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Morro v. Berryhill

United States District Court, D. New Mexico

September 18, 2018

SUSAN A. MORRO,, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 16) filed August 2, 2017, in support of Plaintiff Susan A. Morro's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title XVI supplemental security income benefits. On October 2, 2017, Plaintiff filed her Motion to Reverse or Remand Administrative Decision and Memorandum Brief in Support (“Motion”). (Docs. 19, 20.) The Commissioner filed a Response in opposition on December 1, 2017 (Doc. 22), and Plaintiff filed a Reply on December 15, 2017. (Doc. 23.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Claimant Susan A. Morro (“Ms. Morro”) alleges that she became disabled on July 30, 2013, at the age of thirty because of mental problems, pancreatitis, seizures, heart problems, right ovarian cyst, and liver problems. (Tr. 178, 182.[2]) Ms. Morro completed the ninth grade in 2000, and worked as a home healthcare provider. (Tr. 183.) Ms. Morro reported she stopped working on July 30, 2013, due to her medical conditions. (Tr. 182.)

         On August 30, 2013, Ms. Morro filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 161-70.) Ms. Morro's application was initially denied on October 30, 2013. (Tr. 69, 70-83, 101-04.) It was denied again at reconsideration on June 19, 2014. (Tr. 84-99, 100, 108-113.) On July 2, 2014, Ms. Morro requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 114.) The ALJ conducted a hearing on November 16, 2015. (Tr. 35-68.) Ms. Morro appeared in person at the hearing with attorney representative Jeffrey Diamond. (Id.) The ALJ took testimony from Ms. Morro (Tr. 41-59), and an impartial vocational expert (“VE”), Thomas E. Bott (Tr. 60-66). On February 10, 2016, ALJ Matthew Allen issued an unfavorable decision. (Tr. 17-29.) On February 28, 2017, the Appeals Council issued its decision denying Ms. Morro's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On April 28, 2017, Ms. Morro timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[3] If the claimant is engaged in substantial gainful activity, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform his “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ made his decision that Ms. Morro was not disabled at step five of the sequential evaluation. (Tr. 27-28.) Specifically, the ALJ determined that Ms. Morro had not engaged in substantial gainful activity since August 15, 2013. (Tr. 22.) He found that Ms. Morro had severe impairments of history of ovarian cysts, depression, anxiety, post-traumatic stress disorder (PTSD), intermittent explosive disorder, and history of substance abuse. (Id.) The ALJ also found that Ms. Morro had nonsevere impairments of hyperlipidemia, eczema, restless leg syndrome, headaches, mesenteric adenitis, acute pancreatitis, renal syndrome, and seizures.[4]

(Id.) The ALJ, however, determined that Ms. Morro's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 23-24.) As a result, the ALJ proceeded to step four and found that Mr. Morro had the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) except that she is limited to simple, routine, repetitive work. The claimant is limited to making simple work-related decisions. The claimant is limited to occasional interaction with supervisors, co-workers, and the public. (Tr. 25.) The ALJ further concluded at step four that Ms. Morro had no past relevant work. (Tr. 27.) The ALJ determined at step five that based on Ms. Morro's age, education, work experience, RFC, and the testimony of the VE, there were jobs that existed in significant numbers in the national economy that Ms. Morro could perform. (Tr. 27-28.)

         In support of her Motion, Ms. Morro argues that (1) the ALJ improperly relied on VE testimony to conclude that jobs existed in significant numbers in the national economy that Ms. Morro could perform, and that Ms. Morro was capable of performing jobs requiring level one language development;[5] and (2) the ALJ's decision is contrary to and unsupported by substantial evidence within the record. (Doc. 20 at 2-11.)

         For the reasons discussed below, the Court finds no reversible error.

