Keyes-Zachary v. Social Security Administration
Filing
23
OPINION AND ORDER by Judge Claire V Eagan ; remanding case (terminates case) ; rejecting 21 Report and Recommendation (Re: 22 Objection to Report and Recommendation, 2 Social Security Complaint, 21 REPORT AND RECOMMENDATION by Magistrate Judge Frank H McCarthy ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
PENNIE L. KEYES-ZACHARY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
Case No. 13-CV-0638-CVE-FHM
OPINION AND ORDER
Before the Court is the report and recommendation (Dkt. # 21) of Magistrate Judge Frank
H. McCarthy recommending that the Court affirm the decision of the Commissioner of the Social
Security Administration to deny plaintiff’s claim for disability benefits. Plaintiff has filed an
objection (Dkt. # 22) to the report and recommendation, and she seeks remand for further review.
Defendant has not filed a response to plaintiff’s objection, and the time to do so has expired.
I.
On July 15, 2010, plaintiff applied for benefits, alleging that she had been disabled as of June
4, 2009.1 Dkt. # 13-5, at 2. Plaintiff’s application stated that both physical and psychological
conditions, including difficulty hearing, asthma, arthritis, stress, and a back injury, left her unable
to work. See Dkt. # 13-6, at 6. Plaintiff’s claim was denied initially on March 18, 2011, and after
reconsideration it was denied again on July 14, 2011. Dkt. # 13-3, at 2-3. Plaintiff requested a
1
Plaintiff previously filed two other applications for benefits, once on June 7, 2004, and once
on August 1, 2008. Dkt. # 13-2, at 34. Each of those applications was denied. Id.; see also
Keyes-Zachary v. Astrue, 695 F.3d 1156 (10th Cir. 2012).
hearing before an administrative law judge (ALJ), and that hearing was held on May 30, 2012. Dkt.
# 13-2, at 32.
Plaintiff appeared at the hearing and was represented by an attorney. Id. at 34. Plaintiff was
fifty-one years old at the time of the hearing, and she lived with her ex-husband and her father. Id.
at 39, 40. She testified to a variety of physical and psychological complaints, including hearing
difficulties, headaches, heart spasms, anxiety, asthma, lightheadedness, depression, and injuries to
her spine, knees, hands, neck, wrist, and elbow. Id. at 51-62. For these conditions, plaintiff took a
number of medications, both prescription and over-the-counter. Id. at 47-49. Plaintiff left school
after the 10th grade, and she did not earn a GED, although she attended some classes with the intent
to earn one. Id. at 67-68.
The ALJ called vocational expert (VE) Dr. Angharad Young, Ed.D. in Counseling, to testify
about plaintiff’s previous work history and her ability to work. Id. at 68; see also Dkt. # 13-4, at 41.
The VE testified that plaintiff had been a school cook, a cook’s helper, a pillow stuffer, a server, and
a cashier. Dkt. # 13-2, at 69. Plaintiff held these positions from 1997 through 2002, and in 2000 she
was both a pillow stuffer and a cook’s helper. Dkt. # 13-6, at 27. The ALJ posed a hypothetical
question to the VE, asking if a hypothetical person with specific restrictions would be able to
perform either plaintiff’s past work or other work available in the economy. Dkt. # 13-2, at 70.
Among other restrictions, the hypothetical person needed to “avoid loud background noises and
should not work in environments or [sic] require good bi-aural hearing.” Id. at 70-71. The ALJ also
asked the VE to identify any conflicts between her testimony and the information in the Dictionary
of Occupational Titles (4th ed. rev. 1991) [DOT], and the VE did not identify any such conflict.
Id. at 70.
2
The VE stated that the hypothetical person could work as a pillow stuffer as that job is
generally performed, although not as plaintiff performed it. Id. at 71. According to the VE, the
exertion level of the position is listed in the DOT as light, although plaintiff reported a medium
exertion level.2 Id. She also testified that the hypothetical person could perform other occupations
as described in the DOT; her “representative examples” of such occupations included “assembler”
(DOT § 706.684-022), “sorter” (DOT § 753.587-010), and “marker” (DOT § 920.687-126). Id. at
72. However, a person with plaintiff’s ailments as she had testified to them at the hearing would not
be able to perform either plaintiff’s past work or other work. Id. at 73. The DOT lists the expected
noise level for both the assembler and marker positions as “Level 4 - Loud.” DOT §§ 706.684-022,
920.687-126.
