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Beier v. Colvin

United States District Court, Tenth Circuit

August 12, 2013

JOSEPH BEIER, Plaintiff,
v.
CAROLYN W. COLVIN, [1]Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA, United States District Judge.

Plaintiff Joseph Beier brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner’s denial of plaintiff’s applications for a period of disability, disability insurance benefits, and supplemental security income under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 and 1381. Finding no error in the Commissioner’s analysis, the court affirms the decision of the Commissioner.

I. Background

Plaintiff protectively filed for a period of disability, disability insurance benefits, and supplemental security income in 2009. The agency denied his applications initially and upon reconsideration, and plaintiff requested a hearing before an administrative law judge (“ALJ”). Plaintiff’s request was granted, and plaintiff appeared with an attorney for a hearing before ALJ Christina Young Mein on May 12, 2011. At the hearing, the ALJ received testimony from plaintiff and from a vocational expert (“VE”).

Thereafter, the ALJ issued a decision on June 7, 2011. She determined that plaintiff has not performed substantial gainful activity since his alleged onset date, and that he has severe impairments including depressive disorder, alcohol abuse, hypertension, chronic obstructive pulmonary disease, and degenerative disc disease of lumbar spine. The ALJ found that plaintiff’s impairments meet or equal the severity of a listed impairment. The ALJ determined that plaintiff would continue to have a severe impairment or combination of impairments even if he stopped using alcohol, but she also found that plaintiff would not have an impairment or combination of impairments that meets or medically equals a listed impairment if he stopped the substance abuse.

The ALJ considered the evidence and assessed plaintiff’s residual functional capacity (“RFC”) if plaintiff stopped the substance use. She assessed plaintiff with the RFC to lift and carry 50 pounds occasionally and 25 pounds frequently, sit for 6 hours out of an 8 hour workday, and stand and walk for 6 hours out of an 8 hour workday. The ALJ determined that plaintiff could occasionally climb, stoop, kneel, crouch and crawl, and that he must avoid concentrated exposure to extreme cold, humidity, and excessive vibration and moderate exposure to irritants such as fumes, odors, dusts, gases and poorly ventilated areas. She concluded that plaintiff must avoid operational controls of moving machinery and unprotected heights, and that he is limited to simple, routine, repetitive tasks with only occasional interaction with the public and co-workers.

Based on the RFC, the ALJ determined plaintiff is unable to perform his past relevant work. But she found that there are a substantial number of jobs existing in the economy of which plaintiff is capable, represented by jobs such as linen room attendant, industrial cleaner, and hand packer. The ALJ concluded plaintiff is not disabled within the meaning of the Act and denied plaintiff’s applications.

Plaintiff sought, but was denied, Appeals Council review of the ALJ’s decision. Therefore, that decision became the final decision of the Commissioner. Plaintiff timely filed this case requesting judicial review of the Commissioner’s decision.

II. Legal Standard

Section 405(g) of the Social Security Act allows an individual to seek judicial review of any final decision of the Commissioner made after a hearing to which the individual was a party. The court’s role in conducting this review is to determine (1) whether the ALJ applied the correct legal standard, and (2) whether the factual findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g) (stating that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”). In completing this review, the court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotation and citation omitted).

Under Section 423(d) of the Social Security Act, a person is under a disability when the individual can establish that he is unable to engage in any substantial gainful activity by reason of a physical or mental impairment that is expected to result in death or to last for a continuous period of not less than twelve months. To evaluate disability, the Commissioner uses a five-step sequential process. 20 C.F.R. § 416.920. Step one requires the Commissioner to determine whether the claimant has engaged in substantial gainful activity. Id. Step two requires the Commissioner to determine whether the claimant has a severe medical impairment. Id. Step three requires the Commissioner to determine whether the severity of the claimant’s impairments meets or equals a listing and the duration requirement. Id.

After evaluating steps one through three, the Commissioner assesses the claimant’s RFC. The Commissioner then uses the RFC for steps four and five. Step four requires the Commissioner to consider the claimant’s RFC and determine whether the claimant can perform past relevant work. Id. Step five requires the Commissioner to determine whether—considering the claimant’s RFC and vocational factors of age, education and work experience—the claimant is able to perform other work in the economy. Id. In steps one through four, the burden is on the claimant. Williams v. Bowen, 844 F.2d 748, 751 n.2 (10th Cir. 1988). In step five, however, the burden shifts to the Commissioner. Id. at 751.

III. Analysis

Plaintiff alleges the ALJ erred at step five of the evaluation process because the ALJ utilized jobs from the VE that did not fall within plaintiff’s assessed RFC. He contends there are conflicts between the VE testimony and the Dictionary of Occupational Titles (“DOT”) job descriptions for each of the representative jobs. Plaintiff notes the DOT job description for the linen room attendant requires a reasoning level of 3, which he contends conflicts with the VE’s testimony that this job requires only simple, routine, repetitive tasks. Plaintiff argues the DOT job description for industrial cleaner requires frequent stooping and crouching, which he asserts conflicts with the VE’s testimony that this job only requires stooping or crouching on an occasional basis. Plaintiff explains the DOT job description for hand packer requires frequent exposure to atmospheric conditions, which he argues conflicts with the VE’s testimony that this job ...


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