Karras v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge C Clifford Shirley, Jr on 8/1/17. (ABF) (Main Document replaced: had the Judgment order attached and not the memorandum opinion, the orders were corrected on 8/1/2017) (ABF).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KATHY KARRAS,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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No. 3:16-CV-92-CCS

MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the
Federal Rules of Civil Procedure, and the consent of the parties [Doc. 12]. Now before the Court
is the Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 13 & 14]
and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 15 &
16]. Kathy Karras (“the Plaintiff”) seeks judicial review of the decision of the Administrative Law
Judge (“the ALJ”), the final decision of the Defendant Nancy A. Berryhill, Acting Commissioner
of Social Security (“the Commissioner”). For the reasons that follow, the Court will GRANT IN
PART and DENY IN PART the Plaintiff’s motion, and GRANT IN PART and DENY IN
PART the Commissioner’s motion.
I.

PROCEDURAL HISTORY
On July 25, 2012, the Plaintiff filed an application for disability insurance benefits (“DIB”),

claiming a period of disability which began August 30, 2010. [Tr. 67, 83, 169-71]. After her

1

During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner
Carolyn W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted as the Defendant in this case.

application was denied initially and upon reconsideration, the Plaintiff requested a hearing. [Tr.
113]. A hearing was held before the ALJ on October 22, 2014 [Tr. 33-66], and on December 16,
2014, the ALJ found that the Plaintiff was not “disabled.” [Tr. 1-29]. The Appeals Council denied
the Plaintiff’s request for review [Tr. 1-5]; thus, the ALJ’s decision became the final decision of
the Commissioner.
Having exhausted her administrative remedies, the Plaintiff filed a Complaint with this
Court on February 24, 2016, seeking judicial review of the Commissioner’s final decision under
Section 405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive
motions, and this matter is now ripe for adjudication.
II.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
2

The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
III.

ANALYSIS
This case involves an application for DIB. An individual qualifies for DIB if he or she: (1)

is insured for DIB; (2) has not reached the age of retirement; (3) has filed an application for DIB;
and (4) is disabled. 42 U.S.C. § 423(a)(1).
“Disability” is 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 twelve months.”
§ 423(d)(1)(A); 20 C.F.R. § 404.1505(a). A claimant will only be considered disabled 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.
42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).
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
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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).
The claimant bears the burden of proof at the first four steps. Id. The burden shifts to the
Commissioner at step five. Id. At the fifth step, the Commissioner must prove that there is work
available in the national economy that the claimant could perform. Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
The Plaintiff’s allegations of error can be summarized into two main arguments. First, the
Plaintiff contends that substantial evidence does not support the ALJ’s RFC determination because
the ALJ failed to properly evaluate the medical opinions from consultative examiner William
Keeney, Ph.D., nonexamining state agency physician Rebecca Sweeney, Ph.D.,2 and treating
physician Richard Gaddis, D.O. [Doc. 14 at 6-16]. Second, the Plaintiff argues that the ALJ’s
Step 4 finding, in which the ALJ concluded that the Plaintiff has past relevant work as a “mortgage

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In the Plaintiff’s brief, she mistakenly identifies Edward Sacks, Ph.D., as the
nonexamining state agency physician whose opinion the ALJ adopted. [Doc. 14 at 6-7]. Dr. Sacks
reviewed the record at the initial state-agency level. [Tr. 74-75, 78-80]. The ALJ, however,
adopted the opinion of Dr. Sweeney [Tr. 24] who reviewed the record at the reconsideration level
[Tr. 73-80, 90-97].
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clerk” and “collections and/or customer service representative” [Tr. 24-25], is likewise not
supported by substantial evidence. [Doc. 14 at 4-5]. The Court will address each argument in
turn.
A.

Medical Opinions of Record
1.

