Lauder v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 3/9/2016; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 7 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORMA LAUDER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
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)
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)
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1:14CV00983
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Norma Lauder, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
for
(Docket Entry 1.)
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 5 (cited herein as
“Tr. __”)) and both parties have moved for judgment (Docket Entries
7,
11);
see
also
Docket
(Defendant’s Memorandum)).
Entries
9
(Plaintiff’s
Brief),
12
For the reasons that follow, the Court
should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
July
12,
2010.
(Tr.
50-51,
181-82.)
Upon
denial
of
that
application initially (Tr. 84-97, 114-17) and on reconsideration
(Tr. 98-113, 122-29), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 130-31).
Plaintiff and
her attorney attended the hearing (Tr. 52-83) and, post-hearing, a
vocational expert (“VE”) provided testimony via written responses
to the ALJ’s and Plaintiff’s interrogatories (Tr. 313-16, 324).
The ALJ subsequently ruled that Plaintiff met the requirements for
disability under the Act from her onset date of July 12, 2010,
through June 25, 2012, but did not thereafter qualify as disabled
under the Act due to medical improvement.
(Tr. 21-39.)
The
Appeals Council denied Plaintiff’s request for review (Tr. 1-10),
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 December 31, 2014.
2.
[Plaintiff] has not engaged in substantial gainful
activity since July 12, 2010, the date [Plaintiff] became
disabled.
3.
From July 12, 2010 through June 25, 2012, the period
during which [Plaintiff] was under a disability,
[Plaintiff] had the following severe impairments: seizure
disorder due to left temporal impairment causing
neurological dysfunction and cognitive impairment,
chronic fatigue syndrome, fibromyalgia, and psychological
impairments including depression, anxiety, and posttraumatic stress disorder (PTSD).
. . .
4.
From July 12, 2010 through June 25, 2012,
[Plaintiff] did not have an impairment or combination of
impairments that met or medically equaled the severity of
2
an impairment listed in 20 CFR Part 404, Subpart P,
Appendix 1.
. . .
5.
[F]rom July 12, 2010 through June 25, 2012,
[Plaintiff] had the residual functional capacity to
perform sedentary work . . . involving simple, routine,
repetitive tasks in a nonproduction environment but not
on a regular and consistent, full-time basis.
. . .
6.
From July 12, 2010 through June 25, 2012,
[Plaintiff] was unable to perform any past relevant work.
. . .
10. From July 12, 2010 through June 25, 2012,
considering
[Plaintiff’s]
age,
education,
work
experience, and residual functional capacity, there were
no jobs that existed in significant numbers in the
national economy that [she] could have performed.
. . .
11. [Plaintiff] was under a disability, as defined by
the [] Act, from July 12, 2010, through June 25, 2012.
12. [Plaintiff] has not developed any new impairment or
impairments since June 26, 2012, the date [her]
disability ended.
Thus, [Plaintiff’s] current severe
impairments are the same as that present from July 12,
2010 through June 25, 2012.
13. Beginning June 26, 2012, [Plaintiff] has not had an
impairment or combination of impairments that meets or
medically equals the severity of one of the impairments
listed in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
14. Medical improvement occurred as of June 26, 2012,
the date [Plaintiff’s] disability ended.
. . .
3
15. The medical improvement that has occurred is related
to the ability to work because there has been an increase
in [Plaintiff’s] residual functional capacity.
. . .
16. [B]eginning June 26, 2012, [Plaintiff] has the
residual functional capacity to perform sedentary work
. . . where she can avoid exposure to hazards such as
dangerous machinery and unprotected heights. [Plaintiff]
is able to perform simple, routine, repetitive tasks in
a nonproduction environment.
. . .
17. [Plaintiff] is still unable to perform past relevant
work.
. . .
21. Beginning June 26, 2012, considering [Plaintiff’s]
age, education, work experience, and residual functional
capacity, there have been jobs that exist in significant
numbers in the national economy that [Plaintiff] can
perform.
. . .
22.
(Tr.
[Plaintiff’s] disability ended June 25, 2012.
28-38
(bold
font
and
internal
parenthetical
citations
omitted).)
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).
