JACKSON v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/20/2017; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) 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
WENDY JACKSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:16CV1411
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Wendy Jackson, 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 Plaintiff’s
Income (“SSI”).
claim
(Docket Entry 1.)
for
Supplemental
Security
Defendant has filed the
certified administrative record (Docket Entry 6 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 9, 11; see also Docket Entry 10 (Plaintiff’s Memorandum);
Docket
Entry
12
(Defendant’s
(Plaintiff’s Reply)).
Memorandum);
Docket
Entry
13
For the reasons that follow, the Court
should enter judgment for Defendant.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for SSI. (Tr. 167-77.) Upon denial of that
application initially (Tr. 54-63, 94-102) and on reconsideration
(Tr. 64-74, 106-15), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 116).
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 10-53.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 75-85.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 4-7,
166), thereby 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] has [not] engaged in substantial gainful
activity since February 11, 2013, the application date.
2.
[Plaintiff] has the following severe impairments:
hypertension;
[deep
vein
thrombosis
(“DVT”)];
hypercholesterolemia; history of stasis ulcers to the
bilateral lower extremities; and history of right foot
and ankle fractures.
. . .
3.
[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.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with exceptions:
She can occasionally climb stairs and ramps. She cannot
climb ropes, ladders, and scaffolds. She can frequently
2
bend. She can occasionally balance, crouch, and stoop.
She cannot use foot pedals with her bilateral lower
extremities.
She cannot push and/or pull with her
bilateral
lower extremities.
She
requires
the
opportunity to alternate between sitting and standing
every two hours at the workstation. She can stand and
walk for a total of four hours during an eight-hour
workday. She can sit for six hours during an eight-hour
workday.
. . .
5.
[Plaintiff] has no past relevant work.
. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the . . . Act, since February 11, 2013, the
date the application was filed.
(Tr.
80-84
(bold
font
and
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).
2
Hines v.
However, “the scope
Although the ALJ’s finding number one reads, “[Plaintiff] has engaged in
substantial gainful activity since February 11, 2013, the application date” (Tr.
80 (emphasis added)), the explanatory paragraph beneath that finding, as well as
the fact that the ALJ proceeded to analyze steps two through five of the
sequential evaluation process, makes clear that the ALJ in fact found that
Plaintiff had not engaged in substantial gainful activity since February 11, 2013
(see Tr. 80-84).
3
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
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, 401 (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) (brackets and internal
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
4
adopted by the 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
[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)).3
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
3
The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program 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
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.
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).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).
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).
6
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
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See 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
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”
(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.
7
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.6
B.
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to evaluate whether Plaintiff’s
chronic venous insufficiency met or medically equaled Listing
4.11B” (Docket Entry 10 at 4 (bold font omitted)); and
2) “[t]he ALJ erred by failing to identify conflicts between
the testimony of the VE and the [Dictionary of Occupational Titles
(“DOT”)] regarding the standing and walking requirements of the
jobs cited at Step 5 of the SEP” (id. at 8 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 12 at 3-18.)
1. Listing 4.11B
In Plaintiff’s first issue on review, she faults the ALJ for
“failing
to
evaluate
whether
Plaintiff’s
chronic
insufficiency met or medically equaled Listing 4.11B.”
Entry 10 at 4 (bold font omitted).)
venous
(Docket
In that regard, Plaintiff
details medical findings in the record she contends show that
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.”).
8
“Listing 4.11B was clearly implicated in this case” (see id. at 5-7
(citing Tr. 37, 243, 259, 261, 262, 263, 270, 277, 279, 282, 284,
313, 319, 375, 487-89, 818, 823, 824, 892, 927, 977-79)), and
argues that “the ALJ should have discussed [Listing 4.11B] with an
application of the requisite criteria to the evidence of record”
(id. at 7 (citing Radford v. Colvin, 734 F.3d 288, 295-96 (4th Cir.
2013), Brown v. Colvin, 639 F. App’x 921, 923 (4th Cir. 2016), and
Fox v. Colvin, 632 F. App’x 750, 755 (4th Cir. 2015))).
