Barber v. Commissioner, Social Security

Filing 21

LETTER OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 5/10/2018. (tds, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE

6500 Cherrywood Lane
Greenbelt, Maryland 20770
Telephone: [phone]

May 10, 2018
LETTER TO COUNSEL:
RE:

Eugene Clarence Barber v. Nancy A. Berryhill, Acting Commissioner of Social
Security
Civil No. TJS-17-1453

Dear Counsel:
On May 26, 2017, the Plaintiff, Eugene Barber (“Mr. Barber”), petitioned this Court to
review the Social Security Administration’s final decision to deny his claims for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”). (ECF No. 1.) The parties
have filed cross-motions for summary judgment. (ECF Nos. 18 & 19.) These motions have been
referred to the undersigned with the parties’ consent pursuant to 28 U.S.C. § 636 and Local Rule
301.1 I find that no hearing is necessary. See Loc. R. 105.6. This Court must uphold the decision
of the agency if it is supported by substantial evidence and if the agency employed the proper
legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir.
2015). Following its review, this Court may affirm, modify, or reverse the Commissioner, with
or without a remand. See 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89 (1991). Under
that standard, I will deny Mr. Barber’s motion and grant the Acting Commissioner’s motion.
This letter explains my rationale.
In his applications for DIB and SSI, Mr. Barber alleged a disability onset date of October
8, 2013. (Tr. 15.) His applications were denied initially and on reconsideration. (Tr. 126-28, 13839, 140-41.) A hearing was held before an Administrative Law Judge (“ALJ”) on April 18, 2016,
and the ALJ found that Mr. Barber was not disabled under the Social Security Act. (Tr. 15-29,
34-93.) The Appeals Council denied Mr. Barber’s request for review (Tr. 1-3), making the ALJ’s
decision the final, reviewable decision of the agency.
The ALJ evaluated Mr. Barber’s claim for benefits using the five-step sequential
evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that
Mr. Barber was not engaged in substantial gainful activity, and had not been engaged in
substantial gainful activity since October 8, 2013. (Tr. 18.) At step two, the ALJ found that Mr.
Barber suffered from the following severe impairments: degenerative disc disease of the lumbar
spine, remote injury to the right foot with residual right-foot drop, and remote injury to the left
thumb. (Id.) At step three, the ALJ found that Mr. Barber’s impairments, separately and in
combination, failed to meet or equal in severity any listed impairment as set forth in 20 C.F.R.,
1

This case was originally assigned to Magistrate Judge Stephanie A. Gallagher. On
January 29, 2018, the case was re-assigned to me.

Chapter III, Pt. 404, Subpart P, App. 1 (“Listings”). (Tr. 20.) The ALJ determined that Mr.
Barber retained the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
the claimant can sit for 6 hours and stand for 4 hours with a break after 2 hours for
15-minutes, during which time he would be productive in a seated position. The
claimant can walk for one block, or 325 feet before needing a break of 5-minutes.
The claimant can never operate foot controls with his right leg and can never use
his left thumb. He is left-hand dominant. He can occasionally climb ramps or
stairs, crouch, crawl, stoop, and kneel. He can frequently balance. He can never
climb ladders, ropes or scaffolds. He can occasionally be exposed to unprotected
heights or vibration. He can occasionally handle, finger, and feel with his leftdominant hand. He can never operate a motor vehicle.
(Tr. 22.)
At step four, the ALJ determined that Mr. Barber was unable to perform any past relevant
work. (Tr. 27.) At step five, relying on the testimony of a vocational expert (“VE”), the ALJ
determined that there are jobs that exist in significant numbers in the national economy that Mr.
Barber can perform, including information clerk, interviewer, production inspector, and film
cutter. (Tr. 28-29.) Therefore, the ALJ found that Mr. Barber was not disabled under the Social
Security Act. (Tr. 29.)
Mr. Barber raises two arguments in this appeal. First, he argues that the ALJ did not
“properly categorize [his] RFC for the purpose of considering the Medical-Vocational
Guidelines, and subsequently failed to use the proper Guidelines as a framework for decisionmaking.” (ECF No. 18-1 at 9.) Second, he argues that the ALJ did not properly consider his
“decreased occupational base when determining whether there were jobs available to him in
significant numbers.” (Id. at 13.)
Mr. Barber argues that the ALJ did not properly characterize his RFC for the purpose of
considering the Medical-Vocational Guidelines. (Id. at 9-13.) He contends that because the
ALJ’s RFC determination fell between the “light work” and “sedentary work” classifications, the
ALJ should have classified his ability to perform work at the sedentary work level instead of the
light work level.2 Had the ALJ classified his RFC at the sedentary work level, he argues, the
2

To determine the physical exertion requirements of work, ALJs classify jobs as
sedentary, light, medium, heavy, and very heavy. 20 C.F.R. §§ 404.1567, 416.967. “Light work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Sedentary work involves
2

