Martinez v. Astrue et al
Filing
18
MEMORANDUM DECISION reversing and remanding this case to the ALJ to consider the State of Utah's January 10, 2007 vocational evaluation report, make findings regarding that report, and reevaluate his findings regarding Plaintiff's credibility and disabily in light of that report. Signed by Magistrate Judge Samuel Alba on 07/18/2011. (asp)
IN THE UNITED STATES DISTRICT COURT FOR
T!lESr:fH~kR:r1~+\9JUR1rAH
18 P I: 2b
CENTRAL DIVISION
[":' \) ~
o
I
·'w._r~"_
JEFF P. MARTINEZ,
Case No. 2:10-cv-857-SA
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
MEMORANDUM DECISION AND
ORDER
Defendant.
Before the court is an action filed by Plainti
,Jeff P.
Martinez, asking the court to reverse the final agency decision
denying his application for Supplemental Security Income Benefits
("SSI") under Title XVI of the Social Security Act.
U.S.C. §§ 1381-1383(f).
See 42
The ALJ determined that Plaintiff was
not disabled because Plaintiff could perform the representative
occupations of cutter-and-paster, touch-up screener, and final
assembler.
Plainti
challenges the ALJ's decision, arguing that
is not supported by substantial evidence and is based on
significant legal errors.
Having carefully reviewed and considered the ALJ's decision,
the record, and the parties' pleadings, the court concludes that
this case must be reversed and remanded because the ALJ's
decision
Is to discuss the State of Utah's Vocational
Evaluation report.
BACKGROUND
protectively applied for
On August 23, 2007, Plaint
Supplemental Security Income under Title XVI of the Social
Security Act, alleging a disability onset date of January 1, 2005
(Doc. 6, the certified copy of the transcript of the entire
record of the administrative proceedings relating to Je
Martinez (herea
er "Tr.
") 20-22, 110-15, 123).
P.
Plaintiff's
application was denied initially (Tr. 72-73, 75-77) and upon
reconsideration (Tr. 74, 84-86).
hearing before an ALJ (Tr. 83).
6, 2009 (Tr. 18-71).
Then Plaintiff requested a
That hearing was held on March
The ALJ issued a written decision on April
3, 2009, denying Plaintiff's claim (Tr. 6-17).
Plainti
then
filed a request for review of the ALJ's decision, which was
denied on July 7, 2010 (Tr. 1-4), making the ALJ's decision the
Commis
oner's final decision for purposes of judicial review.
See 42 U.S.C.
§§
405(g), 1383(c) (3); 20 C.F.R.
§
416.148l.
On September 1, 2010, after receiving the Appeals Councils'
denial of his request for review, Plainti
filed his complaint
in this case, which was assigned to United States District Judge
Tena Campbell.
(Doc. 3.)
On November 5, 2010, the Commissioner
led his answer, along with the Administrative Record.
5,
6.}
2
(Docs.
On September 27, 2010, the parties consented to jurisdiction
by a United States Magistrate Judge, including entry of final
judgment, with appeal to the United States Court of Appeals for
the Tenth Circuit, under 28 U.S.C.
§
636(c) and rule 73 of the
Federal Rules of Civil Procedure.
The case was then reassigned
to United States Magistrate Judge Samuel Alba.
Plaintiff
(Doc. 4.)
led his opening brief on December 13, 2010 (Doc.
10), the Commissioner filed his answer brief on January 13, 2011
(Doc. 13), and Plaintiff
led his reply brief on February 23,
2 0 11 ( Do c. 1 7) .
STANDARD OF REVIEW
The court "review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct legal
standards were applied."
Cir. 2007)
Lax v. Astrue, 489 F.3d 1080, 1084 (10 th
(quotations and citations omitted).
"Substantial
evidence is 'such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,'" Doyal v. Barnhart,
331 F.3d 758, 760 (loth Cir. 2003)
(citation omitted), and
"requires more than a scintilla but less than a preponderance,"
Lax, 489 F.3d at 1084.
The Commissioner's findings, "if
supported by substantial evidence, shall be conclusive."
U.S.C.
§
405{g).
"In reviewing the ALJ's decision,
may] neither reweigh the evidence nor substitute
that of the [ALJ]."
[this court
s judgment for
Madrid v. Barnhart, 447 F.3d 788, 790
3
42
(10 th
Cir. 2006 (quotations and citation omitted).