Dr. Sweeney and Dr. Kenney

The Plaintiff argues that her RFC does not reflect all of the limitations opined by Dr.
Sweeney and Dr. Kenney, whose opinions the ALJ generally adopted. [Doc. 14 at 6-8].
Dr. Kenney performed a consultative examination on October 23, 2012 [Tr. 692-94],
wherein he opined that the Plaintiff had mild limitations in her ability to understand and remember,
moderate limitations in her ability to concentrate, persist, and interact socially, and moderate-tomarked limitations in adaption [Tr. 694]. On May 31, 2013, nonexamining state agency physician
Dr. Sweeney conducted a review of the record, which included the opinion of Dr. Kenney. [Tr.
85-92, 95-97]. Dr. Sweeney concluded that the Plaintiff could carry out simple and detailed tasks
over a full workday and workweek, she could make routine work related decision but not executive
ones, she could relate appropriately to co-workers and frequently with supervisors and the general
public, and she could adopt to gradual or infrequent changes. [Tr. 95-96].
In the disability determination, the ALJ concluded that the Plaintiff had the following RFC
in regard to mental limitations:
She can carry out simple and detailed tasks over a full workday and
workweek; she has the ability to make routine work related
decisions within the range of simple to detailed work tasks; she has
the ability tolerate appropriately to co-workers, and she can
frequently interact with supervisions and with the general public;
and she can adapt to gradual or infrequent changes at work.
[Tr. 18]. The ALJ assigned “great weight” to Dr. Sweeney’s opinion, finding that the opinion was
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expressed as a function-by-function analysis consistent with Social Security Ruling 96-8p, and
that the limitations assessed were consistent with the objective evidence, the Plaintiff’s reported
activities, and other medical opinions of record. [Tr. 24]. The ALJ also observed that Dr.
Kenney’s opinion was generally consistent with an ability to perform skilled work, but assigned
the opinion “partial weight” because the opinion was not expressed in a function-by-function
manner. [Id.].
The Plaintiff argues that the ALJ’s RFC determination diverges from both doctors’
opinions in “several distinct ways,” and the ALJ’s failure to provide a reasoned explanation for
such departure constitutes reversible error. [Doc. 14 at 6-8]. Specifically, the Plaintiff contends
that the RFC does not include Dr. Sweeney’s finding that the Plaintiff can only make routine workrelated decision and cannot perform executive decisions. [Id. at 7]. As to Dr. Kenney, the Plaintiff
does not identify any functional limitations opined by Dr. Kenney that should have been, but was
not, included in the Plaintiff’s RFC.
The Court finds no merit in the Plaintiff’s contention for several reasons. First, the
purported discrepancy between the Plaintiff’s RFC and Dr. Sweeney’s opinion, as argued by the
Commissioner [Doc. 16 at 8], amounts to “a distinction without a difference.” While Dr. Sweeny
opined that the Plaintiff “can make routine work related decisions but not executive decisions,” the
ALJ limited the Plaintiff to “routine work related decisions within the range of simple detailed
work tasks.” [Tr. 18, 96] (emphasis added). By virtue of being limited to routine work related
decisions, logic follows that executive decisionmaking abilities fall outside of the Plaintiff’s RFC.
The ALJ did not need to include the additional language “but not executive decisions” for the
Plaintiff’s RFC to be consistent with Dr. Sweeney’s opinion. See Behnke v. Comm’r of Soc. Sec.,
No. 1:10 CV 2105, 2011 WL 5506289, at *5 (N.D. Ohio Aug. 26, 2011) (a medical opinion and
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RFC “need not be identical to be compatible”) adopted by No. 1:10CV2105, 2011 WL 5519856
(N.D. Ohio Nov. 10, 2011) (citing Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *5 (July 2, 1996)).
Second, the Plaintiff’s contention that her RFC does not include additional limitations assessed by
Dr. Kenney is equally unpersuasive. Dr. Kenney simply assessed the severity of the Plaintiff’s
ability to perform work-related activities in terms of “mild,” “moderate,” or “marked” but did not
translate his findings into any specific functional limitations. Moreover, the Plaintiff does not
identify any particular functional limitation that should have been included in her RFC. The ALJ
found Dr. Kenney’s opinion generally consistent with skilled work, and the Plaintiff has not
provided any evidence to the contrary.
Accordingly, the Court finds the Plaintiff’s allegations of error in this regard not welltaken.
2.

