Sprouse v. Commissioner of Social Security
MEMORANDUM, OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 10/14/2016. The Commissioner's findings are not supported by substantial evidence, and it is ordered that the case is remanded pursuant to sentence four of 42:405(g) for further proceedings consistent with this order. cc:counsel (JWM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:15-CV-00151 HBB
BRIEN D. SPROUSE
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Before the Court is the complaint (DN 1) of Brien Sprouse (“Plaintiff”) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 12) and Defendant (DN 17) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 9). By Order entered February
10, 2016 (DN 10), the parties were notified that oral arguments would not be held unless a
written request therefor was filed and granted. No such request was filed.
FINDINGS OF FACT
Plaintiff filed an application for Supplemental Security Income (SSI) benefits on July 17,
2014 (Tr. 172, 187). Plaintiff alleged that he became disabled on January 6, 2012 as a result of
anxiety, depression, and mental and emotional instability (Tr. 191). Administrative Law Judge
William C. Zuber (“ALJ”) conducted a hearing on June 2, 2014 in Louisville, Kentucky.
Plaintiff was present via video in Bowling Green, Kentucky and represented by Richard D.
Burchett, Esq. Also present and testifying was vocational expert Linda Jones.
In a decision dated June 25, 2014, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 17). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since July 17,
2012, the application date (Tr. 22). At the second step, the ALJ determined that Plaintiff’s
degenerative disc disease of the cervical and lumbar spine, depression, anxiety, and obesity are
“severe” impairments within the meaning of the regulations (Id.). Also at the second step, the
ALJ determined that Plaintiff’s foot and knee pain are “non-severe” impairments within the
meaning of the regulations (Id.). At the third step, the ALJ concluded that Plaintiff does not have
an impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 (Tr. 23).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of light work (Tr. 24). More specifically, the ALJ found that Plaintiff can
perform simple, unskilled, one or two step tasks that are non-fast paced or quota driven. Plaintiff
requires a sit/stand option at thirty minute intervals throughout the workday. Plaintiff can only
occasionally stoop, crouch, crawl, kneel, and climb ramps and stairs. Plaintiff must avoid
exposure to dangerous machinery and unprotected heights.
Plaintiff can have occasional
interactions with supervisors and coworkers, but interactions with the general public should be
limited. Finally, Plaintiff can concentrate for two-hour intervals (Tr. 24). Relying on testimony
from the vocational expert, the ALJ found that Plaintiff is unable to perform any of his past
relevant work (Tr. 28).
The ALJ proceeded to the fifth step where he considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational
expert (Tr. 29). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff has not
been under a “disability,” as defined in the Social Security Act, from July 17, 2012, through the
date of the decision (Id.).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
14). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1-6).
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by “substantial evidence,” 42 U.S.C. § 405(g);
Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs.,
974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied.
Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). “Substantial
evidence exists when a reasonable mind could accept the evidence as adequate to support the
challenged conclusion, even if that evidence could support a decision the other way.” Cotton, 2
F.3d at 695 (quoting Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.
1993)). In reviewing a case for substantial evidence, the Court “may not try the case de novo,
nor resolve conflicts in evidence, nor decide questions of credibility.” Cohen v. Sec’y of Health
& Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-6). At that point, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
of the Commissioner's decision). Thus, the Court will be reviewing the decision of the ALJ, not
the Appeals Council, and the evidence that was in the administrative record when the ALJ
rendered the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec.,
96 F.3d 146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The
term “disability” is defined as an
[I]nability to engage in 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)
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See “Evaluation of disability in general,” 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
Is the claimant engaged in substantial gainful activity?
Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?
Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Does the claimant have the residual functional capacity to
return to his or her past relevant work?
Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
Here, the ALJ denied Plaintiff’s claim at the fifth step. As previously noted, the ALJ
determined that Plaintiff possessed the residual functional capacity to perform a restricted range
of light work (Tr. 24). Occupations the expert listed as being within the limits of Plaintiff’s
residual functional capacity include hand bander, mail clerk, and checker (Tr. 57). The ALJ
based his assessment on his review of the complete medical record as well as the testimony of
the vocational expert. For the reasons set forth below, the undersigned concludes the ALJ’s
failure to ask the vocational expert about inconsistencies between her testimony and the
Dictionary of Occupational Titles (DOT) constitutes reversible error and remands this case for
further proceedings consistent with this order.
