CAMERON v. COLVIN
Filing
18
MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/12/2015. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that this action be dismissed with prejudice. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRENDA LEE CAMERON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:12CV1352
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Brenda Lee Cameron, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Benefits
The Court has before it the certified
administrative record (cited herein as “Tr. __”), as well as the
parties’ cross-motions for judgment (Docket Entries 10, 16).
For
the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on December 24, 2008
(protective filing date), alleging a disability onset date of
September 2, 2008.
1
(Tr. 173-79.)1
Upon denial of that application
Plaintiff included a claim for Supplemental Security Income (“SSI”) on her
application for benefits (see Tr. 173); however, the record does not reflect any
further pursuit of SSI.
initially (Tr. 85, 87-92) and on reconsideration (Tr. 86, 96-103),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”)
(Tr.
104-05).
Plaintiff,
her
vocational expert (“VE”) attended the hearing.
attorney,
and a
(Tr. 61-84.)
By
decision dated August 13, 2010, the ALJ determined that Plaintiff
was not disabled under the Act.
(Tr. 32-43.)
On August 31, 2012,
the Appeals Council denied Plaintiff’s request for review (Tr. 510), making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2012.
2.
[Plaintiff] has not engaged in substantial gainful
activity since September 2, 2008, the alleged onset date.
. . . .
3.
[Plaintiff] has the following severe impairments:
status post right knee arthroplasty, asthma, obesity, and
chronic back pain.
. . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform less than the full range of light
work . . . with postural and environmental limitations.
. . . .
2
6.
[Plaintiff] is capable of performing past relevant
work as an accounts receivable clerk, accounting clerk,
and supervisor accounting clerk.
This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity
. . . .
. . . [In addition,] there are other jobs existing in the
national economy that [Plaintiff] is also able to
perform.
. . . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from September 2, 2008, through
the date of this decision.
(Tr. 37-42) (internal parenthetical citations omitted).)2
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
2
The postural and environmental limitations included in the residual functional
capacity adopted by the ALJ consisted of “the opportunity to alternate sitting
and standing every 30 to 45 minutes,” no climbing of ropes, ladders, or
scaffolds, occasional climbing of ramps and stairs, occasional crouching,
crawling, and kneeling, and no “concentrated exposure to pulmonary irritants such
as dust, fumes, or gases, as well as poor ventilation, heat and humidity.” (Tr.
38.)
3
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks
omitted).
“Substantial
evidence
means
‘such
relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.”
Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (internal citations and quotation marks
omitted).
“If there is evidence to justify a refusal to direct a
verdict were the case before a jury, then there is substantial
evidence.”
Hunter, 993 F.2d at 34 (internal quotation marks
omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
4
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘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 which has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).3
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
3
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).4
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.5
Step four then requires the ALJ to assess
4
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
5
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
6
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.6
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) Plaintiff submitted new evidence to the Appeals Council in
the form of x-rays of her lumbar spine which warrants remand of her
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
6
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
case for further consideration of her credibility with regard to
her back pain (Docket Entry 11 at 2-4);
(2) the ALJ erred by including within the RFC a finding that
Plaintiff can occasionally crawl and kneel and by discounting
Plaintiff’s symptom reporting in formulating the RFC (id. at 4-7);
and
(3) substantial evidence did not support the ALJ’s finding
that Plaintiff could perform her past relevant work (“PRW”) and the
ALJ’s alternative finding that Plaintiff could perform other work
identified by the VE because the VE did not explain the conflict
between her testimony and the Dictionary of Occupational Titles
(“DOT”) (id. at 7-8).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 17 at 3-16.)
New Evidence
In her first assignment of error, Plaintiff contends that new
evidence submitted to the Appeals Council warrants remand of her
case for reconsideration of her credibility with respect to her
back pain.
(Docket Entry 11 at 2-4.)
