Ramsdell v. Commissioner, SSA
Filing
16
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 14 Report and Recommendations. It is ORDERED that the decision of the Administrative Law Judge is AFFIRMED. Signed by Judge Amos L. Mazzant, III on 8/10/16. (cm, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
THOMAS S. RAMSDELL
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY
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Civil Action No. 4:14-CV-835
(Judge Mazzant/Judge Nowak)
MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On July 14, 2016, the report of the Magistrate Judge (Dkt. #14) was entered containing proposed
findings of fact and recommendations that the final decision of the Commissioner of Social
Security (“Commissioner”) be affirmed (Dkt. #14). Having received the report of the Magistrate
Judge (Dkt. #14), having considered Plaintiff Thomas S. Ramsdell’s (“Plaintiff”) timely filed
Objections (“Objections”) (Dkt. #15), and having conducted a de novo review of Plaintiff’s
claims and all relevant pleadings, the Court is of the opinion that the findings and conclusions of
the Magistrate Judge are correct, and the Court hereby adopts the Magistrate Judge’s report
(Dkt. #14) as the findings and conclusions of the Court.
BACKGROUND
The facts in this case originate from an appeal of the Commissioner’s decision in a social
security disability insurance case. The facts in this case have been set forth in detail by the
Magistrate Judge, and need not be duplicated in their entirety herein (see Dkt. #14). In summary,
on August 29, 2011, Plaintiff filed an application for disability and disability insurance benefits
under Title II of the Social Security Act (“Act”) alleging an onset disability date of May 1, 2009
(TR at 198-200). Therein, Plaintiff alleged impairments of bilateral sensorineural hearing loss
and status post partial colon resection. Id. at 10-21; 198-200. Plaintiff’s claims were initially
denied by notice November 21, 2011, and again denied upon reconsideration on
February 14, 2012. Id. at 73-74, 77-86. Plaintiff subsequently requested a hearing before an
Administrative Law Judge (“ALJ”) on March 30, 2012. Id. 87-88. The ALJ conducted two
hearings, on December 10, 2012, and August 6, 2013, and at such proceedings heard testimony
from Plaintiff, a medical expert, and a vocational expert (“Vocational Expert”). Id. at 27-56,
57-71. On August 26, 2013, the ALJ issued a decision denying benefits, finding Plaintiff not
disabled at step four; and alternatively, at step five of the sequential evaluation process.
Id. at 10-21. On August 26, 2013, Plaintiff requested Appeals Council review of the ALJ’s
decision, and on October 24, 2014, the Appeals Council denied Plaintiff’s request for review,
making the decision of the ALJ the final decision of the Commissioner.
Id. at 1-6.
On December 23, 2014, Plaintiff filed his Complaint in this Court (Dkt. #1). On July 14, 2016,
the Magistrate Judge issued a Report and Recommendation (Dkt. #14). On July 28, 2016,
Plaintiff filed his Objections to Report and Recommendation of Magistrate Ruling (Dkt. #15).
PLAINTIFF’S OBJECTIONS
Under the law, a party who files timely written objections to a magistrate judge's report
and recommendation is entitled to a de novo determination of those findings or recommendations
to which the party specifically objects. 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b)(2)-(3).
Plaintiff objects to the Magistrate Judge’s findings at step five of the sequential evaluation,
arguing that the Magistrate Judge’s conclusion — that the Commissioner properly established
the existence of other work Plaintiff can perform — is incorrect (Dkt. #15). Plaintiff does not
object to the findings by the Magistrate Judge at step four, including specifically that
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(1) the ALJ was not required to elicit vocational expert testimony in response to a hypothetical
incorporating the precise residual functional capacity limitations found by the ALJ at step four
(Dkt. #14 at 12-13); (2) substantial evidence supports the ALJ’s residual functional capacity
finding (Dkt. #14 at 15-22); and (3) substantial evidence does not support the ALJ’s finding that
Plaintiff, given the residual functional capacity found by the ALJ, could perform his past relevant
work at step four (Dkt. #14 at 23-26; see Dkt. #15). As such, the Court adopts these findings and
conclusions of the Magistrate Judge as the findings and conclusions of the Court. The Court
now turns to Plaintiff’s Objections to the Magistrate Judge’s conclusion at step five. Plaintiff
specifically argues that (1) the ALJ could not rely on the Medical-Vocational Guidelines
(“GRIDS”) and is mandated to obtain vocational expert testimony at step five; and
(2) no evidence exists that there are jobs at the medium exertion level Plaintiff can perform.
