Baker v. Social Security Administration

Filing 28

OPINION AND ORDER by Magistrate Judge Frank H McCarthy Affirming the Commissioner's decision (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MARLENE KAREN BAKER,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 14-CV-371-FHM

OPINION AND ORDER
Plaintiff, Marlene Karen Baker, seeks judicial review of a decision of the
Commissioner of the Social Security Administration denying disability benefits.1

In

accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the
Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th
Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th

1
Plaintiff Marlene Karen Baker’s application was denied initially and upon reconsideration. A
hearing before Administrative Law Judge (ALJ), Deborah L. Rose, was held on September 4, 2012.
By decision dated September 27, 2012, the ALJ entered the findings which are the subject of this
appeal. The Appeals Council denied Plaintiff’s request for review on May 9, 2014. The decision of the
Appeals Council represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R.
§§ 404.981, 416.1481.

Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d
842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
court may neither reweigh the evidence nor substitute its judgment for that of the
Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th
Cir. 1991). Even if the court would have reached a different conclusion, if supported by
substantial evidence, the Commissioner’s decision stands. Hamilton v. Secretary of Health
& Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 46 years old on the alleged date of onset of disability and 48 on the date
of the denial decision. Plaintiff graduated from high school and has one year of college.
Her

past work experience includes hospital housekeeper, hand packager, cashier,

phlebotomist, electronic tester, circuit board solderer, and inspector. Plaintiff claims to
have become disabled as of April 12, 2011, due to diabetes, high blood pressure,
neuropathy, limited vision, high cholesterol, sleep apnea, and depression. [R. 145].
The ALJ’s Decision
The ALJ found that Plaintiff has severe impairments relating to diabetes mellitus with
peripheral neuropathy combined with hypertension, sleep apnea, degenerative disc disease
of the thoracic spine, depression, and anxiety. [R. 20]. The ALJ determined that Plaintiff
has the residual functional capacity to perform light work as defined in 20 C.F.R. §
404.1567(b) in that she can lift and/or carry 10 pounds frequently and 20 pounds
occasionally; stand and/or walk 6 hours out of an 8-hour workday; sit for 6 hours out of an
2

8-hour workday; pushing and/or pulling such as using hand and/or foot controls limited to
10 pounds frequently and 20 pounds occasionally. Plaintiff can manipulate objects with
both upper extremities; limited to occasional feeling; can perform superficial and incidental
work-related interaction with coworkers and supervisors; have no significant public
interaction; and is limited to simple routine tasks. [R. 21-22]. Although Plaintiff is unable
to perform her past relevant work, based on the testimony of the vocational expert, the ALJ
found that there are a significant number of jobs in the national economy that Plaintiff could
perform with these limitations. [R. 29-30]. Accordingly, the ALJ determined that Plaintiff
was not disabled. The case was thus decided at step five of the five-step evaluative
sequence for determining whether a claimant is disabled. See Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ erred by: 1) relying on the testimony of the vocational
expert which conflicts with the Selected Characteristics of Occupations (SCO) as

defined in the Revised Dictionary of Occupational Titles (1993); and 2) failing to
properly evaluate the medical source evidence.

3

Analysis
Conflict between the Vocational Expert’s Testimony and
the Dictionary of Occupational Titles (DOT)2
Plaintiff argues the vocational expert`s testimony conflicts with the DOT and remand
is warranted to resolve the conflict. [Dkt. 20, pp. 6-8]. The ALJ found Plaintiff capable of
performing light work with certain restrictions, including manipulating objects with both
upper extremities; occasional feeling; superficial and incidental work-related interaction with
coworkers and supervisors; no significant public interaction; and is limited to simple routine
tasks. [R. 21-22]. In response to the ALJ’s hypothetical question, the vocational expert
testified that someone with Plaintiff`s residual functional capacity (RFC) could perform the
jobs of a bakery worker (DOT #524.687-022), 1991 WL 674401; and surveillance monitor
(DOT #379.367-010), 1991 WL 673244. [R. 57-58].
Plaintiff argues that the jobs identified by the vocational expert are not available to
her because the jobs require the performance of tasks that exceed the ALJ’s RFC. Plaintiff
contends that the job of surveillance monitor identified by the vocational expert is defined
in the DOT as requiring “frequent” talking which conflicts with the RFC limitation of only
superficial and incidental contact with coworkers and supervisors and no significant
interaction with the public.