Specifically, Plaintiff
asserts that new x-rays of her lumbar spine dated February 21, 2012
(Tr. 631), when compared with earlier images taken on March 26,
2008 (Tr. 313, 490, 629), “show[] that, objectively, [her] lumbar
spine is in a much worse condition than it was in 2008” (Docket
Entry 11 at 3).
According to Plaintiff, the ALJ made a favorable
8
finding at part one of the credibility analysis (meaning that
objective
evidence
showed
Plaintiff
had
a
medical
condition
reasonably likely to cause the pain alleged) on the basis of
“virtually” only the March 26, 2008 x-rays, but then found against
her at part two of the credibility assessment.
(Id. at 2; see also
Tr. 40.) Thus, as a result of this “highly material” new evidence,
Plaintiff
maintains
that
the
ALJ
must
reassess
Plaintiff’s
credibility with regard to her testimony about her back pain. (Id.
at 3.)
That argument provides no basis for relief.
“[T]he
Appeals
Council
is
required
to
consider
new
and
material evidence relating to the period on or before the date of
the ALJ decision in deciding whether to grant review.”
Wilkins v.
Secretary, Dep’t of Health & Human Servs., 953 F.2d 93, 95 (4th
Cir. 1991) (emphasis added).
“Evidence is new within the meaning
of [the Commissioner’s regulations] if it is not duplicative or
cumulative.”
Id. at 95-96; see generally Associate Comm’r of
Hearings and Appeals, Soc. Sec. Admin., Pub. No. 70–074, Hearings,
Appeals,
Litig.,
and
Law
(LEX)
Manual,
§
I–3–306(A)
(1990).
“Evidence is material if there is a reasonable possibility that the
new evidence would have changed the outcome.” Wilkins, 953 F.2d at
96 (citing Borders v. Heckler, 777 F.2d 954, 956 (4th Cir. 1985)).
Here, the x-ray report in question qualifies as “new,” as it
reveals mild degenerative changes in Plaintiff’s lumbar spine not
seen on the March 26, 2008 x-ray report (compare Tr. 631, with Tr.
9
313, 490, 629) or elsewhere in the record.
However, the report
lacks materiality because it presents no reasonable possibility of
a different outcome.
Despite Plaintiff’s characterization of the
new evidence as depicting her back condition as “much worse”
(Docket Entry 11 at 3), that evidence, while newly confirming
degeneration in Plaintiff’s lumbar spine, continues to show only
mild degenerative changes (Tr. 313, 490, 629), consistent with the
ALJ’s findings that Plaintiff’s chronic back pain qualifies as a
severe impairment (at step two), does not meet a listing (at step
three), and merits restriction to less than the full range of light
work with significant postural limitations (for purposes of the RFC
used at steps four and five).
Plaintiff makes no attempt to show
how the new findings of mild degenerative changes in her lumbar
spine reasonably could alter those determinations.
Entry 11 at 2-4.)
(See Docket
Notably, Plaintiff neither argues that the
findings on the February 21, 2012 x-ray report establish that she
meets or medically equals any of the Commissioner’s listings nor
explains how those findings should alter the RFC (let alone how
such alteration would impact her ability to perform her PRW or
other jobs cited by the VE). (Id.)
Accordingly, Plaintiff’s new evidence provides no basis for
this Court to order further administrative proceedings.
10
2.
RFC
Next, Plaintiff asserts that substantial evidence fails to
support the RFC assessment in two respects. (Docket Entry 11 at 47.)
First, Plaintiff characterizes the ALJ’s conclusion that
Plaintiff can occasionally crawl and kneel (i.e., for up to two
hours and 40 minutes of an eight-hour work day) as “inconceivable”
in light of her total knee replacement and continued knee pain.
(Id. at 4.)
According to Plaintiff, “[t]he ALJ cited no evidence
other than check-box documents prepared by State agency nonexaminers to support” her conclusion regarding Plaintiff’s ability
to crawl and kneel.