Objection #1: Whether Vocational Expert Testimony was Required at Step Five
Plaintiff asserts that the ALJ improperly relied on the GRIDS in making the step five
finding, and was mandated to obtain vocational expert testimony given Plaintiff’s non-exertional
limitation (Dkt. #15). Plaintiff’s objection thus reiterates Plaintiff’s position from his opening
brief that vocational expert testimony is required at step five in the presence of any noise and/or
hearing-related impairment (Dkt. #15 at 2-5). Plaintiff specifically asserts that SSR 85-15 and
SSR 96-9P require the ALJ to perform an individualized assessment as to the effect of any
hearing loss on the occupational base; as such, the ALJ must consult a vocational expert, and
may not utilize the GRIDS at step five, in the presence of any noise and/or hearing residual
functional limitation. Id. Notably, SSR 85-15 states:
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Communication is an important factor in work. The inability to hear, because it
vitally affects communication, is thus of great importance. However, hearing
impairments do not necessarily prevent communication, and differences in types
of work may be compatible with various degrees of hearing loss. Occupations
involving loud noise, such as in printing, have traditionally attracted persons with
hearing impairments, whereas individuals with normal hearing have to wear ear
protectors to be able to tolerate the working conditions. On the other hand,
occupations such as bus driver require good hearing. There are so many possible
medical variables of hearing loss that consultation of vocational reference
materials or the assistance of a VS is often necessary to decide the effect on the
broad world of work.
Social Security Ruling 85-15, Soc. Sec. Rep. Serv. 343, 1985 WL 56857, at *8 (Jan. 1, 1985)
(“SSR 85-15”). SSR 96-9P states:
Since all work environments entail some level of noise, restrictions on the ability
to work in a noisy workplace must be evaluated on an individual basis. The
unskilled sedentary occupational base may or may not be significantly eroded
depending on the facts in the case record. In such cases, it may be especially
useful to consult a vocational resource.
Social Security Ruling 96-9P, 1996 WL 374185, at *9 (S.S.A. July 2, 1996) (hereinafter
“SSR 96-9P”). The Magistrate Judge directly addressed SSR 85-15 in detail in the underlying
report, finding that the section quoted by Plaintiff, while significant, maintains the ALJ's discretion
to call a vocational expert (Dkt. #14 at 28-28). Moreover, Plaintiff’s quotation of SSR 85-15
removes the statement from its context which makes clear that consultation of vocational
reference materials OR a vocational expert may in some circumstances be necessary, but is not
required. SSR 85-15, 1985 WL 56857, at *8. Plaintiff also cites SSR 96-9P in his Objections
(Dkt. #15 at 2-6). Plaintiff failed to raise SSR 96-9P in his opening brief; further, Plaintiff’s
selective quotation of SSR 96-9P similarly removes the requisite statement from its full context
(see Dkt. #8; Dkt. #11). SSR 96-9P also in no way mandates use of a vocational expert at step
five where a limitation or restriction on noise is present. SSR 96-9P, 1996 WL 374185, at *9.
