Remien v. Colvin
ORDER ADOPTING 26 REPORT AND RECOMMENDATIONS in its entirety. Plaintiff's Objection is overruled, and the Commissioner's decision is affirmed. Signed by Judge Robert J. Shelby on 3/29/17 (alt)
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH- CENTRAL DIVISION
ORDER ADOPTING REPORT AND
Case No. 2:14-cv-00539-RJS-EJF
Judge Robert J. Shelby
Magistrate Evelyn J. Furse
Plaintiff Evangeline Remien filed this action seeking reversal or remand of a final agency
decision denying her Disability Insurance Benefits (DIB) under Title II and Supplemental Social
Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 13811383f.1 After conducting a hearing, the Administrative Law Judge (ALJ) determined that
Remien was not disabled under sections 216(i) and 223(d) of the Social Security Act. Remien
appealed the ALJ’s decision to the agency’s Appeals Council, providing the Council with new
medical records and an intellectual evaluation. The Council denied her request for review.
Remien then filed this case, appealing the Commissioner of Social Security’s final decision.
The court referred this case to Magistrate Judge Evelyn J. Furse pursuant to 28 U.S.C. §
636(b)(1)(B).2 Judge Furse issued a Report and Recommendation advising this court to affirm
the final decision denying benefits to Remien.3 Remien filed a timely Objection4 to Judge
Dkt. 3, Complaint.
Furse’s Recommendation, and Defendant Carolyn Colvin, Acting Commissioner of Social
Security, filed a Reply.5
The court has conducted a de novo review6 of the several issues Remien raises in her
Objection. As Judge Furse did in her Report and Recommendation, this court reviews the
Commissioner’s decision to determine whether the proper legal standards were applied and if the
record as a whole contains substantial evidence in support of the Commissioner’s factual
findings—evidence “a reasonable mind might accept as adequate to support a conclusion.”7
Having carefully considered the parties’ briefing, the applicable law, the evidentiary record, and
the reasoning in Judge Furse’s Report and Recommendation, the court OVERRULES Remien’s
Objection, ADOPTS Judge Furse’s Recommendation, and AFFIRMS the denial of benefits.
The parties do not take issue with the Procedural History, Factual Background, and
Standard of Review portions of Judge Furse’s Report and Recommendation,8 and the court finds
Judge Furse has correctly stated therein case history, facts, and applicable legal standards. The
court adopts these portions of Judge Furse’s Report and Recommendation, and confines its
discussion below to the arguments Remien makes in her Objection, concluding they are without
New Evidence Submitted to the Appeals Council
Remien’s first argument concerns new evidence she submitted to the Appeals Council—
psychological testing she underwent at her own expense and “evidence of [her] eye
See 28 U.S.C. § 636(b)(1)(C) (requiring de novo review of portions of a report and recommendation to which
timely objections are made).
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2014) (citations omitted).
Dkt. 26 at 2-7.
impairment.”9 In her briefing before Judge Furse, she argued that the Commissioner’s findings
cannot be supported by substantial evidence because the Council too perfunctorily adhered to the
ALJ decision in stating:
In looking at your case, we considered the reasons you disagree with the decision and the
additional evidence listed on the enclosed Order of Appeals Council.
We considered whether the Administrative Law Judge’s action, findings, or conclusion is
contrary to the weight of evidence of record. We found that this information does not
provide a basis for changing the Administrative Law Judge’s decision.10
Judge Furse correctly recommended that the court reject Remien’s argument on this issue
because the Council’s consideration of both the psychological testing and the vision impairment
evidence was adequate under the Tenth Circuit’s decision in Martinez v. Barnhart.11 Under
Martinez, the Council need only state—as it did—that it considered “the additional evidence
identified in the attached Order” to have “adequately ‘considered . . . the additional evidence,’
meaning that it ‘evaluate[d] the entire record including the new and material evidence
And, concerning the substance of the psychological testing evidence, Judge Furse
correctly stated that it “does not undercut the ALJ’s RFC evaluation.”13 Remien’s psychological
testing scores were mixed. Some were average and some were below average, including her
verbal comprehension score of 74. The testing results indicated that Remien “may struggle to
comprehend most of what is said in the workplace or training environment, especially if she is
Dkt. 27 at 1-2.