         A. Step Five Findings

         When the disability analysis reaches step five of the sequential process, the burden shifts to the Commissioner to show that “there are sufficient jobs in the national economy for a hypothetical person with [the claimant's] impairments, ” Jensen v. Barnhart, 436 F.3d 1163, 1168 (10th Cir. 2005), “given her age, education, and work experience.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); see also 20 C.F.R. §§ 416.960, 416.963-65 (explaining that a claimant's vocational factors of age, education, and work experience are considered, along with the claimant's RFC, to determine at step five whether there are a significant number of jobs that a claimant can perform). The Commissioner's showing must be supported by substantial evidence. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

         To determine whether jobs exist in significant numbers, regulations require the Commissioner to take administrative notice of reliable job information from various governmental and other publications. 20 C.F.R. § 416.966(d). Among the publications the regulations identify is the Dictionary of Occupational Titles, published by the Department of Labor.[6] 20 C.F.R. § 416.966(d)(1). The Commissioner may also use the services of a vocational expert or other specialist to determine whether a claimant's work skills can be used in specific occupations. 20 C.F.R. § 416.966(e); see also Rogers v. Astrue, 312 Fed.Appx. 138, 142 (10th Cir. 2009) (unpublished) (explaining that the whole point of vocational testimony is to go beyond facts already established through publications eligible for judicial or administrative notice and provide an alternative avenue of proof) (citing Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993)). An ALJ may properly rely on a VE's expert testimony, Haddock v. Apfel, 196 F.3d 1084, 1089 (10th Cir. 1999), but only when a claimant's impairments and limitations are adequately and precisely reflected in the hypothetical posed to the expert. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991). “An ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert testimony as substantial evidence to support a determination of nondisability.” Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999); see also SSR 00-4p, 2000 WL 1898704, at *4 (clarifying the ALJ's affirmative responsibility to ask about conflicts).

         A claimant's education is a vocational factor that the ALJ considers at steps four and five, rather than an aspect of the RFC. See Davidson v. Sec'y of Health & Human Servs., 912 F.2d 1246, 1253 (10th Cir. 1990) (explaining that vocational factors such as age, education and work experience, are combined with a claimant's RFC to evaluate what, if any, work a claimant is able to perform); see also SSR 96-8, 1996 WL 374184, at *1 (explaining that the RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairments and related symptoms). “Education” is primarily used to mean formal schooling or other training, but past work experience, daily activities, hobbies, and the results of testing may also show intellectual ability. 20 C.F.R. § 416.964(a). The Administration uses certain categories to evaluate a claimant's level of education and, absent contradictory evidence, will use the numerical grade level completed to determine a claimant's educational abilities.[7] 20 C.F.R. § 416.964(b).

         1. The ALJ Met His Burden at Step Five Demonstrating That Jobs Existed in Significant Numbers in the National Economy That Ms. Morro Could Perform

         Ms. Morro first argues that the ALJ failed to resolve a conflict between the VE's testimony and the DOT and improperly concluded that jobs existed in significant numbers in the national economy that she could perform. Ms. Morro explains that the ALJ, based on VE testimony, ultimately identified two jobs that she could perform - the job of a final assembler, DOT code 735.687-018, and the job of a stone setter, DOT code 735.687.034, and thereby directed a finding that Ms. Morro was not disabled. (Id., Tr. 28.) Ms. Morro asserts, however, that the DOT code the VE cited at the administrative hearing for the job of final assembler, i.e., DOT code 783.687-018, is not the correct DOT code. (Tr. 63.) As such, Ms. Morro asserts that there was a conflict between the VE testimony and the number of jobs he identified which the ALJ failed to resolve and improperly relied on to find her not disabled at step five. (Doc. 20 at 2-5.) Ms. Morro goes on to assert that because the ALJ erroneously relied on the VE testimony regarding the final assembler job, it must be eliminated from the ALJ's findings, and that her denial of benefits is, therefore, only supportable if the one remaining job of stone setter exists in significant numbers. (Id.) Ms. Morro contends that it does not. (Id.)

         The Commissioner argues that the VE merely cited the DOT code number incorrectly at the administrative hearing, and that upon review she was only off by one digit - that she cited DOT code 783.687-018, which corresponds with a “hide inspector, ” but meant to cite DOT code 713.687-018, which correctly corresponds to a final assembler. (Doc. 22 at 15.) The Commissioner further argues that the DOT code for final assembler is consistent with the VE's testimony because the job of final assembler is unskilled and complies with the ALJ's RFC assessment. (Id.) Because there was no conflict to resolve, the Commissioner contends that the two jobs the ALJ relied on at step five, in the aggregate, constitute a significant number of jobs. For these reasons, the Commissioner asserts that the ALJ reasonably relied on the VE's testimony to find that Ms. Morro was not disabled at step five. (Id.)

