Kelly v. Social Security Administration

Filing 26

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the final decision of the Commissioner denying Wayne R. Kelly benefits is affirmed. A separate judgment in accordance with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on 01/07/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WAYNE R. KELLY,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:13 CV 1891 CDP

MEMORANDUM AND ORDER
This is an action for judicial review of the Commissioner’s decision denying
Wayne Kelly’s application for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401, et seq. Section 205(g) of the Act provides
for judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g).
In his application for benefits, Kelly alleged a period of disability beginning
on November 1, 2008. Kelly claims that he is disabled because of back pain
resulting from an injury sustained in 2008. He also claims that he suffers from
depression and alcohol abuse related to his back pain. Kelly claims that these
impairments prevent him from engaging in substantial Gainful Activity (SGA) and
that the Administrative Law Judge (ALJ) erred in failing to fully develop the
record when he refused to submit interrogatories from Kelly’s attorney to the

vocational expert (VE) that testified at the administrative hearing, thereby violating
Kelly’s due process rights.
Because the ALJ’s decision is supported by substantial evidence and
because the ALJ did not violate Kelly’s due process rights or fail to develop the
record, I will affirm the Commissioner’s final decision denying disability benefits.
I. Procedural History
Kelly filed an application for disability benefits on February 7, 2011.
Kelly’s application was denied on March 21, 2011 and he filed a timely application
for a hearing before an ALJ on May 20, 2011. The hearing before the ALJ was
held on May 15, 2012. The ALJ issued a decision on June 26, 2012, finding that
Kelly was not disabled within the meaning of the Act because he was capable of
successfully adjusting to other work that existed in significant numbers in the
national economy. Therefore, the ALJ denied Kelly’s application for benefits. On
July 13, 2012, Kelly filed a request for review of the ALJ’s decision with the
Appeals Council. On July 24, 2013, the Appeals Council denied Kelly’s request
for review. Therefore, the ALJ’s decision stands as the final decision of the
Commissioner. Kelly filed this action for judicial review on March 31, 2014.

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II. Evidence Before the ALJ
A. Medical Evidence
I have examined the administrative record in this case, including the medical
evidence and the claimant’s testimony. The record includes detailed information
from medical examinations, testing, and the claimant’s own testimony. Because
the claimant does not contest the ALJ’s assessment of the medical evidence, the
claimant’s impairments, or the RFC determination, I will not discuss the ALJ’s
evaluation of those issues. Nor will I discuss the ALJ’s five-step evaluation
process established by the governing regulations for determining whether a
claimant is disabled. See 20 C.F.R. § 1520(a) (setting out the procedure used by an
ALJ for determining when an individual is disabled).
B. Vocational Expert’s Testimony
At the hearing before the ALJ on May 15, 2012, a VE, Dale Thomas,
testified on the issue of what work in the national economy the claimant was
capable of performing. The VE also described Kelly’s past relevant work and
what descriptions in the Dictionary of Occupational Titles (DOT) they matched.
After testifying that Kelly would not be able to perform any past relevant work, the
ALJ asked the VE if there was other work Kelly could adjust to and perform. The
VE responded:

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[T]here would be production work that such a person could do as a
patcher, that’s an electronics assembly job, the DOT number for the
patcher is 723.687-010. That [INAUDIBLE] occupation is unskilled,
sedentary production workers of which is an example, the numbers in
the nation are 15,500 and in the region which would be Missouri 400.
In addition there would be inspectors, testers, sorters, and weighers
such as a touch up screener. A touch up screener has a DOT number
of 726.684-110. And for that group the numbers are 7,7000 in the
nation, 150 in the region. There are no other examples that I have.
(Tr. 77-78).
The VE was then questioned by Kelly’s attorney, Jack Adams.1 Adams and
the VE participated in the following exchange:
Q: As far as the numbers you gave in the jobs, was that an assumption of full
time or part time jobs, the number of jobs available?
A: Full time.
Q: Okay and - - where are you pulling those numbers from, the number of
jobs available?
A: [INAUDIBLE] there are May 2010 and specifically the occupational
employment survey data.
Q: And does that Occupational Survey Employment data, does it make any
difference between full time or part time or is there any information about
that where they pull that data from?
A: No I don’t know the answer to that, where that data comes from. I’m
looking back at my resource to try to determine where that comes from. I’m
assuming because it’s the one [INAUDIBLE] with the OES data that it
comes from that survey but again I’m not positive.
Q: And you don’t know that survey if they take into factor 30 hours a week
jobs, do they consider reportable or 20 hour a week or - -

