Barrett v. Commissioner of Social Security Administration
Filing
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OPINION AND ORDER. The challenged findings are supported by substantial evidence in the record and do not reflect prejudicial legal error. The decision of the Commissioner is AFFIRMED. Signed by Honorable Charles Goodwin on 09/19/2019. (jb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BARBARA BARRETT
O/B/O GLEN D. BARRETT,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,1
Defendant.
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Case No. CIV-18-579-G
OPINION AND ORDER
Plaintiff Glen D. Barrett2 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 (“SSA”) denying Plaintiff’s application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Court has
reviewed the administrative record (Doc. No. 10, hereinafter “R. _”),3 and the arguments
and authorities submitted by the parties. The Commissioner’s decision is affirmed.
1
The current Commissioner is hereby substituted as Defendant pursuant to Federal Rule
of Civil Procedure 25(d).
2
This lawsuit was filed on behalf of the claimant, Glen D. Barrett, who passed away while
this matter was before the SSA Appeals Council. See R. 7. In this Opinion, references to
“Plaintiff” refer only to the claimant.
With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
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I.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed his DIB application on October 29, 2014, and ultimately
alleged disability beginning March 1, 2010. R. 18, 46, 175-81. The SSA denied his
application initially and on reconsideration.
R. 62-89.
At Plaintiff’s request, an
administrative law judge (“ALJ”) held a hearing on August 3, 2016, after which the ALJ
issued an unfavorable decision on May 17, 2017. R. 15-61.
The ALJ followed the five-step sequential evaluation process in determining
Plaintiff was not entitled to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009); 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity during the relevant time period. R. 21. At step two,
the ALJ determined that Plaintiff has severe impairments of: emphysema; costochondritis;
lumbago; major depressive disorder, recurrent, moderate to severe, without psychotic
features; and generalized anxiety disorder. R. 21-25.
At step three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
(the “Listings”). R. 25-27.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) during the
relevant period, based on all of his medically determinable impairments, and found:
[T]hrough the date last insured, [Plaintiff] had the [RFC] to perform
“medium work,” as defined in 20 CFR 404.1567(c), except that [Plaintiff]
can only: have no more than occasional exposure to irritants, such as dusts,
fumes, smoke, gases, and poor ventilation; have no more than occasional
exposure to high humidity and wetness; understand, remember, and carry out
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1 to 3 step simple instructions; make only simple work related decisions; and
deal with only occasional changes in work processes and environment.
R 27. At step four, the ALJ considered the hearing testimony of the vocational expert
(“VE”) and found that Plaintiff was not capable of performing any past relevant work. R.
33.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of his age, education, work
experience, and RFC—could perform. R. 33-34. Relying upon the VE’s testimony, the
ALJ found that Plaintiff could perform unskilled occupations such as laundry worker, hand
packager, and machine attendant, and that these occupations offer jobs that exist in
significant numbers in the national economy. R. 34. The ALJ therefore determined that
Plaintiff had not been disabled within the meaning of the Social Security Act during the
relevant period. R. 34.
The SSA Appeals Council denied review of the ALJ’s decision. R. 1-6. The ALJ’s
unfavorable decision stands as the Commissioner’s final decision. See 20 C.F.R. §
404.981.
II.
STANDARD OF REVIEW
This Court’s judicial review of the Commissioner’s final decision is limited to
determining whether factual findings are supported by substantial evidence in the record
as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d
1167, 1169 (10th Cir. 2009).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Doyal v. Barnhart,
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331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). “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.” Branum v. Barnhart, 385 F.3d 1268,
1270 (10th Cir. 2004) (internal quotation marks omitted).
The court “meticulously
examine[s] the record as a whole,” including any evidence “that may undercut or detract
from the ALJ’s findings,” in determining whether the ALJ’s decision is supported by
substantial evidence. Wall, 561 F.3d at 1052 (internal quotation marks omitted). Though
a reviewing court considers whether the Commissioner followed applicable rules of law in
weighing particular types of evidence in disability cases, the court does not reweigh the
evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue,
511 F.3d 1270, 1272 (10th Cir. 2008).
III.
ANALYSIS
In this action, Plaintiff contends that for various reasons “the ALJ failed to perform
a proper evaluation at Step Five of the sequential evaluation process.” Pl.’s Br. (Doc. No.
14) at 3. The Court addresses each alleged error below.
A. The RFC Finding
Characterizing his argument as a challenge to the ALJ’s step-five determination,
Plaintiff asserts that the ALJ erred in his RFC finding that Plaintiff could have occasional
exposure to “high humidity and wetness” because such a finding “defies common sense”
given Plaintiff’s severe impairment of emphysema. Id. at 6-7; see R. 21, 27. Plaintiff
similarly argues that Plaintiff would not be able to perform the job of machine attendant
due to his back pain and lumbago. Pl.’s Br. at 6.
