify the issue or issues requiring further development.’ ”
[Henrie v. Dep’t of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir.
1991)] (quoting Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir.1997)).
Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008)
Moreover, to the extent that Plaintiff argues that it is error to rely on the job
description from 1993-95, the court notes that the Work History Report was completed in
September of 2012, and instructed Plaintiff to “List all jobs that you have had in the 15
years before you became unable to work because of your illness, injuries or conditions.”
(R. 224). The job at First Response from 2005-07 clearly fits within these requirements
because it occurred both before her alleged onset date and before she filled out the Work
History Report, and it should have been included in the jobs listed in the Work History
Report. The court might speculate that the 1993-95 job as a security guard was nearly
identical to Plaintiff’s job at First Response and that is why she forgot or decided not to
include the First Response job in her Work History Report. But, that would be mere
speculation, and in any case the court may not (and need not) speculate. For, Plaintiff
may not “hide the ball” from the agency and then claim error in the agency’s alleged
failure to find it. The ALJ made an on-the-record finding regarding the demands of
Plaintiff’s past relevant work as a security guard, the record evidence supports that
finding, and Plaintiff provided no record evidence to suggest that her past relevant work
at First Response had demands even as restrictive as the limitations assessed by the
ALJ–such as only occasional stooping, kneeling, crouching, or crawling.
Because Plaintiff has not shown that the ALJ erred at phase two in stating the job
demands of her past relevant work, her phase three argument (that it is impossible at
phase three to determine whether Plaintiff is able to meet the unknown job demands)
must also fail. Plaintiff has shown no error in the ALJ’s three-phase step four analysis.
Conflict with the DOT
Plaintiff claims that the VE testimony (that the security guard job would meet the
limitation that Plaintiff can never be in a cold environment for more than one hour before
a change in temperature occurs) conflicts with the DOT because the DOT specifies that a
security guard position requires exposure to weather (defined as “exposure to outside
atmosphere”) frequently. (Pl. Br. 13-14) (citing DOT, DICOT 372.667-030, 1991 WL
673099; and Selected Characteristics of Occupations (SCO) App’x D, (available at
http://ssaconnect.com/tfiles/SCO-Appendicies.pdf, last visited May 8, 2017)). Plaintiff
bases this argument upon the VE’s testimony that this work requires an individual to “be
exposed to cold temperature occasionally,” and the fact that “occasionally” and
“frequently” are terms of art in this context. (Pl. Br. 14) (quoting R. 50) (emphasis in
Plaintiff’s Brief omitted). Occasionally refers to a frequency of up to one-third of the
time, whereas frequently refers to a frequency of between one-third and two-thirds of the
time. E.g., SCO, App’x C, C-3 (available at http://ssaconnect.com/tfiles/SCO10
Appendicies.pdf, last visited May 8, 2017). The court will assume that the VE erred
when she testified that a security guard position requires exposure to cold temperature
only occasionally, and that, in fact, such a position requires exposure to cold temperature
frequently. But this error, if it is error, is not material to the decision at issue.
As Plaintiff acknowledges in her Brief, when the VE testified that a security guard
position requires an individual to “be exposed to cold temperature occasionally,” the ALJ
responded that the VE “lost me” because “I defined cold for you as one hour at a time
before a temperature change.” (R. 50); see also (Pl. Br. 14). Therefore neither frequent
exposure nor occasional exposure to the cold is relevant in this situation so long as
exposure to cold temperature for one hour at a time before a temperature change can be
accommodated within the DOT’s requirement that a security guard position requires
exposure to the weather (cold temperature) from one-third to two-thirds of the time, or
between approximately three to six hours of an eight-hour workday.
Based upon the ALJ’s clarification, the VE testified that a hypothetical individual
with Plaintiff’s characteristics would be able to perform the security guard position both
as performed by Plaintiff, and as generally performed in accordance with the DOT. Id. at
50-51. And, she testified that with the clarification and corrections made, her testimony
was consistent with DOT. Id. at 51. The ALJ found that the VE testimony is consistent
with the DOT. Id. at 18. Plaintiff’s argument implies that because a security guard might
be exposed to cold for two-thirds of a day there is insufficient time to meet the
requirements of a temperature change as defined by the ALJ. That is not correct.
If such an individual is exposed to cold temperature for one hour at a time for twothirds of a workday, she would spend about six hours of her workday in the cold, and
would spend at least two hours, or 120 minutes having a temperature change, constituting
approximately 20 minutes at a time for a temperature change, six times throughout the
day. This does not show error in either the VE’s testimony or the ALJ’s findings. The
problem with Plaintiff’s argument is further compounded when one recognizes that work
as defined in the Social Security regulations provides for a lunch break and two other
breaks throughout the workday spaced at approximate two-hour intervals during which
the worker would also have a temperature change. Plaintiff has not shown a conflict
between the VE testimony and the DOT.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 9th day of May 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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