Christensen Sr v. Social Security Administration

Filing 14

MEMORANDUM RULING: For reasons stated, the Commissioners decision isreversed and, pursuant to sentence four of 42 U.S.C. § 405(g), this case will be remanded to the Commissioner for further proceedings. Signed by Magistrate Judge Mark L Hornsby on 3/3/16. (crt,Delgado, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

D.C.C., SR. (XXX-XX-8209)

CIVIL ACTION NO. 15-cv-1648

VERSUS
SOCIAL SECURITY ADMINISTRATION

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Introduction
D.C.C. (“Plaintiff”) was born in 1968, has a limited education, and has work
experience that includes roughneck and surveyor helper. Plaintiff had surgery to treat early
stage laryngeal cancer, and he now has a raspy, hoarse voice. He also suffers from COPD
and a depressive disorder.
Plaintiff applied for disability benefits. ALJ Charlotte A. Wright held a hearing and
issued a written decision that Plaintiff was not disabled. The Appeals Council denied a
request for review, and Plaintiff filed this civil action to seek judicial review. The parties
filed written consent to have the case decided by the undersigned magistrate judge, and an
order of reference was entered pursuant to 28 U.S.C. § 636(c).
Plaintiff raises two issues on appeal. He contends that the ALJ (1) should have
submitted Plaintiff’s valid objections to the VE’s testimony for a response and (2) should
have provided a meaningful explanation for overruling Plaintiff’s objections to the VE’s

testimony about calculating the number of available jobs. For the reasons that follow, the
Commissioner’s decision will be reversed.
Standard of Review; Substantial Evidence
This court’s standard of review is (1) whether substantial evidence of record supports
the ALJ’s determination, and (2) whether the decision comports with relevant legal
standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). “Substantial evidence is
more than a scintilla and less than a preponderance. It is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Muse v. Sullivan, 925
F.2d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is justified only if there
are no credible evidentiary choices or medical findings which support the ALJ’s
determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
Relevant Facts
The ALJ found that Plaintiff had the RFC to perform light work subject to some
additional postural limitations, the inability to work around pulmonary irritants, and the
ability to only occasionally respond appropriately to supervisors, co-workers, and the public.
Most important to this appeal, the ALJ found that Plaintiff was limited to being able to
understand, remember, and carry out simple, routine, repetitive tasks.
VE Phunda Yarbrough testified at the hearing. The ALJ asked Plaintiff’s
representative if she had any objection to the VE’s qualifications. Counsel responded: “Only
as to her ability to count the number of jobs in the national economy, your Honor.” The ALJ

Page 2 of 7

asked the VE a hypothetical that involved a person with the RFC to perform light work,
subject to the additional limitations in the RFC, and with the person limited to simple,
routine, and repetitive tasks. The VE testified that such a person would not be able to
perform Plaintiff’s past work.
The ALJ then asked the VE whether there were other jobs in the national economy
that such a person could perform. The VE identified router (DOT No. 222.587-038; 50,609
positions nationally); merchandise marker (DOT No. 209.587-034; 319,757 national
positions) and silver wrapper (DOT No. 318.687-018; 106,975 national positions). The ALJ
asked whether that testimony was consistent with the Dictionary of Occupational Titles
(“DOT”), and the VE said that it was.
Counsel for Plaintiff asked the VE if the “judge’s limitations to simple and repetitive
routine tasks would preclude the ability to carry out detailed or written and oral instructions,
correct?” The VE answered, “Yes.” Counsel also asked the VE about her data sources for
the number of available jobs. The VE said she relied on the Department of Labor,
classification jobs, local resources, and Job Browser Pro. Counsel then questioned the VE
about Job Browser Pro and how it pulls together the information it provides. The VE said
that it was software that anyone could purchase and that it gets its “information from the
Department of Labor.”
The ALJ asked counsel if she had any more questions, and counsel said she did not.
There had been discussion earlier in the hearing that Plaintiff had a medical appointment in

