Condor v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 5/3/18: Pursuant to sentence four of 42 U.S.C. § 405(g), this case is remanded to the Commissioner for additional consideration consistent with this opinion, and judgment is entered in favor of the Plaintiff. cc:counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00121-HBB

LOUIS ANTHONY CONDOR, II

PLAINTIFF

VS.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Plaintiff Louis Anthony Condor seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both
the Plaintiff (DN 16) and Defendant (DN 22) 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 12). By Order entered
December 8, 2017 (DN 14), 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 Disability Insurance Benefits on April 14, 2014 (Tr.
166). Plaintiff alleged that he became disabled on August 31, 2012 as a result of Keratoconus,
back problems, muscle spasms in legs, and PTSD (Tr. 200). Administrative Law Judge Marci

Eaton conducted a hearing on May 25, 2016 in Paducah, Kentucky. Plaintiff was present and
represented by his attorney, Jeffrey Smith." Also present and testifying were medical expert
Tom Wagner and vocational expert James Adams.
In a decision dated August 16, 2016, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 725). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
August 31, 2012, the alleged onset date (Tr. 13). At the second step, the ALJ determined that
Plaintiff’s degenerative disc disease, loss of central visual acuity, affective disorder, and anxiety
(PT SD) are “severe” impairments within the meaning of the regulations (Tr. 13). Also at the
second step, the ALJ determined that Plaintiff’s substance addiction disorder and plantar fasciitis
are “non-severe” impairments within the meaning of the regulations (Tr. 13). 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. 14).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
a range of medium work, with the following limitations:
He can frequently climb ramps or stairs and occasionally climb
ladders, ropes or scaffolds. The claimant can frequently stoop,
crouch or crawl. His vision is sufficient for frequently reading
normal print and frequent performance of very fine, precise tasks
or prolonged visual tasks. The claimant can work with small
objects and large objects on an unlimited basis. He can avoid
ordinary workplace hazards, such as boxes or cords on the floor,
doors ajar, approaching people or wastepaper baskets. The
claimant should avoid the need for eye hand coordination for
small, detailed tasks. He should avoid concentrated exposure to
extreme cold or humidity, vibrating equipment, moving machinery
and unprotected heights. The claimant can understand, retain and
carry out simple instructions. He can consistently and usefully
perform routine tasks on a sustained basis, with normal supervision
and can cooperate effectively with public and coworkers in
completing simple tasks and transactions. The claimant can adjust
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to the mental demands of most new task settings.
(Tr. 16). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any of his past relevant work as a cook, construction worker, or forklift operator (Tr.
19).
The ALJ proceeded to the fifth step where she considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational
expert (Tr. 19-20). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Tr. 20). Therefore, the ALJ concluded that Plaintiff has
not been under a “disability,” as defined in the Social Security Act, from August 31, 2012
through the date of the decision (Tr. 20).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
98). 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,

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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)
months.
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).

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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:
1)

Is the claimant engaged in substantial gainful activity?

2)

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?

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

5)

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
economy?

Here, the ALJ denied Plaintiff’s claim at the fifth step. For the reasons set forth below, the ALJ's
decision is not supported by substantial evidence, and this case must be remanded.
Plaintiff's Arguments
Plaintiff presents two primary challenges to the ALJ's findings. First, Plaintiff argues the
ALJ committed reversible error where she refused to consider a post-hearing communication
from Plaintiff's counsel that called into doubt the reliability of the vocational expert's testimony
(DN 16-1 at PageID # 1927-39). Second, Plaintiff argues the ALJ committed reversible error
where she did not discuss or provide adequate weight to the VA's finding that Plaintiff has an
80% service connected disability (Id. at PageID # 1940-43).