Plaintiff
has not demonstrated grounds for reversal or remand.
“Under Step 3, the [Social Security Administration’s SEP]
regulation states that a claimant will be found disabled if he or
she has an impairment that ‘meets or equals one of [the] listings
in [A]ppendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the
duration requirement.’”
Radford, 734 F.3d at 293 (quoting 20
C.F.R. § 404.1520(a)(4)(iii)) (internal bracketed numbers omitted).
“The listings set out at 20 CFR [P]t. 404, [S]ubpt. P, App[’x] 1,
are descriptions of various physical and mental illnesses and
abnormalities, most of which are categorized by the body system
they affect.
Each impairment is defined in terms of several
specific medical signs, symptoms, or laboratory test results.”
Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote
and parentheticals omitted).
“In order to satisfy a listing and
qualify for benefits, a person must meet all of the medical
criteria in a particular listing.”
9
Bennett, 917 F.2d at 160
(citing Zebley, 493 U.S. at 530, and 20 C.F.R. § 404.1526(a)); see
also Zebley, 493 U.S. at 530 (“An impairment that manifests only
some of th[e] criteria [in a listing], no matter how severely, does
not qualify.”).
An ALJ must identify the relevant listed impairments and
compare them to a claimant’s symptoms only where “there is ample
evidence
in
claimant’s
the
record
impairment]
to
met
support
or
a
determination
equalled
[sic]
impairments listed in Appendix 1 . . . .”
one
that
[a
the
[]
of
Cook v. Heckler, 783
F.2d 1168, 1172 (4th Cir. 1986) (emphasis added); see also Russell
v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL 417576, at *3
(4th Cir. July 7, 1995) (unpublished) (“Cook . . . does not
establish an inflexible rule requiring an exhaustive point-by-point
discussion [of listings] in all cases.”); Ollice v. Colvin, No.
1:15CV927,
2016
(unpublished)
WL
7046807,
(Peake,
M.J.)
at
*3
(“[A]n
(M.D.N.C.
ALJ
is
Dec.
not
2,
2016)
required
to
explicitly identify and discuss every possible listing; however, he
must
provide
sufficient
explanation
and
analysis
to
allow
meaningful judicial review of his step three determination where
the ‘medical record includes a fair amount of evidence’ that a
claimant’s impairment meets a disability listing.” (emphasis added)
(quoting Radford, 734 F.3d at 295)), recommendation adopted, slip
op. (M.D.N.C. Jan. 10, 2017) (Osteen, Jr., C.J.).
10
As relevant to the instant case,7 Listing 4.11B requires proof
of “[c]hronic venous insufficiency of a lower extremity with
incompetency or obstruction of the deep venous system and . . .
[s]uperficial varicosities, stasis dermatitis, and either recurrent
ulceration or persistent ulceration that has not healed following
at least 3 months of prescribed treatment.”
20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 4.11B (italics omitted and emphasis added).
To show that her condition meets a listed impairment, Plaintiff
must establish that her impairment “meet[s] all of the specified
medical criteria” that relate to such listing. Sullivan v. Zebley,
493 U.S. 521, 530 (1990).
Here, the ALJ’s step three finding consists of the following:
At all times relevant to this decision, neither
[Plaintiff] nor her representative has ever alleged that
she has a physical impairment that meets or medically
equals any of the Listings of Impairments. In addition,
no treating or examining physician has ever alleged that
she meets or equals any of the Listings of Impairments.
Further, there is no evidence in the record that shows
that any of her impairments are at Listing-level
severity. Therefore, the undersigned has determined that
at all times relevant to this decision, [Plaintiff] has
not met or equaled any of the Medical Listings of
Impairments.
(Tr. 81.)
Plaintiff points out that “[t]he ALJ does not mention
[Listing 4.11B] in her decision; much less does she analyze the
criteria of the listing against the positive findings in the
7
Plaintiff does not argue that her chronic venous insufficiency has caused
“[e]xtensive brawny edema . . . involving at least two-thirds of the leg between
the ankle and knee or the distal one-third of the lower extremity between the
ankle and hip,” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 4.11A. (See Docket Entry
10 at 4-8; Docket Entry 13 at 1-5.)
