Woodie v Colvin

Filing 21

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"The VEs testimony does not constitute substantial evidence that Woodie can perform a significant number of jobs that exist in the economy, and the record as a whole does not otherwise contain substantial evidence to support the hearing officers conclusion. Therefore, for the reasons set forth above, the Court GRANTS Woodies motion, ECF No. 13 , and DENIES the Commissioner's motion to affirm, ECF No. 18 . The case is remanded to the hearing officer for further proceedings consistent with this memorandum. SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PAMELA JEAN WOODIE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION
NO. 15-CV-11666-WGY

YOUNG, D.J.
June 2, 2016
MEMORANDUM & ORDER
I.

INTRODUCTION
This is an action by Pamela J. Woodie (“Woodie”) appealing

the final decision of the Acting Commissioner of Social Security
(the “Commissioner”) determining that she is not disabled and
therefore not entitled to Social Security disability benefits.
This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
A.

Procedural Posture

On December 9, 2011, Woodie filed a Title II application
for disability insurance benefits, alleging that her disability
began on November 22, 2011.

Administrative R. (“Admin. R.”) 90-

91, ECF No. 9. 1

The claim was denied on April 18, 2012, and upon

reconsideration, was denied again on September 28, 2012.
90, 105.

Id. at

Woodie then filed a written request for a hearing,

which was held on October 22, 2013, before an Administrative Law
Judge (the “hearing officer”). 2

Id. at 17, 36.

The hearing officer denied Woodie’s claim for benefits, in
a written decision issued on November 27, 2013.

Id. at 28-29.

On January 7, 2014, Woodie filed a request to have the hearing
officer’s decision reviewed by the Appeals Council.

Id. at 13.

At that time, Woodie supplemented her medical record with
additional medical information from treating physicians.
id. at 2, 13.

See

The hearing officer’s decision was upheld by the

Appeals Council on February 18, 2015. 3

Id. at 1-3.

On April 22, 2015, Woodie filed a complaint seeking this
Court’s review of the Commissioner’s decision pursuant to

1

The record of the administrative proceedings in this case
is split across several docket entries, labeled 9-1 through 910. For the sake of clarity, this memorandum will cite to page
numbers in the continuously paginated record as a whole rather
than to individual docket entries that correspond to parts of
the record.
2

For an explanation of the Court’s use of the term “hearing
officer,” see Vega v. Colvin, No. CV 14-13900-WGY, 2016 WL
865221 at *1 n.1 (D. Mass. Mar. 2, 2016).
3

The Appeals Council ruled that the additional medical
evidence did not create a reasonable probability that the
hearing officer’s decision would have been different. See
Admin. R. 2.
[2]

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Compl., ECF No. 1.

The Commissioner filed the Administrative

Record on July 13, 2015.

Admin. R.

In the following months,

both parties filed motions -- Woodie, to reverse; the
Commissioner, to affirm -- and accompanying memoranda.

See

Pl.’s Mot. Reverse Decision Comm’r, ECF No. 13; Pl.’s Mem. Supp.
Mot. Reverse Decision Comm’r (“Pl.’s Mem.”), ECF No. 14; Mot.
Order Affirming Decision Comm’r, ECF No. 18; Mem. Law Supp.
Def.’s Mot. Affirm Comm’r. Decision (“Def.’s Mem.”), ECF No. 19;
Pl.’s Reply Def.’s Mot. Affirm Decision Comm’r (“Pl.’s Reply”),
ECF No. 20.
B.

Factual Background

As Woodie challenges only the hearing officer’s step-five
determination, see Pl.’s Mem. 9, this section recounts only the
background facts, as provided by Woodie’s testimony, and a brief
overview of Woodie’s medical records.

As the testimony of the

vocational expert (“VE”) who was called in this case is directly
relevant to Woodie’s claims, it is discussed infra Part IV.
1.

Woodie’s Testimony

Woodie was born on July 28, 1966.

Admin. R. 41.

On August

21, 2009, Woodie was diagnosed with Multiple Sclerosis (“MS”).
Id. at 465.

She has also been diagnosed with Lyme disease,

which has made symptoms of MS, such as fatigue, especially
difficult to manage.

Id.

Woodie uses a cane to help her walk
[3]

and balance.

Id. at 51.

She has issues with anxiety, migraine

headaches, and sleeplessness.

Id.

Woodie described having

difficulties when lifting or gripping objects: “I can’t lift a
gallon of milk . . . [i]f I lift the keys up and stuff they will
fall out of my hands at times.”

Id. at 63.

Prior to November 21, 2011, when Woodie stopped working,
she had been employed as an auto parts deliverer, secretary,
receptionist, and cashier.

Id. at 27, 200.