"The failure to
apply the correct legal standard or to provide this court with a
sufficient basis to determine that appropriate legal principles
have been followed [are] grounds for reversal."
Barnhart,· 436 F.3d 1163,
1165 (10 th
r. 2 00 5)
Jensen
v.
(quotations and
citation omitted).
A five-step evaluation process has been established for
determining whether a claimant is disabled.
See 20 C.F.R.
§§
4 a4 . 15 2 a (a) (4) (i) - (v), 4 1 6 . 9 2 a (a) (4) (i) - (v) i see a 1 s 0 Wi 11 i am s v.
Bowen,
844 F.2d 748, 750-51
step process).
steps that a
(10 th
r. 1988)
(discussing the fi ve
If a determination can be made at anyone of the
aimant is or is not disabled, the subsequent steps
need not be analyzed.
See 20 C.F.R.
§§
404.1520(a) (4),
416.920 (a) (4).
Step one determines whether the claimant
presently engaged in substant
gainful
activity.
If [the claimant] is" disability
benefits are denied.
If [
claimant] is
not, the decision maker must proceed to s
two: determining whether the claimant has a
medically severe impairment or combination of
impairments . . . . If the claimant is unab
to show that his impairments would have more
than a minimal effect on his ability to do
basic work activities,
is not
igible
r
disability benefits.
If, on
other hand,
the
aimant presents medical evidence and
makes the de minimis showing of medical
severity, the decision maker proceeds to step
three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted);
see 20 C.F.R.
§§
404.1520(a) (4) (i)-(ii), 416.920(a) (4) (i)
4
(ii).
ermines whether the impairment is equivalent
"Step three
to one
listed impairments that .
a number
as to preclude substantial gainful activity .
are so severe
If the
and thus conclusively presumed to be
impairment is 1
to benefits.
sabling, the claimant is entit
evaluation proceeds to
fourth
"
404.1520 (a) (4) (iii), 416.920 (a) (4) (
416.920(a) (4) (iv).
previous work,
i).
At the fourth step, the
impairment prevents
his "past relevant work."
Williams, 844
ions omitted); see 20 C.F.R. §§
F.2d at 751 (quotations and
claimant must show that
If not, the
rformance of
20 C.F.R. §§ 404.1520(a) (4) (iv),
"If the claimant is able to perform his
is not disabled."
Williams, 844 F. 2d at 751.
If, however, the claimant is not able to
form his previous
work, he "has met his burden of proof, establishing a prima facie
Id.
disability."
case
At
s point, "[tJhe evaluation process . . . proceeds to
fifth and final step."
Id.
At
s step, the burden of
proof shifts to the Commissioner, and the decision maker must
determine "whether
claimant has the re
capacity [("RFC")]
. to perform other work in the national
dual functional
economy in view
his age, education, and work
Id.; see 20 C.F.R.
§§
404.1520(a) (4) (v), 416.920(a) (4) (v).
is determined that the claimant "can make an
work," 20 C.F.R.
not disabled.
rience."
If
ustment to other
404.1520(a)(4)(v), 416.920(a)(4)(v), he is
If, on
other hand, it is determined that the
5
ustment to
aimant "cannot make an
404.1
r work," 20 C.F.R.
§§
0(a)(4) (v), 416.920(a) (4) (v), he is disabled and entitled
to benef
s.
ANALYSIS
the following two main arguments in
Plaintiff rna
sion:
challenging the ALJ's
ALJ erred
(1)
assessing
iff's credibility and (2) the ALJ's step five finding is
not supported by substantial evidence.
A.
Credibility Finding
rst,
iff chal
assessment.
s the ALJ's credibility
The ALJ found
r care
consideration of the evidence,
the undersigned finds that the claimant's
medically determinable impairments could
reasonably be expected to cause
leged
symptoms; however, the
imant's statements
concerning
intensity,
rsistence and
l i n g effects of these symptoms are not
credible to the extent they are inconsistent
with
above residual fun~tional capacity
assessment.
(Tr.
14.)
The ALJ is "'optimally positioned to observe and assess
witness credibil
Cir. 1996)
,,, Adams v.
(quoting Ca
as v.
