PATRICIA S. HARRIS, Magistrate Judge.
Plaintiff Timothy Craig Duke ("Duke") appeals the final decision of the Commissioner of the Social Security Administration (defendant "Berryhill") to deny his claim for Disability Insurance Benefits ("DIB"). Duke first contends he was prejudiced when the Appeals Council did not allow him to submit additional information. He then cites three alleged errors of the Administrative Law Judge ("ALJ"): error in assessing his credibility, in determining his residual functional capacity ("RFC"), and in relying upon the vocational expert's testimony regarding transferable skills and vocational adjustment. For his fifth and final argument, Duke contends remand or reversal is necessary because of new material evidence. The parties ably summarized the medical records and the testimony given at the administrative hearing on December 22, 2015. (Tr. 31-49). The Court has carefully reviewed the record to determine whether there is substantial evidence to support Berryhill's decision. 42 U.S.C. § 405(g).
Administrative Hearing: Duke and a vocational expert testified at the administrative hearing.
In describing his daily activities, Duke said he never recovers from sleep regardless of whether he sleeps 10-14 hours at night. He also indicated he slept "an hour or two at lunch every day" and had "some difficulty with memory and confusion, very slight." (Tr. 38). According to Duke, he takes multiple drugs to counter the sleep issues, and the side effects include hypertension and irritability. He also found the medications were not particularly effective, and used caffeine and nicotine
(Tr. 42). Duke also stated the nicotine, coffee, and medication no longer are effective for him. Duke testified Wylie first informed him of the sleep disorder in 2001. Also, Wylie first informed Duke that he was disabled when Duke began the application process for social security retirement benefits.
The ALJ posed a hypothetical question to the vocational expert, asking her to assume a worker over 60 with past relevant skilled work as a dentist, who could perform medium work except he could never climb ladders and scaffolds, could only occasionally balance, and must avoid unprotected heights, moving mechanical parts, and hazards. The expert testified that such a worker could perform his past relevant work as a dentist. Also, the vocational expert indicated such a worker could perform the past relevant work even if the work level were changed from medium to light in the hypothetical question. The vocational expert also testified that some of the hypothetical worker's skills would be transferable and, as a result, the worker could perform the sedentary jobs of insurance checker and claims examiner. (Tr. 34-48).
In her January 2016 decision, the ALJ found Duke to have severe impairments of obstructive sleep apnea, narcolepsy, ischemic heart disease—status-post coronary bypass,
The ALJ's decision was issued on January 26, 2016. Duke appealed to the Appeals Council, which acknowledged the appeal in a letter dated March 14, 2016. This letter also informed Duke that he could submit additional new and material evidence, and further stated that the Appeals Council would "not act for 25 days." (Tr. 6). Despite this representation, the Appeals Council denied Duke's appeal on March 31, 2016, seventeen days after the letter. Duke contends he was prejudiced because the Appeals Council did not review a letter (docket entry no. 10-1) from Duke to his attorney explaining the extent to which Duke participated in an elk hunting trip. The one page letter, dated April 11, 2016 (28 days after the Appeals Council's March 14 letter), clarifies that Duke did not hike or hunt like he once did. Instead, the letter states he relaxed while others hunted.
There is no merit to this claim. Duke's second claim for relief, error in his credibility assessment, will be addressed in more detail. However, for purposes of this initial claim we observe that the ALJ mentions medical notes
The ALJ, citing SSR 96-7p and the relevant factors contained therein, concluded Duke's "medically determinable conditions and symptoms are not as severe as alleged." (Tr. 23). Prior to making this determination, the ALJ reviewed Duke's allegations, including those contained in his application, his statements at the administrative hearing, and his responses contained in a Function Report—Adult. The ALJ then considered the medical and psychological evidence in the record, including a reference to the elk hunting trips. The ALJ specifically addressed the February 2016 statement of Wylie that Duke should not practice as a dentist because no treatment was found effective in dealing with Duke's alertness issues. (Tr. 347-348). The ALJ assigned "little weight" to Wylie's opinion,
Initially, we note that the RFC need not mirror the findings of any one physician, as the ALJ is not bound to choose any one physician and adopt his/her findings as the appropriate RFC. Instead, it "is the ALJ's responsibility to determine a claimant's RFC based on all relevant evidence, including medical records, observations of treating physicians and others, and claimant's own descriptions of his limitations." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8
The ALJ, relying upon the testimony of the vocational expert, held Duke could perform his past relevant work as a dentist. In addition, the ALJ, again relying on the vocational expert, ruled that Duke had transferable skills which would permit him to perform other jobs, such as the jobs of insurance checker and claims examiner. Duke contends the ALJ erred in finding he could perform these clerical jobs. Duke submits this was error because the job of dentist and the two clerical jobs are not listed in the same workgroup in the Dictionary of Occupational Titles ("DOT"). Without any citation, Duke argues that being in different DOT workgroups demonstrates his skills are not transferable to the clerical jobs. The vocational expert, however, testified to the transferability of Duke's skills, and explicitly stated her testimony was consistent with the DOT and its companion publication, and that her testimony was also based upon her knowledge, education, training, and experience. (Tr. 48). Without any legal authority to suggest a prohibition from a worker's skills being transferable to jobs in a different workgroup, this argument amounts to a disagreement with the vocational expert's conclusion. Duke makes other similar arguments concerning the transferability of his skills. We find no reason to discount the expert's testimony regarding transferability of skills.
The ALJ's finding on transferability of skills was an alternative finding. This is key, since the primary ruling of the ALJ was that Duke possessed the RFC to perform his past relevant work. Since we find this primary decision is supported by substantial evidence, the discussion regarding the alternative finding of transferable skills is an academic exercise, and any error in that regard would be harmless.
Duke points to the February 2016 form executed by Wylie as new and material evidence mandating remand or reversal. This form was completed after the administrative hearing in December 2015 and prior to the Appeals Council's March 31, 2016 decision. The Appeals Council considered Wylie's statement, titled "Individual Disability Claim Form." (Tr. 1-5, 346-348). The Eighth Circuit Court of Appeals guides our consideration of such evidence:
Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995). Under Mackey, then, our inquiry is whether the ALJ's decision is supported by substantial evidence, including a consideration of Wylie's February 2016 statement. Substantial evidence supports the ALJ's decision, even when Wylie's statement is considered. We reach this conclusion for two reasons. First, Wylie's statement runs counter to the other medical evidence of record, as previously stated. Second, Wylie's statement is not a significant departure from his earlier statement, contained in his undated letter,
In summary, substantial evidence supports the decision of the ALJ, even taking into account the later statement of Wylie submitted to the Appeals Council. The arguments of Duke are without merit. We are mindful that the Court's task is not to review the record and arrive at an independent decision, nor is it to reverse if we find some evidence to support a different conclusion. The test is whether substantial evidence supports the ALJ's decision. See, e.g., Byes v. Astrue, 687 F.3d 913, 915 (8th Cir. 2012). This test is satisfied in this case.
IT IS THEREFORE ORDERED that the final decision of Berryhill is affirmed and Duke's complaint is dismissed with prejudice.
IT IS SO ORDERED.