2

Selected Characteristics of Occupations (SCO) is a companion publication to the Dictionary of
Occupational Titles (DOT) published by the Department of Labor. Plaintiff’s brief refers to the Selected
Characteristics of Occupations (SCO), but does not provide a valid page number for the reference to that
source. The SCO is a 627 page publication full of columns and rows of occupational titles and codes.
Because of the arrangement of the data in the SCO, it is practically unusable without a page number.
It appears, however, that although Plaintiff refers to the SCO, what Plaintiff is actually talking
about is the full job description contained in the DOT. The DOT describes physical and mental demand
components for every job, and the degree to which the job requires the worker to relate to data, people,
or things. Therefore, the court’s discussion refers to the DOT, rather than the SCO.

4

The Dictionary of Occupational Titles3 (DOT) lists surveillance monitor as having a
people rating of 6. The “people rating” expresses the degree of interaction with other
people that the job requires. As explained at Appendix B to the DOT, “there are nine
possible function assignments for the “People” category, and the numbering denotes, from
highest (0) to lowest (8), the job's involvement with people. Dictionary of Occupational
Titles, App. B—Explanation of Data, People, & Things, 1991 WL 688701. A “people rating”
of 6 for surveillance monitor indicates this job has little involvement with people. This
conclusion is confirmed by the job description for the position. The DOT description for
surveillance-system monitor states that job involves the following:
Monitors premises of public transportation terminals to detect
crimes or disturbances, using closed circuit television monitors,
and notifies authorities by telephone of need for corrective
action: Observes television screens that transmit in sequence
views of transportation facility sites. Pushes hold button to
maintain surveillance of location where incident is developing,
and telephones police or other designated agency to notify
authorities of location of disruptive activity. Adjusts monitor
controls when required to improve reception, and notifies repair
service of equipment malfunctions.
DOT #379.367-010, 1991 WL 673244. Nothing within the job description or people rating
exceeds the RFC limitation of superficial and incidental work-related interaction with coworkers and supervisors, and no public interaction.
Further, Plaintiff argues that the job of bakery worker requires “occasional” proximity
to moving mechanical parts, hot ovens, and other dangerous equipment which conflicts

3

See "Appendix C: General Education Development," in Dictionary of Occupational Titles, U.S. Dep’t of Labor,
Office of Administrative Law Judges (4th ed.1991), at http://www.oalj.dol.gov/public/dot/refrnc/dotappc.htm.

5

with the RFC limitation of having the ability to “feel” only occasionally with her upper
extremities. The DOT description for the bakery worker job identified by the vocational
expert is as follows:
Performs any combination of the following tasks in preparation
of cakes along conveyor line: Reads production schedule or
receives instructions regarding bakery products that require
filling and icing. Inspects cakes moving along conveyor to
detect defects and removes defective cakes from conveyor to
reject bins. Positions cakes on conveyor for application of
filling or icing by machine, observes filling or icing application
to ensure uniform coverage, and places additional cake layers
on coated layers, depending on number of cake layers in
product. Observes cakes moving under automatic topping
shaker and cake cutting machine to ensure uniform topping
application and cutting. Smooths iced edges of cake, using
spatula, and moves decorating tool over top of designated
cakes to apply specified appearance. Notifies supervisor of
malfunctions.
DOT #524.687-022, 1991 WL 674401. Contrary to Plaintiff’s assertion, the RFC did not
include any restriction on the ability to be near ovens or dangerous equipment. Exposure
to hot pans, hot ovens, or other dangerous equipment is not within the job description of
bakery worker. In fact, the DOT description specifies that exposure to extreme heat is “not
present – activity or condition does not exist for the job.” 1991 WL 674401. The court finds
there is no merit to Plaintiff’s contention that the bakery worker job is precluded by the
RFC.
The court finds there is no conflict between the DOT descriptions of the designated
jobs and the RFC restrictions of superficial and incidental work-related interaction with
co-workers, supervisors, no significant public interaction, or feeling occasionally with the
upper extremities.
6