Plaintiff first challenges Finding No. 4, arguing that the ALJ failed to adequately evaluate
the opinion of consulting psychiatrist Dr. Crystal Sahner, Psy.D. (DN 12 at p. 2). As a general
matter, the opinion of an examining physician is entitled to less weight than the opinion of a
treating physician, and the opinion of a non-examining state agency physician is entitled to the
least weight of all. 20 C.F.R. § 416.927(c)(1), (c)(2), and (e); Social Security Ruling 96-6p. In
other words, “[t]he regulations provide progressively more rigorous tests for weighing opinions
as the ties between the source of the opinion and the individual become weaker.” Social Security
Ruling 96-6p, 1996 WL 374180, at *2 (July 2, 1996). “For example, the opinions of physicians
or psychologists who do not have a treatment relationship with the individual are weighed by
stricter standards, based to a greater degree on medical evidence, qualifications, and explanations
for the opinions, than are required of treating sources.” Id. For this reason the opinions of nonexamining State agency psychological advisers can be given weight only to the extent they are
supported by the evidence in the record. 20 C.F.R. § 416.927(f); Social Security Ruling 96-6p;
see also Atterbery v. Sec’y of Health & Human Servs., 871 F.2d 567, 570 (6th Cir. 1989)
(Opinions of a non-examining State agency psychological adviser that are consistent with the
evidence of record represent substantial evidence to support the Administrative Law Judge’s
In assigning weight to non-treating sources, the regulations require the ALJ to consider
certain factors, including “the examining relationship (or lack thereof), specialization,
consistency, and supportability . . . “ Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th
Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2). The ALJ may also consider other factors which
tend to support or contradict the consulting source’s opinion. Id. at 376. Notably, Social Security
Ruling 06-03p indicates not every factor in 20 C.F.R. § 416.927(c) will apply in every case.
Rather, assessment of other source opinions will depend on the facts of the particular case, and
each case should be adjudicated on its own merits based on a consideration of the probative
value and a weighing of all the evidence in the record.
In her one-time evaluation of Plaintiff in October of 2012, Dr. Sahner opined that
Plaintiff would suffer a marked limitation in his ability to tolerate the stress of a day-to-day
employment situation on an ongoing basis (Tr. 325). Dr. Sahner also assigned Plaintiff a GAF
score of 50, which is consistent with serious symptoms such as suicidal ideation, severe
obsessive rituals, frequent shoplifting, or other severe social limitations (Tr. 26). But Dr. Sahner
also found that Plaintiff could perform simple math, possessed a good memory, and was capable
of understanding and carrying out simple instructions (Id., Tr. 324). In addition, Dr. Sahner
described Plaintiff’s ability to make simple decisions to be “adequate” and found Plaintiff’s
output of effort also to be adequate where he completed “all of the more complex tasks on the
mental status correctly” (Tr. 324).
Moreover, Plaintiff’s treating psychiatrist, Dr. Jeffrey Zellers, assessed Plaintiff’s GAF
score at 65, a score indicative of little to no symptomology, in January of 2013, fewer than three
months after Dr. Sahner’s much lower assessment (Tr. 333). Finally, Plaintiff’s own testimony
concerning his daily activities is inconsistent with Dr. Sahner’s restrictive assessment. Plaintiff
testified that he takes care of his partially disabled mother, performs chores around the house,
drives without difficulty, spends time with friends and family, and uses a computer (Tr. 48-51).
The ALJ discussed the above inconsistencies (Tr. 28). In addition, the ALJ noted that the
Plaintiff has told his treating physicians that his medication was working well, and his history
shows only conservative treatments for his psychiatric conditions (Tr. 27). The Plaintiff’s claim
that the ALJ failed to discuss all of the factors enumerated in 20 C.F.R. § 416.927(c)(2) is
without merit. As mentioned above, each case requires individual attention, and the ALJ may
not need to consider every factor in every case.
