Green v. Colvin

Filing 24

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Doc. 1, 16, 23.]IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge. 16 1 23 21 16 Signed by Magistrate Judge Nannette A. Baker on 9/5/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEMETRIUS L. GREEN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-1340 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Demetrius Green’s application for disability insurance
benefits and supplemental security income under the Social Security Act, 42 U.S.C. §§ 416, 423
et seq. Green alleged disability due to lungs not functioning properly, lungs that are too small,
obstructive sleep apnea, depression, hypertensive heart disease, hypercholesterolemia, and
oxygen therapy. (Tr. 175.) The parties have consented to the exercise of authority by the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 9.]
Green presents two errors for the Court’s review.

First, Green asserts that the

administrative law judge’s (“ALJ”) residual functional capacity (“RFC”) assessment is more
restrictive than the hypothetical question posed to the vocational expert, and therefore, the ALJ
erroneously relied upon the vocational expert’s testimony. Second, Green asserts that the ALJ
relied upon vocational expert testimony that lacked a sufficient basis. The Commissioner asserts
that the ALJ’s decision is supported by substantial evidence in the record as a whole and should
be affirmed. The Court has reviewed the parties’ briefs and the entire administrative record,

including the hearing transcript and the medical evidence. For the reasons set forth below, the
Court will affirm the Commissioner’s final decision.
I.

Standard of Review
The Social Security Act defines disability as an “inability 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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 416(i)(1)A), 423(d)(1)(A).
The Social Security Administration (“SSA”) uses a five-step analysis to determine
whether a claimant seeking disability benefits is in fact disabled. 20 C.F.R. §§ 404.1520(a)(1),
416.920(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the claimant must establish that he or she has an
impairment or combination of impairments that significantly limits his or her ability to perform
basic work activities and meets the durational requirements of the Act.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R.

Third, the claimant must establish that his or her

impairment meets or equals an impairment listed in the appendix of the applicable regulations.
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairments do not meet
or equal a listed impairment, the SSA determines the claimant’s RFC to perform past relevant
work. 20 C.F.R. §§ 404.1520(e), 416.920(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant meets
this burden, the analysis proceeds to step five.

At step five, the burden shifts to the

Commissioner to establish the claimant maintains the RFC to perform a significant number of
jobs in the national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant

2

satisfied all of the criteria under the five-step evaluation, the ALJ will find the claimant to be
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001).

This Court reviews the decision of the ALJ to determine whether the decision is

supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial
evidence is less than a preponderance, but enough that a reasonable mind would find adequate
support for the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The Court
determines whether evidence is substantial by considering evidence that detracts from the
Commissioner’s decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902,
906 (8th Cir. 2006). The Court may not reverse just because substantial evidence exists that
would support a contrary outcome or because the Court would have decided the case differently.
Id. If, after reviewing the record as a whole, the Court finds it possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner’s finding,
the Commissioner’s decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 726 (8th
Cir. 2004). The Court must affirm the Commissioner’s decision so long as it conforms to the
law and is supported by substantial evidence on the record as a whole. Collins ex rel. Williams v.
Barnhart, 335 F.3d 726, 729 (8th Cir. 2003).
II.

Discussion
Green contends that the ALJ improperly relied upon the vocational expert’s testimony in

formulating the RFC and identifying jobs that Green could perform, because the substance of
that testimony did not constitute substantial evidence. The Court will review the vocational
expert’s testimony and then address the ALJ’s use of that testimony in formulation of the RFC
and whether there was a sufficient basis for the testimony.

3

A.

Vocational Expert Testimony and formulation of the RFC

The RFC is defined as what the claimant can do despite his or her limitations, and
includes an assessment of physical abilities and mental impairments. 20 C.F.R. §§ 404.1545(a),
416.945(a). The RFC is a function-by-function assessment of an individual’s ability to do work
related activities on a regular and continuing basis. 1 SSR 96-8p, 1996 WL 374184, at *1 (July 2,
1996). It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and the claimant’s own
descriptions of his limitations. Pearsall, 274 F.3d at 1217. An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox, 471 F.3d at
907.
After the administrative hearing (with testimony by Green and the vocational expert) and
a review of the evidence in the record, the ALJ found that Green had the severe impairments of
recurrent major depression, generalized anxiety disorder, an asthma variant, obstructive sleep
apnea, and obesity. (Tr. 16.) Then, he determined that Green had the residual functional
capacity to perform light work with the following limitations: (1) never climb ropes, ladders or
scaffolds, (2) only occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl, (3) avoid
concentrated exposure to fumes, odors, dust, and gases, and the extremes of heat, cold, and
humidity, (4) avoid working at unprotected heights and around unprotected dangerous
machinery; (5) limited to jobs that require only simple repetitive tasks, and (6) no close
interaction with the general public. (Tr. 19.)
1.

