Keiffer v. Astrue
Filing
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MEMORANDUM OPINION AND ORDER directing as follows: that the 16 Proposed Findings and Recommendation by Magistrate Judge is adopted and incorporated herein; that judgment is granted in favor of the Commissioner; that the Commissioner's final decision is affirmed; and that this civil action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 6/25/2012. (cc: attys; Magistrate Judge Stanley) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROY JAMES KEIFFER,
Plaintiff,
v.
CIVIL ACTION NO: 2:11-0500
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
On July 22, 2011, plaintiff instituted this action
seeking judicial review of the Commissioner's final decision
pursuant to 42 U.S.C.A. § 405(g).
The sole issue before the
court is whether the final decision denying plaintiff’s claim
for income and benefits is supported by substantial evidence.
See 45 U.S.C.A. § 405(g).
By standing order this action was referred to the
Honorable Mary E. Stanley, United States Magistrate Judge.
On
March 29, 2012, the magistrate judge filed her Proposed Findings
and Recommendation ("PF&R").
In the PF&R, the magistrate judge
recommends that the Commissioner's final decision be affirmed
and this matter dismissed from the docket.
On the question of
plaintiff's past work and certain jobs in the national economy,
the PF&R states as follows:
[A]s persuasively argued by the Commissioner, “there
was no apparent unresolved conflict between the . . .
[Dictionary of Occupational Titles ("DOT")] and the
VE’s testimony because although the ALJ did not
specifically ask the VE whether her testimony was
consistent with the DOT, the VE nevertheless answered
the unasked question -- she testified that up to 50
percent of the occupational base for all security
guard positions are stationary and performed primarily
in the seated position, including gate guard and a
night watchman.” (Def.’s Br. at 7-8.) (Tr. at 74-75.)
Therefore, the court proposes that the presiding
District Judge find that any error by the ALJ in
failing to ask the vocational expert about whether
there was a conflict between her testimony and the
DOT is harmless.
(PF&R at 13).
In his objections, plaintiff counters with the
following challenge to this conclusion:
The VE testified in error that the Plaintiff’s past
work as a security guard was performed as a stationary
job with a sit/stand option and that even if he
couldn’t return to his past work that there were a
significant number of security guard jobs performed at
the sedentary level, such as gate guard or night
watchman (Transcript pg. 74-76). The record and
Plaintiff’s testimony demonstrate that he did not
perform his past work as sedentary work. The ALJ’s RFC
and decision that the Plaintiff could perform his past
work and other security jobs is not harmless because
the jobs named by the VE are not significant
numbers. If the Plaintiff cannot perform his past
relevant work, in order to find unfavorably, the ALJ
must find significant numbers of jobs in the economy
that fit within the parameters of the given RFC. The
VE named security jobs and stated that the numbers
would have to be reduced 50%. The exact numbers were
not given, and further jobs were not named. Therefore,
significant numbers of jobs were not offered, and if
the Plaintiff cannot perform his past work, it is not
harmless for significant numbers of jobs to not be
offered.
(Objecs. at 1-2).
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The ALJ's decision stated as follows respecting
plaintiff's work capacity: "in comparing the claimant's residual
functional capacity with the physical and mental demands of work
as a security guard, the undersigned finds that the claimant is
able to perform it as actually and generally performed." (Record
at 28).
As noted by the magistrate judge, the Commissioner's
response fully covers plaintiff's assertion of error.
at 10 (quoting Comm.'s Resp.).
(See PF&R
In sum, there was no apparent
unresolved conflict between the DOT and the vocational expert's
testimony, the vocational expert nevertheless answered the
allegedly unasked question based upon her many years of
vocational counseling experience, plaintiff has not shown any
error would have changed the ALJ's decision, and plaintiff
failed to question the vocational expert respecting the matter.
In view of the foregoing discussion, the challenged
decision of the ALJ is supported by substantial evidence.
Having reviewed the record de novo, the court ORDERS as follows:
1.
That the PF&R be, and it hereby is, adopted and
incorporated herein;
2.
That judgment be, and it hereby is, granted in favor
of the Commissioner;
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3.
That the Commissioner’s final decision be, and it
hereby is, affirmed; and
4.
That this civil action be, and it hereby is, dismissed
and stricken from the docket.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and the
United States Magistrate Judge.
DATED: June 25, 2012
John T. Copenhaver, Jr.
United States District Judge
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