Blackburn, United States District Judge.
The matter before me is plaintiff's
Plaintiff alleges that he is disabled as a result of arthritis of the wrists following bilateral carpal tunnel release surgery, bilateral osteoarthritis of the shoulders, degenerative disc disease, chronic neck and low back pain, obesity, and depression. After his applications for disability insurance benefits and supplemental security income benefits were denied, plaintiff requested a hearing before an administrative law judge. This hearing was held on November 24, 2012. At the time of the hearing, plaintiff was 57 years old. He has a high school equivalency diploma and past relevant work experience as a bookkeeper, auto parts delivery driver, and pizza delivery driver. He has not engaged in substantial gainful activity since March 20, 2009, his alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to disability insurance benefits or supplemental security income benefits. Although the medical evidence established that plaintiff's physical impairments were severe, the judge concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. Plaintiff's alleged mental impairment were determined to be non-severe. The ALJ found that plaintiff had the residual functional capacity to perform a range of light work with certain postural restrictions. This residual functional capacity was consistent with the all the demands of plaintiff's past relevant work, and therefore, the ALJ found him not disabled at both step 4 of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
A person is disabled within the meaning of the Social Security Act only if his physical and/or mental impairments preclude his from performing both his previous work and any other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). "When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir.1995).
The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled:
20 C.F.R. § 404.1520(a)(4)(i)-(v).
Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires more than a scintilla but less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F.Supp. 553, 556 (D.Colo. 1992). "Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). Further, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Although a reviewing court should meticulously examine the record, it may not reweigh the evidence or substitute its discretion for that of the Commissioner. Id.
Plaintiff claims the ALJ erred in finding that his mental impairment was not severe, in discrediting his subjective reports of pain, and in failing to more specifically delineate the demands of his past relevant work prior to concluding that he was not disabled at step 4. Finding no such reversible error, I affirm.
Plaintiff first faults the ALJ for failing to find that his depression and anger issues constituted severe mental impairments at step 2. The ALJ discussed the minimal evidence related to plaintiff's alleged mental impairments and concluded that these conditions had no more than minimal impact on his ability to perform work-related activities. (Tr. 13-14.) See Social Security Ruling 85-28, 1985 WL
Even if this determination had been in error, however, any such error ultimately would have been harmless. At step 2, the issue is whether the claimant suffers from at least one "severe" medically determinable impairment. See Dray v. Astrue, 353 Fed.Appx. 147, 149 (10th Cir. 2009). "Thus, step two is designed `to weed out at an early stage of the administrative process those individuals who cannot possibly meet the statutory definition of disability.'" Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 156, 107 S.Ct. 2287, 2298, 96 L.Ed.2d 119 (1987) (O'Connor, J., concurring)). Because the conclusion that a claimant has at least one severe impairment requires the ALJ to proceed to the next step of the sequential evaluation, "the failure to find a particular impairment severe at step two is not reversible error as long as the ALJ finds that at least one other impairment is severe." Id. Such is the case here.
Relatedly, I reject plaintiff's argument that the ALJ erred in failing to include any limitations to account for these alleged mental impairments in her step 4 determination of plaintiff's residual functional capacity. The ALJ specifically considered plaintiff's testimony that he had difficulty controlling his temper and was prone to outbursts, but concluded that this evidence was inconsistent with the limited mental health treatment records and plaintiff's testimony that he continued to look for jobs that required interaction with the public. (Tr. 18.)