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As noted by Defendant, however, Plaintiff here fails to cite to any medical-source
opinions that would support further limitations or any authority for the proposition that his
severe impairments were incompatible with the RFC. As such, this argument fails. See
Maestas v. Colvin, 618 F. App’x 358, 361 (10th Cir. 2015) (finding RFC analysis was
supported by substantial evidence when claimant failed to cite anything “specific in the
medical records to support his alleged functional limitations”); see also SSR 96-8p, 1996
WL 374184, at *1 (July 2, 1996) (“When there is no allegation of a . . . restriction of a
specific functional capacity, and no information in the case record that there is such a . . .
restriction, the [ALJ] must consider the individual to have no . . . restriction with respect
to that functional capacity.”).
B. The Vocational Expert’s Testimony
As noted, the ALJ referenced the VE’s testimony in finding that Plaintiff was able
to perform the occupations of laundry worker, hand packager, and machine attendant. R.
33-34, 57-59. Plaintiff generally argues that reversal is required because this testimony
conflicts with the DOT and the ALJ failed to reconcile that conflict. See SSR 00-4p, 2000
WL 1898704, at *2 (Dec. 4, 2000) (“When there is an apparent unresolved conflict between
VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE . . . evidence to support a determination about whether
the claimant is disabled.”).
Plaintiff first complains that the VE erred in stating that these three occupations
were medium work because the first two actually require light work. See Pl.’s Br. at 5.
But the VE was correct. See Dictionary of Occupational Titles (4th rev. ed. 1991) (“DOT”)
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361.684-014, 1991 WL 672983 (Laundry Worker I; classified as medium work); id.
920.587-018, 1991 WL 687916 (Packager, Hand; classified as medium work); cf. Haddock
v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999) (explaining that “the ALJ may rely on the
[VE’s] testimony as substantial evidence to support a determination of nondisability”
absent a conflict between the DOT and the VE’s testimony).
Next, Plaintiff asserts that the DOT prescribes that both the laundry-worker and
hand-packager occupations require occasional exposure to wetness and/or humidity and
that these requirements conflict with the VE’s testimony that the occupations did not
require any exposure to high humidity and wetness. Pl.’s Br. at 5 (citing R. 59). Contrary
to Plaintiff’s assertion, the DOT does not contemplate any such exposure for the handpackager job. See DOT 920.587-018, 1991 WL 687916 (Packager, Hand) (“Wet and/or
Humid: Not Present – Activity or condition does not exist”). The DOT does contemplate
occasional exposure to such conditions for the laundry-worker job. See DOT 361.684-014,
1991 WL 672983 (Laundry Worker I) (“Wet and/or Humid: Occasionally – Exists up to
1/3 of the time”). The inconsistency here is of no moment, however, because the ALJ
specifically found in the RFC that Plaintiff could have occasional exposure to high
humidity and wetness, R. 27, and Plaintiff has not shown a lack of substantial evidence for
that finding (as outlined above). See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1173 (10th
Cir. 2012) (finding alleged error harmless where the ALJ’s failure to note the claimant’s
testimony did “not affect[] the outcome in this case”); cf. Smith v. Colvin, 821 F.3d 1264,
1270 (10th Cir. 2016) (“The [ALJ] had to ask only about the effect of those limitations
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ultimately assessed; the judge did not need to ask about the effect of limitations that he
didn’t believe applied.”).
Plaintiff also argues the RFC’s limitation to only occasional irritants precludes him
from working as a machine attendant. See Pl.’s Br. at 6; DOT 649.685-010, 1991 WL
685632 (Automatic-Machine Attendant) (“Pours glue into pots.”). Defendant does not
dispute that the DOT listing reflects that this occupation requires frequent exposure to
atmospheric conditions and toxic caustic chemicals, which is inconsistent with the VE’s
testimony and the RFC. Def.’s Br. (Doc. No. 15) at 8; see DOT 649.685-010, 1991 WL
685632 (Automatic-Machine Attendant).
Defendant notes that the hand packager
occupation also involves frequent exposure to atmospheric conditions. See DOT 920.587018, 1991 WL 687916 (Packager, Hand).
Defendant responds, however, that the inconsistency with respect to these two jobs
is harmless because the requirements of the laundry-worker occupation are consistent with
the RFC (and the VE’s testimony) and that occupation offers jobs existing in significant
numbers in the national economy. See R. 27, 57-59; 42 U.S.C. § 423(d)(2) (prescribing
that an individual is disabled only if he or she is unable to do both his or her previous work
and “any other kind of substantial gainful work which exists in the national economy”).
