Vermeer v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 15, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BRIAN K. VERMEER
Civil No. 4:16-cv-04088-BAB
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration1
Brian K. Vermeer (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of the Social Security Administration (“SSA”)
denying his claim for a period of disability and disability insurance benefits (“DIB”) under Title II
of the Social Security Act (“The Act”).
The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all
proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. (ECF No. 5).2 Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his disability application for DIB on December 21, 2012. (ECF
No. 10, pp. 16, 246). In his application, Plaintiff alleges being disabled due to: bronchiectasis and
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 should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
The docket numbers for this case are referenced by the designation “ECF No. ___.” The
transcript pages for this case are referenced by the designation “ECF No. ___, p. ___.”
severe uncontrolled asthma. (ECF No. 10, p. 257). Plaintiff alleges an onset date of December 21,
2012. (ECF No. 10, pp. 16, 246). These applications were denied initially and again upon
reconsideration. (ECF No. 10, pp. 88-106).
Thereafter, Plaintiff requested an administrative hearing on his denied application, and this
hearing request was granted. (ECF No. 10, pp. 150-55). Plaintiff’s first administrative hearing was
held on May 20, 2014, via video conference between San Antonio, Texas and Texarkana, Arkansas.
(ECF No. 11, pp. 36-54). Plaintiff was present and was represented by Greg Giles. Id. Plaintiff
testified at this hearing, but the hearing was continued until April 28, 2015, to allow a consultative
examination with pulmonary function testing. Id. Plaintiff was present at this supplemental hearing
and was represented by Greg Giles. (ECF No. 10, pp. 40-61). Plaintiff, Vocational Expert (“VE”)
Jerry Hildre, and Medical Expert (“ME”) Dr. Charles Murphy, testified. (ECF No. 10, pp. 40-87).
At the time of this supplemental hearing, Plaintiff was forty-six (46) years old, which is defined as
a “younger person” under 20 C.F.R. §§ 404.1563(c). As for his level of education, Plaintiff
completed four years of college and taught high school physics, chemistry, and physical science.
(ECF No. 10, pp. 47, 249).
After this hearing, on September 16, 2015, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (ECF No. 10, pp. 13-34). In this decision, the ALJ found Plaintiff
met the insured status requirements of the Act through December 31, 2017. (ECF No. 10, p. 18,
Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since
December 21, 2012, his alleged onset date. (ECF No. 10, pp. 18-19, Finding 2). The ALJ
determined Plaintiff had the following severe impairments: obstructive pulmonary disease due to
asthma, bronchiectasis, obstructive sleep apnea, obesity, and anxiety. (ECF No. 10, p. 19, Finding
3). Despite being severe, the ALJ determined these impairments did not meet or medically equal the
requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Part 404
(“Listings”). (ECF No. 10, pp. 19-21, Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No. 10,
pp. 21-32, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to:
lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk 6 hours out
of an 8-hour workday, and sit 6 hours out of an 8-hour workday with normal breaks.
[Plaintiff] can frequently push/pull within the above specified weight capacities. He
can frequently operate foot controls. [Plaintiff] can never climb ropes, ladders, or
scaffolds but he can occasionally climb stairs. He can occasionally stoop, bend,
balance, crouch, kneel, and crawl. He has no manipulative limitations. [Plaintiff]
cannot be exposed to unprotected heights and uneven terrain. [Plaintiff] cannot be
exposed to even moderate fumes, odors, dusts, gases, or poor ventilation. He cannot
be exposed to concentrated amounts of humidity or wetness and should avoid
extreme temperature changes. [Plaintiff] cannot be exposed to hazardous materials
or commercial driving. He can perform detailed (but not complex) tasks. [Plaintiff]
is able to respond appropriately to supervisors and coworkers. [Plaintiff] can be
occasionally exposed to the general public. He is able to use judgment appropriately.
[Plaintiff] is able to maintain attention, concentration, persistence, and pace for at
least 2 hours at a time for a total of 8 hours during an 8-hour workday. He is able to
tolerate routine changes in a work setting.
The ALJ then determined Plaintiff was unable to perform his Past Relevant Work (“PRW”).
(ECF No. 10, p. 32, Finding 6). The VE testified at the administrative hearing regarding this issue.
(ECF No. 10, pp. 53-58). Based on Plaintiff’s age, education, work experience, and RFC, the ALJ
determined there were jobs existing in significant numbers in the national economy Plaintiff could
perform, such as an optical goods assembler, which has a DOT code of 713.687-018, with
approximately one hundred six thousand (106,000) jobs in the national economy and six hundred
(600) jobs in the regional economy, as a lens inserter, which has a DOT code of 713.687-026, with
approximately one hundred thousand (100,000) jobs in the national economy and five hundred (500)
jobs in the regional economy, and as an assembler, which has a DOT code of 706.684-022, with
approximately five hundred thousand (500,000) jobs in the national economy and one thousand three
hundred (1,300) jobs in the regional economy. (ECF No. 10, p. 33, Finding 10). Because jobs exist
in significant numbers in the national economy which Plaintiff can perform, the ALJ also determined
Plaintiff had not been under a disability, as defined by the Act, from December 21, 2012, through
September 16, 2015, the date of the ALJ’s decision. (ECF No. 10, p. 33, Finding 11).
