Smith v. Commissioner of Social Security Administration

Filing 26

MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on the forgoing analysis, the Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 10/5/18. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VASHITA L. SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. CIV-17-1200-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
applications for benefits under the Social Security Act. The Commissioner has answered
and filed a transcript of the administrative record (hereinafter TR. ____). The parties have
consented to jurisdiction over this matter by a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for benefits. (TR. 17, 114-118, 119-122, 128-130, 131-133). Following an
administrative hearing, Administrative Law Judge (ALJ) Kim D. Parrish issued an
unfavorable decision on December 27, 2016. (TR. 17-27). The Appeals Council (AC)

denied Plaintiff’s request for review on September 6, 2017. (TR. 1-3). Thus, the decision
of the ALJ became the final decision of the Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§§ 404.1520, 416.920. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date of April 1, 20141. (TR. 19). At step
two, the ALJ determined that Ms. Smith had the severe medically determinable
impairments of degenerative disc disease, fibromyalgia, affective disorder, anxiety
disorder with panic attacks, and substance abuse disorder. (TR. 19). At step three, the
ALJ found that Plaintiff’s impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1.
(TR. 19).
The ALJ next determined that Plaintiff retained the residual functional capacity
(RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
the claimant is able to occasionally stoop and frequently handle objects.
She can understand, remember, and carry out simple instructions but not
detailed instructions and only occasionally interact with the public.
(TR. 21). At step four, the ALJ relied upon vocational expert (VE) testimony to find that
Plaintiff could not perform her past relevant work. (TR. 26, 51). At step five, the ALJ

The record identifies several different dates as Plaintiff’s alleged onset date. Plaintiff initially
alleged a disability onset date of July 3, 2010. (TR. 188, 195, 232). At the hearing, and elsewhere
in the record, Plaintiff alleged a disability onset date of March 24, 2015. (TR. 35, 58, 71, 87, 101,
260, 270).
1

2

presented several limitations to the VE to determine whether there were other jobs in the
national economy that Plaintiff could perform given her RFC. (TR. 50-51). Given these
limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT)
that Plaintiff could perform, those of housekeeping cleaner, merchandise marker, and
label coder. (TR. 26-27, 50-51).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges that the ALJ (1) failed to sustain her burden at step

five of the sequential evaluation process by finding that Plaintiff could perform jobs at
reasoning level two, which exceeds Plaintiff’s assessed RFC, and (2) incorrectly found
that Plaintiff could perform jobs at step five because Plaintiff could not perform the
frequent reaching and handling required by the three jobs cited by the VE at step five.
(ECF No. 20:5-9).
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

3

V.

THE ALJ’S STEP FIVE EVALUATION
Plaintiff argues that the ALJ erred by finding that Plaintiff could perform other work

as a merchandise marker and a label coder. (ECF No. 20:5). Plaintiff contends that both
jobs require a reasoning level of two2, and that the ALJ’s RFC contains mental limitations
“incompatible” with this reasoning level. Id. at 6. Plaintiff reasons that she cannot perform
the jobs of merchandise marker and label coder because her RFC limits her to performing
“simple instructions but not detailed instructions.” Id. Plaintiff further notes that she only
has a 9th grade education and never obtained a GED. Id.
Plaintiff is correct that in comparing her RFC with the requirements of jobs with a
reasoning level of two, it is unlikely that she would be able to perform the mental
requirements associated with the jobs of merchandise marker and label coder.
Commissioner appears to concede Plaintiff’s argument but contends that even if these
two jobs were eliminated, this constitutes harmless error because Plaintiff could still
perform the job of housekeeper cleaner, for which there exist 136,000 jobs in the national
economy. (ECF No. 22:10-11). A finding of harmless error is appropriate when the court
can “confidently say that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Allen v. Barnhart, 357
F.3d 1140, 1144 (10th Cir. 2004).

