Parker v. Colvin

Filing 21

ORDER granting 15 Motion for Judgment on the Pleadings, denying 16 Motion for Judgment on the Pleadings, and rejecting 19 Memorandum and Recommendation - This case is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. §§ 405(g), for further consideration in accordance with this order. Signed by District Judge Louise Wood Flanagan on 6/11/2014. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:13-CV-38-FL
DOMINICK J. PARKER, substitute party for )
RICKY PARKER,
)
)
)
Plaintiff,
)
v.
)
)
CAROLYN W. COLVIN,
)
)
Acting Commissioner of Social Security,
)
)
Defendant.

ORDER

This matter comes before the court on the parties’ cross-motions for judgment on the
pleadings (DE 15, 16).1 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge William A. Webb issued a memorandum and recommendation
(“M&R”) (DE 19), wherein it is recommended that the court deny plaintiff’s motion, grant
defendant’s motion, and that the final decision by defendant be affirmed. Plaintiff timely filed an
objection to the M&R and the response time has expired. In this posture, the issues raised are ripe
for ruling. For the reasons that follow, the court rejects the recommendation of the magistrate judge.
BACKGROUND
Plaintiff filed an application for supplemental security income and disability insurance
benefits on April 14, 2010, alleging disability beginning February 1, 2009. This application was
denied initially and upon reconsideration. A hearing was held on September 21, 2011, before an
Administrative Law Judge (“ALJ”) who determined that plaintiff was not disabled in a decision

1

Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin, Acting Comissioner of Social Security, has been named as
defendant in this case in place of former Commissioner Michael J. Astrue.

dated November 15, 2011. The appeals council denied plaintiff’s request for review on December
19, 2012, and plaintiff filed the instant action on February 12, 2013.
DISCUSSION
A.

Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner’s final

decision denying benefits. The court must uphold the factual findings of the ALJ “if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence is . . . such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). The standard is met by “more
than a mere scintilla of evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966).
To assist it in its review of the Commissioner’s denial of benefits, the court may “designate
a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of the motions for judgment on the pleadings].” See 28 U.S.C.
§ 636(b)(1)(B). The parties may object to the magistrate judge’s findings and recommendations,
and the court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). Absent a
specific and timely filed objection, the court reviews only for “clear error,” and need not give any
explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the

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record, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The ALJ’s determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant’s medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform his past relevant
work; and (5) the claimant can perform other specified types of work.
Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful activity since February 1, 2009, the date
of his application. At step two, the ALJ found that plaintiff had the following severe impairments:
hypertension with history of cerebrovascular accident, history of hepatitis and cervical
radiculopathy. However, at step three, the ALJ further determined that these impairments were not
severe enough to meet or medically equal one of the impairments in the regulations. Prior to
proceeding to step four, the ALJ determined that plaintiff had the residual functional capacity
(“RFC”) to perform the full range of light work. At step four, the ALJ concluded plaintiff was
capable of performing past relevant work as a donut store manager.
B.

Analysis
Plaintiff argues that the ALJ erred in concluding he could perform past relevant work as a

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donut store manager. Specifically, plaintiff objects to the M&R’s determination that “the ALJ
Properly Evaluated Plaintiff’s Residual Functional Capacity,” asserting that the ALJ “erroneously
found that a limitation to light work did not preclude the performance of past relevant work as a
donut store manager.” (Obj. 4). Upon de novo review of plaintiff’s objection, the court agrees that
the ALJ committed error requiring remand.
“[U]nder the fourth step of the disability inquiry, a claimant will be found ‘not disabled’ if
he is capable of performing his past relevant work either as he performed it in the past or as it is
generally required by employers in the national economy.” Pass v. Chater, 65 F.3d 1200, 1207 (4th
Cir. 1995). A claimant bears the burden of showing “an inability to return to [his] previous work
(i.e., occupation), and not simply to [his] specific prior job.” DeLoatche v. Heckler, 715 F.2d 148,
151 (4th Cir. 1983). An ALJ “may rely on the general job categories of the Dictionary [of
Occupational Titles (“DOT”)] as presumptively applicable to a claimant’s prior work.” Id. “The
same label, however, may be used in a variety of ways.” Id. Accordingly, a “claimant may
overcome the presumption that the [Commissioner]’s generalization applies by demonstrating that
[his] duties were not those envisaged by the framers of the [Commissioner]’s category.” Id.
In Deloatche, the court held that plaintiff may have met this burden to overcome this
presumption, where she presented evidence that the job she actually performed did not properly fall
under the DOT title that the Secretary of Health and Human Services2 had relied upon. The
Secretary had characterized plaintiff’s former work as “school social worker,” but the court noted
that the “definition of ‘school social worker’ on which the Secretary relies makes no mention of the
2

Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were
transferred to the Commissioner of Social Security. Social Security Independence and Program Improvements Act of
1994, Pub.L. No. 103-296, 108 Stat 1464.