Vocational Expert (“VE”) Testimony

The relevant vocational expert testimony is as follows:

1

A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

4

ALJ:
Okay. All right. I’d like you to assume a
hypothetical individual of Green’s age, education, and work
experience, and assume that person could lift 20 pounds on
occasion, and ten pounds frequently, could stand and/or walk
about six out of eight hours, and could sit at least six, and
that the person should avoid climbing ladders, ropes, and
scaffolds, but could occasionally climb ramps and stairs, and
could occasionally stoop, kneel, crouch, and crawl. The
person should avoid concentrated exposure to noxious
fumes, odors, dusts, and gases, and also concentrated
exposure to extreme heat, cold, and humidity, and the person
should avoid working at unprotected, dangerous heights, and
around unprotected dangerous machinery.
VE:
I’m sorry, Your Honor, were you considering
other parameters for this hypothetical?
ALJ:

Yes, sorry about that.

VE:
Okay. No worries. I didn’t know if you were
waiting on me to respond.
ALJ:
Yes, I was just thinking. Also let’s limit the
individual to simple and/or repetitive work that doesn’t
require close interaction with the public. With those
restrictions, would the hypothetical individual be able to
perform any of the past work or other work?
VE:
Yes, Your Honor. Let me check on one thing
really quickly with respect to specifically the postural for this
past work. One moment, please.
ALJ:

Okay.

VE:
Okay. That’s kind of what I thought. No, sir,
we would not have any past work remaining under this
hypothetical; however, there would be other work.
ALJ:
please?

All right. Could you give me some examples,

VE:
Most certainly. Okay. Just a second, please. All
right. The first job is office helper, office helper, DOT
number 239.567-010, and 1,810 in the State of Missouri,
83,250 in the nation, SVP 2, strength level light. Next job
recreation aide, recreation aide, DOT number 195.367-030,
5

approximately 4,460 in the State of Missouri, 253,110 in the
nation, SVP 2, strength level light. Is that sufficient, Your
Honor, or shall I continue?
ALJ:
Well, with regard to recreation aide, would that
involve interaction with the public?
VE:
Actually, you are correct. I wasn’t – for some
reason I wasn’t thinking. Let me strike that example and let
me give you another one.
ALJ:

Okay.

VE:
Photocopy machine operator, photocopy
machine operator, DOT number 207.685-014, approximately
1,930 in the State of Missouri, 66,280 in the nation, SVP 2,
strength level light. Shall I continue, Your Honor, or is that
sufficient?
ALJ:
I think that’s sufficient. If we would assume
hypothetically the person was limited to basically sedentary
work, which would be maximum lift of ten pounds, and a
maximum stand and/or walk of about two hours in an eighthour workday, and leave all other restrictions the same as in
the first hypothetical, would there be sedentary jobs that
could be performed within those restrictions?
VE:
Yes, there would, Your Honor. One moment,
please. Okay. The first job then final assembler optical,
final assembler optical, DOT number 713.687-018,
approximately 460 in the State of Missouri, 235,910 in the
nation, SVP 2, strength level sedentary. Next job semiconductor bonder, DOT 726.685-066, approximately 550 in
the State of Missouri, 21,720 in the nation, SVP 2, strength
level sedentary.
(Tr. 56-59.)
2.

Standard for Vocational Expert Testimony

Plaintiff contends that the ALJ’s RFC is not supported by substantial evidence, because
the RFC does not exactly match the hypothetical question given to the vocational expert. In the
hypothetical question to the vocational expert, the ALJ limits Green to “simple and/or repetitive

