Hurd v. Astrue

Filing 33

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Report and Recommendation of the United States Magistrate Judge (ECF No. 31) is ADOPTED in part.IT IS FURTHER ORDERED that Defendants objections to the Magistrate Judges Report and Recommendation are SUSTAINED. IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiffs Complaint is DISMISSED with prejudice. A separate Judgment will accompany thisOrder. 31 1 Signed by District Judge Jean C. Hamilton on 3/19/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
APRIL D. HURD,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant(s).

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Case No. 4:12CV228 JCH

MEMORANDUM AND ORDER
This matter arises on the Report and Recommendation of United States Magistrate Judge
Nannette A. Baker, filed March 6, 2013. See 28 U.S.C. §636. In her report, Magistrate Judge Baker
noted that under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. Magistrate Baker continued to review the decision of the
administrative law judge (ALJ), to determine whether the decision was supported by “substantial
evidence” in the record as a whole. Magistrate Judge Baker found substantial evidence supported
the ALJ’s findings on steps one through three. With respect to steps four and five, however,
regarding whether Plaintiff was able to perform her past relevant work or alternatively make an
adjustment to other work, Magistrate Judge Baker concluded the ALJ had failed to engage in the
analysis necessary to make proper determinations. She therefore recommended that the Court
reverse and remand this action to the Commissioner, for a reevaluation and clarification regarding
Plaintiff’s ability to perform past relevant work and ability to adjust to other work. Defendant filed
objections to the Report and Recommendation on March 12, 2013.

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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin therefore is automatically substituted
for former Commissioner Michael J. Astrue as Defendant in this cause of action.

LEGAL STANDARD
“[W]hen a party objects to the report and recommendation of a magistrate judge concerning
a dispositive matter, ‘[a] judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.’” United
States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)). The district
court has wide discretion to “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
DISCUSSION
As indicated, in her Report and Recommendation Magistrate Judge Baker concluded the ALJ
had failed to make proper determinations regarding whether Plaintiff was able to perform her past
relevant work or make an adjustment to other work. The Court notes that before making his
determination on these issues, the ALJ presented to a vocational expert a hypothetical question that
fully encompassed Plaintiff’s residual functional capacity, and all the mental limitations he found
credible and supported by the record as a whole. (Tr., PP. 37-38).2 The vocational expert responded
that such an individual would be able both to perform Plaintiff’s past work, and to perform a number
of other jobs in the state and nationwide. (Id., PP. 38-39). The ALJ adopted these findings in his
ruling, and further noted that the vocational expert’s testimony was in conflict with neither the
provision of the Dictionary of Occupational Titles, nor its companion publication, the Selected
Characteristics of Occupations. (Tr., PP. 17-18, 39).
In Groeper v. Sullivan, the Eighth Circuit held that ALJs must “fully investigate and make
explicit findings as to the physical and mental demands of a claimant’s past relevant work,” and then

2

Contrary to the Magistrate Judge’s observation, the hypothetical did account for the RFC
limitations regarding no strict production quotas and limited contact with supervisors or co-workers.
(Tr., P. 38).
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“compare the claimant’s residual functional capacity with the actual demands of the past work to
determine whether the claimant is capable of performing the relevant tasks.” Groeper v. Sullivan,
932 F.2d 1234, 1238-39 (8th Cir. 1991) (internal quotation marks and citations omitted). The
Magistrate Judge relied on Groeper to support her conclusion that the ALJ had failed to make proper
determinations regarding whether Plaintiff was able to perform her past relevant work or make an
adjustment to other work. Plaintiff’s case is distinguishable from Groeper, however, as here “a
vocational expert (VE) testified regarding the skill and exertional requirements of Plaintiff’s past
work and, based on the ALJ’s hypothetical, testified Plaintiff could perform [her] past work.” Brown
v. Astrue, 2012 WL 37403, at *2 (W.D. Mo. Jan. 6, 2012). See also Nishke v. Astrue, 878 F.Supp.2d
958, 988 (E.D. Mo. 2012) (holding the ALJ may rely on vocational expert testimony to fulfill his
duty). This constitutes substantial evidence that Plaintiff can perform past work, and so the
Commissioner’s decision must be affirmed. See Carroll v. Astrue, 2013 WL 328779, at *10 (E.D.
Mo. Jan. 29, 2013) (citing Ramirez v. Astrue, 2008 WL 880167, at *3 (W.D. Mo. Mar. 28, 2008)
(rejecting plaintiff’s argument that the ALJ erred in failing to make specific findings regarding the
physical and mental demands of plaintiff’s past relevant work, when the ALJ relied upon a
vocational expert)).
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation of the United States
Magistrate Judge (ECF No. 31) is ADOPTED in part.
IT IS FURTHER ORDERED that Defendant’s objections to the Magistrate Judge’s Report
and Recommendation are SUSTAINED.

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IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Order.

Dated this 19th day of March, 2013.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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