Treating Physician Dr. Gaddis

The Plaintiff submits that the ALJ did not give “good reason” for rejecting the opinion of
Dr. Gaddis.
Dr. Gaddis is the Plaintiff’s primary care physician who, in relevant part, treated the
Plaintiff for depression and anxiety. On June 14, 2013, Dr. Gaddis completed a Medical Opinion
Questionnaire, opining on how the Plaintiff’s mental and emotional capacities are affected by her
impairments. [Tr.720-22]. Dr. Gaddis indicated that the Plaintiff would be unable or have a
serious limitation performing the following: interact appropriately with the public; travel in
unfamiliar places; use public transportation; understand, remember and carry out detailed
instructions; deal with the stress of semiskilled and skilled work; maintain attention for 2 hour
segments; maintain regular attendance and be punctual within customary, usually strict tolerances;
make simple work-related decisions; complete a normal workday and workweek without
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interruptions from psychologically based symptoms; perform at a consistent pace without an
unreasonable number and length of rest periods; respond appropriately to changes in a routine
work setting; and deal with normal work stress. [Tr. 721-22]. Dr. Gaddis further explained that
the Plaintiff has poor coping skills, and she would be absent from work more than twice a month.
[Tr. 722].
The ALJ assigned “minimal weight” to the opinion for several reasons. [Tr. 24]. First, the
ALJ observed that Dr. Gaddis’s findings were not supported by his treatment notes which “did not
provide documented clinical signs to support such limits.” [Id.]. Second, when comparing Dr.
Gaddis’s treatment notes to his opinion, the ALJ found that the functional limitations assessed
appeared to be based upon the Plaintiff’s statements and not clinical examination findings. [Id.].
Lastly, the ALJ determined that the limitations were excessive given the record as a whole. [Id.].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other
substantial evidence in the case record, it must be given “controlling weight.” 20 C.F.R.§
404.1527(c)(2). When an opinion does not garner controlling weight, the appropriate weight to be
given to an opinion will be determined based upon the length of treatment, frequency of
examination, nature and extent of the treatment relationship, amount of relevant evidence that
supports the opinion, the opinion’s consistency with the record as a whole, the specialization of
the source, and other factors which tend to support or contradict the opinion. Id. The ALJ must
also give “good reasons” for the weight given to a treating source’s opinion when it is not given
controlling weight. Id.
Moreover, a decision denying benefits “must contain specific reasons for the weight given
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to the treating source’s medical opinion, supported by evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for the weight.” Soc. Sec. Rul. 96-2p, 1996
WL 374188 at *5 (July 2, 1996). Nonetheless, the ultimate decision of disability rests with the
ALJ. See King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Sullenger v. Comm’r of Soc. Sec.,
255 F. App’x 988, 992 (6th Cir. 2007).
The Plaintiff contends that the ALJ “gave no obvious consideration to” several factors
enumerated in 20 C.F.R. § 404.1527(c), such as “Dr. Gaddis is likely to be the medical professional
most able to provide a detailed, longitudinal picture of [the Plaintiff’s] medical impairment,” the
length of treatment and frequency of examination, or the nature and extent of the treatment
relationship. [Doc. 14 at 14-15]. The Court disagrees. The ALJ acknowledged throughout his
decision that Dr. Gaddis was the Plaintiff’s primary care and treating physician and discussed in
detail Dr. Gaddis’s examination findings and treatment records. [Tr. 19-24]. Moreover, nothing
within 20 C.F.R. § 404.1527(c)(2) mandates that every factor be explicitly discussed. See
McClain-Nelson v. Comm’r of Soc. Sec., No. 12-14490, 2014 WL 988910, at *7 (E.D. Mich. Mar.
13, 2014) (“[A]n ALJ is not required to discuss every factor listed in 20 C.F.R. § 404.1527[(c)].”);
see also Buchert v. Comm’r of Soc. Sec., No. 3:13-CV-01418, 2014 WL 1304993, at *7 (N.D.
Ohio Mar. 27, 2014) (holding same). The ALJ need only consider the regulatory factors in
weighing a treating physician’s opinion.
