Faggett v. Berryhill
Filing
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Memorandum Opinion and Order: The hearing decision is affirmed in all respects. (Ordered by Magistrate Judge Rebecca Rutherford on 9/28/2018) (ykp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHERRON F.,
Plaintiff,
v.
NANCAY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Case No. 3:17-cv-01058-BT
MEMORANDUM OPINION AND ORDER
Plaintiff Sherron F. 1 seeks judicial review of a final adverse decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is AFFIRMED.
Background
Plaintiff alleges that she is disabled due to a variety of impairments,
including obesity, diabetes, arthritis, high blood pressure, GERD, asthma, early
onset dementia, seizures, poor circulation, and pain in her back, knees and
hands. See Administrative Record 27 & 188 (“A.R.”) (Dkt. No. 17). After her
applications for disability insurance benefits were denied initially and on
Pursuant to the May 1, 2018 Memorandum Re: Privacy Concern Regarding Social
Security and Immigration Opinions issued by the Committee on Court Administration
and Case Management of the Judicial Conference of the United States, the Court uses
only Plaintiff’s first name and last initial.
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reconsideration, Plaintiff requested a hearing before an administrative law judge
(“ALJ”). That hearing was held on April 1, 2016. See id. 14. At the time of the
hearing, Plaintiff was 55 years old. See id. 18. She has a college degree and past
work experience as a correspondence clerk and billing clerk. See id. Plaintiff did
not engage in substantial gainful activity during the four-and-a-half-month
period at issue in this appeal, February 13, 2010 through June 30, 2010. See id.
16.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability benefits. Although the medical evidence established that Plaintiff
suffered from morbid obesity, hypertension, syncope, arthritis, and asthma, the
ALJ concluded that the severity of those impairments did not meet or equal any
impairment listed in the social security regulations. See id. 17. The ALJ further
determined that Plaintiff had the residual functional capacity (“RFC”) to perform
a limited range of sedentary activity, including her past work as a correspondence
clerk and billing clerk, and therefore was not disabled. See id. 20. Plaintiff
appealed that decision to the Appeals Council. The Council affirmed. Plaintiff
then filed this action in federal district court.
Plaintiff challenges the hearing decision, arguing that the ALJ relied on
faulty testimony by a vocational expert (“VE”) in determining that Plaintiff had
the RFC to perform her past relevant work.
The Court determines that the hearing decision should be affirmed in all
respects.
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Legal Standards
Judicial review in social security cases is limited to determining whether
the Commissioner’s decision is supported by substantial evidence on the record
as a whole and whether Commissioner applied the proper legal standards to
evaluate the evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920,
923 (5th Cir. 2014); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
Substantial evidence is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); accord Copeland, 771 F.3d at
923. The Commissioner, rather than the courts, must resolve conflicts in the
evidence, including weighing conflicting testimony and determining witnesses’
credibility, and the Court does not try the issues de novo. See Martinez v. Chater,
64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.
1994). This Court may not reweigh the evidence or substitute its judgment for the
Commissioner’s but must scrutinize the entire record to ascertain whether
substantial evidence supports the hearing decision. See Copeland, 771 F.3d at
923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir.1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland,
771 F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental
security income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. §
423(d)(1)(A)). A disabled worker is entitled to monthly social security benefits if
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certain conditions are met. See 42 U.S.C. § 423(a). The Act defines “disability” as
the inability to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or last for a continued period of 12 months. See id. § 423(d)(1)(A); see also
Copeland, 771 F.3d at 923; Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
The Commissioner has promulgated a five-step sequential evaluation process
that must be followed in making a disability determination:
1. The hearing officer must ascertain whether the
claimant is engaged in substantial gainful activity. A
claimant who is working is not disabled regardless of
the medical findings.
2. The hearing officer must determine whether the
claimed impairment is “severe.” A “severe
impairment” must significantly limit the claimant's
physical or mental ability to do basic work activities.
