CORDER v. COLVIN
Filing
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MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/24/2015 as set out herein. RECOMMENDED that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion to Reverse the Decision of the Commissioner [Doc. # 9 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 11 ] be GRANTED, and that this action be DISMISSED with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID H. CORDER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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1:14CV768
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff David H. Corder (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social
Security denying his claims for Disability Insurance Benefits and Supplemental Security
Income under, respectively, Titles II and XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for
review.
I.
PROCEDURAL HISTORY
Plaintiff filed his applications for Disability Insurance Benefits and Supplemental
Security Income Benefits on March 1, 2011, alleging a disability onset date of July 19, 2010.
(Tr. at 229-44.)
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His applications were denied initially (Tr. at 138-59) and upon
Transcript citations refer to the Sealed Administrative Record [Doc. #7].
reconsideration (Tr. at 160-83). Thereafter, Plaintiff requested an administrative hearing de
novo before an Administrative Law Judge (“ALJ”). (Tr. at 216-17.) Plaintiff attended the
subsequent video hearing on May 31, 2013.
“Although informed of the right to
representation, the claimant chose to appear and testify without the assistance of an attorney
or other representative.” (Tr. at 15.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of
the Act. (Tr. at 35). On August 21, 2014, the Appeals Council denied Plaintiff’s request for
review of the decision, thereby making the ALJ’s conclusion the Commissioner’s final
decision for purposes of judicial review (Tr. at 1-5).
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial
of social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However,
“the scope of . . . review of [such an administrative] decision . . . is extremely limited.” Frady
v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets 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.
1993) (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.
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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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of
the [ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472
(internal brackets 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
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).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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)). 2
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance Program
. . . provides benefits to disabled persons who have contributed to the program while employed. The Supplemental
Security Income Program . . . 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).
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“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if
not, could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two
steps, and establishes at step three that the impairment “equals or exceeds in severity one or
more of the impairments listed in Appendix I of the regulations,” then “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 function[al] capacity
(‘RFC’).” Id. at 179.
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Step four then requires the ALJ to assess whether, based on that
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d at 562
(noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’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” (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.
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RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify as
disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the Commissioner to prove
that a significant number of jobs exist which the claimant could perform, despite [the
claimant’s] impairments.” Hines, 453 F.3d at 563. In making this determination, 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
Government cannot carry its “evidentiary burden of proving that [the claimant] remains able
to work other jobs available in the community,” the claimant qualifies as disabled. Hines,
453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial
gainful activity” since his amended alleged onset date. Plaintiff therefore met his burden at
step one of the sequential evaluation process. At step two, the ALJ further determined that
Plaintiff suffered from the following severe impairments: diabetes mellitus, coronary artery
disease, hypertension, COPD, sleep apnea, and obesity. (Tr. at 17.) The ALJ found at step
three that none of these impairments met or equaled a disability listing.
(Tr. at 19.)
Therefore, the ALJ assessed Plaintiff’s RFC and determined that he could perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant could lift 20 pounds occasionally and 10 pounds frequently; the
claimant could sit up to six hours out of an eight-hour workday; the claimant
could stand up to two hours in addition to walking up to two hours out of an
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eight-hour workday; the claimant could never climb ladders, ropes, and
scaffolds, but he could occasionally climb ramps and stairs; the claimant could
occasionally balance; the claimant could frequently stoop, kneel, crouch, and
crawl. The claimant should avoid concentrated exposure to fumes and
workplace hazards.
(Tr. at 20.) Based on this determination, the ALJ found under step four of the analysis that
Plaintiff could not return to his past relevant work. However, based on the vocational
expert’s testimony, the ALJ determined at step five, that, given Plaintiff’s age, education,
work experience, and RFC, he could perform other jobs available in the national economy,
including the representative occupations of Cashier II and Bench Assembler. (Tr. at 34-35.)
Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. at 35.)
