Renteria v. Astrue
MEMORANDUM OPINION AND ORDER. Signed by Judge Leon Schydlower. (mg2)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security
(-LS by consent)
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is
predicated upon 42 U.S.C.
405(g). Both parties having consented to trial on the merits before a
United States Magistrate Judge, the case was transferred to this Court for trial and entry ofjudgment
pursuant to 28
636(c), Rule CV-72, and Appendix C of the Local Court Rules for the
Western District of Texas.
Plaintiff appeals from the decision of the commissioner of the Social Security
Administration (commissioner) denying her application for disability insurance benefits under Title
of the Social Security Act. For the reasons set forth below, this Court orders that the
Commissioner's decision be AFFIRMED.
On August 28, 2009, Plaintiff filed an application for disability insurance benefits, alleging
1Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on
February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), she is substituted as the defendant in this suit. No
further action need be taken to continue this suit by reason of the last sentence of §205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
a disability onset date of September 11, 2005. (R: 15)2 Her application was denied initially and on
reconsideration. (R:15, 58-59, 66, 71) Plaintiff filed a request for a hearing, which was conducted
on October 24, 2011. (R: 15, 3 6-57) At the hearing, Plaintiff amended her onset date to October 30,
2009. (R:15, 42) The Administrative Law Judge ("AU") issued a decision on December 29, 2011,
denying benefits. (R:15-25) The Appeals Council ("AC") denied review on December 10, 2012.
(R: 1-5) Plaintiff initiated the instant suit for judicial review on January 31, 2013. [ECF No. 1] This
matter was reassigned to United States Magistrate Judge Leon Schydlower on December 8, 2015.
[ECF No. 20]
Plaintiff presents the following issues for review:
Whether the final decision of the Commissioner denying benefits is supported by
substantial evidence; and
2. Whether the Commissioner applied an incorrect legal standard in determining that Plaintiff
was not disabled.
Specifically, Plaintiff contends that the AU erred in finding that she was capable of
performing her past relevant work. She argues that the AU failed to resolve a conflict between the
vocational expert's testimony and the Dictionary of Occupational Titles regarding the requirements
of her past relevant work as a jewelry polisher. [ECF No.
18] Had the AU properly resolved the
conflict, she argues, the AU would have found that she could not perform her past relevant work
and would have found her disabled. Consequently, Plaintiff seeks a reversal and remand for an award
of benefits or for further administrative proceedings. Defendant responds that the AU used the
2Reference to the Administrative Record, contained in Docket Entry Number 15, is designated by
and "R" followed by the page number(s).
proper legal standards and that substantial evidence supports the AU's findings and conclusions.
I. Standard of Review
This Court's review is limited to a determination of whether the Commissioner's decision
is supported by substantial evidence, and whether the Commissioner applied the proper legal
standards in evaluating the evidence. See 42 U.S.C.
405(g); Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002). Substantial evidence "is more than a mere scintilla, and less than a
preponderance." Masterson, 309 F.3d at 272. The Commissioner's findings will be upheld if
supported by substantial evidence. Id. A finding of no substantial evidence will be made only where
there is a conspicuous absence of credible choices or no contrary medical evidence. Abshire
Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
In applying the substantial evidence standard, the court may not reweigh the evidence, try the
issues de novo, or substitute its own judgment for the Commissioner's, even if it believes the
evidence weighs against the Commissioner's decision. Masterson, 309 F.3d at 272. Conflicts in the
evidence are for the Commissioner and not the courts to resolve. Id.; Speilman
357, 360 (5th Cir. 1993).
II. Evaluation Process
The AU evaluates disability claims according to a sequential five-step process: 1) whether
the claimant is currently engaged in substantial gainful activity; 2) whether the claimant has a severe
medically determinable physical or mental impairment; 3) whether the claimant's impairment(s)
meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart B, Appendix 1; 4)
whether the impairment prevents the claimant from performing past relevant work; and 5) whether
the impairment prevents the claimant from doing any other work. 20 C.F.R.
The claimant bears the burden of proof at the first four steps of the analysis. Leggett
Chater, 67 F.3d 558, 564
not disabled. 20 C.F.R.
Cir. 1995). If the claimant can perform her past relevant work, she is
404.1520. However, if the claimant has shown she cannot perform her
previous work, the burden shifts to the Commissioner to show that there is other work available that
the claimant can perform. Crowley v. Apfel, 197 F.3d. 194, 198 (5th Cir. 1999). Ifthe Commissioner
establishes other potential employment, the burden shifts back to the claimant to prove she is unable
to perform the alternative work. Id. A finding that a claimant is disabled or not disabled at any point
in the process is conclusive and terminates the Commissioner's analysis. Leggett, 67 F.3d at 564.
The Commissioner's decision is granted great deference and will not be disturbed unless the
reviewing court cannot find substantial evidence in the record to support the Commissioner's
decision or finds that the Commission made an error of law. Id.
III. AU's Decision
The AU found that Plaintiff had not engaged in substantial gainful activity since October of
2009, thus moving the evaluation process beyond step one. (R: 17) With respect to step two, the AU
found that Plaintiff had severe physical impairments to include degenerative joint disease, bilateral
knees; degenerative joint/disc disease of the lumbar spine; obesity; hypertension; and diabetes.
(R: 17) For purposes of step three, however, the AU determined that none ofPlaintifi s impairments,
either alone or in combination, met or medically equaled the severity of the listed impairments.
