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Elias v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 10, 2019

Margaret Lorraine Elias, Plaintiff,
Commissioner of Social Security Administration,


          Honorable Raner C. Collins Senior United States District Judge

         Plaintiff Margaret Lorraine Elias initiated this matter seeking review of the final decision of the Commissioner of Social Security Administration. (Doc. 1.) On July 18, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (R&R) in which he recommended that this Court find that (1) the Administrative Law Judge's (ALJ) step four and five determinations were supported by substantial evidence, (2) the ALJ properly considered Plaintiff's mental limits when creating the residual functional capacity (RFC), and (3) the ALJ appropriately considered Plaintiff's symptom testimony. (Doc. 19.) Magistrate Judge Ferraro further recommended that this Court affirm the ALJ's decision. Id. at 22. Plaintiff filed an objection (Doc. 19) and Defendant filed a three-sentence response (Doc. 21). Upon review, the Court adopts the Magistrate Judge's R&R in part and reverses the ALJ's decision.

         I. Report and Recommendation: Standard of Review

         The standard the District Court uses when reviewing a magistrate judge's R&R is dependent upon whether a party objects: where there is no objection to a magistrate's factual or legal determinations, the district court need not review the decision “under a de novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when a party objects, the district court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Moreover, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154.

         II. Factual and Procedural History

         Plaintiff does not object to the Magistrate Judge's factual and procedural history. The Court, therefore, adopts the factual and procedural history and will not restate them here except as they relate to Plaintiff's objections.

         III. Standard of ALJ Review

         To determine whether a claimant is disabled, an ALJ engages in a five-step process. See 20 C.F.R. §§ 404.1520, 416.920. The burden first rests on the claimant to show the following: In Step One, the claimant must show he has not engaged in substantial gainful activity since the alleged onset of disability. In Step Two, the claimant must demonstrate he has a severe impairment(s). For Step Three, Plaintiff must prove his alleged impairment(s) meets or equals the listed impairment(s). Id. “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed[, ] . . . the ALJ then proceeds to [Step Four], which requires the ALJ to determine the claimant's residual functioning capacity (RFC) based on all the relevant evidence in the record, including impairments not classified as ‘severe.'” Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2015) (citing 20 C.F.R. § 416.920(a)(4)(iv)). The RFC reflects “the most a claimant can do despite any limitations. Id. (citing 20 C.F.R. § 416.945(a)). “After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work.” Id. The burden then shifts to the government at Step Five, who must show “that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Id; 20 C.F.R. §§ 404.1520, 416.920.

         An ALJ's decision may be reversed only when it is not supported by substantial evidence or constitutes harmful legal error. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).

         IV. Plaintiff's Objections

         a. Step Four: Composite Job

         i. Fundamental Nature of Job

         Plaintiff first objects to Judge Ferraro's determination that the ALJ's step four contention that Plaintiff was not disabled was supported by substantial evidence. At step four, the ALJ stated that Plaintiff's jobs as “a secretary, data entry clerk, and administrative clerk” were considered past relevant work. (Administrative Record (AR) 959.) Then the ALJ compared the requirements of this past work to the limitations noted in Plaintiff's RFC and found that Plaintiff was capable of performing these jobs “as generally performed in the national economy.” AR 959.

         Plaintiff argues that the ALJ was not permitted to determine Plaintiff's ability to perform such work “as generally performed” because the past work-specifically work at Tucson Unified School District (TUSD)-was a composite job of both attendance clerk and registration technician. (Doc. 20 at 2.) Plaintiff argues that SSR 82-61 states that a composite job has no analog in the national economy, and because there is no equivalent job under the Dictionary of Occupational Titles (DOT) for which to compare, it cannot be decided as “generally performed” at step 4. Id.

         The Magistrate Judge found that case law belied Plaintiff's assertion. Citing Stacy v. Colvin, 825 F.3d 563, 569-70 (9th Cir. 2016), Judge Ferraro noted that like Stacy, a determination of as “generally performed” was not precluded because Plaintiff could perform the fundamental nature of the work. (Doc. 19 at 11.) In Stacy, the Vocational Expert found that the claimant “engaged in supervisory duties 70-75 percent of the time.” Stacy, 825 F.3d. at 570. There, even though some of the time the claimant was engaged in other tasks, this “did not change the fundamental nature of the work” and a determination that the claimant could perform past work as generally performed was proper. Id.

         Here, two Vocational Experts (VE) testified about Plaintiff's previous work. In the December 2016 Administrative Hearing, VE Sala categorized Plaintiffs past work as secretary, data entry clerk, and administrative clerk. (AR 1009.) At an Administrative Hearing on July 16, 2012, VE McAlpine testified that Plaintiffs TUSD job was 70% data entry and 30% attendance clerk. (AR 533.) The ALJ found that Plaintiff could perform the past work of both administrative clerk and data entry clerk. (AR 959.) The data entry work, being 70%, was the fundamental nature of the work. So, there is substantial evidence that the job listed by the VE and that used in by the ALJ were equivalent as generally performed. See, eg., Coehooorn v. Berryhill, No. ED CV 16-373-KS, 2017 WL 1407636, at *21 (CD. Cal. Apr. 19, 2017) (“[I]f substantial evidence supports the finding that a job identified by the VE and relied upon by the ALJ is equivalent as generally performed to the past relevant work, a denial at step four may be upheld.”). Here, the work had a comparable job in the national economy ...

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