Brewer v. Astrue

Filing 26

MEMORANDUM DECISION AND ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS: the Commissioner's decision denying benefits is affirmed. Signed by Judge David Nuffer on 9/22/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SUSAN BREWER,

MEMORANDUM DECISION AND
ORDER OVERRULING OBJECTION
and
ADOPTING REPORT AND
RECOMMENDATION

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Case No. 2:12-cv-561-DN-EJF
District Judge David Nuffer

Defendant.
Plaintiff Susan Brewer filed objections 1 to the Report and Recommendation (R & R)
issued on August 6, 2013. The R & R recommends that this court “AFFIRM the Commissioner’s
decision that Ms. Brewer does not qualify for Social Security benefits.” 2 For the reasons
discussed below, the court OVERRULES the objections, ADOPTS the R & R, and AFFIRMS
the Commissioner’s decision denying benefits.
BACKGROUND
Brewer’s appeal of the Commissioner’s final decision denying benefits was referred to
Magistrate Judge Evelyn Furse under 28 U.S.C. § 636(b)(1)(B). 3 After “[h]aving carefully
considered the complete record in this matter and the parties’ Memoranda,” 4 Judge Furse issued
an R & R recommending that this court affirm the Commissioner’s decision denying disability

1

Plaintiff’s Objections to the Magistrate’s Report and Recommendation (Objection), docket no. 24, filed August 22,
2013.

2

Report and Recommendation (R & R) at 1, docket no. 21, filed August 6, 2013.

3

See Docket Text Order Referring Case, docket no. 6, filed June 15, 2012.

4

R & R at 1.

benefits because the decision is supported by substantial evidence and free from harmful legal
error. 5
Brewer raises several objections to the R & R. She claims that the magistrate judge “did
not use the proper standard for harmless error;” 6 that there is insufficient evidence to meet a
harmless error standard for the credibility or residual functional capacity (RFC) determinations; 7
and that the ALJ committed legal error when he “did not discuss uncontroverted probative
evidence that he chose not to rely upon.” 8 The Commissioner filed a response to the objections
urging the court to adopt the R & R and affirm the Commissioner’s final decision. 9
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(C), when a party files an objection to the R & R, the district
judge “shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. [The district judge] may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 10
Under de novo review, this court will review the Commissioner’s decision to determine whether
it is supported by substantial evidence and whether the correct legal standards were applied. 11
But the court will not reweigh the evidence or substitute its judgment for the Commissioner’s. 12
This is the same standard set forth in the R & R. 13
5

Id. at 11, 13.

6

Objection at 1.

7

Id. at 2.

8

Id.

9

Defendant’s Response to Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation (Response)
at 8, docket no. 25, filed September 3, 2013.

10

28 U.S.C. § 636(b)(1)(C).

11

See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

12

Id.

13

R & R at 6-7.

2

DISCUSSION
1. Correct Application of Harmless Error Doctrine
Brewer’s first objection is that “[t]he Magistrate Judge did not use the proper standard for
harmless error, which is that such a finding is warranted where a Court ‘could confidently say
that no reasonable administrative factfinder, following the correct analysis, could have resolved
the factual matter in any other way.’” 14 This is the standard for harmless error analysis when the
court must supply a missing dispositive finding that the ALJ failed to make. 15 But the Tenth
Circuit describes the more common application of the harmless error doctrine in the “somewhat
unique, nonadversarial setting” of social security disability cases when “certain technical errors
were ‘minor enough not to undermine confidence in the determination of th[e] case.’” 16 The
latter application of harmless error is present in this case.
The R &R concluded 17 that the ALJ properly followed the Winfrey 18 test to find that
Brewer was “capable of performing her past relevant work,” 19 and substantial evidence
supported the findings. 20 The ALJ evaluated Brewer’s physical and mental RFC and the physical
and mental demands of her past relevant work, and found that her RFC did not preclude her past
relevant work as a sales clerk. 21
To further support this step-four conclusion, the ALJ added that “the vocational expert
opined that someone capable of a significant range of light work could perform the claimant’s

14

Objection at 1-2 (quoting Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)).

15

See Allen, 357 F.3d at 1145.

16

Id. (quoting Gay v. Sullivan, 986 F.2d 1136, 1341 n.3 (10th Cir. 1993)).

17

R & R at 12-13.

18

Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996).

19

R. at 40.

20

R & R at 12-13.

21

Id. at 38-41.