Plaintiff now challenges the ALJ’s finding at step five. In particular, he argues that
“[t]here is an apparent unresolved conflict between the [Dictionary of Occupational Titles
(“DOT”)], which indicates that the jobs [cited by the vocational expert] may require standing
and walking for 6 hours per day, and the [vocational expert’s] testimony that the DOT
indicates that the jobs could be performed by a person limited to standing and walking 2
hours per day.” (Pl.’s Br. [Doc. #10] at 7.) Plaintiff further contends that (1) “the ALJ failed
to comply with [Social Security Ruling (“SSR”)] 00-4p’s requirement of eliciting a reasonable
explanation for the conflict . . . before relying [on the expert’s] testimony” and that (2) “[b]y
so failing, the ALJ also failed to fulfill his heightened duty to assist a pro se claimant to fully
develop the record.” (Id.)
A plain reading of SSR 00-4p and the hearing transcript in the present case belies
Plaintiff’s allegations of error. Ruling 00-4p provides that the existence of “an apparent
unresolved conflict” between a job’s requirements as described in the DOT and as described
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by a vocational expert triggers an ALJ’s responsibility to “elicit a reasonable explanation for
the conflict before relying on the [expert’s testimony] to support a determination or decision
about whether the claimant is disabled.” SSR 00-4p, 2000 WL 1898704, at *2. Significantly,
SSR 00-4p specifically includes a vocational expert’s “experience in job placement or career
counseling” among reasonable bases for relying on the evidence from such an expert rather
than the DOT. Id. The Ruling goes on to explain, in pertinent part, that “[t]he DOT lists
maximum requirements of occupations as generally performed, not the range of requirements
of a particular job as it is performed in specific settings. A [vocational expert] or other
reliable source of occupational information may be able to provide more specific
information about jobs or occupations than the DOT.”
Id. at *3 (emphasis added).
However, “[n]either the DOT nor the [vocational expert’s] evidence automatically ‘trumps’
when there is a conflict.” Id. at *2. Instead, “[t]he adjudicator must resolve the conflict by
determining if the explanation given by the [vocational expert] is reasonable and provides a
basis for relying on the [expert’s] testimony rather than on the DOT information.” Id.
In the present case, the ALJ expressly recognized the possibility of a conflict between
the DOT and the vocational expert’s testimony as to the standing and walking requirements
of the jobs identified at step five of the sequential analysis. The ALJ’s first hypothetical to
the vocational expert described an individual with an RFC as described above, except that
such an individual was capable of standing and walking for six hours in an eight-hour
workday. (Tr. at 63.) When asked what work would be available to this hypothetical
individual, the expert testified that he could perform the jobs of cashier II, cafeteria
attendant, and bench assembler. (Tr. at 64.) The vocational expert confirmed that this
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answer was consistent with the DOT. (Id.) The ALJ then asked as follows: “Hypothetical
number two is the same as hypothetical number one. The only modification would be that
standing would be limited to two of eight hours. In addition, walking would be two of eight
hours. Would that affect your answers?” (Id.) The vocational expert testified that the
additional restrictions would not affect his answers as to the positions of cashier II or bench
assembler. However, he stated that the position of “cafeteria worker would definitely be
walking most of the time, so that one would not meet your hypothetical.” (Tr. at 65.)
In accordance with SSR 00-4p, the ALJ then asked the vocational expert, “with
respect to hypothetical number two,” how the vocational expert knew that the jobs of
cashier II and bench assembler could be performed by an individual who could stand and
walk for only two hours each in an eight-hour day. In answer, the vocational expert named
two bases for his testimony, stating that the “DOT will often cover that issue,” and that he
also relied on his “professional experience and exposure.” (Tr. at 65.) Based on this
exchange, the ALJ then included the following findings and explanation in his decision:
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. The vocational expert confirmed that his testimony is
consistent with the information in the DOT. In addition, the vocational
expert explained that he relied upon the information in the DOT and his
professional experience when contemplating the aforementioned jobs in light
of the limitations on standing and walking in the residual functional capacity.
