TURRENTINE v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/19/2016; that the Commissioner's decision finding no disability be reversed, and that the matter be remanded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings to include reevaluation, using the services of a VE, of the proper classification of Plaintiff's PRW as a financial care counselor, and a new determination whether Plaintiff c an return to her PRW, and if not, whether other jobs exist in significant numbers in the national economy that Plaintiff can perform. As a result, Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 10 ) should be granted to the extent it seeks remand, and Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) should be denied. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JULIA TURRENTINE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:15CV00256
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Julia Turrentine, 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, 13).
For
the reasons that follow, the Court should remand this matter for
further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date
of July 31, 2011.
(Tr. 151-54.)
Upon denial of that application
initially (Tr. 59-70, 90-93), and on reconsideration (Tr. 71-85,
94-101),
Plaintiff
requested
a
hearing
Administrative Law Judge (“ALJ”) (Tr. 102).
de
novo
before
an
Prior to the hearing,
Plaintiff amended her alleged onset date to July 12, 2013, the date
on which she ended her part-time work as a certified nursing
assistant.
(Tr.
representative,
hearing.
and
188,
a
(Tr. 26-58.)
247.)
Plaintiff,
vocational
expert
her
(“VE”)
non-attorney
attended
the
The ALJ subsequently determined that
Plaintiff did not qualify as disabled under the Act.
(Tr. 10-21.)
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6), 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, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since July 12, 2013, the amended alleged onset
date.
3.
[Plaintiff] has the following severe impairments:
degenerative joint disease/osteoarthritis of the knee and
degenerative disc disease.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
[Plaintiff] has the residual functional capacity to
perform sedentary work . . ., which includes sitting for
6 hours in an 8-hour workday, standing and walking for 2
hours in an 8-hour day, and lifting, carrying, pushing
and pulling up to 10 pounds. [Plaintiff] is further
2
limited to occasional postural activities and no ladder
climbing.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a hospital insurance clerk. This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the . . . Act, at any time from July 12, 2013,
through the date of this decision.
(Tr. 15-20 (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).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
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
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
3
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
disabled is supported by substantial evidence and was reached based
4
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,
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
1
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[Supplemental Security Income] . . . 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).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
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
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).
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”
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 567.4
B.
Assignment of Error
In Plaintiff’s sole assignment of error, she contends that
“[t]he ALJ improperly classified Plaintiff’s [past relevant work
(“PRW”)] (Docket Entry 11 at 4), and failed to address “conflicts
between
occupational
evidence
provided
by
[the
VE]
and
the
(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
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
information in the [Dictionary of Occupational Titles (“DOT”)],” as
required by Social Security Ruling 00-4p, Titles II and XVI: Use of
Vocational Expert and Vocational Specialist Evidence, and Other
Reliable Occupational Information in Disability Decisions, 2000 WL
1898708 (Dec. 4, 2000) (“SSR 00-4p”) (id. at 6).
In particular,
Plaintiff challenges the ALJ’s classification of Plaintiff’s prior
job “financial care counselor” as the DOT occupation “hospital
insurance clerk” and the ALJ’s finding that Plaintiff could perform
the hospital insurance clerk job as generally performed in the
national economy.
DOT, No.
(Id. at 5 (citing Tr. 20, 52-53, and G.P.O.,
214.362-022,
1991 WL
671871
(4th
ed.
rev. 1991)).)
According to Plaintiff, because the financial care counselor job
entailed “walking from patient’s room to patient’s room in the
[emergency room of a hospital] gathering information from patients”
for up to six hours in a workday, the job correlates to the light
level
of
exertion,
whereas
the
hospital
insurance
clerk
job
qualifies as sedentary. (Id. at 6.) Moreover, Plaintiff maintains
that, in her former financial care counselor job, she did not
perform any of the primary duties and skills of the hospital
insurance
clerk
job,
such
as
processing
insurance
claims,
communicating with insurance companies regarding unpaid claims, and
obtaining settlements of such claims.
(Id.)
Lastly, Plaintiff asserts the significance of the ALJ’s error,
because, had the ALJ properly categorized Plaintiff’s financial
8
care counselor job at the light level of exertion, he would have
found, based on Plaintiff’s sedentary RFC, that she could not
return to such work, and would have proceeded to step five of the
SEP.
(Id. at 7.)
At that step, Plaintiff argues that, “in order
to find transferability of skills to skilled sedentary work [such
as the DOT hospital insurance clerk job] for individuals who are 55
and older (advanced age), ‘there must be very little, if any,
vocational adjustment required in terms of tools, work processes,
work settings or the industry.’” (Id. (citing 20 C.F.R. Pt. 404,
Subpt. P, App’x 2, § 201.00(f)).)
the different
duties
and
Plaintiff contends that, given
skilled
nature of
the
DOT
hospital
insurance clerk job, the Medical-Vocational Guidelines recognize
that Plaintiff, aged 62 at the time of the hearing, could not have
adjusted
vocationally
to
that
job,
and
that
“a
finding
of
disability would be appropriate under [] [R]ule 201.02 [of the
Guidelines].”
§ 201.02).)
