Martinez v. Astrue et al, No. 2:2010cv00857 - Document 18 (D. Utah 2011)

Court Description: MEMORANDUM DECISION reversing and remanding this case to the ALJ to consider the State of Utah's January 10, 2007 vocational evaluation report, make findings regarding that report, and reevaluate his findings regarding Plaintiff's credibility and disabily in light of that report. Signed by Magistrate Judge Samuel Alba on 07/18/2011. (asp)

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IN THE UNITED STATES DISTRICT COURT FOR T!lESr:fH~kR:r1~+\9JUR1rAH 18 P I: 2b CENTRAL DIVISION [":' \) ~ o I ·'w._r~"_ JEFF P. MARTINEZ, Case No. 2:10-cv-857-SA Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, MEMORANDUM DECISION AND ORDER Defendant. Before the court is an action filed by Plainti ,Jeff P. Martinez, asking the court to reverse the final agency decision denying his application for Supplemental Security Income Benefits ("SSI") under Title XVI of the Social Security Act. U.S.C. §§ 1381-1383(f). See 42 The ALJ determined that Plaintiff was not disabled because Plaintiff could perform the representative occupations of cutter-and-paster, touch-up screener, and final assembler. Plainti challenges the ALJ's decision, arguing that is not supported by substantial evidence and is based on significant legal errors. Having carefully reviewed and considered the ALJ's decision, the record, and the parties' pleadings, the court concludes that this case must be reversed and remanded because the ALJ's decision Is to discuss the State of Utah's Vocational Evaluation report. BACKGROUND protectively applied for On August 23, 2007, Plaint Supplemental Security Income under Title XVI of the Social Security Act, alleging a disability onset date of January 1, 2005 (Doc. 6, the certified copy of the transcript of the entire record of the administrative proceedings relating to Je Martinez (herea er "Tr. ") 20-22, 110-15, 123). P. Plaintiff's application was denied initially (Tr. 72-73, 75-77) and upon reconsideration (Tr. 74, 84-86). hearing before an ALJ (Tr. 83). 6, 2009 (Tr. 18-71). Then Plaintiff requested a That hearing was held on March The ALJ issued a written decision on April 3, 2009, denying Plaintiff's claim (Tr. 6-17). Plainti then filed a request for review of the ALJ's decision, which was denied on July 7, 2010 (Tr. 1-4), making the ALJ's decision the Commis oner's final decision for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c) (3); 20 C.F.R. § 416.148l. On September 1, 2010, after receiving the Appeals Councils' denial of his request for review, Plainti filed his complaint in this case, which was assigned to United States District Judge Tena Campbell. (Doc. 3.) On November 5, 2010, the Commissioner led his answer, along with the Administrative Record. 5, 6.} 2 (Docs. On September 27, 2010, the parties consented to jurisdiction by a United States Magistrate Judge, including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit, under 28 U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure. The case was then reassigned to United States Magistrate Judge Samuel Alba. Plaintiff (Doc. 4.) led his opening brief on December 13, 2010 (Doc. 10), the Commissioner filed his answer brief on January 13, 2011 (Doc. 13), and Plaintiff led his reply brief on February 23, 2 0 11 ( Do c. 1 7) . STANDARD OF REVIEW The court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Cir. 2007) Lax v. Astrue, 489 F.3d 1080, 1084 (10 th (quotations and citations omitted). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'" Doyal v. Barnhart, 331 F.3d 758, 760 (loth Cir. 2003) (citation omitted), and "requires more than a scintilla but less than a preponderance," Lax, 489 F.3d at 1084. The Commissioner's findings, "if supported by substantial evidence, shall be conclusive." U.S.C. § 405{g). "In reviewing the ALJ's decision, may] neither reweigh the evidence nor substitute that of the [ALJ]." [this court s judgment for Madrid v. Barnhart, 447 F.3d 788, 790 3 42 (10 th Cir. 2006 (quotations and citation omitted). "The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed [are] grounds for reversal." Barnhart,· 436 F.3d 1163, 1165 (10 th r. 2 00 5) Jensen v. (quotations and citation omitted). A five-step evaluation process has been established for determining whether a claimant is disabled. See 20 C.F.R. §§ 4 a4 . 