The DOT includes a General Education Development (GED) Scale composed of three divisions:
(1) reasoning development; (2) mathematical development; and (3) language development. See
DOT, Appendix C, Components of the Definition Trailer, 1991 WL 688702. The GED “embraces
those aspects of education (formal and informal) which are required of the worker for satisfactory
job performance.” Id. The reasoning component includes six levels. Level two, at issue here,
requires the ability to “Apply commonsense understanding to carry out detailed but uninvolved
written or oral instructions. Deal with problems involving a few concrete variables in or from
standardized situations.” Id.
2

4

Tenth Circuit case law is clear that even if the ALJ mistakenly included at step five
jobs whose requirements exceed a Plaintiff’s RFC, this constitutes harmless error if there
remained a significant number of jobs available in the national economy that Plaintiff
could perform. See Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (upholding
ALJ’s reliance on VE testimony where, even assuming two of the three jobs relied upon
by the ALJ were erroneous, substantial evidence showed claimant could do the third job,
which existed in significant numbers in the national economy); see also Chrismon v.

Colvin, 531 F. App’x at 899-900 (10th Cir. 2013), Evans v. Colvin, 640 F. App’x 731, 736
(10th Cir. 2016) (recognizing that the Tenth Circuit has held that an ALJ’s erroneous
inclusion of some jobs to be harmless error where there remained a significant number
of other jobs in the national economy).
The dispositive question here with respect to the harmless error analysis is whether
136,000 jobs constitutes a “significant” number of jobs. The Tenth Circuit has never
drawn a bright line establishing the number of jobs necessary to constitute a significant
number. Botello v. Astrue, 376 F. App’x 847, 850 (10th Cir. 2010), citing Trimiar v.

Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992). However, the Tenth Circuit has allowed
that the question of determining numerical significance entails many fact-specific
considerations, and should “ultimately be left to the ALJ's common sense in weighing the
statutory language as applied to a particular claimant's factual situation.” Id., citing

Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir.1988) (internal citations omitted). Citing
a list of factors put forward by the Eighth Circuit, the Tenth Circuit found in Trimiar that
a number of factors “go into the proper evaluation of significant numbers”:

5

A judge should consider many criteria in determining whether work exists
in significant numbers, some of which might include: the level of claimant's
disability; the reliability of the vocational expert's testimony; the distance
claimant is capable of travelling to engage in the assigned work; the isolated
nature of the jobs; the types and availability of such work, and so on.

Id. In reviewing the hearing transcript and the decision, it is clear that the ALJ properly
considered these factors. During the administrative hearing and in the subsequent
decision, the ALJ questioned Plaintiff concerning her physical and mental impairments,
and evaluated the severity of these impairments in assessing the RFC and in reaching a
final decision. (TR. 21-26, 35-47). The ALJ also considered Plaintiff’s capacity to travel to
work by eliciting testimony concerning Plaintiff’s inability to drive an automobile due to
her physical and mental symptoms. (TR. 39). The ALJ gave due consideration to the
relevant education and experience of the vocational expert, posed hypotheticals to the
VE concerning Plaintiff’s residual functional capacity, and questioned the VE regarding
her conclusion that Plaintiff could perform work that existed in significant numbers in the
national economy. (TR. 49-52).
There may be times when the number of remaining jobs is “small enough to put
the issue in a gray area” and where it is better for the Social Security Administration to
address the question in the first instance. Allen, 357 F.3d at 1145; see also Quintana v.

Colvin, 2015 WL 4664980 (D. Kansas, August 6, 2015) (summarizing Tenth Circuit
jurisprudence and noting that the Tenth Circuit determined that the ALJ committed
harmless error when the court found that the remaining number of jobs regionally range
from 11,000 to 17,500 and nationally range from 152,000 to 215,000).

6

While there may be a degree of uncertainty on this question, Tenth Circuit case
law indicates that 136,000 available jobs appears to constitute a “significant” number of
jobs for purposes of Social Security regulations. See e.g., Stokes v. Astrue, 274 Fed.Appx.
675, 684 (10th Cir.2008) (finding only 152,000 jobs in the national economy sufficient);

Chrismon v. Colvin, 531 Fed.Appx. 893, 899–900 (10th Cir.2013) (finding 212,000 jobs
sufficient); Evans v. Colvin, 640 F. App’x at 736-737 (finding that Commissioner was
“substantially justified in arguing that 18,831 remaining jobs in the national economy was
sufficient for the application of harmless error”); Lynn v. Colvin, 637 F. App’x 495, 499
(10th Cir. 2016) (finding 24,900 jobs available throughout the nation to be significant);