(Id. (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2,
Plaintiff’s arguments have merit.
“[U]nder the fourth step of the disability inquiry, a claimant
will be found ‘not disabled’ if [she] is capable of performing
[her] [PRW] either as [she] performed it in the past or as it is
generally required by employers in the national economy.”
Chater, 65 F.3d 1200, 1207 (4th Cir. 1995).
Pass v.
Put another way, a
claimant must demonstrate “an inability to return to her previous
work (i.e., occupation), and not simply to her specific prior job.”
9
DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983).
“may
rely
on
the
general
job
categories
of
the
An ALJ
[DOT]
as
presumptively applicable to a claimant’s prior work,” but “a
claimant may overcome the presumption that the [Commissioner’s]
generalization applies by demonstrating that her duties were not
those envisaged by the framers of the [Commissioner’s] category.”
Id.
“[T]he decision as to whether the claimant retains the
functional capacity to perform past work . . . has far-reaching
implications and must be developed and explained fully in the
disability decision.”
Social Security Ruling 82-62, Titles II and
XVI: A Disability Claimant’s Capacity to Do Past Relevant Work, In
General, 1982 WL 31386, at *3 (1982).
At the hearing in this case, Plaintiff testified that, as a
financial care counselor in a hospital, she “had to go to different
rooms . . . in the emergency room to get . . . [patients’]
demographic information; make sure their names [were] correct; []
get their insurance information . . .; and collect copayments.”
(Tr. 32-33.)
Plaintiff further stated that she entered patients’
information into a computer in between her visits with patients and
at the end of her shift (see Tr. 44-45), and that she walked “back
and forth” between patient rooms and the main desk “constantly all
day long” (Tr. 45; see also Tr. 216 (Work History Report reflecting
Plaintiff’s estimate that she walked up to six hours in a 10-hour
10
shift)).
Plaintiff denied that her job involved “processing
insurance.”
(Id.)
Following Plaintiff’s testimony, the ALJ called upon a VE to
categorize Plaintiff’s PRW.
(See Tr. 52.)
The VE indicated that
she did not need any further information regarding Plaintiff’s PRW
(see id.), and classified Plaintiff’s financial care counselor job
as the DOT occupation “hospital insurance clerk,” which entails
“sedentary work with a [specific vocational preparation] of 5” (Tr.
53).
The VE then clarified that, as described by Plaintiff, the
financial care counselor job “probably” qualified as a light
exertion job.
(Id.)
In response to a hypothetical question from
the ALJ, which included a limitation to sedentary work and various
postural restrictions consistent with the RFC (compare Tr. 16,
with, Tr. 53), the VE opined that Plaintiff could perform her PRW
as generally performed in the national economy (Tr. 53).5
On cross-examination, Plaintiff’s non-attorney representative
asked the VE if Plaintiff could perform the insurance clerk job as
Plaintiff actually performed the job, and the VE stated that
Plaintiff could not.
(Tr. 54.)
The VE then conceded that she had
not performed a job analysis on the hospital insurance clerk
occupation, either as generally performed or as performed by
5
Because the VE had earlier categorized another of Plaintiff’s former jobs as
the DOT occupation “nurse’s assistant,” a medium exertion job with a specific
vocational preparation of 4 (Tr. 53), on cross-examination, Plaintiff’s nonattorney representative elicited testimony from the VE that Plaintiff could not
return to her former work as a nurse’s assistant (Tr. 54).
11
Plaintiff.
(See Tr. 55-56.)
In closing argument, Plaintiff’s
representative asserted that Plaintiff could neither return to her
prior work as a financial care counselor as she performed it, nor,
due to her age, make a successful vocational adjustment to the
skilled, sedentary DOT occupation of hospital insurance clerk.
(Tr. 57.)
On the existing record, substantial evidence fails to support
the ALJ’s (and VE’s) classification of Plaintiff’s financial care
counselor work as the DOT occupation “hospital insurance clerk.”
(See Tr. 20, 53.)
Plaintiff’s testimony established that her
financial care counselor work entailed primarily walking from room
to room in the emergency room of a hospital to collect insurance
information and copayments from patients, and that she spent
relatively
little
information.
time
sitting
at
a
computer
inputting
(Tr. 32-33, 44-45; see also Tr. 216.)
such
In direct
contrast, the DOT classifies the job of “hospital insurance clerk”
as “[s]edentary [w]ork,” which “involves sitting most of the time,
but may involve walking or standing for brief periods of time.”
DOT, No. 214.362-022, 1991 WL 671871 (emphasis added).
Compounding this exertional level discrepancy, a comparison of
Plaintiff’s testimony about her financial care counselor work and
Work History Report with the descriptive paragraph for the DOT job
“hospital insurance clerk” establishes that Plaintiff did not
perform most of the primary duties of that job.
12
(Compare Tr. 32-
33, 44-45, 216, with DOT, No. 214.362-022, 1991 WL 671871.)
As the
emphasized portions of the DOT paragraph make clear, a “hospital
insurance clerk”:
Verifies hospitalization insurance coverage, computes
patients’ benefits, and compiles itemized hospital bills;
Types insurance assignment form with data, such as names
of insurance company and policy holder, policy number,
and physician’s diagnosis. Telephones, writes, or wires
insurance company to verify patient’s coverage and to
obtain information concerning extent of benefits.