4
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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 if they are
supported
by
substantial
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 Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
5
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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).
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)).1
“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,
1
The Act “comprises two disability benefits programs. [DIB] . . . 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).
6
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
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. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2
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
2
“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).
7
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 179.3
Step four then requires the ALJ to assess
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 567.4
3
“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”
(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.
4
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
(continued...)
8
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ failed to resolve a conflict between the VE’s
testimony and the Dictionary of Occupational Titles (“DOT”) (Docket
Entry 9 at 6-10); and
2) new and material evidence submitted to the Appeals Council
requires remand (id. at 10-16).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 12 at 6-16.)
Conflict between VE and DOT
In Plaintiff’s first issue on review, he asserts that the ALJ
erred by failing to resolve a conflict between the VE’s testimony
and the DOT in violation of Social Security Ruling 00-4p, Policy
Interpretation Ruling Titles II and XVI: Use of Vocational Expert
and Vocational Specialist Evidence, and Other Reliable Occupational
Information in Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000)
(“SSR 00-4p”).
(Docket Entry 9 at 6-10.)
Specifically, Plaintiff
disputes the VE’s (and ALJ’s) conclusion that Plaintiff retained
the RFC to perform the jobs of order clerk, charge account clerk,
4
(...continued)
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.”).
9
and surveillance system monitor (id. at 7 (citing Tr. 38, 315)),5
because the DOT rates all three jobs at a reasoning level of three
(id. at 7-8 (citing G.P.O., DOT, No. 209.567-014 (order clerk, food
and beverage), 1991 WL 671794, DOT, No. 205.367-014 (charge-account
clerk), 1991 WL 671715, and DOT, No. 379.367-010 (surveillancesystem monitor), 1991
WL
673244)),6
which
exceeds
“the
ALJ’s
limitation to ‘simple, routine, repetitive tasks’” (id. at 7
(citing Tr. 36)).
According to Plaintiff, “[a]lthough there is a
conflict among the circuits regarding this [issue], recent cases
from this Court have come down on the side of a reasoning level of
[three] being
tasks.”
3989561,
[incompatible]
with
simple,
routine,
repetitive
(Id. (citing Weaver v. Colvin, No. 1:10-cv-582, 2013 WL
at
*12
(M.D.N.C.
Aug.
2,
2013)
(unpublished),
recommendation adopted, 2013 WL 4768178 (M.D.N.C. Sept. 5, 2013)
(unpublished), and Mullis v. Colvin, No. 1:11-cv-22, 2014 WL
575722,
at
*10
(M.D.N.C.
Feb.
11,
2014)
(unpublished),
recommendation adopted, 2014 WL 2257188 (M.D.N.C. May 29, 2014)
(unpublished)).
Plaintiff’s contentions do not warrant relief.
5
Although Plaintiff asserts that the ALJ adopted the VE’s testimony only as to
the order clerk and surveillance system monitor jobs (see Docket Entry 9 at 7-8),
the ALJ’s decision makes clear that he adopted all three of the jobs proffered
by the VE (see Tr. 38).
6
A reasoning level of three requires an individual to “[a]pply commonsense
understanding to carry out instructions furnished in written, oral, or
diagrammatic form [and] [d]eal with problems involving several concrete variables
in or from standardized situations.” DOT, App’x C, Components of the Definition
Trailer, 1991 WL 688702.
10
SSR 00-4p places an affirmative duty on an ALJ to elicit an
explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the DOT:
Occupational evidence provided by a VE . . . generally
should be consistent with the occupational information
supplied by the [DOT].
When there is an apparent
unresolved conflict between VE . . . evidence and the
[DOT], the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE
. . . evidence to support a determination or decision
about whether the claimant is disabled. At the hearings
level, as part of the adjudicator’s duty to fully develop
the record, the adjudicator will inquire, on the record,
as to whether or not there is such consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added).
An ALJ
discharges his duty under SSR 00-4p by “inquir[ing] on the record
whether the [VE’s] testimony [is] consistent with the DOT” and
“elicit[ing] a reasonable explanation for” any conflicts identified
by the VE.
2006).
