ERIN L. SETSER, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying his claims for a period of disability and disability insurance benefits (DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI of the Social Security Act (Act). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision.
Plaintiff protectively filed his applications for DIB and SSI on November 12, 2008, alleging disability since September 25, 2008,
By written decision dated November 30, 2010, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe-chronic obstructive pulmonary disease (COPD), hypertension, obesity, depressive disorder NOS, anxiety disorder NOS, panic disorder without agoraphobia, and cognitive disorder. (Tr. 14). However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 14). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
(Tr. 16). With the help of a vocational expert (VE), the ALJ determined Plaintiff was not capable of performing his past relevant work, but that there were other jobs Plaintiff would be able to perform, such as production work — nut and bolt assembler, and bench assembler. (Tr. 19-20). Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied the request on April 6, 2012. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc. 1). Both parties have filed briefs and this case is before the undersigned for report and recommendation. (Docs. 6, 7).
Plaintiff was born in 1967 and received a GED. (Tr. 152, 168). Plaintiff worked for a termite and pest control company from 1992 until 2001, and then started his own pest control business, which he sold in 2008. (Tr. 34, 39). On September 26, 2008, Plaintiff presented himself to the Phelps County Regional Medical Center because of increased shortness of breath, a cough, and chest pain. (Tr. 274). At that time, he reported that he quit smoking two weeks prior thereto. (Tr. 276). A chest x-ray demonstrated "tree-in-bud opacities" seen in the right and left upper lobes, which was reported as possibly due to bronchopneumonia, fungal or mycobacterial infection, and there was right basilar
On October 7, 2008, Plaintiff presented himself to Baxter Regional Medical Center. (Tr. 238). It was noted that he had been discharged from a hospital the week before, on several medications, which he stated he did not have the money to fill. (Tr. 238). Plaintiff had become increasingly short of breath since leaving the prior hospital. (Tr. 238). It was reported that Plaintiff quit smoking in September, but had been smoking a pack of cigarettes a day for several years. (Tr. 238). The impression was:
(Tr. 239). It was noted that Plaintiff had continued to smoke, was feeling a little bit better wearing oxygen on the morning of the evaluation, and it was felt that Plaintiff's symptoms were most consistent with COPD exacerbation. (Tr. 248). The attending physician reported that he believed the precipitating factor warranting Plaintiff's admission was his noncompliance with medications, and that the hospital had arranged for outpatient medications, so that he would not have any trouble obtaining those. (Tr. 249).
On November 5, 2008, a visit to St. Johns Mercy Med/St. Roberts revealed that Plaintiff had quit smoking, and was assessed as follows:
(Tr. 301).
A spirometry test performed on November 11, 2008, indicated there was minimal obstructive lung defect. (Tr. 269).
On November 12, 2008, a visit to St. Johns Mercy Med/St. Roberts indicated Plaintiff's blood pressure was "much better now that he is back on meds," and the assessment was as follows:
(Tr. 304). A follow up visit to St. Johns on November 25, 2008, revealed that Plaintiff was taking his medication as instructed, there was increased nonproductive cough, and he was assessed with COPD, borderline controlled. (Tr. 308).
On February 27, 2009, Plaintiff presented himself to Dr. Lonnie Robinson for a check up on his depression, generalized anxiety, hypertension, dyslipidemia, obesity, and COPD. (Tr. 332). His blood pressure and depression had improved, but were not totally resolved. (Tr. 332). The impression was:
(Tr. 332).
On March 10, 2009, and April 8, 2009, Plaintiff went to Ozarks Medical Center, where he was assessed with COPD, HTN, and depression. (Tr. 327).
On April 16, 2009, Dr. John Scribner, of Salem 1st Care, wrote a letter "To Whom It May Concern" stating that he had been providing medical care for Plaintiff since March 10, 2009, and that he suffered from a pulmonary disease which caused severe shortness of breath, and that due to this condition, Plaintiff had difficulty with exertion, and became easily fatigued. (Tr. 330).
On May 5, 2009, Plaintiff visited with Dr. Robinson to discuss disability. (Tr. 333). Dr. Robinson advised Plaintiff that he did not do functional capacity evaluations. (Tr. 333). He further noted that personally, he thought Plaintiff's shortness of breath and decreased stamina could be "adequately treated by weight loss, which I do not think he has pursued adequately." (Tr. 333).
On May 14, 2009, non-examining consultant Dr. Jim Takach completed a Physical RFC Assessment. (Tr. 338-345). Dr. Takach opined that Plaintiff retained the ability to perform light work, with certain limitations. (Tr. 339-342).
On July 21, 2009, a Mental Diagnostic Evaluation was conducted by Robert L. Hudson, Ph.D., of Hudson Psychological Service. (Tr. 346-348). Dr. Hudson noted that Plaintiff smoked about one pack of cigarettes per week, was 5'10" tall and weighed 260 pounds. (Tr. 347). He further opined that depression seemed secondary to Plaintiff's medical situation and sequelae, and diagnosed Plaintiff as follows:
(Tr. 348). Dr. Hudson concluded that Plaintiff would be able to manage only in a limited way as he became winded very easily; that Plaintiff was doing nothing social other than having a woman for whom he cared; had no significant limitations in communication ability; had no significant mental/cognitive limits on basic work-like tasks, i.e. his basic problem was that he could not physically do the work; that he had limits on the ability to attend and sustain concentration on basic tasks; and had no significant limits on persistence in completing tasks or completion of tasks in a timely fashion, except to note his slowness to respond. (Tr. 348).
