Patton v. Astrue
Filing
104
ORDER granting in part 99 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 2/28/18. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 10-5016-JLV
MAYDA J. PATTON,
Plaintiff,
ORDER
vs.
NANCY A. BERRYHILL,1 Acting
Commissioner, Social Security
Administration,
Defendant.
INTRODUCTION
On September 5, 2006, plaintiff Mayda J. Patton applied for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f (2006),
respectively. (Administrative Record, pp. 12, 101-07).2 Following an adverse
decision, Ms. Patton timely filed her complaint in district court. (Docket 1). On
November 28, 2011, the court entered an order vacating the decision of the
Commissioner and remanding Ms. Patton’s case for a new hearing. (Docket 32).
The court retained jurisdiction pursuant to sentence six of 42 U.S.C. § 405(g).
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d), Ms. Berryhill is
automatically substituted for Carolyn W. Colvin as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
1
2The
court will cite to information in the administrative record by
referencing “AR at p. ____.”
Id. at p. 12. On July 8, 2016, the Commissioner filed a motion to reopen the
case. (Docket 91). The Commissioner reported that on January 13, 2016, an
administrative law judge (“ALJ”) “issued a partially favorable decision, finding
[Ms. Patton] disabled beginning December 29, 2014, for purposes of DIB and
SSI.” (Docket 92 ¶ 4). The court granted the motion to reopen the case.
(Docket 95). Ms. Patton filed a motion seeking reversal of the decision of the
Commissioner and requesting an order for calculation and payment of benefits.
(Docket 99). Ms. Patton seeks DIB and SSI benefits for the time period August
8, 2006, through December 28, 2014, and asks the court to require the
Commissioner to compute benefits.3 (Docket 100). For the reasons stated
below, plaintiff’s motion to reverse the decision of the Commissioner is granted in
part.
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard v. Massanari, 255 F.3d
577, 580 (8th Cir. 2001). The court reviews the Commissioner’s decision to
determine if an error of law was committed. Smith v. Sullivan, 982 F.2d 308,
311 (8th Cir. 1992). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the
Ms. Patton does not challenge the portion of the Commissioner’s decision
finding her disabled as of December 29, 2014. (Docket 99).
3
2
Commissioner’s conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir.
2006) (internal citation and quotation marks omitted).
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever in
the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917,
920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001)).
It is not the role of the court to re-weigh the evidence and, even if this court
would decide the case differently, it cannot reverse the Commissioner’s decision
if that decision is supported by good reason and is based on substantial
evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A
reviewing court may not reverse the Commissioner’s decision “ ‘merely because
substantial evidence would have supported an opposite decision.’ ” Reed,
399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
Issues of law are reviewed de novo with deference given to the Commissioner’s
construction of the Social Security Act. See Smith, 982 F.2d at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and entitled
to SSI benefits under Title XVI. 20 CFR § 416.920(a).4 If the ALJ determines a
The criteria under 20 CFR § 416.920 are the same under 20 CFR
§ 404.1520. Boyd v. Sullivan, 960 F.2d 733, 735 (8th Cir. 1992). All further
references will be to the regulations governing disability insurance benefits,
unless otherwise specifically indicated.
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3
claimant is not disabled at any step of the process, the evaluation does not
proceed to the next step as the claimant is not disabled. Id. The five-step
sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience);
(4) whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant can
perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). Each of the ALJs
involved in Ms. Patton’s case applied the five-step sequential evaluation required
by the Social Security Administration regulations.5
FACTUAL AND PROCEDURAL HISTORY
On June 8, 2016, the Commissioner moved “to reopen . . . the case in
accordance with sentence six of 42 U.S.C. § 405(g).” (Docket 91). Ms. Patton
filed a motion seeking to reverse in part the decision of the Commissioner and
requested an order for calculation and payment of benefits. (Docket 99). The
court granted the Commissioner’s motion and established a briefing schedule.
(Docket 95). The parties filed their joint statement of material facts (“JSMF”).
(Docket 98 at pp. 1-161). The parties’ JSMF are incorporated by reference.
A total of five ALJs were involved in Ms. Patton’s case. For clarity, they
will be referred to by number and not by name.
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4
The parties also filed a joint statement of disputed facts (“JSDF”).6 (Docket
98-1).
Ms. Patton’s case has a long and protracted history. The court will
identify the principal steps along the way in this nearly 12-year-old case.
On September 5, 2006, Ms. Patton applied for DIB and SSI benefits.
(Docket 98 ¶ 1). On April 2, 2009, ALJ #1 found at step one that Ms. Patton had
“not engaged in substantial gainful activity since August 8, 2006 . . . .” (AR at
p. 15) (bold omitted). At step two, ALJ #1 found she had “the following severe
impairments: memory impairment with borderline intellectual functioning;7
depressive syndrome;8 diabetes mellitus; asthma . . . .” Id. (bold omitted). At
step four, ALJ #1 found Ms. Patton had “the physical residual functional
capacity to perform light work9 . . . [and] the mental residual functional capacity
The parties dispute the interpretation of the testimony of Michael Enright,
Ph.D. (Docket 98-1). The court finds the JSDF are factually accurate as
contained in the administrative record and the testimony of Dr. Enright will be
referenced where appropriate.
6
Ms. Patton has “a full scale IQ of 76, indicating borderline general
intelligence.” (Docket 98 ¶ 270; see also Docket 98-1 ¶ 2).
7
“The principal types of depression are major depression, dysthymia, and
bipolar disease (also called manic-depressive disease).” MedicineNet.com.
8
“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities.” 20 CFR § 404.1567(b).
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5
[“RFC”]to perform simple repetitive, routine, unskilled work with no assembly
line and no quota or pace requirements.” Id. at p. 17 (bold omitted); see also
Docket 98 ¶ 9. ALJ #1 found Ms. Patton was “capable of performing past
relevant work as a fast food worker10 and Cashier II . . . . [and] not under a
disability . . . from August 8, 2006 through [April 2, 2009].” (AR at p. 20).
Following an adverse decision, Ms. Patton timely filed her complaint in district
court. (Docket 1).
On November 28, 2011, the court entered an order vacating the decision of
the Commissioner and remanding for new hearing. (Docket 32). In summary,
the court remanded the case to the Commissioner because ALJ #1 failed to
request and consider approximately one hundred pages of Ms. Patton’s medical
records. Id. at p. 11. The court retained jurisdiction “pursuant to sentence six
of 42 U.S.C. § 405(g).” Id. at p. 12. The court required the Commissioner to
“file [] status report[s] . . . as to the progress of the case on remand.”11 (Docket
34).
