Jennings v. Social Security Administration

Filing 23

OPINION AND ORDER by Judge Claire V Eagan that Report and Recommendation (Dkt. # 20) is accepted as entered, and the decision of the Commissioner of the Social Security Administration is affirmed. ; accepting 20 Report and Recommendation (Re: 2 Social Security Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID L. JENNINGS,

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

Case No. 17-CV-0219-CVE-FHM

OPINION AND ORDER
Now before the Court is the Report and Recommendation (Dkt. # 20) recommending that
the Court affirm defendant’s decision to deny plaintiff’s claim for disability benefits. Plaintiff has
filed a timely objection (Dkt. # 21) to the report and recommendation raising two issues. First,
plaintiff argues that the administrative law judge (ALJ) erred by refusing to allow plaintiff to call
a witness at the hearing. Second, plaintiff claims that the ALJ misidentified a job at step five of the
analysis by using an incorrect job title or number from the Dictionary of Occupational Titles (DOT).
I.
On May 19, 2014, plaintiff applied for disability benefits and alleged a date of onset of
disability of July 3, 2003. Dkt. # 10, at 148-49. Plaintiff’s claim was denied initially and upon
reconsideration, and he requested a hearing before an ALJ. Id. at 103-112. A hearing was set for
October 21, 2015.
Plaintiff appeared at the hearing before the ALJ and he was not represented by counsel. Id.
at 33. The ALJ advised plaintiff that he had a right to be represented by counsel at the hearing, and
plaintiff stated that he was waiving his right to counsel. Id. The ALJ explained the process of
reviewing plaintiff’s claim for disability benefits, the applicable regulations, and plaintiff’s burden

to establish that he is disabled. Id. at 34-44. Plaintiff testified that he had heart surgery and he
claimed that he had a heart condition for his entire life. Id. at 46-48. Plaintiff acknowledged that
he is able to move around but he has limited stamina due to a congenital heart defect. Id. at 48-49.
After high school, plaintiff laid carpet and installed flooring for his father’s business. Id. at 50-53.
He stopped working in June 2013, and he had been working approximately six hours a day before
he quit. Id. at 54. Plaintiff testified that he worked about 30 hours per week, but he would
sometimes work more hours if the company had bigger jobs that required more laborers. Id. at 5556. The work involved constant physical movement, and plaintiff occasionally lifted carpet
weighing up to 200 pounds and regularly lifted tools weighing 25 to 30 pounds. Id. at 57-58.
Plaintiff’s earning history showed that he last earned money in 2007, but he told the ALJ that he was
making about $1,000 per month until he quit working in June 2013. Id. at 61. Plaintiff stated that
he can no longer work primarily due to shortness of breath, and he has a lifting restriction of 20
pounds. Id. at 62. He had difficulty finding another job because of his criminal record, but he stated
that he would be willing to work if he could find a job within his limitations. Id. at 63-66. Plaintiff
claims that he suffers from panic attacks and he takes anxiety medication. Id. at 67. The ALJ called
a vocational expert (VE) to testify, and the VE classified plaintiff’s past relevant work as carpet
layer or floor layer helper. Id. at 73. This would be semi-skilled, heavy work, under DOT 864.687010. Id. The ALJ asked the VE about a hypothetical claimant with plaintiff’s age, work history, and
education who could perform the full range of sedentary work, and the ALJ included other
limitations concerning the use of machinery and certain mental limitations. The VE testified that
the hypothetical claimant could not perform plaintiff’s past relevant work, but there were jobs in the
national economy that the hypothetical claimant could perform. Id. at 74-75. The VE provided a

