Green v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 3/28/17: The Commissioner's decision to deny Green's claim is AFFIRMED and that thisaction is DISMISSED WITH PREJUDICE. A separate order and judgment shall issue. cc: Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00910-TBR-CHL
GREGORY S. GREEN,

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MEMORANDUM OPINION
Gregory S. Green filed this lawsuit against the Commissioner of the Social
Security Administration. Green challenges the Commissioner’s decision to deny him
disability insurance benefits. For following reasons, the Commissioner’s decision is
AFFIRMED, and Green’s action is DISMISSED WITH PREJUDICE.
I.
In January 2013, Green applied for disability insurance benefits. [A.R. at 165.]
Originally, he alleged disability beginning on February 6, 2012. [Id.] He later amended
his claim to allege disability beginning on November 7, 2013.

[Id. at 184.]

The

Commissioner denied Green’s claims on initial review and on reconsideration. [Id. at 88,
116.] Green requested a hearing before an administrative law judge. [Id. at 120.] On
July 14, 2014, Green appeared, with counsel, at a hearing before an ALJ. [Id. at 30.]
Both Green and Sharon B. Lane, a vocational expert, testified. [Id. at 34–72.]
The ALJ denied Green’s claim.

[Id. at 11.]

Using the traditional five-step

evaluation for disability benefits, see 20 C.F.R. § 404.1520(a)(4), the ALJ made the
following findings. First, the ALJ found that Green had not engaged in substantial
gainful activity since November 7, 2013. [Id. at 16.] Second, Green has several severe
impairments, including “degenerative joint disease of the knees, shoulders, right foot,
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right ankle, hands and wrists; bursitis of the hips; degenerative joint disease/tendonitis of
the elbows; history of carpal tunnel syndrome; degenerative disc disease of the cervical
and lumbar spine and sleep apnea.” [Id. (citing 20 C.F.R. § 404.1520(c)).] Third, the
ALJ found that Green’s impairments do not meet or equal one of the Commissioner’s
recognized impairments. [Id. at 18.] Fourth, the ALJ found that Green has the residual
functional capacity to perform sedentary work. [Id. at 19–20.] Having found Green
capable of performing past relevant work as a human resource specialist, the ALJ did not
reach the fifth step, but instead determined that Green is not disabled within the meaning
of the Social Security Act. [Id. at 24–25.]
The Appeals Council declined to review the ALJ’s decision.

[Id. at 1.]

Accordingly, the ALJ’s denial became the final decision of the Commissioner of Social
Security. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543–44 (6th Cir. 2004) (citing
Miles v. Chater, 84 F.3d 1397, 1399 (11th Cir. 1996)). Pursuant to 42 U.S.C. § 405(g),
Green brought this action to obtain judicial review of the Commissioner’s decision. [See
R. 1 (Complaint).] He asks the Court to reverse the ALJ’s decision. [See R. 13 (Motion
for Summary Judgment).]

The Commissioner opposes that motion.

[See R. 18

(Response).]
II.
Judicial review of the Commissioner’s determination is deferential.

See 42

U.S.C. § 405(g); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). The
scope of that inquiry is limited to (1) “whether the findings of the ALJ are supported by
substantial evidence” and (2) “whether the ALJ applied the correct legal standards.”
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley, 581

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F.3d at 405–06). “Substantial evidence” means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Lindsley v. Comm’r of Soc.
Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). Even if supported by substantial evidence, however, “a decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.” Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir. 2007)).
III.
As previewed above, the Commissioner evaluates whether a claimant is disabled
through a sequential five-step process. See 20 C.F.R. § 404.1520(a)(1), (4); see also
Sullivan v. Finkelstein, 496 U.S. 617, 620 (1990). The claimant has the burden of proof
during the first four of those steps. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th
Cir. 2003). If the claimant meets the burden at step four, the burden shifts to the
Commissioner. Rabbers, 582 F.3d at 652. Step four is at issue in this case.
There, the ALJ considers the claimant’s residual functional capacity and past
relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). Residual functional capacity is the
claimant’s “remaining capacity for work once [his] limitations have been taken into
account.” Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 632 (6th Cir. 2004) (quoting
Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002)). In determining
whether a claimant can perform his past relevant work, the Commissioner may consult a
vocational expert who “may offer relevant evidence within his or her expertise or

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knowledge concerning the physical and mental demands of a claimant’s past relevant
work, either as the claimant actually performed it or as generally performed in the
national economy.” 20 C.F.R. § 404.1560(b)(2). It is the claimant’s burden to crossexamine a vocational expert. See McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830,
837 (6th Cir. 2006). Once a vocational expert testifies that there is no conflict between
the Dictionary of Occupational Titles and the vocational expert’s opinion, the ALJ has no
duty to cross-examine the vocational expert any further. Lindsley, 560 F.3d at 606.
In this case, Green objects to the ALJ’s step-four findings.

