Bass v. Colvin
Filing
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ORDER granting 6 Motion for Summary Judgment; denying 8 Motion for Summary Judgment, and this action is REMANDED to the Commissioner for further proceedings not inconsistent with this Order. Signed by District Judge Max O. Cogburn, Jr on 10/14/2014. (eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00075-MOC
AMANDA E. BASS,
)
)
Plaintiff,
)
)
Vs.
)
)
CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
)
)
Defendant.
)
ORDER
THIS MATTER is before the court upon plaintiff’s Motion for Summary
Judgment, the Commissioner’s Motion for Summary Judgment, and plaintiff’s
Response. Having carefully considered such motions and reviewed the pleadings,
the court enters the following findings, conclusions, and Order remanding the
matter to the Commissioner for further proceedings not inconsistent with this
Order.
FINDINGS AND CONCLUSIONS
I.
Administrative History
Plaintiff filed an application for a period of disability and Supplemental
Security Income benefits. Plaintiff’s claim was denied both initially and on
reconsideration; thereafter, plaintiff requested and was granted a hearing before an
administrative law judge (“ALJ”). After conducting a hearing, the ALJ issued a
decision which was unfavorable to plaintiff, from which plaintiff appealed to the
Appeals Council. Plaintiff’s request for review was denied and the ALJ’s decision
affirmed by the Appeals Council, making the ALJ’s decision the final decision of
the Commissioner of Social Security (“Commissioner”).1 Thereafter, plaintiff
timely filed this action.
II.
Factual Background
It appearing that the ALJ’s findings of fact are supported by substantial
evidence, the undersigned adopts and incorporates such findings herein as if fully
set forth. Such findings are referenced in the substantive discussion which follows.
III.
Standard of Review
The only issues on review are whether the Commissioner applied the correct
legal standards and whether the Commissioner’s decision is supported by
substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Review by a federal court is not de
novo, Smith v. Schwieker, 795 F.2d 343, 345 (4th Cir. 1986); rather, inquiry is
limited to whether there was “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” Richardson v. Perales, supra. Even if
the undersigned were to find that a preponderance of the evidence weighed against
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The Appeals Council had previously remanded an earlier ALJ determination for further analysis.
the Commissioner’s decision, the Commissioner’s decision would have to be
affirmed if supported by substantial evidence. Hays v. Sullivan, supra.
IV.
Substantial Evidence
A.
Introduction
The court has read the transcript of plaintiff’s administrative hearing, closely
read the decision of the ALJ, and reviewed the extensive exhibits contained in the
administrative record. The issue is not whether a court might have reached a
different conclusion had he been presented with the same testimony and
evidentiary materials, but whether the decision of the administrative law judge is
supported by substantial evidence. The undersigned finds that it is not.
B.
Sequential Evaluation
A five-step process, known as “sequential” review, is used by the
Commissioner in determining whether a Social Security claimant is disabled. The
Commissioner evaluates a disability claim under Title II pursuant to the following
five-step analysis:
a.
An individual who is working and engaging in substantial gainful
activity will not be found to be “disabled” regardless of medical
findings;
b.
An individual who does not have a “severe impairment” will not be
found to be disabled;
c.
If an individual is not working and is suffering from a severe
impairment that meets the durational requirement and that “meets or
equals a listed impairment in Appendix 1” of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without
consideration of vocational factors;
d.
If, upon determining residual functional capacity, the Commissioner
finds that an individual is capable of performing work he or she has
done in the past, a finding of “not disabled” must be made;
e.
If an individual’s residual functional capacity precludes the
performance of past work, other factors including age, education, and
past work experience, must be considered to determine if other work
can be performed.
20 C.F.R. § 404.1520(b)-(f). In this case, the Commissioner determined plaintiff’s
claim at the fifth step of the sequential evaluation process.
C.
