Boothe v. Social Security Administration, Commissioner of
Filing
21
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 2/19/16. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
BEULA LEIGH BOOTHE
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
)
)
)
)
)
)
No. 2:14-CV-383
MEMORANDUM OPINION
This Social Security appeal is before the Court for consideration of the plaintiff’s
objections [Doc. 16] to the Report and Recommendation filed by United States Magistrate Judge
Bruce H. Guyton [Doc. 14]. The Commissioner has not responded to plaintiff’s objections and
the time for doing so has passed. E.D. Tenn. L.R. 7.1(a), 7.2. Magistrate Judge Guyton found
that substantial evidence supported the findings of the Admissions Law Judge (ALJ). Magistrate
Judge Guyton recommended that plaintiff’s motion for summary judgment [Doc. 10] be denied
and the Commissioner’s motion for summary judgment [Doc. 12] be granted.
I.
PROCEDURAL POSTURE
Plaintiff applied for disability insurance benefits under Title II of the Social Security Act
(the “Act”) on May 28, 2012, alleging an onset disability date of April 1, 2011. (Tr. 63, 119122). Her application was denied on July 27, 2012. (Tr. 78-80). A request for reconsideration
was denied on September 14, 2012. (Tr. 82-83). A hearing was held before an Admissions Law
Judge (“ALJ”) on August 13, 2013, and an order denying benefits issued on September 2, 2013.
(Tr. 13-27). The Appeals Council denied the plaintiff’s request for review and the ALJ’s decision
became final. (Tr. 1-4). Having exhausted her admissions remedies, Plaintiff filed a complaint
with this Court on December 29, 2014, seeking judicial review of the Commissioner’s final
decision under Section 405(g) of the Social Security Act. [Doc. 1].
II.
STANDARD OF REVIEW
The Court's review of Magistrate Judge Guyton’s Report and Recommendation is de
novo. 28 U.S.C. § 636(b). However, the Court’s review is limited to “a determination of whether
substantial evidence exists in the record to support the [Commissioner's] decision and to a review
for any legal errors.” Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir.
1986). Title II of the Social Security Act provides that “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Accordingly, the Court will uphold the ALJ's decision if it is supported by
substantial evidence. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Substantial evidence
has been defined as “‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla of evidence,
but less than a preponderance.” Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996)
(citing Consol. Edison, 305 U.S. at 229).
“Where substantial evidence supports the Secretary's determination, it is conclusive, even
if substantial evidence also supports the opposite conclusion.” Crum v. Sullivan, 921 F.2d 642,
644 (6th Cir. 1990) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc). This
standard of review is consistent with the rule that the reviewing court in a disability hearing
appeal is not to weigh the evidence or make credibility determinations, because these factual
determinations are left to the ALJ and to the Commissioner. Hogg v. Sullivan, 987 F.2d 328, 331
(6th Cir. 1993); Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992).
Thus, even if the court would have come to different factual conclusions as to the plaintiff's
2
claim on the merits than those of the ALJ, the Commissioner's findings must be affirmed if they
are supported by substantial evidence. Hogg, 987 F.2d at 331.
The court considers only specific objections to the magistrate judge’s report and
recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v. Detroit Fed’n of
Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
III. THE DISABILITY EVALUATION AND BURDEN OF PROOF
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not
disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy
that accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
Plaintiff bears the burden of proof at the first four steps. Id. at 529. Once the ALJ determines
that a claimant cannot perform past relevant work, the burden shifts to the Commissioner to
prove that the plaintiff possesses the capacity to perform other substantial gainful activity that
exists in the national economy. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779
(6th Cir. 1987). The C.F.R provides that “[w]ork exists in the national economy when there is a
3
significant number of jobs (in one or more occupations) having requirements which [claimant is]
able to meet with [her] physical or mental abilities and vocational qualifications.” 20 C.F.R. §
416.966. Thus, the Commissioner must present substantial evidence that the claimant has the
vocational qualifications to perform other occupations. Varley, 820 F.2d at 779 (citing O'Banner
v. Secretary of Health, Education & Welfare, 587 F.2d 321, 323 (6th Cir. 1978)).