At step four, the AU determined after examining the entire record that Plaintiff retained the
functional capacity to perform sedentary work with the following limitations: she could only
occasionally climb ramps or stairs; she could never climb ladders, ropes, scaffolds; and she could
never stoop, crouch, kneel, or crawl. Moreover, the AU determined that Plaintiff could stand for
a maximum of two hours in an eight-hour day and could sit for only an hour before needing to
(R:20) Based upon a vocational expert's responses to hypothetical questions
incorporating the AU's findings on Plaintifr s residual functional capacity, the AU determined that
Plaintiff retained the capacity to perform her past relevant work as a jewelry polisher, which is
defined as sedentary semiskilled work. Consequently, he found that she was not disabled through
December 31, 2010, the date she was last insured. (R:24)
IV. Hearing Testimony
At the hearing held on October 24, 2011, Plaintiff testified that she stopped working as a
jewelry polisher only because the jewelry factory at which she worked closed. (R:44) Plaintiff
explained that when she worked as a jewelry polisher she would stand for an hour and then sit for
an hour, depending on the requirements of the machine she was using. She testified that she could
not work as a jewelry polisher now because of pain and arthritis in her hands and because of her
problems with sitting and standing. (R:45, 47) She testified that she could sit for about 45 minutes
before feeling pain, and could stand for about 15 minutes at a time. (R:47) She also testified that she
had trouble walking and lifting things. (R:48)
3"Sedentary" work is defined as work involving "lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met." 20 C.F.R. § 404.1567(a). "Occasionally" means occurring up to one-third of
the time, and generally means no more than about two hours in an 8-hour workday. See SSR 96-9p; see
also Dictionary of Occupational Titles, Appendix C.
A vocational expert ("yE") testified and classified thejeweiry polisherjob as sedentary and
semi-skilled under the Dictionary of Occupational Titles (DOT). (R:53) The AU instructed the VE
to advise the AU
if any of the VE's testimony was inconsistent with the DOT. (R:53) The AU
asked the VE if a person with Plaintiff's age, education, and work background could perform a range
of sedentary work if the person could stand for a maximum of two hours in an eight-hour day and
could only sit for one hour before needing to change positions. The VE responded that such a person
could perform the sedentary work. (R:54) The AU then asked the VE if the person could still
perform the work if additional postural limitations were incorporated. The YE responded that such
additional postural limitations would not impact job performance. (R:54)
On cross examination, Plaintiff's counsel asked the VE whether the job ofjewelry polisher
had "a sit/stand option at will." The VE responded that she did not believe so. Plaintiff's counsel
then asked whether the DOT's description of "jewelry polisher" required "just sitting." The VE
responded that the DOT classifies the job "as a sedentary occupation."(R:54)
AU's Disability Determination is Supported by Substantial Evidence
Plaintiff's only argument is that the AU failed to resolve an alleged conflict between the
VE's testimony and the DOT concerning a "sit/stand option at will." Where there is a conflict
between the yE' s testimony and the DOT, the AU may rely upon the yE's testimony provided there
is an adequate basis for doing so. Carey v.
230 F.3d 131, 146 (5th Cir. 2000). Under Social
Security Ruling 00-4p, the AU has an affirmative duty to reconcile and explain any conflicts
between the yE' s testimony and the DOT. Id. When there is a conflict, neither the DOT nor the
testimony automatically trumps the other. Id. Rather, the conflict must be resolved by determining
whether the VE's testimony is reasonable and provides a basis for relying upon it over the DOT
The VE testified that an individual could perform Plaintiffs past work as ajeweiry polisher
if that person retained the capacity to sit for a maximum of one hour before needing to "get up and
change positions." Although the DOT is silent about a "sit/stand option at will," the VE clarified
that the DOT classifies the job of the jewelry polisher job as a "sedentary position." A sedentary
position "involves sitting.. .(and) walking and standing are required occasionally..." 20 C.F.R.
404.1567(a). "Occasionally" means occurring up to one-third of the time, and generally means no
more than about two hours in an eight-hour workday. See SSR 96-9p.
There is, then, no conflict in matching an employee who needs to get up and change position
every hour with a position that "involves sifting" and "occasional" standing. Indeed, Plaintiff herself
testified that when she worked as ajeweiry polisher she would sit for only an hour at a time. (R:45)
Finally, no one, to include the AU, the yE, and Plaintiff in this action, has ever asserted that
Plaintiff required a "sit/stand option at will."
An AU may rely upon a vocational expert's testimony about the need for alternatively sitting
and standing in the workplace. Jones
Apfel, 174 F.3d 692, 694 (5tt Cir. 1999). The "value of a
vocational expert is that he is familiar with the specific requirements of a particular occupation,
including working conditions and the attributes and skills needed." Fields v. Bowen, 805 F.2d 1168,
1170 (5t Cir. 1986). The DOT, however, lists the maximum requirements
of each occupation as
generally performed, not the range of requirements of a particular job as it is performed in specific
settings. See SSR OO-4p. A yE, then, may be able to provide more specific information about jobs
or occupations than the DOT. Id.
At the beginning of the
yE' s testimony, the AU instructed the VE to advise him if any of
the VE's testimony was inconsistent with the DOT. The VE did not indicate that any of her
testimony was inconsistent with the DOT. The record confirms that there was no conflict between
the VE's testimony and the DOT. The AU posed hypothetical questions to the yE, reasonably
incorporating the limitations found by the AU in his residual functional capacity determination.
Moreover, the AU found Plaintiff's testimony not entirely credible concerning the severity of her
limitations. (R:24) The AU found that Plaintiff could perform her past relevant work as generally
In sum, review of the record supports the
AU's findings and disability determination.
Plaintiff's subjective complaints are insufficient to support her claims of disability. Consequently,
the Court finds that substantial evidence supports the AU' s disability determination and that the AU
applied correct legal standards in reaching his determinations.
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be AFFIRMED consistent with this opinion.
SIGNED and ENTERED on February 23, 2016.
United States Magistrate Judge
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