11
medical
record.”
(Docket
Entry
10
at
4-5.)
According
to
Plaintiff, “‘the medical evidence related to Plaintiff’s condition
is
not
so
one-sided
that
one
could
clearly
decide,
without
analysis, that [Listing 4.11B] is not implicated’” (Docket Entry 13
at 5 (ellipses omitted) (quoting Dial v. Colvin, No. 1:16CV70, 2016
WL 6997502, at *6 (M.D.N.C. Nov. 30, 2016) (unpublished) (Peake,
M.J.), recommendation adopted, slip op. (M.D.N.C. Dec. 29, 2016)
(Eagles, J.))) and that “the ALJ’s failure to adequately explain
his reasoning precludes this Court from undertaking a meaningful
review” (Docket Entry 10 at 8 (quoting Dial, 2016 WL 6997502, at
*6)).
However, Plaintiff has not established grounds for reversal or
remand, because the evidence upon which she relies shows neither
that “ample evidence” existed that her impairment met or equaled
Listing 4.11B, Cook, 783 F.2d at 1172, nor that remand for an
express discussion of Listing 4.11B by the ALJ would lead to a
different outcome in her case, Fisher v. Bowen, 869 F.2d 1055, 1057
(7th Cir. 1989) (observing that “[n]o principle of administrative
law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand
might lead to a different result”).
Significantly, Plaintiff
glosses over the fact that the objective medical findings required
by Listing 4.11B must have occurred after her application date of
February 11, 2013, in order to qualify as disabling.
12
See Alston v.
Colvin, No. 14–cv–0244(JS), 2015 WL 5178158, at *9 (E.D.N.Y. Sept.
3, 2015) (unpublished) (upholding ALJ’s finding that the plaintiff
did not meet a particular listing where no evidence existed the
plaintiff
had
the
requisite
symptoms
disability period” (emphasis added)).
“during
the
relevant
Here, Plaintiff emphasizes
several occasions in 2011 and 2012, prior to the relevant period in
this case, when providers diagnosed Plaintiff with stasis ulcers,
stasis dermatitis, and varicose veins. (See Docket Entry 10 at 5-7
(citing, inter alia, Tr. 259 (11/21/12 office visit reflecting
stasis
dermatitis
with
a
less
than
1
cm
in
diameter
small
ulceration), 261 (10/22/12 office visit showing stasis dermatitis
bilaterally with a small nonhealing ulcerating aspect of the left
calf less than 1 cm in diameter), 263 (10/8/12 office visit noting
severe skin changes compatible with stasis dermatitis in medial
aspect of left ankle with a 1 cm in diameter superficial clean
stasis ulcer and varicose dilatations), 284 (8/22/12 gynecological
office visit assessing 1 cm ulceration on left inner ankle), 315
(11/9/11 office visit finding dime sized ulcer to left ankle), and
375 (9/11/12 office visit diagnosing left leg stasis ulcer)).)
However, after Plaintiff’s February 11, 2013, application
date, Plaintiff’s cited evidence reflects no diagnoses of stasis
dermatitis and only three sporadic instances of stasis ulcers over
a nearly two year period, which qualify as neither “recurrent” nor
“persistent,” 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 4.11B.
13
(See
Docket Entry 10 at 5-7 (citing Tr. 243 (4/5/13 emergency room visit
for left leg pain noting chronic superficial ulceration of left
ankle), 892 (5/15/14 office visit assessing venous stasis ulcer of
leg), 977-79 (1/17/15 emergency room visit reflecting cellulitic
ulcer over left lateral malleolus)).)8
Plaintiff
has
shown
neither
that
the
Under such circumstances,
record
contains
“ample
evidence” that her chronic venous insufficiency met or medically
equaled Listing 4.11B, Cook, 783 F.2d at 1172, nor that a remand
for an express discussion of Listing 4.11B by the ALJ would lead to
a different outcome in her case, see Gower v. Commissioner of Soc.