Chater,
See'y
933 F.2d 799, 801 (10 th Cir. 1991)).
93 F.3d 712, 715 (10 th
Health and HUman Servs.,
In other words:
The opportunity to
rve the demeanor of a
witness,
uating what is said in
light
how it is
, and considering how
fits with the rest of the evidence gathered
before the person who is conducting the
6
hea
, i s invaluable, and should not be
discarded lightly.
fore, special deference is
traditional
afforded a
of fact who
makes a credibility finding.
); see also Lax, 489
844 F.2d at 755 (citations omi
Williams,
the best position to observe
F.3d at 1089 (because theALJ is
the demeanor of witnesses, the ALJ's credibility findings deserve
al deference) .
ALJ set
In this case,
relied on in evaluating P
specific evidence he reli
ntiff's
the ALJ included
of his
Cir. 2000)
on).
ly activit
s condition, and object
did not support his contention
(lO::h
(finding an ALJ
Factors cited by
s, the effectiveness
cation in controlling his diabetes, evidence that he
exaggerated
activit
See Qualls v.
aimant's subjective statements where he
ected a
identified
c evidence
intiff's credibility.
, 206 F. 3d 1368, 1372 (1
properly
the speci
s
(Tr. 14-15).
Cir. 1995)
medical findings that
he was unable to perform work
See Kepler v. Chater,
(naming
68 F.3d 387, 391
to be considered in evaluating a
claimant's credibility); Thompson v. Sullivan, 987 F.2d 1482,
1489 (lOth
ors for
r. 1993)
(listing all of
ALJ to consi
in determining credibility); see
also Qualls, 206 F.3d at 1372 ("
formalistic factor-byThe ALJ reli
se factors as proper
er does not require a
recitat
the evidence.").
on Plaintiff's daily activities as one reason
to discount his subjective complaints.
7
See White v. Barnhart,
287 F.3d 903, 909 (10 th Cir. 2002)
(noting that daily activit
s
may be considered in assessing credibility); Huston v. Bowen, 838
F.2d 1125, 1132 (10 th Cir. 1988)
(same).
Citing to a physical RFC
aintiff was able
assessment form (Tr. 297), the ALJ noted that
to walk a lot.
The ALJ observed that a Fourth Street Clinic
Diabetes Note (Tr. 390) stated that Plaintiff got "lots of
exercise" for six years, three times a week, and Dr. Manwill's
psychological evaluation described Plaintiff as getting up
between 6:00 and 7:00 a.m. and going to a gym where Plaintiff
could shower and where he tried to work out a little bit (Tr.
407).
Although
the record to
aintiff cites to places
support his argument that Plaintiff is not capable of vigorous
exe
se, the Commissioner also points out other places in the
record that further support the ALJ's findings that
walked a lot (Tr. 54-56, 302, 315) and regula
gym (T r. 57, 348, 388, 390, 391, 394).
intiff
y exercised at the
This court is not to
reweigh the evidence or sUbstitute its judgment for the ALJ's.
See Lax, 489 F.3d at 1084.
The court concludes that the daily
activities upon which the ALJ relied are consistent with the
ability to perform the minimal physical demands of sedentary
work, and are supported by substantial evidence.
Another reason upon which the ALJ relied
Plaintiff's subjective complaints was that
had effectively control
discounting
aintiff's medication
intiff's diabetes.
See Huston,
838
F.2d at 1132 (explaining that ALJ may consider the effectiveness
8
medication in assessing credibility).
wrote:
Specifically, the ALJ
claimant's
"The records consistently indicate that
(Tr. 14.)
diabetes is under good control."
that Plainti
The ALJ recognized
experiences neuropathy with pain in.his feet and
possibly Achilles' tendini
s, but noted that "[a]s suggested in
[Plaintiff's] testimony, the medical records
the pain in
s feet is worst at night."
so indicate that
(Tr. 14.)
In response
to Plaintiff's argument that the record does not support that
Plaintiff's diabetes was under good control (Doc. 10), the
Commissioner cites to many places in Plaintiff's medi
showing that Plainti
's diabetes was "cont
records
led," under "good
control," or under "excellent" control from 2005 through early
2009 (Doc. 13 (citing Tr. 194, 207, 210, 211, 212, 214, 215, 218,
219, 274, 315, 317, 348, 351-52, 355, 356, 358, 359, 382, 383,
384, 386, 387, 388, 389, 390, 391, 394)).
concedes that
The Commissioner
aintiff had "no doubt experienced episodes where
his diabetes was 'uncontrolled' or 'worsening'" - a concession
that appears to contradict the ALJ's finding that the records
consistently indicate PIa
iff's diabetes was under good
control; however, having carefully reviewed the record, the court
concludes that sub stant
evidence in the record supports the
ALJ's finding that, despite some neuropathy in his feet,
Plaintiff's diabetes was under good control with medication.