Following remand, ALJ #2 conducted a hearing on December 19, 2012, at
which two medical experts testified. (Docket 98 ¶ 15). ALJ #2 issued an
unfavorable decision on January 17, 2013. Id. ¶ 31. At step one, ALJ #2 again
found that Ms. Patton had “not engaged in substantial gainful activity since
10
This was Ms. Patton’s “current part-time job.” (Docket 98 ¶ 10).
Over the course of the next three and one-half years, the Commissioner
filed 45 status reports. (Dockets 35-40, 43-47, 49-58, 60-63 & 70-91).
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6
August 8, 2006 . . . .” (AR at p. 626) (bold omitted). At step two, ALJ #2 found
Ms. Patton had “the following severe impairments: diabetes, mild degenerative
disk disease of the lumbar spine, a history of right knee surgery, obesity,
asthma, hypertension, depression and borderline intellectual functioning . . . .”
Id. at p. 627 (bold omitted). ALJ #2 found at step four, Ms. Patton had “the
residual functional capacity to perform sedentary work12 . . . and can
understand, remember and carry out simple instructions.” Id. at p. 630.
However, at step five, ALJ #2 found Ms. Patton retained the capacity to “perform
light jobs.” (Docket 98 ¶ 33) (emphasis in original) (referencing AR at p. 644).
The “representative occupations” consisted of the following:
[C]ashier II . . . with 100,000 such jobs in the U.S. and 4,000 South
Dakota, with a 25% erosion in the incidence of such jobs due to the
claimant’s restrictions; merchandise marker . . . with 700,000 such
jobs in the U.S. and 2,200 in South Dakota; and collator operator
. . . with 50,000 such jobs in the U.S. and 100 in South Dakota.
(AR at p. 644).
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 CFR § 404.1567(a). “Occasional” is defined as
“occurring from very little up to one-third of the time, and would generally total
no more than about 2 hours of an 8-hour workday.” Titles II & XVI:
Determining Capability to Do Other Work—Implications of a Residual Functional
Capacity for Less than a Full Range of Sedentary Work, SSR 96-9p (S.S.A 1996);
see also Titles II & XVI: Determining Capability to Do Other Work—The MedicalVocational Rules of Appendix 2, 1983-1991, SSR 83-10 (S.S.A. 1983). The
amount of sitting required in a sedentary job, “would generally total about
6 hours of an 8-hour workday.” SSR 96-9p.
12“
7
Ms. Patton timely filed exceptions with the Appeals Council. (Docket
98 ¶ 34). On May 7, 2013, “the Appeals Council assume[d] jurisdiction for
further administrative proceedings on the issue identified by the District Court.”
(Docket 41-1 at p. 3).13 The Appeals Council vacated the decision of ALJ #2 and
remanded Ms. Patton’s case to an ALJ to resolve the following issue:
The step 5 conclusion is not supported by substantial evidence. In
finding the claimant capable of performing jobs that exist in
significant numbers in the national economy, the decision cited
representative occupations that exceed the claimant’s residual
functional capacity.
In the residual functional capacity, the
hearing decision found the claimant capable of, in part, lifting up to
10 pounds and standing and/or walking for 2 hours in an 8-hour
workday.
(Decision, page 8).
However, all three of the
representative occupations (cashier II, merchandise marker, and
collator operator) are performed at the light exertional level. In fact,
an audit of the hearing recording reveals that the vocational expert
provided these jobs in response to the first hypothetical that
described an individual who can, in part, lift and carry 20 pounds
occasionally, 10 pounds frequently, and stand/walk for 6 hours in
an 8-hour workday. When posed with a hypothetical consistent
with the claimant’s residual functional capacity, the vocational
expert testified that an individual could not perform any of the jobs
noted above. Further evaluation is required.
Id. at pp. 3-4. The Appeals Council ordered on remand that an ALJ develop the
following:
Obtain supplemental evidence from a vocational expert to clarify the
effect of the assessed limitations on the claimant’s occupational
base . . . . The hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The
Administrative Law Judge will ask the vocational expert to identify
examples of appropriate jobs and to state the incidence of such jobs
in the national economy (20 CFR 404.1566 and 416.966). . . .
The court cites to the page of a document as filed in CM/ECF and not to
the internal page of the document itself.
13
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Id. at p. 4. The ALJ was directed to offer Ms. Patton “the opportunity for a
hearing, take any further action needed to complete the administrative record
and issue a new decision.” Id.
On July 12, 2013, ALJ #2 issued an unfavorable decision.14 (Docket
98 ¶ 38). ALJ #2 again found that Ms. Patton had “not engaged in substantial
gainful activity since August 8, 2006 . . . .” (AR at p. 666) (bold omitted). ALJ
#2 found Ms. Patton had the same severe impairments as contained in ALJ #2’s
earlier decision. Id.; see id. at p. 627. ALJ #2 again found Ms. Patton had “the
residual functional capacity to perform sedentary work . . . and can understand,
remember and carry out only simple instructions.” (AR at p. 670). ALJ #2
found Ms. Patton was not disabled because she could perform the following
sedentary jobs: microfilm document preparer “of which 100,000 jobs exist in the
national economy;” addresser, “of which 20,000 jobs exist in the national
economy;” and sack repairer “of which 12,000 jobs exist in the national
economy.” Id. at p. 684; see also Docket 98 ¶ 38.
Ms. Patton timely appealed to the Appeals Council. (Docket 98 ¶ 39).
Plaintiff’s counsel also referred Ms. Patton “to a vocational evaluation center to
assess her ability to perform the sedentary jobs [ALJ #2] found [she] could do.”
Id. ¶ 40. On August 7, 2013, Ms. Patton submitted the results of the vocational
testing to the Appeals Council. Id. ¶ 42.
Ms. Patton waived appearance at the second remand hearing for personal
reasons. (Docket 98 ¶ 37).
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On January 2, 2014, the Appeals Council again assumed jurisdiction of
Ms. Patton’s case. Id. ¶ 43; AR at p. 702. The order of the Appeals Council
identified two areas of concern. (AR at pp. 702-03; see also Docket 98 ¶ 43).