Hill v. Colvin, No. CIV-13-1232-HE, 2015 WL 1412581, at *7 (W.D. Okla. Mar. 26, 2015)
(affirming where ALJ found 47,700 nationally available jobs constituted a significant
number); see also Trimiar, 966 F.2d at 1332 (noting that courts need not “strain at
numbers” when deciding whether an ALJ’s findings concerning what constitutes a
“significant” number of jobs if the ALJ’s decision is otherwise supported by substantial
evidence).
Persuasive authority from other circuits suggests that far fewer than 152,000
remaining jobs can constitute a “significant” number of jobs. See Sears v. Berryhill, 2018
WL 2002487 (D.N.M. April 30, 2018), citing Gutierrez v. Comm. of Social Sec., 740 F.3d
519, 528-29 (9th Cir. 2014) (noting that it was “a close call,” but affirming an ALJ’s
determination that 25,000 national jobs is a significant number); Long v. Chater, 108 F.3d
185, 188 (8th Cir. 1997) (affirming an ALJ’s determination that 30,000 national jobs is a

7

significant number). As such, the ALJ’s findings at step five of the sequential evaluation
are supported by substantial evidence.
VI.

ALJ’s EVALUATION OF REACHING AND HANDLING LIMITATIONS
Plaintiff argues that the ALJ failed to meet her burden at step five of the sequential

evaluation because Plaintiff cannot perform the frequent reaching and handling
limitations required by the jobs cited by the VE. (ECF No. 20:7). Plaintiff cites her
complaints of numbness and tingling in her extremities, examinations showing decreased
grip strength in her right hand, muscle weakness and tightness in her arms and shoulder,
and the sensation that her arm “gives way.” Id. at 7-8. Plaintiff argues that these
symptoms necessitate an RFC restriction to only occasional reaching, handling, and
fingering, “especially in the right hand and arm.” Id. at 8. Plaintiff argues that her
symptoms are exacerbated by the side effects of her medication, which makes her tired,
and which in turn makes “her drop things, adding to an already weakened right arm and
hand.” Id. Plaintiff further claims that the muscle relaxants she takes exacerbate her
fatigue. Id.
Tenth Circuit case law is clear that an ALJ is not required to include in the RFC
limitations “claimed by plaintiff but not accepted by the ALJ as supported by the record.”

See Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995); see also Smith v. Colvin, 821
F.3d 1264, 1270 (10th Cir. 2016) (“The administrative law judge had to ask only about
the effect of those limitations ultimately assessed; the judge did not need to ask about
the effect of limitations that he didn't believe applied.”). Here, the ALJ found that Plaintiff
was limited to frequently handling objects but did not assess any of the other limitations

8

suggested by Plaintiff. (TR. 21). In assessing Plaintiff’s subjective allegations, the ALJ
cited “relatively mild medical findings” and found inconsistencies with respect to Plaintiff’s
allegations concerning her hands. Id. at 25.
No acceptable medical sources have opined that Plaintiff’s physical impairments
would necessitate the type of limitations suggested by Plaintiff. The only medical opinions
in the record concerning Plaintiff’s physical impairments were rendered by State agency
physicians Janet Rodgers, MD, and Donald Baldwin, MD, who both assessed Plaintiff as
being to perform medium work with occasional stooping. (TR. 65-66, 78-79, 94-95, 108109). The ALJ assigned these opinions “limited weight”, giving Plaintiff the benefit of the
doubt and finding that light work would be more suited to Plaintiff’s capabilities. Id. at
25.
Accepting Plaintiff’s interpretation of the record would amount to re-weighing the
evidence and substituting the court’s judgment for that of the Commissioner in a manner
inconsistent with Tenth Circuit case law. See Bowman v. Astrue, 511 F.3d 1270, 1272
(10th Cir. 2008); see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). (“The
possibility of drawing two inconsistent conclusions from the evidence does not prevent
an administrative agency’s findings from being supported by substantial evidence. We
may not displace the agency’s choice between two fairly conflicting views, even though
the court would justifiably have made a different choice had the matter been before it de
novo.”). As such, the ALJ’s decision is supported by substantial evidence.

9

ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
Based on the forgoing analysis, the Court AFFIRMS the Commissioner’s decision.
ENTERED on October 5, 2018.

10