Green v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge Steven P. Shreder REVERSING and REMANDING the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JOHN CHANCE GREEN,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration, 1
)
)
Defendant.
)

Case No. CIV-15-454-SPS

OPINION AND ORDER
The claimant John Chance Green requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g). He appeals the Commissioner’s decision and asserts the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. For the reasons set forth below,
the Commissioner’s decision is hereby REVERSED and the case REMANDED to the
ALJ for further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the
Social Security Act “only if his physical or mental impairment or impairments are of such
1

On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn Colvin as the Defendant in
this action.

severity that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§
404.1520, 416.920. 2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
2

Step one requires the claimant to establish that he is not engaged in substantial gainful
activity. Step two requires the claimant to establish that he has a medically severe impairment (or
combination of impairments) that significantly limits his ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (RFC) to return to his past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given his age, education, work
experience and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).

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substantiality of evidence must take into account whatever in the record fairly detracts
from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also
Casias, 933 F.2d at 800-01.
Claimant’s Background
The claimant was born September 16, 1966, and was forty-seven years old at the
time of the administrative hearing (Tr. 112). He completed the twelfth grade, and has
worked as a truck driver (Tr. 105, 114). The claimant alleges he has been unable to work
since an amended onset date of October 2, 2012, due to amblyopia, injury to right knee,
arthritis in the right leg, gout, and back problems (Tr. 91, 282).
Procedural History
On October 5, 2012, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434. His application was denied.
ALJ Bernard Porter held an administrative hearing and found that the claimant was not
disabled in a written opinion dated September 9, 2014 (Tr. 89-107).

The Appeals

Council denied review, so the ALJ’s opinion is the final decision of the Commissioner
for purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (RFC) to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a), i. e., that he could lift/carry/push/pull ten pounds
occasionally and five pounds frequently, sit for up to six hours in an eight-hour workday,
and stand/walk up to two hours per day, but that he required a sit/stand option which
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allowed for a change of position at least every thirty minutes, defined as a brief positional
change lasting no more than three to four minutes at a time. Additionally, the ALJ
determined that the claimant could occasionally use hand controls, use right lower
extremity for foot controls, climb ramps and stairs, and kneel; frequently handle, finger,
feel, balance, stoop, and crawl; but that he could not climb ladders or scaffolds, nor could
he crawl [the ALJ listed crawling twice]. Additionally, the ALJ found that the claimant
was unable to read very small print, but could read ordinary newspaper or book-style
print, that he should not work around unprotected heights or moving mechanical parts,
and that he should avoid environments with temperature extremes. Finally, the ALJ
limited the claimant to simple tasks and simple work-related decisions, having no more
than occasional interaction with supervisors, co-workers, and the public, and that time off
task would be accommodated by normal breaks (Tr. 94).

The ALJ concluded that

although the claimant could not return to his past relevant work, he was nevertheless not
disabled because there was work he could perform, e. g., document preparer, touch-up
screener, and semi-conductor bonder (Tr. 105-106).
Review
The claimant argues on appeal that the ALJ erred by failing to meet his step five
burden when he failed to demonstrate the existence of work the claimant was capable of
and failed to resolve conflicts between the vocational expert’s testimony and the
Dictionary of Occupational titles. The Court agrees with the claimant’s contentions, and
the Commissioner’s decision must therefore be reversed and the case remanded for
further proceedings.
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At the administrative hearing, the ALJ elicited testimony from a VE to determine
if the claimant could perform his past relevant work or if there were other jobs the
claimant could perform with his limitations.

He posed a number of hypothetical

questions requiring the VE to assume various limitations and identify the work someone
with such limitations could perform. First, the ALJ posited an individual with the age,
education, and work history of the claimant, who was
limited to less than a full range of light work, with the ability to lift and
carry 20 pounds occasionally, 10 pounds frequently, can sit for up to six
hours, can stand up to six hours, and can walk up to six hours, can push and
pull as much as they can lift and carry. They’re limited to the occasional
use of hand controls, and they’re limited to the occasional use of their right
lower extremity for foot control. They’re also limited to frequent handling,
fingering, and feeling, occasional climbing of . . . ramps and stairs, no
climbing of ladders or scaffolds. They’re also limited to frequent
balancing, frequent stooping, occasional kneeling, frequent crouching,
never crawling. Unable to read very small print, but could read ordinary
newspaper or book style print. They should not work around unprotected
heights and moving mechanical parts. They should avoid environments
where there are temperature extremes. They’re also limited to simple tasks
and simple work-related decisions, and should have no more than
occasional interaction with supervisors, coworkers, and the public. Time
off task would be accommodated by normal breaks.
(Tr. 148). The VE testified that such an individual would not be able to perform his past
relevant work, then identified three light, unskilled jobs such a person could perform:
(i) small product assembler, DICOT § 706.684-022; (ii) conveyor line baker worker,
DICOT § 524.687-022; and (iii) motel housekeeper, DICOT § 323.687-014 (Tr. 51-52).
The next hypothetical posited an individual with all the same requirements as the first
hypothetical, with the additional limitation of requiring a sit/stand option which allows
for change of position at least every thirty minutes (Tr. 149). The VE testified that such a

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person could perform the previously identified positions of small products assembler and
conveyor line bakery worker, but she reduced the number of available jobs by 50%, and
she eliminated the job of housekeeper (Tr. 149-150).

