Hodge v. SSA
Filing
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MEMORANDUM OPINION & ORDER: (1) AFFIRMING the decision of the Commissioner; (2) DENYING pla's 10 FIRST MOTION for Summary Judgment; (3) GRANTING dft's 11 MOTION for Summary Judgment; a judgment in favor of dft will be entered. Signed by Judge David L. Bunning on 4/30/15.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 14-246-DLB
JAMEY HODGE
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CAROLYN W. COLVIN,
Commissioner of Social Security
DEFENDANT
**************************
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record, will affirm the Commissioner’s decision, as it is supported by
substantial evidence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Jamey Hodge protectively filed his current application for Supplemental
Security Income (“SSI”) payments, alleging disability as of March 18, 2002. (Tr. 172-174).
Plaintiff’s claim was denied initially and on reconsideration. (Tr. 83-85). On November 12,
2008 and February 11, 2009, Administrative Law Judge Charles J. Arnold conducted
administrative hearings at Plaintiff’s request. (Tr. 18-28, 43-56). ALJ Arnold ruled that
Plaintiff was not entitled to benefits on April 24, 2009. (Tr. 7-17). This decision became
the final decision of the Commissioner when the Appeals Council denied review on October
27, 2009. (Tr. 1-4).
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Plaintiff appealed that decision to this Court on December 30, 2009. See Case No.
5:09-416-DCR (Tr. 386). The Commissioner ultimately acknowledged that remand was
appropriate “to allow the ALJ to reevaluate the Plaintiff’s residual functional capacity for
sedentary work in light of the functional limitations identified by Dr. Fritzhand and the state
agency physician.” (Tr. 403-08). Accordingly, the Court remanded the matter for further
administrative proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) on July 7,
2010. (Id.). The Appeals Council then vacated the final decision of the Commissioner and
remanded the case to Administrative Law Judge Don C. Paris on September 24, 2010. (Tr.
409-12).
ALJ Paris held an additional hearing on June 9, 2011. (Tr. 344-81). Plaintiff and
Vocational Expert Jackie B. Rogers testified at this proceeding. (Id.). On July 7, 2011, ALJ
Paris found that Plaintiff has not been under a disability since the application date. (Tr.
383-98). Plaintiff’s non-attorney representative, Kim Murphy, drafted written exceptions to
ALJ Paris’ decision and submitted them to the Appeals Council for review. (Tr. 32). The
Appeals Council considered these exceptions and found no reason to assume jurisdiction,
thus making ALJ Paris’ decision the final decision of the Commissioner on April 17, 2014.
(Tr. 339-42).
On June 19, 2014, Plaintiff filed the instant action. (Docs. # 1 and 2). Plaintiff asks
this Court to reverse the Commissioner’s most recent decision and order an outright award
of benefits. (Doc. # 10-1 at 8). This matter has culminated in cross motions for summary
judgment, which are now ripe for the Court’s review. (Docs. # 10 and 11).
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II. DISCUSSION
A.
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is defined as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. Id. Rather, we are to affirm
the Commissioner’s decision, provided it is supported by substantial evidence, even if we
might have decided the case differently. See Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant is still performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe”; Step 3, whether the impairments meet or equal
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his past
relevant work; and Step 5, whether significant numbers of other jobs exist in the national
economy which the claimant can perform. As to the last step, the burden of proof shifts
from the claimant to the Commissioner. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994).
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B.
The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the application date. (Tr. 388). At Step 2, the ALJ determined that Plaintiff’s chronic
backache, morbid obesity, anxiety disorder not otherwise specified and avoidant and
dependent features are severe impairments within the meaning of the regulations. (Id.).
The ALJ further found that Plaintiff’s hypertension constitutes a non-severe impairment.
(Id.).