(Id. at 5.)
Second, Plaintiff claims that the
ALJ erroneously found that Plaintiff’s “own description of her
activities and lifestyle were inconsistent with disability.”
at 6.)
(Id.
Plaintiff asserts that “[t]he ALJ overstated the force of
the evidence” supporting her conclusion and “understated those
parts of [Plaintiff’s] testimony that support [Plaintiff’s] claim
[for benefits].
(Id.)
With
to
regard
Those arguments lack merit.
the
ALJ’s
finding
that
Plaintiff
could
occasionally crawl and kneel, the Court should conclude that
substantial
evidence
supports
that
Plaintiff’s
argument,
the
relied
ALJ
finding.
upon
Contrary
medical
to
evidence,
Plaintiff’s daily activities, and the opinions of the state agency
consultants in concluding that Plaintiff could occasionally crawl
and kneel.
(Tr. 39-41.)
Significantly, the medical evidence
11
demonstrates that, with the exception of a superficial wound
infection, Plaintiff recovered well from her total knee replacement
(Tr. 354-76), and ultimately presented to her treating surgeon, Dr.
William
T.
Hardaker,
Jr.,
five
months
post-surgery,
with
“[a]bsolutely no complaints,” whereupon he discharged her from his
care (Tr. 509).
Moreover, no medical provider of record has
offered an opinion that Plaintiff lacks the ability to crawl and
kneel
occasionally.
Under
these
circumstances,
substantial
evidence supports the ALJ’s conclusion that Plaintiff can crawl and
kneel occasionally.
Even if the Court found substantial evidence failed to support
the ALJ’s finding regarding crawling and kneeling, only harmless
error would result.
The ALJ found that Plaintiff retained the RFC
to perform her PRW as a receiving clerk, accounting clerk, and
supervisor accounting clerk (Tr. 41), and none of these jobs
require any crawling or kneeling, either as Plaintiff actually
performed them (see Tr. 210) or as generally performed (see Dep’t
of
Labor,
DOT,
No.
216.482-010,
1991
WL
671933
(“accounting
clerk”), No. 216.132-010, 1991 WL 671911 (“supervisor, accounting
clerks”) (4th ed. 1991)).
Similarly, the ALJ made an alternative
step five finding that other jobs existed that Plaintiff could
perform (Tr. 41-42), and none of those jobs require crawling or
kneeling,
see
DOT,
No.
239.567-010,
1991
WL
672232
(“office
helper”), No. 219.362-010, 1991 WL 671953 (“administrative clerk”),
12
No. 209.687-026, 1991 WL 671813 (“mail clerk”).
Plaintiff has
failed to dispute that her PRW and the jobs cited by the VE require
no crawling or kneeling (see Docket Entry 11 at 4-7) and, thus,
even if the ALJ erred by finding Plaintiff could occasionally crawl
and kneel, the Court should take no action because such error had
no impact on the outcome of the case, see Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (“No principle of administrative law or
common sense requires us to remand a [Social Security] case in
quest of a perfect opinion [from an ALJ] unless there is reason to
believe that the remand might lead to a different result.”).
With regard to Plaintiff’s credibility, the Court should
similarly
assessment
find
of
that
substantial
Plaintiff’s
evidence
subjective
supports
complaints.
the
The
ALJ’s
Social
Security Administration’s Policy Interpretation Ruling Titles II
and XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements (“SSR 96–7p”), as applied
by the Fourth Circuit in Craig, 76 F.3d at 594–95, provides a
two-part test for evaluating a claimant’s statement about symptoms.
“First, there must be objective medical evidence showing ‘the
existence of a medical impairment(s) which results from anatomical,
physiological,
or psychological
abnormalities
and
which
could
reasonably be expected to produce the pain or other symptoms
alleged.’”
Id.
at
594
(quoting
13
20
C.F.R.
