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Simon v. Commissioner of Social Security Administration

United States District Court, W.D. Oklahoma

March 30, 2017

MIKKI J. SIMON, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (ECF No. 14) (TR.). Both parties to the proceedings have consented to the exercise of jurisdiction by a United States Magistrate Judge to order the entry of a final judgment. Upon review of the pleadings, the record, and the parties' briefs, the Commissioner's decision is AFFIRMED.

         I. PROCEDURAL HISTORY

         Plaintiff filed her applications for DIB and SSI alleging disability beginning October 3, 2011. (TR. 14). The applications were denied on initial consideration and on reconsideration at the administrative level. At Plaintiff's request, the Administrative Law Judge (ALJ) held a de novo hearing on June 19, 2014. (TR. 41-71). Plaintiff appeared with a non-attorney representative and testified in support of her application. A vocational expert (VE) also testified at the request of the ALJ. The ALJ issued his decision on September 17, 2014, finding that Plaintiff was not disabled. (TR. 18-33). The Appeals Council denied Plaintiff's request for review, and the decision of the ALJ became the final decision of the Commissioner. (TR. 1-4). This judicial appeal followed.

         II. THE ADMINISTRATIVE DECISION

         In addressing Plaintiff's applications, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520; 416.920. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity from her alleged onset date. (TR. 20). At step two, the ALJ identified Plaintiff's severe impairments: major depressive disorder; generalized anxiety disorder with agoraphobia; post-traumatic stress disorder (“PTSD”); Takotsubi cardiomyopathy; back pain; methamphetamine abuse (in remission); and headaches. (TR. 20). At step three, the ALJ found that Plaintiff does not have a physical or mental impairment or combination of impairments that meets or equals any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, App'x. 1 (TR. 21).

         After a thorough discussion of the evidence in the record, the ALJ assessed Plaintiff's residual functional capacity (RFC):

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she is limited to performing simple tasks with routine supervision; limited to just occasional contact with co-workers and supervisors; would have no work-related contact with the general public; and would need to avoid concentrated exposure to fumes, dust and poorly ventilated areas.

(TR. 24). The ALJ compared Plaintiff's past relevant work to her RFC and determined she could not perform any of her past jobs as motor vehicle assembler, sewing machine operator, trailer assembler or sales clerk/cashier. (TR. 31).

         At step five, the ALJ considered the testimony of the VE and determined there were jobs existing in significant numbers in the national economy that Plaintiff could perform including Housekeeper/cleaner; Marker; and Laundry folder. (TR. 32). Thus, at step five of the sequential evaluation, the ALJ determined Plaintiff is not disabled.

         III. ISSUES PRESENTED

         In two related propositions (A and C), Plaintiff takes issue with the ALJ's mental RFC. The first challenge is based on the ALJ's alleged error in failing to incorporate his step two and three findings-that Plaintiff has moderate difficulties in maintaining concentration, persistence or pace-directly into the RFC. (ECF No. 20:4-5). Additionally, Plaintiff challenges the ALJ's failure to specifically discuss written comments on the telephone application for benefits regarding Plaintiff's ability to remember and answer questions. (ECF No. 20:7-8).

         Plaintiff also challenges the ALJ's physical RFC in two related propositions (B and D). First, Plaintiff contends the ALJ's failure to “perform a function-by-function assessment” of her physical limitations at step four constitutes reversible error. (ECF No. 20:5-7). Second, Plaintiff asserts the physical RFC assessment that Plaintiff can perform light work is insufficient because no medical opinion specifically refers to her ability to do light work. (ECF No. 20: 8-9).

         In proposition E, Plaintiff contends the ALJ did not sustain her burden of proof at step five where he identified three jobs Plaintiff could still do despite her impairments. Plaintiff contends a reasoning level of 2, assigned by the authors of the Dictionary of Occupational Titles (DOT) to two of the three jobs identified at step five by the VE, is inconsistent with the ALJ's conclusion that Plaintiff can do only simple work. (ECF No. 20:9-10).

         Finally, in proposition F, Plaintiff challenges the ALJ's credibility determination as “unsupported by … substantial evidence.” (ECF No. 20:10-13).

         IV. STANDARD OF REVIEW

         This Court reviews the Commissioner's final decision “to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. A strue, 602 F.3d 1136, 1140 (10thCir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

         V. ANALYSIS

         A. Mental RFC

         Plaintiff asserts the ALJ's findings at steps two and three-that Plaintiff had moderate difficulties maintaining concentration, persistence, or pace-should have been incorporated directly into the RFC. (ECF No. 20:4-5). But the law on this issue is clearly settled: findings made in consideration of the Paragraph B criteria included in the Listing of Impairments for mental disorders, in this case Listings 12.04 and 12.06, are not an RFC determination. See Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *4 (July 2, 1996) (“The adjudicator must remember that the limitations identified in the ‘paragraph B' ... criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.”).

         At steps two and three of the sequential analysis, the ALJ determines whether the claimant has a severe impairment (step 2) and whether the impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (step 3). Here, the ALJ found at step three of the sequential process of evaluation that Plaintiff had only a moderate-not marked-limitation of concentration, persistence and pace. (TR. 23). Listings 12.04, 12.06, paragraph B. “The ALJ's finding of a moderate limitation in concentration, persistence, or pace at step three does not necessarily translate to a work-related functional limitation for the purposes of the RFC ...


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