Austin v. Social Security Administration

Filing 28

OPINION AND ORDER by Magistrate Judge Kimberly E. West affirming the decision of the ALJ.(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARY A. AUSTIN,

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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-16-503-KEW

OPINION AND ORDER
Plaintiff Mary A. Austin (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined that Claimant was not disabled.
discussed

below,

it

is

the

finding

of

this

For the reasons
Court

that

the

Commissioner’s decision should be and is AFFIRMED.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”
42 U.S.C. § 423(d)(1)(A).
Security

Act

“only

if

A claimant is disabled under the Social
his

physical

or

mental

impairment

or

impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy. . .”
§423(d)(2)(A).

42 U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

standards were applied.

and,

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

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Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

2

(10th

Cir.

1997)(citation

omitted).

The

term

“substantial

evidence” has been interpreted by the United States Supreme Court
to require “more than a mere scintilla.

It means such relevant

evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).

The court may not re-weigh the evidence nor substitute

its discretion for that of the agency.

Casias v. Secretary of

Health

800

&

Human

Servs.,

933

F.2d

799,

(10th

Cir.

1991).

Nevertheless, the court must review the record as a whole, and the
“substantiality of the evidence must take into account whatever in
the record fairly detracts from its weight.”

Universal Camera

Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also, Casias, 933 F.2d
at 800-01.
Claimant’s Background
Claimant was 49 years old at the time of the ALJ’s latest
decision.
grade.

Claimant completed her education through the seventh

Claimant has worked in the past as a waitress and cashier.

Claimant alleges an inability to work beginning March 16, 2010 due
to limitations resulting from PTSD, anxiety, bipolar disorder,
thoracic scoliosis, low back pain, right leg pain, knee pain, chest
pain, high blood pressure, bladder problems, dizziness, fatigue,

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and medication side effects.
Procedural History
On

September

24,

2010,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) and for supplemental security income pursuant to Title XVI
(42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant’s
applications were denied initially and upon reconsideration. After
an administrative hearing was conducted by Administrative Law Judge
(“ALJ”) Richard Kallsnick, he entered an unfavorable decision on
May 11, 2012.

On March 15, 2015, this Court reversed and remanded

the decision for further proceedings.
On August 26, 2015, the ALJ conducted a second administrative
hearing in Tulsa, Oklahoma.

On November 10, 2015, the ALJ entered

a second unfavorable decision.

The Appeals Council declined to

assume jurisdiction on September 13, 2016. As a result, the
decision of the ALJ represents the Commissioner’s final decision
for purposes of further appeal.

20 C.F.R. §§ 404.981, 416.1481.

Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation. He determined that while Claimant suffered from severe
impairments, she retained the residual functional capacity (“RFC”)
to perform medium work.

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Error Alleged for Review
Claimant asserts the ALJ committed error in (1) violating
agency policy at step five by finding Claimant could perform the
representative jobs; (2) violating agency policy at step five by
determining representative jobs existed in significant numbers in
the regional and national economies which Claimant could perform;
and (3) making an improper credibility determination.
Step Five Determination
In his decision, the ALJ determined Claimant suffered from the
severe impairments of history of disc disease, history of hepatitis
C,

affective

disorder,

polysubstance abuse.

anxiety

(Tr. 470).

disorder,

and

history

of

The ALJ determined in the RFC

that Claimant could perform work at the medium exertional level. In
so doing, he found Claimant could lift/carry 50 pounds occasionally
and 25 pounds frequently with similar push/pull limits; stand/walk
with normal breaks for a total of about six hours in an eight hour
workday; sit with normal breaks for a total of about six hours in
an eight hour workday; could perform simple unskilled work; could
relate to supervisors and co-workers for work-related purposes, but
no contact with the general public.

(Tr. 473).

After consultation with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of laundry

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worker, handpackager, bottling line attendant, conveyer line bakery
worker, and small products assembler, all of which the expert
determined existed in significant numbers in the national economy.
(Tr.

484-85).

The

ALJ

rejected

the

vocational

expert’s

identification of the additional job of industrial cleaner since
Claimant was limited to simple repetitive tasks with a reasoning
level of R1.

(Tr. 484).

As a result, the ALJ determined Claimant

was not under a disability from March 16, 2010 through the date of
the decision.

(Tr. 485).

Claimant contends that the ALJ’s addition of the limitation to
simple repetitive tasks with an R1 reasoning level in the decision
was not reflected in the hypothetical questioning of the vocational
expert.