At Step 3, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments listed in, or medically equal to, an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 391-93). The ALJ first noted that Plaintiff’s
physical impairments did not meet or equal Listing 1.04 (spine disorders) because “the
record is devoid of evidence of nerve root compression, spinal arachnoiditis or lumbar
spinal stenosis.” (Id.). Although obesity has been deleted from the Listing of Impairments,
the ALJ accounted for the cumulative effects of this condition in reaching his conclusion.
(Id.).
The ALJ further found that Plaintiff’s mental impairments did not meet or medically
equal Listing 12.06 (anxiety-related disorders) or Listing 12.08 (personality disorders). (Id.).
In making this determination, the ALJ noted that Plaintiff has only mild restrictions in
activities of daily living and moderate difficulties in social functioning. (Id.). Plaintiff testified
that he is independent in caring for his personal needs. (Id.). He typically spends his time
watching television, caring for his dog and accompanying his mother on errands. (Id.). He
is capable of driving, cleaning and mowing the yard. (Id.). Plaintiff interacted appropriately
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with the ALJ at the hearing and reported no problems getting along with friends and family.
(Id.). The ALJ found that Plaintiff has moderate difficulties with concentration, persistence
or pace, noting that he does not require special reminders, can follow spoken directions
and is able to hunt and fish. (Id.). Given Plaintiff’s mild to moderate limitations in these
areas, combined with a lack of episodes of decompensation, the ALJ found that he did not
meet the criteria for either Listing. (Id.).
At Step Four, the ALJ concluded that Plaintiff has the residual functional capacity
(RFC) to perform a significant range of sedentary work, as defined in 20 C.F.R. §
416.967(a); that is:
[t]he claimant can occasionally lift/carry ten pounds, frequently less than ten
pounds; stand/walk at least two hours during an eight-hour workday;
however, he requires a sit/stand option with no prolonged standing or walking
in excess of thirty minutes without interruption. He should perform no more
than frequent push or pull or use of foot controls with the lower extremities;
only occasional climbing stairs/ramps, never climbing ladder/rope/scaffolds;
only occasional balancing, stooping, kneeling or crouching; never crawling;
he should avoid concentrated exposure to extreme heat, humidity, full body
vibration and he should avoid all hazards such as unprotected heights and
dangerous machines. The claimant has the mental ability to understand,
remember and carry out simple work instructions; sustain attention to
complete simple repetitive work tasks for two hour segments in an eight-hour
workday in a low stress object focused work setting in which contact with
coworkers is casual and infrequent in a non-public work setting[;] and adapt
to routine chances and pressures of a routine work environment.
(Tr. 393). The ALJ further noted that Plaintiff has no past relevant work. (Tr. 397).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step 5, the ALJ found that there are a significant number of jobs in the national economy
that Plaintiff could perform. (Tr. 397-98). The ALJ based this conclusion on testimony from
a vocational expert (“VE”), in response to a hypothetical question assuming an individual
of Plaintiff's age, education, work experience, and RFC. (Id.). The VE testified that a
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hypothetical individual with Plaintiff's vocational profile and RFC could find sedentary
unskilled work as bench assembly (6,900 Kentucky/460,000 nationally) or order clerk
(6,900 Kentucky/350,000 nationally). (Tr. 398). Based on the testimony of the VE and
Plaintiff’s age, education, work experience, and RFC, the ALJ found that Plaintiff is capable
of making a successful adjustment to other work and thus concluded that he was not under
a "disability," as defined by the Social Security Act. (Id.).
C.
Analysis
Plaintiff complains that the ALJ “erred by finding that [his] age, education, work
experience and residual functional capacity enabled him to do any other work pursuant to
step five of the sequential evaluation process.” Doc. # 10 at 1). This argument is two-fold.
First, Plaintiff asserts that the VE’s testimony was inconsistent with the Dictionary of
Occupational Titles. He then contends that the ALJ failed to resolve this conflict in the
evidence. Thus, Plaintiff concludes that the VE’s testimony is an inadequate basis for
finding he is “capable of making a successful adjustment to other work that exists in
significant numbers in the national economy.” (Doc. # 10-1 at 6-7; Tr. 398).1
1.
