Trader v. Astrue

Filing 23

ORDER adopting in part and rejecting in part 18 Report and Recommendations. Specifically, the court REJECTS Judge Furses recommendation to remand and instead AFFIRMS the ALJs decision. This case is closed. Signed by Judge Clark Waddoups on 7/7/14. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

TIMOTHY S. TRADER,
Plaintiff,

ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND
RECOMMENDATION

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

Case No. 2:12-cv-00924-CW-EJF
Judge Clark Waddoups

Defendant.

This case was assigned to United States District Court Judge Clark Waddoups, who then
referred it to United States Magistrate Judge Evelyn J. Furse pursuant to 28 U.S.C. §
636(b)(1)(B). (See Dkt. No. 8.) On August 22, 2013, Judge Furse issued a Report and
Recommendation recommending that the case be remanded for further administrative
proceedings based on her findings that, in concluding in his decision of July 27, 2012 (the
“Second Decision”) that Plaintiff did not meet the eligibility requirements for disability benefits,
the Administrative Law Judge (“ALJ”) erred in (1) failing to assign weight to Dr. Royal’s
medical opinion in determining disability, and (2) misinterpreting the vocational expert’s
testimony. (Rep. & Rec. 13, 15 [Dkt. No. 18].)
Defendant objected to both of these findings though agreed with the rest of Judge Furse’s
analysis and requested the court to adopt it while at the same time denying the recommendation
to remand for further administrative proceedings. (Def.’s Response Rep. & Rec. 2 [Dkt. No.
19].) In response, Plaintiff argued that Judge Furse correctly identified the ALJ’s failure to assign
weight to Dr. Royal’s medical opinion as reversible error, thus justifying remand. (Pl.’s

Response to Def.’s Response Rep. & Rec. 4 [Dkt. No. 20].) However, Plaintiff also conceded
that “[t]he Commissioner is correct in noting that the ALJ did not misstate the vocational
expert’s testimony. This was not part of Mr. Trader’s argument in his briefing and he has no
objection to this portion of the Commissioner’s argument.” (Id.)
As urged by the Commissioner, the court first adopts Judge Furse’s overall analysis, in
particular her discussion of the applicable standard of review (Rep. & Rec. 6-7 [Dkt. No. 18])
and her legal analysis of the regulatory five-part sequential evaluation for determining whether a
claimant qualifies as disabled within the meaning of the Social Security Act under 20 C.F.R. §
404.1520 (see id. at 8-13). The court thus ADOPTS Judge Furse’s findings in her Report and
Recommendation that (1) any arguable error by the ALJ in not listing Plaintiff’s alleged multiple
chemical sensitivity (“MCS”) as a separate “severe” impairment at step two of the five-part
sequential evaluation was harmless since the ALJ found other severe impairments and proceeded
with the rest of the evaluation on that basis (id. at 11-12), and (2) the ALJ had not committed any
reversible error in his treatment of the evidence from Dr. Rea and Dr. Morrison (id. at 12-13, 14).
Second, however, the court must reject the grounds on which Judge Furse recommended
remand for further administrative consideration, as discussed above. The court does not find the
ALJ’s alleged failure to assign weight to Dr. Royal’s medical opinion 1 to have any relevance in
light of Judge Furse’s other finding, with which the court agrees, that it was harmless error not to
include MCS as a severe impairment at step 2 of the five-step sequential evaluation since other
severe impairments were found at that stage, thus allowing the evaluation to proceed. Therefore,

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In her Objection, the Commissioner argues that the ALJ did not commit reversible error in his
treatment of Dr. Royal’s medical opinion because Dr. Royal, in fact, did not issue any relevant medical
opinion that the ALJ was required to weigh. (Def.’s Response Rep. & Rec. 3 [Dkt. No. 19].) Moreover,
“even if Dr. Royal had issued an opinion, Dr. Morrison’s testimony—which the ALJ reasonable accorded
great weight (see Tr. 686)—seriously called into question the reliability of the testing performed by Dr.
Royal.” (Id. at 3-4.)
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if the ALJ erred in its treatment of Dr. Royal’s medical opinion, then it was harmless error of no
relevance to the overall evaluation.
Finally, the court rejects Judge Furse’s sua sponte finding of reversible error in the ALJ’s
understanding of the vocational expert’s testimony. This is particularly the case because, as
noted above, Plaintiff conceded in his Response that “[t]he Commissioner is correct in noting
that the ALJ did not misstate the vocational expert’s testimony. This was not part of Mr. Trader’s
argument in his briefing and he has no objection to this portion of the Commissioner’s
argument.” (Pl.’s Response to Def.’s Response Rep. & Rec. 4 [Dkt. No. 20].) Also, based upon a
de novo review of the record, the court agrees with the Commissioner’s argument that “[i]t was
only when the ALJ added a hypothetical limitation for no contact with other people (or for
contact only with people who would meet Plaintiff’s alleged requirements for not using
colognes, deodorants, aftershaves, soaps, etc.) that the vocational expert said the identified jobs
would be eliminated.” (Def.’s Response Rep. & Rec. 4 [Dkt. No. 19].) As the Commisioner
further notes,
[a]s the ALJ did not ultimately include such a limitation on social contact in the
residual function capacity assessment (see Tr. 671-72, Finding 5), the vocational
expert’s testimony in this regard is of no consequence here. See Qualls v. Apfel,
206 F.3d 1368, 1373 (10th Cir. 2000) (finding no error when the ALJ relied upon
a hypothetical question to the vocational expert that included all the limitations
the ALJ ultimately included in his residual function capacity assessement); Talley
v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990) (the vocational expert’s answers to
questions that require the vocational expert to assume unestablished facts do not
bind the ALJ).
(Id. at 5.)
Accordingly, and upon a de novo review of Judge Furse’s findings, the court ADOPTS
IN PART AND REJECTS IN PART Judge Furse’s Report and Recommendation (Dkt. No. 18),
as discussed above. Specifically, the court REJECTS Judge Furse’s recommendation to remand
and instead AFFIRMS the ALJ’s decision. This case is closed.
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SO ORDERED this 7th day of July, 2014.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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