Kenyon v. Commissioner of Social Security Administration, No. 1:2010cv01528 - Document 17 (D. Or. 2012)
Court Description: OPINION AND ORDER. The ALJ's decision that Kenyon was not disabled prior to May 1, 2001, is based on correct legal standards and supported by substantial evidence. The decision of the Commissioner is affirmed and this case is dismissed. IT IS SO ORDERED. Signed on 01/23/2012 by Judge James A. Redden. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION THOMAS KENYON, Plaintiff, CV. 10-1528 RE OPINION AND ORDER v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. REDDEN, Judge: Plaintiff Thomas Kenyon ("Kenyon"), brings this action to obtain judicial review of a tinal decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the decision of the Commissioner is affirmed and this matter is dismissed. /II 1 - OPINION AND ORDER BACKGROUND Born in 1952, Kenyon has worked as a grocery store owner. In September 2003, Kenyon filed an application for disability insurance benefits alleging disability since May 1, 2001, due to fibromyalgia, depression, and migraines. His application was denied initially and updn reconsideration. A hearing was held before Administrative Law Judge ("AU") Madden. In a decision dated June 26, 2006, the ALJ found Kenyon not disabled. Kenyon appealed, and on May 1,2009, Judge Haggelty of this court addressed multiple assigmnents of error and remanded the matter to the agency for further proceedings. Tr. 597615. On November 23, 2009, after a second hearing, the AU again found Kenyon not disabled. The Appeals Council declined to assume jurisdiction, making the AU's decision the final decision of the Commissioner. Kenyon now seeks judicial review of the Commissioner's decision. ALJ's DECISION The AU found Kenyon had medically determinable severe impairments offibromyalgia, depression, and migraines. The AU determined that Kenyon retained the residual functional capacity: to understand, remember, and carry out simple 1-2 step instructions at a light exertionallevel, with occasional postural limitations; including occasionally lifting and/or canying up to 20 pounds; frequently lifting andlor canying up to 10 pounds; standing andlor walking up to 6 hours in an 8-hour workday; sitting up to 6 hours in an 8-hour workday; and engaging in unlimited pushing and pulling to the extent he can lift and carry; the claimant also has occasional postural limitations regarding stooping, kneeling, crouching, crawling, and climbing ladders, ropes, or scaffolds; he also has frequent postural limitations regarding balancing and climbing ramps or stairs, and should avoid direct contact with the general public. 2 - OPINION AND ORDER Tr. 589-90. The AU found that, considering the claimant's age, education, work experience, and residual functional capacity, there were significant numbers of jobs that he could perform, citing those identified by the vocational expert, including laminating machine operator, office helper, and bindery machine operator. The medical records accurately set out Kenyon's medical history as it relates to his claim for benefits. The court has carefully reviewed the extensive medical record, and the parties are familiar with it. Accordingly, the details of those medical records will be set out below only as they are relevant to the issues before the couti. DISCUSSION Kenyon contends that the AU ened because the jobs indicated by the vocational expeli require "level two" reasoning, and that this is inconsistent with the ALl's RFC which limited Kenyon to "simple 1-2 step instructions." Tr. 589-90. The indicated components of the Dictionwy of Occupational Titles ("DOT") are "definitional trailers" accompanying each enl1y in the DOT. They outline a one to six scale corresponding to reasoning levels required for a pmiicular job. DOT App'x C (4th ed. 1991 (available at 1991 WL 688702). The DOT defines "level two reasoning" as: "Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Id. (emphasis added). This language addresses "instructions," is limited to problems involving "few concrete variables," and is thus logically consistent with an ability to cany out simple "tasks." See Abew v. Astrue, 303 Fed. Appx. 567 (9th Cir. 2008)(umep01ied)(finding "simple" tasks 3 - OPINION AND ORDER consistent with level-two reasoning).l Further, this cOUli has specifically found that a claimant limited to simple, routine tasks may perfOlm level-two reasoning. Koch v. As/rue (available at 2009 WL 1743680 at *17) (D. Or. June 15,2009); see also Tracer v. As/rue, 2011 WL 2710271 at *17 (D. Or. July 12, 2011). Kenyon's assertion that the vocational expe1i's testimony impelmissibly deviated from the DOT regarding level two reasoning therefore fails. CONCLUSION For these reasons, the ALJ's decision that Kenyon was not disabled prior to May 1, 2001, is based on conect legal standards and supported by substantial evidence. The decision of the Commissioner is affirmed and this case is dismissed. IT IS SO ORDERED. Dated this ~ day of Janumy, 2012. JAlv,[E >A-:-REDDEN Unit)d States District Judge JI ICitetd in accordance with 9th Cir. R. 36-3, which allows citations to unpublished cases promulgated after 2007. 9th Cir. R. 36-3. The Ninth Circuit reached a similar conclusion in Temple v. Callaha~, 114 F.3d 1195 (9th Cir. 1997)(umeported), but that case cannot control under Cir. R. 36-3. 4 - OPINION AND ORDER
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