Tr. 12; Dkt. 17 at 8.
444 F.3d 1201, 1207 (10th Cir. 2006).
Id. (quoting 20 C.F.R. § 404.970(b)); see also Dkt. 26 at 11.
Dkt. 26 at 11.
not given time to process the information short to long-term memory.”14 But as Judge Furse
correctly noted, the RFC already limited Remien to “work at a low stress level, low
concentration level, and low memory level.”15
Remien argues in her Objection that Judge Furse’s Recommendation on this issue is
infirm because some of the new evidence she submitted to the Council is not reviewed in detail.
Citing generally to Martinez, Remien contends that “the reviewing court is required to decide
whether the new evidence undercuts the ALJ’s findings” but Judge Furse did not address the
argument that the testing contradicts the RFC on the issue of auditory memory limitations,
particularly where one job—“call-out operator”— requires verbal abilities. And, she faults Judge
Furse for not addressing “new evidence of [her right] eye impairment show[ing] . . .
[degradation] from 20/50 . . . to 20/80”, and where the “VE provided substantial reductions in . .
. large part due to the vision limitations”, further degradation could lead to further reductions.16
The court finds Remien’s arguments unpersuasive. First, the Council adequately
reviewed and rejected the new evidence. Second, Judge Furse considered the psychological
testing and disagreed that it undercut the RFC. Third, any alleged failure to discuss in great
detail the auditory memory limitations as they relate to the call-out operator job is immaterial
and harmless, where, as the Commissioner notes, the “outcome of this case would not change”
because “33,150 [laundry aide, housekeeper, and product assembler] jobs . . . exist that
[Remien] can perform, not considering the reduced number of call-out operator jobs.”17
Id.; Tr. 17.
Dkt. 27 at 2.
Dkt. 28 at 2.
And the court cannot conclude that Remien’s fleeting argument concerning vision
degradation to 20/80 requires remand. The ALJ considered medical records stating that Remien
had lost her left eye and that her visual acuity in her right eye without correction was as low as
20/70, but could improve to between 20/40 and 20/50 with correction.18 The RFC accounted for
Remien’s already notable vision issues—precluding, for example, “[w]orking around dangerous
unprotected heights, machinery or chemicals due to visual loss;” and work requiring “binocular
vision due to left eye blindness and reduced vision in the right eye;” or “reading, writing,
computer screen work or similar fine vision tasks . . . .”19 The VE testified concerning a
deduction in jobs due to vision and other limitations.20 Remien does not identify any job
suggested in the ALJ’s decision that she cannot do due to further vision degradation. Remien
fails to persuade this court that the new right eye evidence undercuts the ALJ’s decision-making.
Her Objection on this issue is OVERRULED.
ALJ’s Consideration of all Impairments and Obesity Analysis
Remien argues that the ALJ failed to consider her obesity in the presence of her knee
arthritis and plantar fasciitis. Remien argued before Judge Furse that the “ALJ did not
acknowledge [her] obesity, . . . [and] did not engage in the 02-01p analysis”21 Judge Furse
rejected this argument, finding that the “ALJ adequately acknowledged [Remien’s] obesity in his
decision and its separate and combined impact on her RFC.”22 The court finds that Judge Furse’s
Dkt. 17 at 10.
Dkt. 26 at 12.
discussion of this issue is correct, and adopts it in its entirety. Remien’s Objection on this issue23
essentially restates the arguments she made before Judge Furse, and it is OVERRULED.
ALJ’s Consideration of 12.05 Equivalence
Remien argues that she meets or equals Section 12.05, but the ALJ improperly failed to
order a requested consultative examination and thus necessarily failed to evaluate her claimed
borderline intellectual functioning.24 Judge Furse rejected this argument, concluding that
substantial record evidence supported the ALJ’s finding that she does not “meet or medically
equal” a listing equivalence.25 The court finds Remien’s argument was properly rejected for the
reasons set forth in Judge Furse’s thorough analysis, and adds that it agrees with the
Commissioner’s contention that Remien reasonably was not sent for a CE because at the time the
ALJ made that decision, substantial evidence supported the conclusion that her intellectual
functioning did not require it.26 Remien’s Objection to Judge Furse’s Report and
Recommendation on this issue is OVERRULED.
