United States District Court, D. Nevada
RHINA L. ORTIZ ALEMAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.
KENT J. DAWSON, District Judge.
Presently before the Court is Magistrate Judge George Foley, Jr.'s Findings and Recommendation (#25). Judge Foley recommended that Rhina L. Ortiz Aleman's ("Plaintiff") Motion to Remand (#23) be denied. Plaintiff filed the underlying motion (#23) and the acting Commissioner of Social Security ("Defendant") responded (#24). Plaintiff also filed an Objection to Judge Foley's Findings and Recommendation (#26).
Plaintiff argues in both her initial motion to remand (#23 at 6) and her objection to Judge Foley's Findings and Recommendation (#26 at 7-8) that the Administrative Law Judge ("ALJ") erred by finding Plaintiff not disabled. Plaintiff asserts that the sedentary residual functioning capacity ("RFC") finding coupled with the testimony of Vocational Expert Jack Diamond ("Diamond") necessitated a disability finding. Plaintiff additionally argues that the ALJ was required to take into account vocational expert testimony rather than relying on the Medical-Vocational Guidelines in determining whether Plaintiff was disabled. (#26 at 10).
A. Brief Medical History
As early as 2006, Plaintiff claimed that she had been unable to work because she suffered from a wide variety of ailments such as: numbness on the right side of her body, severe headaches, lower back pain, depression, panic attacks, intermittent hearing loss, and blurred vision. AR 863, 809, 412, 381. Between 2006 and 2009, Plaintiff sought treatment from various doctors who gave her doctors' notes for one- or two-day absences on an intermittent basis, but never approved long-term absences from work. AR 863, 832, 854, 809. Plaintiff was referred to a variety of independent medical examiners to determine whether she was disabled. These examiners found that Plaintiff suffered from anxiety and affective disorders, but also found that she was physically capable of occasionally lifting twenty pounds, frequently lifting ten pounds, and could stand, walk, and sit for a total of six hours in an eight-hour workday. AR 460, 479. Also, her psychological examiner found that she could appropriately interact with the public, supervisors, and co-workers. AR 1234. Multiple doctors noted their concerns with Plaintiff's credibility in describing her ailments due to discrepancies between her medical claims and her medical test results. AR 472, 1231.
B. Administrative Hearing
Plaintiff appeared at an administrative hearing in March 2012. Vocational Expert Diamond was questioned to assist the ALJ in determining whether there were opportunities for Plaintiff to perform past work given her medical condition(s). Diamond testified that Plaintiff's past occupations were categorized as medium-exertion occupations with the exception of casino buffet worker, which was a light-exertion occupation. AR 73. Then, the ALJ posed the following hypothetical to Diamond: "All right. Let me give you a 35-year old woman [who is] able to complete complex instruction and [has a] RFC of light work. If I said that she could do light work, can she do any of her past work?" Id . Diamond testified that she could do one of her past positions, but that there were multiple other positions that could accommodate the hypothetical limitations and those positions existed in significant numbers in both the state and national economy. AR 74. Plaintiff's counsel then posed a separate hypothetical.
Counsel: Assuming an individual at the full range of light work,  but had marked difficulties in maintaining social functioning and concentration, persistence and pace, would that allow for ability to perform any of the past work or any other work activity?
Diamond: Could you give me some percentages or something that would be helpful?
Counsel: Right. No, I mean if I said marked was equivalent to frequent in the sense of up to two-thirds of the day, they would have difficulty maintaining social functioning or concentration, persistence and pace, that would eliminate work activity correct?
Diamond: You're correct - it would.
Counsel: And if I even dropped it down to an occasional basis, up to a third of the workday, not necessarily all the time, but adding up either an eight-hour workday or a five-day workweek, you know, a person would be off task with respect to concentration, persistence or pace or just not able to deal with others, whether coworkers or ...