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Catherine A. Bordbar v. Michael J. Astrue

February 1, 2011

CATHERINE A. BORDBAR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social SecurityCase)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the testimony of the vocational expert; and

2. Whether the ALJ properly considered the significant erosion of the vocational base. (JS at 4.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I THE ALJ DID NOT ERR AT STEP FIVE OF THE SEQUENTIAL EVALUATION PROCESS IN DETERMINING THAT PLAINTIFF COULD PERFORM IDENTIFIED JOBS

A. Introduction.

After having her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") denied administratively, Plaintiff Catherine Ann Bordbar ("Plaintiff") proceeded to a hearing before an ALJ on July 15, 2009. (AR 24-53.) At that hearing, testimony was taken from a vocational expert ("VE"). Thereafter, the ALJ issued an unfavorable decision (AR 14-23), the Appeals Council denied review (AR 7-9), and this lawsuit followed.

The ALJ utilized the well-known five-step sequential evaluation process. 20 C.F.R. §404.1520; §416.920. Based on a determination of Plaintiff's residual functional capacity ("RFC") which, in pertinent part, limited Plaintiff to "1-2 step instruction jobs with no production quotas and only occasional contact with supervisors, co-workers and the public" (AR 18), the ALJ agreed with the testimony of the VE at Step Five that Plaintiff could perform the representative occupations of mail sorter (Dictionary of Occupational Titles ["DOT"] 209.687-026), laundry sorter (DOT 361.687-014), and thread cutter (DOT 789.684-050). (AR 22.) It is Plaintiff's disagreement with this Step Five conclusion that constitutes the basis for her first issue. Specifically, Plaintiff asserts that the Reasoning Level required for these jobs pursuant to the DOT exceeds the Reasoning Level assessed by the ALJ.

The DOT, at Appendix C III, sets out a tripartite concept called "General Educational Development ("GED")." GED "embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. One of the divisions of the GED scale is denominated "Reasoning Development." Within this scale are six levels of reasoning development. As pertinent to this decision, Level One requires the ability to "apply common sense understanding to carry out simple one or two-step instructions." Reasoning Level Two requires the ability to "apply common sense understanding to carry out detailed but uninvolved written or oral instructions." Reasoning Level Three requires that the individual "apply common sense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations."

Plaintiff reasons that in formulating an RFC which limits her to "1-2 step instruction jobs with no production quotas and only occasional contact with supervisors, co-workers and the public," the ALJ was assessing that Plaintiff has a maximum reasoning level of 1, which, as noted, requires the ability to "apply common sense understanding to carry out simple one or two-step instructions."

B. Analysis.

Plaintiff received a complete psychiatric evaluation ("CE") at the request of the Department of Social Services on March 31, 2007, from Dr. Simonian (AR 218-223). Dr. Simonian assessed, in relevant part, that Plaintiff is able to understand, remember and carry out simple one or two-step job instructions, and is also able to complete detailed and complex instructions. (AR 222.) The State Agency medical consultant, on May 9, 2007, completed a Psychiatric Review Technique Form, which indicates that Plaintiff would have no limitations in performing activities of daily living and in her ability to maintain concentration, persistence or pace; no episodes of decompensation of extended duration, but would have moderate limitations in her ability to maintain social functioning. (AR 224-34.) Also, on the same day, the State Agency medical consultant completed a "Mental Residual Functional Capacity" assessment, and assessed moderate limitations in the following areas: ability to work in coordination with others without being distracted, interact appropriately with the public, ...


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