She lives with her

two daughters, who are in middle school and high school.
57, 65.

Id. at

They are generally responsible for completing

household chores and preparing meals.

Id. at 58-59.

Woodie

performs only a minimal amount of driving, and has “somebody
that takes me to all my appointments[.]”

Id. at 60.

Her time

is generally spent on her computer, watching television, or
reading a magazine, but her activities vary depending on her
symptoms.

Id. at 61.
2.

Medical Records and Opinions

Woodie submitted medical reports and treatment records
dating back to January 2009, when she first began complaining of
headaches.

Admin. R. 309-525.

The Social Security

Administration (“SSA”) obtained Woodie’s physical and mental
Residual Functioning Capacity (“RFC”) assessments from the
Massachusetts Disability Determination Services office.
90, 105.
[4]

Id. at

The medical records describe Woodie’s headaches, which
initially were thought to be “migraine headaches with aura and
tension-type headaches,” id. at 301.

Subsequent testing

revealed the presence of three brain lesions.

Id. at 270-271.

After being diagnosed with MS, Woodie began treatment for mood
and anxiety disorders, which were interpreted as psychological
consequence of her MS diagnosis.

Id. at 593.

In July 2012,

after experiencing severe aching, fatigue, and flu-like
symptoms, Woodie took a blood test, which confirmed that Woodie
had contracted Lyme Disease.
II.

Id. at 557, 564-566.

The Hearing Officer’s Decision
The hearing officer found that Woodie “met the insured

status requirements of the Social Security Act on December 31,
2012” and did not engage in any substantial gainful activity
after the alleged onset date in November 2011.

Id. at 19-20.

He then found that Woodie suffered from the severe impairments
of multiple sclerosis, migraine headaches, anxiety disorder, and
depressive disorder, and that “these impairments significantly
affect [Woodie’s] ability to perform basic work related
functions.”

Id. at 20.

After reviewing the Listing of

Impairments found in 20 CFR Part 404, Subpart P, Appendix 1, the
hearing officer concluded that Woodie did not have an impairment
or combination of impairments that met or medically equaled the
severity of one of the listed impairments.
[5]

Id.

In determining Woodie’s residual functional capacity
(“RFC”), the hearing officer stated that he considered “all
symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence
and other evidence,” id. at 22, which led the hearing officer to
define Woodie’s RFC as follows:
[Woodie] has the [RFC] to perform light work as
defined in 20 CFR 404.1567(b) except [Woodie] cannot
stand or walk more than 4 hours out of an 8-hour
workday. She cannot climb ladders or scaffolds, and
she is only occasionally able to climb stairs and
ramps, balance, stoop, crouch, kneel and crawl. She
is occasionally limited in her ability to perform
gross manipulation with bilateral upper extremities.
She must avoid constant exposure to unprotected
heights; extremes of heat, humidity or cold; pulmonary
irritants; and vibration. She can follow simple 2-3
step directions. She is able to maintain
concentration, persistence and pace in the performance
of these tasks for two hour increments during an eight
hour day over a forty hour workweek. She can tolerate
only minor changes in the workplace.
Id.

The hearing officer’s decision then expounded on the weight

he afforded various medical opinions and testimony, concluding
that Woodie retained the capability to perform light work.
at 21-28.

With regard to his step-five determination, the

hearing officer stated:
To determine the extent to which these limitations
erode the unskilled light occupational base . . . I
asked the vocational expert whether jobs existed in
the national economy for an individual with the
claimant's age, education, work experience, and
residual functional capacity. The vocational expert
testified that given all of these factors the
individual would have been able to perform the
[6]

Id.

requirements of representative occupations such as
account clerk . . . telephone order clerk . . . [and]
office helper . . . .
Pursuant to SSR 00-4p, I have determined that the
vocational expert's testimony is consistent with the
information contained in the Dictionary of
Occupational Titles.
Based on the testimony of the vocational expert, I
conclude that . . . the claimant was capable of making
a successful adjustment to other work that existed in
significant numbers in the national economy. A
finding of “not disabled” is therefore appropriate
under the framework of the above-cited rule.
Id. at 28.
III. LEGAL STANDARDS
A.

Standard of Review

Under 42 U.S.C. § 405(g), this Court has the power to
affirm, modify, remand or reverse a decision of the
Commissioner.

“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,
shall be conclusive.”

42 U.S.C. § 405(g); see Manso-Pizarro v.

Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.
1996).

“[S]ubstantial evidence” is “more than a mere

scintilla,” and such evidence that “a reasonable mind might
accept as adequate to support a conclusion.”

Richardson v.

Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and
citation omitted).

As it is the role of the hearing officer to

draw factual inferences, make credibility determinations, and
resolve conflicts in the evidence, the Court must not perform
[7]

such tasks itself.

