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Oliver v. Colvin

United States District Court, E.D. Kentucky, Southern Division

November 12, 2014

RHONDA OLIVER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Rhonda Oliver, Plaintiff: Eric Christopher Conn, LEAD ATTORNEY, Eric C. Conn, P.S.C., Stanville, KY.

For Commissioner of SSA, Defendant: John S. Osborn, III, U.S. Attorney's Office, EDKY, Lexington, KY.

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, United States District Judge.

This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Rhonda Oliver (" Oliver" or " the Claimant") and Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (" the Commissioner"). [Record Nos. 11, 12] Oliver argues that the administrative law judge (" ALJ") assigned to her most recent case erred in finding that she is not entitled to a period of disability and Disability Insurance Benefits (" DIB") under the Social Security Act (" Act"). More specifically, she contends that the ALJ erred in accepting the testimony of a Vocational Expert (" VE") regarding jobs in the national and regional economy that she was able to perform.

Oliver seeks reversal of the ALJ's decision and remand for an award of benefits. However, the Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed. For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief requested by Oliver.

I.

On April 21, 2009, Oliver applied for a period of disability and DIB under Title II of the Act. She alleged a disability beginning April 5, 2007. Following the denial of that claim, Oliver requested and received an administrative hearing before ALJ Sheila Lowther. Thereafter, ALJ Lowther issued a decision on March 3, 2011, finding that Oliver was not entitled to benefits under the Act. [ See Administrative Transcript, " Tr., " at pp. 62-73.] In relevant part, the ALJ found that Oliver had a number of severe impairments ( i.e., chronic obstructive pulmonary disease, degenerative disc disease with chronic low back pain, and dysthymic disorder -- a mild, but long-term form of depression), and could not perform her past work and or other identified, work-related activities.[1] Notwithstanding these findings, ALJ Lowther concluded that there were a significant number of jobs in the national economy that Oliver could perform. Based on the testimony of Vocational Expert Christopher Rymond, the ALJ identified the following jobs that a hypothetical individual with the Claimant's restrictions could perform: light bench assembly work (DOT # 722.687-010)[2] sedentary assorting (DOT # 521.687-086); and light checking (DOT # 727.687-054). The VE identified these jobs as " unskilled" and having a SVP of 2. [Tr., at p. 72][3]

Having been denied disability benefits in connection with her first application, Oliver filed a second application for DIB less than three weeks later (on March 22, 2011). [Tr., at p. 234-35] Although Oliver again asserted an alleged onset date of April 5, 2007 for this claim, based on the earlier administrative determination, evaluation of the second claim was limited to whether the Claimant could establish a qualifying disability during the period from March 4, 2011, through March 31, 2012. ( See Tr., at p. 11, citing Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997), and Dennard v. Secretary of HHS., 907 F.2d 598 (6th Cir. 1990).)

Oliver's second claim was denied initially and upon reconsideration. As a result, Oliver requested a second administrative hearing. [Tr., at pp. 121-22] That request was granted; however, Oliver was unable to attend the hearing which was initially scheduled for February 27, 2012. [Tr., at pp. 54-58] As a result, the hearing was continued until July 2, 2012. [Tr., at pp. 27-53][4] Oliver, along with her attorney David Hicks, appeared before ALJ Roger L. Reynolds on that date. Vocational expert (" VE") Laura Whitten also testified at the hearing by telephone.[5] In a decision dated July 26, 2012, ALJ Reynolds found that Oliver was not disabled under sections 216(i) and 223(d) of the Act. [Tr., pp. 11-21]

Oliver was forty-one years old at the time of the ALJ's decision. She has a high school education and prior work experience as a hospital admissions clerk. [Tr., pp. 30-31] Olliver alleges that she is disabled due to back pain, breathing problems, headaches and anxiety. [Tr., at pp. 14, 31-43, 247, 259.]

After reviewing the record and considering the testimony presented during the administrative hearing, the ALJ concluded that Oliver suffers from the following severe impairments:

COPD secondary to continued nicotine abuse, status post right lower lung lobectomy in 2000; degenerative disc disease of the lumbar spine with chronic low back pain; dysthymic disorder; anxiety disorder; migraine headaches; peptic ulcer disease; history of kidney stone; and history of sepsis in lungs post a uterine ablation procedure.

[Tr., at p. 14] ALJ Reynolds further concluded that the Claimant suffered from the several non-severe impairments which included polymenorrhea (abnormal uterine bleeding); opioid dependency, allegedly in remission; and obesity. [ Id.] Notwithstanding these impairments, ALJ Reynolds found that Oliver retained the residual functional capacity (" RFC") to perform a limited range of light and sedentary work[6], subject to the following limitations:

no climbing or ropes, ladders or scaffolds; occasional climbing of stairs or ramps; no aerobic activities such as running or jumping; no exposure to pulmonary irritants such as dust, smoke, gases, fumes, temperature extremes or excess humidity; no exposure to concentrated vibration; occasional stooping, kneeling, crouching or crawling; she requires entry level work with simple repetitive tasks in a low stress environment, that is, no rigid production quotas, recurring deadlines or fast paced work; no frequent changes in work routines; claimant should work in an object oriented environment with only occasional and casual contact with coworkers, supervisors or the general public.

[Tr., p. 18]

The issue presented in this case centers on the VE's testimony regarding whether jobs exist in the economy that a can be performed by a person with the above-listed restrictions. VE Whitten described Oliver's past work as semi-skilled in terms of the level of exertion required and having an SVP of 4. Further, VE Whitten testified that the skills used by Oliver in her past employment could be transferred to other jobs classified as either sedentary or light in their level of exertion. The ALJ then presented the VE with a series of hypothetical questions containing additional restrictions relating to the Claimant. The following exchange occurred during the administrative hearing:

Q. . . . If we assume first of all a person of Ms. Oliver's age, education, and experience with the capacity to -- I want to say lift and carry up to 10 pounds frequently, 20 pounds occasionally, with no climbing of stairs or ramps; no aerobic activities such as running or jumping; no exposure to pulmonary irritants such as dust, smoke, gases, fumes, temperature extremes, or excess humidity; no exposure to concentrated vibration; occasional stooping, kneeling, crouching, or crawling; further requires entry-level work with simple, repetitive tasks in a low-stress environment, with no production quotas, no recurring deadlines or fast-paced assembly work, no frequent changes in work routines, and should work in an object-oriented environment with only occasional and casual contact with coworkers, supervisors, or the general public.
Could such a person perform any of Ms. Oliver's past relevant work?
A. No, Your Honor. Based on the ability to only do entry-level, simple routine, object-oriented work in a low-stress environment, the individual would ...

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