IV. FACTUAL BACKGROUND
Plaintiff was 56 years old at the time of the alleged onset of disability and had a work
history as a registered nurse. (Tr. 23). The ALJ found that plaintiff has the following severe
impairments: lumbar degenerative disk disease, Turloff’s cysts, bursitis, and arthralgias. (Tr. 18).
Taking these impairments into consideration, the ALJ found that Plaintiff was unable to perform
any past relevant work, but retained the residual functional capacity (“RFC”) to perform light
work, with the following physical limitations: no climbing ladders, ropes, or scaffolds;
occasional postural activities such as climbing ramps and stairs, balancing, kneeling, stooping
crouching, and crawling; occasional overhead reaching with the right arm; frequent but not
continuous fingering; and no concentrated exposure to vibration. (Tr. 20).
The ALJ concluded that the plaintiff could not perform her previous work, but that she
had skills that were transferable to other occupations that exist in significant numbers in the
national economy. (Tr. 23). Basing his findings on the testimony of a VE, the ALJ identified the
occupations of admissions clerk and quality assurance nurse as work that plaintiff could perform.
(Tr. 24). Accordingly, the ALJ determined that the plaintiff was not disabled and plaintiff’s
application for disability benefits was denied.
V.
Plaintiff’s Objection
4
Plaintiff’s objection concerns the fifth step of the disability evaluation. Plaintiff objects to
the magistrate judge’s determination that the ALJ properly evaluated the testimony regarding her
transferable skills. She argues that the testimony, in particular the testimony regarding quality
assurance positions, was ambiguous and did not show that plaintiff had skills that would transfer
to other occupations existing in significant numbers in the national economy.
At plaintiff’s disability hearing, the Commissioner presented testimony of a vocational
expert (“VE”) to prove that plaintiff could perform work available in the national economy. The
VE testified to the plaintiff’s work history as a registered nurse. (Tr. 48). She discussed the
Dictionary of Occupational Titles, and voiced her disagreement with the classification of
registered nurse occupation as “light” work:
VE: [The DOT] describes nursing as light. However, the DOT was written before
they discontinued the position called orderly and nurses have had more and more
to physically handle hands on patients and large equipment that was not in
existence prior to the DOT. So I’d stipulate my differing with [the DOT
classification] based on job analysis and years of, of hearing the same story of, of
all the job positions involving nursing. The only one that is light is a QA review
position or an instructor.
(Tr. 48). She further testified:
ALJ: Let’s assume a hypothetical individual the same age, education and work
background as the claimant, that is an individual who is in the -- advanced age
category, high school plus education and previous work experience as you’ve just
described. Assume further the set hypothetical individual is only capable of
working within the following functional limitations, light exertion no climbing
ladders, ropes, or scaffolds -- otherwise occasional postural activities, such as
climbing ramps and stairs, balancing, kneeling, stooping, crouching, crawling,
occasional overhead reaching with the right dominant arm, frequent but not
continuous fingering, no concentrated exposure to vibration. Now my question -my next question would [be] does the claimant have skills that would transfer to
work within that residual functional capacity?
VE: Well, the only one was the aforementioned case reviewing type nurse which - but that’s, that’s only at a skilled level, so it’s probably not relevant. And then
according to the DOT, the other job would be an admissions clerk. There would
5
be some transferability to that, such as knowing basic diagnosis coding and
protocol that involve admissions, triage, procedure, things of that sort.
.
.
.
ALJ: How many jobs exist in the region and nation for admissions clerk?
VE: For an admissions clerk in the region, probably 50, and in this United States
probably 80,000, Your Honor. It’s not a ubiquitous job positions [sic] and it’s
standardly [sic] in hospital[s] that have an emergency room. . .
ALJ: What about the other position that you mentioned, the quality assurance?
VE: Those jobs [are] available. Again, they’re, they’re small numbers and they
are a skilled level position.
ALJ: Would the clamant have skills that would transfer to a quality assurance
position?
VE: Yes.
ALJ: Well, what kind of -- what skills would transfer to that?
VE: Well, all the records capturing in nursing is transferable. The - - again ICD
treatment protocol, the pharmacology that nurses know.
ALJ: And how many of those jobs existing in region and the nation?
VE: [I]n the State of Tennessee there are probably 3,000 case reviewers and there are
probably 212,000 in the United States. It’s an SVP:7 level job though and it requires the
RN skills.
