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Kawelo v. Colvin

United States District Court, D. Hawaii

July 25, 2016



          Derrick K. Watson United States District Judge


         Plaintiff Rochelle Kawelo brings this action under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security, Carolyn C. Colvin (the “Commissioner”), which denied Kawelo’s application for disability insurance benefits based upon the finding that she was not disabled. At issue is whether the Administrative Law Judge (“ALJ”) was required to reconcile any conflicts between vocational expert testimony and the Dictionary of Occupational Titles (“DOT”); whether the ALJ correctly classified Kawelo’s past work; and whether the ALJ properly weighed the medical opinion of the consultative psychological examiner, Dennis Donovan, Ph.D. After carefully reviewing the record, the Court concludes that the ALJ correctly determined that Kawelo was not disabled at Step 4 of the five-step sequential evaluation process. Because the ALJ’s decision was supported by substantial evidence and was not legally erroneous, the Court affirms the ALJ’s January 23, 2014 decision.


         Kawelo worked for 39 years at First Hawaiian Bank, until she retired for health reasons in 2008. Administrative Record (“AR”) 42, 47. During her employment with the bank, she worked as a bookkeeper, teller, customer service representative and loan officer. AR 42. She claims that her job increased in difficulty due to changes in procedures after September 11, 2001, and then magnified following a stroke she suffered in 2004. AR 44-47. According to Kawelo, her memory was impaired after her stroke, which made “learning the new federal guidelines and compliance standards, meeting datelines and things of that nature . . . much more stressful.” Opening Br. at 6. After leaving her job at the bank, she applied for a bookkeeping position at Zippy’s Restaurant, but did not get the job. AR 44. Thereafter, she did bookkeeping work for her husband’s business for ten hours per week until sometime in 2011, when that work also became too stressful for her. AR 44-45, 56.

         Kawelo filed for benefits on January 23, 2012. She was referred to the consulting psychological examiner, Dr. Donovan, for evaluation on August 3, 2012. AR 382-87. Her claim was initially denied on August 6, 2012, and subsequently denied upon reconsideration on June 19, 2013. AR 25. Kawelo requested a hearing, which the ALJ convened via video conference on December 2, 2013. AR 20, 25. Participating at the hearing were Kawelo and her attorney, and Vocational Expert (“VE”) Thomas Sartoris. AR 25.

         At the hearing, the ALJ questioned the VE and Kawelo regarding her past work. The ALJ first requested the VE to classify Kawelo’s past work at the bank:

ALJ: All right, Mr. Sartoris, the only past work - actually, let me ask you a question. My question, before we - the only past work that I see - I’m going to ask you to classify the past work, and then I’m going to ask you a question about the bookkeeping that the, that the claimant performed. So the past work as a - in the bank - for the bank, could you classify that for us?
VE: Yes. I, I do have a question. Did - I, I thought I heard her say she did bookkeeping tasks for the bank as well.
ALJ: That’s correct.
ALJ: That’s what I have. Yep.
VE: Okay. So, I have three different positions that I’ll use for the overall work at the bank. One would be a customer service representative for financial institutions, DOT code 205.362-026, that’s at an SVP: 6, exertional level classified as light. Second position is loan officer, DOT code 241.367-018, that’s at an SVP: 6, exertional level sedentary. And then the third position would be bookkeeper, DOT code 21[0]-.382014, that is as, as - let me start over. That is at an SVP: 6, exertional level sedentary.