This determination must be made solely on the basis
of the medical evidence.
3. The hearing officer must decide if the impairment
meets or equals in severity certain impairments
described in Appendix 1 of the regulations. The
hearing officer must make this determination using
only medical evidence.
4. If the claimant has a “severe impairment” covered by
the regulations, the hearing officer must determine
whether the claimant can perform his or her past
work despite any limitations.
5. If the claimant does not have the residual functional
capacity to perform past work, the hearing officer
must decide whether the claimant can perform any
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other gainful and substantial work in the economy.
This determination is made on the basis of the
claimant’s age, education, work experience, and
residual functional capacity.
See 20 C.F.R. § 404.1520(b)-(f); Copeland, 771 F.3d at 923 (“The Commissioner
typically uses a sequential five-step process to determine whether a claimant is
disabled within the meaning of the Social Security Act. The analysis is: First, the
claimant must not be presently working. Second, a claimant must establish that
he has an impairment or combination of impairments which significantly limit
[her] physical or mental ability to do basic work activities. Third, to secure a
finding of disability without consideration of age, education, and work
experience, a claimant must establish that his impairment meets or equals an
impairment in the appendix to the regulations. Fourth, a claimant must establish
that his impairment prevents him from doing past relevant work. Finally, the
burden shifts to the Secretary to establish that the claimant can perform the
relevant work. If the Secretary meets this burden, the claimant must then prove
that he cannot in fact perform the work suggested.” (internal quotation marks
omitted)); Audler v. Astrue, 501 F.3d 446, 447–48 (5th Cir. 2007) (“In evaluating
a disability claim, the Commissioner conducts a five-step sequential analysis to
determine whether (1) the claimant is presently working; (2) the claimant has a
severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the
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claimant from doing past relevant work; and (5) the impairment prevents the
claimant from doing any other substantial gainful activity.”).
The claimant bears the initial burden of establishing a disability through
the first four steps of the analysis; on the fifth, the burden shifts to the
Commissioner to show that there is other substantial work in the national
economy that the claimant can perform. See Copeland, 771 F.3d at 923; Audler,
501 F.3d at 448. A finding that the claimant is disabled or not disabled at any
point in the five-step review is conclusive and terminates the analysis. See
Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four
elements to determine whether there is substantial evidence of disability: (1)
objective medical facts; (2) diagnoses and opinions of treating and examining
physicians; (3) subjective evidence of pain and disability; and (4) the claimant's
age, education, and work history. See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim
for disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this
duty, the resulting decision is not substantially justified. See id. However, the
Court does not hold the ALJ to procedural perfection and will reverse the ALJ’s
decision as not supported by substantial evidence where the claimant shows that
the ALJ failed to fulfill the duty to adequately develop the record only if that
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failure prejudiced Plaintiff, see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir.
2012)—that is, only if Plaintiff's substantial rights have been affected, see Audler,
501 F.3d at 448. “Prejudice can be established by showing that additional
evidence would have been produced if the ALJ had fully developed the record,
and that the additional evidence might have led to a different decision.” Ripley,
67 F.3d at 557 n. 22. Put another way, Plaintiff “must show that he could and
would have adduced evidence that might have altered the result.” Brock v.
Chater, 84 F.3d 726, 728–29 (5th Cir. 1996).
Analysis
The ALJ found Plaintiff not disabled at the fourth step of the sequential
evaluation because the ALJ determined Plaintiff could perform her past work as a
correspondence clerk and billing clerk. A.R. 20. In making this determination,
the ALJ relied on VE testimony that a hypothetical person of Plaintiff’s age,
education, work experience, and functional limitations could work as a
correspondence clerk and billing clerk, as those jobs are “customarily
performed.” Id. 50-51. Plaintiff argues the ALJ erred in relying on the VE
testimony because it is contrary to the requirements for those jobs that are
reported by the supplement to the Dictionary of Occupational Titles (“DOT”) and
the Selected Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles (“SCO”).