The first area of concern was that Ms. Patton’s vocational testing “using the
standardized SAGE battery suggested ‘difficulty with sustained repetitive
activities using hands and performing job tasks requiring these abilities,
particularly within tight time constraints . . . .’ ” (Docket 98 ¶ 44) (referencing
AR at p. 702). These results were concerning because the test occurred “less
than one month after [ALJ #2’s] decision and was ‘material to the step five
finding.’ ” Id. (referencing AR at p. 702). The second concern was that ALJ #2
identified three jobs in the national economy but did not reference the testimony
of the vocational expert which identified the number of South Dakota positions
available for each of those jobs: microfilm document preparer, 200; addresser,
100; and sack repairer, 50. Id. ¶ 45; see also AR at pp. 931-32. The Appeals
Council found these South Dakota numbers were not significant. (Docket
98 ¶ 46). The Appeals Council concluded: “Although the number of national
jobs appears to represent a significant number of jobs, the number of local jobs
identified does not appear to represent a significant number of jobs.
Accordingly, further evaluation as to whether a significant number of other jobs
exist is necessary.” (AR at p. 703).
On remand, the Appeals Council directed a newly assigned ALJ, among
other things, to “[o]btain supplemental evidence from a vocational expert to
10
clarify the effect of the assessed limitations on the claimant’s occupational base
. . . . [and] ask the vocational expert to identify examples of appropriate jobs and
state the incidence of such jobs in the national economy (20 CFR 404.1566 and
416.966).” Id.
A third remand hearing was held on April 3, 2014. (Docket 98 ¶ 47). On
June 18, 2014, ALJ #3 issued an unfavorable decision. Id. ¶ 48. At step one,
ALJ #3 found Ms. Patton had “not engaged in substantial gainful activity since
August 8, 2006 . . . .” (AR at p. 433) (bold omitted). At step two, ALJ #3 found:
[Ms. Patton had] the following severe impairments: obesity . . . ;
insulin-dependent diabetes mellitus; reactive airways disease (with
components of asthma, episodic bronchitis and allergies); mild
degenerative changes, lumbar spine, . . . with clinical presentations
of left-side sciatica and mild facet arthrosis (considered severe only
when viewed in combination with obesity); osteoporosis; history of
fracture of the superior pole of the right patella (status post open
reduction, internal fixation (12/10)); major depression; recurrent,
mild; dysthymia;15 anxiety disorder; and borderline intellectual
functioning . . . .
Id. at p. 435 (bold omitted).
ALJ #3 found Ms. Patton had “the residual functional capacity to perform
less than the full range of light work [with physical limitations] . . . . [and]
[m]entally . . . retains the capacity to understand, remember, and carry out
short, simple instructions; interact appropriately with supervisors, co-workers
“Dysthymia is a type of depression involving long-term, chronic
symptoms that are not disabling, but keep a person from functioning at ‘full
steam’ or from feeling good. Dysthymia is a less severe type of depression than
what is accorded the diagnosis of major depression. However, people with
dysthymia may also sometimes experience major depressive episodes,
suggesting that there is a continuum between dysthymia and major depression.”
MedicineNet.com.
15
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and the public on a frequent basis; respond appropriately to changes in a routine
work setting; and make judgments on simple work-related decisions.” (AR at
p. 439) (bold omitted).
ALJ #3 found Ms. Patton not disabled because she retained the capacity to
perform “work that exists in . . . the national economy.” Id. at p. 451. ALJ #3
identified those representative light occupations as:
Mail clerk, with “50,000 positions nationally,” and “1200 to 1500
positions regionally”;16
Tanning salon attendant, with “20,000-30,000 [positions]
nationally,” and “500 [positions] regionally”; and
Small products assembler, with “75,000 [positions] nationally” and
“3000 [positions] regionally.”
Id.
Ms. Patton appealed the decision of ALJ #3 to the Appeals Council.
(Docket 98 ¶ 50). For a third time, on August 25, 2014, the Appeals Council
assumed jurisdiction of Ms. Patton’s case. (AR at p. 396). The remand order of
the Appeals Council identified two errors by ALJ #3. First, the “decision did not
evaluate the opinion of . . . Dr. Mark Farber . . . [who testified Ms. Patton was]
‘restricted’ to sedentary work17 . . . . The January 17, 2013 and July 12, 2013
decisions gave Dr. Farber’s opinion great weight and assessed a sedentary
T]he region [is] defined as Minnesota, Iowa, North Dakota, and South
Dakota.” (AR at p. 451).
16“[
The Appeals Council also observed “Dr. Farber noted that Craig Mills,
M.D., indicated [Ms. Patton] could ambulate for sedentary work . . . .” (AR at
p. 396).
17
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residual functional capacity . . . .” Id. at pp. 395-9618 (references to the
administrative record omitted). Second, even though ALJ #3 found Ms. Patton’s
“severe mental impairments include borderline intellectual functioning . . . the
Administrative Law Judge did not pose a hypothetical question to the vocational
expert that assumed the individual with borderline intellectual functioning . . . .”
Id. at p. 395 (references to the administrative record omitted).
On remand, the Appeals Council directed the ALJ to “evaluate the opinion
of Dr. Farber . . . . [and] [t]he hypothetical questions [to a vocational expert]
should reflect the specific capacity/limitations established by the record . . . .
[and] ask the vocational expert to identify examples of appropriate jobs and to
state the incidence of such jobs in the national economy (20 CFR 404.1566 and
416.966).” Id.
On March 11, 2015, ALJ #4 presided over a fourth remand hearing.
(Docket 98 ¶ 55). The vocational expert testified “a single job matched the
hypothetical RFC for sedentary work requiring ‘low-level’ math, manual and
finger dexterity: Surveillance System Monitor, . . . with ‘regional jobs or within
the state of South Dakota’ numbering 43.” Id. ¶ 56.
On March 25, 2015, at step two, ALJ #4 found Ms. Patton “had the
following severe impairments: (1) Borderline intellectual functioning; (2) Obesity;
(3) Degenerative disc disease of the lumbar spine with left sciatica; and (4)
Fractured right patella, status post repair in December 2010 . . . .” (AR at
Page two of the Appeals Council’s August 25, 2014, decision is filed in the
administrative record ahead of page one of the decision.