ALJ: 3,000 in –
VE: It can’t be done by—
ALJ: the state. How many in the nation?
VE: Probably 200,000. []
(Tr. 48-51). She testified that adding a requirement for a sit/stand option and occasional use of
the upper extremities to the plaintiff’s RFC would eliminate the admissions clerk and quality
assurance positions. (Tr. 51).
6
Relying on the VE’s testimony, the ALJ determined that the plaintiff had acquired the
following work skills: nursing records and diagnosis coding knowledge, pharmacology
knowledge, triage procedure, and treatment protocol. (Tr. at 23). The ALJ also found that:
The vocational expert was asked if any occupations exist which could be
performed by an individual with the same age, education, past relevant work
experience, residual functional capacity as the claimant, and which require skills
acquired in the claimant’s past relevant work but no additional skills. The
vocational expert responded and testified that representative occupations such an
individual could perform include: [admissions clerk and quality assurance
positions.]
(Tr. 24). The ALJ thus concluded that plaintiff was not disabled. (Tr. 24).
With regard to the quality assurance position, the Court agrees that the VE’s testimony is
confusing. The initial source of the confusion is that the ALJ asked a compound hypothetical,
which required the VE to first identify “work within [plaintiff’s] RFC” and then to determine
whether plaintiff had transferable skills. Instead of responding to the question asked, the VE gave
an indirect answer and then backtracked. Her response—“the only one would be the
aforementioned case reviewing type nurse”—seems to identify the position of quality assurance
nurse/case reviewer 1 as within the plaintiff’s capabilities. However, the immediate
qualification—“but that, that’s only at a skilled level, so it’s probably not relevant” fails to
establish whether plaintiff had the necessary transferable skills and implied that she did not
believe it was appropriate for the plaintiff, for whatever reason. Later, when she spoke again
about the skills of a quality assurance nurse, she stated that the work was available, but “again []
they are a skilled position” and “[i]t’s SVP: 7 level job though and it requires the RN skills.” (Tr.
at 50) (emphasis added). The transcript indicates that she may have continued her attempt to
1
The magistrate judge concluded, and this Court agrees, that the VE was understood to be referencing the same
position when she used the terms “case review” and “quality assurance.”
7
explain why plaintiff would be limited as to that position—“It can’t be done by--”—but the ALJ
did not allow her to finish her testimony.
The magistrate judge concluded that the ALJ’s hypothetical question asked the VE to
identify jobs requiring only skills acquired in plaintiff’s past relevant work. If this is a fair
reading of the hypothetical, and the Court agrees that it is, the VE failed to respond in kind. Her
testimony implies that the case reviewer position requires more skills than a registered nurse or
that some other reason would prohibit plaintiff from working in that occupation. Whether or not
she meant to imply that or something different is unclear because the ALJ did not ask her why
she repeatedly attempted to qualify her statements about the plaintiff’s ability to perform the
work. “[I]f the [vocational] expert is unable to testify without qualification about the jobs a
claimant can perform, the ALJ may not rely on his opinion.” Sias v. Sec'y of Health & Human
Servs., 861 F.2d 475, 481 (6th Cir. 1988); see also Hall v. Bowen, 837 F.2d 272, 274 (6th Cir.
1988) (interpreting earlier case as finding that there was no substantial evidence to support other
available work because of “the failure of the vocational expert to testify without qualification
that jobs which the plaintiff could perform actually existed in the economy.”) (citing Graves v.
Sec'y of Health, Educ., & Welfare, 473 F.2d 807, 809 (6th Cir. 1973)). Why the VE did not think
the QA position was relevant to plaintiff, what significance she saw in the position’s skill level,
and who she believed the work “can’t be done by” unanswered questions. The VE did not give
unqualified testimony that the plaintiff could perform quality assurance work and the ALJ thus
did not have substantial evidence to support his finding that she was not disabled.
8
VI.
Conclusion
The plaintiff’s objection is sustained. This case is remanded to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g) for further evaluation of the plaintiff’s claim in
accordance with this ruling. An appropriate order will be entered.
ENTER:
s/ R. Leon Jordan
UNITED STATES DISTRICT JUDGE
9
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?