In
Fisher v. Barnhart, 181 F. App’x 359, 366 (4th Cir.
general,
if
the
VE
denies
the
existence
of
any
conflicts, the ALJ’s obligations under SSR 00-4p come to an end.
See Martin v. Commissioner of Soc. Sec., 170 F. App’x 369, 374-75
(6th Cir. 2006); see also Terry v. Astrue, 580 F.3d 471, 478 (7th
Cir.
2009)
(holding
that
“[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”).
Here,
following
the
hearing,
the
ALJ
propounded
interrogatories to the VE, and inquired as to whether an individual
with Plaintiff’s age, education, work experience, and RFC could
11
perform any jobs existing in significant numbers in the national
economy.
(See Tr. 313-16.)
In response, the VE opined that such
an individual would remain capable of performing the jobs of order
clerk, charge account clerk, and surveillance system monitor, and
provided the corresponding DOT codes for those jobs, as well as the
Specific Vocational Preparation time for each job (level 2), and
the jobs’ incidence in the national economy.
(See Tr. 315.)7
Significantly, the ALJ asked the VE if any conflicts existed
“between the occupational evidence [she] provided . . . and the
occupational
information
contained
in
the
[DOT]
and/or
[its
companion publication, Selected Characteristics of Occupations
(‘SCO’)],” to which the VE responded, “No.”
(Tr. 316.)
The ALJ mailed the VE’s responses to the interrogatories to
Plaintiff’s counsel in a letter (see Tr. 318-19), which outlined
the actions Plaintiff had a right to take:
You may submit any or all of the following: written
comments concerning the enclosed evidence, a written
statement as to the facts and law you believe apply to
the case in light of that evidence, and any additional
records you wish me to consider (including a report from
the treating physician).
You may also submit written
questions to be sent to the author(s) of the enclosed
report(s).
You may also request a supplemental hearing at which you
would have the opportunity to appear, testify, produce
7
The DOT defines “Specific Vocational Preparation” (“SVP”) as “the amount of
lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a
specific job-worker situation.” DOT, App’x C, 1991 WL 688702. An SVP of two
corresponds to a learning time of “[a]nything beyond a short demonstration up to
and including [one] month.” Id.
12
witnesses, and submit additional evidence and written or
oral statements concerning the facts and law. . . . In
addition, you may request an opportunity to question
witnesses, including the author(s) of the enclosed
report(s).
(Tr. 318.)
by
Plaintiff’s counsel initially responded to that letter
requesting
a
supplemental
hearing
(see
Tr.
317),
but
subsequently, after conferring with the ALJ, withdrew that request,
and sent the VE an additional interrogatory in writing:
Please assume a hypothetical person who is a younger
individual, aged 18-44, who has a high school education.
This person can do sedentary work, but is limited to
simple, routine, repetitive tasks. She must avoid all
exposure to hazards such as unprotected heights, moving
machinery, and sharp objects. From a mental standpoint,
she is capable of following work rules for 30% of an[] 8hour day; she can relate to co-workers for 40% of an 8hour day; she can deal with the general public for 20% of
an 8-hour day[;] and can only occasionally maintain
concentration, pace, and persistence.
. . .
(b)
Could such an individual perform any work that
exists in the local and national economy?
(Tr. 321-22 (internal citation omitted).)
The VE responded in
writing, and opined that, given the limitations in Plaintiff’s
hypothetical, no work existed that such a person could perform.
(See Tr. 324.)
The ALJ once again advised Plaintiff’s counsel in writing that
the
ALJ
proposed
to
enter
the
VE’s
response
to
Plaintiff’s
hypothetical into the record and detailed the actions Plaintiff had
the
right
to
take,
including
submitting
written
comments,
propounding further written questions to the VE, and requesting an
13
opportunity to question the VE at a supplemental hearing. (See Tr.
325-26.) Plaintiff’s counsel responded: “At this time, there is no
further evidence to submit in this claim and I look forward to
receiving your written decision in due course.”