On July 23, 2009, a Mental RFC Assessment was completed by Kay Cogbill. (Tr. 351-353). She found Plaintiff to be moderately limited in seven categories and not significantly limited in twelve categories. (Tr. 353). Dr. Cogbill concluded that Plaintiff was able to perform work where interpersonal contact was incidental to work performed, e.g. assembly work, where complexity of tasks was learned and performed by rote, few variables, little judgment, and where supervision required was simple, direct and concrete. (Unskilled). (Tr. 353).
Dr. Cogbill also completed a Psychiatric Review Technique form on July 23, 2009, and concluded that Plaintiff had: a moderate degree of limitation in difficulties in maintaining social functioning and in maintaining concentration, persistence or pace; a mild degree of limitation in restriction of activities of daily living; and no episodes of decompensation, each of extended duration. (Tr. 365).
On August 27, 2009 and October 3, 2009, Plaintiff presented himself to Salem 1st Care, complaining of pain with exertion under his left breast around to mid back. (Tr. 404, 406).
On December 3, 2009, Plaintiff presented himself to Mountain Home Christian Clinic, stating that he was trying to quit smoking and needed help tapering off. (Tr. 419). The impression given was:
On January 24, 2010, Plaintiff presented himself to Baxter Regional Medical Center, complaining of right chest pain. (Tr. 390). A chest x-ray at that time revealed some mild atelectasis and no definite infiltrates were noted. A chest x-ray and right rib series revealed no grossly displaced rib fracture and the chest x-ray was clear with no hemothorax or pneumothorax.
(Tr. 391). On February 4, 2010, Plaintiff presented himself to Ozarks Medical Center, complaining of chest pains under his left breast. It was noted that he smoked 5 cigarettes per day. (Tr. 398).
On March 10, 2010, an Adult Diagnostic Assessment was completed, and the diagnosis was:
(Tr. 427).
On June 23, 2010, a Spirometry Report indicated that Plaintiff's lung age was 84 years, and the interpretation of the test was "Severe airway obstruction, with low vital capacity. Post bronchodilator test markedly improved." (Tr. 430).
On June 23, 2010, a General Physical Examination was performed by Dr. Shannon Brownfield. (Tr. 435-440). Dr. Brownfield diagnosed Plaintiff as follows:
(Tr. 439). In addition, Dr. Brownfield noted that she believed Plaintiff was feigning the extent of his symptoms. (Tr. 440).
This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole.
It is well established that a claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity.
The Commissioner's regulations require him to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant had engaged in substantial gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing past relevant work; and (5) whether the claimant was able to perform other work in the national economy given his age, education, and experience.
In his brief, Plaintiff argues that substantial evidence does not provide a basis for relying on the existence of jobs found by the ALJ. (Doc. 6 at p. 2). In essence, Plaintiff takes issue with the ALJ's reliance on the VE's testimony in response to the hypothetical question the ALJ posed to the VE. Plaintiff contends that he is unable to perform the jobs the VE identified.
The ALJ proposed the following hypothetical to the VE:
(Tr. 72-73).
In response to the ALJ's hypothetical question, the VE stated that the only thing available would be some type of production work, and stated that one example would be a production worker, or nut and bolt assembler. (Tr. 73). The VE noted that the DOT listed this job as light, unskilled, and level 2. However, he testified that the U.S. Publishing Employment Survey indicated that under the industry designation of production worker helper, there were approximately 13,200 jobs in the U.S. and about 450 in Arkansas at a sedentary, unskilled 2 level, with nut and bolt assembler being a sample. (Tr. 73). The VE also testified that as to the bench assembler, which is listed in the DOT as light, unskilled, and level 2, the U.S. Publishing Employment Survey indicated there were approximately 11,000 production workers in the U.S. and approximately 200 in Arkansas that do work at a sedentary, unskilled 2 level. (Tr. 73). Finally, the VE testified that a hand packer is listed in the DOT as medium, unskilled and level. However, U.S. Publishing Employment Survey indicated there were about 32,000 jobs in the U.S. and about 325 in Arkansas under the production worker category that do work at a sedentary, unskilled 2 level. (Tr. 73-74).
Plaintiff takes issue with the VE's use of the U.S. Publishing Employment Survey, arguing that this is not a publication of the government or one which the Social Security Administration has given administrative notice of acceptance and credibility. (Doc. 6 at p. 7).
The Court notes that 20 C.F.R. § 404.1566(d) provides that the Commission will take administrative notice of reliable job information available from various governmental and other publications, and gives examples of such publications in subsection (1)-(5). The Court also notes that the publication utilized by the VE in this case, the U.S. Publishing Employment Survey, is not included in this list. However, as pointed out by Defendant, in 20 C.F.R. § 404.1566(e), the use of the services of a VE or other specialist is authorized.
In this case, not only did the ALJ rely on testimony by the VE, but the VE also explained the conflict between the DOT and his jobs by utilizing a publication. The Eighth Circuit has held that the DOT definitions "are simply generic job descriptions that offer the approximate maximum requirements for each position, rather than their range."
Plaintiff also argues that two of the jobs suggested by the VE — bench assembler and hand packager — require a reasoning level of 2, which he claims exceeds his RFC for "work where the complexity of tasks is learned and performed by rote, with few variables and little judgment required." In his RFC, the ALJ found that the Plaintiff was "further limited to work where interpersonal contact is incidental to the work performed, the complexity of tasks is learned and performed by rote, with few variables and little judgment, and the supervision required is simple, direct and concrete." (Tr. 16).
In
As was found in
The Court is of the opinion that substantial evidence supports the ALJ's phrasing of the hypothetical to the VE, and there was no conflict between the VE's testimony and the DOT, and the ALJ properly relied on the testimony.
Based upon the foregoing, the Court recommends affirming the ALJ's decision, and dismissing Plaintiff's case with prejudice.