A third reason the ALJ discounted P1ainti
was because the ALJ found that
's credibility
aintiff exaggerated his
9
condition with regard to his hands and
igue (Tr. 14-15).
Bean v. Chater, 77 F.3d 1210, 1213 (loth Cir. 1995)
See
(explaining
that ALJ may consider the fact that the claimant exaggerated her
claim).
With regard to Plaintiff's hands, the ALJ found
Plaintiff's testimony that he had problems carrying things and
that his hands cramped up was inconsistent with the medical
evidence
(Tr~
had noted
14 15).
The ALJ observed that although one doctor
aintiff had painful nodules on his hands, the doctor
did not treat or diagnose arthritis, and none of
reviewing doctors fe
(Tr. 14-16, 356).
treating or
the evidence showed limited use of hands
The ALJ also observed that the record
indicated that the cramping problems got better when Plaintiff
stopped taking Tricor.
(Tr. 14, 358.)
As such, the ALJ
indicated that Plaintiff may have exaggerated his hand complaints
to some degree.
ainti
The ALJ further observed that, "despite
's] representative's effort to lead [Plainti
into
describing hand limitations, the claimant indicated that he could
probably do fine manipulation and the only problem
was spasms related to something like
morning.
H
(Tr. 15, 41-43.)
described
rculation problems
the
Thus, in light of Plaintiff's
inconsistent testimony, the ALJ did not give Plaintiff's
testimony regarding his hand limitations signi
cant weight.
az v. See'y of Health & Human Servs., 898 F.2d 774, 777
Cir. 1990)
(10 t t
(explaining that ALJ could conclude claimant not
10
See
frequency of seizures
credible because his statements about
y varied) .
and lifting capa
1
to
leged fatigue and the
With regard to.Plaintiff's
down four or five times for a couple hours per day, the
recognized that, while Dr. Manwill listed fatigue and lack of
energy as related to depression and anxiety, there was no
indication that these symptoms were inconsistent with the ability
to perform the minimal physical demands of sedentary work.
15, 412.)
(Tr.
As the ALJ noted, Dr. Manwill specifically stated that
Plaintiff only had a slight impairment
lity to be
form activities within a schedule, and maintain
punctual,
regular attendance.
(Tr. 15, 413.)
Therefore, the ALJ did not
give Plaintiff's testimony regarding his
(Tr. 15).
the
igue great weight
See Bean, 77 F.3d at 1213 (noting that ALJ may
consider the fact that the claimant exaggerated her claim) .
Plaintiff argues that other sources in the record support
his credibility, including Dr. Rolfs' reports, Dr. Manwill's
report, and
State of Utah's Vocational Rehabilitation report.
Plaintiff argues that when
se three sources are properly
considered, the most reasonable conclusion to draw
1S
Plaintiff was fully credible.
The ALJ explained that
did not give full weight to Dr.
Rolfs' and Dr. Manwill's opinions.
the ALJ found
Regarding Dr. Rolfs' reports,
re was an inconsistency between the two reports
and the lack of medical evidence supporting the change in the
11
recommendation regarding
iff's abil
to work.
287 F.
that treat
phy~ician's
at 907-08 (exp
See White,
lack of
explanation for claimant's decreased RFC assessment between two
reports, with no apparent change in claimant's medical condition,
was sufficient reason to
ect treating physi
see also Drapeau v. Massana
2001)
,255 F.3d 1211, 1213 (10 th Cir.
physician's
(stating that an ALJ may reject a t
if he
op
g~ves
"
(citation omitted).
c, legitimate reasons" for doing so)
The ALJ further explained that another
did not give full weight to Dr.
reason
to walk and
because Plaintiff was "
diabetes under control," and because there
reason for 1
a
ting his work to
, reports was
se and keep his
"not appear to
time other than
ective complaints, which [the ALJ did] not find to be
his
reli
an's opinion);
e."
(Tr. 15.)
court concludes
the ALJ gave
c, legitimate reasons for his treatment of Dr. Rolfs'
opinion.
Regarding Dr. Manwill's opinion, the ALJ noted that Dr.