On October 17, 2012, the ALJ issued a written decision finding plaintiff was not disabled.
Dkt. # 13-2, at 27. The ALJ found that plaintiff had not engaged in substantial gainful activity since
the application date, that she had severe impairments affecting her ability to work, and that her
impairments were not equivalent to one of those listed in 20 C.F.R., Part 404, Subpart P, Appendix
1. Id. at 18. The ALJ next formulated plaintiff’s residual functional capacity (RFC), taking into
account the medical evidence and testimony. Id. at 20. He found that plaintiff could perform “light
work” as defined by 20 C.F.R. 416.967(b), with certain restrictions. Id. Among the restrictions in
plaintiff’s RFC was the determination that she “should avoid loud background noises, but [sic]
should not require binaural hearing.” Id. Based on the RFC and the record, the ALJ determined that
plaintiff could perform her past work as a pillow stuffer as that job is normally performed, although
2
Neither the VE nor the ALJ identified the specific DOT section to which the VE was
referring.
3
not as plaintiff had performed it. Id. at 25. He also found that plaintiff could perform other
occupations present in the economy, specifically listing the assembler, sorter, and marker positions
previously identified by the VE. Id. at 26. He concluded by stating that plaintiff was “capable of
making a successful adjustment to other work that exists in significant numbers in the economy.”
Id. at 26-27.
On July 31, 2013, the Appeals Council denied plaintiff’s request for review of the ALJ’s
decision. Dkt. # 13-2. Plaintiff thereafter sought judicial review, arguing that the ALJ committed
several errors, including: his credibility determination; his finding that plaintiff’s knee impairment
was not medically determinable; his RFC formulation; and his determination that plaintiff could
perform both her past work and other work available in the economy. Dkt. # 16. The Court referred
the case to the magistrate judge, who entered a report and recommendation recommending the Court
affirm the ALJ’s decision. Dkt. # 21, at 11. Plaintiff has objected to the report and recommendation
solely as to the ALJ’s determination of her ability to perform her past work and other available
work.3 Dkt. # 22.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within fourteen days of service of the recommendation.
Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d
573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the
3
Plaintiff’s objection is silent as to the other issues addressed in the report and
recommendation. Accordingly, the Court will not discuss those issues further. See 28 U.S.C.
§ 636(b)(1).
4
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the
magistrate judge in whole or in part. FED. R. CIV. P. 72(b).
III.
The Social Security Administration has established a five-step process to review claims for
disability benefits. See 20 C.F.R. § 404.1520. The Tenth Circuit has outlined the five step process:
Step one requires the agency to determine whether a claimant is “presently engaged in
substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)]. If
not, the agency proceeds to consider, at step two, whether a claimant has “a medically severe
impairment or impairments.” Id. An impairment is severe under the applicable regulations
if it significantly limits a claimant’s physical or mental ability to perform basic work
activities. See 20 C.F.R. § 404.1521. At step three, the ALJ considers whether a claimant’s
medically severe impairments are equivalent to a condition “listed in the appendix of the
relevant disability regulation.” Allen, 357 F.3d at 1142. If a claimant’s impairments are not
equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant’s
impairments prevent her from performing her past relevant work. See id. Even if a claimant
is so impaired, the agency considers, at step five, whether she possesses the sufficient
residual functional capability to perform other work in the national economy. See id.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The ALJ decided the case at step four of the
analysis, but he made alternate findings at step five. Dkt. # 13-2, at 25-27. At both steps, the ALJ
determined that plaintiff’s claim for benefits should be denied. Id. The magistrate judge
recommendated that the ALJ’s decision be upheld. Dkt. # 21, at 8-11. In her objection, plaintiff
contends that the ALJ did not follow the proper procedures at step four and that the VE’s testimony
was so unreliable as to undermine the ALJ’s findings at step five. Dkt. # 22, at 1-4.