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p. 2057) (citations and bold omitted). At step four, ALJ #4 found “since August
8, 2006,” Ms. Patton had a “residual functional capacity to perform sedentary
work . . . . Furthermore, when considering the borderline intellectual functioning
despite a history of semi-skilled work activities, the sedentary work activities
should involve a SVP19 of only one or two.” (AR at p. 2062). At step five,
finding Ms. Patton had an “inability to perform past relevant work,” ALJ #4
“relied on Medical-Vocational Rule 201.28 to find that Patton was capable of
performing a significant number of other jobs from August 8, 2006, to December
29, 2014 . . . .” (Docket 98 ¶ 60).
ALJ #4 found that as of Ms. Patton’s 50th birthday her “age category
changed to an individual closely approaching advanced age.” (AR at p. 2070)
(citing 20 CFR § 404.1563 and § 416.963). Based on that ruling, ALJ #4 found
that “considering the claimant’s age, education, work experience, and residual
functional capacity, there are no jobs that exist in significant numbers in the
national economy that the claimant could perform . . . .” Id. at p. 2072 (citations
See AR at pp. 1988-89. “SVP” stands for “Specific Vocational
Preparation.” United States Department of Labor, Dictionary of Occupational
Titles, Appendix C, II. “Specific Vocational Preparation is defined as the amount
of lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific
job-worker situation.” Id. “SVP 2” indicates that the “level[] of specific
vocational preparation [will take] . . . [a]nything beyond short demonstration up
to and including 1 month . . . .” Id. The higher the number the longer the time
period required to achieve vocation preparation. Id. The Dictionary of
Occupational Titles is available at http://www.oalj.dol.gov.
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and bold omitted). With this finding, ALJ #4 concluded Ms. Patton was disabled
as of December 29, 2014. Id.
Ms. Patton timely appealed to the Appeals Council from the decision of ALJ
#4. (Docket 98 ¶ 62). On August 31, 2015, the Appeals Council assumed
jurisdiction of the case for a fourth time. (AR at p. 2091). It affirmed ALJ #4’s
finding that Ms. Patton “was disabled beginning December 29, 2014.” Id. The
Appeals Council vacated the remainder of the decision “as it relates to the period
prior to December 29, 2014.” Id. While ALJ #4 found Ms. Patton’s depression
and anxiety were only non-severe impairments, the Appeals Council observed
“[t]he medical evidence of record indicates multiple diagnoses of major
depression.”20 Id. at p. 2092 (citations omitted). The Appeals Council
discussed the record on depression and anxiety.
The claimant was taking medications for her depression and was on
a medication management program . . . . In addition, a consultative
examination performed by Richard P. Renka, M.D., on December 8,
2014, indicates the claimant was seen for depression and anxiety;
she was taking psychiatric medications of mirtazapine, Prozac and
Valproic Acid; her major depression was only partially treated; and
her medical problems were increasing in severity and taking a toll on
her energy and mood . . . . An earlier consultative examination
performed by Greg Swenson, Ph.D., on December 18, 2006,
indicates the claimant acknowledges anxiety and reported she
becomes angry frequently and is capable of volatile behavior when
angry . . . . Further evaluation of the claimant’s depression/anxiety
is warranted.
Major depressive disorder, also referred to as clinical depression, is
characterized by a combination of symptoms that lasts for at least two weeks in a
row that interfere with the ability to work, sleep or eat and a decreased interest or
pleasure in most activities. MedicineNet.com.
20
15
Id. (citations omitted). The Appeals Council ruled that because Ms. Patton has a
“severe mental impairment . . . acquiescence ruling AR 14-1(8) (the 8th Circuit
rule) did not permit use of [Medical-Vocational Rule 201.28] to decide the case.”
(Docket 98 ¶ 64; see also AR at p. 2092).
On remand, the Appeals Council
ordered the ALJ to:
Further evaluate the severity and combined effects of all the
claimant’s mental impairments 21 in accordance with the special
technique described in 20 CFR 404.1520a and 416.920a,
documenting application of the technique in the decision by
providing specific findings and appropriate rationale for each of the
functional areas described in 20 CFR 404.1520a(c) and 416.920a(c).
Give further consideration to the claimant’s maximum residual
functional capacity and provide appropriate rationale with specific
references to evidence of record in support of the assessed
limitations . . . .
At step five, comply with Acquiescence Ruling 14-1(8) and obtain
supplemental evidence from a vocational expert to clarify the effect
of the assessed limitations on the claimant’s occupational base . . . .
The hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The
Administrative Law Judge will ask the vocational expert to identify
examples of appropriate jobs and to state the incidence of such jobs
in the national economy (20 CFR 404.1566 and 416.966). . . .
(AR at p. 2092; see also Docket 98 ¶¶ 65-67). The Appeals Council directed the
ALJ to “issue a new decision on the issue of disability before December 29,
201[5].” (AR at p. 2093).
Because ALJ #4 found only that Ms. Patton suffered from borderline
intellectual functioning, it must be presumed that the Appeals Council was
making specific reference to both Ms. Patton’s borderline intellectual functioning
and her severe major depression.
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16
On September 22, 2015, ALJ #5 conducted a fifth remand hearing.
(Docket 98 ¶ 69). Because the hearing had to be recessed, Dr. Matthew Sprong,
a vocational expert, testified on October 29, 2015. (AR at pp. 1947-48 & 1975).
Dr. Sprong testified there were three jobs22 which Ms. Patton could perform:
Final Assembler, with 30,100 jobs nationally and 92 regionally;
Dowel Inspector, with 13,030 jobs nationally and 40 regionally; and
Bench Hand, with 30,200 jobs nationally and 95 regionally.
(Docket 98 ¶ 71). Dr. Sprong defined “region” as “Montana, Wyoming, and
North Dakota.” (Docket 98 ¶ 81). He testified he did not have job figures for
South Dakota. (AR at p. 1992). While Dr. Sprong acknowledged each of these
jobs permitted standing, he testified “to maintain enough productivity . . .
anything more than every 30 minutes would preclude employment. So,
30 minutes would be the, threshold alternating between sitting and standing
. . . .” Id. ¶¶ 72 and 73.
When asked to compare aptitude level requirements for each of these jobs
with hypothetical vocational aptitudes,23 Dr. Strong’s testimony resulted in the
following comparison:
22
Each of these jobs had a “SVP 2.” (Docket 98 ¶ 71).
