Brown v. Colvin
Filing
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ORDER denying Pltf'a 9 Motion for Summary Judgment; granting Deft's 12 Motion for Summary Judgment; and affirming the Commissioner's decision. Signed by Chief Judge Frank D. Whitney on 2/9/15. (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:14-cv-00129-FDW
JANNA BROWN,
)
)
Plaintiff,
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)
vs.
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CAROLYN W. COLVIN,
)
ACTING COMMISIONER OF SOCIAL )
SECURITY,
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Defendants.
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ORDER
THIS MATTER is before the Court on Plaintiff Janna Brown’s Motion for Summary
Judgment (Doc. No. 9), and Defendant Acting Commissioner of Social Security Carolyn
Colvin’s Motion for Summary Judgment (Doc. No. 12). Plaintiff, through counsel, seeks judicial
review of an unfavorable administrative decision on her late husband’s application for disability
benefits.
Having reviewed and considered the written arguments, administrative record, and
applicable authority, for the reason set forth below, Plaintiff’s Motion for Summary Judgment is
DENIED, Defendant’s Motion for Summary Judgment is GRANTED, and the Administrative
Law Judge’s (“ALJ’s”) decision is AFFIRMED.
I.
BACKGROUND
On September 14, 2011, the now deceased Claimant, Michael Brown, filed applications
for Title II Disability Insurance Benefits and Title XVI Supplemental Security Income alleging
disability since June 11, 2010. (Doc. 8-3, p. 11). Claimant’s application was initially denied on
January 6, 2012, and upon reconsideration on March 29, 2012. (Doc. 8-3, p. 11). On April 5,
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2012, Claimant filed a written request for hearing. (Doc. 8-3, p. 11). A hearing was held on
September 26, 2012, at which time the Claimant appeared and testified, along with an impartial
vocational expert. (Doc. 8-3, p. 11). On January 28, 2013, the ALJ decided Claimant was not
disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. (Doc. 8-3,
p. 25).
Claimant filed a request of review of the ALJ’s decision, which was denied by the
Appeals Council on March 25, 2014. (Doc. 10, p. 2). On April 22, 2014, Claimant died, and his
wife, Janna Brown, Plaintiff in this case, was substituted as party to this action. (Doc. 10, p. 2).
Plaintiff filed this civil action, seeking a review of the Commissioner’s decisions. (Doc. 10, p.
2).
II.
STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g), limits this Court’s review of the
Commissioner’s final decision to whether substantial evidence supports the Commissioner’s
decision and whether the Commissioner applied the correct legal standards. Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990). This Court does not review a final decision of the
Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); King v.
Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1972). Thus, this 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.’”
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Mastro v. Apfel,
270 F.3d 171, 176 (4th Cir. 2001)).
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The Social Security Act provides, “[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). In Smith v.
Heckler, the Fourth Circuit defined “substantial evidence” as: “‘more than a scintilla and [it]
must do more than create a suspicion of the existence of a fact to be established. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” 782
F.2d 1176, 1179 (4th Cir. 1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see
also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the
responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in the
medical evidence . . . .”).
The Fourth Circuit has long emphasized that a reviewing court does not weigh the
evidence again, nor substitute its judgment for that of the Commissioner, assuming the
Commissioner’s final decision is supported by substantial evidence. Hays, 907 F.2d at 1456; see
also Smith v. Schweiker, 795 F.2d at 345. Indeed, this is true even if the reviewing court
disagrees with the outcome—so long as there is “substantial evidence” in the record to support
the Commissioner’s final decision, the decision should be affirmed. Lester v. Schweiker, 683
F.2d 838, 841 (4th Cir. 1982). The ALJ, and not the Court, has the ultimate responsibility for
weighing the evidence and resolving any conflicts. Hays, 907 F.2d at 1456.
III.
ANALYSIS
The question before the ALJ was whether Plaintiff was “disabled” under sections 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act between June 11, 2010, and the date of the
decision.1 Plaintiff bears the burden of proof to establish he was disabled within the meaning of
1
“Disability” is defined under the Social Security Act, 42 U.S.C. § 301, et seq., as an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which can be
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the Social Security Act in order to be entitled to benefits. Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987).
Under the Social Security Act, there is a five-step sequential process for determining
whether a person is disabled. 20 C.F.R. § 404.1520(a)(1). Step one is to determine whether the
claimant is engaged in substantial gainful activity; if claimant is engaged in substantial gainful
activity, they will be found not disabled. 20 C.F.R. § 404.1520(a)(4)(i). Step two determines
whether the claimant has a severe medically determinable physical or mental impairment or a
combination of impairments that is severe and meets the duration requirement. 20 C.F.R. §
404.1520(a)(4)(ii). At step three, if the claimant’s impairment or combination of impairments
meets or medically equals one of The Listings in 20 C.F.R. Part 404, Subpart P, Appendix 1,
then the claimant will be found disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Step four determines
whether the claimant has the residual functional capacity (“RFC”) to perform the requirements of
his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Step five considers whether the claimant
is able to make an adjustment to other work, considering claimant’s RFC, age, education, and
work experience. 20 C.F.R. § 404.1520(a)(4)(v).