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ but,
instead, reviews the record to determine if the ALJ applied the correct legal standard and if his
decision is supported by substantial evidence. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
5
adequate to support a conclusion.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). “A decision
is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there
is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004). The Court must meticulously examine the record as a whole and consider any evidence that
detracts from the Commissioner’s decision. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994).
A. The ALJ’s Findings at Step Four
At step four, the ALJ must determine “whether a claimant’s impairments prevent her from
performing her past relevant work.” Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “A
claimant capable of performing past relevant work is not disabled within the meaning of the Social
Security Act.” Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1050 (10th Cir. 1993)
(citing 20 C.F.R. §§ 404.1520(e), 416.920(e)). Step four has three separate phases:
In the first phase, the ALJ must evaluate a claimant’s physical and mental residual
functional capacity (RFC), and in the second phase, he must determine the physical
and mental demands of the claimant’s past relevant work. In the final phase, the ALJ
determines whether the claimant has the ability to meet the job demands found in
phase two despite the mental and/or physical limitations found in phase one. At each
of these phases, the ALJ must make specific findings.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (internal citations omitted). While the
claimant bears the “ultimate burden of proving that she is disabled,” at step four the ALJ has a duty
“of inquiry and factual development.” Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359,
361 (10th Cir. 1993) (citing Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)). The ALJ
found at step four that plaintiff could perform her past work as a pillow stuffer as that occupation
is generally performed. Dkt. # 13-2, at 25. Plaintiff argues that the ALJ made two related errors in
6
the second phase of step four:4 he considered plaintiff’s former employment as a pillow stuffer to
be past relevant work; and he failed to make the required specific findings of the physical and mental
demands of plaintiff’s past relevant work. Dkt. # 22, at 2-3. These errors, plaintiff argues, led to an
incorrect finding in the third phase of step four. Id. at 3-4.
Previous employment is “past relevant work” when “it was done within the last 15 years,
lasted long enough for the person to learn to do it and was substantial gainful activity.” SSR 82-61,
1982 WL 31387 (Jan. 1, 1982). Plaintiff does not contest that she held the position as pillow stuffer
within the last fifteen years or that she did not learn the position, arguing instead that it was not
substantial gainful activity. See Dkt. # 22, at 3. Substantial gainful activity is employment for which
the individual earned wages equal to or exceeding an amount provided by regulation. 20 C.F.R. §
404.1574(b)(2) (2006). The record shows that plaintiff was a pillow stuffer only in the year 2000,
and in that year she worked as both a pillow stuffer and a cook’s helper. Dkt. # 13-6, at 27. The
regulations state that, for the year 2000, earnings greater than $700 per month show that employment
was substantial gainful activity. 20 C.F.R. § 404.1574(b)(2); see also id. Table 1. In that year,
plaintiff earned a total of $14,464.38, or an average of $1,205.36 per month. Dkt. # 13-5, at 9.
However, the record is unclear as to what amount of money plaintiff earned from her position as a
pillow stuffer; the record states only the yearly total earnings, without specifying the source of those
earnings. See id. In her work history report, plaintiff listed her hourly compensation and hours
worked per week as a pillow stuffer, but she did not state how many weeks she held the position.
Dkt. # 13-6, at 30. It is not possible, based on the evidence in the record, to determine whether
plaintiff earned $700 or more per month as a pillow stuffer. Thus, the ALJ’s determination that
4
Plaintiff makes no argument regarding the first phase of step four.
7
plaintiff’s position as a pillow stuffer was past relevant work, which necessarily entails a
determination that the position was substantial gainful activity, is not supported by substantial
evidence in the record.
