Powell v. Astrue

Filing 17

ORDER adopting Report and Recommendations re 14 . This COURT ORDERS that the Commissioners decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings. Signed by Honorable Joseph F Anderson, Jr on 8/10/2010.(aste)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

M e lis s a Powell,

) ) Plaintiff, ) v. ) ) Michael J. Astrue, Commissioner of ) S o c ia l Security, ) ) D e f e n d a n t. ) ______________________________________ )

C /A No. 6:09-900-JFA-WMC

ORDER

T h e plaintiff, Melissa Powell, brings this action pursuant to 42 U.S.C. § 405(g) to o b tain judicial review of a final decision of the Commissioner of Social Security (C o m m iss io n e r) denying her claim for supplemental security income (SSI) and disability in s u ra n c e benefits (DIB) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 4 0 1 -4 3 3 , 1381-1383c. The Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that the Commissioner's decision to deny benefits s h o u ld be reversed and remanded so that the Administrative Law Judge (ALJ) can present a hypothetical to the Vocational Expert (VE) which more specifically describes the plaintiff's m e n ta l limitations as he finds them. The Report sets forth in detail the relevant facts and

1

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The M a g i s tr a te Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the r e s p o n s i b i l it y to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and t h e court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit th e matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

1

s ta n d a rd s of law on this matter, and the court incorporates such without a recitation. T h e parties were advised of their right to submit objections to the Report and R e c o m m e n d a tio n which was filed on May 4, 2010. The Commissioner has filed objections to the Magistrate Judge's suggestion of remand. PROCEDURAL HISTORY T h e plaintiff applied for DIB and SSI on January 21, 2005 alleging disability as of D e c em b e r 10, 2002 due to degenerative disc disease, diabetes with neuropathy, hypertension, o b e s ity, anxiety, and depression. The plaintiff was 42 years old at the time she alleges d i sa b i lity. She has a high school education and past work experience as a canteen hostess an d assembler. T h e plaintiff's applications were denied initially and on reconsideration. The

A d m in is tra tiv e Law Judge (ALJ) held a hearing on May 12, 2008 and issued a decision on Ju ly 23, 2008, concluding that the claimant was not disabled. Once approved by the Appeals C o u n c il , the ALJ's decision became the final decision of the Commissioner. Plaintiff th e re a fte r filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final d e c is io n of the Commissioner. STANDARD OF REVIEW T h e role of the federal judiciary in the administrative scheme established by the Social S e c u rity Act is narrowly tailored "to determining whether the findings are supported by s u b s ta n tia l evidence and whether the correct law was applied." Walls v. Barnhart, 296 F.3d 2 8 7 , 290 (4th Cir.2002). Section 205(g) of the Act provides, "[t]he findings of the

2

C o m m iss io n e r of Social Security, as to any fact, if supported by substantial evidence, shall b e conclusive ..." 42 U.S.C. § 405(g). The phrase "substantial evidence" is defined as: e v id e n c e which a reasoning mind would accept as sufficient to support a p a rtic u la r conclusion. It consists of more than a mere scintilla of evidence but m a y be somewhat less than a preponderance. If there is evidence to justify a re f u sa l to direct a verdict were the case before a jury, then there is `substantial e v id e n c e .' S h iv e ly v. Heckler, 739 F.2d 987, 989 (4th Cir.1984) (quoting Laws v. Celebrezze, 368 F.2d 6 4 0 , 642 (4th Cir.1966)). In assessing whether there is substantial evidence, the reviewing c o u rt should not "undertake to re-weigh conflicting evidence, make credibility d e te rm in a tio n s , or substitute [its] judgment for that of" the agency. Mastro v. Apfel, 270 F.3d 1 7 1 , 176 (4th Cir.2001) (alteration in original). T h e Commissioner is charged with determining the existence of a disability. The S o c ia l Security Act, 42 U.S.C. §§ 301-1399, defines "disability" as the "inability to engage i n any substantial gainful activity by reason of any medically determinable physical or m e n ta l impairment which can be expected to result in death or which has lasted or can be e x p e c te d to last for a continuous period of not less than 12 months." 42 U.S.C. § 4 2 3 (d )(1 )(A ) (2004). This determination of a claimant's disability status involves the f o llo w in g five-step inquiry: whether (1) the claimant is engaged in substantial activity; (2) th e claimant has a medical impairment (or combination of impairments) that are severe; (3) th e claimant's medical impairment meets or exceeds the severity of one of the impairments listed in Appendix I of 20 C.F.R. Part 404, subpart P; (4) the claimant can perform [his or] h e r past relevant work; and (5) the claimant can perform other specified types of work.