On January 28, 2013, the ALJ found Claimant had not been under a disability within the
meaning of the Social Security Act from June 11, 2010, through the date of the decision. (Doc.
8-3, p. 25). In applying the five step process, the ALJ found at step one that Claimant had not
engaged in substantial gainful activity. The ALJ reached this conclusion even though Claimant
worked after the alleged disability because, according to the ALJ, this work did not rise to the
level of “substantial gainful activity.” (Doc. 8-3, p. 13). At step two, the ALJ found Claimant to
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.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
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have the “following severe impairments: status-post traumatic brain injury 2003; status-post
broken neck and cervical fusion at C2-C3 with chronic neck pain; status-post left arm fracture;
migraine headaches; corneal abrasions bilaterally with decreased visual acuity; asthma; memory
dysfunction and generalized anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).” (Doc. 8-3,
p. 14). At step three, the ALJ found that Claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of an impairment listed in 20 CFR Part
404, Subpart P, Appendix 1. (Doc. 8-3, p. 14). Claimant was found to have the residual
functional capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). (Doc. 8-3, p. 16). At step four, Claimant was found to not be able to perform past
relevant work. (Doc. 8-3, p. 23). In regards to step five, the vocational expert testified, “given
all of these factors[,] the individual would be able to perform the requirements of representative
occupations such as car wash attendant. There are approximately 1200 such jobs in North
Carolina and approximately 46,000 national economies.” (Doc. 8-3, p. 24). Based on the
vocational expert’s testimony at step five the ALJ found that considering Claimant’s age,
education, work experience, and RFC, there were jobs that existed in significant numbers in the
national economy that Claimant could perform. (Doc. 8-3, pp. 24-25).
On appeal, Plaintiff makes the following assignment of error: that the ALJ did not satisfy
his burden of demonstrating there were a significant number of jobs in the economy that
Claimant could have performed with his RFC. (Doc. 10, p. 1).
A. SIGNIFICANT NUMBER OF JOBS IN THE ECONOMY
Plaintiff argues the ALJ improperly relied on the vocational expert’s testimony at step
five in regards to the car wash attendant job. (Doc. 10, p. 6). Plaintiff argues that the vocational
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expert incorrectly stated the dictionary of occupational titles (“DOT”) and did not reference any
need to talk with customers. Plaintiff argues that when a conflict exists between the occupational
evidence provided by the vocational expert and the information in the DOT, the ALJ must
explain in his decision how the conflict was resolved. (Doc. 10, p. 6). Plaintiff argues that the
DOT description of the automatic carwash attendant job demonstrates that an individual who is
limited to no public interaction (as the ALJ limited Mr. Brown) is not capable of performing this
job.
The vocational expert testified, “the DOT doesn’t list here that there is, you know, any
talking or hearing, you know, required in this job.” (Doc. 8-3, p. 57). The vocational expert went
on to say the DOT “doesn’t have the public interaction as part of, a necessary part of that job.”
(Doc. 8-3, p. 57). The vocational expert relied on the DOT in testifying that under the DOT
there is no need for talking or hearing required for the job of car wash attendant. (Doc. 8-3, p.
57). Claimant’s attorney told the vocational expert to set aside the DOT and to consider the
vocational expert’s experience, then asked whether there would be public interaction in a job as
car wash attendant. (Doc. 8-3, p. 58). The vocational expert classified the public interaction as
very minimal, giving examples of directing someone forward. (Doc. 8-3, p. 58). The ALJ
deferred to the testimony of the vocational expert that Claimant would have been able to perform
the requirements of representative occupations. (Doc. 8-3, p. 24). “The ALJ is not required or
expected to know what jobs may be performed with particular limitation; rather, the ALJ may
utilize the services of a VE to resolve such questions. 20 C.F.R. § 404.1566(e).” Shaw v. Colvin,
2014 WL 6680412, at 7 (W.D.N.C. Nov. 24, 2014); see Hargis v. Sullivan, 945 F.2d 1482 (10th
Cir. 1991); see also Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002).
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The ALJ stated, “[p]ursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained in the Dictionary of
Occupational Titles.”
(Doc. 8-3, pp. 24-25).
The ALJ relied on the vocational expert’s
testimony that Claimant would be able to perform unskilled light occupational work, specifically
in a representative occupation such as car wash attendant. (Doc. 8-3, p. 24). Based on the
vocational expert testimony as well as considering Claimant’s age, education, work experience,
and RFC, the ALJ determined there were a significant number of jobs existing in the national
economy for Claimant. (Doc. 8-3, pp. 24-25).
After review of the ALJ’s decision, the Court finds that there is substantial evidence to
support the ALJ’s finding that there were a significant number of jobs existing in the national
economy for Claimant. Therefore, Plaintiff’s contention that the ALJ did not satisfy his burden
that there were a significant number of jobs existing in the national economy has no merit, and
the request to remand the matter for a new hearing is not appropriate.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (Doc. No. 9) is
DENIED; Defendant’s Motion for Summary Judgment (Doc. No. 12) is GRANTED; and the
Commissioner’s decision is AFFIRMED. The Clerk’s Office is directed to CLOSE THE CASE.
IT IS SO ORDERED.
Signed: February 9, 2015
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