Irlanda Ortiz v. Sec’y of Health & Human

Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.
Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)).
The Court must uphold the Commissioner’s determination
“even if the record arguably could justify a different
conclusion, so long as it is supported by substantial evidence.”
Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3
(1st Cir. 1987) (citation omitted).

In other words, affirmance

is appropriate if a “reasonable mind, reviewing the record as a
whole, could accept it as adequate to support [the hearing
officer’s] conclusion.”

Monroe v. Barnhart, 471 F.Supp.2d 203,

211–12 (D. Mass. 2007) (quoting Lizotte v. Sec'y of Health and
Human Servs., 654 F.2d 127, 128 (1st Cir. 1981)).

Legal

conclusions, however, are subject to de novo review.

Seavey v.

Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
B.

Social Security Disability Standard

An individual is considered disabled if he is “[unable] 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 12
months.”

42 U.S.C. § 423(d)(1)(A).

The Social Security Administration has promulgated a
[8]

five-step sequential analysis to determine whether a claimant is
disabled:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant time period, a severe impairment or
combination of impairments, the application is denied;
3) if the impairment meets the conditions for one of
the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if
the applicant’s “residual functional capacity” is such
that he or she can still perform past relevant work,
then the application is denied; 5) if the applicant,
given his or her “residual functional capacity,”
education, work experience, and age, is unable to do
any other work, the application is granted.
Seavey, 276 F.3d at 5 (citing 20 C.F.R. § 416.920).
The claimant bears the burden in the first four steps to
show that he is disabled within the meaning of the Social
Security Act; the burden then shifts to the Commissioner at step
five of the inquiry to prove that the claimant is able to engage
in substantial gainful activity that exists in significant
numbers in the national economy.

Bowen v. Yuckert, 482 U.S.

137, 146 n.5 (1987); Goodermote v. Sec’y of Health & Human
Servs., 690 F.2d 5, 7 (1st Cir. 1982).

Ordinarily, the hearing

officer, in step five, will ask a VE whether a hypothetical
person with the claimant’s RFC, age, education, and work
experience would be able to perform other work existing in the
national economy.

See Arocho v. Sec'y of Health & Human Servs.,

670 F.2d 374, 375 (1st Cir. 1982).

[9]

IV.

ANALYSIS
The hearing officer found that Woodie’s claim failed at

step five, as he determined that there were a number of jobs
available to Woodie in the regional and national economy that
she could perform.

Admin. R. 28.

Woodie’s challenge to the

hearing officer’s decision is confined to this step-five
determination.

See Pl.’s Mem. 9.

Specifically, Woodie alleges

that the hearing officer failed to provide a reasonable
explanation for the conflicts between the VE’s testimony and the
Dictionary of Occupational Titles (the “Dictionary”), in
violation of Social Security Ruling (“SSR”) 00-4p.

Id.

As a

result, Woodie argues, the hearing officer’s conclusion is
unsupported by substantial evidence and requires reversal or
remand.

See id. at 11. 4

The Commissioner acknowledges that the hearing officer
erred by failing to supply a reasonable explanation for why his
opinion cited jobs that required “‘frequent’ handling and
reaching” while Woodie’s RFC restricts her to “light work with
only occasional gross manipulation.”

4

Def.’s Mem. 10 (internal

Woodie also claims that the hearing officer “failed . . .
to ask whether any conflict existed between the VE’s testimony
and the [Dictionary].” Pl.’s Mem. 9. In fact, however, the
hearing officer explicitly asked the VE to identify any
conflicts between his testimony and the Dictionary, see Admin.
R. 71-72. The VE failed to do so.
[10]

citation omitted).

The Commissioner argues, however, that the

oversight was harmless, because the VE listed occupations
available to Woodie in addition to those cited in the hearing
officer’s opinion.

Id. at 11-12.

Relying on the VE’s testimony

that Woodie could also work as a “greeter” or “surveillance
system monitor,” Admin. R. 77, the Commissioner argues that
Woodie’s RFC does not preclude her from performing these
occupations, meaning a remand would only elicit the same result,
Def.’s Mem. 9.

The Court discusses these two occupations in

turn, ultimately concluding that, because it is far from clear
that someone with Woodie’s RFC would be able to perform these
occupations as defined in the Dictionary, a remand is necessary
for further factfinding by the hearing officer.
A.

Greeter

Although unmentioned in the hearing officer’s decision, the
VE testified that a person with Woodie’s RFC 5 could work as a
greeter, which, the VE asserted, has a Specific Vocational
Preparation (“SVP”) 6 code [of] [two].”

Admin R. 77.