Manwill had found that P
iff "would have problems with work
changes, setting goals, making decisions,
ons and mai
ing with detai
sustained concentration, but he
would have no problems following simple instructions, working
with
rout
rvisors or co-wor
, being punctual, and maintaining a
or being aware of and dealing with hazards."
406 12; Doc. 10, Attachment A (emphasis added).)
12
(Tr. 15,
The ALJ
lained that
se limitations were adequately accommodated by
the functional limitations in his RFC assessment.
court concludes
fic, 1
, as
w~th
(Tr. 15.)
Dr. Rolfs' opinion, the ALJ
e reasons for his treatment of Dr. Manwill's
opinion.
On the other hand, regarding the State of Utah's Vo
on.al
Rehabilitation report (Tr. 172-84), the ALJ did not explain how
his credibility finding was reached in terms of
report
the ALJ did not even mention that report.
report is
rteen pages long.
(Tr. 172 84.)
It is thorough.
iff was "incapable of
It concludes that
t
aining full
employment" and that
iff should
efforts to qualify for Soc
bene
s."
The State
1 Securi
assisted \\
his
Disability Insurance
(Tr. 183.)
The Commis
oner concedes the ALJ's
report, and suggests
court adopt
lure to cons
following analysis:
The Commissioner recognizes that the ALJ
did not specifically mention the December
2007 vocational evaluation, whi
indicated
Plaintiff was incapable of full time
work (Tr. 172-84). The Commissioner contends
that the ALJ implicitly rejected it
the
same reasons he rej
Dr. Rolfs' and Dr.
Manwill's opinions
it conflict
with the
medical evidence and testimonial evidence
record, as well as the reviewing physicians'
assessments that Plainti
was capable of
light work.
See Reyes, 845 F.2d at 245 (an
ALJ's duty is to re
conflicts in the
record) .
(Doc. 13, at 16-17.)
13
the
The ALJ is not required to discuss every piece of evidence
and every
lity factor Ii
in SSR 96-7p when assessing
an individual's credibility, see Qualls, 206 F.3d at .1372
(explaining
a formalistic
ctor-by-factor recitation of the
evidence is not required); however, having examined
case law, the court concludes that
and appl
vocational report was signi
state
cant and the ALJ was required to
s opinion.
explain his treatment of it in
court cannot
record
As
ands, the
ew the ALJ's treatment of that report because
the court can only speculate regarding the ALJ's treatment of it,
and even whether the ALJ actual
read it.
Because the court
the law requires the ALJ to expla
concludes
of the report
his decision,
his treatment
court concludes that it must
remand this case for the ALJ to formally address
his treatment of the state report
determining
his decision
aintiff's
disability.
In Grogan v. Barnhart,
Tenth Circuit
lained:
Although another agency's determination
lity is not binding on the Social
y Administration, 20 C.F.R. § 416.904,
it is evidence that the ALJ must consider
why he did not
it persuasive.
Baca v. Dep't of Heal
& Human Servs., 5
F.
476, 480 (loth Cir. 1993) ("Although
findings by other agenc s are not binding on
Secretary, they are entitled to weight
and must be considered.") (quotation
omi
); see also 20 C.F.R. § 416.912(b) (5)
fining the disabil y determinations of
other agencies as
to be considered
by
Social Security
stration) .
14
district court may not
· "[TJ
create post-hoc rationalizat
to explain
Commiss
's treatment of evidence when
that treatment is not apparent
the
Commissioner's
sion itself.
See, e.g.,
Allen v. Ba
rt, 357 F. 3 d 1140, 1145 (10 th
C . 2004); SEC v. CheneryCorp., 318 U.S.
80, 87 (1943).
that the
s failure
to discuss the s
of
disability
was reversible
error.
See Cli
,79 F.3d at 1010;
Washington, 37 F.3d at 1440.
399 F.3d 1257, 1263 (loth
r. 2005).
Thus, Grogan requires
ALJ to consider a state agency report such as the one at issue.
It also
sallows the court from engaging
rationalization to explain how the ALJ
post-hoc
the report.
See
also Robinson v. Barnhart, 366 F.3d 1078, 1084 (loth Cir. 2004)
that magistrate judge erred in upholding decis
(expl
supplying possible reasons for weight given to a report).