ALJ’s Hypothetical and Concentration, Persistence, or Pace
The ALJ found that “[w]ith regard to concentration, persistence or pace” Remien had
“moderate difficulties.”27 Here, the ALJ discussed Remien’s claimed difficulties with
“concentration and memory,” and stated that he “allowed for moderate limitations in
concentration, persistence or pace in the [RFC].”28 The ALJ accounted for these deficiencies in
Dkt. 27 at 2-3.
Dkts. 17 at 11 and 27 at 4.
Dkt. 26 at 16.
See Dkt. 21 at 12.
the RFC assessment, finding that Remien could only do work requiring low stress, low
concentration, and low memory.29
Remien argued before Judge Furse that her limitations were erroneously not included in
the hypothetical to the VE. Judge Furse correctly rejected this argument, first explaining that
under guidance from the Tenth Circuit, an ALJ need not include limitation findings at steps two
and three in the RFC assessment. But as Judge Furse found, Remien’s mental deficiencies were
appropriately accounted for in the RFC assessment in which the ALJ found Remien could only
handle work requiring low stress, low concentration, and low memory—the same specific issues
the ALJ discussed under the area of “concentration, persistence or pace.”30 The court finds that
Judge Furse’s thorough discussion of this issue is correct, and adopts it in its entirety. Remien’s
Objection to Judge Furse’s Report and Recommendation on this issue is OVERRULED.
The VE Testimony and Number of Jobs
Remien argued before Judge Furse that the VE erred in testifying that she could perform
the job of call-out operator, which requires a language component of three, because Remien only
enjoys a language component of two. Judge Furse’s Report and Recommendation renders this
issue moot, where she eliminated that job from consideration in her analysis.31 Judge Furse
further concluded that assuming the consideration of the call-out operator job was error, the error
was harmless where even after excluding that job from consideration there remained a sufficient
In her Objection, Remien argues nonetheless that the ALJ did not sufficiently account for her mental deficiencies
in the RFC because he did not specifically use the terms “persistence” and “pace”, and that while recommended
work may be unskilled, it might “still be fast paced, such as a production line.” Dkt. 27 at 5. The court finds this
unpersuasive in view of Judge Furse’s detailed analysis. Further, the RFC’s limitation to work at a low stress level
meant work at “a low production level.” Tr. 17. And, the RFC accounted for Remien’s concentration and memory
issues. Those are the issues that had been identified when the ALJ evaluated the category of “concentration,
persistence, or pace.” Tr. 16. (noting that “With regard to concentration, persistence, or pace, the claimant has
moderate difficulties. She alleges difficulty with her concentration and memory.”).
Dkt. 26 at 19.
number of jobs in the national economy (33,150) Remien could perform—as a product assembler
(4,750 jobs), laundry aide (8,400 jobs), or housekeeper/cleaner (20,000 jobs).32
Remien objects to this conclusion on multiple grounds. The court finds none persuasive.
First, she observes that Judge Furse failed to “provide judicial support for grouping jobs
together.”33 Here, Remien apparently takes issue with Judge Furse’s adding the three categories
of jobs she can do to reach the total of 33,150. In making this passing statement, Remien offers
the court no authority upon which to conclude Judge Furse’s grouping is improper, such as a
citation to a case, regulation, or other legal authority. Nor does she attempt to make such an
argument based on the specific circumstances of the case. The court thus rejects Remien’s
argument on this issue—particularly where she offers no reason why it is improper in this
specific case, and it appears that such grouping is something contemplated under both the
applicable regulations34 and guidance from the Tenth Circuit.35
Next, Remien argues that Judge Furse “appears to concede that the ALJ did not provide
the full analysis required under Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1999).” The
court finds this argument unpersuasive. At the outset, it appears mistaken. Judge Furse stated in
her Report and Recommendation that Trimiar required the ALJ to use common sense in
weighing “statutory language as applied to a particular claimant’s situation,” and that the ALJ
Id.; see also Tr. 25.
