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Remien v. Colvin

United States District Court, D. Utah, Central Division

March 29, 2017


          Evelyn J. Furse Judge Magistrate


          ROBERT J. SHELBY United States District Judge

         Plaintiff Evangeline Remien filed this action seeking reversal or remand of a final agency decision denying her Disability Insurance Benefits (DIB) under Title II and Supplemental Social Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f.[1] After conducting a hearing, the Administrative Law Judge (ALJ) determined that Remien was not disabled under sections 216(i) and 223(d) of the Social Security Act. Remien appealed the ALJ's decision to the agency's Appeals Council, providing the Council with new medical records and an intellectual evaluation. The Council denied her request for review. Remien then filed this case, appealing the Commissioner of Social Security's final decision.

         The court referred this case to Magistrate Judge Evelyn J. Furse pursuant to 28 U.S.C. § 636(b)(1)(B).[2] Judge Furse issued a Report and Recommendation advising this court to affirm the final decision denying benefits to Remien.[3] Remien filed a timely Objection[4] to Judge Furse's Recommendation, and Defendant Carolyn Colvin, Acting Commissioner of Social Security, filed a Reply.[5]

         The court has conducted a de novo review[6] of the several issues Remien raises in her Objection. As Judge Furse did in her Report and Recommendation, this court reviews the Commissioner's decision to determine whether the proper legal standards were applied and if the record as a whole contains substantial evidence in support of the Commissioner's factual findings-evidence “a reasonable mind might accept as adequate to support a conclusion.”[7]Having carefully considered the parties' briefing, the applicable law, the evidentiary record, and the reasoning in Judge Furse's Report and Recommendation, the court OVERRULES Remien's Objection, ADOPTS Judge Furse's Recommendation, and AFFIRMS the denial of benefits.


         The parties do not take issue with the Procedural History, Factual Background, and Standard of Review portions of Judge Furse's Report and Recommendation, [8] and the court finds Judge Furse has correctly stated therein case history, facts, and applicable legal standards. The court adopts these portions of Judge Furse's Report and Recommendation, and confines its discussion below to the arguments Remien makes in her Objection, concluding they are without merit.

         I. New Evidence Submitted to the Appeals Council

         Remien's first argument concerns new evidence she submitted to the Appeals Council- psychological testing she underwent at her own expense and “evidence of [her] eye impairment.”[9] In her briefing before Judge Furse, she argued that the Commissioner's findings cannot be supported by substantial evidence because the Council too perfunctorily adhered to the ALJ decision in stating:

In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council.
We considered whether the Administrative Law Judge's action, findings, or conclusion is contrary to the weight of evidence of record. We found that this information does not provide a basis for changing the Administrative Law Judge's decision.[10]

         Judge Furse correctly recommended that the court reject Remien's argument on this issue because the Council's consideration of both the psychological testing and the vision impairment evidence was adequate under the Tenth Circuit's decision in Martinez v. Barnhart.[11] Under Martinez, the Council need only state-as it did-that it considered “the additional evidence identified in the attached Order” to have “adequately ‘considered . . . the additional evidence, ' meaning that it ‘evaluate[d] the entire record including the new and material evidence submitted.'”[12]

         And, concerning the substance of the psychological testing evidence, Judge Furse correctly stated that it “does not undercut[] the ALJ's RFC evaluation.”[13] Remien's psychological testing scores were mixed. Some were average and some were below average, including her verbal comprehension score of 74. The testing results indicated that Remien “may struggle to comprehend most of what is said in the workplace or training environment, especially if she is not given time to process the information short to long-term memory.”[14] But as Judge Furse correctly noted, the RFC already limited Remien to “work at a low stress level, low concentration level, and low memory level.”[15]

         Remien argues in her Objection that Judge Furse's Recommendation on this issue is infirm because some of the new evidence she submitted to the Council is not reviewed in detail. Citing generally to Martinez, Remien contends that “the reviewing court is required to decide whether the new evidence undercuts the ALJ's findings” but Judge Furse did not address the argument that the testing contradicts the RFC on the issue of auditory memory limitations, particularly where one job-“call-out operator”- requires verbal abilities. And, she faults Judge Furse for not addressing “new evidence of [her right] eye impairment show[ing] . . . [degradation] from 20/50 . . . to 20/80”, and where the “VE provided substantial reductions in . . . large part due to the vision limitations”, further degradation could lead to further reductions.[16]

         The court finds Remien's arguments unpersuasive. First, the Council adequately reviewed and rejected the new evidence. Second, Judge Furse considered the psychological testing and disagreed that it undercut the RFC. Third, any alleged failure to discuss in great detail the auditory memory limitations as they relate to the call-out operator job is immaterial and harmless, where, as the Commissioner notes, the “outcome of this case would not change” because “33, 150 [laundry aide, housekeeper, and product assembler] jobs . . . exist that [Remien] can perform, not considering the reduced number of call-out operator jobs.”[17]

         And the court cannot conclude that Remien's fleeting argument concerning vision degradation to 20/80 requires remand. The ALJ considered medical records stating that Remien had lost her left eye and that her visual acuity in her right eye without correction was as low as 20/70, but could improve to between 20/40 and 20/50 with correction.[18] The RFC accounted for Remien's already notable vision issues-precluding, for example, “[w]orking around dangerous unprotected heights, machinery or chemicals due to visual loss;” and work requiring “binocular vision due to left eye blindness and reduced vision in the right eye;” or “reading, writing, computer screen work or similar fine vision tasks . . . .”[19] The VE testified concerning a deduction in jobs due to vision and other limitations.[20] Remien does not identify any job suggested in the ALJ's decision that she cannot do due to further vision degradation. Remien fails to persuade this court that the new right eye evidence undercuts the ALJ's decision-making. Her Objection on this issue is OVERRULED.