[R. 13-1 at 2

(Memorandum in Support).] He raises three arguments. [Id. at 2–8.] The Court will
address each in turn.
A.
To begin, Green takes issue with the ALJ’s finding that he is capable of
performing his past relevant work as a human resource specialist as that job is “generally
performed in the national economy,” instead of treating his position as a “composite job.”
[Id. at 3–5.] A “composite job” is a job that has “significant elements of two or more
occupations and, as such, have no counterpart” in the Dictionary of Occupational Titles.
SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982). Green argues that the ALJ may not,
per the Commissioner’s guidance, deny a claim at step four by finding that a claimant
remains capable of performing a composite job “as generally performed.” [R. 13-1 at 3
(citing Soc. Sec. Admin., Program Operations Manual System (POMS) § DI
25005.020(B) (2011)).] The Court disagrees for three reasons.
First, Green’s reliance on the Commissioner’s statement in the POMS to show
that the ALJ erred as a matter of law goes too far. Although the Court may rely on a

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POMS policy statement as persuasive authority, it lacks the force and effect of law.
Davis v. Sec. of Health & Hum. Servs., 867 F.2d 336, 340 (6th Cir. 1989).
Second, Green has not shown that the ALJ erred in failing to consider the Army
human resource specialist position as a composite job. Green’s testimony about his three
years as a human resource specialist did little to illuminate how that position could be a
composite job. He described the job as “desk work” where he processed orders for
service members. [A.R. at 38–39.] Later, he clarified that the job involved lifting heavy
boxes. [Id. at 41.] His testimony fell short of meeting his burden that the human
resources job was a composite job because it had “significant elements of two or more
occupations.” SSR 82-61, 1982 WL 31387, at *2.
Third, although the ALJ did not explicitly refer to the human resource job as a
composite job in the written decision, the ALJ’s direct examination of Green indicates
that the ALJ considered the likelihood that jobs in the military usually included multiple
duties:
[It] looks like you were in the military for a while there. I always like to
put it—you know, obviously in the Army everyone’s a soldier, but to a
certain extent they’re—you know, blowing stuff up isn’t something that
transfers to the private sector, but there are, of course, a lot of jobs in the
military that do have, you know, basically a component to the private
sector in terms of being a mechanic, administrative jobs, things like that.
Now, what kind of jobs like that did you actually have in the military
during your career?
[A.R. at 37.] Green answered that he was a mechanic and later described his work as a
human resource specialist. [Id. at 37–38.] Still, he provided no testimony that his job as
a human resource specialist required him to handle firearms, maintain physical fitness, or
undertake other activity sufficient to show that it was a composite job. Green’s testimony

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falls short of meeting his burden to show that the human resources job was a composite
job. See Wright-Hines v. Comm’r of Soc. Sec., 597 F.3d 392, 396 (6th Cir. 2010).
All things considered, Green has not shown that the ALJ erred by failing to
consider his prior work experience as a composite job. Therefore, the ALJ committed no
error in considering whether Green could perform that position as generally performed in
the national economy.
B.
Next, Green argues that the ALJ erred in relying on the vocational expert’s
testimony when that testimony conflicted with the human resources specialist description
in the Dictionary of Occupational Titles. [R. 13-1 at 5.] He argues that a limitation for
only occasional overhead reaching conflicted with the job of a human resource specialist,
which demands frequent reaching. [Id. at 5–6.]
At the hearing, the ALJ asked a vocational expert, Sharon B. Lane, to consider an
individual whose physical limitation precluded any work above the shoulder level, among
other restrictions. [A.R. at 69.] Lane testified that a person with those restrictions could
perform work as a human resource specialist as that job is generally performed, but not as
Green performed that job. [Id.]
Green maintains that the ALJ violated the Commissioner’s guidance in SSR 004P. [R. 13-1 at 5–6.] SSR 00-4P prohibits ALJs from relying on evidence provided by a
vocational expert that is inconsistent with the Commissioner’s regulations. SSR 00-4P,
2000 WL 1898704, at *3 (Dec. 4, 2000). “When there is an apparent unresolved conflict
between” a vocational expert’s testimony and the Dictionary of Occupational Titles, “the
adjudicator must elicit a reasonable explanation for the conflict before relying on the