Dkt. 27 at 6.
See 20 C.F.R. § 404.1566(b), Work which exists in the national economy (“[w]ork exists in the national economy
when there is a significant number of jobs (in one or more occupations) having requirements which you are able to
meet. . . [i]solated jobs that exist only in very limited numbers in relatively few locations outside of the region
where you live are not considered ‘work which exists in the national economy. . . .’”).
See Stokes v. Astrue, 247 Fed.Appx. 675, 684 (10th Cir. 2008) (noting that even if the court considered on a
combined basis only “two jobs [electronic assembler and clerical mailer] out of the four considered by the ALJ . . .
we do not believe any reasonable factfinder could have determine that suitable jobs did not exist in significant
numbers in either the region . . . or several regions of the country.”).
considered the “relevant [Trimiar] factors”—none of which “suggest a shortage of . . . jobs in the
regional economy.”36 Judge Furse correctly concluded that substantial evidence supports the
finding that 33,150 jobs exist in the national economy that Remien can perform. Remien’s
Objection on this issue is OVERRULED.
ALJ’s Compliance with SSR 00-04p
Remien argued before Judge Furse that the ALJ breached SSR 00-4p by failing to ask the
VE how his testimony corresponded with the Dictionary of Occupational Titles and obtain an
explanation for any inconsistencies.37 She argues that because her level two reasoning suggests
she could not do one of the three jobs the VE identified, that of call operator (requiring level
three reasoning), the VE’s testimony was not consistent with the DOT on that point.38
SSR 00-04p provides:
Occupational evidence provided by a VE or VS generally should be consistent
with the occupational information supplied by the DOT. When there is an
apparent unresolved conflict between VE or VS evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the conflict before relying on
the VE or VS evidence to support a determination or decision about whether the
claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully
Dkt. 26 at 20. Further, though Judge Furse concluded the Trimiar analysis was sufficient, the Commissioner
argues that a Trimiar factor analysis is not required at all in this case, which concerns a large number of jobs in the
national economy, as opposed to that case’s small number of jobs in a region. Dkt. 28 at 7 (citing Raymond v.
Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009)). Raymond appears to support the Commissioner’s position. The court
of appeals there rejected the claimant’s argument that a multi-factor analysis was required in a case where 1.34
million jobs existed in the national economy that the claimant could do. 621 F.3d at 1274. The court explained:
In Trimiar the focus was on jobs in the regional economy because the vocational expert in that
case testified only to the number of available jobs in the regional economy. Because the number
of such jobs was between 650 and 900, and because this circuit has “never drawn a bright line
establishing the number of jobs necessary to constitute a ‘significant number,’ ” the court turned to
the multi-factor analysis to help it resolve the question whether 650 to 900 jobs is a “significant”
number. Trimiar does not hold that only regional jobs are relevant or that a court must engage in a
factoral analysis when the number of jobs relevant available is, as here (1.34 million), much larger.
Id. at 1274, n.2.
Dkt. 17 at 13.
Dkt. 24 at 7-8.
develop the record, the adjudicator will inquire, on the record, as to whether or
not there is such consistency.
At the hearing, the ALJ had the following exchange with the VE:
Q. And if we were to look at the DOT and SCO and other descriptions of how
these jobs are performed, would they mention all of my limitations, in particular,
the sit/stand option?
A. No, they would not.
Q. Is that why you’ve reduced the number so much?
A. The main reason for that reduction is the vision issues and the environmental
issues, in addition to the sit/stand. So yes, all three of those.
