Bryant v. Commissioner of Social Security
Filing
21
Opinion and Order signed by Judge James S. Gwin on 9/25/13 adopting the Report and Recommendation. of the Magistrate Judge. (Related Doc. 18 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
BRANDON N. BRYANT,
:
:
Plaintiff,
:
:
vs.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY ADMINISTRATION,
:
:
Defendant.
:
-------------------------------------------------------
CASE NO. 1:12-CV-2122
OPINION & ORDER
[Resolving Doc. No. 1, 18, 19]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Magistrate Judge George J. Limbert recommends this Court affirm the Social Security
Commissioner’s denial of supplemental security income to Plaintiff Brandon N. Bryant.1/ Because
substantial evidence supported the Administrative Law Judge’s (ALJ’s) conclusions and the ALJ
did not abuse her discretion, the Court ADOPTS the recommendations of the Magistrate Judge and
AFFIRMS the Commissioner’s denial of benefits.
I. Factual and Procedural Background2/
On April 8, 2008, Plaintiff Brandon Bryant filed an application for supplemental security
income.3/ After his application was denied, Bryant requested a hearing.4/ On November 30, 2010,
Bryant appeared at a hearing with counsel before Administrative Law Judge Penny Loucas; a neutral
vocational expert also attended and testified.5/
Plaintiff testified that he injured his hand when he accidentally put it through a window while
1/
Doc. 18.
The Court recites the facts that are relevant to Plaintiff’s objections to the Report and Recommendation.
3/
Doc. 12 at 45.
4/
Id. at 104.
5/
Id. at 45.
2/
Case No. 1:12-cv-2122
Gwin, J.
working for his father.6/ As a result, his hand stiffened and closed.7/ Bryant had surgery on his hand
and occasionally attended physical therapy.8/ Plaintiff also testified about his criminal history and
that he had obsessive traits.9/
During the hearing, the ALJ and Bryant’s counsel also questioned the vocational expert. The
ALJ asked what jobs a person limited to unskilled work and with only occasional use of his
dominant hand could perform.10/ The vocational expert answered that such a person could serve as
a flagger, an usher, or a parking lot attendant.11/ The vocational expert said that all those jobs
required only a one- or two-step reasoning level.12/ The Dictionary of Occupational Titles defines
each position as requiring a GED reasoning level of 2.13/ The vocational expert also said that those
jobs could be performed by a person who could only use his dominant hand to guide objects.14/
Several consultants also gave opinions. Four consultants offered opinions on Bryant’s use
of his hand: two consultants said that he had occasional use of his hand, and two said he had no use
at all.15/ The ALJ also had records or opinions from eight consultants concerning Bryant’s mental
abilities.16/ Medical records also stated that Plaintiff had actually injured his hand by breaking a
glass window to enter his house when he was locked out.17/
6/
Id. at 56-57.
Id. at 59.
8/
Id. at 57-58.
9/
Id. at 48-56, 62-64.
10/
Id. at 71.
11/
id. at 71-72.
12/
Id. at 76.
13/
Id. at 81-82.
14/
Id. at 74-75.
15/
Id. at 27-29.
16/
Id. at 29-35.
17/
Id. at 325.
7/
-2-
Case No. 1:12-cv-2122
Gwin, J.
On December 22, 2010, the ALJ denied Bryant’s applications.18/ Although the ALJ gave
significant weight to the opinions of two state medical examiners who found Bryant could only
perform one- or two-step routines, the ALJ did not include that limitation in her finding of Bryant’s
residual functional capacity.19/ The ALJ found that Plaintiff had occasional use of his right hand.20/
The ALJ found his other symptoms to be not credible to the extent that the symptoms were not
consistent with that residual functional capacity.21/ The ALJ also found that because Bryant could
act as a flagger, usher, or parking lot attendant, he was not disabled and entitled to supplemental
security income.22/
Bryant appealed the ALJ’s decision to the Appeals Council of the Social Security
Administration,23/ which denied his request for review on June 19, 2012.24/ On August 7, 2012,
Bryant sought review in this Court.25/ On September 3, 2013, Magistrate Judge Limbert issued a
Report and Recommendation that the Court affirm the Commissioner’s decision.26/ Bryant timely
filed objections to the Report and Recommendation, which the Court now reviews.27/
II. Legal Standard
18/
Id. at 17.
Id. at 35.
20/
Id. at 23.
21/
Id. at 24.