The hypothetical scores are the levels achieved by Ms. Patton in testing at
the Vocational Evaluation Center of the Black Hills Special Services Cooperative
on August 2, 2013. (AR at pp. 1059-62). The higher the number, the lower the
skill set. Id. at p. 1061.
23
17
Job
Aptitudes
Final Assembler
Aptitude Level
Required
Hypothetical
Aptitude Level
5
4
3
3
3
5
4
5
4
4
4
3
3
5
4
5
4
4
3
2
3
4
5
4
Clerical Aptitude
Motor
Coordination
Finger Dexterity
Manual Dexterity
Clerical Aptitude
Motor
Coordination
Finger Dexterity
Manual Dexterity
Clerical Aptitude
Motor
Coordination
Finger Dexterity
Manual Dexterity
Dowel Inspector
Bench Hand
Id. ¶¶ 74-75.
On January 13, 2016, ALJ #5 issued an unfavorable decision. Id. ¶ 76;
see also AR at pp. 1821-40. At step one, ALJ #5 found Ms. Patton “has not been
engaged in substantial gainful activity since [August 8, 2006] . . . .” (AR at
p. 1825) (citations and bold omitted). At step two, ALJ #5 found that since
“August 8, 2006, the claimant has had the following severe impairments:
borderline intellectual functioning, major depressive and dysthymic disorder,
obesity, degenerative disk disease of the lumbar spine with left sciatica, and
fractured right patella, status post repair in December of 2010 . . . .” Id. at
p. 1826 (citations and bold omitted).
At step four, ALJ #5 found that “since August 8, 2006, and up until
December 28, 2014, the claimant had the residual functional capacity to perform
18
sedentary work . . . except for the following mental limitations during the period
in question: The claimant had the ability to remember locations and work-like
procedures; had the ability to understand and remember short and simple
instructions; had the ability to carry out short, simple instructions; and had the
ability to maintain attention and concentration for extended periods.” Id. at
p. 1829 (citations and bold omitted). ALJ #5 went on to describe the things Ms.
Patton could do.
Prior to December of 2014, the claimant had no limitations
regarding her ability to concentrate, focus, or stay on task. The
claimant had the ability to perform work within a schedule,
maintain regular attendance, and be punctual within customary
tolerances. She had the ability to sustain ordinary routine without
special supervision and could work in combination with others
without being distracted. The claimant could make simple work
related decisions; could complete normal workdays and workweeks
without interruption from psychologically based symptoms; and was
able to perform at consistent pace without an unreasonable number
and length of rest periods.
She had the ability to interact
appropriately with the general public and to get along with
co-workers or peers without distracting them or exhibiting
behavioral extremes.
The claimant could maintain socially
appropriate behavior and could adhere to the basic standards of
neatness and cleanliness. In addition, she had the ability to ask
simple questions and ask for assistance. She had the ability to
accept instructions or respond appropriately to criticism from
supervisors. She could respond appropriately to changes in the
work setting and had the ability to be aware of normal hazards and
take appropriate precautions. She had the ability to travel to
unfamiliar places and use public transportation. She had the
ability to set realistic goals and make plans independently of others.
Id. (bold omitted).
At step five, ALJ #5 found Ms. Patton’s “mental limitations . . . eroded the
unskilled sedentary occupational base . . . .” Id. at pp. 1839-40. ALJ #5
19
accepted Dr. Sprong’s identification of the three jobs described above with the
national and regional numbers referenced. Id. at p. 1840. ALJ #5 found “the
numbers of jobs available in the national economy are significant.” Id.
According to ALJ #5, by these three jobs Ms. Patton “was capable of making a
successful adjustment to other work that existed in significant numbers in the
national economy.” Id.; see also Docket 98 ¶ 80.
On June 7, 2016, the Appeals Council declined to assume jurisdiction.
(Docket 98 ¶ 82). Among its other assertions, the Appeals Council concluded
“the decision [of ALJ #5] reveals the vocational expert cited almost 75,000 jobs
nationally . . . and 20 CFR 404.1566 and 416.966 states we consider work that
exists in the national economy when it exists in significant numbers either in the
region in which the claimant lives OR in several other regions. Therefore, the
citation of 74,330 available jobs was a significant number.” (AR at p. 1808)
(capitalization in original; other citations omitted).
The decision of ALJ #5 constitutes the final decision of the Commissioner.
Id.; see also Docket 98 ¶ 83. On June 29, 2016, the Commissioner reported to
the court that “the Appeals Council declined to assume jurisdiction . . . rendering
the January [13], 2016, Administrative Law Judge’s decision as the final decision
. . . after remand by the court.” (Docket 90 at p. 1).
ANALYSIS
The issue before the court is whether the decision of ALJ #5 of January 13,
2016, that Ms. Patton was not disabled from August 8, 2006, through December
20
28, 2014, is supported by substantial evidence in the record as a whole. (AR at
p. 1840); see also Howard, 255 F.3d at 580 (“By statute, the findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”) (internal quotation marks and brackets omitted)
(citing 42 U.S.C. § 405(g)).
SIGNIFICANT NUMBER OF JOBS
The first issue the court feels compelled to resolve is whether the three jobs
identified by ALJ #5 constitute a significant number of jobs requiring a finding
that Ms. Patton is not disabled.24 The “burden of production shifts to the
Commissioner at step five.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004); see also Baker, 159 F.3d at 1144. The Commissioner’s finding must be
upheld if it is supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g); Choate, 457 F.3d at 869; Howard, 255 F.3d at 580.
Federal law provides:
An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such 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, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which
For purposes of this analysis the court presumes the findings of ALJ #5
at steps one through four were correct. In the event the decision of this court is
reversed, the court reserves the right on remand to resolve the other challenges
raised by plaintiff to the decision of ALJ #5.
24
21
exists in significant numbers either in the region where such
individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A) (emphasis added). The Social Security regulations
define the determination of jobs in the national economy in the following manner:
Work exists in the national economy when there is a significant
number of jobs (in one or more occupations) having requirements
which you are able to meet with your physical or mental abilities and
vocational qualifications. Isolated jobs that exist only in very
limited numbers in relatively few locations outside of the region
where you live are not considered “work which exists in the national
economy[.]”