Shortly
thereafter,
the
ALJ
issued
a
(Tr. 336.)
decision
finding
Plaintiff not disabled after June 25, 2012 (see Tr. 21-39), which
adopted the VE’s written response to the ALJ’s interrogatories:
To determine the extent of erosion of the unskilled
sedentary occupational base caused by [the RFC’s]
limitations, the [ALJ] asked the [VE] via interrogatories
whether jobs exist in the national economy for an
individual with [Plaintiff’s] age, education, work
experience, and [RFC] as of June 19 [sic], 2012. The
[VE] indicated that given all of these factors the
individual would be able to perform the requirements of
representative sedentary, unskilled occupations such as
order clerk (19,000 nationally); charge account clerk
(16,000 nationally); and surveillance system[] monitor
(16,000 nationally). Pursuant to SSR 00-4p, the [ALJ]
has determined that the [VE’s] testimony is consistent
with the information contained in the [DOT].
(Tr. 38 (emphasis added).) The ALJ then discussed the VE’s opinion
in response to Plaintiff’s hypothetical that no work existed that
Plaintiff
could
perform,
but
noted
that
Plaintiff’s
treating
psychologist, Dr. Patricia Hill, supplied the additional mental
limitations in Plaintiff’s hypothetical, and that “the evidence as
a whole” did not “fully support[]” Dr. Hill’s opinions (as the ALJ
had earlier discussed (see Tr. 36-37)).
(Tr. 38.)
As detailed above, the ALJ fully discharged his duty under SSR
00-4p. He inquired of the VE whether any conflicts existed between
her occupational evidence and the information contained in the DOT
14
(and SCO) (see Tr. 315), and the VE unequivocally stated that no
such conflict existed (see Tr. 316).
Plaintiff’s counsel, despite
having over two weeks to evaluate the VE’s written responses to the
ALJ’s
hypothetical
(see
Tr.
318,
321),
as
well
as
another
opportunity to address the VE following her response to Plaintiff’s
hypothetical (see Tr. 325, 336), did not raise the issue of an
alleged conflict between the proffered jobs’ reasoning level of
three and the RFC’s limitation to simple, routine, repetitive tasks
(see Tr. 317, 321, 336).
After neither Plaintiff nor the VE
identified a possible DOT conflict, the ALJ expressly adopted the
VE’s testimony that Plaintiff could perform the three jobs in
question, as well as the VE’s opinion that no DOT conflict existed.
(See Tr. 38.) Under these circumstances, Plaintiff has established
no basis for remand.
Plaintiff
nonetheless
argues
that
the
ALJ
erred
by
not
resolving the “apparent” conflict between the VE’s jobs’ reasoning
level and the RFC, despite the VE’s contrary testimony that no
conflict existed and Plaintiff’s failure to identify any such
conflict before the ALJ.
(Docket Entry 9 at 9.)
Because Plaintiff
did not raise any such conflict on cross-examination of the VE,
“she would have to show that the conflict was ‘obvious enough that
the ALJ should have picked up on [it] without any assistance.’”
Terry, 508 F.3d at 478 (citing Overman v. Astrue, 546 F.3d 456,
462-63 (7th Cir. 2008)).
Moreover, as discussed above, SSR 00-4p
15
did not, under the circumstances of this case, compel the ALJ to
take further steps, the Fourth Circuit has not yet addressed the
alleged conflict now cited by Plaintiff, see Weaver, 2013 WL
3989561, at *11, and (as Plaintiff concedes (see Docket Entry 9 at
8)), other federal appellate courts that have considered the matter
have issued conflicting opinions, see Weaver, 2013 WL 3989561, at
*11 & n.13 (collecting cases).8
In the face of the foregoing considerations (all of which
weigh against finding any error by the ALJ in this instance),
Plaintiff insists that the Court should overturn the denial of
benefits because two “recent cases from this Court have come down
on the side of a reasoning level [three] being [incompatible] with
simple, routine, repetitive tasks.”
(Docket Entry 9 at 8 (citing
Weaver, 2013 WL 3989561, at *12, and Mullis, 2014 WL 575722, at
*10-11).)
At least one material fact, common to both Weaver and
Mullis, distinguishes those cases from this one.
In both of those
cases, the ALJ neglected to ask the VE whether his or her opinion
conflicted with the DOT, but still included a finding in the
decision that the VE’s testimony harmonized with the DOT.