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evidence to support a determination or decision about whether a claimant is disabled.”
Id. at *2 (emphasis added).
Here, Green has not shown that the alleged conflict between Lane’s testimony and
the Dictionary of Occupational Titles was apparent such that the ALJ should have asked
Lane to explain the conflict. Specifically, it is not apparent that a physical limitation
precluding work above the shoulder level also precludes work that involves frequent
reaching. Therefore, Green has not shown that the ALJ violated SSR 00-4P.
Moreover, Green’s counsel asked Lane only one question during the hearing, and
that question had nothing to do with whether the human resource specialist job required
frequent reaching. Green’s counsel asked a hypothetical regarding a claimant who would
miss more than three days of work a month due to pain and doctors’ appointments, not
reaching requirements. [A.R. at 71.] Green cannot now complain that Lane’s testimony
conflicted with the job description in the Dictionary of Occupational Titles when he had
the opportunity to elicit testimony to that effect at the hearing and did not. McClanahan,
474 F.3d at 837.
Accordingly, Green has not shown that the ALJ erred in relying on the vocational
expert’s testimony.
C.
Lastly, Green objects to the ALJ’s residual functional capacity assessment
because it did not take into account Green’s mental limitations, which the ALJ
specifically noted that Green had. [R. 13-1 at 7–8.] He argues that the ALJ erred as a
matter of law in failing to include Green’s mental limitations as a part of the residual
functional capacity analysis and in the hypothetical question to the vocational expert. [Id.

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at 7.] Further, the error was not harmless, he argues, because the Commissioner rested
his decision on Green’s ability to perform his past relevant work. [Id. at 8.]
In determining whether Green had severe impairments, the ALJ wrote: “All of
the above suggests at most the claimant’s mental medically determinable impairments by
themselves cause only mild limitation in the functional domain areas of daily living,
social functioning, and concentration, persistence and pace.” [A.R. at 17.] In conducting
the residual functional capacity analysis, the ALJ made no mention of Green’s mild
mental limitations. [See id. at 20–24.]
The Court agrees with Green that the ALJ erred in failing to include Green’s mild
mental limitations as a part of the residual functional capacity analysis.

The

Commissioner’s regulations require the ALJ to consider all of a claimant’s medically
determinable impairments, even impairments that are not “severe,” in deciding the
claimant’s residual functional capacity.
404.1545(e).

20 C.F.R. § 404.1545(a)(2); see also id. §

The ALJ’s failure to include Green’s mild mental limitations in the

residual functional capacity analysis violated those instructions.
However, the ALJ’s omission of Green’s mental impairments in the residual
functional capacity analysis does not require remand because that error did not prejudice
Green on the merits. See Bowen, 478 F.3d at 746. The ALJ conducted an extensive
discussion of Green’s depression and anxiety before concluding that Green’s “mental
medically determinable impairments by themselves cause only mild limitation in the
functional domain areas of daily living, social functioning, and concentration, persistence
and pace.” [A.R. at 17–18.] Specifically, the ALJ cited state agency physician Alex
Guerrero’s opinion that Green’s mental impairments did not affect his ability to work.

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[Id. at 17.] The ALJ noted that Green’s “mental status exams have been largely within
normal limits, showing euthymic to normal mood and normal behavior although at times
with some degree of irritability, a somber but nonanxious affect, intact attention, no
significant memory impairment, no thought disorder, intact judgment and insight, and
normal speech.” [Id.] The ALJ discussed how Green had “denied problems managing
stress and change.” [Id.] Notably, the ALJ observed that in April 2014, Green “denied
any anxiety, emotional liability, depression, sleep disturbance, or decreased functioning
ability,” [id.], which was five months after Green’s alleged disability onset date.
In spite of the error, therefore, substantial evidence supports the ALJ’s residual
functional capacity analysis, and the error did not prejudice Green on the merits.
IV.
The Commissioner’s decision to deny Green’s claim is AFFIRMED and that this
action is DISMISSED WITH PREJUDICE.
A separate order and judgment shall issue.
Date:

March 28, 2017

cc:

Counsel of Record

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