Brooks v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER: Accordingly, for the reasons discussed, the decision of the Commissioner will be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. 405(g) by separate judgment so that the Commissioner can conduct additiona l proceedings consistent with this opinion. The court does not reach plaintiffs arguments that are not expressly discussed herein. The court expects that the Commissioner will consider plaintiffs arguments as to those issues on remand as well, and will develop the record as is necessary in areas not expressly considered in this opinion. Signed by Honorable Judge Susan Russ Walker on 9/29/2017. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JEMITA J. BROOKS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

CASE NO. 2:16cv101-SRW

MEMORANDUM OPINION AND ORDER2
Plaintiff Jemita A. Brooks commenced this action on February 16, 2016, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner denying her application for disability, disability insurance benefits, and
Supplemental Security Income. See Doc. 1; Doc. 14; R. 24. Plaintiff alleged disability as
of June 5, 2012 due to “[l]upus, joint pain, back problems, skin problems, kidney
[problems]” and “high blood pressure.” R 219. On July 11, 2014, Administrative Law
Judge Renita Barnett-Jefferson (“the ALJ”) issued an adverse decision.3 See R. 24-30. The

1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. The Clerk of Court is DIRECTED to
take the appropriate steps to reflect this change on the docket sheet.
2

For the purposes of this appeal, the court uses the Code of Federal Regulations (“C.F.R.”) that was
effective until March 27, 2017, as that was the version of the C.F.R. in effect at the time of the ALJ’s
decision and the filing of this appeal.
3

Plaintiff was represented by counsel at the hearing before the ALJ. See R. 24.

1

Appeals Council denied plaintiff’s request for review, and the ALJ’s decision became the
final decision of the Commissioner. See id. at 1-3.
In the instant appeal, the plaintiff requests that the court remand this cause to the
Commissioner under sentence four of § 405(g). See Doc. 14. This case is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to entry of final
judgment by the Magistrate Judge. See 28 U.S.C. § 636(c). See Doc. 11, 12. For the reasons
stated herein, and based upon its review of the record, the court finds that the
Commissioner’s decision is due to be remanded.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this court is to determine whether the decision of the Commissioner is
supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002). This court must “scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It
is “more than a scintilla, but less than a preponderance.” Id. A reviewing court “may not
decide facts anew, reweigh the evidence, or substitute [its] decision for that of the
[Commissioner].” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In other words,
this court is prohibited from reviewing the Commissioner’s findings of fact de novo, even
where a preponderance of the evidence supports alternative conclusions.
2

While the court must uphold factual findings that are supported by substantial
evidence, it reviews the ALJ’s legal conclusions de novo because no presumption of
validity attaches to the ALJ’s determination of the proper legal standards to be applied.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s
application of the law, or if the ALJ fails to provide the court with sufficient reasoning for
determining that the proper legal analysis has been conducted, it must reverse the ALJ’s
decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. The Regulations define “disabled” as “the inability
to do any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12) months.” 20 C.F.R. §
404.1505(a). To establish an entitlement to disability benefits, a claimant must provide
evidence about a “physical or mental impairment” that “must result from anatomical,
physiological, or psychological abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

3

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to a formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The sequential
analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment. If
the claimant does not have a listed impairment but cannot perform her work,
the burden shifts to the [Commissioner] to show that the claimant can
perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.
DISCUSSION
The ALJ found that the plaintiff suffers from the severe impairments of lupus,
hypertension, obesity, and myalgias (muscle aches). See R. 26. Also, the ALJ noted that
the plaintiff has the non-severe impairments of presbyopia and diminished vision that is
correctable. See id. The ALJ concluded that the plaintiff does not have an impairment or
combination of impairments that meet or medically equal a listed impairment. See id. at
27. As she must, the ALJ considered all of the plaintiff’s impairments individually and
collectively “in determining the [plaintiff’s] residual functional capacity” (“RFC”). Id.
4