The Administrative Decision
The ALJ denied plaintiff’s application for SSI benefits by finding at the fifth
step that plaintiff was able to perform past relevant work as a Deli Cutter/Slicer:
In comparing the claimant's residual functional capacity with the
physical and mental demands of this work, the undersigned finds that
the claimant is able to perform it as actually and generally performed.
The vocational expert testified that the claimant's past relevant work
as a Deli Cutter/Slicer was described in the Dictionary of
Occupational Titles as unskilled work (SVP 2) that is light in exertion.
She reported that the cognitive demands of this job at SVP 2 require a
short demonstration and up to one month to learn the job tasks. The
vocational expert stated that SVP 2 jobs take a short amount of time to
learn.
Administrative Record (“AR”) at 24.
As defendant admits in its Motion for
Summary Judgment, the ALJ erred in such determination as plaintiff never
performed such work at the “substantial gainful activity level.”
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The Commissioner contends that her final decision should be affirmed in
any event as the alternative findings at step five of the sequential evaluation
process are supported by substantial evidence.
That portion of the ALJ
determination provide, in relevant part, as follows:
When asked about SVP level jobs, the vocational expe1
1stated that
SVP 1jobs were extremely rare but an example would be a
Cushion Stuffer as seen in upholstery plants. She stated that these
jobs only require taking foam and putting it into a format; there
would be no need for repeated instructions. She testified that the
job tasks are repetitive, a 1-2 step process without much variation.
The vocational expert also testified that these jobs do not require the
worker to initiate anything and would not require any math skills;
they would not even require counting. She stated that the person
would simply have to come to work ready to perform. The
vocational expert testified that given the factors as indicated by the
Administrative Law Judge, the individual would be able to perform
the requirements of representative occupations such as Small Parts
Assembler, with 6,800 such jobs in North Carolina and 85,000 jobs
in the United States; and such as Cushion Stu ffer with 150 jobs in
North Carolina and 7,700 jobs in the United States. The vocational
expert reiterated that SVP land 2 jobs only require the worker to
learn a pa1
1icular job task, and that once that task has been learned,
the worker would be required to perform only that job task on a
repetitive basis, and there would be no modifying of tasks.
Pursuant 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.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant's age, education, work
experience, and residual functional capacity, the claimant is capable
of making a successful adjustment to other work that exists in
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significant numbers in the national economy. A finding of "not
disabled" is therefore appropriate under the framework of section
202.20 in the Medical-Vocational Guidelines.
Id. at 25.
D.
Discussion
The court finds little redemption in these alternative findings as the ALJ
failed to inquire of the Vocational Expert whether plaintiff could perform such
work activities in light of all of the limitations outlined in plaintiff’s RFC. While
the transcript reveals that the ALJ prefaced his questions to the VE with an inquiry
concerning whether she had been present during the hearing, at no point during the
hearing did the ALJ set forth his determination of plaintiff’s RFC. Instead, the
VE’s testimony was sidetracked by the ALJ’s inquiry as to plaintiff’s prior work as
a Deli Slicer, the physical demands of that job, and the cognitive demands of that
job. For example, the ALJ asked:
Okay. Now, is it possible to characterize, to quantify the degree of
intellectual or cognitive demands of a job from the most menial all the
way up to, oh, administrative law judge, or something?
Id. at 64. The discussion with the VE never returned to a properly constructed
hypothetical outlining plaintiff’s RFC. Instead, the only limitation the court can
discern in the ALJ’s hypothetical is a requirement of written as opposed to verbal
instructions. Id. at 66.
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Hypothetical questions posed by an ALJ to a vocational expert must fully
describe a plaintiff’s impairments and accurately set forth the extent and duration
of the claimant’s pain, if any. Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978).
Where the ALJ properly formulates his hypothetical to accurately reflect the
condition and limitations of the claimant, the ALJ is entitled to afford the opinion
of the vocational expert great weight. Shively v. Heckler, 739 F.2d 984 (4th Cir.