15 2 a (a) (4) (i) - (v), 4 1 6 . 9 2 a (a) (4) (i) - (v) i see a 1 s 0 Wi 11 i am s v. Bowen, 844 F.2d 748, 750-51 step process). steps that a (10 th r. 1988) (discussing the fi ve­ If a determination can be made at anyone of the aimant is or is not disabled, the subsequent steps need not be analyzed. See 20 C.F.R. §§ 404.1520(a) (4), 416.920 (a) (4). Step one determines whether the claimant presently engaged in substant gainful activity. If [the claimant] is" disability benefits are denied. If [ claimant] is not, the decision maker must proceed to s two: determining whether the claimant has a medically severe impairment or combination of impairments . . . . If the claimant is unab to show that his impairments would have more than a minimal effect on his ability to do basic work activities, is not igible r disability benefits. If, on other hand, the aimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a) (4) (i)-(ii), 416.920(a) (4) (i) 4 (ii). ermines whether the impairment is equivalent "Step three to one listed impairments that . a number as to preclude substantial gainful activity . are so severe If the and thus conclusively presumed to be impairment is 1 to benefits. sabling, the claimant is entit evaluation proceeds to fourth " 404.1520 (a) (4) (iii), 416.920 (a) (4) ( 416.920(a) (4) (iv). previous work, i). At the fourth step, the impairment prevents his "past relevant work." Williams, 844 ions omitted); see 20 C.F.R. §§ F.2d at 751 (quotations and claimant must show that If not, the rformance of 20 C.F.R. §§ 404.1520(a) (4) (iv), "If the claimant is able to perform his is not disabled." Williams, 844 F. 2d at 751. If, however, the claimant is not able to form his previous work, he "has met his burden of proof, establishing a prima facie Id. disability." case At s point, "[tJhe evaluation process . . . proceeds to fifth and final step." Id. At s step, the burden of proof shifts to the Commissioner, and the decision maker must determine "whether claimant has the re capacity [("RFC")] . to perform other work in the national dual functional economy in view his age, education, and work Id.; see 20 C.F.R. §§ 404.1520(a) (4) (v), 416.920(a) (4) (v). is determined that the claimant "can make an work," 20 C.F.R. not disabled. rience." If ustment to other 404.1520(a)(4)(v), 416.920(a)(4)(v), he is If, on other hand, it is determined that the 5 ustment to aimant "cannot make an 404.1 r work," 20 C.F.R. §§ 0(a)(4) (v), 416.920(a) (4) (v), he is disabled and entitled to benef s. ANALYSIS the following two main arguments in Plaintiff rna sion: challenging the ALJ's ALJ erred (1) assessing iff's credibility and (2) the ALJ's step five finding is not supported by substantial evidence. A. Credibility Finding rst, iff chal assessment. s the ALJ's credibility The ALJ found r care consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause leged symptoms; however, the imant's statements concerning intensity, rsistence and l i n g effects of these symptoms are not credible to the extent they are inconsistent with above residual fun~tional capacity assessment. (Tr. 14.) The ALJ is "'optimally positioned to observe and assess witness credibil Cir. 1996) ,,, Adams v. (quoting Ca as v. Chater, See'y 933 F.2d 799, 801 (10 th Cir. 1991)). 93 F.3d 712, 715 (10 th Health and HUman Servs., In other words: The opportunity to rve the demeanor of a witness, uating what is said in light how it is , and considering how fits with the rest of the evidence gathered before the person who is conducting the 6 hea , i s invaluable, and should not be discarded lightly. fore, special deference is traditional afforded a of fact who makes a credibility finding. ); see also Lax, 489 844 F.2d at 755 (citations omi Williams, the best position to observe F.3d at 1089 (because theALJ is the demeanor of witnesses, the ALJ's credibility findings deserve al deference) . ALJ set In this case, relied