The

5

Technically, the VE’s testimony regarding the greeter
position was in response to an RFC that was more restrictive
than Woodie’s. Compare Admin. R. 21-22 (RFC determination),
with id. at 75-76 (second hypothetical). The differences
between the two, however, are immaterial.
6

“Specific Vocational Preparation is defined as the amount
of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility
needed for average performance in a specific job-worker
[11]

Commissioner argues that this testimony constitutes “substantial
evidence” in support of the hearing officer’s determination, and
renders harmless the error discussed above.

See Def.’s Mem. 11-

12.
Woodie points out that the VE’s testimony here was in
conflict with the Dictionary, which classifies the position as
requiring an SVP of four.

Pl.’s Reply 4.

Woodie is correct

that the Dictionary requires an SVP of four for the greeter, or,
as the Dictionary phrases it, “Information Clerk,” position.
See Dictionary of Occupational Titles (“DOT”) § 237.367-022,
1991 WL 672188 (4th Ed. 1991).

Woodie also accurately points

out the position’s required level-four reasoning level, which,
along with the SVP level of four, presents a potentially
significant conflict with Woodie’s RFC, which restricts her to
“follow[ing] simple 2-3 step directions” and “tolerat[ing] only
minor changes in the workplace,” Admin. R. 22.

If it were

“clear” that Woodie could perform the occupation of greeter, a
remand would be unnecessary.

See, e.g., Finigan v. Burwell, No.

CV 15-12246-WGY, 2016 WL 2930905, at *7 (D. Mass. May 19, 2016)
(quoting Polanco-Quinones v. Astrue, 477 Fed. Appx. 745, 746
(1st Cir. 2012)) (additional internal citation omitted)

situation.” Dictionary of Occupational Titles, Appendix C § II,
1991 WL 688702 (4th ed. 1991). The SVP scale runs from one
(“[s]hort demonstration only”) to ten (“[o]ver 10 years”). Id.
[12]

(alterations in original) (stating that “the Court is ‘not
usually permitted to affirm . . . on grounds other than those
advanced by the agency [below],’ unless ‘it is clear what the
agency's decision must be.’”).

Here, however, due to the

incongruity between Woodie’s RFC and the demands of the job, it
is not.
B.

Surveillance System Monitor

Similar to her testimony regarding the greeter position,
the VE here testified that someone with an RFC similar to
Woodie’s “would . . . be able to work as a surveillance system
monitor[,]” and that these positions exist in large numbers.
Admin. R. 77.

The Commissioner suggests that Woodie can work as

a surveillance system monitor” because the position does not
require any reaching or handling.

Def.’s Mem 10.

Again,

however, Woodie correctly identifies a fatal problem with the
Commissioner’s argument: this position’s level-three reasoning
requirements.

See Pl.’s Reply 4 (citing DOT § 379.367-010, 1991

WL 673244).
Level-three reasoning requires individuals to “[a]pply
commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form [and] [d]eal with problems
involving several concrete variables.”

DOT, Appendix C -

Components of the Definition Trailer § III, 1991 WL 688702.
Woodie’s restriction to “follow[ing] simple 2-3 step directions”
[13]

and “tolerat[ing] only minor changes in the workplace,” Admin.
R. 22, is too restrictive for level-three reasoning. 7

The Court

thus cannot affirm on this ground, especially absent any
discussion by the hearing officer, because it cannot hold as
matter of law that Woodie could perform this occupation.

Cf.,

e.g., Finigan, 2016 WL 2930905, at *7 (internal citations
omitted).
V.

CONCLUSION
The VE’s testimony does not constitute substantial evidence

that Woodie can perform a significant number of jobs that exist
in the economy, and the record as a whole does not otherwise
contain substantial evidence to support the hearing officer’s
conclusion.

Therefore, for the reasons set forth above, the

Court GRANTS Woodie’s motion, ECF No. 13, and DENIES the
Commissioner's motion to affirm, ECF No. 18.

The case is

remanded 8 to the hearing officer for further proceedings
consistent with this memorandum.

7

It might, however, be conducive to a position requiring
level-two reasoning. See Priest v. Colvin, No. 14-CV-01053-WGY,
2016 WL 2892058, at *5-*6 (N.D.N.Y. May 17, 2016) (affirming
hearing officer’s finding that claimant could perform occupation
requiring level-two reasoning where claimant’s RFC was
restricted to “performing simple, repetitive tasks in low[]stress occupations . . . [with] no more than occasional
decision-making required and no more than occasional changes in
the work setting”).
8

This is not “the unusual case in which the underlying
facts and law are such that the agency has no discretion to act
[14]

SO ORDERED.

/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

in any manner other than to award or deny benefits.” Vega, 2016
WL 865221, at *11 (quoting Seavey v. Barnhart, 276 F.3d 1, 11
(1st Cir. 2001)).
[15]