The VE’s testimony was not inconsistent with the Dictionary of
Occupational Titles
At the fifth step of the disability determination analysis, the burden shifts to the
Commissioner to establish the claimant’s ability to do other work. Lindsley v. Comm’r of
Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009). The ALJs may consider “‘reliable job
information’” from various vocational publications “as evidence of the claimant’s ability to
1) These seem to be the only alleged points of error developed on appeal. Any other “issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,”
are waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
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do other work ‘that exists in the national economy.” Id. (quoting Soc. Sec. Rul. 00-4p, 2000
WL 1898704, at *2 (Dec. 4, 2000)); see also 20 C.F.R. §§ 404.1566(d), 416.966(d). Such
publications include the Dictionary of Occupational Titles (“DOT”), which “includes
information about jobs (classified by their exertional and skill requirements) that exist in the
national economy.” See Soc. Sec. Rul. 00-4p, 2000 WL 1898704, at *2. ALJs may also
“consider the testimony of so-called ‘vocational experts’ (“VEs”) as a source of occupational
evidence.”2 Id.; see Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010)
(stating that the ALJ may rely on the VE’s testimony so long as it is given in response to
an accurate hypothetical).
The ALJ must identify any conflicts between occupational evidence provided by the
VE and information set forth in the DOT. See Soc. Sec. Rul. 00-4P, 2000 WL 1898704, at
*1 (Dec. 4, 2000). The ALJ is then responsible for obtaining a reasonable explanation of
these conflicts and detailing his or her resolution thereof. Id. Unless such conflicts are
appropriately addressed, the ALJ may not rely on the VE’s testimony to support a disability
determination. Id.
2) At Step 5, the ALJ also considers the Medical-Vocational Guidelines listed in 20 C.F.R. Part 404,
Subpart P, Appendix 2. As ably stated by ALJ Paris, “[i]f the claimant can perform all or
substantially all of the exertional demands at a given level of exertion, the medical-vocational rules
direct a conclusion of either ‘disabled’ or ‘not disabled’ depending upon the claimant’s specific
vocational profile (SSR 83-11).” (Tr. 397). If the claimant is unable to perform “substantially all of
the exertional demands of work at a given level of exertion and/or has nonexertional limitations, the
medical-vocational rules are used as a framework for decision-making,” unless there is a rule
directing a conclusion of ‘disabled’ without consideration of these additional limitations. (Id.).
In this case, “[i]f the claimant had the residual functional capacity to perform the full range of
sedentary work, a finding of ‘not disabled’ would be directed by Medical-Vocational Rule 201.27.”
(Id.). However, the ALJ found that the “claimant’s ability to perform all or substantially all of the
requirements of this level of work has been impeded by additional limitations.” (Id.). The ALJ then
used the VE’s testimony to “determine the extent to which these limitations erode the unskilled
sedentary occupational base.” (Id.). Again, it is this testimony that is the focus of Plaintiff’s appeal.
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The DOT assigns all occupations a specific vocational preparation (“SVP”) number,
which is defined as “the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” See The Dictionary of Occupational Titles,
Appendix C, Section II (available at www.occupationalinfo.org). An SVP 1 indicates that
only a short demonstration is necessary, while an SVP of 2 corresponds to “[a]nything
beyond a short demonstration up to and including [one] month.” Id. An occupation cannot
be classified as unskilled work if it carries an SVP higher than 1 or 2. See 20 C.F.R. §§
404.1568, 416.968; see also Soc. Sec. Rul. 00-4P, 2000 WL 1898704, at *1 (“Although
there may be a reason for classifying an occupation’s skill level differently than in the DOT,
the regulatory definitions of skill levels are controlling.”).