Sec., Civ. No. 13-14511, 2015 WL 163830, at *29 (E.D. Mich. Jan.
13, 2015) (unpublished) (finding step three remand not justified
where “[a]ny further discussion [by the ALJ at step 3] would simply
expound upon the absence of evidence”); see also Fisher, 869 F.2d
at 1057 (observing that “[n]o principle of administrative law or
common sense requires us to remand a case in quest of a perfect
opinion unless there is reason to believe that the remand might
lead to a different result”).
In sum, Plaintiff’s first assignment of error fails to entitle
her to relief.
8
Although Plaintiff claims that a December 20, 2013, treatment note reflected
a “recently healed” ulcer (Docket Entry 10 at 6 (citing Tr. 836) (emphasis
added)), that note merely documents “hyperpigmentation over the medial left ankle
where a healed ulcer is present,” and does not provide any indication of how
recently the ulcer had healed (Tr. 836 (emphasis added)). Moreover, the listing
requires “either recurrent ulceration or persistent ulceration that has not
healed following at least 3 months of prescribed treatment.” 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 4.11B (emphasis added).
14
2. Conflict Between VE’s Testimony and the DOT
In Plaintiff’s second and final issue on review, she contends
that “[t]he ALJ erred by failing to identify conflicts between the
testimony of the VE and the [DOT] regarding the standing and
walking requirements of the jobs cited at Step 5 of the SEP.”
(Docket Entry 10 at 8 (bold font omitted).)
Plaintiff
asserts
that
“[t]he
ALJ’s
RFC
.
In particular,
.
.
includes
a
restriction to only four hours of standing and walking,” but “all
three jobs [cited by the VE] are at the light exertional level
. . . [which] requires six hours of standing and walking in an
eight hour workday.”
(Id. (emphasis added) (citing Tr. 81, DOT,
No. 209.587-034 (Marker), 1991 WL 671802; No. 209.687-026 (Mail
Clerk), 1991 WL 671813; No. 344.667-010 (Ticket Taker), 1991 WL
672863 (G.P.O. 4th ed. rev. 1991), and 20 C.F.R. § 404.1567(b)).)
According to Plaintiff, “an ALJ [must] identify and obtain a
reasonable
explanation
for
any
apparent
conflicts
between
occupational evidence provided by VE’s [sic] and the information in
the [DOT]” (id. (citing Pearson v. Colvin, 810 F.3d 204, 210-12
(4th Cir. 2015) (emphasis added), and Social Security Ruling 00-4p,
Policy Interpretation Ruling: Titles II and XVI: Use of [VE] and
Vocational Specialist Evidence, and Other Reliable Occupational
Information in Disability Decisions, 2000 WL 1898704, at *2 (Dec.
4, 2000) (“SSR 00-4p”))), and “does not fulfill [that] duty . . .
‘merely because the [VE] responds [affirmatively] when asked if
15
[his or] her testimony is consistent with the [DOT]’” (id. at 9
(citing Pearson, 810 F.3d at 208 (quotation marks omitted))).
Plaintiff maintains that “a limitation to four hours of standing
and walking in an eight hour workday is an apparent conflict with
the [DOT’s] description of light work” that the ALJ failed to
identify or resolve. (Id. (citing Fogle v. Colvin, No. 3:16-CV-32FDW-DSC,
2016
WL
(unpublished)).)
7322789,
at
*3-4
(W.D.N.C.
Dec.
15,
2016)
Plaintiff deems that alleged error prejudicial,
because, given Plaintiff’s age, education, and past relevant work,
“a limitation to sedentary exertion . . . would have resulted in a
finding of ‘disabled’ under the [Medical-Vocational Guidelines].”
(Id.
at
10
§ 201.12).)
(citing
20
C.F.R.
Pt.
404,
Subpt.
P,
App’x
2,
Plaintiff’s contentions fall short.
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 [ALJ] will 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 [ALJ’s] duty to fully develop the record, the [ALJ]
will inquire, on the record, as to whether or not there
is such consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added).