         Here, the ALJ utilized VE Thomas Bott to determine whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and RFC. (Tr. 20.) The ALJ presented the VE with three hypotheticals. (Tr. 60-63.) Based on the ALJ's second hypothetical, [8] the VE identified one light exertional level job, and two sedentary exertional level jobs that Ms. Morro could perform, identified their DOT numbers, and testified, based on his professional experience and reliance on the Occupational Employment Survey, [9]regarding the number of available jobs in the national economy as to each of them. (Tr. 62-63.) When questioned, the VE affirmatively stated that his testimony was consistent with the DOT. (Tr. 65.)

         The ALJ properly relied on the VE testimony and there was no conflict for the ALJ to resolve. The Court is persuaded that the VE's incorrect citation to one digit of the DOT code for the job of final assembler was a technical error that is minor enough not to undermine the Court's confidence in the ALJ's step five findings. Gay v. Sullivan, 986 F.2d 1336, 1341 n. 3 (10th Cir. 1993). Although the VE incorrectly cited DOT code number 783.687-018, instead of 713.687-018, the VE nonetheless described the job as “final assembler in the optical industry.” (Tr. 63.) The ALJ, in turn, similarly identified the job of “final assembler” as one of the two jobs he relied on at step five to determine that Ms. Morro was not disabled. (Tr. 28.) Thus, the Court is persuaded that despite the incorrectly cited DOT code, the VE identified, described and discussed the job of final assembler, which the ALJ properly relied on in making his step five findings. Between the final assembler and the stone setter jobs, the VE identified 52, 429 nationally available jobs in the aggregate, a number well above the 11, 000 nationally available jobs the Tenth Circuit has previously implied constitutes a significant number. Rogers v. Astrue, 312 Fed.Appx. 138, 142 (10th Cir. 2009) (unpublished). The ALJ, therefore, properly determined that jobs existed in significant numbers in the national economy that Ms. Morro could perform.

         In short, because there was no conflict to resolve between the VE testimony and the DOT regarding whether jobs existed in significant numbers in the national economy that Ms. Morro could perform, and because the ALJ properly relied on the VE's testimony regarding the number of available jobs, there is no reversible error as to this issue.

         2. The Jobs the VE Identified Properly Accounted for Ms. Morro's Limited Education

         Ms. Morro next argues that the ALJ failed to resolve a conflict between the VE testimony and DOT with Ms. Morro's low intelligence, limited education and reading anxiety. (Doc. 20 at 5-7.) In support, Ms. Morro explains that the ALJ's mental RFC and the VE's testimony failed to account for her low intelligence, limited education, and reading anxiety, and that she does not have the ability required to perform even level one reasoning jobs.[10] (Id.) She further explains that the jobs the VE identified have reasoning levels of one and require an ability to recognize the “meaning of 2, 500 (two or three-syllable) words[;] [r]ead at a rate of 95-120 words per minutes[; and] [c]ompare similarities and differences between words and between series of numbers.” (Id.) The Commissioner contends the ALJ expressly took into account Ms. Morro's limited education in making his step five findings and there is no apparent conflict for the ALJ to resolve in this regard. (Doc. 22 at 15-17.)

         As an initial matter, Ms. Morro appears to misunderstand the relevant regulation and publication when she argues that her low intelligence, limited education and reading anxiety call into question her ability to perform reasoning level one jobs. Indeed, the abilities cited in her argument refer to a job's required “language development” as that term is used in the DOT.[11]Parsing out her argument then, it would appear that Ms. Morro believes that the jobs the VE identified require “language development” at a level higher than her low intelligence, limited education and reading anxiety allow. As further discussed herein, the Court is not persuaded that Ms. Morro's low intelligence, limited education and reading anxiety precluded her ability to do level-one reasoning jobs. The ALJ accounted for Ms. Morro's mental impairments in his RFC and limited Ms. Morro's work-related mental activities to simple, routine, repetitive work, simple work-related decisions, and occasional interaction with supervisors, co-workers, and the public. (Tr. 25.) The two jobs the VE identified and the ALJ relied on at step five have reasoning levels of one; i.e., apply commonsense understanding to carry out simple one- or two-step instructions. Dictionary of Occupational Titles - Appendix C - Components of the Definition Trailer, 1991 WL 688702 (2008). The Tenth Circuit has held that even level-two reasoning jobs are consistent with the ability to do simple and routine work tasks. Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). And Ms. Morro has not cited to any authority to support an argument that the ALJ's mental RFC is inconsistent with level-one reasoning.