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Discussion
Plaintiff's argument concerning his post-hearing objections raises two possible issues:
first, whether the ALJ violated her duty to rule on any objections as described in the Hearing,
Appeals, and Litigation Law Manual ("Hallex") I-2-6-74 (2016); and second, whether the ALJ
violated her duty under SSR 00-4p by failing to resolve a conflict between the Dictionary of
Occupational Titles and the vocational expert's testimony. The Court will address each in turn.
Hallex I-2-6-74 states that the ALJ "must rule on any objection(s). The ALJ may address
the objection(s) on the record during the hearing, in narrative form as a separate exhibit, or in the
body of his or her decision." (cleaned up). The Defendant claims that the cited provision applies
only to objections made during the administrative hearing (DN 22 at PageID # 1961). The
Defendant proceeds to chastise the Plaintiff for failing to provide legal authority to the contrary.
Notably, however, the Defendant's brief is similarly bereft of legal authority to support its
position that the Hallex provision is limited to objections made at the administrative hearing.
Indeed, nothing in the language of the Hallex nor other applicable agency policy "appears to
require counsel to raise all objections during the ALJ’s hearing or risk forever waiving them."
Westmoreland v. Comm'r of Soc. Sec., 2018 WL 1522118, No. 3:17-cv-00096, at *3 (S.D. Ohio
March 28, 2018). Therefore, the ALJ's failure to address Plaintiff's post-hearing objections
violated the Commissioner's policies.
Next, SSR 00-4p creates an affirmative duty that an ALJ determine whether a vocational
expert's testimony is consistent with information found in the Dictionary of Occupational Titles.
SSR 00–4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). The Sixth Circuit has held that an ALJ
may satisfy this obligation by simply inquiring of the expert whether their testimony is consistent

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with the DOT. Johnson v. Comm'r of Soc. Sec., 535 F. App'x 498, 508 (6th Cir. 2013) (citing
Martin v. Comm'r of Soc. Sec., 170 F. App'x 369, 374 (6th Cir. 2006).
Here, the ALJ met her affirmative duty to inquire about inconsistencies (Tr. 60).
However, SSR 00-4p also sets out specific duties requiring the ALJ to explain how they resolved
any inconsistencies. Importantly, the Rule states that "[t]he adjudicator will explain in the
determination or decision how she resolved the conflict. The adjudicator must explain the
resolution of the conflict irrespective of how the conflict was identified." SSR 00-4p at *4
(emphasis added). The use of the words "will" and "must" indicates that this duty is not optional.
Moreover, the presence of the phrase "irrespective of how the conflict was identified" invites a
conclusion that a claimant's attorney should be allowed to file a timely objection to the
vocational expert's testimony highlighting inconsistencies with the DOT, and the ALJ must rule
on those objections and resolve the inconsistency rather than dismiss the objections as
procedurally defaulted because they were not raised at the administrative hearing. Jackson v.
Comm'r of Soc. Sec., 2015 WL 3470190, 2:14-CV-988, at *3 (S.D. Ohio June 1, 2015) (report
and recommendation adopted at 2015 WL 3866202). Therefore, the undersigned concludes the
ALJ did not comport with applicable law with respect to Plaintiff's post-hearing objections.
The Defendant argues that, even if the ALJ erred in not ruling on these objections, the
error is harmless (DN 22 at PageID # 1962). The Defendant is incorrect. "'[A] procedural error
is not made harmless simply because [the aggrieved party] appears to have had little chance of
success on the merits anyway.'" Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546 (6th Cir.
2004) (quoting Mazaleski v. Treusdell, 562 F.2d 701, 719 n. 41 (D.C. Cir. 1977). "The general
administrative law rule, after all, is for a reviewing court, in addition to whatever substantive

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factual or legal review is appropriate, to set aside agency action found to be without observance
of procedure required by law." Id. (cleaned up).
In this instance, the Plaintiff's objection did not, as Defendant suggests, merely point out
that the reasoning levels of the occupations cited by the vocational expert are inconsistent with
the DOT (DN 22 at PageID # 1962). Rather, Plaintiff's letter highlighted a number of other
inconsistencies, including an objection to the nursery position that is described as heavy work in
the DOT where the ALJ prescribed a limited range of medium work (Tr. 270). Plaintiff further
pointed out that the DOT's descriptions of both groundskeeper and industrial cleaner contain
potential environmental exposure beyond that stated in the ALJ's hypothetical (Id.). Whether
these inconsistencies will, on remand, result in a finding of disability is not a question for the
Court to presently decide. It is apparent, however, that the Plaintiff has at least demonstrated
remand would not be an exercise in futility. The Plaintiff filed objections highlighting legitimate
conflicts, and he deserves to see them resolved. Therefore, the undersigned concludes that the
error was not harmless, and this case will be remanded for a resolution of the issue.
Finally, because the undersigned finds remand appropriate for the reasons stated above,
there is no need to address Plaintiff's second argument at this time.

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ORDER
IT IS HEREBY ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), this
case is remanded to the Commissioner for additional consideration consistent with this opinion,
and judgment is entered in favor of the Plaintiff.

May 3, 2018

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Counsel

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