Hamm v. Commissioner of the Social Security Administration
Filing
26
ORDER RULING ON REPORT AND RECOMMENDATION: The Court respectfully overrules Plaintiff's objections and adopts and incorporates herein the MagistrateJudge's R&R. The Commissioner's decision is hereby AFFIRMED. Signed by Honorable R Bryan Harwell on 2/11/2016. (gnan )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Sharon Renee Hamm,
)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
____________________________________)
Civil Action No.: 4:14-cv-03590-RBH
ORDER
This matter is before the Court following the issuance of a Report and Recommendation
(“R&R”) by United States Magistrate Judge Thomas E. Rogers.1 Plaintiff, Sharon Renee Hamm,
brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the
Commission of Social Security (“the Commissioner”) denying Plaintiff’s claim for Disability
Insurance Benefits (“DIB”). The Magistrate Judge recommended affirming the administrative law
judge’s decision denying Plaintiff’s claim for benefits.
FACTUAL FINDINGS AND PROCEDURAL HISTORY
Plaintiff applied for DIB on March 5, 2012, alleging disability as of February 1, 2012. The
application was denied initially and on reconsideration. Plaintiff then requested a hearing before an
administrative law judge (“ALJ”). A hearing was held before the ALJ on August 20, 2013.
Plaintiff, represented by an attorney, appeared and testified. A vocational expert also testified. The
ALJ issued a decision on September 17, 2013, finding that Plaintiff was not disabled. The ALJ’s
findings are as follows:
1
This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2).
1.
The claimant meets the insured status requirements
of the Social Security Act through December 31,
2015.
2.
The claimant has not engaged in substantial gainful
activity since February 1, 2012, the alleged onset
date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments:
bilateral carpal tunnel syndrome; major depressive
disorder; anxiety disorder; and post traumatic stress
disorder (PTSD). (20 C.F.R. 404.1520(c)).
4.
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 404.1520(d), 404.1525, 404.1526).
5.
After careful consideration of the entire record, I
find that the claimant has the residual functional
capacity to perform medium work as defined in 20
CFR 404.1567(c) with the following additional
limitations: frequently to use her bilateral upper
extremities for pushing and pulling; never to climb
ladders, ropes, and scaffolds; to perform only
simple, routine, repetitive tasks; and to have
occasional interaction with the public and
coworkers.
6.
The claimant is capable of performing past relevant
work as a warehouseman and a packer/hand
packager. This work does not require the
performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR
404.1565).
7.
The claimant has not been under a disability, as
defined in the Social Security Act, from February 1,
2012, through the date of this decision (20 CFR
404.1520(f)).
[ALJ Decision, ECF #9-2, at 16-21, Tr. 15-20].
2
The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review on August 22, 2014. Plaintiff filed this action
on September 9, 2014, seeking judicial review of the ALJ’s decision. [Compl., ECF #1]. Both
Plaintiff and Defendant filed briefs, [ECF ## 14, 16 & 17]. The Magistrate Judge issued his Report
and Recommendation (“R&R”) on December 23, 2015, recommending that the ALJ’s decision be
affirmed. [R&R, ECF #20]. Plaintiff filed timely objections to the R&R on January 11, 2016.
[Plaintiff’s Objections, ECF #22]. Defendant filed a reply to Plaintiff’s objections but did not
specifically address Plaintiff’s arguments.
STANDARD OF REVIEW
The federal judiciary has a limited role in the administrative scheme established by the Act,
which provides the Commissioner’s findings “shall be conclusive” if they are “supported by
substantial evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable
times as more than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541,
543 (4th Cir. 1964). Substantial evidence “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).
This statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157,
1157-58 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must
uphold the Commissioner’s factual findings “if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472
(4th Cir. 2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even
3
if the Court disagrees with the Commissioner’s decision, the Court must uphold the decision if
substantial evidence supports it). This standard of review does not require, however, mechanical
acceptance of the Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969).
The Court “must not abdicate [its] responsibility to give careful scrutiny to the whole record to
assure that there is a sound foundation for the [Commissioner]’s findings, and that [her] conclusion
is rational.” Vitek, 438 F.2d at 1157-58.
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct
a de novo review of those portions of the R & R to which specific objections are made, and it may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review
when a party makes only “general and conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the
Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge’s
recommendation. Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
4
APPLICABLE LAW
Under the Act, Plaintiff’s eligibility for the benefits he is seeking hinges on whether he is
under a “disability.” 42 U.S.C. § 423(a). The Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). The claimant bears the
ultimate burden to prove disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The
claimant may establish a prima facie case of disability based solely upon medical evidence by
demonstrating that his impairments meet or equal the medical criteria set forth in Appendix 1 of
Subpart P of Part 404 of Title 20 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d) &
416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of
disability by proving he could not perform his customary occupation as the result of physical or
mental impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This
approach is premised on the claimant’s inability to resolve the question solely on medical
considerations, and it is therefore necessary to consider the medical evidence in conjunction with
certain vocational factors. 20 C.F.R. §§ 404.1560(a) & § 416.960(a). These factors include the
claimant’s (1) residual functional capacity, (2) age, (3) education, (4) work experience, and (5) the
existence of work “in significant numbers in the national economy” that the individual can perform.