In this case, ALJ Paris found that Plaintiff had an RFC to perform unskilled sedentary
work. (Tr. 397). He then asked the VE whether jobs exist in the national economy for a
hypothetical individual with Plaintiff’s age, education, work experience and residual
functional capacity. (Id.). The VE testified that Plaintiff would be able to perform the
requirements of representative occupations such as bench assembly (6,900
Kentucky/460,000 nationally) or order clerk (6,900 Kentucky/350,000 nationally). (Tr. 398).
The VE explicitly stated that these were unskilled sedentary positions carrying an SVP of
2. (Tr. 376). Based on this testimony, the ALJ concluded that Plaintiff was “capable of
making a successful adjustment to other work that exists in significant numbers in the
national economy.” (Id.).
The DOT provides almost identical descriptions of bench assembly and order clerk
positions. See The Dictionary of Occupational Titles, # 574.685-010 and # 209.567-014
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(available at www.occupationalinfo.org).3 It characterizes both occupations as sedentary
positions requiring an SVP of 2. Id. Nevertheless, Plaintiff complains that order clerk is not
an appropriate representative occupation because it carries a General Educational
Development (“GED”) Reasoning Level of 3. (Doc. # 10-1 at 6-7).
The GED scale “embraces those aspects of education (formal and informal) which
are required of the worker for satisfactory job performance.” See The Dictionary of
Occupational Titles, Appendix C, Section III (available at www.occupationalinfo.org). It is
an advisory scale composed of three divisions: Mathematical Development, Language
Development and Reasoning Development. Id.; see also Matelski v. Comm’r of Soc. Sec.,
149 F.3d 1183, 1998 WL 381361, at *6 (6th Cir. 1998) (stating that “[t]he reasoning
development requirements [of the DOT] . . . are merely advisory in nature”). For positions
that carry a GED Reasoning Level of 3, an individual should be able to “[a]pply
commonsense understanding to carry out instructions furnished in written, oral or
diagrammatic form” and “[d]eal with problems involving several concrete variables in or
from standardized situations.” See The Dictionary of Occupational Titles, Appendix C,
Section III.
In making this argument, Plaintiff fails to explain why his representative occupations
cannot carry a GED Reasoning Level of 3. The ALJ specifically indicated that Plaintiff had
an RFC to perform sedentary unskilled work, thus indicating that appropriate representative
occupations must carry an SVP of 1 or 2. (Tr. 397-98). He never states that these
occupations must also carry a GED Reasoning Level of 3. Perhaps Plaintiff seeks to
3) Although the VE and ALJ generally refer to DOT #574.685-010 as the listing for bench
assembly, its specific title is “coater-brake linings.”
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equate the SVP scale to the GED Reasoning Levels, so that an SVP of 2 would correspond
to a GED Reasoning Level of 2. Unfortunately for Plaintiff, the Court is not aware of any
authority requiring him to do so. These two indices are intended to describe different
vocational requirements.4 Whereas the one denotes the time needed to “learn” the
particular position, the other speaks to the general critical thinking skills required for it. The
Court also has reason to believe that these indices are considered differently by ALJs and
VEs alike. After all, federal regulations tie the SVP scale to various categories of work
(unskilled, semi-skilled or skilled). GED Reasoning Levels, by contrast, are purely advisory
guidelines created by the DOT.5
Plaintiff also fails to explain why he cannot perform a position carrying a GED
Reasoning Level of 3. From the Court’s view, there is nothing about GED Reasoning Level
3 that exceeds Plaintiff’s capabilities. The ALJ found that Plaintiff is able to “understand,
remember and carry out simple work instructions; sustain attention to complete simple
repetitive work tasks for two hour segments in an eight-hour workday in a low stress object
focused work setting in which contact with coworkers is casual and infrequent in a non-
4) The VE made a similar point during cross-examination. (Tr. 379-80). While these indices
measure different vocational requirements and do not directly equate number-wise, the VE made
an astute practical observation that the Court finds persuasive. “If something takes less than 30
days to learn then the reasoning level is not going to be that high, or needed to be that high to
accomplish the task.” (Id.).