22/
Id. at 36-37.
23/
Id. at 14.
24/
Id. at 1.
25/
Doc. 1.
26/
Doc. 18.
27/
Doc. 19.
Plaintiff filed his objections seventeen days after Magistrate Judge Limbert filed his Report and Recommendation on
the electronic docket. Id. Although this district’s local rules require objections to be filed within fourteen days of service
of a magistrate’s Report and Recommendation, Local R. 72.3(b), Federal Rule of Civil Procedure 6(d) allows for three
extra days if service is done by “sending it by electronic means,” Fed. R. Civ. P. 5(b)(2)(E), 6(d). Therefore, the
objections were timely filed. Cf. United States v. Lee, 862 F. Supp. 2d 560, 563-64 (E.D. Ky. 2012) (interpreting the
interplay between Fed. R. Civ. P. 5(b)(2)(E) and Fed. R. Crim. P. 45©), governing objections to magistrates’ Reports
and Recommendations in criminal cases).
19/
-3-
Case No. 1:12-cv-2122
Gwin, J.
To establish disability under the Social Security Act, a claimant must show that she is unable
to engage in any substantial gainful activity because of a “medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months.”28/ Agency regulations establish a five-step
sequential evaluation to determine whether a claimant is disabled.29/ The claimant’s impairment
must prevent her from doing her previous work, as well as any other work existing in significant
numbers in the national economy.30/
The Federal Magistrates Act requires a district court to conduct a de novo review of the
claimant’s objections to a report and recommendation.31/ A final decision of the Social Security
Commissioner made by an ALJ is, however, not reviewed de novo. A district court only determines
whether the ALJ’s decision is “supported by substantial evidence and was made pursuant to proper
legal standards.”32/
Substantial evidence is evidence that a “reasonable mind might accept as adequate to support
a conclusion.”33/ The substantial evidence standard requires more than a scintilla, but less than a
preponderance of the evidence.34/ In deciding whether substantial evidence supports the ALJ’s
decision, a court should not try to resolve conflicts in evidence or decide questions of credibility.35/
The district court may look into any evidence in the record, regardless of whether it has been cited
28/
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
20 C.F.R. §§ 404.1520, 416.920.
30/
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
31/
28 U.S.C. § 636(b)(1).
32/
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
33/
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
34/
See id.
35/
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
29/
-4-
Case No. 1:12-cv-2122
Gwin, J.
by the ALJ.36/ When substantial evidence supports the ALJ’s decision, a court may not reverse, even
if the court would have made a decision different than the one the ALJ made.37/
III. Analysis
Plaintiff Bryant makes six objections to Magistrate Judge Limbert’s Report and
Recommendation.38/ First, Plaintiff says that the ALJ erred by failing to include Plaintiff’s one- or
two-step reasoning limitation in his residual functional capacity and that the error is not harmless.39/
Second, Bryant says the ALJ erred by concluding that Bryant could use his dominant right hand for
one-third of the workday and by finding that Bryant could perform certain jobs despite having very
little use of his hand.40/ Third, Bryant says that the ALJ erred by not asking about inconsistencies
between the vocational expert’s testimony and the Dictionary of Occupational Titles.41/ Fourth,
Plaintiff says the ALJ erred in finding he could not perform the jobs the ALJ cited because the
vocational expert’s testimony was too qualified to be relied on.42/ Fifth, Plaintiff says that the ALJ
committed procedural errors by using the wrong legal standard and using evidence outside of the
record.43/ And finally, Plaintiff says that the ALJ’s credibility determination was not supported by
substantial evidence.44/
Plaintiff’s objections fail.
A.
Failure to Include Mental Limitation in Residual Functional Capacity
36/
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987).
38/
Doc. 19.
39/
Id. at 2-5.
40/
Id. at 5-6.
41/
Id. at 7.
42/
Id. at 7-8.
43/
Id. at 8-10.
44/
Id. at 10.
37/
-5-
Case No. 1:12-cv-2122
Gwin, J.