“[A]n ALJ has
not fulfilled his affirmative duty merely because the [VE] responds
16
‘yes’ when asked if her testimony is consistent with the [DOT],”
Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus,
“[t]he ALJ independently must identify . . . where the [VE’s]
testimony seems to, but does not necessarily, conflict with the
[DOT],” id. at 209 (emphasis added); see also id. (rejecting the
Commissioner’s argument that an “apparent” conflict meant only an
“obvious” one).
In this case, the ALJ queried the VE whether an “individual of
[Plaintiff’s] age, education, and work history[,] . . . [who] can
perform at the light exertional level, with occasional climbing
[of] stairs[] and ramps[, n]o climbing [of] ropes, ladders, or
scaffolds[, f]requent bending, and occasional balancing, crouching,
[and] stooping, with no kneeling and crawling, . . . no use of foot
pedals with the bilateral lower extremities, and . . . no pushing
and/or pulling with the bilateral lower extremities,” could perform
any past relevant work or any other jobs in the national economy.
(Tr. 44 (emphasis added).) In response, the VE opined that such an
individual would remain capable of performing past relevant work as
a Cashier, as well as the jobs of Marker, Mail Clerk, and Ticket
Taker, and provided the corresponding DOT codes and national job
numbers for the latter three positions.
(See id.)
The ALJ then
requested the VE to “assume the facts given under hypothetical
number one[ and to also] assume that the individual requires the
opportunity to alternate between sitting, with [] standing and
17
walking a total of four hours in an eight hour work day, and . . .
retain[]s the ability to sit for up to six hours in the eight hour
work day,” and asked the VE whether such an individual could
perform any jobs.
(Tr. 45 (emphasis added).)
In response, the VE
stated that the individual would still remain able to perform the
jobs of Marker, Mail Clerk, and Ticket Taker.
(Id.)
The ALJ then
asked: “Is your testimony consistent with the DOT,” to which the VE
testified: “It is, your honor, and based on experience in the
field.”
(Id.)
The ALJ subsequently found that Plaintiff lacked any past
relevant work (see Tr. 83), but adopted the VE’s testimony as to
Plaintiff’s ability to perform the Marker, Mail Clerk, and Ticket
Taker jobs:
To determine the extent to which [the RFC’s limitations]
erode the unskilled light occupational base, [the ALJ]
asked the [VE] whether jobs exist in the national economy
for an individual with [Plaintiff’s] age, education, work
experience, and [RFC]. The [VE] testified that given all
of these factors, the individual would be able to perform
the requirements of representative occupations such as
[M]arker ([DOT] #209.587-034) with 47,000 jobs in the
national economy; [M]ail [C]lerk ([DOT] #209.687-026)
with 10,000 jobs in the national economy; and [T]icket
[T]aker ([DOT] #344.667-010) with 20,000 jobs in the
national economy.
Pursuant to SSR 00-4p, [the ALJ] has determined that the
[VE’s] testimony is consistent with the information
contained in the [DOT].
(Tr. 84 (emphasis added)).
Here, Plaintiff has not shown that an “apparent unresolved
conflict,” SSR 00-4p, 2000 WL 1898704, at *2, exists between the
18
VE’s testimony that an individual limited to four hours of standing
and walking could perform the jobs of Marker, Mail Clerk, and
Ticket Taker, and the DOT’s categorization of those jobs as light
in exertion.
Plaintiff’s argument begins with the faulty premise
that “[l]ight work requires six hours of standing or walking in an
eight hour workday.”
(Docket Entry 10 at 8 (emphasis added)
(citing 20 C.F.R. § 404.1567(b)).)
Although “the full range of
light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday,” Social Security Ruling
83-10, Titles II and XVI: Determining Capability to Do Other Work
– the Medical-Vocational Rules of Appendix 2, 1983 WL 31251, at *6
(1983) (emphasis added), the ALJ did not find, either in the RFC or
the dispositive hypothetical question to the VE, that Plaintiff
remained capable of performing a full range of light work (see Tr.
44-45, 81).
