Cercoply v. Commissioner of the Social Security Administration

Filing 32

ORDER: It is ORDERED that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further administrative action. Signed by Magistrate Judge Thomas E Rogers, III on 2/22/2013. (gnan )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
NORMAN J. CERCOPLY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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C/A No.: 4:11-02186-TER

ORDER

This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended,
42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of
Social Security, denying, in part, Plaintiff's claim for Disability Insurance Benefits (DIB). The only
issues before the Court are whether the findings of fact are supported by substantial evidence and
whether proper legal standards have been applied. Upon consent of the parties, this case was referred
to the undersigned for the conduct of all further proceedings and the entry of judgment.

I. PROCEDURAL HISTORY
The Plaintiff, Norman Cercoply, filed applications for DIB alleging disability since
September 21, 2009. The applications were denied initially and upon reconsideration. A request for
hearing was timely filed. A hearing was held by an Administrative Law Judge (“ALJ”) on
September 23, 2009. Plaintiff was represented by counsel and testified at the hearing along with a
vocational expert (“VE”). The Administrative Law Judge (ALJ) found in a decision dated
November 19, 2009, that Plaintiff was not disabled within the meaning of the Act prior to September
21, 2009, but that he became disabled as of that date. The Appeals Council denied Plaintiff’s request
for review of the hearing decision. As the Appeals Council denied Plaintiff’s subsequent request for
review of the ALJ’s decision (Tr. 1-8), the ALJ’s decision became the Commissioner’s final

decision for purposes of judicial review under 42 U.S.C. § 405(g). See 20 C.F.R. § 404.981.

II. STATEMENT OF RELEVANT FACTS
Plaintiff was born on September 21, 1954, and was 54 years old on the date of the hearing.
(Tr. 31). Plaintiff has a high school education and past relevant work as a commercial hardware
installer and installation manager.

III. DISABILITY ANALYSIS
The Plaintiff’s argument consists of the following:
(1)

The ALJ failed to resolve fatal conflicts between the VE
testimony and the DOT in Violation of Social Security Ruling
00-4p.

(Plaintiff’s brief).
In the decision of November 19, 2009, the ALJ found the following:
1.

The claimant will meet the insured status requirements of the
Social Security Act through December 31, 2012.

2.

The claimant has not engaged in substantial gainful activity
since the alleged onset date (20 CFR 404.1571 et seq.).

3.

Since the alleged onset date of disability, May 20, 2007, the
claimant has had the following severe impairment: retinal
detachment (20 CFR 404.1520(c)).

4.

Since the alleged onset date of disability, May 20, 2007, the
claimant has not had an impairment or combination of
impairments that met or medically equaled the criteria of one
of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
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capacity to perform light work as defined in 20 CFR
404.1567(b). He is unable to perform work requiring
climbing ropes or ladders, and must avoid moving machinery.
He is unable to perform jobs requiring depth perception, use
of vision on the right side, fine visual acuity and working
within crowds of people.
6.

Since May 20, 2007, the claimant has been unable to perform
any past relevant work (20 CFR 404.1565).

7.

Prior to the established disability onset date, the claimant was
an individual closely approaching advanced age. On
September 21, 2009, the claimant’s age category changed to
an individual of advanced age (20 CFR 404.1563).

8.

The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564).

9.

9. Prior to September 21, 2009, transferability of job skills is
not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills. Beginning on September
21, 2009, the claimant has not been able to transfer job skills
to other occupations (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Prior to September 21, 2009, the date the claimant’s age
category changed, considering the claimant’s age, education,
work experience, and residual functional capacity, their were
jobs that existed in significant numbers in the national
economy that the claimant could have performed (20 CFR
404.1569 and 404.1569a).

11.

Beginning on September 21, 2009, the date the claimant’s age
category changed, considering the claimant’s age, education,
work experience, and residual functional capacity, there are
not jobs that exist in significant numbers in the national
economy that the clamant could perform (20 CFR
404.1560(c) and 404.1566).

12.

The claimant was not disabled prior to September 21, 2009
(20 CFR 404.1520(g)), but became disabled on that date and
has continued to be disabled through the date of this decision
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(20 CFR 404.1520(g)).
(Tr. 18-24).