It would appear that the ALJ’s identification of the

laundry worker (DOT #361.684-014), hand packager (DOT #920.587018),

and

small

parts

assembler

(DOT

#706.684-022)

requiring an R1 reasoning level was incorrect.

as

jobs

In fact, the

Dictionary of Occupational Titles states that these jobs have a
reasoning level of R2.

It would indeed be inconsistent and

disingenuous to accept the ALJ’s elimination of the industrial
cleaner job (DOT #381.687-018) because its reasoning level exceeds
Claimant’s RFC but not recognize the same limitation as to the
other three R2 jobs identified by the vocational expert and

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accepted by the ALJ.
However, it is equally clear that the remaining two jobs
identified by the ALJ, those of conveyer line bakery worker (DOT
#524.687-022)

and

bottling

line

attendant

(DOT

#920.687-042)

require a reasoning level of R1 which Claimant could admittedly
perform under the ALJ’s RFC findings.

Identification of any jobs

which Claimant could perform under the RFC satisfies the step five
requirements.

See Nunn v. Apfel, 149 F.3d 1191, 1998 WL 321189, *2

(10th Cir. 1998)(Even assuming that claimant's objections to some
of the jobs identified by the vocational expert are well taken, if
claimant can perform some of the jobs identified, the ALJ can rely
on those jobs to find claimant not disabled).
Claimant next contends that the jobs remaining that were
identified by the vocational expert do not exist in sufficient
numbers for the ALJ to rely upon at step five.

Claimant’s urging

notwithstanding, the multi-factor analysis for assessing whether a
job exists in sufficient numbers espoused in Trimiar v. Sullivan,
966 F.2d 1326 (10th Cir. 1992) is inapplicable in cases such as
this one where the ALJ evaluated both the numbers in the regional
and national economies.

Raymond v. Astrue, 2009 WL 4799960, 4 n.2

(10th Cir.).
The question remaining is whether the jobs identified by the

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vocational expert exist in sufficient numbers in the national
economy.

The Tenth Circuit in Trimiar did establish that “[t]his

Circuit has never drawn a bright line establishing the number of
jobs necessary to constitute a ‘significant number’ and rejects the
opportunity to do so here.”

Trimiar at 1330.

Rather, an ALJ must

explicitly set forth a discussion of the factors identified above
in determining that the number of jobs a claimant can do exist in
significant numbers and an ALJ's finding is sufficient if the
record supports a conclusion that the ALJ used a common sense
approach in “weighing the statutory language as applied to a
particular claimant's factual situation.”
WL 4215557, 3 (W.D. Okla.).

Johnson v. Colvin, 2014

Given the imprecise nature of this

analysis, this Court is unwilling to find that 65,000 (bottling
line attendant) and 35,000 (conveyer line bakery worker) represent
an insignificant number of jobs.

See, Rogers v. Astrue,

2009 WL

368386, 4 (10th Cir.)(testimony by vocational expert of 11,000 hand
packager jobs in the national economy could be relied upon by the
ALJ

as

substantial

disability).

evidence

to

support

a

finding

of

non-

Since at least one job exists in sufficient numbers

which is not in conflict with the DOT, the ALJ had substantial
evidence to support his step five determination.

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Claimant also contends the hypothetical questions posed to the
vocational expert did not contain all of her limitations, including
problems with anger, depression, and anxiety.

The ALJ included

restrictions for interaction with the general public and that she
took medication which helped her mental condition.

(Tr. 525).

“Testimony elicited by hypothetical questions that do not relate
with precision all of a claimant’s impairments cannot constitute
substantial evidence to support the Secretary’s decision.”
v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991).

Hargis

In positing a

hypothetical question to the vocational expert, the ALJ need only
set forth those physical and mental impairments accepted as true by
the ALJ.

Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990).

Additionally,

the

hypothetical

questions

need

only

reflect

impairments and limitations borne out by the evidentiary record.
Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).

Moreover,

Defendant bears the burden at step five of the sequential analysis.
Hargis, 945 F.2d at 1489.
Claimant’s

verifiable

and

The ALJ’s questioning did mirror
credible

impairments

and

his

RFC

findings.
Conclusion
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.

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Therefore,

the Magistrate Judge finds for the above and foregoing reasons, the
ruling of the Commissioner of Social Security Administration should
be and is AFFIRMED.
DATED this 21st day of March, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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