AR 55-56. The ALJ then questioned the VE about the job duties of these three positions and presented him with hypothetical scenarios:

ALJ: . . . I’m going to ask you to assume an individual the claimant’s age, education, and past work who’s able to lift and carry 10 pounds frequently, 20 pounds, occasionally; can sit for six hours in an eight-hour day, stand/walk for six hours in an eight-hour day; can never climb ladders, ropes, scaffolds; can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl; can perform frequent gross and fine activities with the left upper extremity; and should avoid heights and other hazards. Is such an individual able to perform the claimant’s past work?
VE: Yes, Your Honor. Let me ask you the last environmental - avoid heights and what was the other?
ALJ: Other hazards, such as machinery?
VE: Oh, okay.
ALJ: Now, I’m going to, I’m going to add to the hypothetical that the individual would need a cane to walk. So, my question is, with this additional limitation, can such an individual perform the claimant’s past work?
VE: Okay. The only reason I’m hesitating is that - is the, the definitions of the job duties would not interfere with the person using a cane. Knowing what I know about banks, and I’m varying from the DOT, I don’t know if she had to lift and carry any bags of coins or things where she would be using one arm to carry and using the cane in the other upper extremity. That, that wouldn’t impact documents and things of that nature, but it may impact, again, if she were lifting boxes of coins, or bags of coins, or something like that.
. . . .
ALJ: Let me ask you, Ms. Kawelo, when you were the customer service rep for the bank, did you have to do any lifting of the type that Mr. Sartoris is talking about?
CLAIMANT: Yes, I did. There was times where I was also a, a second party for dual control to go into the vault, and we had to lift bag of coins [sic], and I was also - I also had access to safe - to opening safety deposit boxes for customers, and many of them is elderly [sic], and we used to have to lift the boxes for them[.]

AR 57-58.

         The ALJ then queried Kawelo about when she performed each of her positions at the bank as a customer service representative, loan officer, and bookkeeper. Kawelo’s responses appeared to show some overlap in her responsibilities:

ALJ: When you did the job of loan officer, did you also have to access the - was this - did you have to lift that weight or carry those things?
CLAIMANT: You know, when I was a CSR and a loan officer at the same time, I would say yes, because there was many times where I would have been interrupted, or if I didn’t have a customer and I would have to assist the supervisor to go to the vault to get cash money or coins for the tellers. There was many a times that I had to do that job as well.
ALJ: When you - did you say - CLAIMANT: But, you see, I’m working out in the branches, so the branches are a lot smaller than working at a huge bank where they have people doing all those different jobs.
. . . .
ALJ: - when you - did you was it ever that you did - now - that you did just the job of loan officer? That was it?
CLAIMANT: Say that again? I didn’t understand.
ALJ: Was there ever a circumstance when you did just the job of loan officer? It sounds like what you’re saying is that you did, like, a combination of all these duties.
CLAIMANT: Exactly. I did. As a loan -
ALJ: And -
CLAIMANT: - officer, yes, there was a time where I could just be able to sit at my desk, take in loan applications, speak with the customers, and do what I needed to do for a loan. Yes.
ALJ: Now, how long did you do that, where that was all you did, which is loan officer job?
CLAIMANT: Well, it came with the job title. With the CSR, we - you know, the bank - like I said, the bank had changed, so being a CSR, we had to do both. We had to [do] loan applications, be a loan officer, as well as be a CSR and open bank accounts for customers. We had to do it all. It wasn’t just -
ALJ: Was there -
CLAIMANT: - specifically just a loan officer and a CSR. We had to do it - it was part of my job to do it all.
ALJ: Okay. So, there was - it sounds like there was never a time - I mean, there, there may have been, there may have been a day or a couple of days in a row, where all you did was loan officer.
ALJ: But -
CLAIMANT: Exactly.
ALJ: - you - at, at any time, you could be called upon to do -
ALJ: - the customer service work as well. Is that -
CLAIMANT: Exactly.
ALJ: - right?
CLAIMANT: Correct.
ALJ: What about bookkeeper? Did you - was there a time when that’s all you did was the bookkeeping job?
CLAIMANT: Well, when I worked as a bookkeeper - when I first started with the bank, I was a bookkeeper as well, and that was really different, because you’re on the operational side, and that, that involved a lot of paperwork and balancing of GL accounts, and balancing on the accounting side. And as a bookkeeper as well, sometimes, if you had the mini-vault in the back of your area where you’re at, ...

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