Thompson v. Colvin
Filing
42
MEMORANDUM DECISION AND ORDER - The court concludes the Commissioner's decision is supported by substantial evidence and is free of harmful legal error. The Commissioner's decision is therefore affirmed. Signed by Magistrate Judge Brooke C. Wells on 3/29/2018. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Sonya K. Thompson
Memorandum Decision and Order Affirming
the Decision of the Commissioner
Plaintiff,
v.
Case No. 2:16-cv-1182 BCW
Nancy A. Berryhill,
Defendant.
Magistrate Judge Brooke Wells
Plaintiff, Sonya K. Thompson, filed for disability insurance benefits and supplemental
security income on November 15, 2013. 1 She claims disability due to bilateral knee
replacements, hypertension depression, and a pelvic fracture. 2 Her applications were denied. On
March 29, 2018, the court heard oral argument on Ms. Thompson’s appeal. Karl Osterhout
appeared for Plaintiff and James Burgess appeared for Defendant. Prior to the hearing, counsel
for each party submitted supplemental authority that the court considered. 3 After careful review
of the record, the parties’ briefs, arguments presented at the hearing, and the supplemental
authority, the court concludes the Commissioner’s decision is supported by substantial evidence
and is free of harmful legal error. The Commissioner’s decision is therefore affirmed.
Ms. Thompson raises two issues on appeal. First, she alleges the “ALJ erred in relying
on vocational expert testimony to fulfill his step 5 burden without addressing post-hearing
objections to the vocational expert’s testimony.” 4 Second, Ms. Thompson argues the ALJ’s
1
R. 225-234. (R. refers to the record of proceedings in this case).
R. 282, 286.
3
ECF no. 39, ECF no. 40.
4
Plaintiff’s Corrected Opening Brief p. 4, ECF no. 33.
2
analysis of the medical opinion evidence is “contrary to law and not supported by substantial
evidence.” 5
I.
Any error in not addressing the post hearing objections was harmless.
Following the hearing before the Administrative Law Judge (ALJ), Plaintiff filed a post-
hearing memorandum and objection to the vocational witness’ testimony. 6 Specifically, Plaintiff
“objected to the jobs named by the vocational expert as fitting the ALJ’s hypothetical
assumption, given up to date and reliable information obtained from the U.S. Department of
Labor.” 7 The ALJ did not rule on these objections and Plaintiff argues this was a violation of the
Hearings, Appeals, and Litigation Law Manual (HALLEX). The HALLEX is the Social
Security Agency’s internal guidelines for processing and deciding claims under the Social
Security Act. 8 The HALLEX provides that an ALJ must on the record, ask a claimant and their
representative whether they have any objections to the vocational expert testifying and rule on
any objections. “The ALJ may address the objection(s) on the record during the hearing, in
narrative form as a separate exhibit, or in the body of his or her decision.” 9 Here there were no
objections to the vocational expert testifying, 10 but the ALJ did not rule on the post-hearing
objections.
In Butterick v. Astrue, 11 the Tenth Circuit relied on authority from the Fifth Circuit, 12 in
assuming without deciding, that relief may be granted for prejudicial violations of the
5
Id.
R. 389-407.
7
Plaintiff’s Corrected Opening Brief p. 6.
8
See Social Sec. Law Center, LLC v. Colvin, 542 F. App’x. 720, 722 n.3 (10th Cir. 2013).
9
I-2-6-74. TESTIMONY OF A VOCATIONAL EXPERT, HALLEX I-2-6-74, 1993 WL 751902. The HALLEX
was amended in June 2016 changing some language and moving certain sections.
10
R. 1124.
11
430 F.. App’x 665 (10th Cir. 2011).
12
See Shave v. Apfel, 238 F.3d 592, 596-97 (5th Cir. 2001) (holding that only prejudicial violations of HALLEX
provisions may entitle a social security claimant to relief).
6
2
HALLEX. 13 Plaintiff’s alleged prejudice centers on the use of the dictionary of occupational
titles (DOT) that is “outdated” and should not be the “gold standard” used by the Social Security
Administration. Plaintiff urges the use of O*NET, rather than the DOT, which is “an obsolete
and static database that is no longer being developed or enhanced by the United States
Department of Labor.” 14 These alleged errors are magnified by the fact that they were made at
step five of the sequential evaluation process. 15
At step five, there is a shift in the burden to the Commissioner to demonstrate that other
work exists in significant numbers in the national economy that a claimant can perform. 16 To
meet this burden of production an ALJ may rely on the testimony of a vocational expert. 17 The
Social Security Agency’s regulations provide that when determining whether “unskilled,
sedentary, light, and medium jobs exist in the national economy” 18 in significant numbers,
administrative notice will be taken from various governmental and other publications. These
include:
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by
various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor
Statistics.19
13
See Butterick, 430 F. App’x at 668; see also Lee v. Colvin, 631 F. App’x 528, 543 (10th Cir. 2015) (Assuming
without deciding that we can grant relief for violations of HALLEX procedures,3 we agree with the Fifth Circuit
that only prejudicial violations of HALLEX provisions entitle a claimant to relief.”).