See
Weaver, 2013 WL 3989561, at *12; Mullis, 2014 WL 575722, at *11.
8
District courts within the Fourth Circuit also have persuasively demonstrated
that a reasoning level of three does not present an “apparent conflict” with an
RFC limitation to simple, routine, repetitive tasks.
See, e.g., Bentley v.
Commissioner of Soc. Sec., No. 1:13CV163, 2014 WL 906587, at *14-16 (N.D.W. Va.
Mar. 7, 2014) (unpublished); Thacker v. Astrue, Civil No. 3:11CV246–GCM–DSC, 2011
WL 7154218, at *4 (W.D.N.C. Nov. 28, 2011) (unpublished), recommendation adopted,
2012 WL 380052 (W.D.N.C. Feb. 6, 2012) (unpublished).
16
Thus, in both Weaver and Mullis, the Court concluded that the ALJ
clearly violated SSR 00-4p by failing to ask the VE whether a
conflict with the DOT existed, and that “[t]here appear[ed] to be
no factual basis” for the ALJ’s finding of no conflict.
Id.
In
contrast, the ALJ here, as discussed above, fully complied with the
requirements of SSR 00-4p.
Given that circumstance, the failure of Plaintiff’s counsel to
raise the issue of any alleged DOT conflict before the ALJ, despite
having more than two weeks to develop a cross-examination of the
VE, amounts to a waiver of the right to raise the argument before
this Court. See Coleman v. Colvin, Civ. No. 0:14–2697–RBH, 2015 WL
5474674, at *19 (D.S.C. Sept. 16, 2015) (unpublished) (“[T]he court
is unpersuaded by [the plaintiff’s] attempts to now challenge the
[VE’s] testimony and the ALJ’s findings and point out possible
conflicts when none was raised during the proceeding.”); Bunton v.
Colvin, No. 1:10CV786, 2014 WL 639618, at *5 (M.D.N.C. Feb. 18,
2014) (unpublished) (finding waiver of issue on judicial review
where the plaintiff “failed to mount any opposition . . . to the
view that he retained the capacity to do the [jobs proffered by the
VE], despite . . . the opportunity . . . to question the VE about
. . . those positions”), recommendation adopted, slip op. (M.D.N.C.
Mar. 10, 2014); Stepinski v. Astrue, No. CA 11-183 ML, 2012 WL
3866678, at *9-10 (D.R.I. Aug. 6, 2012) (unpublished) (“The [c]ourt
views unfavorably the silence of [the] [p]laintiff’s counsel at the
17
hearing regarding the omission about which he now complains.
Reversal and remand . . . would encourage other counsel to remain
silent in similar circumstances.
provide such an incentive.
This [c]ourt is disinclined to
Accordingly, the [c]ourt finds that
[the] [p]laintiff waived this issue by failing to raise it before
the ALJ.” (internal citations omitted)), recommendation adopted,
2012 WL 3863812 (D.R.I. Sept. 5, 2012) (unpublished); Young v.
United States Comm’r of Soc. Sec., No. CV08-0474, 2009 WL 2827945,
at *13 (W.D. La. Sept. 1, 2009) (unpublished) (“[C]laimants should
not be permitted to scan the record for implied or unexplained
conflicts between the specific testimony of an expert witness and
the voluminous provisions of the [DOT], and then present that
conflict as reversible error, when the conflict was not deemed
sufficient to merit adversarial development in the administrative
hearing.”)
In sum, Plaintiff’s first issue on review fails to entitle her
to relief.
2.
New and Material Evidence
In Plaintiff’s second and final assignment of error, she
alleges that she submitted “new and material evidence” to the
Appeals Council (Docket Entry 9 at 10), which “might have affected
the [ALJ’s] decision,” and thus warrants remand under Meyer v.
Astrue, 662 F.3d 700, 707 (4th Cir. 2011) (Docket Entry 9 at 11).
In particular, Plaintiff contends that a January 29, 2014 statement
18
from her treating neurologist, Dr. Craig DuBois, that Plaintiff
“has been . . . disabled since she ceased working in July 2009
[sic] and that she will remain so indefinitely into the future”
(Tr. 10),9 along with four treatment records from Dr. DuBois dating
from December 11, 2012, to October 9, 2013 (Tr. 799-802), qualify
as new, material evidence (see Docket Entry 9 at 13).