As the ALJ’s findings at phase three of step four were based on his determination that
plaintiff’s occupation as a pillow stuffer was past relevant work, those findings are not based on
substantial evidence. Therefore, the ALJ’s finding of non-disability at step four was in error.5
However, the ALJ made alternate findings at step five of the analysis, and if his step five findings
are not in error then any error at step four is harmless. See Pauley v. Chater, 64 F.3d 670, at *1 (10th
Cir. 1995) (unpublished).6
B. The ALJ’s Alternate Findings at Step Five
Plaintiff argues that the ALJ erred at step five of the analysis, stating that the ALJ could not
rely on the VE’s testimony and that, without the VE’s testimony, the ALJ’s finding of sufficient
other work in the national economy lacks substantial evidence. Dkt. # 22, at 1-2. At step five, the
ALJ must consider a claimant’s RFC, age, education, and work experience to determine if other
work exists in the economy that a claimant is able to perform. Williams v. Bowen, 844 F.2d 748,
751 (10th Cir. 1988). If the claimant can adjust to work beyond her past relevant work, the ALJ shall
enter a finding that the claimant is not disabled. 42 U.S.C. § 423(d)(2)(A). However, the ALJ must
find that a claimant is disabled if insufficient work exists in the national economy for an individual
5
As the Court finds error in the ALJ’s determination of plaintiff’s past relevant work, the
Court does not reach plaintiff’s second argument, that the ALJ did not make specific findings
about the physical and mental demands of her past relevant work. Dkt. # 22, at 3-4.
6
This and all other unpublished decisions are not precedential; they are cited for their
persuasive value only. See FED. R. APP. 32.1; 10TH CIR. R. 32.1.
8
with the claimant’s RFC. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). The
Commissioner bears the burden to present sufficient evidence to support a finding of not disabled
at step five. Emory v. Sullivan, 936 F.2d 1092, 1094 (10th Cir. 1991).
Plaintiff contends that the ALJ’s decision is not supported by substantial evidence because
it rests on the VE’s testimony, which plaintiff argues is wholly unreliable because it conflicts with
the DOT. The Tenth Circuit has stated that, when there is a conflict between the DOT and the
testimony of a VE, the ALJ “must investigate and elicit a reasonable explanation for any conflict
. . . before the ALJ may rely on the expert’s testimony.” Haddock v. Apfel, 196 F.3d 1084, 1091
(10th Cir. 1999); see also SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). Failure to resolve
the conflict is reversible error, unless the error is harmless. Poppa v. Astrue, 569 F.3d 1167, 1173-74
(10th Cir. 2009); see also Krueger v. Astrue, 337 F. App’x 758, 761-62 (10th Cir. 2009). There is
an apparent conflict here. The ALJ’s hypothetical question stated that “[t]he person should avoid
loud background noises and should not work in environments or [sic] require good bi-aural hearing.”
Dkt. # 13-2, at 70-71. This limitation is included in plaintiff’s RFC. Dkt. # 13-2, at 20. The VE
identified three jobs that the hypothetical person could do, including “assembler” (DOT § 706.684022), “sorter” (DOT § 753.587-010), and “marker” (DOT § 920.687-126). Id. at 72. The DOT lists
the expected noise level for both the assembler and marker positions as “Level 4 - Loud.” DOT §§
706.684-022, 920.687-126. Although the ALJ did ask the VE to explain any difference between her
testimony and the information in the DOT prior to posing the hypothetical question, see Dkt. # 13-2,
9
at 70, the VE failed to identify the conflict, and the ALJ did not undertake further inquiry.7 Thus,
the ALJ could not rely on the VE’s testimony as to the assembler and marker positions. See
Haddock, 196 F.3d at 1092.
However, there is no conflict between the VE’s testimony and the DOT as to the sorter
position,8 and thus there is no error in the ALJ’s reliance on the VE’s testimony as to that position.
Plaintiff states that “the assumption that there is one remaining job available to Plaintiff is
unsupported by the fact the VE’s testimony is unreliable and inconsistent with the DOT.” Dkt. # 22,
at 1. In essence, plaintiff argues that the ALJ could not rely on the VE’s testimony as to the sorter
position because of the conflicting testimony about the assembler and marker positions. However,
plaintiff cites no authority supporting this argument, and the Court could find none. In similar
situations, the Tenth Circuit has often continued its analysis beyond the determination of a conflict
to consider whether the portion of the VE’s testimony about which there is no conflict would support
the ALJ’s ruling, implicitly rejecting plaintiff’s argument. See, e.g., Conger v. Astrue, 453 F. App’x
821, 827-28 (10th Cir. 2011); Krueger v. Astrue, 337 F. App’x 758, 762 (10th Cir. 2009); Rogers
v. Astrue, 312 F. App’x 138, 141-42 (10th Cir. 2009); Norris v. Barnhart, 197 F. App’x 771, 776-77
(10th Cir. 2006). If “a significant number of jobs (in one or more occupations) having requirements
which [the claimant is] able to meet” exists in the national economy for those occupations about
7
In his decision, the ALJ stated that “[p]ursuant to SSR 00-4p, [he has] determined that the
vocational expert’s testimony is consistent with the information contained in the Dictionary
of Occupational Titles.” Dkt. # 13-2, at 26. However, given the obvious conflict regarding
noise level, this statement does not demonstrate the level of investigation and explanation
required by Haddock.
