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Mawyer v. Berryhill

United States District Court, D. Nevada

February 28, 2019

HAROLD MAWYER, Plaintiff,
v.
NANCY BERRYHILL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE: MOTION FOR SUMMARY JUDGMENT (ECF NO. 16)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         A. Procedural History

         Plaintiff 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).

         B. Factual Background

         Plaintiff's 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.

         During 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 moving machinery.
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?

AR 114.

         The 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.[1] 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 115.

         The ALJ 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.

         Plaintiff's 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.

         The 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.

AR 120-121.

         The ALJ 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 ...

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