IV. ANALYSIS
As previously stated, Plaintiff argues that the vocational testimony (“VE”) is contradicted
by the Dictionary of Occupational Titles (DOT) and the ALJ failed to recognize or resolve the
inconsistency. Plaintiff asserts the ALJ prefaced the hypothetical question by instructing the VE
that he would assume the responses to be consistent with the DOT unless the VE informed him
otherwise. The VE named three jobs the Plaintiff could perform based on the hypothetical stating
that they did not require fine visual acuity because they only required a worker to see large items.
(Plaintiff’s brief, p. 13-14). Plaintiff argues that his counsel submitted a post hearing brief to the ALJ
in which he “pointed out that the DOT/SCO job descriptions for the jobs cited by the VE showed
that ‘near acuity’ was required either ‘frequently’ or ‘constantly’; that the jobs required the ability
to read at the rate of 95 to 120 words per minute; and that the jobs required the ability to compare
similarities and differences between words and between series of numbers. (Tr. 224-40).” (Plaintiff’s
brief, p. 14). However, Plaintiff contends that the ALJ completely ignored the argument and
concluded that the jobs cited by the VE could be performed despite the significant visual
impairments posed in the hypothetical question. Plaintiff submitted the deposition of Benson
Hecker, Ph.D., dated March 23, 2011, to the Appeals Council which made it a part of the
administrative record. Dr. Hecker confirmed that the jobs cited by the VE at the hearing could not
be performed with the visual limitations in the ALJ’s RFC findings. Therefore, Plaintiff argues that
there is no substantial evidence to support the ALJ’s conclusion that there was a significant number

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of jobs in the national economy that he could perform before he attained age 55 and that the new
vocational evidence submitted to the Appeals Council shows Plaintiff has been continuously
disabled since May 20, 2007. (Plaintiff’s brief, p. 15). Additionally, Plaintiff requests that this case
be reversed outright as opposed to remanded arguing it would serve no useful purpose to remand
the case as the undisputed facts are fully developed and the vocational evidence, including the
DOT/SCO, show that the ALJ failed to meet her burden of proof at step five of the sequential
evaluation as the ALJ’s own RFC findings would preclude all unskilled work in the national
economy.
Defendant argues that there was no conflict with respect to at least one of the cited jobs1 at
issue. Defendant asserts that the Plaintiff failed to carry his burden of demonstrating he was harmed
by the ALJ’s failure to affirmatively inquire of the VE whether a conflict existed between her
testimony and the DOT. Defendant contends that garment sorter requires sorting finished garments,
such as shirts, dresses, and pajamas, according to tags and labels, and folding and packaging
garments in boxes and bags. Defendants argues as follows
. . . the size of objects Plaintiff could see, rather than the distance at which he could
see them clearly, was obviously the ALJ’s focus in his limitations; and the more
technical near vision, or clarity of vision at 20 inches or less, to which the DOT
refers and which the jobs at issue all require, does not necessarily comport with the
more pragmatic fine acuity, or essentially simply seeing very small things to which
the ALJ and the vocational expert referred and which at least the job of garment
sorter arguably does not significantly require. The mere fact that the DOT does not
address certain job characteristics an ALJ may posit and a vocational expert must
call upon his or her expertise to interpret, does not necessarily establish a conflict
between the two sources, but rather, a void in the DOT’s formation that an ALJ
should be entitled to fill via vocational expert knowledge.
(Defendant’s brief, p. 13).

1

Garment sorter. DOT 222.687-014.
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In reply, Plaintiff argues that the Defendant’s post hac rationalizations should be rejected.
For example, Plaintiff argues that the ALJ never discussed the arguments raised for the first time by
the Defendant that “‘fine visual acuity’ (the ALJ’s RFC finding) is different ‘from near acuity’ (the
DOT visual requirement).” (Plaintiff’s reply brief, p. 2). Additionally, Plaintiff argues that the
Defendant’s detailed argument as to why the visual requirements of the garment sorter job including
reading tags and labels, were not precluded by the ALJ’s RFC finding of no fine visual acuity is also
post hac rationalization as it was not discussed by the ALJ. Plaintiff further asserts that after the
hearing, counsel discovered the discrepancy between the VE testimony and the DOT bringing it to
the ALJ’s attention. However, Plaintiff argues the ALJ failed to re-contact the VE to elicit a
reasonable explanation for the conflict or call a different VE to explain whether Plaintiff could
actually perform the jobs cited, thus failing to meet her burden of proving Plaintiff capable of
performing other work in the national economy before September 21, 2009.
A review of SSR 00-4p reveals that if there is a conflict between the VE testimony and the
DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying upon the
VE evidence to support a decision about whether a claimant is disabled. Specifically, SSR 00-4p
reads as follows:
This Ruling clarifies our standards for the use of vocational experts
(VEs) who provide evidence at hearings before administrative law
judges (ALJs), vocational specialists (VSs) who provide evidence to
disability determination services (DDS) adjudicators, and other
reliable sources of occupational information in the evaluation of
disability claims. In particular, this ruling emphasizes that before
relying on VE or VS evidence to support a disability determination
or decision, our adjudicators must: Identify and obtain a reasonable
explanation for any conflicts between occupational evidence
provided by VEs or VSs and information in the Dictionary of
Occupational Titles (DOT), including its companion publication, the
Selected Characteristics of Occupations Defined in the Revised
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Dictionary of Occupational Titles (SCO), published by the
Department of Labor, and explain in the determination or decision
how any conflict that has been identified was resolved.
(SSR 00-4p).
The ALJ found that in April 2009, Dr. Jablon reported that:
. . . the claimant’s visual acuity in the right eye measured count
fingers, and vision in the left eye measured 20/60. Although the
retina remained attached, there was extensive and permanent retinal
scarring limiting the claimant’s vision. The doctor indicated that the
claimant would be unable to perform activities requiring good acuity
and depth perception, including operating machinery or other
activities in the work place that could be hazardous with poor depth
perception and limited vision. In a subsequent letter dated September
4, 2009 Dr. Jablon added that the claimant was limited in this ability
to read for long periods of time.
(Tr. 21).
The ALJ stated that he gave significant weight to the opinion of Dr. Jablon and that the RFC was
consistent with the statements by Dr. Jablon. (Tr. 22). The ALJ found the Plaintiff has the RFC to
perform light work with the limitations of inability to perform work requiring climbing ropes or
ladders, and must avoid moving machinery, unable to perform jobs requiring depth perception, use
of vision on the right side and fine visual acuity and working within crowds of people. (Tr. 21). The
VE cited three jobs to which the ALJ relied. Dr. Hecker testified in his deposition that based on Dr.
Jablon’s opinion2 which the ALJ gave great weight, Plaintiff would not be able to perform any of