§§
404.1529(b)
&
416.929(b)).
The ALJ ruled in Plaintiff’s favor on that issue.
(Tr. 40.)
At part two of the process, the ALJ must evaluate the alleged
intensity and persistence of the claimant’s reported symptoms and
the extent of the resulting impact on the claimant’s ability to
work.
Craig, 76 F.3d at 595 (citing 20 C.F.R. §§ 404.1529(c)(1) &
416.929(c)(1)).
In making this evaluation, the ALJ:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).
Here, contrary to Plaintiff’s assertion (Docket Entry 11 at 67), the ALJ specifically discussed Plaintiff’s hearing testimony
about her knee pain, difficulty standing, and daily activities:
[Plaintiff] stated that she . . . has intermittent pain
and aches in her knee. For relief, she elevates her leg
and takes Tylenol to ease the pain. She said she obtains
some results after approximately one hour. She contended
that she has difficulty sitting and standing due to her
back pain. . . . On a typical day, [Plaintiff] gets up in
the morning, makes coffee and watches television. She
likes to crochet, knit, needlepoint and sew.
She
performs some household chores, cooking, and cleaning
with rest breaks. She also checks electronic mail on the
computer. She uses public transportation to get to the
grocery store. She noted that she uses electric carts in
the grocery store. She is able to drive, but has some
difficulty due to her knee condition.
14
(Tr.
39.)
The
ALJ’s
description
constitutes an accurate summary.
of
Plaintiff’s
testimony
(See Tr. 72-76.)
Then, after discussing the medical evidence of record (Tr. 3940), the ALJ made the following findings regarding Plaintiff’s
credibility:
Ultimately, [Plaintiff’s] statements concerning her
impairments and their impact on her ability to work do
not support a finding of disability, in light of
[Plaintiff’s] own description of her activities and
lifestyle, the degree of medical treatment required, the
reports of treating and examining practitioners, and the
findings made on examination.
Despite [Plaintiff’s]
complaints regarding her right knee condition and chronic
low back pain, [Plaintiff] reported to her primary care
physician that she went on a three mile hike in May 2008.
Moreover, on February 3, 2009, post knee surgery,
[Plaintiff] walked with a non-antalgic gait and had good
range of motion of the right knee. Additionally, her
back condition has not required the use of [an] assistive
device, nor surgical intervention. Further, she has not
sought treatment for her back condition with a free
clinic, although she receives her asthma medications
through a clinic and free samples from her doctor.
Turning to [Plaintiff’s] asthma condition, in spite of
exacerbations brought on by colds or sinus infections,
she has not required any inpatient hospitalization or
emergency room visits for her asthma conditions.
In
effect, her asthma is well controlled with medication and
easily brought to baseline with minimal treatment.
Finally, although [Plaintiff] is obese, this condition
has not significantly limited her activities of daily
living.
In fact, [Plaintiff] requested notes to be
excused from work, because her husband needed her at
home. [Plaintiff] testified that she is able to perform
household chores. She also stated that she does crafts,
including sewing and needlepoint, as well [as] utilizes
the computer to check electronic mail.
Thus, the
evidence of record tends to show that [Plaintiff’s]
symptoms and impairments are not as severe as alleged.
Moreover, [Plaintiff’s] activities are inconsistent with
the presence of greater limitations than were found in
the
aforementioned
residual
functional
capacity
assessment.
15
(Tr. 40-41 (internal citations omitted).) Again, the ALJ accurately
summarized the applicable medical evidence (Tr. 240-72, 354-76, 509)
and testimony (Tr. 74-75), and her analysis comports with the
regulatory requirements.
Accordingly,
the
Court
should
reject
Plaintiff’s
second
assignment of error.
3.
Conflict Between VE Testimony and the DOT
Finally, Plaintiff contends that substantial evidence fails to
support the ALJ’s finding that Plaintiff could perform her PRW and
alternative finding that Plaintiff could perform other jobs cited
by the VE.