Thereafter, on September 27, 2015, Plaintiff requested review of the hearing decision by the
Appeals Council. (ECF No. 10, pp. 11-12). The Appeals Council denied Plaintiff’s request on
August 26, 2016. (ECF No. 10, pp. 5-10). On September 20, 2016, Plaintiff filed the present appeal
with this Court. (ECF No. 1). The Parties consented to the jurisdiction of this Court on September
21, 2016. (ECF No. 5). This case is now ready for decision.
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. see 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. see Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record to support the Commissioner’s decision,
the Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. see
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. see Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. see Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. § 423(d)(1)(A). The Act defines a “physical or
mental impairment” as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3). A plaintiff must show his or her disability, not simply his or
her impairment, has lasted for at least twelve consecutive months. see 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (“RFC”) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove there are other jobs in the national economy the claimant can perform.
see Cox, 160 F.3d at 1206; 20 C.F.R. § 404.1520(a)(4). The fact finder only considers the plaintiff’s
age, education, and work experience in light of his or her RFC if the final stage of this analysis is
reached. see 20 C.F.R. § 404.1520(a)(4)(v).
In his appeal brief, Plaintiff raises two issues for appeal: 1) the ALJ erred in finding Plaintiff
did not meet the criteria of Listings 3.02, 3.02, 3.07, 3.10, and 12.06; and, 2) the ALJ failed to
resolve the conflict between the VE’s testimony and the ALJ’s finding that Plaintiff could perform
light work. (ECF No. 11).
The claimant bears the burden of proving his impairment meets or equals the criteria for a
specific listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). "For a claimant to show
that his impairment matches a listing, it must meet all of the specified medical criteria." Brown ex
rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004)(internal quotations and citation
omitted). Where the claimant suffers from an unlisted impairment, the ALJ must compare the
claimant’s impairment with an analogous listed impairment. 20 C.F.R. § 404.1526. Furthermore,
the question is whether the ALJ "consider[ed] evidence of a listed impairment and concluded that
there was no showing on th[e] record that the claimant's impairments . . . m[et] or are equivalent to
any of the listed impairments." Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (internal
quotations omitted). While it is preferable an ALJ address a specific listing, the failure to do so is
not reversible error if the record supports the overall conclusion. see Pepper ex rel. Gardner v.
Barnhart, 342 F.3d, 853, 855 (8th Cir. 2004), Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001); see also Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011)(“There is no error when an
ALJ fails to explain why an impairment does not equal one of the listed impairments as long as the
overall conclusion is supported by the record.”).
Plaintiff’s impairments do not meet the criteria for Listing 3.02(A) Listing 3.02(A) requires
a forced expiratory volume (FEV1) value less than or equal to the value specified in Table I of the
listing corresponding to Plaintiff’s height without shoes. 20 C.F.R. pt. 404, subpt. P, app. 1, §
3.02(A). Plaintiff’s spirometry reports state his height as sixty-nine (69) inches which has a
corresponding value on Table I of 1.45. Id. Plaintiff’s test on November 6, 2012, showed FEV1
values of 1.68 and 2.01, pre and post administration of a bronchodilator respectively. (ECF No. 10,
p. 343). Further testing on June 20, 2013 revealed FEV1 values of 2.71 and 2.73, and testing on
January 8, 2015, revealed FEV1 values of 3.20 and 2.35. (ECF No. 10, pp. 467, 524). None of the
FEV1 values are equal to or less than 1.45 and Plaintiff’s impairments, therefore, do not meet the
criteria for Listing 3.02(A).
Plaintiff’s impairments do not meet the criteria for Listing 3.02(B). Listing 3.02(B) requires
a FEV1 value less than or equal to the value specified in Table II of the listing corresponding to
Plaintiff’s height without shoes, which for Plaintiff is a value of 1.65. 20 C.F.R. pt. 404, subpt. P,
app. 1 § 3.02(B). Given Plaintiff’s FEV1 values discussed above, none of the FEV1 values are equal
to or less than 1.65 and Plaintiff’s impairments, therefore, do not meet the criteria for Listing
Plaintiff’s impairments do not meet the criteria for Listing 3.02(C). The record does not
contain evidence from a diffusing capacity of the lungs for carbon monoxide study (“DLCO”) or
arterial blood gas study (“ABGS”) that Plaintiff’s impairments met the criteria specified in Listings
3.02(C)(1) or 3.02(C)(2). Plaintiff’s DLCO value on January 8, 2015, was only seventeen percent
(17%) of the predicted normal value, but the examiner noted that the value was likely an error in the
testing. (ECF No. 10, pp. 522, 524).
Plaintiff’s impairments do not meet the criteria for Listing 3.03. Listing 3.03(A) is evaluated
under the criteria for Listing 3.02(A) which, as discussed above, Plaintiff’s impairments do not meet.