Opinion of Treating Physician
Dr. Ranilo Vasquez, M.D., treated Plaintiff from October 10, 2011 through June 4,
2012 for various complaints including diabetes mellitus, hypertension, back pain, and
depression. Dr. Vasquez prepared two Medical Source Statements – Physical. The first
statement was completed on April 1, 2012, [R. 323-24], the second completed on August
2, 2012. [R. 397-98]. Both statements indicate that Plaintiff is very physically limited. Dr.
Vasquez opined that Plaintiff could occasionally lift/carry 10 pounds; frequently lift/carry
less than 10 pounds; stand/walk less than 2 hours in an 8-hour workday; sit for less than
4 hours in an 8-hour workday; must periodically alternate sitting/standing to relieve pain or
discomfort; and push/pull was limited in both her upper and lower extremities. Dr. Vasquez
also found Plaintiff had postural, manipulative, and environmental limitations. The ALJ
gave Dr. Vasquez’s opinion little weight. [R. 28].
Plaintiff argues that the ALJ erred by failing to include Dr. Vasquez’s limitations in
the RFC. Further, Plaintiff argues that the reasons the ALJ gave for rejecting Dr. Vasquez’s
opinion are not supported by substantial evidence. A treating physician's opinion is
accorded controlling weight if it is well-supported by medically acceptable clinical or
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in
the record. Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1176 (10th Cir. 2014)(internal
quotation marks omitted). However, if the opinion is deficient in either of these respects,
it is not given controlling weight. When an ALJ decides to disregard a medical report by
a claimant's physician, he must set forth specific, legitimate reasons for his decision. An
ALJ "may reject a treating physician's opinion outright only on the basis of contradictory
7

medical evidence and not due to his or her own credibility judgments, speculation or lay
opinion." McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
The majority of Dr. Vasquez’s treatment notes from October 10, 2011 through June
4, 2012 indicate that Plaintiff’s diabetes mellitus is managed with diet, oral medication, and
insulin; hyperlipidemia is moderate and Plaintiff is compliant with diet, exercise, and
medication; back pain symptoms are relieved by over-the-counter medication; and myalgia
pain is relieved by analgesics. [R. 346-394]. The ALJ found that Dr. Vasquez relied quite
heavily on the subjective report of symptoms and limitations provided by Plaintiff which the
ALJ found were unreliable. The ALJ noted that the course of treatment provided by Dr.
Vasquez was not consistent with what one would expect of a person who was truly
disabled. There were few musculoskeletal findings, and although there were allegations
of fibromyalgia in Dr. Vasquez’s first Medical Source Statement, there were no references
to positive trigger points or a diagnosis of fibromyalgia. The ALJ stated that although Dr.
Vasquez found Plaintiff to be very limited in the Medical Source Statements, the progress
notes throughout the record do not show Plaintiff to have the restrictions Dr. Vasquez’s
Medical Source Statements impose. [R. 28]. The court finds that the ALJ gave sufficient
reasons for rejecting Dr. Vasquez’s opinion and that those reasons are supported by
substantial evidence.
Conclusion
The court finds that the ALJ evaluated the record in accordance with the legal
standards established by the Commissioner and the courts. The court further finds there

8

is substantial evidence in the record to support the ALJ’s decision. Accordingly, the
decision of the Commissioner finding Plaintiff not disabled is AFFIRMED.
SO ORDERED this 29th day of September, 2015.

9