Plaintiff next offers the incredible claim that the ALJ’s discussion of Plaintiff’s daily
activities, mentioned above, “have no evidentiary basis” (DN 12 at p. 7). This argument must
fail, however, when the evidentiary basis for the claims was Plaintiff himself. At the hearing,
Plaintiff and the ALJ engaged in the following exchange:
Q: Okay. Do you do any chores around the house?
A: A little, a few things. You know, I'll — my mom, you know,
she's partly disabled, you know, so I'll prepare meals. We get
somebody to cut the grass, and, you know, I just clean up around
the house, you know, and do what I need to do.
Q: Do you have anyone else doing stuff around the house other
than just the person who mows the lawn?
A: No, sir
In addition, Plaintiff testified that he has no difficulty driving, that he does all of the
housework, and that he runs all of the errands for himself and is mother (Tr. 49-50). Thus
Plaintiff’s claim that the evidentiary record does not support these facts is wholly without merit.
The Plaintiff further errs where he contends that it was reversible error for the ALJ to
consider Plaintiff’s attempts at work since the onset date of his alleged disability (DN 12 at pp.
7-8). The Plaintiff suggests that the ALJ used these instances of work activity in determining
Plaintiff’s residual functional capacity. But the ALJ’s residual functional capacity finding is not
consistent with any of the attempted jobs, and instead reflects a need for a greatly reduced
workload. In other words, the ALJ agreed with the Plaintiff that he could not perform any of the
jobs he attempted following the onset of his alleged disability. To the extent the ALJ discussed
Plaintiff’s attempts at work following his onset date, he did so only as a means of demonstrating
that Plaintiff was more socially available than Dr. Sahner’s report indicated (Tr. 28).
The undersigned concludes that the ALJ adequately addressed Dr. Sahner’s opinion and
thoroughly supported his decision to provide her opinion little weight.
undersigned concludes that the ALJ’s actions with respect to Dr. Sahner’s opinion are supported
by substantial evidence and comport with all applicable law.
Plaintiff next challenges the ALJ’s decision at Finding No. 9, arguing the ALJ erred by
failing to identify and resolve conflicts between the vocational expert’s testimony and the
Dictionary of Occupational Titles (DOT) (DN 12 at p. 10). Social Security Ruling 00-4p
requires the ALJ to ask the vocational expert whether inconsistencies exist between the expert’s
testimony and the DOT. The Ruling explains that the purpose of this requirement is to ensure
consistency between the vocational expert’s testimony and the occupational requirements as
described by the DOT. Id. If a conflict exists, the ALJ’s responsibility is to determine whether
the expert’s conflicting testimony is reasonable and offers a basis for relying on the expert rather
than the DOT. Id.
Plaintiff relies on Teverbaugh v. Comm’r of Soc. Sec., 258 F.Supp.2d 702, 705 (E.D.
Mich, 2003). Teverbaugh concerned a situation where the ALJ failed to inquire as to potential
Additionally, the expert did not provide job codes for any of the suggested
occupations. Id. at 704. Because each job title contained multiple job codes, in one instance
more than a hundred, the Plaintiff could not determine which jobs the ALJ and expert believed
Plaintiff possessed the requisite residual functional capacity to perform. Id. Notably, upon
inspection, the Plaintiff realized that some of the jobs suggested by the expert had corresponding
codes in the DOT that did not reflect the range of activity the ALJ set forth in his assessment of
plaintiff’s residual functional capacity.
These patent inconsistencies and ambiguities,
combined with the ALJ’s failure to attempt to identify and resolve conflicts, were enough for the
District Court to conclude the ALJ’s decision was not supported by substantial evidence. Id. at
The Plaintiff is correct that the Court in Teverbaugh stated that the ALJ’s failure to carry
its burden at this step has been found to constitute reversible error. Id. The authority cited in
Teverbaugh makes it abundantly clear that an ALJ’s failure to inquire into inconsistencies
between expert testimony and the DOT constitutes reversible error when the Plaintiff identifies a
conflict that the ALJ should have resolved. For instance, in Anschutz v. Barnhart, 202 F.