3

past relevant work in the retail sector as she performed it.” 22 This statement by the ALJ is
incorrect – the vocational expert did not provide this opinion. The R & R acknowledges that “the
ALJ misconstrued the vocational expert’s testimony by stating the vocational expert determined
Ms. Brewer could perform her past relevant work.” 23 This is the technical error that the
magistrate judge found harmless enough not to undermine the ALJ’s finding “because it does not
affect the overall ruling that Ms. Brewer does not qualify for DIB.” 24 This is correct. The ALJ’s
step-four conclusion was already supported by substantial evidence and a proper analysis. Even
though the ALJ misconstrued the vocational expert’s testimony, the decision did not rely solely
on that testimony. The error in misconstruing the vocational expert’s testimony was harmless in
this instance because the step-four finding was already supported by other substantial evidence.
Further, the magistrate judge used the correct standard in finding harmless error because
the “error [was] merely a technical error ‘minor enough not to undermine the confidence in the
determination of th[e] case.’” 25 This case did not involve a decision with missing dispositive
findings. The magistrate judge did not supply any missing findings and thus had no need to
invoke the harmless error standard Brewer urges which is applicable when a court must
determine whether “no reasonable administrative factfinder, following the correct analysis, could
have resolved the factual matter in any other way.” 26

22

R. at 41.

23

R & R at 10.

24

Id.

25

Gomez v. Astrue, No. 11-cv-03131-LTB, 2013 WL 627154, at *9 (D.Colo. Feb. 20, 2013) (quoting Gay, 986 F.2d
at 1341 n.3).
26

Allen, 357 F.3d at 1145.

4

2. Correct Standard of Review of ALJ’s Decision
Brewer argues that “[n]either the credibility determination nor the residual functional
capacity (RFC) determination provide sufficient evidence to meet a harmless error standard.” 27
She further urges that “[a] reasonable factfinder, following the correct analysis, could have
resolved the matter differently, for a number of reasons.” 28 These arguments fail on both counts.
First, the harmless error analysis was not applied to the credibility or RFC determinations in this
case. The only error determined to be harmless was the ALJ’s application of misconstrued
vocational expert testimony in the step-four analysis. 29
Second, whether another factfinder might have resolved this matter differently is not the
appropriate standard of judicial review. As stated earlier, the court reviews the Commissioner’s
decision to determine whether it is supported by substantial evidence and whether the correct
legal standards were applied, but will not reweigh the evidence or substitute its judgment for the
Commissioner’s. 30 As the R & R noted:
“‘The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and the Court may not “‘displace the agenc[y’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.’” 31
Here, after a complete review of the record, it is clear that the magistrate judge used the
proper standard in reviewing the ALJ’s decision; the ALJ’s findings were supported by
substantial evidence; and the correct legal standard was applied. 32 Thus, Brewer’s objection that

27

Objection at 2.

28

Id.

29

R & R at 11.

30

Lax, 489 F.3d at 1084.

31

R & R at 7 (quoting Lax, 489 F.3d at 1084 (quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004))).

32

Lax, 489 F.3d at 1084.

5

another “reasonable factfinder” might have weighed the record medical opinions and treatment
notes differently and “could have” come to different conclusions 33 cannot be sustained under the
proper standard of judicial review of the agency’s decision. Brewer has failed to show that the
ALJ’s decision was unsupported by substantial record evidence. 34
3. No Legal Error
Brewer relies on Clifton v. Chater 35 to claim that the ALJ committed legal error in his
discussion regarding the testimony of the vocational expert. In Clifton, the Tenth Circuit
determined that the ALJ erred by failing make specific findings at step three, including the
reasons for accepting or rejecting evidence. 36 Brewer claims that Clifton requires the ALJ to
discuss the evidence he did not rely on in the decision. She argues that the ALJ “stated that he
based his decision on the testimony of the vocational expert (VE). He did not identify the
testimony as controverting his findings, thus he did not discuss it.” 37 This is just a restatement of
the argument regarding the ALJ’s misinterpretation of the vocational expert’s testimony.
Here, the ALJ thoroughly set out the record evidence and discussed the reasons for
accepting or rejecting the evidence in his step-three analysis as required by Clifton. As discussed
earlier, the ALJ only applied the misinterpreted vocational expert testimony in the step-four
analysis. Contrary to Brewer’s allegation, the ALJ did not rely solely on this testimony in the
decision. The ALJ’s step-four determination was already supported by a proper analysis and
substantial evidence. Because the court has already determined that the misinterpretation of the

33

Objection at 2-4.

34

O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994) (“Evidence is insubstantial if it is overwhelmingly
contradicted by other evidence.”).

35

79 F.3d 1007 (10th Cir. 1996).

36

Id. at 1010.

37

Objection at 2.

6

vocational expert’s testimony was a harmless technical error that did not “undermine confidence
in the determination of th[e] case,” 38 the court cannot find that this harmless error somehow
results in the legal error Brewer alleges.
ORDER
IT IS HEREBY ORDERED that Brewer’s objections 39 to the R & R are OVERRULED.
IT IS FURTHER ORDERD THAT the R & R is ADOPTED, and the Commissioner’s
decision denying benefits is AFFIRMED.

Signed September 22, 2014.
BY THE COURT

________________________________________
District Judge David Nuffer

38

Gay, 986 F.2d at 1341 n.3.

39

Docket no. 24.

7