As a result, the court cannot determine whether the ALJ's
finding regarding Plaintiff's credibility is supported by
substant
reconcil
finding.
failure to
1 evidence because the ALJ did not explain how he
the state's vocational report wi
Consequently,
his credibility
court concludes that the ALJ's
scuss the State of Utah's January 10, 2007
vocational report (Tr. 172-84) was revers
that this case be reversed and remanded for
error, requi
ALJ to expla
his treatment of that report in reaching his determination
regarding Plaintiff's di
lity.
15
by
B.
step Five Finding
Second, Plaintiff contends that the ALJ's finding at step
five of the
lity analysis is not supported by substantial
evidence.
The court recognizes that on remand, the ALJ may change his
,which may
credibility
the ALJ's RFC assessment,
the hypothetical questions the ALJ would ask of a vocational
expert, and so forth.
A change
the ALJ's
Plaintiff's credibility could
decision.
s completely a
regarding
the ALJ's
Nevertheless, the court has carefully reviewed
Plaintiff's
lenge of the ALJ's step five finding.
On remand,
were the ALJ to reach the same finding regarding
intiff's
credibility, Plaintiff's argument regarding the
s step five
finding would be the same.
Plaintiff's
finding,
, the court next examines
five finding ba
on the current credibility
recognizing that on remand the following
moot; however, were the ALJ to
finding,
the
the same
ysis may be
lity
lowing analysis would be relevant.
Plaintiff appears to contest the restrictions
the ALJ's hypothetical question to the vocational
then became
ALJ~s
finding that
could perform other work.
Having care
concludes that
RFC -assessment - as well as
ly considered PIa
in
- which
s
(Doc. 10, at 10-13.)
iff's challenge, the court
lacks merit.
16
When the ALJ's findings regarding a
aimant's impairment
are adequately reflected in the ALJ's hypothetical question to
the vocational
rt, the vocational
constitutes subs
's testimony
al evidence to s
determination
the ALJ's
claimant could
form other work.
Gay v. Sullivan, .986 F.2d 1336, 1341 (10 th Cir. 1993).
See
In
words, the ALJ's hypothetical question to the vocational
must include only those limitations found by the ALJ to be
substantially supported by the record.
See Qualls, 206 F.3d at
1373 ("The ALJ propounded a hypotheti
[vocational
that included
question to the
I
limitations the ALJ
ultimately included in his [RFC assessment].
Therefore, the
[vocational
J's answer to that
ion provided a proper
basis for
s disability decision. /I)
i
835 F.2d 1314, 1316 (10 th Cir. 1987)
ask hypotheti
Jordan v. Heckler,
ALJ is only required to
s encompassing impairments that find support
the record).
In this case,
ALJ described a
restrictions both
in his decision.
his hypothetical and
(Tr. 12-13.)
Plaintiff
set of functional
RFC assessment
to challenge
that RFC assessment based on its failure to
ude all the
limitations
nti
aintiff bore the
burden of es
i
1162, 1164 (10 th C
alleged.
his RFC,
1997)
In this case,
see Hawkins v. Chater,
(explaining that
disability cases, the claimant bears the
17
113 F.3d
Social Security
to prove her
sessed the final responsibility for
lity), but the ALJ
on the medical evidence as well as all
determining the RFC, ba
, see Young v. Barnhart, 146 F.
other evidence in
, x 952, 955 (loth Cir. 2005)
(unpublished
on)
("The final
responsibility for determining [RFC] rests with
Commissioner,
ba
the relevant
upon all the evidence in the record, not
cal evidence." (Citing SSR 96-5p, 1996 WL 374183, at *2,
*5)); see also 20 C.F.R.
416.920(a) (4), 416.945(a) (3); Howard
v. Barnhart, 379 F.3d 945,
the record, the court
reasonable.
949 (lOth Cir. 2004).
Having reviewed
s that the ALJ's RFC assessment was
The ALJ considered all of Plaintiff's limitations
the ALJ found
e in crafting his RFC assessment,
luding Plaintiff's
pain and fatigue, and
aintiff's
mental impairments.
aintiff also
the ALJ's RFC assessment by
1
arguing that it is inconsistent with the DOT.
As explained
, RFC assessments must be based on all
record, not only the
cal evidence.
evant evidence in
See 20 C.F.R.
416.945(a); SSR 96-5p, 1996 WL 374183, at *5.
RFC is based on the
1 whether the
Thus, a claimant's
ry record of his
s assessment of
lities.
a
capacity is consistent with the DOT because
publication of job descr
ional capacity posses
ions
§
It is
iff's functional
DOT - a
has no necessary bearing on the
by any particular
aimant.
