United States District Court, D. Nevada
REPORT AND RECOMMENDATION RE: MOTION FOR SUMMARY
JUDGMENT (ECF NO. 16)
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
case involves judicial review of administrative action by the
Commissioner of Social Security denying Harold Mawyer's
claim for disability benefits under Title II of the Social
Security Act. Plaintiff's Complaint (ECF No. 4) was filed
on October 7, 2016. Defendant filed her Answer (ECF No. 10)
on December 30, 2016. Plaintiff filed his Motion for Summary
Judgment (ECF No. 16), on April 17, 2017, and the
Commissioner filed her Cross-Motion to Affirm and Opposition
(ECF No. 18) on May 17, 2017. Plaintiff filed his Reply (ECF
No. 20) on May 30, 2017.
filed an application for supplemental security income on
December 1, 2010. Administrative Record (“AR”)
395-403. The Social Security Administration denied
Plaintiff's claim on June 14, 2011. AR 180-184.
Plaintiff's request for reconsideration was denied on
October 3, 2011. AR 185-188. He requested a hearing before an
Administrative Law Judge (“ALJ”) which was
conducted on June 6, 2013. AR 44-85. The ALJ decided on
August 28, 2013 that Plaintiff was not disabled. AR 153-166.
The Appeals Council granted Plaintiff's administrative
appeal on December 6, 2014, and remanded the claim to the ALJ
to obtain further evidence and to reevaluate certain issues.
AR 174-176. A hearing was conducted on March 23, 2015 before
a different ALJ. AR 86-131. The ALJ issued his decision on
June 15, 2015 and concluded that Plaintiff was not disabled
from the date of his application, December 1, 2010, through
the date of the decision. AR 15-34. Plaintiff's request
for review to the Appeals Council was denied on March 23,
2016. AR 1-3. He then commenced this action pursuant to 42
U.S.C. § 405(g). This matter has been referred to the
undersigned magistrate judge for a report of findings and
recommendations pursuant to 28 U.S.C. §§ 636
(b)(1)(B) and (C).
motion for summary judgment is limited to the issue of
whether the ALJ's assessment of his residual functional
capacity requires a finding of disability in light of the
vocational expert's testimony. Plaintiff does not
challenge the ALJ's findings at steps one through three
of the sequential evaluation process set forth in 20 C.F.R.
§ 404.1520(a)-(f). Nor does he challenge the ALJ's
assessment of his residual functional capacity and the step
four finding that Plaintiff is not capable of performing his
past relevant work.
the March 23, 2015 hearing, the ALJ asked the vocational
expert to assume the following hypothetical individual:
Q. Okay. Given a person of [Plaintiff's] age limited to
sedentary work, all posturals occasional except he could
never climb ladders, ropes, scaffolds. Has a seizure
precaution among other things.
He would need to avoid concentrated exposure chemicals and
pulmonary irritants such as fumes, odors, dust, gases, and
poorly ventilated areas. As a seizure precaution among other
things, he would need to avoid all exposure to hazardous
machinery, unprotected heights, and operation and control of
Additionally, he could have no exposure to extremely bright
or flashing lights such as strobe or search light or
extremely bright sunshine unless he's wearing dark
protective glasses. He would need to avoid, I already
mentioned chemicals and pulmonary irritants.
He's limited to simple tasks typical of unskilled
occupations with no production or pace work, and only
occasional interaction with the public and coworkers. With
those limitations, is there work that such a person could
perform at the sedentary level?
vocational expert testified that the hypothetical individual
could perform the sedentary jobs of addresser, DOT No.
209.587-010, leaf tier, DOT No. 529.687-138, and bander,
hand, DOT No. 929.687-058, which are available in substantial
numbers in the national economy. He testified that the
individual could perform these jobs even if he needed a cane
to ambulate. The individual would not be able to perform
these jobs, however, if he needed a sit/stand option which
allowed him to work by alternating between sitting and
standing. The ALJ asked whether the individual would be able
to perform any sedentary work with the requirement for a
sit/stand option. The vocational expert stated that there was
such work, but it would require contact with the public. AR
then asked the vocational expert to assume that the
individual could have “brief and superficial”
contact. He also broadened the residual functional capacity
assessment to include the ability to perform light exertional
work. The vocational expert responded that the individual
would be able to perform the light exertional level jobs of
parking lot attendant, DOT No. 915.473-0, pari-mutuel ticket
seller, DOT NO. 211.467-022, toll collector, DOT No.
211.462-038, and information clerk, DOT No. 237.367-018,
which also exist in substantial numbers in the national
economy. The vocational expert testified that the
occupational base for the parking lot attendant and
information clerk jobs would be reduced 50 percent based on
the sit/stand option. There would be no such reduction,
however, for the pari-mutuel ticket seller or toll collector
jobs. AR 116-117.
counsel resummarized the ALJ's statement of the
hypothetical individual's residual functional capacity to
include that he would be “[l]imited to simple tasks.
No. production or pace work, and occasional contact with the
public and coworkers.” AR 119-120. The ALJ interjected
that the hypothetical individual's contact with the
public and coworkers would be “[b]rief and
superficial.” AR 120. Plaintiff's counsel thereupon
asked the vocational expert if he considered “brief and
superficial contact with coworkers” to include
supervisors. The vocational expert responded that he did.
Under further questioning, the vocational expert stated that
employees interact with their supervisors occasionally to
less than occasionally. He agreed that the ability to accept
instruction and respond appropriately to criticism from
supervisors is critical to performing unskilled work. AR 120.
vocational expert further testified as follows:
Q. Okay. If the person is limited, well, do you agree that
criticism by its very nature is never superficial?
A. Well, it depends upon who, whether it's constructive
criticism. It depends on the nature of the person.
asked Plaintiff's counsel to distinguish between
criticism and instruction. AR 121. Plaintiff's counsel
referred to the Social Security Program Operations Manual
System (“POMS”), DI 25020.010, Mental
Limitations, stating: “And in paragraph (b) (3) (k), it
speaks in the conjunctive. Accept instruction. . . . And
respond appropriately to criticism from supervisors.”
AR 121. Plaintiff's counsel further stated:
And so the Commissioner promulgates POMS interpreting the
mental residual functional capacity assessment in the statute
and the regulations, and tells us that accepting instruction
and responding appropriately to criticism from supervisors is
critical. And so most vocational experts agree with me that,
that criticism by its very nature no matter how