The Plaintiff also maintains that the reasons cited by the ALJ for discounting Dr. Gaddis’s
opinion does not amount to “good reason.” [Doc. 14 at 14]. The Plaintiff argues that the ALJ only
gave “one basis, that it was not consistent with his treatment notes or the record as whole” and that
the ALJ failed to identify any treatment note or other record evidence that contradicts the opinion.
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[Id. at 14-15]. The Court finds that the ALJ gave three reasons for declining to give more weight
to Dr. Gaddis’s opinion and each reason cited by the ALJ was “good reason” supported by the
record.
In reaching this conclusion, the Court observes that the ALJ first cited to the lack of
corroboration within Dr. Gaddis’s own treatment notes. The ALJ recognized that the Plaintiff
suffered from depression and anxiety but that Dr. Gaddis’s treatment notes indicated improvement.
[Tr. 19-23]. Specifcally, Dr. Gaddis noted that the Plaintiff was doing better emotionally, she was
only mildly depressed, she demonstrated appropriate mood and affect, and she reported greatly
diminished anxiety after her involvement in a lawsuit had been resolved. [Id.]. “ALJs may
discount treating-physician opinions that are inconsistent with substantial evidence in the record,
like the physician’s own treatment notes.” Leeman v. Comm’r of Soc. Sec., 449 F. App’x 496, 497
(6th Cir. 2011). While the Plaintiff cites to other treatment records authored by Dr. Gaddis to
argue that the Plaintiff’s mood was unstable, [Doc. 14 at 15-16 n.8], “[i]f substantial evidence
supports the Commissioner’s decision, this Court will defer to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Longworth
v. Comm’r Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm’r of
Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)).
The ALJ also noted that the limitations assessed by Dr. Gaddis appeared to be based on the
Plaintiff’s statements. The ALJ based his finding on the fact that Dr. Gaddis’s examination
findings were disproportionate to the limitations assessed. For example, the ALJ referenced
treatment notes wherein Dr. Gaddis remarked that in August and September 2012, the Plaintiff
demonstrated partial symptom improvement with counseling and decrease in anxiety, in August
2013, the Plaintiff was noted as only mildly depressed, and in January 2014, despite suffering from
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depression and anxiety at times, the Plaintiff was noted to be doing better emotionally. [Tr. 23].
As observed by the Sixth Circuit Court of Appeals, “subjective complaints may support a finding
of disability only where objective medical evidence confirms the severity of the alleged
symptoms.” Workman v. Commissioner of Social Security, 105 F. App’x 794, 801 (6th Cir.2004)
(citing Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir.1989)).
Finally, the ALJ concluded that Dr. Gaddis’s opinion was also inconsistent with other
record evidence. In this regard, the ALJ discussed other evidence in addition to Dr. Gaddis’s
treatment notes that demonstrated the Plaintiff showed improvement in response to counseling and
other mental health treatment. In August 2012, the Plaintiff reported diminished anxiety during a
counseling session following the resolution of a lawsuit where she had been sued for breach of
contract. [Tr. 23]. Later that same month, the Plaintiff showed improvement with crying spells
and being socially withdrawn. [Id.]. Dr. Gaddis agreed that the Plaintiff’s anxiety had decreased.
[Id.]. Moreover, the ALJ observed that the Plaintiff’s daily living activities, including the ability
to bath and dress herself, change the bed linens, wash clothes, sweep the flow, vacuum, wash
dishes, care for her ailing mother for six months, and attend appointments and her daughter’s
softball games, undermined the Plaintiff’s alleged inability to perform work-related activities.
[Id.].
Accordingly, the Court finds the ALJ’s decision, when viewed in its entirety and not merely
the portion in which Dr. Gaddis’s opinion is assigned minimal weight, demonstrates that the ALJ
provided a reasoned explanation, supported by substantial evidence, for finding that Dr. Gaddis’s
opinion was inconsistent with his own treatment notes, appeared to be based on the Plaintiff’s
subjective allegations, and was inconsistent with other substantial evidence in the record.