Thus, in context, each of SSR 85-15 and SSR 96-9P supports the Magistrate Judge’s finding that
an ALJ may still use the GRIDS to direct a finding of not disabled, in the absence of vocational
expert input, so long as sufficient medical evidence exists to support such use. Bruce v. Astrue,
No. 2:09-CV-0200, 2011 WL 4435301, at *9-11 (N.D. Tex. Sept. 7, 2011), report and
recommendation adopted, No. 2:09-CV-0200, 2011 WL 4439503 (N.D. Tex. Sept. 23, 2011)
(stating that ALJ properly relied on Medical-Vocational Guidelines, SSR 85-15, and medical
evidence in finding claimant was not disabled at step five). Plaintiff’s counsel argues the “better
practice would be to follow the guidance of both rulings and to consult a vocational specialist”
(Dkt. #15 at 5-6). The Court does not disagree with Plaintiff’s proposition in principle; however,
that does not alter that such a practice is not mandated. The Court cannot remand based on
Plaintiff’s belief regarding how the step five analysis is best performed.1
In addition, Plaintiff also argues that any non-exertional limitations stemming from an
impairment found “severe” at step two preclude use of the GRIDs and requires vocational
expert testimony at step five. Plaintiff’s argument is illogical. (Dkt. #15 at 2-3). As the
Magistrate Judge correctly recognized, an impairment must be found severe at step two under
Stone v. Heckler unless “it is a slight abnormality having such minimal effect on the individual
that it would not be expected to interfere with the individual’s ability to work.” Stone v. Heckler,
752 F.2d 1099, 1103-04 (5th Cir. 1985). This is a low burden, and a different inquiry than that
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The cases cited by Plaintiff in support of his objection — that the GRIDS cannot be used and a vocational expert
must be called in the presence of any restriction on noise — are inapposite or readily distinguishable. Here, Plaintiff
suffers from two impairments, one exertional and one non-exertional, the ALJ called a Vocational Expert (although
not in response to the precise hypothetical), and the ALJ relied on a social security ruling, not the DOT, in making
the ALJ’s determination at step five. Id. Indeed, Heckler v. Campbell found that the GRIDS can be used in lieu of
vocational expert testimony, and Bowling v. Shalala and Carry v. Heckler, while referencing the GRIDs, were
decided on other grounds. Heckler v. Campbell, 461 U.S. 458, 467 (1983) (finding Medical-Vocational Guidelines
can be uses in social security cases); Carry v. Heckler, 750 F.2d 479, 483 (5th Cir. 1985); Bowling v. Shalala,
36 F.3d 431, 435-37 (5th Cir. 1994). The Fifth Circuit in Carey v. Apfel did not consider the propriety or
impropriety of the ALJ’s use of the GRIDS because it found the ALJ did not rely upon them to render a decision.
Carey v. Apfel, 230 F.3d 131, 147 (5th Cir. 2000). And finally, Fields v. Bowen considered a situation in which the
claimant suffered only from a non-exertional (mental) impairment and not a combination of physical and mental
impairments, and the ALJ failed to request vocational expert testimony and/or rely on any evidence besides the
Dictionary of Occupational Titles to support the ALJ’s step five finding. Fields v. Bowen, 805 F.2d 1168, 1171
(5th Cir. 1986) holding modified by Carey v. Apfel, 230 F.3d 130-32 (5th Cir. 2000).
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performed at the later steps of the sequential evaluation. Adams v. Colvin, N. 4:12-CV-490-A,
2013 WL 5193095 (N.D. Tex. 2013). Plaintiff’s argument, taken to its natural conclusion,
suggests that any non-exertional limitation, however small, found by the ALJ at step four
stemming from a severe impairment would be deemed to “significantly affect” the residual
functional capacity and mandate vocational expert testimony at step five. “Significantly affect”
under the Fifth Circuit’s opinion in Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990), and
use of the GRIDS generally, would thus be significantly constrained, as a vocational expert
would be required in virtually all cases, except those where a bare exertion level (e.g. all light
work, all medium work) is found. See Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990)
(allowing use of the GRIDS when any non-exertional limitations found do not “significantly
affect” the residual functional capacity); 20 C.F.R. § Pt. 404, Subpt. P, App. 2. The ALJ did not
err in using the GRIDS or in failing to obtain further vocational expert testimony. The decision
to call a vocational expert is generally not mandatory and is within the discretion of the ALJ at
step five.
