Clark v. Berryhill
Filing
23
ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Patrick J. Schiltz on 2/4/2019. (CLG) Modified restriction on 2/4/2019 (CLG).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
QUAINTANCE C.,
Case No. 18‐CV‐0419 (PJS/SER)
Plaintiff,
v.
ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
David F. Chermol, CHERMOL & FISHMAN LLC; Edward C. Olson, for
plaintiff.
Linda H. Green, SOCIAL SECURITY ADMINISTRATION, for defendant.
After the Acting Commissioner of Social Security (the “Commissioner”) denied
plaintiff Quaintance C.’s application for disability benefits and supplemental security
income, Quaintance brought this action asking the Court to either (1) reverse the
Commissioner’s decision and award Quaintance the disability benefits that she seeks or
(2) remand her case to the Commissioner for another hearing. The parties filed
cross‐motions for summary judgment. In an R&R dated January 9, 2019, Magistrate
Judge Steven E. Rau recommended denying Quaintance’s motion and granting the
Commissioner’s. ECF No. 19.
This matter is before the Court on Quaintance’s objection to the R&R. The Court
has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Based on that review, the Court agrees with Judge Rau that the Commissioner’s
decision was supported by substantial evidence and therefore overrules Quaintance’s
objection and adopts the R&R.
The Commissioner denied Quaintance’s claim for disability benefits, AR at 1, 7,
22, and Quaintance sought administrative review. After “careful consideration,” the
administrative law judge (“ALJ”) found that Quaintance could “perform a full range of
work at all exertional levels” subject to several nonexertional limitations. AR at 16.1
During the administrative proceedings, the ALJ asked a vocational expert whether there
were jobs in the national economy that an individual with Quaintance’s residual
functional capacity could perform. See AR at 21, 58‐59. The vocational expert answered
that such an individual could work as a cleaner doing housekeeping chores, a position
with roughly 800,000 jobs nationally and 25,000 jobs in Minnesota. AR at 59. Based on
this testimony, the ALJ ruled that Quaintance was not disabled because she could
“make[] a successful adjustment to other work that exists in significant numbers in the
national economy.” AR at 22.
1
Quaintance does not contest this determination. Her nonexertional limitations
include being restricted to “routine, repetitive, unskilled work activity; work in a slow
pace situation, that would not be able to work in a rapid, production setting; limited to
brief, infrequent, and superficial contact with supervisors, coworkers, and the public.”
AR at 16.
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The R&R concluded that there was substantial evidence to justify the ALJ’s
denial of disability benefits. Quaintance objects to the R&R on two grounds:
First, Quaintance argues that the Commissioner failed to meet her burden at step
five because she did not demonstrate that Quaintance could perform other work in the
national economy. Quaintance’s argument is a little slippery, but it seems to be as
follows: The only job identified by the ALJ that Quaintance could perform is cleaning.
Cleaning is light work. Thus, the ALJ was admitting that Quaintance is only capable of
doing light work. Under Rule 202.02, however, individuals of her advanced age with
the same education and previous work experience who are restricted to light work must
be deemed disabled.
The flaw in Quaintance’s argument is that Rule 202.02 does not apply to her.
Rule 202.02 applies only to individuals who have been restricted to light work as a result
of a severe medically determinable impairment. But Quaintance has not been restricted
to light work; to the contrary, the ALJ explicitly determined that Quaintance could work
at all exertional levels (ranging from sedentary work to very heavy work) subject to her
nonexertional limitations. See AR at 16, 21. The fact that the only job identified by the
vocational expert was cleaning—and cleaning is light work—does not mean that
Quaintance has been restricted to light work.2 Judge Rau thus properly concluded that
2
Quaintance appears to argue that, once a claimant with her education and
(continued...)
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Rule 202.02 did not apply to Quaintance, and the vocational expert’s testimony that
Quaintance could work as a cleaner provided substantial evidence for denying benefits.
See 20 C.F.R. § 404, Subpt. P, App’x. 2, § 204.00 (“[A]n impairment which does not
preclude heavy work (or very heavy work) . . . generally is sufficient for a finding of not
disabled, even though age, education, and skill level of prior work experience may be
considered adverse.”).
Second, Quaintance argues that the ALJ posed a fatally flawed hypothetical
question to the vocational expert. “If a hypothetical question does not include all of the
claimant’s impairments, limitations, and restrictions, or is otherwise inadequate, a
2
(...continued)
previous work experience reaches advanced age, agency regulations categorically
forbid her from being required to perform light work. See ECF No. 18 at 3 (arguing that
Quaintance would be “precluded from performing” light work “once she attained
[advanced age]”); ECF No. 18 at 4 n.1 (arguing that “[a]gency regulation dictates she
would be precluded from performing” light work “as of [advanced age]”); ECF No. 20
at 1 (“[T]he ALJ only assessed one job at step 5, a job [Quaintance] is precluded from
performing as of [advanced age] by the Agency’s Grid rules.”); ECF No. 20 at 3 (arguing
that “the Agency’s Grid rules make clear she could not perform” light work “as of
[advanced age] because the adjustment would be too great”).
If this is what Quaintance is arguing, then she is mistaken. As the Grid Rules
indicate, the agency contemplates that individuals of advanced age can be required to
perform light work. For example, under Rule 203.12, individuals of advanced age with
Quaintance’s education and previous work experience who are limited to “medium
work” are deemed not to be disabled. Agency regulations specifically state that “[i]f
someone can do medium work, we determine that he or she can also do sedentary and
light work.” § 404.1567(c). Quaintance, of course, is not limited to medium work; she
has no exertional limitation.
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vocational expert’s response cannot constitute substantial evidence to support a
conclusion of no disability.” Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998).
Quaintance claims that the ALJ’s hypothetical was inadequate because it did not
mention her advanced age.
Quaintance’s objection is meritless. The Eighth Circuit has explained that an ALJ
does not need to include the claimant’s age in a hypothetical question if the vocational
expert heard the claimant testify about her age during the hearing. See Tucker v.
Barnhart, 130 F. App’x 67, 68 (8th Cir. 2005) (“Because the [vocational expert] was
present when Tucker testified about her age, past work, and educational level, it was
not necessary for the ALJ to specify those in his hypothetical[.]”). Here, the
administrative record shows that the vocational expert was present during
Quaintance’s testimony about her age. AR at 46. The failure of the ALJ to include
Quaintance’s age in the hypothetical question thus does not entitle Quaintance to relief.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES plaintiff’s objection [ECF No. 20] and ADOPTS Judge Rau’s
R&R [ECF No. 19]. IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motion for summary judgment [ECF No. 14] is DENIED.
2.
Defendant’s motion for summary judgment [ECF No. 16] is GRANTED.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 4, 2019
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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