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B.

Step Four

The Plaintiff maintains that the ALJ’s Step Four finding is not supported by substantial
evidence.
At Step Four, the ALJ found that the Plaintiff has past relevant work she is able to perform
given her RFC. [Tr. 24-25]. In making this finding, the ALJ concluded that the Plaintiff could
perform her prior jobs as “a mortgage clerk (sedentary and [specific vocational preparation
(“SVP”)] 5, skilled) and collections and/or customer service representative (sedentary/light and
SVP 4, semi-skilled/SVP 5, skilled).” [Tr. 24]. That ALJ found that both jobs could be done as
actually performed by the Plaintiff and as generally performed in the national economy. [Tr. 25].
“A claimant bears the burden of proving she cannot perform her past relevant work either
as she performed the job or as the job is generally performed in the national economy.” Ellis v.
Astrue, No. 3:11-CV-535, 2012 WL 5304203, at *5 (E.D. Tenn. Oct. 4, 2012) (internal citations
omitted) (citing Studaway v. Sec’y of Health and Human Servs., 815 F.2d 1074, 1076 (6th Cir.
1987)). Past work is relevant if three conditions are met: (1) the work was performed at the level
of substantial gainful activity, (2) the job was performed long enough for the claimant to learn it,
and (3) the job was performed in the past 15 years. 20 C.F.R. § 404.1560(b)(1). “Past work
experience must be considered carefully to assure that the available facts support a conclusion
regarding the claimant’s ability or inability to perform the functional activities required in this
work.” Social Security Ruling 82-62, 1982 WL 31386, at *2 (Jan. 1, 1982). Moreover, “the
Commissioner’s decision must explain why the claimant can perform the demands and duties of
the past job . . . .” D’Angelo v. Comm’r of Soc. Sec., 475 F. Supp. 2d 716, 723 (W.D. Mich. 2007).
The Plaintiff asserts that the mortgage clerk job was misclassified by the ALJ because the
Plaintiff testified she never worked as a mortgage clerk and the two Work History Reports of
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record, which differ from one another, led the vocational expert (“VE”) to conclude that the
Plaintiff’s job was more akin to “a customer service person.” [Doc. 14 at 4 n.4]. The Plaintiff also
maintains that she could not perform the job, classified with a SVP of 5, because she did not
perform it long enough for it to be considered relevant. [Id.].
The Court observes that on the initial Work History Report dated August 7, 2012, which
was completed by the Plaintiff’s husband [Tr. 223], the mortgage clerk job was identified as
“Vanderbilt Mortgage,” and the type of business was noted as “Home Financing,” with the dates
of employment ranging from “2005-2005.” [Tr. 215, 218]. No further description of the job or its
duties was included. In the second Work History Report dated May 8, 2013, which was more
detailed and completed by an examiner with the Social Security Administration, the job was
identified as “payment clerk,” the type of business was noted as “Vanderbilt Mortgage,” and the
dates of employment again ranged from “2005 to 2005.” [Tr. 224]. Based on a description of the
job and responsibilities which was included in the report, the examiner noted that the Plaintiff’s
job “appears to be a collection clerk [DOT] 241.357-101 S 5.” [Tr. 226]. In addition, the examiner
noted that the Plaintiff only stayed in her positon for “about 6 months” and that she “did not do
this job long enough to be considered relevant.” [Id.].
During the administrative hearing the following exchange took place between the ALJ and
the VE:
[ALJ] Q. Okay. And the collection, the home financing, the
mortgage financing, what did she do for them?
[VE] A. The mortgage clerk –
Q. Yes.
A. – is my interpretation. If it was done -- it needs to have been
done for about six months to have met the SVP, but a mortgage clerk
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is sedentary and an SVP: 5, also skilled work.
Q. Okay. And that, all right. Well, that’s fine. And you say it was
only done for six months?
A. No, I said if it was – it just gave ‘05 to ‘05.
Q. Well, it was apparently done through 2005.
A. Well, I didn’t know if it was part of ‘05 or -Q. I don’t either. I have no magic powers. Psychic isn’t even
among the many things I’m good at.
A. It was done for at least six months, it would meet the SVP.
[Tr. 55] (emphasis added). Later in the hearing, the Plaintiff interjected and stated she was never
a mortgage clerk. [Tr. 61]. The ALJ then remarked that based on the Plaintiff’s earlier testimony
that she had memory problems and could not recall specific information in answering questions
about her work history, he would have to rely on her written Work History Reports. [Tr. 36, 61].
At this juncture, the VE acknowledged that “[t]here were two work history reports that weren’t
exactly the same.” [Id.]. The ALJ proceeded to review the two reports on the record, observing