Q. And the basis for your reduction?
A. That’s my experience as a rehab counselor in understanding the carried
environments by which these types of jobs exist.39
In his decision, the ALJ cited SSR 00-4p, and stated that the VE had been asked at the hearing if
her testimony conflicted with the DOT. The ALJ notes that the VE had “responded by stating
that the DOT does not mention, in its description of the . . . [identified jobs of product assembler,
laundry aide, housekeeper/cleaner, and call out operator], the limitations given (e.g. the sit/stand
option and the mental limitations) in the residual functional capacity. However, the expert stated
that her education and experience indicates that such jobs do allow for such limitations, in the
reduced numbers noted . . . . No contrary evidence was presented. Therefore, the opinions of the
expert are accepted and found to be appropriate departures from the DOT.”40
Judge Furse correctly recommended that this court find reversal on this ground is
unwarranted, where the ALJ’s questions to the VE had essentially the same meaning as the
language in SSR 00-004p and the ALJ specifically asked about limitations not present in the
DOT and the reductions in the available job numbers—accounting for relevant discrepancies in
all but the call-out operator job, which is disregarded in the court’s analysis. As Judge Furse
correctly noted, even if the ALJ’s language had more carefully tracked SSR 00-04p’s, “it would
not change the VE response, nor would it change the ALJ’s ultimate determination that Ms.
Remien does not qualify as disabled.”41
In her Objection on this issue, Remien cites to the cases Madron v. Astrue42 and Poppa v.
Astrue.43 But the court cannot conclude that either of those cases—or Hackett v. Barhart, a case
Judge Furse cites in her Report and Recommendation—require reversal even if the ALJ did not
strictly comply with the language in SSR 00-4p.
The Tenth Circuit in Madron found the ALJ erred in finding at step four that the claimant
could return to her prior work as in a cashier II job, and was thus not disabled. ALJ had relied
on VE testimony that the claimant could return to the cashier II job. That job required a reading
level of two, but the ALJ had specifically found the claimant had a reading level of only one.
The court of appeals found error in the ALJ’s failure to seek “any explanation for this apparent
contradiction.”44 The court noted that the cashier II job was the claimant’s “only possibility” to
return to her prior work, and concluded that even if they were able to uphold the ALJ’s RFC
Dkt. 26 at 24.
311 Fed.Appx. 170 (10th Cir. 2009). Remien cites page 175 of that decision for the proposition that the ALJ must
obtain a “reasonable explanation” for any inconsistencies. Dkt. 27 at 7. The only discussion of that term in the
Madron case is found at 181, in the court’s discussion of “Available Jobs,” and this is the discussion the court
believes Remien meant to rely upon.
569 F.3d 1167 (10th Cir. 2009). Remien cites page 1171 of that decision. The discussion of SSR 00-4p begins at
page 1173, and this is the discussion the court believes Remien meant to rely upon.
311 Fed.Appx. at 181.
(which they did not), they would therefore be required to reverse the determination that the
claimant was not disabled.45
The Madron court further found that the ALJ had made a similar mistake at step five.
The VE had identified two jobs that the claimant allegedly could do—inspector/hand packager
and small products assembler. But the former required a reading level of two. And, the VE
again failed to explain—apparently was not asked—how the claimant could be expected to do
the inspector/hand packager job. The court of appeals noted that this “deficiency severely
undercuts the ALJ’s conclusion that [the claimant] is not disabled.”46
In Poppa, the Tenth Circuit agreed with the claimant that the ALJ breached SSR 00-4p
and “erred by not inquiring about whether there were any conflicts between the VE’s testimony
about the job requirements for the jobs identified and the job descriptions in the DOT.”47 But the
court concluded that “this error was harmless because there were no conflicts.”48
In Hackett, the Tenth Circuit considered, among other issues, the ALJ’s apparently
mistaken statement in his decision that the VE had acknowledged and explained a conflict
between his opinions and the DOT. The claimant argued, and the district court agreed, that this
had not actually occurred. The district court ruled that such an explanation was unnecessary
because there was no conflict between the VE’s testimony and the DOT, rejecting the claimant’s
argument that: 1) the VE’s two identified jobs were not available to her because her RFC limited
her to jobs avoiding significant interaction with people, and 2) both the jobs identified required a
reasoning level of three, but her RFC was inconsistent with such a requirement. The court of
Id. at 182.