20 CFR § 404.1566(b). The regulation states that “jobs in the national
economy” means “in significant numbers either in the region where you live or in
several regions of the country.” Id. § 404.1566(d). Since Ms. Patton “cannot
perform her past relevant work, the Commissioner bears the burden of showing
that [she] could perform jobs that exist in significant numbers.” Hall v. Chater,
109 F.3d 1255, 1259 (8th Cir. 1997).
The Commissioner argues Ms. Patton is not disabled because the law
“does not require that the job opportunities exist within the local area, but only
that the job opportunities exist in the national economy.” (Docket 101 at p. 22)
(referencing 42 U.S.C. § 423(d)(2)(A)). Ms. Patton argues she must be found
disabled because in January 2014 the Appeals Counsel ruled “that 350 jobs in a
single state were not significance, a fortiori, 227 regional jobs [in 2016] are not
significant.” (Docket 100 at p. 34). The Commissioner contends plaintiff’s
argument is without merit because “the Appeals Council action . . . related to a
22
prior ALJ decision that was not the Commissioner’s final administrative
decision.” (Docket 101 at p. 23).
The United States Court of Appeals for the Eighth Circuit addressed this
issue several times. In Jenkins v. Bowen, 861 F.2d 1083 (8th Cir. 1988), the
court concluded 500 jobs in the St. Louis, Missouri, area were a significant
number, particularly since claimant had 25 years of experience in the same line
of work. Id. at 1087. In Johnson v. Chater, 108 F.3d 178 (8th Cir. 1997), the
court observed:
The vocational expert noted that the addresser and document
preparer jobs were sedentary, unskilled labor that Johnson could
perform, and that there existed 200 jobs of addresser or document
preparer in Iowa and 10,000 in the national economy. The
vocational expert further testified that these figures were merely
representative of a larger category of jobs that Johnson could
perform, including telemarketing. The vocational expert did not
give figures to describe the total number of unskilled, sedentary jobs
in Iowa or the national economy. However, at the time of the
hearing before the ALJ, Johnson was engaged in one of the
sedentary jobs that the vocational expert said she was capable of
performing, telemarketing.
Id. at 180. With this fact-intensive record the court concluded “the
Commissioner met her burden of showing that Johnson is not disabled because
the vocational expert’s testimony was sufficient to show that there exist a
significant number of jobs in the economy that Johnson can perform.” Id.
In Long v. Chater, 108 F.3d 185 (8th Cir. 1997), the court affirmed the
decision of an ALJ who found that “650 jobs [in Iowa] in the fields of surveillance
monitoring, addressing, and document preparation that exist in Iowa, or one of
the 30,000 such jobs that exists nationwide” constituted “a significant number.”
23
Id. at 188. In Hall v. Chater, 109 F.3d 1255 (8th Cir. 1997), the court upheld an
ALJ’s decision because 1,045 receptionist jobs and 5,227 cashier jobs, “when
added to the 218 order clerk and 122 information clerk jobs [in the state of
Arkansas] . . . constitute a significant number of jobs available to Hall.” Id. at
1259 (referencing Jenkins, 861 F.2d at 1087). The court concluded “[t]here is
no evidence to give us pause in concluding that the ALJ used common sense in
applying the significant numbers requirement to Hall’s particular factual
situation.” Id. at 1260 (referencing Johnson, 108 F.3d at 180; Long, 108 F.3d at
188–89; Jenkins, 861 F.2d at 1087).
In Weiler v. Apfel, 179 F.3d 1107 (8th Cir. 1999), the court held that
consistent with “Weiler’s physical and psychological condition, age, education,
and work experience” substantial evidence existed that “32,000 surveillance
monitor positions nationwide . . . . [constitute] a significant number of jobs in the
economy which Weiler can perform.” Id. at 1111. In Jones ex rel. Morris v.
Barnhart, 315 F.3d 974 (8th Cir. 2003), a vocational expert testified there were
approximately 75,000 surveillance system monitor positions nationwide. Id. at
979. “Moreover, the record indicates that Morris could perform the other two
jobs identified by the vocational expert . . . .” Id. The court concluded “there is
substantial evidence supporting the ALJ’s determination that there were a
significant number of jobs in the economy that Morris could perform.” Id.
In Osborne v. Barnhart, 316 F.3d 809 (8th Cir. 2003), the court found
3,000 assembly jobs, when added to 5,400 cleaning and janitorial jobs,
24
390 packer and wrapper jobs and 1,000 jobs as a stock handler all in the state of
Missouri “far exceed levels . . . considered sufficient to constitute a ‘significant
number.’ ” Id. at 812 (referencing Hall, 109 F.3d at 1259; Jenkins, 861 F.2d at
1087).
With this Eighth Circuit guidance, the court notes the rulings of a number
of courts which each made specific reference to the number of jobs available in a
plaintiff’s state of residence as being significant at step five.25
Rogers v. Barnhart, No. CIV. 4-02-CV-10090, 2003 WL 22052204,
at *3 (S.D. Iowa Mar. 6, 2003) (surveillance monitor, 25,000 jobs
nationally and 300 jobs in Iowa);
Jackson v. Astrue, No. 4:07CV00796, 2008 WL 2783474 (E.D. Ark.
July 15, 2008) (pharmacy technician, 267,000 jobs nationally and
2,370 in Arkansas; security guard, 994,220 positions in the United
States and 6,240 in Arkansas; file clerk I or II, with 230,000 jobs
nationwide and 1,950 in the state; teacher’s aide, with 105,000 jobs
in the United States and 722 in Arkansas);
Murphy v. Astrue, No. 8:09CV89, 2009 WL 3763673, at *11 (D. Neb.
Nov. 9, 2009) (330 order caller and 175 assembler positions in
Nebraska);
Olatubosun v. Astrue, No. 8:09CV376, 2010 WL 3724819, at *15 (D.
Neb. Sept. 17, 2010) (document preparer, 6,600 jobs nationally and
350 jobs in Nebraska and a three state region (jointly “region”);
cutter and paster, 5,500 jobs nationally and 200 jobs in the region;
change account clerk, 17,000 jobs nationally and 1,200 jobs in the
region. Plaintiff notes that, “assuming equal distribution” of jobs
among the four states included in the region, there are only
approximately 437 suitable jobs available him in Nebraska. “[T]o
the extent that the Plaintiff suggests that 437 jobs is [sic] insufficient
as a matter of law, his argument must be rejected.”);
The court limits this list to those cases which have national or regional
job numbers reasonably comparable to the numbers acknowledged to exist in
this case.