Plaintiff says that the ALJ gave significant weight to two non-examining psychologists’
determination that Plaintiff should be limited to jobs with only one- or two-step reasoning.45/ But
the ALJ did not include that limitation in Plaintiff’s residual functional capacity.46/ Bryant says that
this failure is reversible error.47/ Bryant says that the ALJ did not properly consider the limitation
because the ALJ based her decision on ambiguous or equivocal testimony from the vocational expert
and the ALJ did not resolve the ambiguity.48/
Magistrate Judge Limbert’s Report and Recommendation recommends that the Court find
that the ALJ did consider the limitation even though the limitation was not in the residual functional
capacity.49/ “[I]f an agency has failed to adhere to its own procedures, we will not remand for further
administrative proceedings unless ‘the claimant has been prejudiced on the merits or deprived of
substantial rights because of the agency’s procedural lapses.’”50/ If the ALJ actually and properly
considered the limitation the ALJ credited in deciding what jobs Bryant could perform, then the
error would be harmless.
First, the vocational expert’s testimony was not ambiguous or equivocal. Plaintiff’s
argument that the phrase “I don’t believe [the job requires] any more than one or two steps”51/
implies ambiguity or equivocation loses. In Graves v. Secretary of Health, Education, & Welfare,
the expert had qualified his testimony by saying there was not a substantial number of jobs in the
economy for the claimant, that employers would be hesitant to hire the claimant, and that he did not
45/
Id. at 2.
Id.
47/
Id. at 2-3.
48/
Doc. 19 at 2-3.
49/
Doc. 18 at 13.
50/
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (quoting Connor v. United States
Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983)).
51/
Doc. 12 at 78.
46/
-6-
Case No. 1:12-cv-2122
Gwin, J.
know how to assign weight to the claimant’s pain.52/ At one point, the vocational expert even said,
“A finding to the opposite might well be found.”53/ These ambiguous and qualified statements are
not the same as the vocational expert in this case using a colloquial verbal crutch of “I don’t believe”
to summarize his prior description of the job requirements of a flagger.
Second, the vocational expert adequately explained why he thought the jobs he named could
be performed by a person with a one- or two-step reasoning limitation. The ALJ asked the
vocational expert whether or not there are jobs that only require a one- or two-step reasoning
limitation but that are listed has having a higher reasoning level.54/ The vocational expert answered
that the jobs he had named generally can be performed by a person with a one- or two-step reasoning
limitation.55/ In response to a question from Plaintiff’s counsel, the vocational expert also stated that
the jobs he named only “require[d] one and two-step direction.”56/ The fact that the jobs are listed
in the Dictionary of Occupational Titles as requiring more than a one- or two-step reasoning
limitation is not important because “the ALJ and consulting vocational expert are not bound by the
Dictionary in making disability determinations.”57/ The vocational expert may explain that a person
with a more limited capacity can perform a job that the Dictionary lists as requiring more capacity
because the Dictionary provides maximum job requirements.58/ Here, the vocational expert
appropriately explained how the jobs’ normal reasoning requirements are less than the Dictionary’s
maximum reasoning level.
52/
473 F.2d 807, 809-10 (6th Cir. 1973).
Id. at 810.
54/
Doc. 12 at 78.
55/
Id.
56/
Id. at 76.
57/
Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003).
58/
SSR 00-4p, 2000 WL 1898704, at *3 (2000).
53/
-7-
Case No. 1:12-cv-2122
Gwin, J.
And third, the ALJ relied on the vocational expert’s testimony concerning jobs with oneor two-step reasoning limitations in determining that there were jobs in the economy Bryant could
perform. The jobs that the ALJ listed in her decision are the same jobs the vocational expert
named.59/ Because the ALJ actually and properly considered the limitation the ALJ should have
included in Bryant’s residual functional capacity, the error is harmless. The Court, therefore,
overrules this objection.
B.
Use of Dominant Hand for One-Third of Workday
Plaintiff Bryant says that there is not substantial evidence that Bryant could use his right
hand for one-third of the workday and that the error is not harmless because the jobs could not
reasonably be performed by a person who could only use one hand.60/
The ALJ discussed the varying opinion evidence concerning Bryant’s use of his right hand
in detail.61/ The ALJ gave significant weight to the opinions of two advising consultants who said
that Bryant had occasional use of his right hand because they were familiar with Social Security
Administration policy and regulations and because their opinions appeared to be assessments of the
medical evidence as a whole rather than Bryant’s descriptions of his limitations.62/ The ALJ
discounted the opinion of Bryant’s family physician that Bryant had no use of his hand because of
their long-standing relationship and an inconsistency with other medical evidence.63/ Finally, the
ALJ gave some weight to the opinion of Dr. Lai, who also thought Bryant had no use of his hand.64/
59/
Doc. 12 at 36-37, 71-72.
Doc. 19 at 5-6.