Plaintiff next claims the ALJ erred in failing to assign greater functional restrictions based on his chronic pain. The Tenth Circuit applies a tripartite test for evaluating subjective complaints of pain:
Musgrave, 966 F.2d at 1375-76 (citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir.1987)). The ALJ cited this standard and then discussed at length plaintiff's allegations regarding his pain and the limiting effects thereof. (Tr. 15-16.) She credited that plaintiff suffered from pain, but noted, appropriately, that "disability is not the inability to work without any pain." (Tr. 19.) See Qantu v. Barnhart, 72 Fed. Appx. 807, 811 (10th Cir.2003); Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986). Ultimately, she concluded that
Plaintiff nevertheless maintains that this determination was flawed insofar as the ALJ concluded that plaintiff had the residual functional capacity to use his hands "frequently"
Although plaintiff further faults the ALJ for failing to more thoroughly discuss the opinion of physical therapist Phyllis Dibbern (see Tr. 390-407), he does not explain how this report supports any limitation on his ability to reach forward, and the court finds nothing therein that addresses this aspect of his functional abilities. (See Tr. 397-398 (reporting results of tests measuring above-eye-level reaching and floor-to-eye-level reaching as "Meets Industrial Standards").) As for Ms. Dibbern's conclusion that plaintiff's capacity for competitive employment was limited due to decreased grip strength and limited fine and repetitive dexterity secondary to pain (Tr. 391), the ALJ found these conclusions inconsistent with plaintiff's abilities as reported to the examiner herself, including particularly the abilities to write for up to two hours and use a computer for up to three hours (see Tr. 395), as well as with plaintiff's testimony that he had no difficulty driving (Tr. 484), which the ALJ noted "requires sitting, reaching, and handling" (Tr. 18).
Moreover, the ALJ noted that Ms. Dibbern was not an acceptable medical source and that no acceptable medical source had imposed limitations on plaintiff's ability to reach. (Tr. 20.) See Social Security Ruling 06-03p, 2006 WL 2329939 at *1 (SSA Aug. 9, 2006). Both the consultative examiner, Dr. Richard Carson (see Tr. 382-384), the state agency physician, Dr. Anthony LoGalbo (see Tr. 45-46) concluded that plaintiff would be able to frequently grasp, finger, and handle. The ALJ gave substantial weight to these contrary opinions, as it was her prerogative to do. (See Tr. 20.) Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir.1988) (conflicts in the evidence are for the ALJ to resolve). Her thorough discussion of the evidence of record sets forth her rationale sufficient to permit meaningful review of her decision. See Wall v. Astrue, 561 F.3d 1048, 1068 (10th Cir.2009). I thus perceive no reversible error in this regard.
Relatedly, plaintiff contends that the vocational expert misclassified the bookkeeper's job.
Second, plaintiff's argument that he could not perform this job because his residual functional capacity should have included greater limitations on his abilities to use his hands and to reach forward assumes that such restrictions were improperly omitted from the ALJ's hypothetical to the vocational expert. I already have concluded that there was no error in the ALJ's residual functional capacity determination, and therefore there was no error in this regard either. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993) (hypothetical propounded to vocational expert need only include such limitations as are supported by evidence).
Finally, I reject plaintiff's suggestion that the inclusion of a limitation to occasional overhead reaching in the residual functional capacity assessment precludes the Bookkeeper position in any event. The ALJ's hypothetical question to the vocational expert specifically included the overhead lifting restriction ultimately imposed, and the vocational expert affirmed that such a restriction would not preclude the bookkeeper position as generally performed. (Tr. 495.) The ALJ requested that the vocational expert inform her if any of her testimony conflicted with the DOT, and the vocational expert did not ever suggest that such a conflict existed. (Tr. 494.)
Given this testimony, there was no conflict apparent on the record before the ALJ. Plaintiff's attorney at the hearing certainly noted none, and nothing in the record suggests that this was "an instance in which the alleged conflict was so `obvious... that the ALJ should have picked up on [it] without any assistance.'" Laughton v. Astrue, 2009 WL 2372352 at *3 (D.Colo. July 30, 2009) (quoting Overman v. Astrue, 546 F.3d 456, 463 (7th Cir.2008)). Accordingly, any error in failing
For these reasons, I find no reversible error in the ALJ's disability determination, which accordingly must be affirmed.
DOT # 210-382-014. The duties of "General Ledger Bookkeeper" are far less comprehensive, described simply as "[c]ompiles and posts in general ledgers information or summaries concerning various business transactions that have been recorded in separate ledgers by other clerks, using calculating or adding machine." DOT # 210-382-046. Nothing in these descriptions clearly supports a conclusion that one requires more use of a computer than the other or otherwise better matches plaintiff's description of his past relevant work.