8
The expected noise level for the sorter position is “Level 3 - Moderate.” DOT § 753.587010.
10
which there is no conflict between the VE’s testimony and the DOT, the Tenth Circuit has upheld
the ALJ’s finding of no disability. Conger, 453 F. App’x at 828 (quoting Evans v. Chater, 55 F.3d
530, 532 (10th Cir. 1995)). When there is a conflict as to all of the positions identified by the VE,
however, the Tenth Circuit has remanded the case to the ALJ for resolution of the conflict. See, e.g.,
Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005).
As there is no conflict regarding the sorter position, the Court will consider whether the
ALJ’s decision at step five could be supported based on the VE’s testimony about that position. The
Tenth Circuit’s previous decisions in Conger, Krueger, Rogers, and Norris, although not
precedential, are instructive. In Conger, there was a conflict as to two of the five positions identified
by the VE. Conger, 453 F. App’x at 827. The Tenth Circuit, noting that the VE “explicitly stated that
other occupations would be available . . . and that she was simply providing occupational examples,”
found that the remaining positions existed in sufficient numbers for the ALJ to find the claimant not
disabled at step five. Id. at 828. Similarly, although three of the four occupations identified by the
VE in Rogers conflicted with the DOT, the Tenth Circuit found that the fourth occupation provided
a sufficient basis for the ALJ’s ruling. Rogers, 312 F. App’x at 141-42. By contrast, the Tenth
Circuit panel in Krueger ordered the case remanded to the ALJ for confirmation that there were no
actual conflicts between the DOT and the four occupations that had no apparent conflict with the
DOT. Krueger, 337 F. App’x at 762. The court stated that the ALJ should, in addition to confirming
that no conflicts existed, ensure that the claimant’s limited mathematical skills would not preclude
her from performing any of the occupations for which no conflict existed. Id. In Norris, the Tenth
Circuit found that the two occupations identified by the VE that did not conflict with the DOT
existed in such low numbers in the region that the ALJ should determine whether they met the
11
requirement for a “significant number” of positions. Norris, 197 F. App’x at 777 (citing 42 U.S.C.
§ 423(d)(2)(A)). The court was also concerned that the ALJ’s failure to properly address one of the
medical opinions in the record could affect the claimant’s RFC, which in turn could make one or
both of the identified occupations no longer applicable. Id.
Plaintiff’s claim is similar to both Rogers and Norris. As in Rogers, only one of the proposed
occupations, the sorter position, does not conflict with the DOT.9 See Rogers, 312 F. App’x at 141.
Plaintiff does not contest that a person with her “age, education, work experience, and residual
functional capacity” could work as a sorter. Dkt. # 13-2, at 26. This is unlike both Krueger and
Norris, where the Tenth Circuit returned the case to the ALJ at least in part because of a concern that
some other aspect of the case--the claimant’s mathematical skills in Krueger and the unaddressed
medical opinion in Norris--could affect whether the remaining occupations were feasible. See
Krueger, 337 F. App’x at 762; Norris, 197 F. App’x at 777. That concern does not exist here, and
the ALJ need find only one occupation exists in sufficient numbers to satisfy his burden at step five.
See Evans, 55 F.3d at 532 (“Work exists in the national economy [for step-five purposes] when there
is a significant number of jobs (in one or more occupations) having requirements which the claimant
is able to meet . . . .” (emphasis added) (citing 20 C.F.R. § 404.1566(b))); see also Rogers, 312 F.