Page 3 of 7

early July that could provide relevant information. The ALJ said that she would hold the
case open until July 15 “for record updates.” She said she would then review all the records
again and issue a decision as soon as possible. Counsel was asked if there was anything else,
and she said no. The ALJ announced that the hearing was “closed.”
Counsel for Plaintiff later filed a post-hearing memorandum dated July 18, 2014. The
memorandum raised a number of objections, including a challenge to the reliability of the Job
Browser Pro software and the ability of Plaintiff to perform the identified jobs given his
limitation to simple and repetitive tasks. The memorandum pointed out that the jobs of
marker, router, and silver wrapper all have a reasoning level of two in the DOT. Level two
is defined as “Apply commonsense understanding to carry out detailed but uninvolved
written or oral instructions. Deal with problems involving a few concrete variables in or
from standardized situations.” Plaintiff argued that this was inconsistent with an RFC limited
to remembering and carrying out simple, routine, repetitive tasks, as well as the VE’s
testimony that the limitation would preclude the ability to carry out detailed instructions.
Plaintiff argued that this inconsistency required further clarification and explanation in
accordance with Social Security Ruling 00-4p.
Analysis
Social Security Ruling 00-4p states that the agency “most often use VEs to provide
evidence at a hearing before an ALJ,” but neither the DOT nor the VE automatically
“trumps” when there is a conflict. The ALJ should, if there is a conflict, elicit a reasonable

Page 4 of 7

explanation from the VE before she relies on the VE testimony. The Ruling states that
reasonable explanations for conflicts may include the VE’s experience in job placement or
career counseling. It adds that the DOT lists maximum requirements of occupations as
generally performed, not the range of requirements of a particular job as it is performed in
specific settings. Accordingly, a VE may be able to provide more specific information about
jobs than the DOT.
Any conflict between the testimony of a VE and the DOT must be explored on cross
examination in the agency proceedings. The Fifth Circuit has stated that claimants should
not be permitted to scan the record for implied or unexplained conflicts between the specific
testimony of a VE and the voluminous and complex provisions of the DOT, and then present
that conflict as reversible error when the conflict was not deemed sufficient to merit crossexamination in the administrative hearing. Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir.
2000); White v. Astrue, 240 Fed. Appx. 632, 634 (5th Cir. 2007).
Plaintiff’s counsel did not cross examine the VE on this particular issue at the hearing
itself, but the conflict was squarely raised in the post-hearing memorandum. There was no
reference at the hearing to the future filing of a memorandum. The regulations provide that
a representative may appear before an ALJ to, among other things, enter written statements
about the facts and law material to the case. 20 C.F.R. § 404.949, 416.1449. The HALLEX
provides in I-2-6-76 that after all testimony is presented, the ALJ must offer the claimant and
his representative an opportunity to submit a brief within a reasonable time after the hearing.

Page 5 of 7

It also states that, upon request, the ALJ shall allow claimants reasonable time to present oral
arguments or file briefs or other written statements of fact or law. It does not appear that
procedure was specifically followed in this case, but it does appear that Plaintiff was entitled
to a reasonable opportunity to file a post-hearing brief. In any event, the undersigned finds
that the promptly filed brief, lodged only a few days after the deadline for supplemental
medical records, was sufficient to raise the conflict within the administrative process and
allow the Agency a fair opportunity to address the issues.
The ALJ did not specifically address the conflict or other arguments raised in the
brief. She did state generally that she had “considered the objections raised” by Plaintiff as
to the VE’s opinion, but she overruled the objections because the VE “is a highly qualified
vocational expert recognized by the Administration, and who testified that given all of these
factors the individual would be able to perform the requirements of” the three identified jobs.
The ALJ then cited SSR 00-4p and said that she had determined that the VE’s testimony “is
consistent with the information contained in the Dictionary of Occupational Titles.”
The undersigned finds that there was not an adequate explanation, by the VE or the
ALJ, with respect to the potential conflicts between the VE’s testimony and the DOT. The
Commissioner argues on appeal that at least one case has stated that a limitation to
performing only simple, repetitive tasks can be consistent with reasoning level two. Perhaps
that could be explained by the VE, but it did not happen in this case. The conflict here is
significant enough that it warranted further discussion by written interrogatories or a

Page 6 of 7

supplemental hearing to have the VE explain how Plaintiff could perform the demands of the
identified jobs despite the limitation that she testified would preclude the ability to carry out
detailed instructions.
The decision, as presented, is not supported by substantial evidence, so reversal and
remand are in order. Plaintiff has raised other objections to the VE’s method of counting the
number of available jobs. Plaintiff and the Agency will be free to further explore that issue,
or any other relevant issues, on remand. For these reasons, the Commissioner’s decision is
reversed and, pursuant to sentence four of 42 U.S.C. § 405(g), this case will be remanded to
the Commissioner for further proceedings.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 3rd day of March, 2016.

Page 7 of 7