According to
Plaintiff, this evidence conflicts with the ALJ’s conclusion that
Dr. DuBois “ha[d] not evaluated [Plaintiff] since June 12, 2012”
and that Dr. DuBois’s “last report from June 2012 indicate[d] that
[Plaintiff] was doing very well and had not had a seizure in over
three months.”
(Id. (citing Tr. 37).)
Plaintiff maintains that
the new evidence “converts the [ALJ’s] ‘doing very well’ comment
from a final conclusion to an isolated and exceptional comment,
which, under the legally binding law of our circuit, cannot be the
basis of a denial of benfeits.”
785
F.2d
1147,
1153
(4th
(Id. (citing Kellough v. Heckler,
Cir.
1986)).)
Further,
Plaintiff
challenges the Appeals Council’s conclusion that the new evidence
did not relate to the period on or before the date of the ALJ’s
decision (see Tr. 2), because “‘an ALJ must give retrospective
consideration to medical evidence created after a claimant’s last
insured date when such evidence may be reflective of a possible
earlier and progressive degeneration’” (Docket Entry 9 at 14
9
Plaintiff testified that she stopped working because of her disability in July
2010, rather than July 2009. (See Tr. 59.)
19
(citing Bird v. Commissioner of Soc. Sec. Admin., 699 F.3d 337, 345
(4th Cir. 2012))).
“[T]he
Plaintiff’s contentions do not warrant relief.
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).
Commissioner’s
cumulative.”
“Evidence
is
regulations]
new
within
if
it
is
the
not
meaning
of
duplicative
[the
or
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 Appeals Council considered Plaintiff’s new evidence
and incorporated it into the record (see Tr. 1, 2, 5, 7-10, 799802), but concluded that the new treatment records from Dr. DuBois
did “not provide a basis for changing the [ALJ’s] decision,” and
that Dr. DuBois’s January 29, 2014 statement related to “a later
time” than September 11, 2013, the date of the ALJ’s decision, and
“[t]herefore . . . d[id] not affect the decision about whether you
were disabled beginning on or before September 11, 2013” (Tr. 2).
The Appeals Council mistakenly concluded that Dr. DuBois’s
statement did not relate to the time period relevant to the ALJ’s
20
decision.
Dr. DuBois treated Plaintiff on 16 occasions between
August 3, 2010 (less than one month after Plaintiff’s alleged onset
date of disability) to October 9, 2013 (nearly one month after the
ALJ’s decision).
799-802.)
(See Tr. 455-64, 531-34, 566-67, 588-92, 730-36,
In his January 29, 2014 statement, Dr. DuBois detailed
Plaintiff’s diagnoses, symptoms, treatments, side effects from
treatment, and the impact of those symptoms and side effects, which
Dr. DuBois clearly based on those years of office visits predating
the ALJ’s decision. (See Tr. 7-9.) Moreover, Dr. DuBois’s opinion
that Plaintiff had qualified as disabled since she stopped working
in July 2010 unquestionably relates to the time period prior to the
ALJ’s decision on September 11, 2013.
(See Tr. 10.)
Dr. DuBois’s
instant statement thus did relate to the period on or before the
date of the ALJ’s decision.
(See Tr. 2.)
However, that error by the Appeals Council qualifies as
harmless under the circumstances of this case.
See generally
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 unless there
is reason to believe that the remand might lead to a different
result.”).
Even assuming, arguendo, that the evidence in question
qualifies as “new,”10 it lacks materiality (i.e., it presents no
10
Dr. DuBois’s instant statement arguably could qualify as “duplicative” or
“cumulative” (and therefore not “new”), see Wilkins, 953 F.2d at 95-96, because
he previously submitted a statement, which outlined (in more summary fashion) the
(continued...)
21
reasonable possibility of a different outcome, Wilkins, 953 F.2d at
95).
As an initial matter, Dr. DuBois’s opinion that Plaintiff
qualified as disabled (see Tr. 10) constitutes a matter reserved to
the Commissioner and thus warranted no special significance, see 20
C.F.R. § 404.1527(e).