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job title, DOT number, and the number of jobs available in the national economy for four jobs. Id.
After the VE’s testimony, plaintiff told the ALJ that he “had somebody with [him],” and he “didn’t
know if it was relevant to have her in here or not, like, as a witness or anything.” Id. at 76. The ALJ
told plaintiff that it was “too late” to call a witness” and the hearing was concluded. Id.
The ALJ issued a written decision denying plaintiff’s claim for disability benefits. Id. at 1524. Plaintiff had the severe impairments of aortic stenosis, bicuspid valve, post aortic valve
replacement surgery, recurrent arrhythmias, and anxiety. Id. at 17. Plaintiff did not have an
impairment or combination of impairments that met or medically exceeded one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 18. The ALJ determined that
plaintiff had the following residual functional capacity (RFC):
After careful consideration of the entire record, the undersigned finds that the
claimant has the [RFC] to perform sedentary work as defined in 20 CFR 416.967(a)
except he must not climb ladders, ropes, or scaffolds; stooping, kneeling, crouching,
crawling, and climbing ramps or stairs can be done occasionally; and he should have
no exposure to unprotected heights, open flames, dangerous machinery or equipment,
or other hazardous conditions (note that all moving machinery is not dangerous–such
as machinery were moving parts are shielded). Due to mental impairments, the
claimant can understand, remember, and carryout simple or intermediate level
instructions, and perform simple and some tasks of intermediate level difficulty
under routine supervision, such that he is capable of doing simple or at most semiskilled work. In addition, he can relate to supervisors and coworkers on a superficial
and work-related basis and can adapt to a work situation.
Id. at 19. Plaintiff did not have any prior work that qualified as a past relevant work, and the ALJ
resolved plaintiff’s claim at step five of the analysis. The ALJ identified four jobs that plaintiff
could perform with his RFC, and there were a total of 135,000 of these jobs in the national economy.
One of the jobs identified by the ALJ was clerical mailer, DOT number 209.587-104, and there were
32,000 of these jobs in the national economy. The ALJ found that there were jobs in significant

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numbers in the national economy that plaintiff could perform, and plaintiff’s claim for disability
benefits was denied.
Plaintiff sought review of the denial of his claim by the Appeals Council, and the Appeals
Council found no basis to review plaintiff’s claim. Id. at 4. Plaintiff filed this case seeking judicial
review of the denial of his claim for disability benefits, and he is represented by counsel. Dkt. # 2.
The matter was referred to a magistrate judge for a report and recommendation, and magistrate
recommends that the Commissioner’s decision to deny plaintiff’s claim for disability benefits be
affirmed.
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 14 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 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.
Plaintiff argues that the ALJ erred when he refused to allow plaintiff to call a witness at the
hearing, and he claims that the case should be remanded due to a mis-identification of a job at step
five of the analysis. Defendant acknowledges that both of these errors occurred but argues that
plaintiff has not shown that any error by the ALJ prejudiced him.

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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 [him]
from performing [his] past relevant work. See Id. Even if a claimant is so impaired,
the agency considers, at step five, whether [he] 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 this case at step five of the
analysis, finding that sufficient jobs existed in the national economy to allow plaintiff to work. At
step five, the ALJ must consider a claimant’s RFC, age, education, and work experience to
determine if other work exists 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 outside of 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 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 of the review process. Emory v. Sullivan, 936 F.2d 1092, 1094 (10th Cir. 1991).
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.

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2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
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).
Plaintiff argues that the ALJ erred when he refused to allow plaintiff to call a witness at the
hearing. The notice advising plaintiff of the date of his administrative hearing clearly states that
plaintiff is permitted to “present and question witnesses” at the hearing. Dkt. # 10, at 131. Social
security regulations also allow a claimant to call witnesses to testify on the claimant’s behalf at a
hearing. 20 C.F.R. § 404.950(e); 20 C.F.R. § 416.1416(b)(4). Defendant does not dispute that the
ALJ erred by refusing to allow plaintiff to call a witness, but defendant argues that any error was
harmless due to plaintiff’s failure to make a proffer as to the testimony that would have been offered
by the witness. Dkt. # 22, at 2. The harmless error doctrine applies to judicial review of
administrative rulings, including in the social security setting. Allen v. Barnhart, 357 F.3d 1140
(10th Cir. 2004). The burden of showing that an error was harmful normally falls on the party that
is attacking the agency’s decision. Shinseki v. Sanders, 556 U.S. 396, 409 (2009). The Tenth
Circuit has taken into account that proceedings before the ALJ in a social security case are nonadversarial, but has found that errors “minor enough not to undermine confidence in the
determination of th[e] case” do not warrant remand for further proceedings. Allen, 357 F.3d at 1145.