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Jack Adams was Kelly’s attorney during the hearing before the ALJ. In this action, Carolina S.
Doney is representing Kelly.
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A: I have to admit, I’m not that familiar with the survey and how that data is
gathered.
(Tr. 79). Adams went on to question the VE about where exactly he was looking
up the DOT numbers and the VE responded “I’m relying on Skilltran Job Browser
Pro for software.” (Tr. 80). The VE also stated that he had not independently
verified that the Skilltran software data matched the DOT.
The VE also testified, “I think I could go back and break those [jobs] down
full time, part time” and that “[Adams] raise[s] an interesting point and I think I
will find that out but I don’t know [the percentage breakdown of full and part-time
jobs] today.” (Tr. 82-83).
After the VE’s testimony, Adams asked the ALJ to keep open the record so
that the VE could determine the ratio of full and part time jobs. The ALJ admitted
that he was not entirely familiar with the issue and that he was open to considering
any evidence Adams had on the issue. The ALJ informed Adams that he could
submit written interrogatories as a follow-up and that the ALJ would give him
fifteen days to do so. The ALJ also stated that it might be necessary to hold a
supplemental hearing. When Adams did send his post-hearing interrogatories to
the ALJ, the ALJ did not submit them to the VE because he determined that they
were not necessary to fully develop the record.

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III. The ALJ’s Decision
In his decision issued on June 26, 2012, the ALJ made the following
findings of fact and conclusions of law:
(1) The claimant last met the insured status requirements of the Social
Security Act on March 30, 2011.
(2) The claimant did not engage in substantial gainful activity during
the period from his alleged onset of November 1, 2008 through his
date last insured of March 30, 2011 (20 CFR 404.1571, et seq).
(3) Through the date last insured, the claimant had the following
severe impairments: Degenerative disease of the lumbar spine;
depression; alcohol abuse (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525
and 404.1526).
(5) After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the
residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except he is limited to jobs that involve
understanding, remembering and following simple instructions and
directions in a routine work setting and that involve no more than
occasional contact with others to perform job functions.
(6) Through the date last insured, the claimant was unable to perform
any past relevant work (20 CFR 404.1565).
(7) The claimant was born on December 29, 1960 and was 50 years
old, which is defined as a younger individual age 18-49, on the
date last insured. The claimant subsequently changed age category
to closely approaching advanced age (20 CFR 404.1563).

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(8) The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national
economy that the claimant could have performed (20 CFR
404.1569 and 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social
Security Act, at any time from November 1, 2008, the alleged
onset date, through March 30, 2011, the date last insured (20 CFR
404.1520(g)).
(Tr. 17-26).
In his decision the ALJ explained that after reviewing the twenty
interrogatories Adams proposed he declined to submit them because the
VE’s are not allowed to retain notes or other documentation regarding their
file review or testimony, certain questions did not seek information that was
not already reflected in the record of the hearings, and the issue of what is
full-time versus part-time employment is a determination to be made by the
ALJ, not the VE. (Tr. 25). The ALJ also stated that Kelly was capable of
adjusting to other work that existed in significant numbers in the national
economy. The ALJ also explained that he had conducted his own

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examination of the record and the DOT in making his determination that
submission of the interrogatories was unnecessary to fully and fairly
develop the record.
IV. Errors Alleged
Kelly alleges two points of error by the ALJ that can be essentially merged
in one. Kelly claims that the ALJ violated his due process rights because he failed
to fully and fairly develop the record when he did not submit the claimant’s
interrogatories to the VE. Because I find that the ALJ did not fail to fully and
fairly develop the record and because his determination that the claimant was
capable of performing work that exists in significant numbers in the national
economy is supported by substantial evidence, I will affirm the Commissioner’s
decision denying disability benefits.
V. Discussion
A court’s role on review is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. 42 U.S.C.
§ 405(g); Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence
is less than preponderance, but is enough so that a reasonable mind would find it
adequate to support the ALJ’s conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012
(8th Cir. 2000). As long as there is substantial evidence on the record as a whole
to support the Commissioner’s decision, a court may not reverse it because