Objection #2: Whether Jobs Exist that Plaintiff Can Perform at the Medium Exertion Level
Plaintiff’s next objection argues that the Magistrate Judge erred in finding that
GRID § 203.15 applied, because no jobs are present in the national economy at the medium
exertion level that Plaintiff can perform (Dkt. #15 at 6-8). Notably, Plaintiff does not challenge,
nor has he objected to the ALJ’s findings regarding Plaintiff’s exertion level of medium or lack
of exertional limitations (Dkt. #14 at 3). The ALJ specifically found that Plaintiff was not
limited to light work, but could perform the higher exertion level of medium work (TR at 17-21).
More specifically, the ALJ found that Plaintiff could perform medium work with no additional
exertional limitations, and one non-exertional limitation: avoid exposure to concentrated noise
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(TR at 17-21). A finding that an individual can perform medium work means that such an
individual can perform medium work, light work and sedentary work jobs, because such jobs are
within
or
below
the
individual’s
exertional
residual
functional
limitations.
20 C.F.R. § 404.1567(c); Haynes v. Colvin, No. 6:12-CV-00330-WSS, 2015 WL 3964783, at *8
(W.D. Tex. June 29, 2015) (finding ALJ’s finding that claimant can perform light work not
inconsistent with vocational expert testimony that claimant can perform medium work with
limitations); Robinson v. Colvin, No. CIV.A. 13-175-JJB-RL, 2014 WL 4278840, at *3
(M.D. La. Aug. 28, 2014) (noting claimant’s residual functional capacity of medium work
included ability to perform medium, light, and sedentary work).
Notwithstanding, Plaintiff argues that SSR 83-12 requires a finding that Plaintiff is
disabled, because Plaintiff’s non-exertional limitation erodes the medium occupational base
significantly, such that GRID § 202.06 (light work, directing a finding of disabled), not
GRID § 203.15 should have been applied (Dkt. #15 at 7). Plaintiff intimates in connection with
this argument that the Magistrate Judge’s report improperly found — in reliance on the
testimony of the Vocational Expert — that Plaintiff’s hearing impairments would not erode the
medium occupational base (i.e. that they would have only a minimal impact on the number of
unskilled medium jobs). Id.
Plaintiff’s citation to Social Security Ruling 83-12 is misplaced (Dkt. #15 at 7).
SSR 83-12 states that where a claimant’s exertion level is between two categories, the ALJ must
determine the erosion of the higher exertion level occupational base, and if the erosion is
significant, the lower exertion level GRIDS finding should be used. SSR 83-12, 1983-1991
Soc.Sec.Rep.Serv. 36 (S.S.A. 1983). Accordingly, SSR 83-12 applies, by definition, only to
those cases where the exertional limitations are between two exertion levels. Id. Here, the
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ALJ’s findings regarding exertion level residual functional capacity limitations were
unequivocal; there is no dispute Plaintiff may perform medium exertion work without any
exertional limitations (TR at 10-21). And Plaintiff does not challenge this exertion level finding
(Dkt. #8; Dkt. #9; Dkt. #11; Dkt. #14; Dkt. #15).
Additionally, the fact that the Vocational Expert identified at hearing only light work
does not establish that the medium occupational base has been significantly eroded pursuant to
SSR 83-12 or that GRID § 202.06 (light work) rather than § 203.15 (medium work) should be
used (Dkt. #15 at 6-8). The Vocational Expert was testifying in response to a more restrictive
hypothetical than that ultimately adopted by the ALJ, which included a limitation to light work
(TR at 48-56). Plaintiff again argues that the Magistrate Judge’s findings at step five are
incorrect because the Magistrate Judge relied on the testimony of the Vocational Expert at step
five, which Plaintiff posits undercuts the ALJ’s determination that “there are other jobs that exist
in significant numbers in the national economy that the [Plaintiff] can perform” (Dkt. #15 at 6-8;
TR at 20-21). As previously discussed, the ALJ, while not required to, did in fact call a
Vocational Expert at hearing. Id. at 27-56. The Vocational Expert testified in response to
hypothetical incorporating more restrictive exertional and non-exertional limitations than those
ultimately found by the ALJ, that Plaintiff could perform three listed jobs at the light exertional
level (TR at 51-52). However, the ALJ did not expressly rely upon the testimony of the
Vocational Expert at step five; rather, the ALJ relied upon the GRIDS. Id. at 20-21. In the
report and recommendation, the Magistrate Judge, after noting the significant other evidence
which supports the ALJ’s step five findings, states:
The Vocational Expert’s testimony, despite Plaintiff’s assertions to the contrary,
supports the ALJ’s Determination, even if the ALJ did not expressly rely
thereupon…the Vocational Expert’s testimony provides additional evidence to
support the ALJ’s Determination that Plaintiff was not disabled at step five.
