Waulk v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 1/10/2017. Signed by Magistrate Judge Terence P. Kemp on 12/27/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jody L. Waulk,

:

Plaintiff,

:

v.

:

Case No. 2:15-cv-2982

:
Commissioner of Social Security,

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Jody L. Waulk, filed this action seeking review
of a decision of the Commissioner of Social Security denying her
applications for disability insurance benefits and supplemental
security income.

Those applications were filed on August 14,

2012, and alleged that Plaintiff became disabled on May 4, 2012.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on June 5, 2014.

In a decision dated July 9, 2014, the ALJ

denied benefits.

That became the Commissioner’s final decision

on September 30, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on January 26, 2016.

Plaintiff filed a

statement of specific errors on June 13, 2016, to which the
Commissioner responded on September 12, 2016.

Plaintiff has not

filed a reply brief, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 37 years old as of the date of the
hearing and who has an eleventh grade education, taking LD
classes, testified as follows.

Her testimony appears at pages

158-79 of the administrative record.

Plaintiff was first asked about her past work.

She had been

a field supervisor in the security field, having worked in that
area for eight years.

She lost that job because her hip and back

pain caused her to take too much time off.

Her job included

driving to different locations and training employees.

Before

that, she had worked as a nurse’s aide but stopped due to
problems with her back.
Plaintiff said she suffered from asthma and could only walk
for half a block before becoming short of breath.
breathing treatments four times per day.
hearing, she weighed 319 pounds.

She took

At the time of the

She had been referred for

bariatric surgery at one point but did not undergo it because she
had no one to drive her to the appointment.

Plaintiff had also

had bilateral carpal tunnel surgery and was still experiencing
pain in her right elbow.
Next, Plaintiff testified about her back pain.

She had pain

at the L4-L5 level, and also had problems with her right knee (on
which she had had surgery) and her left shoulder.

The shoulder

had been operated on as well and needed surgery again.

With her

limitations, she could not lift anything heavier than a gallon of
milk (and had trouble even with that) and she could not sit for
more than thirty minutes without having to change positions.
She did not climb stairs, and also had trouble grasping objects
with her right hand.

She took medications including Vicodin and

oxycodone, which dulled her pain but did not take it away.
In response to additional questions from her attorney,
Plaintiff said that she was seeing a counselor and a
psychiatrist.

She had been depressed for two years after the

death of her mother.

So far, medication had not helped her.

On

a daily basis she tended to isolate herself, had crying spells,
and experienced anger and mood swings.

She did not often leave

home and did not want to be around others.
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Additionally, she was

unable to do some household chores like sweeping, mopping, or
running the vacuum.

Her most comfortable position was lying down

with a pillow between her knees, and she spent half the day in
that position.
III.

The Medical Records

Although the Court typically summarizes the pertinent
medical records, it will not do so here.

They are

comprehensively summarized in Plaintiff’s statement of errors
(Doc. 17) and their specific content is not material to the
Court’s recommended decision, which turns on a point of law
related to the vocational testimony.
IV.

The Vocational Testimony

Carl Hartung was called to testify as a vocational expert at
the administrative hearing.

His testimony begins at page 179 of

the administrative record.
Mr. Hartung testified, first, that Plaintiff’s past job as a
security guard was light and semi-skilled, and the supervisory
position was light and skilled.

The nurse’s aide position is

semi-skilled and medium according to the DOT but is usually
performed at the heavy or very heavy exertional level.
Next, he was first asked some questions about someone with
Plaintiff’s background who could lift ten pounds occasionally and
less than ten pounds frequently, and who could sit for an hour at
a time for six hours in a workday and stand or walk for 25
minutes at a time for up to two hours in the workday.

The person

could also occasionally crouch, stoop, use stairs with a
handrail, and operate foot controls with the right leg.

Finally,

the person could have only occasional interaction with others in
the workplace or the community and had to work in a relatively
static environment.

Mr. Hartung said that such a person could

not perform Plaintiff’s past work but could work as an addresser,
document preparer, or parimutuel ticket checker.
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If the person

could only reach, handle, or finger with the dominant arm and
hand, however, those jobs would be eliminated, but the person
could do other jobs like election clerk, surveillance system
monitor, and call out operator.
Finally, Mr. Hartung was asked whether someone who was as
limited as Plaintiff described in her testimony could be
employed, and he said no.

The same would be true for someone who

would miss more than ten days of work per year.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1928 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 30, 2017.

Second, he found that Plaintiff had

not engaged in substantial gainful activity since her alleged
onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including degenerative disc disease of the lumbar spine;
degenerative joint disease of the right knee; left shoulder
acromioclavicular joint osteoarthritis; partial-thickness tear of
the extensor tendon at its insertion on the right lateral
epicondyle; bilateral carpal tunnel syndrome, status post
bilateral carpal tunnel releases; asthma; obesity; and
depression.

The ALJ also found that these impairments did not,

at any time, meet or equal the requirements of any section of the
Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix
1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to lift and/or carry ten pounds occasionally and less
than ten pounds frequently, sit for an hour at a time for a total
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of six hours in a workday, stand or walk for 25 minutes at a time
for a total of two hours in a workday, occasionally crouch,
stoop, use stairs with a handrail, and operate right foot
controls, and occasionally handle, reach, and finger with the
right upper extremity.

Also, she could have only occasional

interaction with others in the workplace or the community and had
to work in a relatively static work environment.
The ALJ concluded that with these limitations, Plaintiff
could not do her past relevant work.

However, she could do jobs

like election clerk, surveillance system monitor, and call out
operator.

The ALJ further determined that these jobs existed in

significant numbers in the national economy.