25
25
Slavicek v. Astrue, No. CIV. 09-2432, 2010 WL 5421444, at *21 (D.
Minn. Dec. 2, 2010), report and recommendation adopted, No. CIV.
09-2432, 2010 WL 5421341 (D. Minn. Dec. 23, 2010), aff'd sub nom.
Slavicek v. Colvin, 527 Fed. Appx. 590 (8th Cir. 2013) (500 jobs in
the state of Minnesota);
Gustafson v. Astrue, No. CIV. 10-4962, 2011 WL 6219641, at *8 (D.
Minn. Nov. 29, 2011), report and recommendation adopted, No. CIV.
10-4962, 2011 WL 6218211 (D. Minn. Dec. 14, 2011) (order clerk,
1,300 jobs exist in the state of Minnesota. “Therefore, even
assuming only for the sake of argument that the order clerk job was
found to be inconsistent with the DOT, the Plaintiff would still be
able to perform another job existing in significant numbers in the
regional economy.”);
Ferro v. Astrue, No. 10-2190, 2012 WL 3160357, at *6 (W.D. Ark.
Aug. 3, 2012) (crossing guard, 20,000 nationally and 70 in the state
of Arkansas; surveillance systems monitor, 27,000 jobs nationally
and 600 in Arkansas. The magistrate judge concluded “[w]hile the
number of jobs available as a crossing guard [70] would be
problematic the number of jobs available as a surveillance system
monitor [600] would certainly meet the test.”)
Applegate v. Colvin, No. 4:12CV3029, 2013 WL 1222124, at *15 (D.
Neb. Mar. 25, 2013) (610 jobs in Nebraska);
Wilson v. Colvin, No. 12-3054, 2013 WL 3230252, at *6 (W.D. Ark.
June 26, 2013) (dishwasher, 191,000 jobs nationally and 1,600 jobs
regionally; janitors and cleaners, 161,483 jobs nationally and
1,300 jobs locally);
Welsh v. Colvin, No. C12-0102, 2013 WL 3338419, at *19 (N.D. Iowa
July 2, 2013), aff'd, 765 F.3d 926 (8th Cir. 2014) (330 jobs in Iowa
constituted “a significant number of jobs in the national economy.”);
Weaver v. Colvin, No. 4:12CV00220, 2013 WL 3716512, at *6 (E.D.
Ark. July 11, 2013) (74 surveillance system monitoring jobs, 177
escort vehicle driver jobs, and 172 document preparer jobs all in the
state of Arkansas);
Whited v. Colvin, No. 4:12-CV-3158, 2013 WL 3897754, at *4 (D.
Neb. July 26, 2013) (usher, 30,000 jobs nationally and 500 jobs in
Nebraska; furniture rental consultant, 20,000 nationally, 200 jobs
26
in Nebraska; and livestock sales representative, 75, 000 jobs
nationally and 5,000 positions in Nebraska);
Brown v. Colvin, No. 4:12CV3260, 2014 WL 200234, at *19 (D. Neb.
Jan. 16, 2014) (79,280 jobs nationally and 500 jobs in Nebraska);
Brown v. Colvin, No. 4:13CV3042, 2014 WL 1218664, at *9 (D. Neb.
Mar. 24, 2014) (850 jobs in Nebraska);
Partain v. Colvin, No. 4:13CV000168, 2014 WL 5524408, at *5 (E.D.
Ark. Oct. 31, 2014) (production assembler, 27,800 jobs nationally
and 368 jobs in Arkansas; machine tender, 19,886 jobs nationally
and 224 jobs in Arkansas; hand packer, 21,485 jobs nationally and
197 jobs in Arkansas);
Fusher v. Colvin, No. 2:14-CV-02223, 2015 WL 4038892, at *6
(W.D. Ark. July 2, 2015) (machine tender, 16,500 jobs nationwide
and 220 jobs in Arkansas; assembler, 22,100 jobs nationally and
182 jobs in Arkansas; inspector, 4,000 jobs nationally and 50 jobs
in Arkansas);
Lenderman v. Colvin, No. 3:14-CV-00245, 2015 WL 4988278, at *4
(E.D. Ark. July 29, 2015) (silver wrapper, 107,457 jobs nationally
and 846 jobs in Arkansas; small products assembly, 1,427 jobs
nationally and 27 jobs in Arkansas); and
Gholston v. Colvin, No. 14-CV-2064, 2015 WL 6167824 (N.D. Iowa
Oct. 21, 2015) (document preparer, 32,700 jobs nationally and 350
jobs in Iowa; addresser, 25,000 nationally and 200 positions in
Iowa).
Significant to the analysis is that in each of these cases the Commissioner
identified a specific number of jobs available in the claimant’s state of residence.
Other circuit courts resolve the issue of significant number of jobs by
looking at a state or an area smaller than an entire state. See Hall v. Bowen,
837 F.2d 272, 275 (6th Cir. 1988) (1,350 jobs in a nine-county area, including
Dayton, Ohio, constituted a significant number); Barker v. Secretary of Health &
Human Services, 882 F.2d 1474, 1479 (9th Cir. 1989) (1,266 positions in the Los
27
Angeles/Orange County area were within the parameters of a significant number
of jobs); Trimiar v. Sullivan, 966 F.2d 1326, 1330–32 (10th Cir.1992) (while
refusing to draw “a bright line,” the court found 850–1,000 potential jobs in
Oklahoma were a significant number of jobs); Lee v. Sullivan, 988 F.2d 789,
792 & 794 (7th Cir. 1993) (1,400 jobs in the greater Milwaukee metropolitan area
constituted “a significant number of jobs.”).
“[T]he term ‘region . . . is flexible’ and can refer to ‘the entire state’ or to ‘a
particular area of the state.’ ” Vargas v. Colvin, No. CV 13-2116, 2013 WL
6254784, at *4 (C.D. Cal. Dec. 4, 2013) (citing Social Security Law and Practice
§ 43:137 (Dec. 2013); also referencing Harvey L. McCormick, Social Security
Claims and Procedures § 8:55 (6th ed. 2011)). “[V]ocational experts who testify
in social security disability cases concerning the availability of jobs that the
applicant has the physical ability to perform almost always confine their
testimony to indicating the number of such jobs that exist in the applicant’s
state, or an even smaller area.” Barrett v. Barnhart, 368 F.3d 691, 692 (7th Cir.
