Kavanay v. Colvin

Filing 19

ORDER affirming decision of the Commissioner. A separate judgment will be entered. Signed by Magistrate Judge F. Keith Ball on 2/8/17 (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KRISTEN NICOLE KAVANAY

PLAINTIFF

VS.

CIVIL ACTION NO. 3:14cv525-FKB

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

DEFENDANT

ORDER
Kristen Nicole Kavanay filed for supplemental security income on February 17,
2011. After her application was denied both initially and upon reconsideration, she
requested and was granted a hearing before an ALJ. The hearing was held on January
9, 2013, and on February 22, 2013, the ALJ issued a decision finding that Kavanay is
not disabled. The appeals council denied review. She now brings this appeal pursuant
to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Having considered the
memoranda of the parties and the administrative record, the Court concludes that the
decision of the Commissioner should be affirmed.
Kavanay was born on May 20, 1988, and was 24 years of age at the time of the
decision of the ALJ. She has a GED and no past relevant work experience. Kavanay
has a history of polysubstance abuse, depression, and anxiety disorder, and she has
received inpatient rehabilitation therapy for her substance abuse. She has undergone
cryosurgery for cervical cancer. Kavanay is HIV positive, for which she receives highly
active antiretroviral therapy (HAART) treatment, and she has hepatitis C. At the
hearing, she testified that she also suffers panic attacks and that her HAART treatment
causes fatigue, vomiting, and diarrhea.

.

In his decision, the ALJ worked through the familiar sequential evaluation
process for determining disability.1 He found that Kavanay has the severe impairments
of mood disorder, depression, and HIV. R. 16, [14] at 20. At step three, the ALJ
determined that Kavanay does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. R. 16-18, [14] at 20-22. The ALJ determined that Kavanay has the
residual functional capacity (RFC) to perform light work as defined by 20 C.F.R. §
416.967(b), with the following limitations: She is limited to work involving only simple,
routine, repetitive tasks in a low-stress work environment, can have no confrontation
with coworkers or the public, cannot perform timed production work, and should work
with objects rather than with people. R. 18, [14] at 22. The ALJ considered Kavanay’s
subjective allegations of limitations but found that they were not fully credible in light of
the lack of supporting objective evidence. Id. At step five, the ALJ found, based upon

1
In evaluating a disability claim, the ALJ is to engage in a five-step sequential process, making the
following determinations:

(1)
whether the claimant is presently engaging in substantial gainful activity (if so, a finding of
“not disabled” is made);
(2)

whether the claimant has a severe impairment (if not, a finding of “not disabled” is made);

(3)
whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. Part
404, Subpart P, Appendix 1 (if so, then the claimant is found to be disabled);
(4)
whether the impairment prevents the claimant from doing past relevant work (if not, the
claimant is found to be not disabled); and
(5)
whether the impairment prevents the claimant from performing any other substantial
gainful activity (if so, the claimant is found to be disabled).
See 20 C.F.R. § 416.920. The analysis ends at the point at which a finding of disability or non-disability is
required. The burden to prove disability rests upon the claimant throughout the first four steps; if the
claimant is successful in sustaining his burden through step four, the burden then shifts to the
Commissioner at step five. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

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the testimony of a vocational expert, that Kavanay was capable of performing the jobs
of salad maker (DOT 317.684-014), motel maid (DOT 323.687-014), and counter
attendant (DOT 311.477-014), and that these jobs exist in significant numbers. R. 23,
[14] at 27. The ALJ therefore determined that Kavanay is not disabled. Id.
Kavanay does not contest the findings of the ALJ at any of the first four steps of
the sequential analysis. Her sole argument is directed toward the ALJ’s finding at step
five and relates to the testimony of the vocational expert. At the hearing, the ALJ posed
the following hypothetical to the VE: An individual 24 years of age, with a GED, and able
to perform light work with the following limitations: She is limited to work involving only
simple, routine, repetitive tasks in a low-stress work environment where she is not likely
to have confrontation with coworkers, with receiving supervision, or with the public,
cannot perform timed production work, and should work with objects rather than with
people, and where any changes to the work routine are of a gradual nature. R. 69, [14]
at 73. The VE responded that there would be numerous jobs in the national economy
that such a person could perform, and he gave as examples the jobs of salad maker
(DOT 317.684-014), motel maid (DOT 323.687-014), and counter attendant (DOT
311.477-014). R. 71, [14] at 75. It was this testimony upon which the ALJ relied in
reaching his decision at step five.
Kavanay argues that the VE’s testimony that a person having Kavanay’s RFC
could perform the jobs identified is not consistent with the descriptions of these jobs in
the Dictionary of Occupational Titles (DOT). She contends that all three jobs as
described require interaction with coworkers and the public. She further argues that the
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job of salad maker as described in the DOT is a high stress job that requires the worker
to meet production demands. Similarly, Kavanay argues that the job of hotel maid
would obviously include a requirement that the worker meet specific time demands, and
that for this reason, the VE’s testimony that she can perform this job is inconsistent with
the DOT.2
There is clearly no direct or obvious conflict between the testimony of the VE and
the job descriptions. None of the descriptions indicates that the job is high stress,