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extensive walking, standing and driving activities required of a person responsible, as DeLoatche
was, for fifteen schools.” Id. The court noted that “[o]n remand, the Secretary of course may
consider additional evidence on the proper characterization of DeLoatche’s relevant prior work; it
may be possible that the Secretary can demonstrate that it is only DeLoatche’s specific prior job, and
not her occupation, which is not properly termed ‘sedentary.’” Id. However, the court held that “on
the present record such a determination cannot be upheld,” and “[t]he record before us does not
permit meaningful review of the Secretary’s determination.” Id. Accordingly, the court remanded
the case for further consideration.
An ALJ has a duty to explain the administrative decision so as to enable meaningful judicial
review. “While the [Commissioner] is empowered . . . to resolve evidentiary conflicts, the
[Commissioner], through the ALJ, is required to explicitly indicate ‘the weight given to all relevant
evidence.’” Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987) (quoting Gordon v. Schweiker,
725 F.2d 231 (4th Cir. 1984)).

In particular, the ALJ must “explain how any material

inconsistencies or ambiguities in the evidence in the case record were considered and resolved.”
SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996). “[R]emand is appropriate where an ALJ fails
to discuss relevant evidence that weighs against his decision.” Ivey v. Barnhart, 393 F. Supp. 2d
387, 390 (E.D.N.C. 2005) (citing Murphy, 810 F.2d at 438).
This duty to explain is expressly noted in the Social Security procedures for evaluating a
claimant’s past work. In particular, SSR 82-62 provides that “the decision as to whether the
claimant retains the functional capacity to perform past work which has current relevance has
far-reaching implications and must be developed and explained fully in the disability decision.” SSR

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82-62, 1982 WL 31386, at *3 (January 1, 1982). Further, “[a]dequate documentation of past work
includes factual information about those work demands which have a bearing on the medically
established limitations,” which information “will be derived from a detailed description of the work
obtained from the claimant, employer, or other informed source.” Id.
The section of the ALJ’s order on past relevant work provides, in its entirety, as follows:
6.

The claimant is capable of performing past relevant work as a Donut
Store manager. This work does not require the performance of work
related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965)

Melissa Stewart, the vocational expert testified that the claimant’s past work would
be categorized by the Dictionary of Occupational Titles (D.O.T.) # 185.167-0103
light exertion, SVP-5, Manager, Fast Food Services. In comparing the claimant’s
residual functional capacity with the physical and mental demands of this work, the
undersigned finds that the claimant is able to perform it as actually performed.
(Tr. 20).
This analysis fails to make any mention of evidence that weighed against the conclusion that
plaintiff could perform past relevant work. Plaintiff testified that his previous work involved tasks
including washing windows, cleaning the building and the surrounding premises, unloading
supplies, and occasionally making donuts and driving donut trucks. (Tr. 284-87). He testified that
making donuts required him to lift dough weighing over twenty-five (25) pounds overhead, and then
throw that dough into a hopper. (Tr. 283). He also testified that making donuts required extensive
walking to obtain the ingredients needed to make the donuts, which came in fifty (50) pound bags
that he had to lift. (Id.). Based on plaintiff’s description of his job, the vocational expert (VE)

3

The position of “Manager, Fast Food Services” actually falls under category 185.137-010. U.S. Dept. Of Labor,
Dictionary of Occupational Titles, 185.137-010 (4th ed. 1991).