Supp.2d 1077, 1085-86 (S.D. Iowa 2002) the Court found reversible error where the vocational
expert did not reference the DOT at all, thereby failing to identify with specificity any jobs the
Plaintiff could perform. In Steward v. Barnhart, 44 Fed. App’x 151, 153 (9th Cir. 2002)
(unpublished), the Court reversed because the expert offered jobs which required transferable
skills, and the ALJ had previously determined that the Plaintiff possessed no transferable skills.
Although the Sixth Circuit Court of Appeals has not yet weighed in directly on the
precise requirements of the affirmative duty set forth in SSR 00-4p, several published opinions
from other circuits offer a glimpse into the trends affecting the ruling. The Third, Seventh,
Eighth, Ninth, and Tenth Circuits have addressed this issue. A survey of these opinions reveals
three trends, two of which strongly favor the Plaintiff in the current case, and a third which
The Ninth Circuit considers the 00-4p inquiry to serve an indispensable function in
ensuring that substantial evidence supports the ALJ’s decision. In Massachi v. Astrue, 486 F.3d
1149 (9th Cir. 2011), the Court wrote:
The procedural requirements of SSR 00–4p ensure that the record
is clear as to why an ALJ relied on a vocational expert's testimony,
particularly in cases where the expert's testimony conflicts with the
Dictionary of Occupational Titles.
In making disability
determinations, the Social Security Administration relies primarily
on the Dictionary of Occupational Titles for “information about the
requirements of work in the national economy.” The Social
Security Administration also uses testimony from vocational
experts to obtain occupational evidence. Although evidence
provided by a vocational expert “generally should be consistent”
with the Dictionary of Occupational Titles, “[n]either the
[Dictionary of Occupational Titles ] nor the [vocational expert] ...
evidence automatically ‘trumps' when there is a conflict.” Thus,
the ALJ must first determine whether a conflict exists. If it does,
the ALJ must then determine whether the vocational expert's
explanation for the conflict is reasonable and whether a basis exists
for relying on the expert rather than the Dictionary of Occupational
Here, the ALJ did not ask the vocational expert whether her
testimony conflicted with the Dictionary of Occupational Titles
and, if so, whether there was a reasonable explanation for the
conflict. Thus, we cannot determine whether the ALJ properly
relied on her testimony. As a result, we cannot determine whether
substantial evidence supports the ALJ's step-five finding that
Massachi could perform other work. Accordingly, we vacate in
part the district court's summary judgment upholding the
Commissioner's decision and instruct the district court to remand
this case so that the ALJ can perform the appropriate inquiries
under SSR 00–4p.
Id. at 1153-54 (internal citations omitted).
The Seventh Circuit echoed the Ninth Circuit when it addressed this issue in Prochaska v.
Barnhart, 454 F.3d 731 (7th Cir. 2006). There, the ALJ failed to satisfy the requirements of 004p. Id. at 735-36. The government conceded the argument, but maintained that the omission
resulted in harmless error.
The Seventh Circuit held that the Plaintiff identified specific
inconsistencies between the jobs cited by the vocational expert and the ALJ’s residual functional
capacity assessment. As a result, the reviewing court was in no position, based on the record, to
resolve the inconsistencies and could not conclude that the decision was supported by substantial
evidence. Id. The Tenth Circuit has adopted a similar view, holding that an ALJ’s failure to
inquire into inconsistencies constitutes reversible error when the Plaintiff identifies a conflict that
a court cannot resolve based on the material in the record. Hackett v. Barnhart, 359 F.3d 1168,
1175 (10th Cir. 2005).
The Eighth Circuit’s interpretation of SSR 00-4p is slightly softer than the reasoning
employed by the Seventh, Ninth, and Tenth Circuits. In Jones v. Astrue, 619 F.3d 963, 978 (8th
Cir. 2010), the Court acknowledged the ALJ’s failure to inquire into any inconsistencies between
the vocational expert’s testimony and the DOT. Nonetheless, the Court held that, because the
vocational expert expressly discussed how his assessment differed from the DOT, the ALJ did
not need to inquire separately. The expert’s stated limitations provided a “perfectly acceptable
basis for the Administrative Law Judge’s conclusions.” Id. (quoting Jones v. Chater, 72 F.3d 81,
82 (8th Cir. 1995).