(Docket Entry 11 at 7-8.)
Specifically, Plaintiff
maintains that the DOT “does not affirmatively allow a sit/stand
option, and because of this alone, there is a conflict” between the
VE’s testimony citing jobs that accommodate a sit/stand option and
the DOT. (Id. at 7 (citing Massachi v. Astrue, 486 F.3d 1149, 115354 (9th Cir. 2007); Jefferson v. Astrue, No. 2:11–cv–840–TFM, 2012
WL 4378584, at *7 (M.D. Ala. Sept. 25, 2012) (unpublished); Martinez
v. Astrue, No. 2:10–cv–857–SA, 2011 WL 2912817, at *8 (D. Utah July
18, 2011) (unpublished); Pangle v. Astrue, No. 1:08cv01760 DLB, 2010
WL 668912, at *11 (E.D. Cal. Feb. 23, 2010) (unpublished)).)
Further, Plaintiff argues that jobs at the light exertional level
“‘entail standing for up to six hours a day in an upright position
without moving about and would not allow for a sit/stand option,’”
again, requiring “explanatory VE testimony.”
16
(Id. (citing Chism v.
Astrue, No. 2:11cv380–CSC, 2012 WL 2930757, at *5 (M.D. Ala. July
18,
2012)
(unpublished);
Strain
v.
Astrue,
No.
2:09–CV–320–FtM–UA–DNF, 2009 WL 2207509, at *9 (M.D. Fla. July 14,
2009) (unpublished); Rague v. Astrue, No. 07-0419-CV-W-DW-SSA, 2008
WL 1990801, at *1 (W.D. Mo. May 1, 2008) (unpublished)).)
Those
arguments fall short.
At the outset, the Jefferson and Martinez cases relied upon by
Plaintiff do not stand for the proposition that, because the DOT
omits reference to sit/stand options, a per se conflict exists when
an ALJ relies on VE testimony citing jobs located in the DOT in
response to a hypothetical question containing a sit/stand option.
Jefferson, 2012 WL 4378584, at *7; Martinez, 2011 WL 2912817, at *8.
Instead, those cases merely noted testimony by VEs that, although
the DOT job descriptions did not reference a sit/stand option, their
vocational
experience
provided
regarding its availability.
the
Id.
basis
for
their
testimony
Neither case even addressed the
issue of whether the silence of the DOT as to a sit/stand option
creates a conflict with VE testimony citing jobs in the DOT, let
alone whether reversible error automatically results if the ALJ does
not expressly elicit explanatory VE testimony.
Id.
The Massachi and Pangle cases do hold that an ALJ errs by
failing to procure a specific explanation from a VE regarding how
the cited jobs from the DOT can accommodate a sit/stand option.
Massachi, 486 F.3d at 1153-54; Pangle, 2010 WL 668912, at *11.
17
However, those cases from the Ninth Circuit and a district court
therein obviously do not bind this Court; rather, this Court should
follow several district court cases within the Fourth Circuit which
hold to the contrary, see Green v. Colvin, No. 1:10CV561, 2013 WL
3206114, at *11 (M.D.N.C. June 24, 2013) (unpublished) (Webster,
M.J.) (citing Lusk v. Astrue, No. 1:11-cv-00196-MR, 2013 WL 498797,
at
*5
(W.D.N.C. Feb. 11, 2013) (unpublished)), recommendation
adopted, slip op., 2013 WL 4811705 (M.D.N.C. Sept. 9, 2013) (Eagles,
J.); McFalls v. Astrue, No. 1:10cv063, 2011 WL 6000513, at *6
(W.D.N.C. Nov. 30, 2011) (unpublished).
In particular, Green, Lusk, and McFalls rely on Hynes v.