20 C.F.R. pt. 404, subpt. P, app. 1 § 3.03(A). Listing 3.03(B) requires documentation of attacks
described in 3.00(C). Id. at § 3.03(B). These attacks “are defined as prolonged symptomatic
episodes lasting one or more days and requiring intensive treatment, such as intravenous
bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a
hospital, emergency room or equivalent setting.” Id. at § 3.00(C). The record does not contain
evidence of such attacks and Plaintiff’s impairments, therefore, do not meet the criteria for Listing
Plaintiff’s impairments do not meet the criteria for Listing 3.07. Listing 3.07 requires
evidence of the same criteria previously discussed: impairment of pulmonary function evaluated
under the criteria of Listing 3.02; or, episodes of bronchitis or pneumonia or hemoptysis or
respiratory failure documented according to section 3.00(C). As discussed previously, Plaintiff’s
impairments do not meet the corresponding criteria of those sections and therefore do not meet the
criteria for Listing 3.07.
Plaintiff’s impairments do not meet the criteria for Listing 3.10. The record does not contain
evidence of cor pulmonale with a mean pulmonary artery pressure greater than 40 mm Hg or
evidence of arterial hypoxemia evaluated under the criteria of Listing 3.02(C)(2) as discussed above.
Plaintiff’s impairments, therefore, do not meet the criteria for Listing 3.10.
Plaintiff’s impairments do not meet the criteria for Listing 12.06. Listing 12.06 requires
Plaintiff’s impairments meet the criteria of parts A and B or parts A and C. 20 C.F.R. pt. 404, subpt.
P, app. 1 § 12.06. Plaintiff’s impairments do not meet the criteria of parts B or C. Part B requires
marked restriction in at least two of the following areas: activities of daily living; social functioning;
maintaining concentration, persistence, or pace; or, repeated episodes of decompensation, each of
extended duration. Id. at § 12.06(B). The ALJ determined Plaintiff suffered only mild limitation
in his activities of daily living. (ECF No. 10, p. 20). Plaintiff was able to help his daughter prepare
for school, prepare simple meals, perform household chores such as doing the laundry, cleaning
house, and washing dishes, drive his daughter to and from school, use a computer, and run errands
and shop for groceries. (ECF No. 10, pp. 20, 274-81). The ALJ determined Plaintiff suffered only
moderate limitation in the area of social functioning. Id. The ALJ acknowledged Plaintiff’s wife
“found him to be overly sensitive” and that Plaintiff has some difficulty interacting with others in
public, but the ALJ also noted that Plaintiff taught a young adult class at his church in May of 2014.
Id. The ALJ determined Plaintiff suffered only mild limitation in the area of concentration,
persistence, and pace. Id. at 20-21. IQ testing revealed Plaintiff possessed a full scale IQ of 137 and
had no difficulty with reading, writing, spelling, or mathematical screening tasks, his memory
performance was unimpaired, and he indicated he finished what he started. (ECF No. 10, pp. 49091). Plaintiff, moreover, has not experienced any episodes of decompensation of extended duration.
Furthermore, Plaintiff has not exhibited a “complete inability to function independently outside the
area of [his] own home,” as required by the criteria of part C. Objective evidence in the record as
well as Plaintiff’s own testimony supports the ALJ’s determination that Plaintiff’s impairments did
not meet the criteria of Listing 12.06.
Hypothetical Questions to the VE
Plaintiff argues the ALJ’s decision conflicts with the VE testimony because the VE testified
Plaintiff was unable to perform his sedentary PRW but was still able to perform jobs at the light
exertion level. (ECF No. 10, pp. 14-19). Plaintiff’s argument is without merit. The VE classified
Plaintiff’s PRW as light and skilled with a SVP of 7:
Based on that and the claimant’s report, what is the claimant’s past relevant
work, Mr. Hildre?
Judge, during that period he was a high school teacher. It’s going to come in
at light, skilled, SVP 7.
That, again, is light, skilled, with an SVP level of 7.
Okay. Any other job?
(ECF No. 10, pp. 53-54). As for the hypothetical question presented to the VE, the hypothetical
precisely tracks the RFC the ALJ ultimately assigned to Plaintiff. (ECF No. 10, pp. 21-22, 54-56).
The hypothetical the ALJ posed to the VE fully set forth the impairments that the ALJ accepted as
true and which were supported by the record as a whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th
Cir. 2005). Accordingly, I find that the VE’s opinion constitutes substantial evidence supporting the
ALJ’s conclusion that Plaintiff’s impairments did not preclude him from performing the work of an
optical goods assembler, a lens inserter, or an assembler. Pickney v. Chater, 96 F.3d 294, 296 (8th
Cir. 1996) (testimony from a VE based on a properly phrased hypothetical question constitutes
substantial evidence). Plaintiff argues a conflict exists because the ME, Dr. Murphy found that
Plaintiff had no respiratory impairment and no limitations, but this argument has no merit as Dr.
Murphy did testify that Plaintiff suffered from a number of severe impairments which limited him
to a light RFC with environmental limitations. (ECF No. 10, pp. 48-49, 51-52).
Based on the foregoing, the undersigned finds the decision of the ALJ, denying benefits to
Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 14th day of August 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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