2

Dr. Jablon, Plaintiff’s treating neuro-ophthalmologist, completed a statement dated
September 4, 2009, stating that Plaintiff suffered a retinal detachment in the right eye requiring a
“pars plana vitrectomy, scleral buckle, and intraocular gas placement in May 2007.” (Tr. 358).
Dr. Jablon further opined as follows:
Given his severely distorted vision and legal blindness in the right
eye at the count fingers level, his daily activities are severely limited
from a visual standpoint. He has two disparaging images being sent
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the jobs cited by the VE.
As to the garment sorter3, Dr. Hecker stated that based on his own personal observance of
these jobs, it would require “. . . good visual acuity for spotting blemishes, sizes, shapes. And they
require frequent and constant use of fine and/or gross visual acuity. Eight hours a day, five days a
week, regularly.” (Tr. 369). Even though Plaintiff’s counsel submitted a letter to the ALJ after the
hearing pointing out the inconsistencies, the ALJ did not subsequently question the VE regarding
the inconsistencies in an attempt to resolve them or discuss the inconsistencies in her decision.
Furthermore, additional VE testimony by Dr. Hecker discussing the inconsistencies was presented
to the Appeals Council which was made a part of the record but not discussed by the Appeals
Council. Defendant argues that the ALJ’s visual restriction in his RFC addressed the size of the
object rather than the distance of the object. However, that explanation is not within the ALJ’s

to his brain, one a distorted and different sized image from the right
and the more normal image in the left. Even so, his vision is limited
at 20/60 in the left eye. With these two disparaging images, clearly
he has limited stereopsis and depth perception, In addition, extended
times of focusing and reading are difficult and will remain so given
that we do not expect any further visual recovery in the right eye.
Although I cannot put a word per minute number on his limitation, I
can say that his ability to read for long times is severely lower than
average. In my previous correspondent, I did mention the danger in
him working in any environment that requires good depth perception,
as he is more prone to falls and mistakes while working with
machinery.
(Tr. 358).

3

In the Defendant’s brief, it is admitted that there were conflicts with the two other jobs
(machine tender and sorter) named by the VE. Therefore, the only job remaining that was cited
by the VE is that of garment sorter.
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decision. To that end, it is a post-hoc rationalization, which the Court cannot consider. See
Golembiewski v. Barnhart, 322 F.3d 912, 915-16 (7th Cir.2003) (“[G]eneral principles of
administrative law preclude the Commissioner's lawyers from advancing grounds in support of the
agency's decision that were not given by the ALJ.”); Steel v. Barnhart, 290 F.3d 936 (7th Cir.2002)
(“But regardless whether there is enough evidence in the record to support the ALJ's decision,
principles of administrative law require the ALJ to rationally articulate the grounds for her decision
and confine our review to the reasons supplied by the ALJ.”).
Based on the above, this case is remanded for an explanation as to the conflict, and/or finding
by the ALJ as to whether the occupation of garment sorter is in conflict with the testimony of the
VE. If the ALJ finds there is a conflict, he should resolve the conflict or find that the Plaintiff is
unable to perform any jobs in the national economy.

V. CONCLUSION
Accordingly, pursuant to the power of the Court to enter a judgment affirming, modifying,
or reversing the Commissioner’s decision with remand in social security actions under sentence four
of Sections 205(g) and 1631 (c) (3) of the Social Security Act, 42 U.S.C. Sections 405 (g) and 1338
(c) (3), it is,
ORDERED that the Commissioner’s decision be reversed pursuant to sentence four of 42
U.S.C. § 405(g) and that the case be remanded to the Commissioner for further administrative
action as set out above.
AND IT IS SO ORDERED.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
February 22, 2013
Florence, South Carolina
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