Id. §§ 404.1560(a), 404.1563, 404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964,
416.965, & 416.966. If an assessment of the claimant’s residual functional capacity leads to the
conclusion that he can no longer perform his previous work, it then becomes necessary to determine
5
whether the claimant can perform some other type of work, taking into account remaining
vocational factors. Id. §§ 404.1560(c)(1) & 416.960(c)(1). Appendix 2 of Subpart P governs the
interrelation between these vocational factors. Thus, according to the sequence of evaluation
suggested by 20 C.F.R. §§ 404.1520 & 416.920, it must be determined (1) whether the claimant
currently has gainful employment, (2) whether he suffers from a severe physical or mental
impairment, (3) whether that impairment meets or equals the criteria of Appendix 1, (4) whether, if
those criteria are met, the impairment prevents him from returning to previous work, and (5)
whether the impairment prevents him from performing some other available work.
ANALYSIS
In this appeal from the ALJ’s decision denying Plaintiff’s claim for DIB, Plaintiff raised
three issues arguing: 1) the ALJ’s finding that Plaintiff could return to her past relevant work is not
supported by substantial evidence; 2) the ALJ erred in failing to comply with the requirements of
Social Security Rulings 82-62 and 00-4p; and 3) the ALJ did not consider all of Plaintiff’s
impairments and their combined effect on her ability to sustain gainful activity. The Magistrate
Judge found that substantial evidence supported the ALJ’s finding that Plaintiff could return to her
past relevant work. The Magistrate Judge further found that the ALJ properly applied Social
Security Rulings 82-62 and 00-4p and also properly considered the combined effect of Plaintiff’s
impairments in assessing her RFC. Plaintiff objected to the Magistrate Judge’s findings that the
ALJ properly complied with Social Security Ruling 82-62. Plaintiff also objected to the Magistrate
Judge’s finding that the ALJ properly considered and explained the combined effect of all of
Plaintiff’s impairments, both severe and non-severe.
6
Social Security Ruling 82-62
Plaintiff argues the ALJ failed to comply with SSR 82-62 in that the ALJ failed to make a
specific finding of fact concerning the mental demands of Plaintiff’s past jobs/occupations. Plaintiff
argues that reliance on the vocational expert’s recital of the DOT definitions of occupations does not
satisfy the legal requirement of SSR 82-62. Plaintiff further argues that without a specific finding of
fact regarding the mental demands of Plaintiff’s prior jobs regarding interaction with co-workers
and supervisors, it is not possible to determine if an individual who has moderate difficulties in
social functioning and limited to only occasional interaction with co-workers could perform her past
relevant work.
Social Security Ruling 82-62 provides, in part, that, “[i]n finding that an individual has the
capacity to perform a past relevant job, the determination or decision must contain among the
findings the following specific findings of fact:
1.
A finding of fact as to the individual’s RFC.
2.
A finding of fact as to the physical and mental demands of the past job/occupation.
3.
A finding of fact that the individual’s RFC would permit a return to his or her past
job or occupation.”
SSR 82-62. In 2003, the Regulations were amended to provide expressly for reliance on the
testimony of a vocational expert in determining whether a claimant is able to perform his past
relevant work. See 68 F.R. 51153, 2003 WL 22001943 (26 Aug. 2003) (adding (b)(2) to 20 C.F.R. §
404.1560). The relevant provision reads:
We may use the services of vocational experts or vocational
specialists, or other resources, such as the [DOT] and its
companion volumes and supplements [e.g., Selected
7
Characteristics of Occupations Defined in the Revised Dictionary
of Occupational Titles (“SOC”) ], published by the Department of
Labor, to obtain evidence we need to help us determine whether
you can do your past relevant work, given your [RFC]. A
vocational expert or specialist may offer relevant evidence within
his or her expertise or knowledge concerning the physical and
mental demands of a claimant's past relevant work, either as the
claimant actually performed it or as generally performed in the
national economy. Such evidence may be helpful in
supplementing or evaluating the accuracy of the claimant's
description of his past work. In addition, a vocational expert or
specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and
mental limitations imposed by the claimant's medical
impairment(s) can meet the demands of the claimant's previous
work, either as the claimant actually performed it or as generally
performed in the national economy.
20 C.F.R. § 404.1560(b)(2). Thus, an ALJ may properly rely on the testimony of a vocational expert
in lieu of himself describing the physical and mental demands of the past job. See, e.g., Collier v.