5) Plaintiff briefly states that “the ALJ never addressed reasoning requirements at all despite that
it was brought up at the hearing and in a supplemental brief and he was required to take
administrative notice of it.” (Doc. # 10-1 at 7). The record reflects that Plaintiff’s representative did
indeed cross-examine the VE on this point and submit a supplemental brief about it. (Tr. 378-380,
446-47). Just because the ALJ did not specifically mention this issue in his analysis does not mean
that he ignored it. Even if the ALJ failed to fully consider the GED Reasoning Levels, the Court
would remind Plaintiff that they are purely advisory. Thus, the ALJ was under no obligation to
consider them.
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public work setting.” (Tr. 393). The ALJ also concluded that Plaintiff is able to “adapt to
routine chances and pressures of a routine work environment.” (Id.). Thus, the Court finds
no conflict between the VE’s testimony and the DOT regarding the representative
occupation of order clerk.
2.
The ALJ did not fail to resolve any conflicts in the evidence
For reasons stated above, the Court found that Plaintiff failed to establish the
existence of a conflict between the VE’s testimony and information contained in the DOT.6
Absent such a conflict, the Court simply cannot find that the ALJ failed to do his due
6) In fact, the only discernible discrepancy between these two sources concerns a sit/stand option.
The Court is under no obligation to consider this inconsistency, as it was not identified in Plaintiff’s
Motion. However, it will briefly address the issue because the Commissioner briefed it in detail.
The VE indicated that bench assembly and order clerk positions would allow a worker to
alternate sitting and standing. (Tr. 376). The DOT does not address the availability of a sit/stand
option. It is unclear whether this inconsistency even qualifies as a conflict requiring resolution in
accordance SSR 00-4p. Some courts within the Sixth Circuit have held that it is not. See, e.g.,
Reed v. Comm’r of Social Sec., No. 1:10-cv-350, 2011 WL 4571813, at *9 (W.D. Mich. Sept. 30,
2011) (“As courts recognize, ‘[b]ecause the DOT does not address the subject of sit/stand options,’
testimony from a vocational expert that there exist jobs which a claimant, subject to a sit/stand
limitation, can perform is not in conflict with the DOT.”). Even if such a conflict exists, the ALJ
appropriately identified, explained and resolved it in his hearing decision:
In response to inquiry by the undersigned, the vocation expert acknowledged that
the DOT fails to address or recognize a vocational sit/stand option. The vocational
expert addressed this inconsistency by testifying that, based on her experience in
the field of vocational rehabilitation in matching disabled workers with specific
vocations[,] she had found that a significant number of jobs in the national economy
at the light and sedentary exertional level would accommodate a sit/stand option.
Furthermore, the vocational expert testified that such an opinion was based upon
years of specific job analysis of various occupations. The vocational expert further
testified that the jobs cited herein as examples would accommodate a sit/stand
option and that the total numbers available had been reduced to reflect the sit/stand
option. Based on this testimony, the undersigned concludes, and so finds, that any
inconsistency existing in regard to occupations available to the claimant in the
national economy and the DOT description of such jobs has been resolved.
(Tr. 398).
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diligence. After all, the ALJ cannot fail to identify a conflict that does not exist, let alone
resolve it. Plaintiff’s second argument is therefore moot.
III. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)
The decision of the Commissioner is found to be supported by substantial
evidence and is hereby AFFIRMED;
(2)
Plaintiff’s Motion for Summary Judgment (Doc. # 10) is hereby DENIED;
(3)
Defendant’s Motion for Summary Judgment (Doc. # 11) is hereby GRANTED.
A Judgment in favor of Defendant Commissioner will be entered contemporaneously
herewith.
This 30th day of April, 2015.
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