As did
ALJ in this case, an ALJ may refer to the DOT to describe
18
ation.
what the ALJ intends by an expressed
For
ff could ca
the ALJ
only "
e work instructions" (Tr. 13).
out
ALJ expla
the instant case found that
that
"simple means claimant would be functioning at [DOT] GED 1
s
of only - Reasoning: 3, Math: 1-2, Language: 1-2" (Tr. 13).
ALJ's reference to the DOT illuminated the ALJ's
Thus,
findings as to Plaintiff's abilities; in other words, the finding
simply informed and gave context to the
st finding.
Similarly, as explained in the Commissioner's answer brief,
the vocational expert's testimony about jobs Plaintiff could
perform
so did not
13, at 22.)
Plainti
ict with the DOT's GED levels.
Furthermore, the vocati
(Doc.
expert was aware of
's limitations when she testi
perform the unskilled sedentary jobs
that Plainti
could
nal assembler, touch-up
screener, and cutter-and-paster (Tr. 6
68).
The vocational
expert stated her testimony was consistent with the DOT, except
for the availability
,she testi
ed was bas
these jobs with a sit-stand option, which
on her experience (Tr. 66).
Commissioner explains
appli
great detail, a reasoning level of two,
to the jobs
cutter-and-paster and touch-up
screener, is consistent with the ALJ's finding
limit
to "unskill
(Tr. 13).
2005)
As the
work tasks" and "simple work
See Hackett v.
Barnhart,
intiff was
ructions"
395 F.3d 1168, 1176 (10 th Cir.
(a limitations to "simple and routine work tasks" was most
consistent with level-two reasoning).
19
In addition,
vocational expert testified that her testimony was consistent
with the DOT in that regard and was based on her
s of
experience (Tr. 66); therefore, the ALJ was entitled to rely on
her testimony in concluding that Plaintiff could perform the jobs
of cutter-and-paster and touch-up screener, see Rogers v.Astrue,
312 F. App'x 138, 142 (10 th Cir. 2009)
(unpublished opinion)
(holding that the ALJ is entitled to rely upon vocational expert
testimony,
especia~ly
since "[t]he who
point of vocational
[expert] testimony is to go beyond facts already established
through publications eligible
judicial or administrative
notice and provide an alternative avenue of proof").
Thus, after
analyzing the reasoning level of the cutter-and-paster and touchup screener jobs, both the vocational expert and
determined that these jobs matched Plaintiff's RFC
unskilled work.
This determination is ent
ALJ
a range
led to deference,
especially considering that the GED reasoning levels do not
correspond directly to the agency's classifications regarding a
job's s
(loth
11 level.
Cir. 1999)
See Haddock v. Apfel, 196 F.3d 1084, 1089
(noting that the DOT classi
"massaged" into
an exact match).
cations must be
agency's classifications because they are not
The court concludes that it was reasonable for
the ALJ to find Plaintiff capable of the jobs cit
by the
vocational expert.
Finally, as set forth in detail by the Commissioner in his
answer brief, even assuming arguendo that Plaintiff could not
20
perform the job of final assembler because
would require fine
sion, with the cutter-and-paster and touch-up screener jobs,
there are still 30,00D jobs
in the Utah economy that
the national economy and 300 jobs
aintiff could perform (Tr. 66-67)
a
significant number of jobs in the national economy.
ORDER
Based on the above analysis, because the ALJ
led to
consider the State of Utah's January 10, 2007 vocational
evaluation report (Tr. 172-84), IT IS HEREBY ORDERED that this
case is REVERSED AND REMANDED for the ALJ to consider that
report, make findings regarding that report, and reevaluate his
findings regarding Plaintiff's credibility and disabil
light
y in
that report.
As explained in the above analysis, the court is aware that
the remainder of the ALJ's decision may be completely altered by
ALJ's consideration of the State's Vocational Evaluation
report.
Thus, the remainder of the court's analysis regarding
the ALJ's finding at step five of his analysis may be
inapplicable; however, if on remand the ALJ's finding regarding
21
Plaintiff's credibility remains the same,
court has
concluded, based on the above analysis, that the ALJ's step five
finding was supported by substanti
r~ay
DATED this
evidence.
of July, 2011.
BY THE COURT:
..
Samuel Alba
Uni
States Magistrate Judge
22
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