The ALJ made the following RFC determination:
[T]he [plaintiff] has the [RFC] to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant can occasionally push and
pull foot and hand controls with the left and right extremities. She can
frequently reach overhead and in all other directions, handle, and finger. She
can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. The
[plaintiff] can frequently balance, but never climb ladders or scaffolds. She
is restricted from hazards such as unprotected heights or moving mechanical
parts. She can see large items and is able to avoid ordinary hazards in the
workplace, such as boxes on the floor, doors ajar, or approaching people or
vehicles. The [plaintiff] is limited to simple, routine, and repetitive tasks.
Id. at 27. At step four, the ALJ found that the plaintiff can perform her past relevant work
as a manufacturer’s helper and assembler. See R. at 29. The ALJ’s findings resulted in a
determination that the plaintiff is “not disabled.” Id. at 31.
The plaintiff’s multiple arguments in favor of remand are based upon two general
contentions: (1) the ALJ erred at step four, and (2) the ALJ improperly discredited
plaintiff’s subjective testimony about the severity of her impairments. See Doc. 14. One of
the plaintiff’s arguments regarding the ALJ’s assessment at step four is that the ALJ erred
as a matter of law because she did not resolve a conflict between the Vocational Expert’s
(“VE”) testimony and the Dictionary of Occupational Titles (“DOT”). See Doc. 14 at 7-8.
Because remand is appropriate based on this argument, the court does not address the
plaintiff’s remaining assertions in favor of remand.
Social Security Ruling 00-4P “emphasizes that before relying on VE or VS evidence
to support a disability determination or decision, [an ALJ] must: Identify and obtain a
reasonable explanation for any conflicts between occupational evidence provided by VEs
or VSs and information in the Dictionary of Occupational Titles (DOT)[.]” SSR 00-4P,
5

2000 WL 1898704, at *1 (S.S.A. Dec. 4, 2000). If a VE “provides evidence about the
requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask
about any possible conflict between that VE or VS evidence and information provided in
the DOT.” Id. at *4. The ALJ must resolve the conflict before relying on a VE’s testimony
on the ultimate issue of disability. See id.
“Social Security Rulings are agency rulings ‘published under the authority of the
Commissioner of Social Security and are binding on all components of the
Administration.’” Ward v. Astrue, 2012 WL 607642, at *11 (M.D. Ala. Feb. 27, 2012)
(quoting Leonard v. Astrue, 487 F.Supp.2d 1333, 1339 (M.D. Fla. 2007) (citing, in turn,
Sullivan v. Zebley, 493 U.S. 521, 531 n. 9 (1990)). In Leonard, the court noted that the
Eleventh Circuit has not addressed SSR 00-4P, and held that
when an apparent conflict between the [VE’s testimony and the DOT] arises,
the SSR directs that the ALJ must elicit a reasonable explanation for the
conflict before relying on the VE’s testimony. Moreover, the ALJ is
obligated to inquire on the record as to whether there are any inconsistencies
between a VE’s testimony and the DOT. In addition, before the ALJ can rely
on the VE’s testimony as substantial evidence for his or her determination,
he or she must resolve any conflict between the VE’s testimony and the DOT.
SSR 00–4P provides that “[t]he adjudicator will explain in the determination
or decision how he or she resolved the apparent conflict.” It also indicates
that “[t]he adjudicator must explain the resolution of the conflict irrespective
of how the conflict was identified.”
Leonard, 487 F. Supp. at 1338-39 (internal marks and citations omitted). The Leonard
Court recognized that similar interpretations of SSR 00-4P have been adopted in the Tenth
and Third Circuits. See id. (citing Hackett v. Barnhart, 395 F.3d 1168, 1174–75 (10th Cir.
2005); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d. Cir. 2005)).

6

In the instant case, during the VE’s very brief testimony, the ALJ did not ask the
VE if there are any inconsistencies between his testimony and the DOT. See R. 66-67. The
VE testified that, “The manufacturing position, Your Honor, per the DOT, is medium. My
testimony was that the DOT categorized it as medium, but as described by the [plaintiff]
and in the record … it appears to have been performed at the light exertional level.” R. 67.
The ALJ also did not ask the VE, on whose testimony she relied at step four and in reaching
an adverse disability determination, to resolve the conflict between his testimony and the
DOT. See R. 66-67. Furthermore, the ALJ does not explain or even acknowledge the
conflict in her written decision. To the contrary, the ALJ inaccurately represents the VE’s
testimony in her finding that “[t]he vocational expert testified that the evidence provided
did not conflict with information contained in the DOT (SSR 00-4P).” R. 30.
This court is persuaded that the holding of Leonard is an accurate representation of
an ALJ’s duties under SSR 00-4P, and the ALJ in this case did not perform those duties.
Thus, the ALJ’s step four findings and disability determination are not based on substantial
evidence and proper legal standards were not employed. See Leonard, 487 F. Supp. at
1338-39. Under the circumstances, the court must remand this matter for additional
proceedings. See Cornelius, 936 F.2d 1143, 1145-46 (a district court must reverse when
correct legal standards were not applied by the Commissioner).
CONCLUSION AND ORDER
Accordingly, for the reasons discussed, the decision of the Commissioner will be
REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) by
separate judgment so that the Commissioner can conduct additional proceedings consistent
7

with this opinion. The court does not reach plaintiff’s arguments that are not expressly
discussed herein. The court expects that the Commissioner will consider plaintiff’s
arguments as to those issues on remand as well, and will develop the record as is necessary
in areas not expressly considered in this opinion.
DONE, on this the 29th day of September, 2017.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

8