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(Dkt. #14 at 30-31). The Magistrate Judge’s only assertion is that the Vocational Expert
testimony provides additional support (although it is not required) for the ALJ’s determination
that Plaintiff can perform “other jobs in significant numbers in the national economy”
(Dkt. #14 at 30-33).2
Here, using a medium exertion level at step five, the ALJ properly analyzed whether the
GRIDS could be utilized to direct a finding of disabled or not disabled, including whether
Plaintiff’s sole non-exertional limitation of “avoid concentrated exposure to noise” substantially
affected Plaintiff’s residual functional capacity under the Fifth Circuit’s jurisprudence in
Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (TR at 20-21). The ALJ, citing SSR 85-15
(discussed previously infra), specifically found that the limitation to “avoid concentrated
exposure to noise” “had little or no effect on the occupational base of unskilled medium work”
and “would have only a minimal impact on the number of unskilled medium jobs as represented
by Medical-Vocational Rule § 203.15.” Id. The ALJ therefore concluded that the GRIDS could
be applied at step five, and directed a finding of not disabled. Id. The Magistrate Judge, in turn,
found that the ALJ’s decision to utilize the GRIDS, and the resulting findings at step five, were
supported by substantial evidence (Dkt. #14 at 26-33). The Court herein agrees. Vocational
expert testimony was not required at step five (See infra Objection #1); and at step five, in light
of Plaintiff’s age, work history, transferrable skills, and ability to perform medium work, the
sequential evaluation results in a finding of not disabled under Medical-Vocational
Guideline § 203.15. 20 C.F.R. § Pt. 404, Subpt. P, App. 2. There are a significant number of
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Moreover, to the extent that Plaintiff argues that the Vocational Expert testimony undercuts the ALJ’s findings at
step five, Plaintiff is incorrect (Dkt. #15 at 6-8). The Fifth Circuit’s precedent is clear that vocational expert
testimony in response to a more restrictive hypothetical than ultimately selected by the ALJ may provide support for
the ALJ’s ultimate finding; specifically, it shows that even with more restrictions, there are still other jobs in the
national economy that a claimant can perform. Frazier v. Colvin, No. CIV.A. 12-1728, 2013 WL 4040061, at *5
(W.D. La. Aug. 7, 2013) (affirming finding that claimant not disabled at step five where hypothetical included more
restrictive limitations than those found by the ALJ, but included all of claimant’s residual functional limitations).
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occupations Plaintiff can perform, indeed at that level, § 203.00 (b) of the GRIDS notes:
“[t]he functional capacity to perform medium work represents such substantial work capability at
even the unskilled level that a finding of disabled is ordinarily not warranted in cases where a
severely impaired person retains the functional capacity to perform medium work. Even the
adversity of advanced age (55 or over) and a work history of unskilled work may be offset by the
substantial work capability represented by the functional capacity to perform medium work.” Id.
The Court finds that use of the GRIDS, specifically GRID § 203.15, was proper here, and directs
a finding of not disabled in this instance. Plaintiff’s Objections are overruled.
CONCLUSION
Having received the report of the United States Magistrate Judge (Dkt. #14), having
considered Plaintiff’s timely filed Objections (Dkt. #15), and having conducted a de novo
review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and adopts the Magistrate Judge’s report (Dkt. #14) as the findings and conclusions of the
. Court.
It is, therefore, ORDERED that the decision of the Administrative Law Judge is
AFFIRMED.
IT IS SO ORDERED.
SIGNED this 10th day of August, 2016.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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