569 F.3d at 1173.
appeals agreed there was no conflict between the RFC and the interaction with people function,
and thus appeared to agree with the district court that an “explanation was unnecessary.”49
However, the court of appeals disagreed with the district court on the second point, where that
the claimant appeared to have level two reasoning and thus would ultimately be unable to do
either job identified the VE identified. Thus, the court concluded that reversal and remand of
“this portion of the ALJ’s decision” was necessary “to address the apparent conflict between
Plaintiff’s inability to perform more than simple and repetitive tasks and the level-three
reasoning required by the jobs identified as appropriate for her by the VE.”50
This court discerns from the cases Remien and Judge Furse cited that where the error is
harmless, a technical failure to use the precise language of SSR 00-4p does not mandate reversal.
In Madron, the ALJ’s failure led to an erroneous determination that the claimant could return to
one job, which, in reality, she could not do. And in Hackett, the failure led the ALJ to
erroneously find the claimant could do two jobs when in reality she could do neither. The court
reversed in those cases. In Poppa, where the error was harmless, there was no reversal.
Any error here in the ALJ’s imprecise discussion with the VE was harmless, and
accounted for discrepancies in his decision. The job for which Remien argues there was a
conflict—call-out operator—has not been considered by this court, nor was it considered by
Judge Furse in making her Report and Recommendation. The ALJ relied on other substantial
Id. at 1175-76. The court explained that “The district court nevertheless ruled that the ALJ’s assertion about the
VE’s explanation was unnecessary because there was not conflict between the VE’s testimony and the DOT. We
agree with respect to the ‘people’ function of the designated jobs, but disagree with respect to the required reasoning
Id. at 1176.
evidence in reaching its decision. Reversal is unwarranted, and Remien’s Objection on this issue
Credibility and Activities of Daily Living
Remien argued before Judge Furse that the ALJ failed to explain adequately how her
activities of daily living are inconsistent with her allegations of sedentary limitations,52 and that
the ALJ failed to consider that her efforts to obtain pain relief enhanced her credibility.53 The
court concludes that Judge Furse properly rejected these arguments. First, Judge Furse correctly
noted that credibility arguments are not to be disturbed when supported by substantial evidence,
and that while an ALJ must consider a claimant’s assertions regarding pain where medical
evidence shows a pain-producing impairment, a formal “factor-by-factor recitation of the
evidence” is not required.54 Judge Furse then reviewed the ALJ’s decision and specifically cited
to portions where the ALJ considered Remien’s pain claims and ADL’s, and correctly concluded
under the applicable law that the ALJ did not err in considering “Remien’s activities of daily
living in evaluating and evincing [her] ability to engage in substantial gainful activity.”55
Remien’s Objection on this issue is OVERRULED.
See also Fulton v. Colvin, 631 Fed.Appx. 498, 507 (10th Cir. 2015) (finding step five burden satisfied and
declining to reverse although the ALJ undisputedly “failed to inquire of the VE as to any possible conflict between
the DOT and the VE’s testimony, or otherwise resolve the conflict, as required by Social Security Ruling 00-4p”
where only one of the two jobs considered had a resonating level inconsistent with the claimant’s RFC; noting that
the “other job the ALJ relied on . . . satisfies the Commissioner’s step-five burden.”).
Dkt. 17 at 14-15 (noting that even if Remien can care for children and do some household activities, this does not
establish that she can engage in substantial gainful activity).
Dkts. 17 at 15.
Dkt. 26 at 21 (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000 (citing Kepler v. Chater, 68F.3d 387,
391 (10th Cir. 1995)).
Dkt. 26 at 23.
For the reasons stated, the court concludes that Judge Furse’s Report and
Recommendation correctly states and applies the law and is supported by the record, the court
ADOPTS the Report and Recommendation in its entirety. Remien’s Objection is OVERRULED,
and the Commissioner’s decision is AFFIRMED. The Clerk of Court is directed to close this
SO ORDERED this 29th day of March, 2017.
BY THE COURT:
ROBERT J. SHELBY
United States District Judge
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