Rather, the ALJ found that Plaintiff could perform a
reduced range of light work, i.e., light jobs entailing a maximum
of only four hours of standing and/or walking in a workday.
(See
id.)
Consistent with the ALJ’s RFC finding, the regulations make
clear that the unskilled, light occupational base contains some
light jobs that do not contain a substantial standing and/or
walking requirement:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it
19
requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing or
pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you
must have the ability to do substantially all of these
activities.
20 C.F.R. § 416.967(b) (emphasis added).9
Indeed, the DOT’s
definition of light work adds yet a third category of work that
qualifies as the light level of exertion without any requirement to
stand and/or walk at all, let alone for six hours in a workday:
Even though the weight lifted may be only a negligible
amount, a job/occupation is rated Light Work when it
requires: (1) walking or standing to a significant
degree; (2) sitting most of the time while pushing or
pulling arm or leg controls; or (3) working at a
production rate pace while constantly pushing or pulling
materials even though the weight of the materials is
negligible.
DOT, App’x C (Components of the Definition Trailer), § IV (Physical
Demands - Strength Rating), 1991 WL 688702 (emphasis added).
Thus,
no
apparent
conflict
exists
between
the
DOT’s
classification of the VE’s cited jobs as light in exertion and the
VE’s testimony that an individual limited to no more than four
hours of standing and/or walking could perform those jobs.
See
Gutierrez v. Commissioner Soc. Sec. Admin., No. 3:12-cv-02016-MA,
2014 WL 1225118, at *8 (D. Or. Mar. 24, 2014) (unpublished)
(finding no conflict under SSR 00-4p between DOT’s definition of
9
The undersigned has cited to Section 416.967(b) of the regulations which
governs SSI claims like Plaintiff’s, rather than the parallel section governing
Disability Insurance Benefits claims cited by Plaintiff, Section 404.1567(b).
20
light work and VE’s testimony that individual limited to four hours
of standing and walking could perform light job of office helper).
Moreover, nothing in the DOT’s description of the jobs cited
by the VE (see Tr. 44-45) (and relied on by the ALJ (see Tr. 84))
indicates that those particular jobs require more than four hours
of standing or walking in an eight hour workday.
See DOT, No.
209.587-034 (Marker), 1991 WL 671802; No. 209.687-026 (Mail Clerk),
1991 WL 671813; No. 344.667-010 (Ticket Taker), 1991 WL 672863. In
fact, as argued by the Commissioner (see Docket Entry 12 at 15-16),
the DOT’s descriptions for those jobs list many activities that a
worker can perform while seated.
See, e.g., DOT, No. 209.587-034
(Marker), 1991 WL 671802 (describing duties to include attaching
price tickets to merchandise, recording articles marked and packing
them in boxes, and using a ticket-printing machine); No. 209.687026 (Mail Clerk), 1991 WL 671813 (indicating that mail clerk sorts
incoming mail, opens envelopes, stamps the date and time of receipt
on
mail,
folds
letters
and
inserts
them
into
envelopes,
and
addresses, weighs, and stamps outgoing mail); No. 344.667-010
(Ticket Taker), 1991 WL 672863 (listing tasks such as collecting
admission tickets from patrons at events, issuing door checks to
patrons temporarily leaving, and counting/recording the number of
tickets collected).
Furthermore, Plaintiff has made no attempt to
show that a conflict exists between the DOT’s job duty descriptions
for the occupations cited by the VE and the VE’s testimony that an
21
individual limited to no more than four hours of standing and/or
walking could perform those occupations.
13.)
(See Docket Entries 10,
Under such circumstances, Plaintiff has failed to show that
an apparent conflict exists between the VE’s testimony and the DOT.