3

J o h n s o n v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir.2005) (citing 20 C.F.R. § 4 0 4 .1 5 2 0 (a)(4 )(i)-(v ) (2005)). If the claimant fails to establish any of the first four steps, review does not proceed to the next step. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1993). The burden of p ro d u c tio n and proof remains with the claimant through the fourth step. However, if the c laim a n t successfully reaches step five, then the burden shifts to the Commissioner to p ro v id e evidence of a significant number of jobs in the national economy that a claimant c o u ld perform. See Walls, 296 F.3d at 290. This determination requires a consideration of " w h e th e r the claimant is able to perform other work considering both his remaining physical a n d mental capacities (defined as residual functional capacity) and his vocational capabilities (a g e , education, and past work experience) to adjust to a new job." Hall v. Harris, 658 F.2d 2 6 0 , 264-65 (4th Cir.1981). If the claimant is found to have the ability to adjust to other w o rk, the Commissioner will not find him disabled. 20 C.F.R. § 404.1520(g)(2). D ISCUSSION T h e ALJ's Findings T h e ALJ found that plaintiff was not disabled. In his decision of July 23, 2008, the A L J found that plaintiff had severe degenerative disc diseases in the lumbar and cervical s p in e s, diabetes mellitus with neuropathy, hypertension, obesity, anxiety, and depression, but th a t she did not have an impairment or a combination of impairments listed in or medically eq u al to one listed in 20 CFR 404, subpt. P, app. 1. The ALJ also found that plaintiff's s u b je c tiv e complaints were not entirely credible and that plaintiff retained the residual

4

fu n ctio n al capacity (RFC) to perform simple, routine, repetitive (unskilled) sedentary work w ith no more than occasional climbing, balancing, stooping, kneeling, crouching, or crawling a n d avoidance of concentrated exposure to hazards. The ALJ determined that although the p la in tif f could not perform her past relevant work, in light of VE testimony and other e v id e n c e of record, there was a significant number of jobs in the national economy that p la in tif f could perform. T h e Magistrate Judge's Report and Recommendations T h e Magistrate Judge finds that there is substantial evidence to support the ALJ's d ec isio n to dismiss the opinion of Dr. Booker, plaintiff's treating physician. This court a g re e s . The Magistrate Judge next suggests that the ALJ erred in determining that plaintiff h a d the RFC to perform the sedentary, unskilled jobs of a sorter and assembler because it a p p e are d that simple, routine, repetitive tasks were a subset of unskilled work, and thus the V E may have responded with jobs which exceed the plaintiff's mental RFC. Specifically, th e Magistrate Judge suggests that there is no way of knowing that the VE equated "unskilled w o r k " with "simple, routine, repetitive" tasks. As such, the VE may have responded with jo b s which exceed the plaintiff's mental RFC as the ALJ found it. T h e Magistrate Judge refers to an Eighth Circuit decision wherein that court noted: T h e Social Security's own list of unskilled sedentary jobs . . . indicates that m a n y jobs within this range require more than the mental capacity to follow s im p le instructions. For each job described, the Dictionary of Occupational T itle s specifies the type of reasoning capabilities the job requires. 2 U.S. Dep't o f Labor, Dictionary of Occupational Titles, 1010-11 (4th ed.1991). For in s ta n c e, a job rated reasoning level one requires the ability to understand and 5

c a rry out simple instructions, whereas a job rated reasoning level two requires th e ability to understand and carry out detailed instructions. Id. at 1011. Many o f the jobs listed require level two reasoning or higher in the unskilled s e d e n ta ry job category. L u c y v. Chater, 113 F.3d 905 (8th Cir. 1997). Thus, the Magistrate Judge concludes that the ALJ should present a hypothetical which more specifically described the plaintiff's m e n ta l limitations as the ALJ finds them. T h e Commissioner takes exception to the Magistrate Judge's suggestion of remand o n this issue. The Commissioner argues that ALJ presented an adequate hypothetical q u estio n to the VE, thoroughly understood by the VE, which fully described plaintiff's m e n ta l limitations. Further, the Commissioner contends that there is no indication in the re c o rd that the VE did not understand the ALJ's hypothetical as posed. The Commissioner also contends that even were the court to find that the Dictionary of Occupational Title's (D O T ) reasoning level for any of the other assemble jobs exceeded a capacity for simple, ro u tin e , repetitive tasks, the decision should be affirmed. C O N C LU S IO N I t is the duty of the ALJ reviewing the case, and not the responsibility of the courts, to make findings of fact and resolve conflicts in the evidence. This court's scope of review is limited to the determination of whether the findings of the Commissioner are supported b y substantial evidence taking the record as a whole, Craig v. Chater, 76 F.3d 585, 589 (4th C ir. 1996), and whether the correct law was applied," Walls v. Barnhart, 296 F.3d 287, 290 (4 th Cir.2002). After a careful review of the record, including the findings of the ALJ, the briefs from 6

the plaintiff and the Commissioner, the Magistrate Judge's Report, and the Commissioner's o b je c tio n s thereto, this court finds that the Magistrate Judge's recommendation is proper. A c c o rd in g ly, this action is reversed and remanded to the Commissioner so that the ALJ may p re se n t a hypothetical to the VE which more specifically describes the plaintiff's mental lim ita tio n s as he finds them. IT IS SO ORDERED.

A u g u st 10, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

7