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testified that:
“When he was promoted to manager, that’s 815.137-010 which is classified as light
work in the DOT with a skill level of five. But he also performed the job of donut
maker and other jobs which would place that work in a medium capacity.”
(Tr. 301).
The ALJ did not ask any additional questions regarding the proper classification of plaintiff’s
manager position. However, as noted above, the ALJ found plaintiff could perform past relevant
work “as actually performed.” (Tr. 20). The phrase “actually performed,” as used in the regulations,
is used in contrast to work “generally performed in the national economy.” See 20 C.F.R. §
404.1560(b)(2); see also SSR 82-61, 1982 WL 31387, at * 1-2 (Jan. 1, 1982) (distinguishing
between the RFC to perform “the particular functional demands and job duties peculiar to an
individual job as he or she actually performed it” and “the capacity to perform the functional
demands and job duties of the job as ordinarily required by employers throughout the national
economy.”). The ALJ failed to mention plaintiff’s testimony regarding the type of jobs he
performed as manager, or the testimony of the VE that such jobs placed his manager position “in
a medium capacity.” The ALJ did not attempt to reconcile his finding that plaintiff could perform
past relevant work “as actually performed” with the VE’s testimony that his work as manager
involved jobs at the “medium” level. In doing so, the ALJ neglected his duty to explain how
material inconsistencies and ambiguities in the case record were considered and resolved. SSR
96-8P, 1996 WL 374184 at *7. See Marquez v. Colvin, No. 5:12-cv-802-FL, 2014 WL 1316113
at *2-5 (E.D.N.C. March 31, 2014) (remanding to Commissioner where ALJ failed to explain
evidence bearing on characterization of plaintiff’s past relevant work as actually performed).
Defendant asserts that plaintiff helped make donuts or deliver orders on an infrequent basis,

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and that plaintiff could have chosen another employee to perform such tasks. (Def.’s Memo. at 1213). Defendant further argues that “[t]he VE testified and the ALJ recognized that plaintiff’s past
work would be classified as light duty, as routinely performed.” (Def.’s Memo., 13). However,
neither the VE nor the ALJ stated how plaintiff’s work was “routinely performed.” Without
discussion in the decision itself, defendant’s argument amounts to a post hoc rationalization.
Defendant further argues that the ALJ “confirmed with the VE the level at which plaintiff’s
past jobs would be identified as performed in the national economy and as performed by plaintiff.”
(Def.’s Memo., 15). As noted, to the extent that the ALJ’s determination was based on the level of
plaintiff’s job “as performed by plaintiff,” it was in error for failing to address evidence indicating
that plaintiff’s position involved jobs at the “medium” work level. As to the performance of
plaintiff’s jobs in the national economy, the ALJ did refer to the DOT, upon which he was entitled
to rely to define the job as it is performed in the national economy. See SSR 82-61, 1982 WL 31387
at *2. However, the DOT is only “presumptively applicable” to plaintiff’s work. DeLoatche, 715
F.2d at 151. That presumption may be overcome. See id.; Simmons v. Chater, No. 95-1075, 1995
WL 674606, at *2 (4th Cir. Nov. 14, 1995) (“Although it is true that the Secretary may rely on the
general job categories of the Dictionary as presumptively applicable to a claimant’s prior work, the
presumption is rebuttable.”) (internal quotation marks omitted). The fact that plaintiff’s former
employer labeled his job as “manager” is not the only evidence that bears on whether plaintiff was
engaged in the occupation the DOT labels as “manager” and identifies as “light work.” DeLoatche,
715 F.2d at 151. If the ALJ intended to hold that plaintiff’s occupation as performed in the national
economy was not “medium” work, he was still required to explain why plaintiff’s specific prior job
fit that occupational category, notwithstanding evidence to the contrary. See id.; see also Carter v.

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Sec’y of Health and Human Servs., 834 F.2d 97, 98-99 (6th Cir. 1987) (applying DeLoatche to hold
that the DOT’s definition of fast food restaurant manager was not substantial evidence to support
a finding that claimant could return to previous work, when claimant’s uncontroverted testimony
showed that his work was “hands on management which required that he lift meats weighing fifty
pounds on a regular basis.”).
On remand, the Commissioner “may consider additional evidence on the proper
characterization of [plaintiff’s] relevant prior work.” DeLoatche, 715 F.2d at 151. On the present
record, however, in light of the decision’s failure to discuss the testimony provided by plaintiff and
the VE as to the jobs performed in plaintiff’s previous work, the court cannot make this
determination. “Without an analysis of all evidence and a sufficient explanation of the weight given
to ‘obviously probative exhibits’ it is not possible to determine if the ALJ’s decision is supported
by substantial evidence.” Ivey, 393 F.Supp. 2d at 389-90 (citing Arnold v. Sec’y of Health, Educ.
and Welfare, 567 F.2d 258, 259 (4th Cir. 1977)).
CONCLUSION
Based on the foregoing, upon de novo review, and upon considered review of the record, the
court rejects the recommendation of the magistrate judge, GRANTS plaintiff’s motion for judgment
on the pleadings (DE 15), DENIES defendant’s motion for judgment on the pleadings (DE 16), and
REMANDS this matter to the Commissioner, pursuant to sentence four of 42 U.S.C. §§ 405(g), for
further consideration in accordance with this order. The clerk is directed to close this case.
SO ORDERED, this the 11th day of June, 2014.

________________________________
LOUISE W. FLANAGAN
United States District Judge

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