Medical-Vocational Guidelines, 20 C.F.R. Part 404, subpart P, Appendix 2, would have directed
a finding that Mr. Barber is disabled. (ECF No. 18-1 at 11.) However, an ALJ “may rely on the
[Medical-Vocational Guidelines] only in appropriate cases.” Golini v. Astrue, 483 F. App’x 806,
808 (4th Cir. 2012) (internal quotation marks omitted). In general, an ALJ may not rely on the
Medical-Vocational Guidelines when a claimant’s RFC “falls between the exertional categories
upon which the Medical-Vocational Guidelines rely.” Id. According to SSR 83-12, when an
“individual’s exertional limitations are somewhere ‘in the middle’ in terms of the regulatory
criteria for exertional ranges of work, more difficult judgments are involved as to the sufficiency
of the remaining occupational base to support a conclusion as to disability. Accordingly, [VE]
assistance is advisable for these types of cases.” SSR 83-12, 1983 WL 31253 (S.S.A. 1983).
Here, the ALJ properly determined that Mr. Barber’s RFC fell between the sedentary and
light work levels. (Tr. 28.) As advised by SSR 83-12, the ALJ sought evidence from a VE to
determine whether there are jobs that exist in significant numbers in the national economy that
Mr. Barber can perform. See, e.g. Jones v. Comm’r, Soc. Sec. Admin, No. SAG-16-936, 2017
WL 627383, at * 2-3 (D. Md. Feb. 15, 2017) (noting that where a claimant’s exertional
limitations fell between light work and sedentary work, the ALJ appropriately consulted with the
VE); Bester v. Berryhill, No. TMD-15-3262, 2017 WL 1207539, at *8 (D. Md. Mar. 31, 2017)
(same); Neal v. Astrue, No. JKS-09-2316, 2010 WL 1759582, at *2 (D. Md. Apr. 29, 2010)
(same). Accordingly, Mr. Barber’s argument that the ALJ misclassified his exertional range is
without merit.
In the alternative, Mr. Barber argues that the ALJ failed to consider his decreased
occupational base at step five when determining whether there are jobs that exist in significant
numbers in the national economy that he can perform. (ECF No. 18-1 at 13-15.) Specifically, he
argues that the “ALJ failed to elicit an adequate explanation from the VE as to why the Plaintiff
was able to perform the jobs identified at the light exertional level in light of his eroded
vocational base.” (Id. at 14.)
ALJs may consider the testimony of VEs to determine whether there is work available in
the national economy that the claimant can perform. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.
1989). “In order for a [VE’s] opinion to be relevant or helpful, it must be based upon a
consideration of all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of claimant’s impairments.” Hines v. Barnhart,
453 F.3d 559, 566 (4th Cir. 2006); see also Reynolds v. Astrue, No. SKG-11-559, 2012 WL
1107649, at *21 (D. Md. Mar. 30, 2012) (“[T]he important issue is not whether the ALJ’s written
opinion ultimately classified Plaintiff’s RFC abilities and limitations as light or sedentary—
rather, the crucial issue is that the ALJ asked the VE to consider all of Plaintiff’s RFC abilities
and limitations, and the VE opined that there are jobs that Plaintiff could perform.” (emphasis
omitted)).
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary criteria are met.”
20 C.F.R. §§ 404.1567(a), 416.967(a).
3

Here, the ALJ asked the VE to consider a hypothetical individual with limitations and
abilities identical to those of Mr. Barber. The VE testified that such an individual could perform
jobs that exist in significant numbers in the national economy. Because the ALJ’s hypothetical
questions accounted for all of Mr. Barber’s functional limitations, the questions were proper. See
Fisher v. Barnhart, 181 F. App’x. 359, 364 (4th Cir. 2006) (per curiam) (noting that a
hypothetical question is unimpeachable if it adequately reflects a “residual functional capacity
for which the ALJ had sufficient evidence” (quoting Johnson v. Barnhart, 434 F.3d 650, 659
(4th Cir. 2005)). The ALJ properly credited the VE’s testimony on this point and concluded that
Mr. Barber was not disabled.3 By doing so, the ALJ accounted for Mr. Barber’s decreased
occupational base below the level of light work.
For the reasons set forth herein, Mr. Barber’s Motion for Summary Judgment (ECF No.
18) will be DENIED, and the Acting Commissioner’s Motion for Summary Judgment (ECF No.
19) will be GRANTED. The Clerk is directed to CLOSE this case. Despite the informal nature
of this letter, it should be flagged as an opinion. An implementing Order follows.
Sincerely yours,

/s/
Timothy J. Sullivan
United States Magistrate Judge

3

Mr. Barber also argues that the VE’s testimony “lacks credibility” because the VE was
“absent for a significant portion of the hearing” and may have “lacked the insight” required to
answer the hypothetical questions posed by the ALJ. (ECF No. 18-1 at 14.) However, the VE
was only required to consider the hypothetical questions posed by the ALJ, not the testimony of
Mr. Barber during the hearing. The ALJ did not ask the VE questions about whether Mr. Barber
himself could perform jobs that exist in significant numbers in the national economy. (Although
the ALJ did ask the VE about Mr. Barber’s ability to perform past relevant work, the ALJ
ultimately concluded that Mr. Barber could not perform past relevant work.) Instead, the ALJ
asked the VE about a hypothetical individual with the same limitations as Mr. Barber, which the
ALJ relayed to the VE through hypothetical questions. For this reason, this argument is also
without merit.
4