Consequently, the

ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises the
following issues: (1) the ALJ failed to identify and resolve a
conflict between the vocational expert’s testimony and the
Dictionary of Occupational Titles; and (2) the case should be
remanded for consideration of new and material evidence pursuant
to 42 U.S.C. §405(g), sentence six.
A.

Conflict with the DOT

There are several parts to Plaintiff’s first argument.
First, she asserts that although the ALJ assumed that the three
jobs identified by the vocational expert in response to the key
hypothetical question - the one which incorporated restrictions
on reaching, handling, and fingering - were representative of
other occupations as well, Mr. Hartung never said so explicitly.
Second, she argues that someone with the residual functional
capacity determined by the ALJ cannot, under the DOT, do the
three jobs which Mr. Hartung identified because each job requires
more than occasional contact with others.

The Commissioner

responds that any such conflict was not apparent from the record

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and, therefore, the ALJ had no duty to inquire further than he
did.
Both parties rely on Social Security Ruling (SSR) 00-4p as
setting out the applicable legal standard.

That ruling says, in

part, that “[o]ccupational evidence provided by a VE or VS
generally should be consistent with the occupational information
supplied by the DOT.”

It then imposes a duty on the ALJ to

“elicit a reasonable explanation” for any “apparent unresolved
conflict between VE or VS evidence and the DOT....”

It also

requires an ALJ to “inquire, on the record, as to whether or not
there is such consistency” between the vocational testimony and
the DOT.
Here, the ALJ asked, after Mr. Hartung testified about
certain jobs (not the ones which ultimately ended up being the
subject of the ALJ’s decision), whether that testimony was
consistent with the DOT.

He said that it was.

(Tr. 182-83).

However, once the hypothetical question was changed to include
restrictions on reaching, handling, and fingering, the question
about the DOT was not re-asked.

Mr. Hartung did supply DOT

numbers for each of the occupations he identified, indicating
that the jobs were sedentary and unskilled and required only
occasional use of the upper extremity, but he did not testify
explicitly about the jobs’ requirements for contact with others,
or that his testimony as to those jobs was consistent with the
DOT.

The Commissioner’s memorandum appears not to recognize that

the vocational expert gave additional testimony after being asked
about consistency with the DOT and therefore provides little
argument on the significance of this fact, other than to assert
that any inconsistency between the later testimony and the DOT
was not apparent from the record.

The Commissioner also offers

no substantive response to Plaintiff’s claim that a conflict
actually exists here.

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The Court of Appeals has recognized (albeit in an
unpublished decision) that, as its plain language indicates, SSR
00-4p imposes an affirmative duty on an ALJ to inquire about
conflicts between the DOT and the vocational testimony.
Lancaster v. Comm'r of Social Security, 228 Fed. Appx. 563, 575
(6th Cir. 2007).

That has been followed by most, if not all, of

the District Courts within the Sixth Circuit.

Typically, those

decisions first recognize an affirmative duty to inquire and, if
it is breached, ask, as part of harmless error analysis, whether
there is actually a conflict between the two vocational sources.
If so, the error is not harmless because there is a further need
to explore why the DOT says something different from the
vocational expert.

Stull v. Astrue, 2011 WL 830633 (N.D. Ohio

Jan. 18, 2011) illustrates this approach, quoting this statement
from Bratton v. Astrue, 2010 WL 2901856 (M.D. Tenn. July 19,
2010):

“disposition of this issue rests on a three-step inquiry:

(1) whether the ALJ asked the VE about the DOT; (2) if the ALJ
did not, whether there was an actual conflict between the VE's
testimony and the DOT; and (3) if there was not conflict, whether
failure to ask the VE about the DOT is harmless error.”

Although

Stull found that the error in that case was harmless because the
plaintiff “failed to identify any inconsistency between the VE's
testimony and the DOT,” id. at *9, an approach consistent with
the decision in Lindsley v. Comm’r of Social Security, 560 F.3d
301 (6th Cir. 2009), other courts have remanded cases when there
is an apparent conflict.

See, e.g., Goulette v. Comm’r of Social

Security, 2013 WL 2371695 (E.D. Mich. May 30, 2013).
In this case, Plaintiff has identified a potential conflict,
since the three jobs which the ALJ found that Plaintiff could
perform all require, according to the DOT, “frequent talking.”
Such a requirement may or may not be consistent with having only
occasional contact with the public or with coworkers, but more

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explanation is needed before the Court can determine if the ALJ’s
decision on this issue is supported by substantial evidence.
Since the ALJ did not, after the crucial testimony was given,
make the inquiry required by SSR 00-4p, and because the error is
not harmless, the case must be remanded for further proceedings
on this issue.
B.

Sentence Six Remand

Plaintiff has also moved for a remand under 42 U.S.C.
§405(g), sentence six.

This Court typically chooses not to

address such a request when a remand has already been ordered
under sentence four.

See, e.g., Johnson v. Comm’r of Social

Security, 2016 WL 7208783, *6 (S.D. Ohio Dec. 13, 2016).

It

could be argued, in this case, that because the remand is limited
to a narrow issue about vocational testimony, the Court should
still resolve the sentence six issue.
However, the evidence which Plaintiff claims to be “new and
material” is fairly limited in scope.

Further, if the ALJ

determines that Plaintiff cannot actually do the jobs identified
by the vocational expert, and cannot do other jobs, any issue
under sentence six would be moot.

For these reasons, and in

keeping with the general principle that the Court should decide
only those matters which may actually change the legal
relationship of the parties, the Court declines to address the
merits of the sentence six remand request.

The ALJ is free to

consider Plaintiff’s additional evidence as part of the remand
proceedings.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. §405(g), sentence four.
VIII.

Procedure on Objections

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If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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