Beck v. Astrue

Filing 33

MEMORANDUM DECISION - the Commissioner's decision is hereby AFFIRMED (see order for details). Signed by Magistrate Judge Dustin B. Pead on 12/20/12. (alp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
WILLIAM M. BECK,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

vs.

Case No. 2:12-CV-00271-DBP

MICHAEL J. ASTRUE,
Commissioner of Social Security,

Magistrate Judge Dustin B. Pead

Defendant.

Plaintiff appeals the Commissioner of Social Security’s decision denying his claim for
Disability Insurance Benefits (DIB) of the Social Security Act (the Act), 42 U.S.C. §§ 401-33.
Having considered the parties’ briefs, the administrative record, the arguments of counsel, and
the relevant law, the Court AFFIRMS the Commissioner’s decision.
PROCEDURAL HISTORY
Plaintiff applied for DIB on December 1, 2009 (Tr. 127-33). His claim was denied
initially, on reconsideration, and, after an April 4, 2011 administrative hearing, by an
administrative law judge (ALJ) on May 2, 2011 (Tr. 8-20, 27-64, 70-73, 75-77). The Appeals
Council denied Plaintiff’s request for review (Tr. 1-5), making the ALJ’s decision the final
decision of the Commissioner for purposes of this Court’s review. See 20 C.F.R. § 422.210(a).
This appeal followed.
STATEMENT OF RELEVANT LAW
I.

Definition of disability under the Act
The Act states that an individual “shall be determined to be under a disability only if his

physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in

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any other kind of substantial gainful work which exists in the national economy.”
42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least
12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002).
II.

Process for determining disability under the Act
To determine whether a claimant is disabled, Social Security regulations set forth a

five-step sequential evaluation process. That process requires the adjudicator to consider
whether a disability claimant: (1) engaged in substantial gainful activity during the alleged
period of disability; (2) had a severe impairment; (3) had a condition that met or medically
equaled the severity of a listed impairment; (4) could return to his past relevant work; and, if not,
(5) could perform other work in the national economy. See 20 C.F.R. § 404.1520(a)(4). If a
decision regarding the claimant’s disability can be reached at any step in the sequential
evaluation process, further evaluation is unnecessary. See 20 C.F.R. § 404.1520(a)(4).
III.

Standard of review
The Court reviews the Commissioner’s decision to determine whether substantial

evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation and citation omitted). The Court may neither reweigh the
evidence nor substitute its judgment for that of the ALJ. Id. Where the evidence as a whole can
support either the agency’s decision or an award of benefits, the agency’s decision must be
affirmed. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

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DISCUSSION
I.

The ALJ Reasonably Found That Plaintiff’s Mental Impairment Was Not a Severe
Impairment.
Plaintiff first challenges the ALJ’s finding at step two of the sequential evaluation

process, finding that his depression was not a severe impairment. As the Commissioner points
out, any error at step two is not harmful because the ALJ proceeded beyond step two and
assessed Plaintiff’s residual functional capacity between steps three and four. See 20 C.F.R. §
404.1520(a)(4) (before we go from step three to step four, we assess your residual functional
capacity); Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (finding that any error at
step two was harmless when the ALJ reached the proper conclusion that Plaintiff could not be
denied benefits conclusively at that step and proceeded to the next step of the sequential
evaluation process).
At step two, an impairment that “does not significantly limit your physical or mental
ability to do basic work activities” is non-severe. 20 C.F.R. § 404.1521(a). The standard’s sole
purpose is to determine whether to screen out the claim as groundless. Church v. Shalala, No.
93-07979, 1994 WL 139015, *1-2 (10th Cir. Apr. 19, 1994) (unpublished). As long as the ALJ
finds any one of a claimant’s impairments to be severe, the analysis moves along the sequential
evaluation process. 20 C.F.R. § 404.1520(a)(4). When the ALJ formulates the RFC between
steps three and four, the ALJ considers all of a claimant’s severe and non-severe impairments
and incorporates them into the RFC to the extent they affect work-related activities. 20 C.F.R.
§ 404.1545(a)(2). As a result, it matters not whether the ALJ found a particular impairment
severe, as long as at least one is severe. Here, the ALJ did not screen out Plaintiff’s claim at step
two; the ALJ found some severe impairments and moved on with the sequential analysis.

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The ALJ then considered all of Plaintiff’s severe and non-severe impairments – including
his alleged depression – when he formulated the RFC, and reasonably concluded that Plaintiff
did not have any mental limitations that significantly limited his ability to work (Tr. 14, 16-18).
Thus, any error at step two was not meaningfully impactful on the ALJ’s decision.
Indeed, the overwhelming weight of the evidence indicates that Plaintiff’s depression was
minor and situational. In Plaintiff’s original disability report from December 2009, Plaintiff did
not mention depression as an illness, injury, or condition that limited his ability to work
(Tr. 182-83). Similarly, when Plaintiff had his consultative examination with Dr. Ingebretsen in
February 2010, he did not mention depression or mental impairments, and Dr. Ingebretsen
concluded, “He was able to reason, concentrate and remember and follow commands” (Tr. 255).
At the hearing, Plaintiff twice said that he was not depressed and that his problem was pain
(Tr. 56, 58).
Also significant is the fact that Plaintiff did not seek treatment for mental health issues at
any point. The only medical record that addressed his depression was a one-time psychological
evaluation, signed by Sarah Heaton, M.A., and Geri Alldredge, Ph.D., nine months after he
applied for DIB (Tr. 297-303). Critically, the examiners did not opine that Plaintiff’s reported
mental issues would affect his ability to work, nor did they recommend any functional
limitations based on Plaintiff’s depression (Tr. 297-303). Indeed, Plaintiff reported that his anger
and depression were better when he was working (Tr. 298).
Plaintiff had the burden of proof to establish severe impairments that limited his ability to
perform work-related activity. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Plaintiff did not
satisfy his burden of establishing that his depression was a severe impairment that affected his
ability to work or that the ALJ should have included mental restrictions in the RFC finding. As a

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result, the ALJ’s finding at step two was reasonable and supported by substantial evidence, and
is hereby affirmed.