The Court agrees. Even assuming that Plaintiff’s RFC did not permit him to work as a
machine attendant or a hand packager, the laundry-worker occupation presents no irritant
issue.
See DOT 361.684-014, 1991 WL 672983 (Laundry Worker I) (stating that
atmospheric conditions and toxic caustic chemicals are “[n]ot [p]resent”). Further, the
VE’s testimony that there are 289,000 such jobs available nationally reflects that this
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occupation exists in significant numbers in the national economy. See R. 58; Stokes v.
Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (finding harmless error where if only two
jobs were considered at step five, there remained 11,000 jobs available regionally and
152,000 nationally); Chrismon v. Colvin, 531 F. App’x 893, 900 (10th Cir. 2013) (finding
180,000 nationally available jobs “significant”); see also Wendelin v. Astrue, 366 F. App’x
899, 903 (10th Cir. 2010) (noting that work existing “in the national economy” can refer
to the number of jobs “available nationally”). Thus, any error by the ALJ on this point is
harmless given the wide availability of laundry-worker jobs. See Stokes, 274 F. App’x at
684; Chrismon, 531 F. App’x at 900.
C. Reasoning Level of the Step-Five Jobs
Finally, Plaintiff argues that the ALJ erred in relying on the three jobs identified by
the VE because the DOT classifies these jobs as having a General Educational
Development (“GED”) reasoning level of 2—i.e., that a successful occupant be able to
“[a]pply commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and “[d]eal with problems involving a few concrete variables in or from
standardized situations.” DOT 361.684-014, 1991 WL 672983 (Laundry Worker I).
According to Plaintiff, this reasoning level is incompatible with Plaintiff’s RFC, which
limited him to “1 to 3 step simple instructions” and making “only simple work related
decisions.” R. 27.
GED “embraces those aspects of education (formal and informal) which are
required of the worker for satisfactory job performance.” DOT Appendix C – Components
of the Definition Trailer, 1991 WL 688702. “GED does not describe specific mental or
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skill requirements of a particular job, but rather describes the general educational
background that makes an individual suitable for the job, broken into the divisions of
Reasoning Development, Mathematical Development and Language Development.”
Anderson v. Colvin, 514 F. App’x 756, 764 (10th Cir. 2013).
Plaintiff has not shown a material unexplained conflict between the VE’s testimony
and the DOT or supplied any binding or persuasive authority to support her contention of
error.
As a threshold matter, the RFC’s specific reference to “1 to 3 step simple
instructions,” R. 27, is not clearly inconsistent with reasoning-level-2 “detailed but
uninvolved” instructions. DOT 361-684.014, 1991 WL 672983 (Laundry Worker I)
(emphasis added). In fact, the RFC’s 3-step limitation can reasonably be viewed as more
consistent with reasoning level 2 than with reasoning level 1, which requires the worker to
“carry out simple one- or two-step instructions.” DOT Appendix C – Components of the
Definition Trailer, 1991 WL 688702 (emphasis added); cf. Brewer v. Comm’r of Soc. Sec.
Admin., No. CIV-16-576-SPS, 2018 WL 4562918, at *3-4 (E.D. Okla. Sept. 24, 2018)
(reversing where RFC limited claimant to simple, repetitive tasks with routine supervision
and the jobs identified had reasoning levels of 2 or 3); Deveraeaux v. Astrue, No. 12-cv1168-WJM, 2013 WL 2393075, at *8 (D. Colo. May 31, 2013) (finding ALJ’s limitation
to simple and routine instructions inconsistent with ALJ’s finding that claimant could
perform jobs with reasoning level 2).
In addition, whether the reasoning level is 1 or 2 the relevant jobs are still unskilled
in nature, entailing only “simple duties” and typically requiring one month or less of
training to learn. 20 C.F.R. § 404.1568(a) (“Unskilled work is work which needs little or
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no judgment to do simple duties that can be learned on the job in a short period of time.”);
DOT Appendix C – Components of the Definition Trailer, 1991 WL 688702. And further,
although the record does contain observations of Plaintiff showing confusion or slowness,
his work history reflects that he has been able to perform semiskilled and skilled jobs with
higher reasoning levels. See R. 57-58; see, e.g., DOT 869.664-014, 1991 WL 687601
(Construction Worker I: reasoning level 3); id. DOT 862.281-022, 1991 WL 687493 (Pipe
Fitter: reasoning level 4).
Thus, reversal is not required on this basis.
CONCLUSION
The challenged findings are supported by substantial evidence in the record and do
not reflect prejudicial legal error. The decision of the Commissioner is AFFIRMED. A
separate judgment shall be entered.
IT IS SO ORDERED this 19th day of September, 2019.
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