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substantial evidence exists in the record that would have supported a contrary
outcome. Id. Nor may the court reverse because the court would have decided the
case differently. Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). Where
the Commissioner’s findings represent one of two inconsistent conclusions that
may reasonably be drawn from the evidence, however, those findings are
supported by substantial evidence. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001)
Disability is defined in social security regulations as the inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that 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
months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a). When determining
whether or not an individual is disabled, the Commissioner must follow a five-step
evaluation process. In the present case, Kelly does not contest the Commissioner’s
findings at steps one through four. Only the Commissioner’s decision at step five
is at issue. At step five, the Commissioner determined that Kelly could not
perform his past relevant work. If a claimant cannot return to his previous
occupation, the burden shifts to the Commissioner to show that Kelly could
perform other work that exists in significant numbers in the national economy. §
20 C.F.R. § 404.1520(a)(4)(V). If the Commissioner determines that a claimant

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can perform other work that exists in significant numbers in the national economy,
then the claimant is not disabled. Id.
Testimony from a VE is substantial evidence when it is based on a correctly
phrased hypothetical that accurately describes the claimant’s condition. Cox v.
Astrue, 495 F.3d 614, 620 (8th Cir. 2007). A VE may be used to assess whether
there are a significant number of jobs available in the national economy the
claimant can perform. Id. The ALJ has a duty to fully and fairly develop the
record. Wilcutts v. Apfel, 143 F.3d 1134 (8th Cir. 1998) (internal citations
omitted).
Kelly does not challenge the hypothetical the ALJ posed to the VE or the
jobs numbers provided by the VE at the hearing. Instead, Kelly alleges that his
ALJ’s refusal to submit post-hearing interrogatories to the VE to determine the
breakdown of full and part time jobs renders the decision invalid. I disagree. The
interrogatories submitted inquired about information already on the record or
information that the ALJ reasonably determined was unnecessary.
A VE is “neither required to articulate the percentage of available jobs that
[are] part-time or full-time, nor to describe labor market conditions beyond the data
readily available.” Dipple v. Astrue, 601 F.3d 833, 836 (8th Cir. 2010). A VE is
only required to state his opinion as to the number of jobs available in the national
economy to a person with the applicant’s RFC, age, work experience, and

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education. Whitehouse v. Sullivan, 949 F.2d 1005, 1007 (8th Cir. 1991). Such
information was contained in the record and it was not improper for the ALJ to rely
on the VE. See Id.
Furthermore, even if a large percentage of the available jobs described by
the VE were part time, that does not mean that the ALJ’s decision was
unreasonable, because the jobs numbers would have contained many full time jobs
as well. Work existing in the national economy, is defined as “work that exists in
significant numbers either in the region where such individual lives or in several
regions of the country.” 42 U.S.C. § 1382c(a)(3)(B). The two DOT job titles that
the VE stated Kelly could perform amounted to over 500 jobs in Missouri and over
23,000 nationwide. (Tr. 77-78). See Jenkins v. Bowen, 861 F.2d 1083 (8th Cir.
1988) (stating that the presence of 500 jobs within a regions was a significant
number); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (stating that 174 jobs
available in the region was a significant number). Therefore, the ALJ’s
determination that significant jobs were available to the claimant is supported by
substantial evidence.
The claim that because the VE had not examined the underlying data
supporting his sources somehow renders his testimony unreliable is also without
merit. Dipple, 601 F.3d at 836. The VE and the ALJ relied on jobs information
from the DOT in reaching the conclusion that significant numbers of jobs existed

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in the national economy. (Tr. 25, 77-79). The DOT is listed as an accepted source
for national employment information in the governing regulations. See 20 C.F.R. §
404.1566(d)(1). A VE does not testify as a “census taker or statistician.”
Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009). Therefore, the ALJ was not
obligated to forward the interrogatories asking the VE to state the specific data
sources used in his calculations in order to fully and fairly develop the record. Id.
V. Conclusion
Because the determination that submitting the interrogatories to the VE was
unnecessary is reasonable and supported by substantial evidence, it did not violate
Kelly’s due process rights or constitute a failure to fully and fairly develop the
record. Therefore, the ALJ’s decision denying benefits because Kelly was capable
of performing other work available in significant numbers in the national economy
is supported by substantial evidence.
IT IS HEREBY ORDERED that the final decision of the Commissioner
denying Wayne R. Kelly benefits is affirmed.
A separate judgment in accordance with this Memorandum and Order is
entered this date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 7th day of January, 2015.

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