61/
Doc. 12 at 27-29.
62/
Id. at 27-28.
63/
Id. at 28.
64/
Id. at 29.
60/
-8-
Case No. 1:12-cv-2122
Gwin, J.
But the ALJ noted that Dr. Lai’s opinion was inconsistent with Dr. Lai’s observation that Bryant
could use his hand as a guide.65/ The ALJ found the opinion testimony supported her residual
functional capacity finding.66/ The ALJ considered and weighed all of the opinion testimony on this
issue and came to a reasonable conclusion. Therefore, substantial evidence supports the ALJ’s
residual functional capacity finding, and the Court overrules this objection.
C.
Inquiring into Conflicts with the Dictionary
Plaintiff says that the ALJ erred by not inquiring why the vocational expert’s testimony
conflicted with the Dictionary of Occupational Titles.67/ He says that Social Security Ruling 00-4p
requires the ALJ to do.68/
Under Social Security Ruling 00-4p, once an ALJ has recognized a conflict between the
testimony of a vocational expert and the Dictionary of Occupational Titles, the ALJ must “explain
in the determination or decision how he or she resolved the conflict” before relying on the vocational
expert’s testimony.69/ The ALJ also has the obligation to ask whether a vocational expert’s opinion
on job requirements is consistent with the Dictionary.70/
The ALJ found that there was no discrepancy between the vocational expert’s testimony and
the Dictionary.71/ Even if this were wrong, however, the error would be harmless. The ALJ received
an adequate explanation for any discrepancy between the vocational expert’s testimony and the
Dictionary. The ALJ specifically asked whether a person with a one- or two-step reasoning
65/
Id.
Id.
67/
Doc. 19 at 7.
68/
Id.
69/
2000 WL 1898704, at *4 (2000).
70/
Id.
71/
Doc. 12 at 37.
66/
-9-
Case No. 1:12-cv-2122
Gwin, J.
limitation could perform a job with a higher reasoning level, and the vocational expert answered that
it was possible and provided the flagger and usher positions as an example.72/ The fact that the
vocational expert said that his opinion in part “has nothing to do with the DOT”73/ does not mean
there was a conflict between his testimony and the Dictionary; the actual text of the Dictionary
determines whether there is a conflict. Accordingly, the Court overrules this objection.
D.
One-Armed Work
Plaintiff says that he could not perform the jobs the ALJ named because they require using
two arms.74/ Plaintiff also says that the ALJ could not rely on the vocational expert’s testimony to
find that Bryant could perform those jobs.75/
Substantial evidence in the record supports the ALJ’s determination that Bryant could
perform the jobs the ALJ listed. The ALJ relied on the testimony of the vocational expert who said
that the job duties could be performed by a person with full use of one arm and limited use of the
dominant hand for occasional periods, such as to guide things.76/ The expert’s use of the words
“essential duties” and “it would just take you a little bit longer”77/ are not qualified in the same way
that the expert’s testimony was qualified in Graves. Accordingly, the Court overrules this objection.
E.
Procedural Errors
Plaintiff Bryant says that the ALJ used the wrong standard of proof and that the ALJ used
72/
Id. at 78. Although the ALJ used the term SVP, or specific vocational preparation, instead of GED reasoning,
it is apparent based on the context that the ALJ, Bryant’s counsel, and the vocational expert all had confused the two
terms and meant GED reasoning. Id. at 77-79.
73/
Id. at 75.
74/
Doc. 19 at 7.
75/
Id.
76/
Doc. 12 at 74-75.
77/
Doc. 19 at 8 (citing vocational expert’s testimony).
-10-
Case No. 1:12-cv-2122
Gwin, J.
irrelevant and extra-record evidence.78/ Before assessing and weighing the medical evidence, the
ALJ stated, “If supported by substantial evidence, the ALJ’s findings of fact are conclusive, even
if the record could arguably support a different result.”79/ The ALJ then defined the substantial
evidence standard.80/ Plaintiff also cites provisions of the Commissioner’s Hearings, Appeals and
Litigation Law Manual (“HALLEX”) to support his claim that extra-record evidence was improperly
considered.81/
First, the Court agrees with the Magistrate Judge that the ALJ was referring to judicial
review
of the ALJ’s decision, not the legal standard the ALJ was using.82/ Although the courts are aware
of the proper standard, a claimant may be unaware of how the ALJ’s decision will be reviewed.