on in evaluating P specific evidence he reli ntiff's the ALJ included of his Cir. 2000) on). ly activit s condition, and object did not support his contention (lO::h (finding an ALJ Factors cited by s, the effectiveness cation in controlling his diabetes, evidence that he exaggerated activit See Qualls v. aimant's subjective statements where he ected a identified c evidence intiff's credibility. , 206 F. 3d 1368, 1372 (1 properly the speci s (Tr. 14-15). Cir. 1995) medical findings that he was unable to perform work See Kepler v. Chater, (naming 68 F.3d 387, 391 to be considered in evaluating a claimant's credibility); Thompson v. Sullivan, 987 F.2d 1482, 1489 (lOth ors for r. 1993) (listing all of ALJ to consi in determining credibility); see also Qualls, 206 F.3d at 1372 (" formalistic factor-byThe ALJ reli se factors as proper er does not require a recitat the evidence."). on Plaintiff's daily activities as one reason to discount his subjective complaints. 7 See White v. Barnhart, 287 F.3d 903, 909 (10 th Cir. 2002) (noting that daily activit s may be considered in assessing credibility); Huston v. Bowen, 838 F.2d 1125, 1132 (10 th Cir. 1988) (same). Citing to a physical RFC aintiff was able assessment form (Tr. 297), the ALJ noted that to walk a lot. The ALJ observed that a Fourth Street Clinic Diabetes Note (Tr. 390) stated that Plaintiff got "lots of exercise" for six years, three times a week, and Dr. Manwill's psychological evaluation described Plaintiff as getting up between 6:00 and 7:00 a.m. and going to a gym where Plaintiff could shower and where he tried to work out a little bit (Tr. 407). Although the record to aintiff cites to places support his argument that Plaintiff is not capable of vigorous exe se, the Commissioner also points out other places in the record that further support the ALJ's findings that walked a lot (Tr. 54-56, 302, 315) and regula gym (T r. 57, 348, 388, 390, 391, 394). intiff y exercised at the This court is not to reweigh the evidence or sUbstitute its judgment for the ALJ's. See Lax, 489 F.3d at 1084. The court concludes that the daily activities upon which the ALJ relied are consistent with the ability to perform the minimal physical demands of sedentary work, and are supported by substantial evidence. Another reason upon which the ALJ relied Plaintiff's subjective complaints was that had effectively control discounting aintiff's medication intiff's diabetes. See Huston, 838 F.2d at 1132 (explaining that ALJ may consider the effectiveness 8 medication in assessing credibility). wrote: Specifically, the ALJ claimant's "The records consistently indicate that (Tr. 14.) diabetes is under good control." that Plainti The ALJ recognized experiences neuropathy with pain in.his feet and possibly Achilles' tendini s, but noted that "[a]s suggested in [Plaintiff's] testimony, the medical records the pain in s feet is worst at night." so indicate that (Tr. 14.) In response to Plaintiff's argument that the record does not support that Plaintiff's diabetes was under good control (Doc. 10), the Commissioner cites to many places in Plaintiff's medi showing that Plainti 's diabetes was "cont records led," under "good control," or under "excellent" control from 2005 through early 2009 (Doc. 13 (citing Tr. 194, 207, 210, 211, 212, 214, 215, 218, 219, 274, 315, 317, 348, 351-52, 355, 356, 358, 359, 382, 383, 384, 386, 387, 388, 389, 390, 391, 394)). concedes that The Commissioner aintiff had "no doubt experienced episodes where his diabetes was 'uncontrolled' or 'worsening'" - a concession that appears to contradict the ALJ's finding that the records consistently indicate PIa iff's diabetes was under good control; however, having carefully reviewed the record, the court concludes that sub stant evidence in the record supports the ALJ's finding that, despite some neuropathy in his feet, Plaintiff's diabetes was under good control with medication. A third reason the ALJ discounted P1ainti was because the ALJ found that 's credibility aintiff exaggerated his 9 condition with regard to his hands and igue (Tr. 14-15). Bean v. Chater, 77 F.3d 1210, 1213 (loth