         II. ALJ's Consideration of all Impairments and Obesity Analysis

         Remien argues that the ALJ failed to consider her obesity in the presence of her knee arthritis and plantar fasciitis. Remien argued before Judge Furse that the “ALJ did not acknowledge [her] obesity, . . . [and] did not engage in the 02-01p analysis”[21] Judge Furse rejected this argument, finding that the “ALJ adequately acknowledged [Remien's] obesity in his decision and its separate and combined impact on her RFC.”[22] The court finds that Judge Furse's discussion of this issue is correct, and adopts it in its entirety. Remien's Objection on this issue[23]essentially restates the arguments she made before Judge Furse, and it is OVERRULED.

         III. ALJ's Consideration of 12.05 Equivalence

         Remien argues that she meets or equals Section 12.05, but the ALJ improperly failed to order a requested consultative examination and thus necessarily failed to evaluate her claimed borderline intellectual functioning.[24] Judge Furse rejected this argument, concluding that substantial record evidence supported the ALJ's finding that she does not “meet or medically equal” a listing equivalence.[25] The court finds Remien's argument was properly rejected for the reasons set forth in Judge Furse's thorough analysis, and adds that it agrees with the Commissioner's contention that Remien reasonably was not sent for a CE because at the time the ALJ made that decision, substantial evidence supported the conclusion that her intellectual functioning did not require it.[26] Remien's Objection to Judge Furse's Report and Recommendation on this issue is OVERRULED.

         IV. ALJ's Hypothetical and Concentration, Persistence, or Pace

         The ALJ found that “[w]ith regard to concentration, persistence or pace” Remien had “moderate difficulties.”[27] Here, the ALJ discussed Remien's claimed difficulties with “concentration and memory, ” and stated that he “allowed for moderate limitations in concentration, persistence or pace in the [RFC].”[28] The ALJ accounted for these deficiencies in the RFC assessment, finding that Remien could only do work requiring low stress, low concentration, and low memory.[29]

         Remien argued before Judge Furse that her limitations were erroneously not included in the hypothetical to the VE. Judge Furse correctly rejected this argument, first explaining that under guidance from the Tenth Circuit, an ALJ need not include limitation findings at steps two and three in the RFC assessment. But as Judge Furse found, Remien's mental deficiencies were appropriately accounted for in the RFC assessment in which the ALJ found Remien could only handle work requiring low stress, low concentration, and low memory-the same specific issues the ALJ discussed under the area of “concentration, persistence or pace.”[30] The court finds that Judge Furse's thorough discussion of this issue is correct, and adopts it in its entirety. Remien's Objection to Judge Furse's Report and Recommendation on this issue is OVERRULED.

         V. The VE Testimony and Number of Jobs

         Remien argued before Judge Furse that the VE erred in testifying that she could perform the job of call-out operator, which requires a language component of three, because Remien only enjoys a language component of two. Judge Furse's Report and Recommendation renders this issue moot, where she eliminated that job from consideration in her analysis.[31] Judge Furse further concluded that assuming the consideration of the call-out operator job was error, the error was harmless where even after excluding that job from consideration there remained a sufficient number of jobs in the national economy (33, 150) Remien could perform-as a product assembler (4, 750 jobs), laundry aide (8, 400 jobs), or housekeeper/cleaner (20, 000 jobs).[32]

         Remien objects to this conclusion on multiple grounds. The court finds none persuasive. First, she observes that Judge Furse failed to “provide judicial support for grouping jobs together.”[33] Here, Remien apparently takes issue with Judge Furse's adding the three categories of jobs she can do to reach the total of 33, 150. In making this passing statement, Remien offers the court no authority upon which to conclude Judge Furse's grouping is improper, such as a citation to a case, regulation, or other legal authority. Nor does she attempt to make such an argument based on the specific circumstances of the case. The court thus rejects Remien's argument on this issue-particularly where she offers no reason why it is improper in this specific case, and it appears that such grouping is something contemplated under both the applicable regulations[34] and guidance from the Tenth Circuit.[35]

         Next, Remien argues that Judge Furse “appears to concede that the ALJ did not provide the full analysis required under Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1999).” The court finds this argument unpersuasive. At the outset, it appears mistaken. Judge Furse stated in her Report and Recommendation that Trimiar required the ALJ to use common sense in weighing “statutory language as applied to a particular claimant's situation, ” and that the ALJ considered the “relevant [Trimiar] factors”-none of which “suggest a shortage of . . . jobs in the regional economy.”[36] Judge Furse correctly concluded that substantial evidence supports the finding that 33, 150 jobs exist in the national economy that Remien can perform. Remien's Objection on this issue is OVERRULED.

         VI. ALJ's Compliance with SSR 00-04p

         Remien argued before Judge Furse that the ALJ breached SSR 00-4p by failing to ask the VE how his testimony corresponded with the Dictionary of Occupational Titles and obtain an explanation for any inconsistencies.[37] She argues that because her level two reasoning suggests she could not do one of the three jobs the VE identified, that of call operator (requiring level three reasoning), the VE's testimony was not consistent with the DOT on that point.[38]

         SSR 00-04p provides:

Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.

         At the hearing, the ALJ had the following exchange with the VE:

Q. And if we were to look at the DOT and SCO and other descriptions of how these jobs are performed, would they mention all of my limitations, in ...

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