Moreover, the ALJ repeatedly stated that she was “find[ing]” facts, implying the use of a
preponderance standard at the very least, even if the ALJ never specified it was a preponderance
standard.83/
Second, the evidence of Bryant’s prior criminal history is relevant to Bryant’s credibility,
even though it was not specifically cited by the ALJ, as explained below. “There is little dissent
from the general proposition that at least some crimes are relevant to credibility.”84/ At least some
of Bryant’s crimes are relevant to the ALJ’s credibility decision.
And third, the ALJ’s citation to the Diagnostic and Statistical Manual of Mental Disorders
78/
Doc. 19 at 8-10.
Doc. 12 at 25 (quotation omitted).
80/
Id.
81/
Doc. 19 at 9.
82/
Doc. 18 at 16.
83/
See, e.g., Doc. 12 at 23.
84/
Fed. R. Evid. 609 advisory committee’s note (1972).
79/
-11-
Case No. 1:12-cv-2122
Gwin, J.
is not reversible error. The HALLEX provisions cited by Plaintiff are not the kind of binding
regulation that can require a reversal on judicial review.85/ Even giving 42 U.S.C. § 405(b)(1) the
interpretation that Plaintiff wishes, the ALJ based her decision on evidenced “adduced at the
hearing”;86/ the citation to the manual merely provided an explanation for how the ALJ assigned
weight to an opinion. Additionally, the inclusion of the manual did not deprive Plaintiff of due
process in the decision-making process. Therefore, the Court overrules this objection.
F.
Credibility
Plaintiff says that the ALJ did not cite the factors listed in agency rules for determining a
claimant’s credibility and that the ALJ did not consider the evidence cited by Magistrate Judge
Limbert to support the adverse credibility determination.87/
First, the ALJ did cite her obligations under Social Security Ruling 96-7p to consider
whether the claimed symptoms were consistent with the objective medical evidence and other
evidence.88/ Therefore, the ALJ did not abuse her discretion.
Second, although the ALJ did not specifically refer to the evidence Magistrate Judge Limbert
mentions, the ALJ did not need to. “[A]n ALJ is not required to discuss all the evidence submitted,
85/
Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008) (HALLEX is “not binding on this court”
although it can be persuasive).
86/
42 U.S.C. § 405(b)(1).
87/
Doc. 19 at 10.
88/
Doc. 12 at 23 (“In making this finding, the undersigned has considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based
on the requirements of . . . [SSR] 96-7p.”). SSR 96-7p, 1996 WL 374186, states, “In determining the credibility of the
individual's statements, the adjudicator must consider the entire case record, including the objective medical evidence,
the individual's own statements about symptoms, statements and other information provided by treating or examining
physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other
relevant evidence in the case record.” Id. at *1.
-12-
Case No. 1:12-cv-2122
Gwin, J.
and an ALJ's failure to cite specific evidence does not indicate that it was not considered.”89/
Third, there is substantial evidence to support the ALJ’s credibility determination. The ALJ
noted that Bryant gave vague answers that left the impression he was hiding something.90/ The ALJ
also noted that medical evidence contradicted Bryant’s claim that he had obsessive compulsive
disorder.91/ And the ALJ noted that Bryant’s work history diminished the persuasiveness of Bryant’s
claims.92/ The evidence cited by the Magistrate Judge lends additional support to the ALJ’s
conclusion.93/ Accordingly, the Court overrules this objection as well.
IV. Conclusion
The Court has reviewed the Magistrate Judge’s other recommendations and finds them
correct. For the foregoing reasons, the Court ADOPTS the Report and Recommendation of
Magistrate Judge Limbert and AFFIRMS the Commissioner’s denial of benefits.
IT IS SO ORDERED
Dated: September 25, 2013
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
89/
Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir. 2004) (quoting Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000)). Bryant’s citation to Pruidez v. Holder, 632 F.3d 234 (6th Cir. 2011), for the proposition that the Court must
review only the reasons given by the ALJ is irrelevant here. If the ALJ had found Bryant did not qualify for disability
because he had substantial gainful employment, this Court could not affirm on a ground that the ALJ had not given, such
as finding no disability. That is the Pruidez rule. But where the ALJ gives a reason and the only issue is whether the
ALJ’s reason makes sense given the facts in the record, the Court can affirm on the basis of facts the ALJ did not cite.
90/
Doc. 12 at 24-25.
91/
Id. at 25.
92/
Id.
93/
Doc. 18 at 16.
-13-
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?