Cir. 1995) See (explaining that ALJ may consider the fact that the claimant exaggerated her claim). With regard to Plaintiff's hands, the ALJ found Plaintiff's testimony that he had problems carrying things and that his hands cramped up was inconsistent with the medical evidence (Tr~ had noted 14 15). The ALJ observed that although one doctor aintiff had painful nodules on his hands, the doctor did not treat or diagnose arthritis, and none of reviewing doctors fe (Tr. 14-16, 356). treating or the evidence showed limited use of hands The ALJ also observed that the record indicated that the cramping problems got better when Plaintiff stopped taking Tricor. (Tr. 14, 358.) As such, the ALJ indicated that Plaintiff may have exaggerated his hand complaints to some degree. ainti The ALJ further observed that, "despite 's] representative's effort to lead [Plainti into describing hand limitations, the claimant indicated that he could probably do fine manipulation and the only problem was spasms related to something like morning. H (Tr. 15, 41-43.) described rculation problems the Thus, in light of Plaintiff's inconsistent testimony, the ALJ did not give Plaintiff's testimony regarding his hand limitations signi cant weight. az v. See'y of Health & Human Servs., 898 F.2d 774, 777 Cir. 1990) (10 t t (explaining that ALJ could conclude claimant not 10 See frequency of seizures credible because his statements about y varied) . and lifting capa 1 to leged fatigue and the With regard to.Plaintiff's down four or five times for a couple hours per day, the recognized that, while Dr. Manwill listed fatigue and lack of energy as related to depression and anxiety, there was no indication that these symptoms were inconsistent with the ability to perform the minimal physical demands of sedentary work. 15, 412.) (Tr. As the ALJ noted, Dr. Manwill specifically stated that Plaintiff only had a slight impairment lity to be form activities within a schedule, and maintain punctual, regular attendance. (Tr. 15, 413.) Therefore, the ALJ did not give Plaintiff's testimony regarding his (Tr. 15). the igue great weight See Bean, 77 F.3d at 1213 (noting that ALJ may consider the fact that the claimant exaggerated her claim) . Plaintiff argues that other sources in the record support his credibility, including Dr. Rolfs' reports, Dr. Manwill's report, and State of Utah's Vocational Rehabilitation report. Plaintiff argues that when se three sources are properly considered, the most reasonable conclusion to draw 1S Plaintiff was fully credible. The ALJ explained that did not give full weight to Dr. Rolfs' and Dr. Manwill's opinions. the ALJ found Regarding Dr. Rolfs' reports, re was an inconsistency between the two reports and the lack of medical evidence supporting the change in the 11 recommendation regarding iff's abil to work. 287 F. that treat phy~ician's at 907-08 (exp See White, lack of explanation for claimant's decreased RFC assessment between two reports, with no apparent change in claimant's medical condition, was sufficient reason to ect treating physi see also Drapeau v. Massana 2001) ,255 F.3d 1211, 1213 (10 th Cir. physician's (stating that an ALJ may reject a t if he op g~ves " (citation omitted). c, legitimate reasons" for doing so) The ALJ further explained that another did not give full weight to Dr. reason to walk and because Plaintiff was " diabetes under control," and because there reason for 1 a ting his work to , reports was se and keep his "not appear to time other than ective complaints, which [the ALJ did] not find to be his reli an's opinion); e." (Tr. 15.) court concludes the ALJ gave c, legitimate reasons for his treatment of Dr. Rolfs' opinion. Regarding Dr. Manwill's opinion, the ALJ noted that Dr. Manwill had found that P iff "would have problems with work changes, setting goals, making decisions, ons and mai ing with detai sustained concentration, but he would have no problems following simple instructions, working with rout rvisors or co-wor , being punctual, and maintaining a or being aware of and dealing with hazards." 406 12; Doc. 10, Attachment A (emphasis added).) 