         The ALJ asked about Ms. Morro's education as he was required to do. (Tr. 41-43); see 20 C.F.R. § 416.964(b)(6). Ms. Morro testified that she was in school until the ninth grade[12] and left “mid-drift.”[13] (Tr. 41-42.) She testified that she attended special education classes while in school to receive extra help in concentration and writing, and that she had not obtained her GED. (Tr. 42.) She testified that while she has problems with reading and writing, her problems have more to do with concentration. (Tr. 42-43.) She testified that she can read the newspaper, and the words, for maybe five minutes, but that after that she gets “bored with it.” (Tr. 43.) The record further supports that Ms. Morro similarly reported to the Administration that she completed the ninth grade, but that she attended special education only from 1999-2000.[14] (Tr. 183.) The record further demonstrates that Ms. Morro reported to the Administration that she was able to read and write in English; that she enjoys, inter alia, playing “word search” and computer games (puzzles especially); that she can pay bills and count change; and that she goes to the library on a regular basis. (Tr. 181, 194, 233-34, 276.) Finally, the record demonstrates that State agency examining psychological consultant Marianne Westbrook, Ph.D., estimated Ms. Morro's intelligence to be in the low average range.[15] (Tr. 278.)

         The ALJ properly relied on the VE testimony and there was no conflict for the ALJ to resolve. The ALJ's hypotheticals to the VE included limitations related to Ms. Morro's mental (and physical) impairments, [16] and directed the VE to consider Ms. Morro's vocational factors of age and education, as well as absence of past relevant work, when testifying about work Ms. Morro could perform. (Tr. 60.) The Court finds that the VE reasonably presumed that Ms. Morro had some ability in reasoning, arithmetic, and language skills commensurate with a limited education in light of Ms. Morro's testimony and the uncontradicted record evidence regarding her formal education up to the ninth grade, along with her testimony and uncontradicted record evidence regarding her ability to read. See 20 C.F.R. § 416.964(b)(3). Moreover, the VE identified two jobs, which the ALJ subsequently relied on, that require the lowest level of language development as set forth in the DOT.[17] Thus, Ms. Morro's argument that the ALJ failed to resolve a conflict between the VE testimony and the DOT because the job identified were inconsistent with Ms. Morro's low intelligence, limited education, and reading anxiety is without merit. Finally, the Tenth Circuit, although not directly addressing the question of what levels of language development are consistent with simple, routine, repetitive work, as is the case here, held in an unpublished case that an RFC limiting a claimant to unskilled work involving simple and repetitive tasks included the “lowest educational profile.” See Davison v. Colvin, 596 Fed.Appx. 675, 682 (10th Cir. 2014) (rejecting a claimant's argument that the ALJ's RFC limiting him to unskilled work failed to account for his borderline intellectual functioning and alleged illiteracy because the RFC included the lowest language development of one). As such, the Court is persuaded that the ALJ's mental RFC limiting Ms. Morro to simple, routine, repetitive work included the lowest language development and accounted for Ms. Morro's low intelligence, limited education, and reading anxiety. Id.

         The Court finds that Ms. Morro has failed to present any evidence that there was a conflict between the VE testimony and the DOT regarding her low intelligence, limited education and reading anxiety. The Court further finds that the jobs the VE identified and the ALJ relied on in his step five findings properly accounted for Ms. Morro's low intelligence, limited education and reading anxiety. As such, there is no reversible error as to this issue.

         B. Substantial Evidence Supports the ALJ's Determination

         Ms. Morro broadly argues that the ALJ's decision is contrary to and not supported by substantial evidence. In support, she asserts (1) that the ALJ failed to assign proper weight to the medical opinions and “other sources”; (2) that the ALJ failed to properly weigh State agency examining psychological consultant Dr. Westbrook's opinion; and (3) that the ALJ failed to properly account for Ms. Morro's pain and other symptoms. (Doc. 20 at 7-12.)

         1. Evaluation of ...


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