6

tasks.” In the RFC determination, the ALJ stated that Green was limited to “simple, repetitive
tasks.” Plaintiff contends that this change from either to both made the RFC more restrictive
than the hypothetical to the vocational expert; therefore, it is not supported by substantial
evidence. Plaintiff asserts that this difference requires remand. The Commissioner responds that
the vocational expert’s testimony is consistent with application of the conjunctive “and” and
therefore, the vocational expert’s testimony is consistent with phrasing contained in the RFC.
An ALJ’s hypothetical question must fully describe a claimant’s impairments.
Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995). These impairments must be based
on the “substantial evidence on the record and accepted as true and capture the concrete
consequences of those impairments.” Jones v. Astrue, 619 F.3d 963, 972 (8th Cir. 2010). If the
hypothetical question is properly formulated, then the testimony of the vocational expert
constitutes substantial evidence. Roe v. Chater, 93 F.3d 672, 676 (8th Cir. 1996).
A hypothetical question must precisely describe a claimant’s impairments so that the
vocational expert may accurately assess whether jobs exist for the claimant.” Newton v. Chater,
92 F.3d 688, 694-695 (8th Cir. 1996). “An expert’s testimony based upon an insufficient
hypothetical question may not constitute substantial evidence to support a finding of no
disability.” Newton, 92 F.3d at 695. The testimony of a VE should be consistent with the
Dictionary of Occupational Titles (DOT) 2. See Social Security Ruling (SSR) 00-4p, 2000 WL
1898704 at *2 (December 4, 2000). Evidence from a VE can include information not listed in
the DOT.

SSR 00-4p at *2.

This is because the DOT lists “maximum requirements of

occupations” and “not the range of requirements” at any particular job or place. Id. at *3. A VE
2

The Dictionary of Occupational Titles (“DOT”) is a guide from the United States Department of Labor regarding
job ability levels that has been approved for use in Social Security cases. See Fines v. Apfel, 149 F.3d 893, 895 (8th
Cir. 1998) (citing 20 C.F.R. § 404.1566(d)(1)); Porch v. Chater, 115 F.3d 567, 571 (8th Cir.1997)). “The DOT is
the Commissioner’s primary source of reliable job information. The Commissioner uses the DOT to classify
occupations as skilled, semiskilled or unskilled.” Fines, 149 F.3d at 895 (internal citations omitted).

7

may be able to provide more specific information about jobs or occupations than the DOT. SSR
00-4p at *3.
An error in posing the hypothetical question may be harmless, however, if there is no
conflict with the VE’s testimony and the DOT or there is no indication that the ALJ would have
decided the case differently. See Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (ALJ
error harmless where ALJ misread doctor’s handwriting regarding whether claimant could
“walk” or “work,” because no indication that ALJ’s decision would be different had he read the
doctor’s note correctly); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (ALJ error in
failing to ask VE about possible conflicts between testimony and DOT harmless, since no
conflict existed).
In this case, the Court finds that the ALJ’s change in phrasing does not require remand.
Green states that because three of the four jobs identified by the vocational expert require Level
2 reasoning, the vocational expert would not have identified those jobs if she understood the ALJ
was asking for jobs that were simple and repetitive. The Eighth Circuit ruling in Moore v.
Colvin, 623 F.3d 599, 604 (8th Cir. 2010) is instructive here. In Moore, the Court emphasized
that Level 2 reasoning requires that the worker, “apply commonsense understanding to carry out
detailed but uninvolved written or oral instructions.” Moore, 623 F.3d at 604. The court in
Moore further held in that case, “there is no direct conflict between ‘carrying out simple job
instructions’ for ‘simple, routine repetitive work activity’, as in the hypothetical and the
vocational expert’s identification of occupations involving instructions that, while potentially
detailed, are not complicated or intricate.” Id.
In this case, the ALJ’s RFC determination and hypothetical to the vocational expert could
encompass positions with both Level 1 and Level 2 reasoning positions. Green has not shown

8

that work at a Level 2 reasoning level could not be classified as simple. Therefore, the Court
finds that the slight difference in phrasing in the ALJ’s RFC determination and the hypothetical
to the VE does not require remand.
B.

Vocational Expert Opinion on matters outside the DOT

In Green’s second point of error, he asserts that the ALJ could not rely upon the
vocational expert’s testimony, because the vocational expert did not provide a sufficient basis for
her opinions regarding information not addressed in the DOT.
Plaintiff’s argument has been foreclosed by the Eighth Circuit’s recent decision in
Courtney v. Commissioner, 894 F.3d 1000, 1004 (8th Cir. 2018), which holds that there is no
requirement that an ALJ inquire as to the precise basis for the expert’s testimony regarding extraDOT information. In Courtney, the Eighth Circuit addressed and rejected the same arguments
that Plaintiff relies upon in this case. Therefore, Plaintiff cannot obtain relief on this claim.
IV.

Conclusion
For reasons set forth above, the Court affirms the Commissioner’s final decision.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief

in Support of Complaint is DENIED. [Doc. 1, 16, 23.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.

Dated this 5th day of September, 2018.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
9