Losee v. Colvin
Filing
32
MEMORANDUM DECISION AND ORDER ADOPTING 27 REPORT AND RECOMMENDATIONS and Overruling 30 Defendants Objection. It IS HEREBY ORDERED that the Report and Recommendation is ADOPTED and that Defendants Objection is OVERRULED. IT IS FURTHER ORDERED that the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for further findings on the specific matter identified herein. Signed by Judge David Nuffer on 9/28/18. (jwt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SHERRY S. LOSEE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration,
MEMORANDUM DECISION AND
ORDER ADOPTING [27] REPORT &
RECOMMENDATION AND
OVERRULING [30] DEFENDANT’S
OBJECTION
Case No. 2:15-cv-226 DN BCW
District Judge David Nuffer
Defendant.
Magistrate Judge Brooke C. Wells
Magistrate Judge Brooke C. Wells’s Report and Recommendation 1 under 28 U.S.C. §
636(b)(1)(B) recommends that this case be remanded back to the Commissioner for further
findings. Defendant objected 2 to the specific portion of the Report and Recommendation in
which Judge Wells concluded that the administrative law judge’s determination that Plaintiff
could perform the job of surveillance system monitor was not supported by substantial
evidence. 3 Plaintiff replied to the objection. 4
De novo review has been completed of those portions of the report, proposed findings
and recommendations to which objection was made, including the record that was before the
Magistrate Judge and the reasoning set forth in the Report and Recommendation. 5
1
Docket no. 27, filed February 21, 2017.
2
Defendant’s Objection to Magistrate Judge’s Report and Recommendation, docket no. 30, filed March 21, 2017.
3
Report and Recommendation at 8–9.
4
Plaintiff’s Reply to Defendant’s Objection to Magistrate Judge’s Report, docket no. 31, filed March 31, 2017.
5
28 U.S.C. § 636(b).
Under de novo review in a social security case, the district court judge, like the
magistrate judge, reviews 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.” 6 “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” 7 “It requires more than a scintilla, but less
than a preponderance.” 8 The court will not reweigh the evidence or substitute its judgment for
the commissioner’s. 9
Here, the administrative law judge determined that Plaintiff’s residual function capacity
(“RFC”) still allowed Plaintiff to perform sedentary, unskilled work that did not require “[w]ork
at more than a low stress level.” 10 “Low stress level” meant work at “a low production level,”
“no working with the general public,” “only occasional contact with supervisors and coworkers,” and “the ability to deal with only rare changes in a routine work setting.” 11 The
administrative law judge relied on the expert testimony of a vocational expert to conclude 12 that
the Plaintiff, with this sort of RFC, could perform the job of surveillance system monitor as
defined in the Dictionary of Occupational Titles (“DOT”). 13
Defendant argues in the objection that substantial evidence supports the administrative
law judge’s finding that Plaintiff could perform this job. 14 This does not appear to be true.
6
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
7
Id.
8
Id.
9
Id.
10
Transcript at 21.
11
Id.
12
Id. at 28
13
Dictionary of Occupational Titles 379.367-010
14
Objection at 3.
2
The administrative law judge’s finding was made despite acknowledging the
inconsistency between the DOT job information and the vocational expert’s testimony. 15
According to the administrative law judge, this discrepancy could be explained because the DOT
job description did not specifically include the kinds of RFC limitations that the administrative
law judge determined that Plaintiff exhibited. 16 However, those identified RFC limitations,
specifically those pertaining to work at a low stress level appear to be very much at odds with the
DOT job description for a surveillance system monitor.
The DOT describes this job as follows:
Monitors premises of public transportation terminals to detect crimes or
disturbances, using closed circuit television monitors, and notifies authorities by
telephone of need for corrective action: Observes television screens that transmit
in sequence views of transportation facility sites. Pushes hold button to maintain
surveillance of location where incident is developing, and telephones police or
other designated agency to notify authorities of location of disruptive activity.
Adjusts monitor controls when required to improve reception, and notifies repair
service of equipment malfunctions.
As another district court in the Tenth Circuit has recognized, the surveillance system monitor
description “indicates that the person ‘telephones police or other designated agencies to notify
authorities of location of disruptive activities’ and that they monitor premises of public
transportation terminals to detect ‘crimes or disturbances, using closed circuit television monitors
and notifies authorities by telephone of needed corrective action.’” 17 This job therefore “requires
the ability to talk frequently and to deal with people.” 18 This directly conflicts with an RFC
limitation on occasional contact with the public and coworkers. 19 It would also appear common
15
Transcript at 28.
16
Id.
17
Garver v. Astrue, No. 09-CV-02259-WYD, 2011 WL 1134721, at *16 (D. Colo. Mar. 28, 2011).
18
Id.
19
Id.
3
sense that responding to evidence of suspicious criminal activity would not be a low stress
occupation.
Because of this direct conflict, the administrative law judge’s finding as to the Plaintiff’s
ability to perform in this occupation is not supported by substantial evidence. Additional findings
on this specific determination are necessary, specifically as to the conflict between Plaintiff’s
RFC and the occupational requirements of a surveillance system monitor. The analysis and
conclusion of Magistrate Judge Wells are accepted and the Report and Recommendation 20 is
adopted. The case is remanded to the Commissioner for further findings.
ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 21 is ADOPTED and
that Defendant’s Objection 22 is OVERRULED. IT IS FURTHER ORDERED that the decision
of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for
further findings on the specific matter identified herein.
The Clerk shall close the case.
Signed September 28, 2018.
BY THE COURT
________________________________________
David Nuffer
United States District Judge
20
Report and Recommendation, docket no. 27, filed February 21, 2017.
21
Report and Recommendation, docket no. 27, filed February 21, 2017.
22
Defendant’s Objection to Magistrate Judge’s Report and Recommendation, docket no. 30, filed March 21, 2017.
4
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