Even assuming, arguendo, that an apparent conflict existed,
Plaintiff
has
not
shown
how
the
ALJ
failed
to
resolve
that
conflict. As described above, because the ALJ found that Plaintiff
could perform only a reduced range of light work (see Tr. 81), the
ALJ consulted with a VE, who testified that unskilled light jobs
existed
in
significant
numbers
in
the
national
economy
that
accommodated the RFC’s restrictions, including the limitation to no
more than four hours of standing and/or walking, and that her
testimony harmonized with the DOT (and that she otherwise based her
testimony on her field experience) (see Tr. 44-45).10
10
The ALJ’s methodologies also complied fully with Social Security Ruling 83-12,
Titles II and XVI: Capability to Do Other Work – the Medical-Vocational Rules as
a Framework for Evaluating Exertional Limitations Within a Range of Work or
Between Ranges of Work, 1983 WL 31253(1983) (“SSR 83-12”):
Where an individual’s exertional RFC does not coincide with the
definition of any one of the ranges of work as defined in sections
404.1567 and 416.967 of the regulations, the occupational base is
affected and may or may not represent a significant number of jobs
. . . . The [ALJ] will consider the extent of any erosion of the
occupational base and a[ss]ess its significance. In some instances,
the restriction will be so slight that it would clearly have little
effect on the occupational base. In cases of considerably greater
restriction(s), the occupational base will obviously be affected. In
still other instances, the restrictions of the occupational base
will be less obvious.
Where the extent of erosion of the occupational base is not clear,
the [ALJ] will need to consult a vocational resource.
SSR 83-12, 1983 WL 31253, at *2 (emphasis added).
22
To nevertheless find a conflict under such circumstances would
impermissibly extend the holding in Pearson to merely “possible”
conflicts.
See Eddie v. Berryhill, No. 5:16-CV-801-D, 2017 WL
4002147, at *6 (E.D.N.C. Aug. 24, 2017) (unpublished) (rejecting
the plaintiff’s conflict argument because “[the c]laimant move[d]
beyond what is apparent and into the realm of what is possible” and
noting that “[t]he Fourth Circuit in Pearson expressly declined to
expand the ALJ’s duty to include inquiry as to ‘all possible
conflicts’” (emphasis added) (quoting Pearson, 810 F.3d at 209)),
recommendation
adopted,
No.
5:16-CV-801-D,
2017
WL
3995813
(E.D.N.C. Sept. 11, 2017) (unpublished).
In much the same vein, the analysis in Fogle, relied on by
Plaintiff (see Docket Entry 10 at 9; Docket Entry 13 at 6), glosses
over the distinction between “possible” and “apparent” conflicts.11
The Fogle court held that “[t]he descriptions of the [light] jobs
identified by the [VE] could require standing and/or walking in
excess of four hours per day, and the ALJ did not obtain an
explanation for this conflict.”
11
Fogle, 2016 WL 7322789, at *4
The undersigned briefly discussed Fogle in a previous decision. See Finnegan
v. Berryhill, No. 1:16CV1012, 2017 WL 2224332, at *5 n.7 (M.D.N.C. May 19, 2017)
(unpublished) (Auld, M.J.), recommendation adopted, slip op. (M.D.N.C. June 15,
2017) (Schroeder, J.). In Finnegan, the plaintiff had cited Fogle to support her
argument that “the DOT’s silence regarding a particular limitation automatically
create[d] a conflict with the VE’s citation of jobs accommodating that
limitation.” Id. The undersigned noted only that Fogle did not support that
argument, as the court in that case stated that “the [DOT] is not silent” in
finding a conflict between the DOT’s definition of light work and the VE’s
citation of three light jobs that accommodated a restriction to no more than four
hours of standing and/or walking. Id. (quoting Fogle, 2016 WL 7322790, at *4).
Thus, in Finnegan, the undersigned did not reach the merits of that underlying
issue. See id.
23
(emphasis in original).
The court’s focus on whether a conflict
could exist between the light jobs’ descriptions and a limitation
to four hours of standing/walking underscores that the court found
a mere “possible” conflict sufficient to reverse.
Id.
In short, Plaintiff has not shown that the ALJ reversibly
erred by failing to identify and resolve an apparent conflict
between the VE’s testimony and the DOT.
II.
CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment
on
the
Pleadings
(Docket
Entry
9)
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
October 20, 2017
24
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?