Computes total hospital bill showing amounts to be paid
by insurance company and by patient, using adding or
calcuulating machines.
Answers patient’s questions
concerning statements and insurance coverage. Telephones
or writes companies with unpaid insurance claims to
obtain settlement of claim.
Prepares forms outlining
hospital expenses for governmental, welfare, and other
agencies paying bill of specified patient.
(DOT, No. 214.362-022, 1991 WL 671871 (emphasis added)).
In light of this record evidence establishing significant
differences between the two jobs in question, Plaintiff has met her
burden to “overcome the presumption that the [ALJ’s (and VE’s) DOT
classification of “hospital insurance clerk”] applie[d] [and has]
demonstrat[ed] that her duties were not those envisaged by the
framers of the [DOT’s] category.”
DeLoatche, 715 F.2d at 151
(holding that plaintiff overcame presumption that sedentary DOT
occupation “school social worker” applied to her PRW, where she
presented “unrebutted” testimony of extensive walking and standing
required by her PRW).
In the face of Plaintiff’s unrebutted
vocational evidence, the failure of the ALJ (and VE) here to even
address,
much
less
explain,
13
how
he
resolved
material
inconsistencies between the financial care counselor job and the
DOT hospital insurance clerk occupation constitutes reversible
error.
*4-5
Marquez v. Colvin, No. 5:12-CV-802-FL, 2014 WL 1316113, at
(E.D.N.C.
Mar.
31,
2014)
(unpublished)
(reversing
ALJ’s
determination the plaintiff could perform PRW “because the ALJ
failed
to
discuss
probative
evidence
weighing
against
her
decision,” such as the “plaintiff’s own written description of his
job, which may tend to show that the job he actually performed did
not properly fall under the [DOT] titles that the Commissioner had
relied upon”).
The Commissioner nevertheless argues that Plaintiff waived
this issue on judicial review by failing to challenge the VE’s
classification of her PRW at the hearing before the ALJ.
(See
Docket Entry 14 at 7 (citing Cline v. Chater, No. 95-2076, 1996 WL
189021, at *4 (4th Cir. Apr. 19, 1996) (unpublished), and Pleasant
Valley Hosp., Inc., v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994)).)
Indeed, some district courts have suggested that a claimant’s
failure to challenge the VE’s classification of the claimant’s
prior work can result in waiver of the ability to raise such an
issue on judicial review.
See, e.g., Wegner v. Colvin, No. EDCV
13–0634–JPR, 2014 WL 1430955, at *10 (C.D. Cal. Apr. 14, 2014)
(unpublished) (“[T]he ALJ’s reliance on the VE’s testimony was
reasonable, especially in light of Plaintiff’s failure at the
hearing to object to the VE’s categorization of his past work,
14
question the VE about her opinion regarding Plaintiff’s past
relevant work, or even point out the contradictory state-agency
decision guide.” (citing Solorzano v. Astrue, No. EDCV 11–369–PJW,
2012 WL 84527, at *6 (C.D. Cal. 2012) (unpublished))).
However, the Court should find that Plaintiff sufficiently
raised the issue in question before the ALJ so as to preclude any
possibility of waiver.
At the hearing, Plaintiff established that
she performed her financial care counselor work at the light level
of exertion, and that her sedentary RFC precludes such work.
Tr. 32-33, 44-45, 53, 55.)
(See
Moreover, Plaintiff testified that the
duties of her former work as a financial care counselor primarily
involved walking from room to room in the emergency room of a
hospital collecting patient demographic and insurance information
and
copayments
processing
(see
insurance
Tr.
32-33,
(see
Tr.
44-45),
45).
and
In
did
not
closing
involve
argument,
Plaintiff’s representative argued that, due to Plaintiff’s advanced
age (62), she could not adjust vocationally to another skilled
sedentary job such as the hospital insurance clerk DOT occupation.
(See Tr. 57.)
In
Under these circumstances, waiver does not apply.6
conclusion,
the
ALJ
erred
by
failing
to
explain
his
classification of Plaintiff’s financial care counselor work as the
DOT occupation “hospital insurance clerk,” and substantial evidence
fails to support that determination.
6
Plaintiff’s representative reiterated these arguments in her brief to the
Appeals Council. (See Tr. 8-9.)
15
III. CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be reversed, and that the matter be remanded
under
sentence
administrative
four
of
42
proceedings to
U.S.C.
§
405(g),
for
include
reevaluation,
further
using
the
services of a VE, of the proper classification of Plaintiff’s PRW
as a financial care counselor, and a new determination whether
Plaintiff can return to her PRW, and if not, whether other jobs
exist in significant numbers in the national economy that Plaintiff
can
perform.
As
a
result,
Plaintiff’s
Motion
for
Judgment
Reversing the Commissioner (Docket Entry 10) should be granted to
the extent it seeks remand, and Defendant’s Motion for Judgment on
the Pleadings (Docket Entry 13) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 19, 2016
16
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