14
Id. p. 8.
15
See generally 20 C.F.R. § 404.1520(a)(4).
16
See 20 C.F.R. § 404.1560(c)(2).
17
See Heckler v. Campbell, 461 U.S. 458, 461 (1983).
18
20 C.F.R. § 404.1566.
19
Id.
3
Thus the use of the DOT is specifically permissible by the regulations. Further, the Tenth Circuit
has recognized the use of the DOT by an ALJ in reaching decisions as proper. 20 The
undersigned finds the vocational expert did not err in using the DOT.
In the Tenth Circuit an ALJ need not discuss all the evidence when rendering a
decision. 21 Any failure by the ALJ here to discuss objections to the reliance on the DOT, which
is allowable under the regulations, is inconsequential and at most harmless error. 22
During oral argument Plaintiff’s counsel expressed additional concerns of Constitutional
due process violations on account of the ALJ’s failure to address Plaintiff’s objections to the
vocational expert. But, there is no due process violation where, as here, the alleged violation
stems from the use of a governmental publication that is authorized by regulation.
II.
The ALJ did not err in the analysis of medical opinion evidence
Plaintiff next takes issue with the ALJ’s evaluation of the medical opinion evidence.
Specifically, Ms. Thompson argues it was error to not appropriately weigh and consider the
opinion of Dr. Wade Sessions. Dr. Sessions opined in January 2014 that Plaintiff was “totally
disabled – will re-evaluate at next apt on 1/28/14.” 23
20
See Haddock v. Apfel, 196 F.3d 1084, 1089-90 (10th Cir. 1999) (“Determining ‘the functional demands and job
duties’ of specific jobs and matching those requirements to a claimant's limitations is the very task the ALJ must
undertake at step five. It would be anomalous to read the agency's regulations to allow an ALJ to disregard the
Dictionary at step five—where the ALJ bears the burden—when the ALJ is allowed to rely conclusively on
essentially the same information from the Dictionary at step four.”); Bowman v. Astrue, 511 F.3d 1270, 1273 (10th
Cir. 2008) (“It is well established that “the agency accepts the [definitions in the Dictionary of Occupational Titles ]
as reliable evidence at step four of the functional demands and job duties of a claimant's past job as it is usually
performed in the national economy.”) (quoting Haddock, 196 F.3d at 1090).
21
See Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (rejecting claim that the ALJ was required to discuss
all the evidence).
22
The court considered the supplemental authority cited to by Plaintiff and is not persuaded by the reasoning found
in those decisions. See Notice of Supplemental Authority, ECF no. 40. The majority of the cases are from other
circuits and even the one from this circuit, Ah Pedone v. Berryhill, 2018 WL 460063 (D. Colo. January 18, 2018), is
distinguishable based on the arguments of prejudice around SkillTRAN and not just the DOT.
23
R. 765.
4
The ALJ must follow a specific procedure when weighing a treating physician’s
opinion. 24 An ALJ must first consider whether the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques.” 25 If the answer is no, then the inquiry
at this stage is complete. If the ALJ finds the opinion is well-supported, she “must then confirm
that the opinion is consistent with other substantial evidence in the record.” 26 “If the opinion is
deficient in either of these respects, then it is not entitled to controlling weight.” 27
Here, the ALJ acknowledged that Dr. Sessions was a treating physician, but gave his
opinion little weight because it was “not consistent with other substantial evidence in the case
record.” 28 In discounting Dr. Sessions’ opinion the ALJ noted other medical evidence in the
record, 29 that the form used by Dr. Sessions was incomplete, offered very little to no explanation
for the basis of the opinion and consisted of an evaluation with a line drawn through entire
columns. Additionally, even at the hearing before the ALJ, concerns were expressed about Dr.
Sessions’ opinion. 30 The court finds the ALJ properly followed the procedure for weighing Dr.
Sessions’ opinion.
Finally, the undersigned finds the ALJ properly considered the other medical opinion
evidence in the record discounting some opinions from treating sources who are deemed
unacceptable under the old regulations and considering the opinions of state agency consultants.
The court finds no error in the ALJ’s consideration of medical evidence in the record.
24
See Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014).
SSR 96-2p, 1996 WL 374188, at *2 (quotations omitted).
26
Id.; see also Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004).
27
Robinson, 366 F.3d at 1082 (citing Watkins v. Barnhart, 350 F.3d 1287, 1300 (10th Cir. 2003)).
28
R. 29.
29
R. 29.
30
R. 1094.
25
5
ORDER
The court concludes the Commissioner’s decision is supported by substantial evidence
and is free of harmful legal error. The Commissioner’s decision is therefore affirmed. The Clerk
of the Court is instructed to close this case.
DATED this 29 March 2018.
Brooke C. Wells
United States Magistrate Judge
6
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