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Victor M. Olarte v. Michael J. Astrue

January 25, 2013


The opinion of the court was delivered by: Hon. Sheri Pym United States Magistrate Judge



On May 24, 2012, plaintiff Victor M. Olarte filed a complaint against defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance Benefits ("DIB") and Social Security Income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties' briefing is now complete, and the court deems the matter suitable for adjudication without oral argument.

Plaintiff presents two disputed issues for decision: (1) whether the Administrative Law Judge ("ALJ") failed to obtain an explanation or persuasive evidence to justify the acceptance of the testimony by the vocational expert ("VE"), which deviated from the Dictionary of Occupational Titles ("DOT"), thereby failing to demonstrate that plaintiff can perform other jobs in the national economy; and (2) whether the ALJ properly discredited plaintiff's subjective complaints and credibility. Plaintiff's Memorandum in Support of Complaint ("Pl.'s Mem.") at 10-14; Defendant's Memorandum in Support of Answer ("Def.'s Mem.") at 2-6.

Having carefully studied, inter alia, the briefs submitted by the parties and the Administrative Record ("AR"), the court finds that, as detailed herein, there is substantial evidence in the record, taken as whole, to support the ALJ's decision. First, the ALJ properly found the VE's testimony, which deviated from the DOT, as persuasive evidence demonstrating that plaintiff can perform other jobs in the regional and national economy. Second, the ALJ properly discounted plaintiff's credibility and subjective complaints. The court therefore affirms the Commissioner's decision denying benefits.


Plaintiff, who was 24 years old on the date of his August 23, 2010 administrative hearing, hasa high school education and a year of college education. AR at 30, 42, 186, 199, 212. His primary past relevant work was employment as a safety/security inspector, an apprentice mortician, and a caregiver to seniors. Id. at 29, 30, 46, 56-58, 183, 212-13. As a safety/security inspector, plaintiff worked at a manufacturing plant in which he was required to walk around, make observations, climb ladders, and carry weapons and notebooks. Id. at 54, 55. As part of his work as an apprentice mortician, plaintiff embalmed the deceased. Id. at 56. As part of his work as a caregiver, plaintiff awakened elderly patients, fed them, showered them, changed their diapers, carried them between their beds and wheelchairs, and transported them to and from meals. Id. at 57, 183. Each of these positions required plaintiff to use both hands. Id. at 59-63.

Plaintiff applied for DIB and SSI on December 1, 2008. Id. at 25, 162. In the application, plaintiff alleged he had been disabled since October 16, 2008, due to a severe musculoskeletal impairment of the left arm, which resulted from an injury sustained in a motorcycle accident in February 2006. Id. at 27, 46, 182, 185, 203. Plaintiff's applications were denied initially and upon reconsideration, after which he filed a request for a hearing. Id. at 25, 71-75, 80-85, 86-87.

On August 23, 2010, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. Id. at 42-53, 54-55, 56-57. The ALJ also heard testimony from Joseph Mooney, a VE. Id. at 53-54, 55-56, 57-64. On October 8, 2010, the ALJ denied plaintiff's request for benefits. Id. at 25-31.

Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff was not engaged in substantial gainful activity since October 16, 2008, his alleged disability onset date. Id. at 27.

At step two, the ALJ found that plaintiff suffered from a severe impairment of the musculoskeletal system. Id.

At step three, the ALJ determined that the evidence demonstrates that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.

The ALJ then assessed plaintiff's residual functional capacity ("RFC") and *fn1 determined that he could perform "light" work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), though limited to "only occasionally climb[ing] stairs but [not] climb[ing] ropes, ladders or scaffolds," since plaintiff "has no use of his left upper extremity . . . ." Id. at 27-28. In addition, the ALJ found that plaintiff "can occasionally balance, stoop, kneel, crouch and crawl." Id. at 28.

The ALJ found, at step four, that plaintiff was "unable to perform any past relevant work" as a safety/security inspector, apprentice ...

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