Finally, the ALJ proposed a

hypothetical where the individual would be limited to sedentary work but otherwise
adopted the two previous hypotheticals (Tr. 150). The VE testified that such a person
could still perform the sedentary, unskilled jobs of: (i) document preparer, DICOT §
249.587-018; (ii) touch-up screener, DICOT § 726.684-110; and (iii) semi-conductor
bonder, DICOT § 726.685-066 (Tr. 150-151).

Additionally, the ALJ elicited no

testimony from the VE about whether any of the jobs she identified were consistent with
the job descriptions contained in the Dictionary of Occupational Titles (“DOT”) (Tr. 146151).
In his written decision, the ALJ determined that the claimant’s RFC included the
limitations from the third hypothetical posed to the VE (Tr. 94). He then adopted the
VE’s testimony that the claimant could perform the sedentary jobs of document preparer,
touch-up screener, and semi-conductor bonder (Tr. 106).

Furthermore, the ALJ

specifically found that the VE’s “testimony [wa]s consistent with the information
contained in the [DOT]” (Tr. 106).
Under Social Security Ruling 00-4p, "When vocational evidence provided by a
VE or VS is not consistent with information in the DOT, the [ALJ] must resolve this
conflict before relying on the VE or VS evidence to support a determination or decision
that the individual is or is not disabled. The [ALJ] will explain in the determination or
decision how he or she resolved the conflict. The [ALJ] must explain the resolution of
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the conflict irrespective of how the conflict was identified." 2000 WL 1898704, at *4
(Dec. 4, 2000) [emphasis added]. Although the ALJ made a finding that there was no
conflict between the VE’s testimony and the DOT, there is a conflict that the ALJ was
required to resolve. See Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999) (“[T]he
ALJ must investigate and elicit a reasonable explanation for any conflict between the
[DOT] and expert testimony before the ALJ may rely on the expert’s testimony as
substantial evidence to support a determination of nondisability.”).
The ALJ should undoubtedly have asked the VE whether there was any conflict
between her testimony and the DOT before concluding that there was none, because
“[w]hen vocational evidence provided by a VE or VS is not consistent with information
in the DOT, the [ALJ] must resolve this conflict before relying on the VE or VS evidence
to support a determination or decision that the individual is or is not disabled. The [ALJ]
will explain in the determination or decision how he or she resolved the conflict. The
[ALJ] must explain the resolution of the conflict irrespective of how the conflict was
identified.” Soc. Sec. Rul. 00-4p, 2000 WL 1898704, at *4. The ALJ’s failure to do this,
however, would be harmless error if there were in fact no conflicts between the VE’s
testimony and the DOT, see Poppa v. Astrue, 569 F.3d 1167, 1173 (10th Cir. 2009)
(“Although we agree that the ALJ erred by not inquiring about whether there were any
conflicts between the VE’s testimony about the job requirements for the jobs identified
and the job descriptions in the DOT, we conclude that this error was harmless because
there were no conflicts.”), but the error was not harmless here because there are conflicts
that the ALJ should have resolved.
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Here, a conflict exists with all three of the jobs identified by the VE, in relation to
the claimant’s visual impairment and the ALJ’s assessed RFC. The DOT description for
all two of the identified jobs requires frequent near acuity in vision, where “frequent” is
defined as existing from 1/3 to 2/3 of the time. See DICOT §§ 249.587-018 (document
prepaper), 726.685-066 (semi-conductor bonder). Additionally, the third job identified,
touch-up screener, requires constant near acuity in vision, where “constant” is defined as
existing 2/3 or more of the time. See DICOT § 726.684-110. Moreover, the job of semiconductor bonder also requires frequent depth perception and accommodation.
DICOT § 726.685-066.

See

The claimant contends that the ALJ’s RFC finding that the

claimant was “unable to read very small print, but can read ordinary newspaper or bookstyle print” is incompatible with these requirements of frequent or constant near visual
acuity because the Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles defines “near acuity” as “clarity of vision at 20 inches
or less.” App. C., No. 15. Additionally, the job of document preparer requires an
individual, as part of their duties, to “[r]eproduce[] document pages as necessary to
improve clarity or to reduce one or more pages into single page of standard microfilming
size[.]” DICOT § 249.687-018. The job of touch-up screener requires an individual to
“inspect[] printed circuit board assemblies for defects, such as missing or damaged
components, loose connections, or defective solder [using a] magnification lamp[.]”
DICOT § 726.684-110.

Finally, the semi-conductor bonder position requires an

individual to “observe[] package, using microscope or equipment display screen, to
ensure connections to be bonded are aligned with bonding wire.” DICOT § 726.685-066.
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The Court agrees that these requirements raise numerous questions regarding the
claimant’s ability to actually perform the jobs identified. Given the disparity of vision in
the Plaintiff’s eyes and the documented loss of vision in one eye that requires the other
eye to compensate, the claimant may not be able to perform these job, and it is not clear
that they conform to the claimant’s RFC. As noted above, in this circuit “the ALJ must
investigate and elicit a reasonable explanation for any conflict between the [DOT] and
expert testimony before the ALJ may rely on the expert’s testimony as substantial
evidence to support a determination of nondisability.” Haddock, 196 F.3d at 1091.
Here, the ALJ did nothing to resolve the apparent conflicts between the VE’s
testimony and the DOT, and was therefore not entitled to rely on the VE’s testimony as
substantial evidence. Accordingly, the Commissioner’s decision must be reversed and
the case remanded for further proceedings. On remand, the ALJ should resolve any
conflicts between the VE’s testimony and the DOT and determine what impact, if any,
such resolution has on the issue of the claimant’s disability.
Conclusion
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 22nd day of March, 2017.
______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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