II.

The ALJ Reasonably Relied On The Vocational Expert To Determine That Plaintiff
Had Transferable Skills.
Next, Plaintiff argues that the ALJ erred by concluding that Plaintiff had transferable

skills that would enable him to make a vocational adjustment to other work (Tr. 7-11). At its
core, Plaintiff invites this Court to re-evaluate the evidence. His invitation is unavailing. See
Lax, 489 F.3d at 1084 (“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.” (citation and quotation omitted)).
If a claimant cannot perform past work, the Commissioner uses the RFC to determine if
he can adjust to other work that exists in substantial numbers in the national economy. 20 C.F.R.
§ 404.1560(c). When an individual of advanced age is limited to a light RFC and cannot
perform past work, the Commissioner will find that person disabled unless he has skills that he
can transfer to other skilled or semi-skilled work. 20 C.F.R. § 404.1568(d)(4); see also
20 C.F.R., Part 404, Subpt. P, App. 2, § 202.00. The factors that are considered in determining
transferability are: (1) whether the same or lesser degrees of skill is required; (2) whether the
same or similar tools and machines are used; and (3) whether the same or similar raw materials,
products, processes, or services are involved. 20 C.F.R. § 404.1568(d)(2). “Complete similarity
of all of these factors is not necessary. . . . Generally, the greater the degree of acquired work
skills, the less difficulty an individual will experience in transferring skills to other jobs . . . .”
SSR 82-41, 1982 WL 31389, *5. Furthermore, “transferability of skills to different industries
differing from past work experience can usually be accomplished with very little if any,

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vocational adjustment” when, as here, “the jobs have universal applicability across industry lines
(e.g., clerical, professional, administrative, or managerial types of jobs).” Program Operations
Manual System (POMS), DI 25015.015 A.3.b., available at https://secure.ssa.gov/poms.nsf/lnx/
0425015015.
In this case, the ALJ reasonably found Plaintiff acquired skills of scheduling, record
keeping, and filing in her past work as a Travel Guide and Bakery Supervisor. The DOT’s
Travel Guide listing describes making reservations, using communication media, and planning
itineraries. DOT 353.167-010, 1991 WL 672922. Similarly, the Bakery Supervisor listing
describes supervising and coordinating other workers. DOT 526.131.-010, 1991 WL 674471. It
also incorporates the master Supervisor listing, which includes scheduling workers and
maintaining time and production records. The DOT listings for Plaintiff’s past work are
substantial evidence that he had acquired administrative skills related to record keeping, filing,
and scheduling that would allow him to make a vocational adjustment to a General Clerk or
Office Clerk position. 20 C.F.R. § 404.1560(b)(2) (the Commissioner may rely on the DOT).
Moreover, the VE’s testimony was also substantial evidence on which the ALJ was
entitled to rely in determining the transferable skills from Plaintiff’s past work. 20 C.F.R.
§ 416.966(e); SSR 82-41, 1982 WL 31389, *4-5 (stating that an ALJ may rely on vocational
expert testimony to establish skills and transferability); SSR 00-04, 2000 WL 1898704, *2 (“A
VE . . . may be able to provide more specific information about jobs or occupations than the
DOT.”). In fact, the whole purpose of vocational testimony is to go beyond the DOT and to
provide another basis of proof. Rogers v. Astrue, 312 F. App’x 138, 142 (10th Cir. 2009)
(unpublished). As a result, the ALJ reasonably relied on the VE’s testimony to determine

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“whether the claimant’s work skills can be used in other work and the specific occupations in
which they can be used.” Haddock v. Apfel, 196 F.3d 1084, 1089 (10th Cir. 1999).
Because the ALJ relied on the VE’s testimony and because that testimony was consistent
with the DOT (Tr. 19), the ALJ’s decision that Plaintiff could make a vocational adjustment to
other work is supported by the substantial evidence. The substantial evidence standard is not a
high bar – it requires more than a scintilla but less than a preponderance. Wall, 561 F.3d at 1052;
see also Lax, 489 F.3d at 1084 (“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.”). Although this Court might have engaged in a more in-depth
evaluation, the ALJ’s analysis does not undermine the ultimate conclusion. The Commissioner’s
finding that Plaintiff had transferrable skills is affirmed.
CONCLUSION
Having determined that the Commissioner’s decision is supported by substantial evidence
and free from legal error, the Commissioner’s decision is hereby AFFIRMED. Judgment shall
be entered in accordance with Fed. R. Civ. P. 58, consistent with the U.S. Supreme Court’s
decision in Shalala v. Schaefer, 509 U.S. 292, 296-304 (1993).
It is so ordered.
Dated this 20th day of December, 2012.

_______________________________________
DUSTIN B. PEAD
UNITED STATES MAGISTRATE JUDGE

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