(Tr. at 35.)
Contrary to Plaintiff’s assertion, the fact that the DOT does not specifically include
standing and walking requirements for the positions of cashier II and bench assembler does
not render the vocational expert’s testimony on this issue baseless. As noted above, SSR 00-
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4p recognizes a vocational expert’s “experience in job placement or career counseling” as an
independent, reasonable basis for relying on the evidence from such an expert rather than
the DOT. SSR 00-4p, 2000 WL 1898704, at *2. In fact, a vocational expert’s knowledge
provides the main, if not the only, reliable source of information regarding certain job
aspects, such as the availability of a sit/stand option, which are not covered by the DOT.
See Fisher v. Barnhart, 181 F. App’x 359, 365-66 (4th Cir. 2006); Horne v. Colvin, No.
1:13cv00049, 2014 WL 6471751, at *14 (W.D. Va. Nov. 18, 2014) (unpublished); Pierpaoli v.
Astrue, No. 4:10–2401–CMC–TER, 2012 WL 265023, at *4 (D.S.C. Jan. 30, 2012)
(unpublished). Accordingly, “[c]ourts have held that professional experience or knowledge
is a reasonable explanation” where, as here, the DOT is silent as to a hypothetical work
restriction. Pierpaoli, 2012 WL 265023, at *4 n. 6 (collecting cases).
Moreover, “[n]othing in SSR 00-4p places an affirmative duty on the ALJ to conduct
an independent investigation into the testimony of witnesses to determine if they are
correct,” as Plaintiff now contends. Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374
(6th Cir. 2006); see also Smith v. Colvin, No. 3:13–CV–17, 2013 WL 5966427, at *4 (N.D.W.
Va. Nov. 8, 2013) (unpublished) (noting the acceptance of the reasoning in Martin by courts
within the Fourth Circuit). In fact, Plaintiff never suggests that the vocational expert’s
testimony as to the walking and standing requirements of the two identified jobs was
necessarily incorrect, nor does the record support such a finding. See also O’Bannon v.
Colvin, No. 1:13-CV-207-DBH, 2014 WL 1767128 at *9 (D. Me. Apr. 29, 2014); Bratton v.
Astrue, No. 2:06-0075, 2010 WL 2901856 at *3 (M.D. Tenn. July 19, 2010).
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Rather, Plaintiff’s argument focuses entirely on the ALJ’s alleged failure to “comply
with SSR 00-4p’s requirement of eliciting a reasonable explanation for the conflict” before
relying on the expert’s testimony. (Pl.’s Br. at 7.)
Because, as explained above, the ALJ
fulfilled his duty pursuant to SSR 00–4p by questioning the vocational expert regarding any
inconsistencies with the DOT and regarding the basis for the vocational expert’s
conclusions, and because the ALJ reasonably relied on the vocational expert’s testimony and
set out the relevant findings in the decision, Plaintiff’s claim lacks merit. See Pearson v.
Colvin, 58 F. Supp. 3d 577, 582 (E.D. Va. 2014).
As a final matter, Plaintiff asks the Court to give special consideration to the fact that
he appeared pro se at the hearing before the ALJ. Good cause has been found to remand
“where the [ALJ] fails diligently to explore all relevant facts especially in cases of uneducated,
pro se claimants and where the absence of counsel appears to prejudice a claimant.” Walker
v. Harris, 642 F.2d 712, 714 (4th Cir. 1981).
Here, however, nothing in the hearing
transcript indicates that Plaintiff was treated unfairly, was at an unfair disadvantage when
compared with counseled claimants, or appeared to be prejudiced in any way. Accordingly,
the Court concludes that substantial evidence supported the ALJ’s determination at step five
of the sequential analysis.
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IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion to Reverse the Decision of the
Commissioner [Doc. #9] be DENIED, that Defendant’s Motion for Judgment on the
Pleadings [Doc. #11] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 24th day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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