2

The DOT descriptions for these jobs are as follows:

317.684-014 PANTRY GOODS MAKER (hotel & rest.): Prepares salads, appetizers, sandwich fillings,
and other cold dishes: Washes, peels, slices, and mixes vegetables, fruits, or other ingredients for salads,
cold plates, and garnishes. Carves and slices meats and cheese. Portions and arranges food on serving
dishes. Prepares fruit or seafood cocktails and hors d'oeuvres. Measures and mixes ingredients to make
salad dressings, cocktail sauces, gelatin salads, cold desserts, and waffles, following recipes. Makes
sandwiches to order [SANDWICH MAKER (hotel & rest.) 317.664-010]. Brews tea and coffee [COFFEE
MAKER (hotel & rest.) 317.684-010]. Prepares breakfast and dessert fruits, such as melons, grapefruit,
and bananas. Portions fruit sauces and juices. Distributes food to waiters/waitresses to serve to
customers. May serve food to customers. May be designated Salad Maker (hotel & rest.) when
specializing in making salads.
GOE: 05.10.08 STRENGTH: L GED: R3 M2 L2 SVP: 4 DLU: 81.
323.687-014 CLEANER, HOUSEKEEPING (any industry) alternate titles: maid: Cleans rooms and halls
in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories,
performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds.
Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal
assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as
described under CLEANER (any industry) I Master Title. May be designated according to type of
establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or
according to area cleaned as Sleeping Room Cleaner (hotel & rest.).
GOE: 05.12.18 STRENGTH: L GED: R1 M1 L1 SVP: 2 DLU: 86.
311.477-014 COUNTER ATTENDANT, LUNCHROOM OR COFFEE SHOP (hotel & rest.) alternate titles:
waiter/waitress, counter: Serves food or beverages to customers seated at counter: Calls order to kitchen
and picks up and serves order when it is ready. Itemizes and totals check for service or totals takeout
transaction on cash register and accepts payment. May prepare sandwiches, salads, and other short
order items [COOK, SHORT ORDER (hotel & rest.) 313.374-014]. May perform other duties, such as
cleaning counters, washing dishes, and selling cigars and cigarettes.
GOE: 09.04.01 STRENGTH: L GED: R2 M2 L2 SVP: 2 DLU: 81.
U.S. Dep't of Labor, Dictionary of Occupational Titles (DOT) §§ 317.684-014, 323.687-014, 311.477-014
(4th Ed., Rev.1991), available at http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT03A.HTM.

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consists of timed production work, or requires anything more than minimal interaction
with coworkers and the public. Thus any conflict, if it exists at all, is merely indirect or
implied. Where an indirect or implied conflict exists, an ALJ is entitled to rely upon a
VE’s knowledge and testimony regarding job requirements provided that the record
reflects an adequate basis for that reliance. Carey v. Apfel, 230 F.3d 131, 146 (5th Cir.
2000). This is especially the case when the claimant fails to challenge the VE’s
testimony at the hearing.
[A]ll kinds of implicit conflicts [between the DOT and the testimony of the
VE] are possible and the categorical requirements listed in the DOT do not
and cannot satisfactorily answer every such situation. Moreover,
claimants should not be permitted to scan the record for implied or
unexplained conflicts between the specific testimony of an expert witness
and the voluminous provisions of the DOT, and then present that conflict
as reversible error, when the conflict was not deemed sufficient to merit
adversarial development in the administrative hearing.
Carey, 230 F.3d at 146-47.
In the present case, the VE testified that an individual of Kavanay’s age and
education and having a residual functional capacity as found by the ALJ could perform
the jobs of salad maker, counter attendant, and hotel maid. The ALJ specifically asked
whether the VE’s testimony was consistent with the DOT, and the VE confirmed that it
was. R. 71, [14] at 75. When the ALJ asked Kavanay’s counsel whether he wished to
question the VE, he stated that he did not. Id. The Court concludes that the ALJ did not
err in relying upon the VE’s testimony and that substantial evidence supports the ALJ’s
finding that Kavanay could perform these jobs.

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The decision of the Commissioner is hereby affirmed. A separate judgment will
be entered.
So ordered, this the 8th day of February, 2017.
s/ F. Keith Ball
United States Magistrate Judge

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