App’x at 141-42. However, as in Norris, it is not clear that a “significant number” of sorter positions
are available. See Norris, 197 F. App’x at 777. Thus, the Court must consider whether plaintiff’s
9
Like the VE in Conger, the VE here stated that the occupations fitting the ALJ’s hypothetical
were merely “representative examples” of work that plaintiff could do. Dkt. # 13-2, at 72.
As discussed above, the VE testified that plaintiff could also resume her past work as a
pillow stuffer as that job is generally performed. Id. at 71. However, the VE did not identify
the DOT section corresponding to that occupation, and she provided no testimony as to the
number of positions available in the economy. Likewise, the ALJ made no findings as to the
number of positions. Thus, evidence exists only for the sorter position.
12
case should be remanded to the ALJ to determine if the sorter position exists in “significant
number[s]” in the regional or national economy. See 20 C.F.R. § 404.1566(b).
Plaintiff argues that such a remand is necessary because the ALJ did not find that each
position the VE identified existed in significant numbers. Dkt. # 22, at 2. Instead, the ALJ listed all
three occupations and then stated that plaintiff could “mak[e] a successful adjustment to other work
that exists in significant numbers.” Dkt. # 13-2, at 26-27. The Tenth Circuit has emphasized that “the
issue of numerical significance entails many fact-specific considerations requiring individualized
evaluation” and, as such, “the evaluation ‘should ultimately be left to the ALJ’s common sense in
weighing the statutory language as applied to a particular claimant’s factual situation.’” Allen v.
Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (quoting Trimiar v. Sullivan, 966 F.2d 1326, 1330
(10th Cir. 1992)). However, the court in Allen also stated that “it nevertheless may be appropriate
to supply a missing dispositive finding under the rubric of harmless error in the right exceptional
circumstance . . . . Such an approach might have been open to us here had the number of available
jobs identified by the VE not been one hundred but considerably greater.” Id. at 1145. This case does
not fit neatly within the Tenth Circuit’s prior decisions on this issue. For example, in Rogers, where
only one of the four originally proposed occupations had no conflict, the Tenth Circuit panel found
that 11,000 positions in the national economy met the requirement for a “significant number” of
jobs. Rogers, 312 F. App’x at 141-42. In Norris, however, the Tenth Circuit found that the two
occupations without a conflict, which together totaled approximately 1,500 jobs in the regional
economy and 200,000 jobs in the national economy, were not clearly present in “significant
number[s].” Norris, 197 F. App’x at 777. In Stokes v. Astrue, 274 F. App’x 675 (10th Cir. 2008),
the Tenth Circuit decided that the two jobs for which there was no conflict, together totaling 11,000
13
jobs regionally and 152,000 jobs nationally, existed in significant numbers, satisfying the step five
analysis. Id. at 684. Here, the VE testified that there are 7,000 sorter positions in the regional
economy and 80,000 positions nationally. Dkt. # 13-2, at 72. There are more regional positions
available than were present in Norris, but not as many as in Stokes. There are more national
positions available than in Rogers, but there are significantly fewer than were present in Stokes and
Norris. Given the Tenth Circuit’s stated preference that a reviewing court should make a dispositive
finding only in an “exceptional circumstance,” the Court declines to find that there are a “significant
number” of sorter positions in the economy. Thus, the ALJ’s alternate step five determination that
plaintiff is not disabled is in error, as there is not a finding that there is a “significant number” of
other work that plaintiff is able to do.
In summary, the Court finds that the ALJ’s finding at step four of no disability is not
supported by substantial evidence in the record. Further, the ALJ’s analysis at step five is incomplete
and, for that reason, the ALJ’s finding at step five is in error. On remand, the ALJ should determine
whether plaintiff’s previous employment as a pillow stuffer meets the requirements for “substantial
gainful activity,” and make all necessary findings as to the physical and mental demands of that
position. Additionally or alternately, the ALJ should determine, based on the specific facts of
plaintiff’s case, whether a “significant number” of sorter positions are available. The ALJ may also
elicit a reasonable explanation for the conflicts between the VE’s testimony and the DOT as to the
assembler and marker positions.
14
IT IS THEREFORE ORDERED that the report and recommendation (Dkt. # 21) is
rejected, and the Commissioner’s decision is reversed and remanded for further proceedings. A
separate judgment is entered herewith.
DATED this 5th day of January, 2015.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?