12 (Tr. 15, The ALJ lained that se limitations were adequately accommodated by the functional limitations in his RFC assessment. court concludes fic, 1 , as w~th (Tr. 15.) Dr. Rolfs' opinion, the ALJ e reasons for his treatment of Dr. Manwill's opinion. On the other hand, regarding the State of Utah's Vo on.al Rehabilitation report (Tr. 172-84), the ALJ did not explain how his credibility finding was reached in terms of report the ALJ did not even mention that report. report is rteen pages long. (Tr. 172 84.) It is thorough. iff was "incapable of It concludes that t aining full employment" and that iff should efforts to qualify for Soc bene s." The State 1 Securi assisted \\ his Disability Insurance (Tr. 183.) The Commis oner concedes the ALJ's report, and suggests court adopt lure to cons following analysis: The Commissioner recognizes that the ALJ did not specifically mention the December 2007 vocational evaluation, whi indicated Plaintiff was incapable of full time work (Tr. 172-84). The Commissioner contends that the ALJ implicitly rejected it the same reasons he rej Dr. Rolfs' and Dr. Manwill's opinions it conflict with the medical evidence and testimonial evidence record, as well as the reviewing physicians' assessments that Plainti was capable of light work. See Reyes, 845 F.2d at 245 (an ALJ's duty is to re conflicts in the record) . (Doc. 13, at 16-17.) 13 the The ALJ is not required to discuss every piece of evidence and every lity factor Ii in SSR 96-7p when assessing an individual's credibility, see Qualls, 206 F.3d at .1372 (explaining a formalistic ctor-by-factor recitation of the evidence is not required); however, having examined case law, the court concludes that and appl vocational report was signi state cant and the ALJ was required to s opinion. explain his treatment of it in court cannot record As ands, the ew the ALJ's treatment of that report because the court can only speculate regarding the ALJ's treatment of it, and even whether the ALJ actual read it. Because the court the law requires the ALJ to expla concludes of the report his decision, his treatment court concludes that it must remand this case for the ALJ to formally address his treatment of the state report determining his decision aintiff's disability. In Grogan v. Barnhart, Tenth Circuit lained: Although another agency's determination lity is not binding on the Social y Administration, 20 C.F.R. § 416.904, it is evidence that the ALJ must consider why he did not it persuasive. Baca v. Dep't of Heal & Human Servs., 5 F. 476, 480 (loth Cir. 1993) ("Although findings by other agenc s are not binding on Secretary, they are entitled to weight and must be considered.") (quotation omi ); see also 20 C.F.R. § 416.912(b) (5) fining the disabil y determinations of other agencies as to be considered by Social Security stration) . 14 district court may not · "[TJ create post-hoc rationalizat to explain Commiss 's treatment of evidence when that treatment is not apparent the Commissioner's sion itself. See, e.g., Allen v. Ba rt, 357 F. 3 d 1140, 1145 (10 th C . 2004); SEC v. CheneryCorp., 318 U.S. 80, 87 (1943). that the s failure to discuss the s of disability was reversible error. See Cli ,79 F.3d at 1010; Washington, 37 F.3d at 1440. 399 F.3d 1257, 1263 (loth r. 2005). Thus, Grogan requires ALJ to consider a state agency report such as the one at issue. It also sallows the court from engaging rationalization to explain how the ALJ post-hoc the report. See also Robinson v. Barnhart, 366 F.3d 1078, 1084 (loth Cir. 2004) that magistrate judge erred in upholding decis (expl supplying possible reasons for weight given to a report). As a result, the court cannot determine whether the ALJ's finding regarding Plaintiff's credibility is supported by substant reconcil finding. failure to 1 evidence because the ALJ did not explain how he the state's vocational report wi Consequently, his credibility court concludes that the ALJ's scuss the State of Utah's January 10, 2007 vocational report (Tr. 172-84) was revers that this case be reversed and remanded for error, requi ALJ to expla his treatment of that report in