that the first one had the Plaintiff’s “job listed as Vanderbilt Mortgage, home financing, 2005,”
while the second report had more information about her duties and actually identified her job as a
“payment clerk at Vanderbilt Mortgage.” [Tr. 62].
The Court finds that the ALJ properly characterized the Plaintiff’s past job as a mortgage
clerk. Social Security Ruling 00-4P envisions that VE testimony will offer the necessary guidance
when complex vocational matters arise. 2000 WL 1898704, at *2. Indeed, VE testimony in this
case was instructive where the ALJ was faced with conflicting information from the Plaintiff’s
testimony and differing Work History Reports. The VE explained that his “interpretation” of the
record led him to classify the Plaintiff’s past job as a mortgage clerk. Even after the Plaintiff
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interjected that she was never a mortgage clerk, the VE did not change his opinion. Where the VE
based his opinion on the record and the Plaintiff’s testimony, the ALJ properly relied on the VE’s
opinion. Furthermore, the Plaintiff’s reliance on the VE’s testimony that the job was “kind of like
a customer service person” is misplaced as the VE was testifying about the Plaintiff’s job as a
collections/customer service representative with Character Communications from 2006 to 2010.
[Tr. 63-64].
The Court also concludes, however, that substantial evidence does not support a finding
that the Plaintiff met the duration requirement. See 20 C.F.R. § 404.1560(b)(1). In this regard,
the VE unequivocally testified that it was not clear whether the Plaintiff had performed the job of
mortgage clerk for at least six months, and the ALJ himself was not sure how long the Plaintiff
had performed the job. See supra note 12-13, italicized portion. While the examiner who
completed the second Work History Report concluded that the job had been performed “for about
6 months,” she also concluded that six months was not long enough to be considered relevant. In
this regard, the Court notes that in order to perform a job with a SVP of 5, a claimant must have
“[o]ver 6 months up to and including 1 year” of experience. Dictionary of Occupational Titles,
1991 WL 688702 (Jan. 1, 2016) (emphasis added). Thus, the Court finds that the Plaintiff did not
perform the job long enough to be considered relevant.
The Plaintiff further contends she could not perform any of the jobs identified by the ALJ
as past relevant work because they conflicted with her RFC which limited her to frequent
interaction with the general public. [Doc. 14 at 5]. The Court agrees. The VE testified that based
on the Plaintiff’s RFC, specifically the limitation of frequent interaction with the public, it did not
appear that the Plaintiff could perform her past work because they required “more than frequent”
interaction. [Tr. 59-60]. The VE and ALJ proceeded to review the May 2013 Work History Report
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which included a description of the jobs, observing that both the collections and customer service
jobs with Charter Communications required that the Plaintiff interact with customers 40 percent
of time. [Tr. 63]. The VE, however, did not offer any further opinion, and the ALJ concluded,
“Well, I think I’m going to have to be the, the tie breaker on this
decision making . . . I think we’d have to end up debating to some
extent whether or not, and I think that’s probably where the debate
ends up is to whether or not – performing simple and detailed tasks,
the claimant has the ability to relate appropriately to co-workers and
frequently with supervisors and the general public.”
[Tr. 63-64]. Ultimately the ALJ determined that the Plaintiff retained the ability to perform her
past jobs, but it is unclear to the Court how the ALJ reached this decision. The VE testified that
the Plaintiff’s past jobs appeared to require more than frequent interaction, and the ALJ concluded
he would have to make a determination on that point. While such a determination is well within
the ALJ’s purview as factfinder, his decision does not “explain why the [Plaintiff] can perform the
demands and duties of the past job . . . .” D’Angelo, 475 F. at 723. The ALJ’s failure to offer any
explanation for his conclusion signifies a lack of substantial evidence supporting his Step 4 finding.
Accordingly, the Court finds the Plaintiff’s allegation of error at Step 4 is well-taken.
VI.

CONCLUSION
Based on the foregoing, the Plaintiff’s Motion for Summary Judgment on the Pleadings

[Doc. 13] will be GRANTED IN PART and DENIED IN PART, and the Commissioner’s
Motion for Summary Judgment [Doc. 15] will be GRANTED IN PART and DENIED IN
PART. The decision of the Commissioner will be remanded to the ALJ to reevaluate Step 4 of
the sequential evaluation.
ORDER ACCORDINGLY.
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge
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