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The Court finds that plaintiff has made no attempt to show that allowing the testimony of his
witness would have had any effect on the ALJ’s decision, and any error in refusing to allow the
witness to testify was harmless. Plaintiff argues that he was not represented at the hearing before
the ALJ, and the Court should not expect him to be familiar with the procedural rules applicable in
a social security hearing. Dkt. # 21, at 3. The Court is aware that plaintiff was unrepresented at the
hearing, and the Court has taken into account that he may not have known that he should have made
a proffer as to the testimony he intended to elicit from his witness. However, plaintiff is represented
by counsel in the proceedings in this Court, and plaintiff’s counsel has filed an opening brief, a
reply, and objections to the report and recommendation, and counsel has failed in each of his filings
to make any representation concerning the nature of the witness’ testimony. Plaintiff’s counsel was
on notice after the filing of defendant’s response and the magistrate judge’s report and
recommendation that harmless error was an issue in this case, but counsel has made no record that
would allow the Court to find that the witness would have offered relevant testimony. It is clear that
the ALJ erred by refusing to allow plaintiff to call a witness, but the Court finds no basis to conclude
that the witness’ testimony would have affected the ALJ’s decision to deny plaintiff’s claim for
disability benefits.
Plaintiff argues that the VE provided an incorrect job title or DOT number for one of the four
jobs that plaintiff could perform at step five, and this error requires the Court to remand the case for
further administrative proceedings. Dkt. # 21, at 5. During the hearing, the VE testified that the
hypothetical claimant could perform the job of “clerical mailer” with DOT number 209.587-014.
Dkt. # 10, at 75. However, the listed DOT number corresponds to the job of “credit card clerk,” not
“clerical mailer.” Plaintiff claims that the job of “mail clerk” is actually DOT number 209.687-026,

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but the job of “mail clerk” is light work that plaintiff could not perform with his RFC. The
magistrate judge acknowledged that the VE “misspoke when he said the job title was clerical
mailer,” but he did not recommend that the Court remand the case due to this error. Defendant
argues that the job of “credit card clerk” is sedentary work within plaintiff’s RFC, and the misidentification of the job title by the VE and ALJ has no effect on the ALJ’s step five findings.
The Court does not find that the mis-identification of a job title at step five provides any
basis to remand the case for further administrative proceedings. Plaintiff has not responded to
defendant’s argument that he would be able to perform the job of “credit card clerk,” and the
magistrate judge stated that plaintiff could perform this job with his RFC. The Court has
independently reviewed this recommendation and finds that the physical and mental requirements
of the job of “credit card clerk” do not conflict with plaintiff’s RFC. Thus, any misidentification
in the title of the job does not remove the job from consideration at step five, and plaintiff has not
shown that the misidentification affected the outcome of the proceedings. Plaintiff appears to be
making a cumulative error argument and he argues that “two significant mistakes in the same
decision does not seem like the ALJ was engaging in his heightened duty to fully and fairly develop
the record involving a pro se litigant.” Dkt. # 21, at 5. There is no basis to infer that plaintiff’s pro
se status had anything to do with the VE’s misstatement of a job title, and plaintiff has not shown
that the ALJ failed to adequately develop the record. Plaintiff has not shown that any error or
combination of errors adversely affected the proceedings and the magistrate judge’s report and
recommendation should be accepted.

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IT IS THEREFORE ORDERED that Report and Recommendation (Dkt. # 20) is accepted
as entered, and the decision of the Commissioner of the Social Security Administration is affirmed.
A separate judgment is entered herewith.
DATED this 18th day of September, 2018.

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