reaching his determination regarding Plaintiff's di lity. 15 by B. step Five Finding Second, Plaintiff contends that the ALJ's finding at step five of the lity analysis is not supported by substantial evidence. The court recognizes that on remand, the ALJ may change his ,which may credibility the ALJ's RFC assessment, the hypothetical questions the ALJ would ask of a vocational expert, and so forth. A change the ALJ's Plaintiff's credibility could decision. s completely a regarding the ALJ's Nevertheless, the court has carefully reviewed Plaintiff's lenge of the ALJ's step five finding. On remand, were the ALJ to reach the same finding regarding intiff's credibility, Plaintiff's argument regarding the s step five finding would be the same. Plaintiff's finding, , the court next examines five finding ba on the current credibility recognizing that on remand the following moot; however, were the ALJ to finding, the the same ysis may be lity lowing analysis would be relevant. Plaintiff appears to contest the restrictions the ALJ's hypothetical question to the vocational then became ALJ~s finding that could perform other work. Having care concludes that RFC -assessment - as well as ly considered PIa in - which s (Doc. 10, at 10-13.) iff's challenge, the court lacks merit. 16 When the ALJ's findings regarding a aimant's impairment are adequately reflected in the ALJ's hypothetical question to the vocational rt, the vocational constitutes subs 's testimony al evidence to s determination the ALJ's claimant could form other work. Gay v. Sullivan, .986 F.2d 1336, 1341 (10 th Cir. 1993). See In words, the ALJ's hypothetical question to the vocational must include only those limitations found by the ALJ to be substantially supported by the record. See Qualls, 206 F.3d at 1373 ("The ALJ propounded a hypotheti [vocational that included question to the I limitations the ALJ ultimately included in his [RFC assessment]. Therefore, the [vocational J's answer to that ion provided a proper basis for s disability decision. /I) i 835 F.2d 1314, 1316 (10 th Cir. 1987) ask hypotheti Jordan v. Heckler, ALJ is only required to s encompassing impairments that find support the record). In this case, ALJ described a restrictions both in his decision. his hypothetical and (Tr. 12-13.) Plaintiff set of functional RFC assessment to challenge that RFC assessment based on its failure to ude all the limitations nti aintiff bore the burden of es i 1162, 1164 (10 th C alleged. his RFC, 1997) In this case, see Hawkins v. Chater, (explaining that disability cases, the claimant bears the 17 113 F.3d Social Security to prove her sessed the final responsibility for lity), but the ALJ on the medical evidence as well as all determining the RFC, ba , see Young v. Barnhart, 146 F. other evidence in , x 952, 955 (loth Cir. 2005) (unpublished on) ("The final responsibility for determining [RFC] rests with Commissioner, ba the relevant upon all the evidence in the record, not cal evidence." (Citing SSR 96-5p, 1996 WL 374183, at *2, *5)); see also 20 C.F.R. 416.920(a) (4), 416.945(a) (3); Howard v. Barnhart, 379 F.3d 945, the record, the court reasonable. 949 (lOth Cir. 2004). Having reviewed s that the ALJ's RFC assessment was The ALJ considered all of Plaintiff's limitations the ALJ found e in crafting his RFC assessment, luding Plaintiff's pain and fatigue, and aintiff's mental impairments. aintiff also the ALJ's RFC assessment by 1 arguing that it is inconsistent with the DOT. As explained , RFC assessments must be based on all record, not only the cal evidence. evant evidence in See 20 C.F.R. 416.945(a); SSR 96-5p, 1996 WL 374183, at *5. RFC is based on the 1 whether the Thus, a claimant's ry record of his s assessment of lities. a capacity is consistent with the DOT because publication of job descr ional capacity posses ions § It is iff's functional DOT - a has no necessary bearing on the by any particular aimant. As did ALJ in this case, an ALJ may refer to the DOT to describe 18 ation. what the ALJ intends by an expressed For ff could ca the ALJ only " e work instructions" (Tr. 13). out ALJ expla the instant case