The Third Circuit offers by far the narrowest view of SSR 00-4p. In Rutherford v.
Barnhart, 399 F.3d 546 (3rd Cir. 2005), the Third Circuit adopted the view that SSR 00-4p
applies only to the portion of an expert’s testimony that concerns the jobs a Plaintiff is still
capable of performing. Id. at 557. Moreover, the Court held that, in instances where there was
substantial evidence in the record to support the ALJ’s determination at step five, the presence of
unresolved inconsistencies that the ALJ failed to flush out would not constitute reversible error.
The Court based its reasoning primarily on the fact that the Plaintiff had identified an
inconsistency as to one job mentioned by the expert, but offered only minor inconsistencies with
the remaining jobs. Id. at (558). Furthermore, the expert expressly stated that his suggested list
of occupations was only a sampling of many jobs that would be available to a person with the
Plaintiff’s limitations. Id. But the Court suggested that, in cases where the expert does not
stipulate that the offered list of occupations is non-exhaustive, and where a legitimate
inconsistency exists as to each job the expert cites, the ALJ’s failure to inquire into and resolve
potential conflicts would likely constitute reversible error. Id. at 557-58.
Thus, the circuits have generally taken one of three approaches in this matter. The
Seventh, Ninth, and Tenth Circuits have interpreted the failure to observe the requirements of
SSR 00-4p to result in reversible error where a Plaintiff can demonstrate nearly any
inconsistency. The Eighth Circuit has carved out an exception, forgiving the requirement when
the expert acknowledges and justifies the inconsistencies in the course of his testimony. Finally,
the Third Circuit has taken the narrower view that, not only must a Plaintiff identify an
inconsistency, but it must be a relatively impactful inconsistency and apply to all of the jobs
mentioned by the expert.
Here, Plaintiff presents strong grounds for reversal under any of the three approaches.
First, the ALJ failed to make the required inquiry. Second, the expert did not allude to any
inconsistencies in her testimony that might excuse the ALJ’s failure to inquire. And, most
notably, the issue of whether the jobs referenced by the expert accommodate a sit/stand option
presents a genuine inconsistency.
In his decision, the ALJ wrote:
It is important to note, these numbers are consistent with the DOT,
but due to her experience in the field, the impartial vocational
expert took into account the sit/stand option and made the
appropriate adjustments to the amount of available jobs. The
numbers stated herein reflect those adjustments.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert's testimony is consistent with the information
contained in the Dictionary of Occupational Titles.
The undersigned cannot determine from where the ALJ drew this conclusion. Nowhere
in the record does the ALJ ask the vocational expert whether this is true. And while past
experience may provide a foundation for assuming as much, without express confirmation from
the vocational expert while testifying at the administrative hearing, such a conclusion lacks any
reliable factual basis.
The United States argues that the ALJ’s failure to make the required inquiry amounts to
harmless error (DN 17 at p. 7). The problem with this view is that neither the United States nor
the undersigned is in a position to make this determination.
If the expert’s testimony
contemplated the sit/stand option, then the error would be harmless. But if it did not, it would
result in a lack of substantial evidence.
It is not clear to the undersigned whether a hand bander, a checker, or a mail clerk could
perform their duties with a sit/stand option because the DOT does not address this issue. It is
also unclear whether the expert reduced the number of available jobs or performed any other
adjustments to accommodate for a sit/stand option. These potential inconsistencies are exactly
the kind contemplated by SSR 00-4p, and the undersigned is not in a position to resolve them.
The ALJ should have made these determinations in the initial proceeding, and the Appeals
Council should have identified and corrected the error. “We will defer to an ALJ's decision if it
is supported by substantial evidence, but here there is an unresolved potential inconsistency in
the evidence that should have been resolved.” Prochaska, 454 F.3d at 736 (internal quotations
The undersigned concludes that, because the ALJ did not inquire into possible
inconsistencies between the vocational expert’s testimony and the DOT as required by SSR 004p, the decision was not supported by substantial evidence.
For the foregoing reasons, the undersigned concludes that the Commissioner’s findings
are not supported by substantial evidence, and it is ordered that the case is remanded pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this order.
October 14, 2016
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