Baskette v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 8/22/2018. Plaintiff's Objection to the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (DN 26 ) is OVERRULED. Magistrate Judge King's Findings of Fact, Conclusions of Law, and Recommendation (DN 25 ) are ADOPTED to the extent not inconsistent with this opinion. Plaintiff's Motion for Summary Judgment (DN 18 ) is DENIED AS MOOT. Plaintiff's Complaint (DN 1 ) is DISMISSED WITH PREJUDICE. cc: Counsel (CDF)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00135-GNS-LKK
DUSTY BASKETTE
PLAINTIFF
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Objection to the Magistrate Judge’s Report
and Recommendation (DN 26).
For the reasons stated below, Plaintiff’s Objection is
OVERRULED, the Magistrate Judge’s Findings of Fact, Conclusions of Law, and
Recommendation (“R. & R.”) (DN 25) is ADOPTED to the extent not inconsistent with this
opinion, Plaintiff’s Motion for Summary Judgment (DN 18) is DENIED AS MOOT, and
Plaintiff’s Complaint (DN 1) is DISMISSED WITH PREJUDICE.
I.
A.
BACKGROUND
Disability
In September 2013, Plaintiff Dusty Baskette (“Plaintiff”) applied for disability insurance
benefits and supplemental security income.
Plaintiff alleged she had become disabled on
January 1, 2003, as a result of seizures, hypothyroidism, hyperlipidemia, double pneumonia,
hypertension, anxiety, depression, coronary artery disease, migraines, anemia, COPD,
degenerative disc disease, and chronic pain disorder. (Administrative R. 146-47, 224-31, DN 151 to DN 15-7 [hereinafter R.]). On January 13, 2014, the Social Security Administration
(“SSA”) notified Plaintiff that her benefits claims had been denied. (R. at 146-57). Plaintiff
requested reconsideration via case review on February 19, 2014. (R. at 158). The SSA notified
Plaintiff that an independent review by a physician and disability examiner in the state agency
found the previous denial of benefits proper. (R. at 161-74). Plaintiff then requested a hearing
before an Administrative Law Judge and participated in a hearing before Administrative Law
Judge John R. Price (“ALJ”) on February 11, 2016. (R. at 64-96, 175-77).
At the hearing, the ALJ took testimony from a vocational expert, William Harpool
(“Harpool”). The ALJ described a hypothetical individual with Plaintiff’s approximate age,
education, work experience, and restrictions—including her capability to perform “simple
routine repetitive tasks”—and inquired whether such an individual could perform work in the
national economy. (R. at 91-92). Harpool noted jobs such as light unskilled inspecting, bench
assembly, and simple hand working jobs, including labeling items, folding, and packing, and
referenced each job’s Dictionary of Occupational Titles (“DOT”) code and number of positions
in the region and nationwide. (R. at 92). The ALJ then inquired whether Plaintiffs credentials
were consistent with the hypothetical, to which Harpool replied that although “[n]ot necessarily
inconsistent[,]” the DOT does not address that, within light work, one could stand six hours, and
have the “[o]pportunity to sit a couple hours[,]” but that not all light work positions would
accommodate that, reducing the overall number of suitable positions he had previously noted by
20-30 percent. (R. at 92-93). Additional examination by Plaintiff’s counsel addressed the
limitation to simple routine repetitive work, and inquired whether that limitation “would
preclude the ability to perform detailed written and oral instructions,” to which Harpool
responded, “Detailed. Yes.” (R. at 94).
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B.
ALJ’s Decision
Following the hearing, the ALJ denied Plaintiff’s claim, reasoning that Plaintiff had not
been under a disability from January 1, 2003, through April 14, 2016, the date of the decision.
(R. at 64-96). In reaching his decision, the ALJ evaluated Plaintiff’s application under the fivestep sequential evaluation process promulgated by the Commissioner. (R. at 43-58). First, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since January 1, 2003, the
alleged onset date. (R. at 45). Second, the ALJ determined that Plaintiff’s “degenerative disc
disease of the lumbar spine, chronic obstructive pulmonary disease (COPD), conversion
disorder/pseudoseizures, and thyroid disorder” were “severe” impairments within the meaning of
the regulations. (R. at 45). The ALJ also found that Plaintiff’s coronary artery arteriosclerosis,
depression, anxiety, migraine headaches, anemia, hyperlipidemia, gastroesophageal reflux
disease (GERD), osteoarthritis, and opiate and barbiturate abuse were not severe impairments
within the meaning of the regulations. (R. at 46-48). Third, the ALJ determined that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled one of
the listed impairments in Appendix 1.1 (R. at 48-50). Fourth, the ALJ found Plaintiff has the
residual functional capacity (“RFC”) to perform light work, subject to limitations.2 (R. at 50-56).
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20 C.F.R. Part 404, Subpart P, Appendix 1 contains the listing of impairments recognized by
the SSA that may qualify an individual for benefits.