found that that "simple means claimant would be functioning at [DOT] GED 1 s of only - Reasoning: 3, Math: 1-2, Language: 1-2" (Tr. 13). ALJ's reference to the DOT illuminated the ALJ's Thus, findings as to Plaintiff's abilities; in other words, the finding simply informed and gave context to the st finding. Similarly, as explained in the Commissioner's answer brief, the vocational expert's testimony about jobs Plaintiff could perform so did not 13, at 22.) Plainti ict with the DOT's GED levels. Furthermore, the vocati (Doc. expert was aware of 's limitations when she testi perform the unskilled sedentary jobs that Plainti could nal assembler, touch-up screener, and cutter-and-paster (Tr. 6 68). The vocational expert stated her testimony was consistent with the DOT, except for the availability ,she testi ed was bas these jobs with a sit-stand option, which on her experience (Tr. 66). Commissioner explains appli great detail, a reasoning level of two, to the jobs cutter-and-paster and touch-up screener, is consistent with the ALJ's finding limit to "unskill (Tr. 13). 2005) As the work tasks" and "simple work See Hackett v. Barnhart, intiff was ructions" 395 F.3d 1168, 1176 (10 th Cir. (a limitations to "simple and routine work tasks" was most consistent with level-two reasoning). 19 In addition, vocational expert testified that her testimony was consistent with the DOT in that regard and was based on her s of experience (Tr. 66); therefore, the ALJ was entitled to rely on her testimony in concluding that Plaintiff could perform the jobs of cutter-and-paster and touch-up screener, see Rogers v.Astrue, 312 F. App'x 138, 142 (10 th Cir. 2009) (unpublished opinion) (holding that the ALJ is entitled to rely upon vocational expert testimony, especia~ly since "[t]he who point of vocational [expert] testimony is to go beyond facts already established through publications eligible judicial or administrative notice and provide an alternative avenue of proof"). Thus, after analyzing the reasoning level of the cutter-and-paster and touchup screener jobs, both the vocational expert and determined that these jobs matched Plaintiff's RFC unskilled work. This determination is ent ALJ a range led to deference, especially considering that the GED reasoning levels do not correspond directly to the agency's classifications regarding a job's s (loth 11 level. Cir. 1999) See Haddock v. Apfel, 196 F.3d 1084, 1089 (noting that the DOT classi "massaged" into an exact match). cations must be agency's classifications because they are not The court concludes that it was reasonable for the ALJ to find Plaintiff capable of the jobs cit by the vocational expert. Finally, as set forth in detail by the Commissioner in his answer brief, even assuming arguendo that Plaintiff could not 20 perform the job of final assembler because would require fine sion, with the cutter-and-paster and touch-up screener jobs, there are still 30,00D jobs in the Utah economy that the national economy and 300 jobs aintiff could perform (Tr. 66-67) a significant number of jobs in the national economy. ORDER Based on the above analysis, because the ALJ led to consider the State of Utah's January 10, 2007 vocational evaluation report (Tr. 172-84), IT IS HEREBY ORDERED that this case is REVERSED AND REMANDED for the ALJ to consider that report, make findings regarding that report, and reevaluate his findings regarding Plaintiff's credibility and disabil light y in that report. As explained in the above analysis, the court is aware that the remainder of the ALJ's decision may be completely altered by ALJ's consideration of the State's Vocational Evaluation report. Thus, the remainder of the court's analysis regarding the ALJ's finding at step five of his analysis may be inapplicable; however, if on remand the ALJ's finding regarding 21 Plaintiff's credibility remains the same, court has concluded, based on the above analysis, that the ALJ's step five finding was supported by substanti r~ay DATED this evidence. of July, 2011. BY THE COURT: .. Samuel Alba Uni States Magistrate Judge 22

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