Barnhart, No. 04CV490SM, 2005 WL 1458747, at *5 (D.N.H. June 15,
2005) (unpublished), which offers the following, well-reasoned
rationale for the conclusion that the silence of the DOT with regard
to sit/stand options does not create a presumption that jobs listed
therein preclude a sit/stand option:
As the Commissioner correctly points out, since the [DOT]
does not address the factor of changing position in [the
jobs cited by the VE] or any other jobs, there is no
conflict between the [DOT] and the [VE’s] testimony.
Here, the [VE] simply applied his expertise and provided
the ALJ with information that was not provided in the
[DOT]. Contrary to [the] claimant’s assertion, there was
no “conflict” between the [VE’s] testimony and the data
provided by the [DOT]. And, perhaps more importantly,
the [VE] unambiguously testified that there was a
substantial number of jobs in the national economy that
a person with [the] claimant’s limitations – including
the need to change positions frequently – could perform.
Hynes, 2005 WL 1458747, at *5 (internal quotation marks omitted).
18
Similarly, here, the ALJ asked the VE, “Do you understand that
if you give us an opinion which conflicts with the [DOT] that you
need to advise us of the conflict and the basis for your opinion?”
to which the VE responded, “Yes.”
(Tr. 81 (emphasis added).)
The
VE did not thereafter indicate that any conflict arose between her
testimony and the DOT.
(See Tr. 81-83.)7
Consistent with Green,
Lusk, McFalls, and Hynes, the ALJ thus properly relied on the VE’s
testimony regarding the availability of jobs that could accommodate
Plaintiff’s limitations, including as to the sit/stand option,
particularly given that Plaintiff had a full and fair opportunity
to cross-examine the VE regarding any possible conflict between her
testimony and the DOT, but chose not to do so (Tr. 82-83).
Plaintiff’s argument that the prolonged standing required by
light work precludes any possibility of a sit/stand option similarly
fails.
None of the cases cited by Plaintiff support her argument
in that regard.
See Chism, 2012 WL 2930757, at *6-8 (recognizing
that, in the Eleventh Circuit, “a [VE’s] testimony trumps the [DOT]
to the extent that the two are inconsistent” and that, even if that
precedent did not exist, mere classification of jobs as light does
not preclude a sit/stand option, given that many light jobs involve
7
Although the ALJ noted in her decision that “[p]ursuant to SSR 00-4p, the
[VE’s] testimony is consistent with the information contained in the [DOT] with
the exception of her testimony regarding an opportunity to alternate sitting or
standing” (Tr. 42 (emphasis added)), that statement does not equate to a finding
that a conflict existed between the VE’s testimony and the DOT. The ALJ merely
acknowledged the DOT’s silence with regards to sit/stand options, which differs
altogether from finding that the DOT conflicted with the VE’s testimony, e.g.,
that the DOT expressly provided that the jobs cited by the VE could not
accommodate a sit/stand option.
19
prolonged sitting (emphasis added)); Strain, 2009 WL 2207509, at *89 (commenting generally that unskilled jobs “ordinarily” do not
permit a worker to sit or stand at will but remanding case because,
inter
alia,
ALJ
neglected
to
include
sit/stand
option
in
hypothetical question to VE); Rague, 2008 WL 1990801, at *1 (not
addressing the suitability of light work for sit/stand options).
Nor
should
the
Court
otherwise
deem
light
work
generally
incompatible with a sit/stand option. See, e.g., Wilcox v., Astrue,
492 F. App’x 674, 679-80 (7th Cir. 2012) (rejecting contention that
“ALJ should not have found that [the plaintiff] can engage in light
work . . . because that is inconsistent with the acknowledgment that
[he] was limited to jobs with a sit/stand option”).
In
sum,
the
Court
should
find
that
substantial
evidence
supports the ALJ’s finding that Plaintiff could perform her PRW and
alternative finding that Plaintiff could perform other jobs in the
national economy.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment
on
the
Pleadings
(Docket
20
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 16)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 12, 2015
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?