Astrue, No. 7:11–CV–68–D, 2012 WL 3095099, at *11 (E.D.N.C.22 June 2012), mem. & recomm.
adopted by 2012 WL 3095325 (30 July 2012); Lybrand v. Astrue, No. 3:10–2293–JFA–JRM, 2012
WL 762092, at *4 (D.S.C. 8 Feb. 2012), rep. & recomm. adopted by 2012 WL 762088 (7 Mar.
2012).
In this case, the vocational expert testified as to Plaintiff’s past relevant work as a
warehouseman (DOT #922.687-058) and a packer/hand packager (DOT #920.587-018). The
vocational expert testified that the prior occupations were defined in the Dictionary of Occupational
Titles as being unskilled medium work. The ALJ asked the vocational expert whether a person of
Plaintiff’s age, education, past work experience, with a medium residual functional capacity, who
can frequently push and pull with both upper extremities but can never climb ladders, ropes,
scaffolds, and is also limited to simple, repetitive tasks and only occasional interaction with the
8
general public and co-workers, could perform either of Plaintiff’s past jobs. Tr. 46. The vocational
expert testified that under the ALJ’s hypothetical, a person could perform Plaintiff’s past relevant
work. Tr. 46. The ALJ found the vocational expert’s testimony to be fully credible and adopted his
findings. Tr. 20. Based on the vocational expert’s testimony, the ALJ stated “[i]n 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 it is actually and generally performed.”
Tr. 20.
The vocational expert testified that a person with the physical and mental limitations
imposed by the Plaintiff’s medical impairments could meet the demands of Plaintiff’s past relevant
work. Pursuant to 20 C.F.R. § 404.1560(b)(2), the ALJ properly relied on and adopted the
vocational expert’s testimony thereby satisfying the requirements of SSR 82-62. To the extent the
ALJ erred in failing to specifically discuss the mental demands of Plaintiff’s past relevant work, the
error was harmless. Based on the vocational expert’s testimony and the ALJ’s reliance on that
testimony, the Court concludes that the ALJ's determination at step four that Plaintiff could perform
past relevant work is supported by substantial evidence.
Combined Effect of Impairments
Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly considered and
explained the combined effect of all of Plaintiff’s impairments, both severe and non-severe.
Plaintiff argues the ALJ’s decision contains no discussion of how Plaintiff’s obesity impacted her
ability to mentally function. Plaintiff further argues the ALJ’s decision contains no discussion of
the combined effects of Plaintiff’s mental impairments on her ability to meet the demands of gainful
employment.
9
Under 20 C.F.R. § 404.1523, the ALJ must consider the combined effect of all impairments
without regard to whether any such impairment, if considered separately, would be of sufficient
severity. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.1989) (“[I]n evaluating the effect [ ] of
various impairments on a disability benefit claimant, the [Commissioner] must consider the
combined effect of a claimant's impairments and not fragmentize them.”). Under Fourth Circuit
precedent, the ALJ has also been instructed to “adequately explain his evaluation of the combined
effects of the impairments.” Walker, 889 F.2d at 50 (citing Reichenbach v. Heckler, 808 F.2d 309,
312 (4th Cir.1985)). The adequacy requirement of Walker is met if it is clear from the decision as a
whole that the Commissioner considered the combined effect of a claimant's impairments. Brown v.
Astrue, C/A 0:10-cv-1584-RBH, 2012 WL 3716792, at *6 (D.S.C. Aug. 28, 2012).
Here, the decision as a whole indicates that the ALJ properly considered the combined
effects of Plaintiff’s impairments. When considering the Plaintiff’s RFC, the ALJ stated that he had
considered all of the Plaintiff’s symptoms and specifically accounted for Plaintiff’s bilateral carpal
tunnel syndrome, non-severe hypertension and obesity, major depressive disorder, anxiety disorder,
and post traumatic stress disorder. Tr. 18-20. The ALJ also stated in the boilerplate portions of the
decision that she considered Plaintiff’s “combination of impairments” and “the entire record.” Tr.
16, 18. While the ALJ could have discussed more thoroughly the combined effect of Plaintiff’s
impairments, such error is harmless where, as here, Plaintiff has failed to show that further
consideration would have produced a different result. See, e.g., Wright v. Astrue, 2011 WL
5403104, at *7–8 (D.S.C. Oct.18, 2011) (affirming decision where ALJ stated he considered the
plaintiff's combination of impairments and discussed each impairment at some point in the decision,
and where Plaintiff did not offer any reason to conclude that further consideration would have
10
produced a different result), report and recommendation adopted, Nov. 8, 2011, 2011 WL 5403070.
Plaintiff’s objection is overruled.
CONCLUSION
The Court has thoroughly reviewed the entire record as a whole, the briefs, the Magistrate
Judge’s R&R, Plaintiff’s objections to the R&R, and applicable law. For the foregoing reasons, the
Court respectfully overrules Plaintiff’s objections and adopts and incorporates herein the Magistrate
Judge’s R&R as indicated above. The Commissioner’s decision is hereby AFFIRMED.
IT IS SO ORDERED.
February 11, 2016
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
11
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?