1984).
Review of the administrative record reveals that the ALJ improperly relied
on the testimony of the vocational expert because the ALJ failed to ask questions
that would have ensured that the vocational expert knew the claimant’s abilities
and limitations.
The purpose of bringing in a vocational expert is to assist the ALJ in
determining whether there is work available in the national economy
which this particular claimant can perform. In order for a vocational
expert’s opinion to be relevant or helpful, it must be based upon a
consideration of all other evidence in the record, Chester v. Mathews,
403 F. Supp. 110 (D. Md. 1975), and it must be in response to proper
hypothetical questions which fairly set out all of claimant’s
impairments. Stephens v. Secretary of Health, Education and
Welfare, 603 F.2d 36 (8th Cir. 1979). In this case the ALJ did not ask
questions that ensured that the vocational expert knew what the
claimant’s abilities and limitations were. Therefore, his answers to
those questions were not particularly useful.
Further, it is difficult to see how a vocational expert can be of
any assistance if he is not familiar with the particular claimant’s
impairments and abilities -- presumably, he must study the evidence
of record to reach the necessary level of familiarity. In addition, the
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opinion of a vocational expert must be based on more than just the
claimant’s testimony--it should be based on the claimant’s condition
as gleaned from the entire record.
Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989). Here, not only was the
hypothetical (or, better put, the lack of any discernable hypothetical) flawed, the
jobs the ALJ ultimately relied on contained elements inconsistent with the RFC he
announced in his decision. For example, many if not all of the production jobs
identified require high-volume production either explicitly or implicitly, while the
ALJ limited plaintiff to “a low production setting.” A.R. at 19. Under SSR 00-4p,
an ALJ must "identify and obtain a reasonable explanation for any conflicts
between occupational evidence provided by [the vocational expert] and
information in the Dictionary of Occupational Titles ...."
Inasmuch as the ALJ’s Step Five determination is not supportable in any
regard, this action must be remanded for a new hearing. While this determination
does not reach the substance of plaintiff’s other arguments, plaintiff has made other
arguments in her briefs concerning other errors which concern the court, including
whether the ALJ gave proper or any consideration to whether she met Listing
12.05(C) at Step Four. Thus, on remand, the ALJ will be required to consider all
of plaintiff’s evidence and arguments anew (including any additional evidence)
and explicitly consider whether plaintiff meets Listing 12.05(c). If she does not
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meet that listing, the ALJ shall then move to the fifth step and determine whether
plaintiff has the RFC to perform work existing in substantial numbers in the
national and local economies.
Finally, while the court will not direct the Commissioner to assign this claim
to a different ALJ (inasmuch as the court is still confident that this ALJ can fairly
hear plaintiff’s claims), the court will require the Commissioner to notify this court
in the event a civil action is filed after remand so that this court can conduct any
subsequent review.
E.
Conclusion
The court has carefully reviewed the decision of the ALJ, the transcript of
proceedings, plaintiff’s motion and brief, the Commissioner’s responsive pleading,
and plaintiff’s assignments of error. Review of the entire record reveals that the
decision of the ALJ is not supported by substantial evidence. See Richardson v.
Perales, supra; Hays v. Sullivan, supra. Plaintiff’s Motion for Summary Judgment
will be granted, the Commissioner’s Motion for Summary Judgment will be
denied, and the decision of the Commissioner will remanded for further
proceedings not inconsistent with this Order.
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ORDER
IT IS, THEREFORE, ORDERED that
(1)
the decision of the Commissioner, denying the relief sought by
plaintiff, is REVERSED;
(2)
the plaintiff’s Motion for Summary Judgment (#6) is
GRANTED;
(3)
the Commissioner’s Motion for Summary Judgment is
DENIED; and
(4)
this action is REMANDED to the Commissioner for further
proceedings not inconsistent with this Order.
Signed: October 14, 2014
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