2
The ALJ’s findings regarding Plaintiff’s restrictions read:
[T]he claimant . . . can lift ten pounds frequently and twenty pounds occasionally,
with the option to sit and stand at thirty minute intervals in a day taking a minute
or two to change positions, limited to occasional bending, stooping, kneeling,
crouching, and crawling, limited to occasional climbing of ramps and stairs, no
climbing of ladders, ropes, or scaffolding, no work around hazards such as
unprotected heights or dangerous moving machinery, no concentrated exposure to
vibration, requires avoidance of hot or cold temperature extremes, no
concentrated exposure to dust, gases, or pulmonary irritants, is capable to
performing simple routine repetitive tasks, work should be a low stress
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Relying on Harpool’s testimony, the ALJ found Plaintiff unable to perform any of her past
relevant work as a cashier. (R. at 56). Fifth, the ALJ considered Plaintiff’s residual functional
capacity, age, education, and past work experience, as well as Harpool’s testimony. (R. at 5657). The ALJ concluded that Plaintiff was capable of performing a significant number of jobs
that exist in the national economy and has not been under a “disability,” as defined in the Social
Security Act,3 since the alleged onset date. (R. at 57). Plaintiff filed a request for review, which
the Appeals Council denied. (R. at 1-9, 222-23).
C.
Plaintiff’s Federal Claim
Plaintiff filed suit in this Court seeking judicial review of the Commissioner’s final
decision. (Compl., DN 1). Following the filing of the administrative record and fact and law
summaries from each party, Magistrate Judge King recommended that the final decision of the
Commissioner be affirmed. (R. & R. 1-5).
Plaintiff objected to Magistrate Judge King’s recommendation; the Commissioner did not
respond. (Pl.’s Obj., DN 26). This matter is ripe for adjudication.
II.
JURISDICTION
The Court has jurisdiction to examine the record that was before the Commissioner on
the date of the Commissioner’s final decision and to enter judgment affirming, modifying, or
reversing that decision. See 42 U.S.C. § 405(g).
environment with little to no change in routine on a day to day basis and no fast
paced production rate or quota work demands.
(R. at 56).
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The term “disability” is defined as an “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) (Title II); see also § 1382c(a)(3)(A) (utilizing
an identical definition of “disability” under Title XVI).
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III.
STANDARD OF REVIEW
District courts review de novo the parts of a magistrate judge’s R. & R. to which
objections are raised, and in doing so may accept, reject, or modify, in whole or in part, the R. &
R. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). This differs from the standard applied to the
Commissioner’s decision. That decision, rendered by an ALJ, is reviewed to determine “whether
it is supported by substantial evidence and was made pursuant to proper legal standards.” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). Substantial
evidence 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) (internal quotation marks omitted)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Where substantial evidence
supports the ALJ’s decision, a court is obliged to affirm. Siterlet v. Sec’y of Health & Human
Servs., 823 F.2d 918, 920 (6th Cir. 1987) (citation omitted). A court should not attempt to
second-guess the factfinder with respect to conflicts of evidence or questions of credibility. Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (citation omitted).
IV.
DISCUSSION
The Magistrate Judge recommended that the final decision of the Commissioner, via the
ALJ’s decision, be affirmed and Plaintiff’s Complaint be dismissed. (R. & R. 1-5). Plaintiff
objects, arguing that Magistrate Judge King ignored relevant precedent of this Court and
“relie[d] on conjecture and post hoc argument in recommending affirmance” of the ALJ’s
decision. (Pl.’s Obj. 1). She argues that the Residual Functional Capacity (“RFC”) assigned by
the ALJ, limiting Plaintiff to performance of “simple, routine, repetitive work tasks” as supported
by the testimony of the vocational expert, is inconsistent with the ultimate finding that Plaintiff
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could perform several jobs that require more complex, detailed reasoning as defined in the DOT.
(Pl.’s Obj. 1).
The DOT describes the General Educational Development component of a claimant’s
abilities as having three divisions: Reasoning Development, Mathematical Development, and
Language Development. U.S. Dep’t of Labor, Dictionary of Occupational Titles, app. C (rev. 4th
ed. 1991). The Reasoning Development division has six levels, in ascending order of ability. Id.
Level 1 includes the ability to “[a]pply commonsense understanding to carry out simple one- or
two-step instructions[,]” whereas Level 2 includes the ability to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions.”
Id. The
positions of final inspector, bench assembler, and folder, referenced by Harpool, are all described
in the DOT as having a Reasoning Development requirement of Level 2.
Dictionary of
Occupational Titles 686.685-030, 706.684-042, 727.687-054.
Unlike the DOT’s more precise levels system, the SSA’s regulations separate a
claimant’s ability to understand and remember things and to concentrate into just two categories:
“short and simple instructions” and “detailed” or “complex” instructions.