Further, the new treatment records from Dr.
DuBois continue to show that Plaintiff was “doing well” (see Tr.
799, 800), that she experienced fewer seizures (see Tr. 799, 800,
801), that she tolerated her medications well (see Tr. 800), and
that she
had
decided
to
pursue
reinstatement
of
her
driving
privileges (see Tr. 799, 800, 802), consistent with the ALJ’s
findings that Plaintiff experienced medical improvement affecting
her ability to work after June 25, 2012 (see Tr. 35).11
despite
Plaintiff’s
characterization
of
the
new
Moreover,
evidence
as
“material” (Docket Entry 9 at 13), she makes no attempt to show how
that evidence reasonably could alter the ALJ’s determinations (see
10
(...continued)
same information (compare Tr. 7-10, with Tr. 795) and similarly concluded that
Plaintiff had suffered from a disability “for a very long time” and could not
ever “work in any capacity” (Tr. 795). The ALJ credited Dr. DuBois’s earlier
opinion, but only as to Plaintiff’s closed period of disability ending on June
25, 2012. (See Tr. 32.)
11
Plaintiff’s reliance on Kellough, 785 F.2d at 1153, misses the mark. (Docket
Entry 9 at 13.) That decision merely counsels that a physician’s notation that
a patient “‘feels well’ . . . must be read in context.” Kellough, 785 F.2d at
1153 (emphasis added). In Kellough, the physician’s comment that the plaintiff
“feels well” occurred just one month before she underwent open heart surgery.
Id. Here, however, Dr. DuBois’s observations that Plaintiff was “doing well” and
“doing extremely well” (see Tr. 799, 800) occurred in the context of fewer
seizures, good toleration of her medications, and her decision to seek
reinstatement of driving privileges (see Tr. 799-802). Thus, Kellough presents
no barrier to the ALJ’s consideration of those observations.
22
id. at 10-16). Notably, Plaintiff neither argues that the evidence
establishes
that
she
meets
or
medically
equals
any
of
the
Commissioner’s listings nor explains how the evidence should alter
the RFC (let alone how such alteration would impact her ability to
perform the jobs cited by the VE).
(Id.)
Finally, Meyer does not provide a basis for remand.
In that
case, the ALJ had commented on the absence of any restrictions from
a treating physician.
Meyer, 662 F.3d at 703.
Thus, when the
plaintiff submitted new evidence to the Appeals Council containing
restrictions from his treating physician, the Fourth Circuit noted:
On consideration of the record as a whole, we simply
cannot determine whether substantial evidence supports
the ALJ’s denial of benefits here. The ALJ emphasized
that the record before it lacked “restrictions placed on
the claimant by a treating physician,” suggesting that
this evidentiary gap played a role in its decision.
Meyer subsequently obtained this missing evidence from
his treating physician. That evidence corroborates the
opinion of Dr. Weissglass, which the ALJ had rejected.
But other record evidence credited by the ALJ conflicts
with the new evidence. The Appeals Council made the new
evidence part of the record but summarily denied review
of the ALJ decision. Thus, no fact finder has made any
findings as to the treating physician’s opinion or
attempted to reconcile that evidence with the conflicting
and supporting evidence in the record. Assessing the
probative value of competing evidence is quintessentially
the role of the fact finder. We cannot undertake it in
the first instance. Therefore, we must remand the case
for further fact finding.
Id. at 707 (emphasis added).
existed in this case:
In contrast, no such evidentiary gap
Dr. DuBois had already submitted an opinion
that Plaintiff qualified as disabled (see Tr. 795), which the ALJ
had credited only as to the closed period of disability ending on
23
June 25, 2012 (see Tr. 32).
Thus, a “fact finder has [already]
made . . . findings as to the treating physician’s opinion [and]
.
.
.
reconcile[d]
that
evidence
supporting evidence in the record.”
with
the
conflicting
and
Meyer, 662 F.3d at 707.
In conclusion, Plaintiff’s second assignment of error fails as
a matter of law.
III.
CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 7) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 11) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 9, 2016
24
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