2004) (referencing Fastner v. Barnhart, 324 F.3d 981, 985 (8th Cir. 2003) (“Even
considering the narrow range of work Fastner was capable of performing, the ALJ
found that the Commissioner had shown that there were a significant number of
jobs that existed in the state [Minnesota] economy for Fastner.”); other citations
omitted).
“In practice, the principal significance of the ‘other regions’ language in the
statute is to prevent the Social Security Administration from denying benefits on
28
the basis of ‘isolated jobs that exist only in very limited numbers in relatively few
locations outside of the region where [the applicant] live[s] . . . .’ ” Barrett,
368 F.3d at 692 (citing 20 CFR § 404.1566(b). As a practical matter, the court
“should consider many criteria in determining whether work exists in significant
numbers, some of which might include: the level of claimant’s disability; the
reliability of the vocational expert’s testimony; the reliability of the claimant’s
testimony; the distance claimant is capable of travelling to engage in the
assigned work; the isolated nature of the jobs; the types and availability of such
work, and so on.” Jenkins, 861 F.2d at 1087. The issue is always “factintensive.” Johnson, 108 F.3d at 181 n.3.
ALJ #5 concluded Ms. Patton could work in three jobs: final assembler,
30,100 jobs nationally and 92 jobs regionally; dowel inspector, 14,030 jobs
nationally and 40 jobs regionally; and bench hand, with 30,200 jobs nationally
and 95 jobs regionally. (AR at p. 1840). ALJ #5 found “the numbers of jobs
available in the national economy are significant.” Id.; see also Docket 98 ¶ 80.
The Appeals Council permitted this decision to stand as the Commissioner’s final
administrative decision. (Docket 98 ¶ 83).
It must be remembered that ALJ #2 found Ms. Patton not disabled because
she could perform three sedentary jobs, specifically: microfilm document
preparer, with 100,000 jobs in the national economy; addresser, with 20,000
jobs in the national economy; and sack repairer with 12,000 jobs in the national
economy. (Docket 98 ¶ 38 and AR at p. 684). The Appeals Council expressed
29
concern because this finding did not consider the testimony of the vocational
expert which identified the following local jobs in the state of South Dakota:
microfilm document preparer, 200 local jobs; addresser, 100 local jobs; and sack
repairer, 50 local jobs. (Docket 98 ¶ 45) (referencing AR at p. 703). The
Appeals Council remanded the case declaring “[a]lthough the number of national
jobs appears to represent a significant number of jobs, the number of local jobs
identified does not appear to represent a significant number of jobs.
Accordingly, further evaluation as to whether a significant number of other jobs
exist is necessary.” (AR at p. 703) (emphasis).
Incredibly, in 2015 the Commissioner presented no testimony of the
number of jobs available to Ms. Patton in the state of South Dakota or the impact
upon her if she is compelled to travel to the other regions or nationally for work.
This total absence of evidence cannot and does not sustain the Commissioner’s
burden at step five. Stormo, 377 F.3d at 806. The Appeals Council’s own
determination in 2014 that 350 jobs in South Dakota would not satisfy the
requirements of § 404.1566 is a strong endorsement that ALJ #5’s decision is not
sustainable.26 Furthermore, the court is unable to identify one case in the
Eighth Circuit which would support a conclusion that 227 jobs in the
surrounding states of Wyoming, Montana and North Dakota satisfy the
Had the Appeals Council in 2014 believed the national numbers satisfied
§ 404.1566, there would have been no need to comment on that section of the
ALJ’s decision or remand for development of additional job evidence because the
step five evaluation would have been satisfied by the national numbers. See AR
at pp. 931-32.
26
30
“significant number” criteria of 20 CFR §§ 404.1566(b) & (d) for a South Dakota
resident.
The court concludes an error of law has been committed. Smith, 982
F.2d at 311.
In addition, the absence of evidence to support ALJ #5’s finding of a
significant number of jobs being available to Ms. Patton as a resident of South
Dakota “fairly detracts from that decision.” Reed, 399 F.3d at 920. The court
finds ALJ #5’s decision is not supported by substantial evidence. 42 U.S.C.
§ 405(g); Choate, 457 F.3d at 869 (8th Cir. 2006); Howard, 255 F.3d at 580.
The court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand to the Commissioner for a rehearing. 42 U.S.C.
§ 409(g). When an error exists in an administrative determination, “the proper
course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002) (citations
and quotations omitted). In this case there has already been one judicial
remand, four Appeals Council remands and six ALJ decisions. Requiring
remand for yet another administrative proceeding “would contribute to waste
and delay and would provide no incentive to the ALJ to fulfill [their] obligation to
develop the record.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).
“[P]ermitting the Commissioner to try again to prove the existence of significant
numbers of jobs [Ms. Patton] can perform despite her debilitating impairments
would . . . create the kind of ‘heads we win; tails, let’s play again’ system of
31
adjudication decried in Benecke [379 F.3d at 595].”27 Vargas, 2013 WL
6254784, at *4. Enough is enough.
Remand to the Commissioner is neither necessary nor appropriate in this
case. If the court determines that the “record overwhelmingly supports a
disability finding and remand would merely delay the receipt of benefits to which
the plaintiff is entitled, reversal is appropriate.” Thompson v. Sullivan,
957 F.2d 611, 614 (8th Cir. 1992). Ms. Patton was disabled during the time
period of August 8, 2006, through December 28, 2014, and entitled to benefits.
Reversal is the appropriate remedy at this juncture. Thompson, supra.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff's motion (Docket 99) is granted in part.
IT IS FURTHER ORDERED that the decision of the Commissioner of
January 13, 2016, as it relates to an award of DIB and SSI benefits beginning
December 29, 2014, is affirmed.
IT IS FURTHER ORDERED that the decision of the Commissioner of
January 13, 2016, as it relates to the denial of DIB and SSI benefits prior to
December 29, 2014, is reversed and the case is remanded to the Commissioner
Benecke involved only one administrative decision, a district court order
directing a reversal and remand for further proceedings, and an appeal to the
Eighth Circuit where the court ordered a remand directing the Commissioner to
award benefits. Benecke, 379 F.3d at pp. 589 & 596. That record is a far cry
from the long and convoluted journey Ms. Patton has endured.
27
32
for the purpose of calculating and awarding benefits to the plaintiff Mayda J.
Patton for the period of August 8, 2006, through December 28, 2014.
Dated February 28, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
33
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