20 C.F.R. §
416.969a(c)(1)(iii); see also 20 C.F.R. pt. 404, subpart P, app. 1, Listing 12.00C(3) (“You may be
able to sustain attention and persist at simple tasks but may still have difficulty with complicated
tasks”). As noted by our sister court:
To equate the Social Security regulations[’] use of the term “simple” with its use
in the DOT would necessarily mean that all jobs with a reasoning level of two or
higher are encapsulated within the regulations’ use of the word “detail.” Such a
“blunderbuss” approach is not in keeping with the finely calibrated nature in
which the DOT measures a job’s simplicity.
Russell v. Comm’r of SSA, No. 1:13-CV-291, 2014 U.S. Dist. LEXIS 43646, at *40 (N.D. Ohio
Mar. 31, 2014) (quoting Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005)). The
Russell court relied heavily upon Meissl in its consideration of this issue, quoting:
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Even more problematic for Meissl’s position is that she ignores the qualifier the
DOT places on the term “detailed” as also being “uninvolved.” This qualifier
certainly calls into question any attempt to equate the Social Security regulations’
use of the term “detailed” with the DOT’s use of that term in the reasoning levels.
Instead of simply seeking to equate the two scales based on their serendipity that
they happen to employ the same word choice, a much more careful analysis is
required in comparing the claimant’s RFC with the DOT’s reasoning scale.
Here, the ALJ found that Meissl could perform not just simple tasks but also ones
that had some element of repetitiveness to them. A reasoning level of one on the
DOT scale requires slightly less than this level of reasoning. While reasoning
level two notes the worker must be able to follow “detailed” instructions, it also
(as previously noted) downplayed the rigorousness of those instructions by
labeling them as being “uninvolved.”
Id. at *40-41 (quoting Meissl, 403 F. Supp. 2d at 984). The court in Meissl thus concluded that
the ALJ’s limitation for the plaintiff was consistent with Level 2 reasoning. Meissl, 403 F. Supp.
2d at 984-85; see also Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (holding that
“level-two reasoning appears more consistent with Plaintiff’s RFC” to “simple and routine work
tasks”); Money v. Barnhart, 91 F. App’x 210, 215 (3d Cir. 2004) (“Working at reasoning level 2
would not contradict the mandate that her work be simple, routine[,] and repetitive.”). Relying
on the same reasoning, the court in Russell concluded that the ALJ’s finding that the plaintiff
could perform simple one- and two-step instructions and simple routine tasks was not
inconsistent with the ability to perform jobs requiring Level 2 reasoning, and the ALJ therefore
did not err by relying on the vocational expert’s testimony that the plaintiff could perform several
such jobs. Russell, 2014 U.S. Dist. LEXIS 43646, at *35-36, 42-43.
Plaintiff objects to the R&R’s use of Russell, and argues that the Court should instead
look to Lee v. Colvin, No. 1:12CV-00161-HBB, 2013 U.S. Dist. LEXIS 63565 (W.D. Ky. May 3,
2013). In Lee, the ALJ posed a hypothetical that included the limitation that the individual could
“understand, remember[,] and carry out simple instructions,” to which the vocational expert
responded that the position of surveillance monitor would be appropriate.
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Id. at *25 n.3.
Plaintiff argues that, in Lee, this Court concluded “that remand was required so that the [SSA]
could resolve the vocational conflict between an RFC limitation to simple instructions, and a
contradictory finding that he could perform at a reasoning level that went beyond ‘simple’ as
defined by the DOT.” (Pl.’s Obj. 1-2 (citations omitted)).
Plaintiff’s argument ignores that the position at issue in Lee of surveillance-system
monitor required Level 3 reasoning, not Level 2. Lee, 2013 U.S. Dist. LEXIS 63565, at *27.
Further, the ALJ in Lee “did not ask the vocational expert whether her opinion conflicted with
the DOT description of the job she suggested.” Id. at *29. In this case, the ALJ did ask Harpool
whether his opinion was consistent with the DOT, which Harpool addressed as to changing
positions, but did not state any inconsistency as to reasoning. (R. at 92-93). As in Meissl and
Russell, the vocation testimony in this case was that Plaintiff could not perform detailed work but
was not precluded from other requiring detailed but uninvolved instructions. (R. at 94).
The Court therefore agrees with Magistrate Judge King that the ALJ’s finding that
Plaintiff can perform the jobs proposed by the vocational expert. Based upon this determination,
Plaintiff is not disabled as defined by the Social Security Act.
V.
CONCLUSION
For the reasons discussed above, IT IS HEREBY ORDERED as follows:
1.
Plaintiff’s Objection to the Magistrate Judge’s Findings of Fact, Conclusions of
Law, and Recommendation (DN 26) is OVERRULED;
2.
Magistrate Judge King’s Findings of Fact, Conclusions of Law, and
Recommendation (DN 25) are ADOPTED to the extent not inconsistent with this opinion;
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3.
Plaintiff’s Motion for Summary Judgment (DN 18) is DENIED AS MOOT; and
4.
Plaintiff’s Complaint (DN 1) is DISMISSED WITH PREJUDICE.
Greg N. Stivers, Judge
United States District Court
August 22, 2018
cc:
counsel of record
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