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Swan v. Colvin

United States District Court, District of Kansas

February 24, 2014

Georgene Swan, Plaintiff,
v.
Carolyn Colvin, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

Plaintiff Georgene Swan has applied for Social Security disability and supplemental security income benefits. Her application was denied by the Administrative Law Judge (ALJ) on May 6, 2011. The Appeals Council declined Swan’s request for review on August 2, 2002. There are three allegations of error by Swan. First, she alleges the ALJ erred in finding, at step 5 of the sequential analysis, that there were jobs which she could perform. Second, she alleges that the ALJ erred in determining her residual functional capacity (RFC). Third, she alleges that the ALJ erred in determining that she had limited credibility.

Plaintiff-claimant Swan was born on December 16, 1962. She has stated that she became disabled beginning September 9, 2009. Swan has a high school education, and has previously worked as a security guard, data-entry clerk, and laborer. She has cited a variety of ailments, including deafness in one ear, depression, diabetes, problems with her left foot, pain in her back and wrist, and complications from a stroke suffered in 2008. The detailed facts of the case, which are incorporated herein, are set forth independently in the ALJ’s opinion (Dkt. 10-2, Tr.13-24), and the brief of Swan (Dkt. 12, at 2-8), and set forth seriatim in the argument section of the Commissioner’s response (Dkt. 17, at 3-10).

The ALJ found that Swan was severely impaired by hearing loss in her left ear, carpal tunnel syndrome, major depressive disorder, posttraumatic stress disorder (PTSD), and personality disorder. She determined, however, that these impairments did not, by themselves or in combination, meet or exceed any listed impairment under 20 C.F.R. part 404, subpart P. appendix 1. Swan thus retained the ability to work at all exertional levels, but she should avoid jobs which require bilateral hearing, unprotected heights, dangerous moving machinery, or exposure to loud noises.

In addition, Swan should have only occasional handling. The ALJ determined Swan was moderately limited in the ability to understand, remember and carry out detailed instructions and interact appropriately with the general public. She should be able to remember, understand and follow simple details; sustain attention in an average 8-hour workday; accept direction from a supervisor; and interact appropriately with others. (Tr. 18-19).

The Commissioner determines whether an applicant is disabled pursuant to a five-step sequential evaluation process (SEP) pursuant to 20 C.F.R. §§ 404.1520 and 416.920. The applicant has the initial burden of proof in the first three steps: she must show that she is engaged in substantial gainful activity, that she has a medically-determinable, severe ailment, and whether that impairment matches one of the listed impairments of 20 C.F.R. pt. 404, subpt P., app. 1. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). If a claimant shows that she cannot return to her former work, the Commissioner has the burden of showing that she can perform other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520(f). See Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).

The court’s review of the Commissioner’s decision is governed by 42 U.S.C. 405(g) of the Social Security Act. Under the statute, the Commissioner’s decision will be upheld so long as it applies the “correct legal standard, ” and is supported by “substantial evidence” of the record as a whole. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).

Substantial evidence means more than a scintilla, but less than a preponderance. It is satisfied by evidence that a reasonable mind might accept to support the conclusion. The question of whether substantial evidence supports the Commissioner’s decision is not a mere quantitative exercise; evidence is not substantial if it is overwhelmed by other evidence, or in reality is a mere conclusion. Ray, 865 F.2d at 224. The court must scrutinize the whole record in determining whether the Commissioner’s conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992).

This deferential review is limited to factual determinations; it does not apply to the Commissioner’s conclusions of law. Applying an incorrect legal standard, or providing the court with an insufficient basis to determine that correct legal principles were applied, is grounds for reversal. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

The court finds no error in the ALJ’s determination that Swan could perform a significant number of jobs in the national economy. Given her RFC, Swan cannot perform skilled or active work. (Tr. 24). She retains the ability, however, to perform roughly 75% of unskilled, sedentary jobs, including that of stuffer (DOT 731.685-014). These conclusions were grounded on the testimony of a vocational expert, and contrary to the argument of the plaintiff in the present appeal, the court finds no grounds for rejecting either the testimony or the resulting conclusions.

Specifically, the plaintiff argues that there is a conflict because the DOT indicates that stuffers require frequent handling, while her RFC restricts her to only occasional handling. This court has recognized, however, that “‘ DOT definitions are simply generic job descriptions that offer the approximate maximum requirements for each position, rather than their range.’” Thongleuth v. Astrue, 2011 WL 1303374, *18 (D. Kan. 2011) (quoting Page v. Astrue, 484 F.3d 1040, 1045 (8th Cir.2007)). Here, the DOT does not explicitly require frequent handling for all persons in the position of stuffer, providing that in some cases such positions can be performed using only occasional handling.

Here, the ALJ explicitly directed the vocational expert to Swan’s respective RFC and her restriction to “occasional handling.” The vocational expert agreed that the need to “frequently handle” would preclude Swan’s past work, but “that stuffer job would remain.” (Tr. 49-50). The vocational expert determined that there were no conflicts between his testimony and the DOT, except that the DOT did not have explicit requirements for bilateral hearing, or the need for an ability to lie down. The expert testified that as to the stuffer job, “those are additional things that I know from my 20 years experience of providing ergonomic job placement, other on the job services.” (Tr. 50). Further, in addition to the stuffer job, the expert also testified that Swan’s restrictions would preclude her from only some 25% of sedentary unskilled positions, and that some 75% of the jobs would remain within Swan’s RFC. (Tr. 48-49). Pursuant to 20 C.F.R. Pt. 404, Subpt. P, App.2 § 2001.00(a), there are approximately 200 unskilled jobs in the sedentary job base.

Next, the plaintiff argues that the ALJ erred in assessing her RFC because it was not adequately grounded in the evidence in light of her obseity, and because it is not grounded in or linked with the medical evidence in the record.

The plaintiff has not demonstrated any error by the ALJ. The ALJ’s opinion carefully explained her conclusions in light of all the medical evidence in the record. (Tr. 19-22). Swan presented no medical evidence from treating medical sources. The ALJ’s narrative of the record gives substantial weight to the reports from Dr. Molly Allen (Psy.D.) and Dr. David Hackney (Ph.D.), which were both found to be well-supported and consistent with the record as a whole. Dr. Allen concluded that Swan should be able to understand and carry out simple instructions, get along with her coworkers and take directions from supervisors. Despite potential difficulties with attention and persistence, she should also be adapt to the demands of a typical work environment. Dr. Hackney believes Swan can do simple tasks in an average amount of time; maintain her concentration over the work day, and meet a work schedule with average performance demands. (Tr. 21). These ...


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