The Department of Labor promulgated the DOT to provide “standardized
occupational information to support job placement activities.” See Dep’t of Labor,
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D.O.T. at xv (4th ed. 1991). The DOT, along with a companion volume—the SCO,
contains descriptions of the requirements for thousands of jobs in the national
economy and classifies those jobs based on various factors. According to the DOT
and the SCO, the correspondence clerk job requires, among other things,
“frequent” reaching. DICOT 209.362-034, 1991 WL 671772. The billing clerk job
requires “constant” reaching. DICOT 214.362–042, 1991 WL 671876. Because the
ALJ found that Plaintiff could only “occasionally reach overhead,” see A.R. 17,
Plaintiff argues there is a conflict between the VE’s testimony and the applicable
DOT job descriptions.
Occupational evidence provided by a VE generally should be consistent
with the occupational information supplied in the DOT. Social Security Ruling
(“SSR”) 00–4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). But, the DOT does not
include every specific skill qualification for a particular job. Carey v. Apfel, 230
F.3d 131, 145 (5th Cir. 2000). And, the Fifth Circuit has warned against giving
DOT job descriptions a role that is exclusive of more specific vocational expert
testimony with respect to the effect of an individual claimant’s limitations on his
or her ability to perform a particular job. See id. A direct conflict between VE
testimony and the DOT may arise when the VE’s testimony concerning the
exertional or skill level of a job is facially different from the description of the job
found in the DOT. Id. When a “direct and obvious conflict” exists between the
DOT and the VE’s testimony, the ALJ must explain or resolve the conflict. Id. If
the ALJ does not resolve the conflict, the weight of the VE’s testimony is lessened
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such that reversal and remand for lack of substantial evidence usually follows. Id.
at 146. On the other hand, when a conflict is implied or indirect, the ALJ can
accept and rely upon the VE’s testimony provided the record reflects an adequate
basis for doing so. See id. at 146; see also Gaspard v. Soc. Sec. Admin. Comm’r,
609 F. Supp. 2d 607, 613 (E.D. Tex. 2009) (affirming Commissioner’s decision to
rely on VE testimony despite implied conflict where adequate evidence supported
VE testimony).
In this case, there is no direct and obvious conflict between the DOT and
the VE‘s testimony. The DOT’s narrative descriptions for the correspondence
clerk and billing clerk jobs do not specifically state, or otherwise indicate, that
overhead reaching is required. For example, the description for the
correspondence clerk job states:
Composes letters in reply to correspondence concerning
such items as requests for merchandise, damage claims,
credit information, delinquent accounts, incorrect
billing, unsatisfactory service, or to request information:
Reads incoming correspondence and gathers data to
formulate reply. Operates typewriter to prepare
correspondence or to complete form letters, or dictates
reply. May route correspondence to other departments
for reply. May keep files of correspondence sent,
received, or requiring further action. May process orders,
prepare order forms, and check progress of orders.
DICOT 209.362-034, 1991 WL 671772. The billing clerk job description states:
Operates calculator and typewriter to compile and
prepare customer charges, such as labor and material
costs: Reads computer printout to ascertain monthly
costs, schedule of work completed, and type of work
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performed for customer, such as plumbing, sheet metal,
and insulation. Computes costs and percentage of work
completed, using calculator. Compiles data for billing
personnel. Types invoices indicating total items for
project and cost amounts.
DICOT 214.362–042, 1991 WL 671876. There is no conflict between the VE’s
testimony and the DOT because the DOT’s descriptions for correspondence clerk
and billing clerk are silent as to what type of reaching is required. Gutierrez v.
Colvin, 2016 WL 4056067, at *1 (9th Cir. July 29, 2016) (holding there is no
apparent conflict between the VE’s conclusion that an individual with an inability
to reach above shoulder level with her right hand/arm could perform cashier
work and the DOT’s generic job description requiring frequent reaching);
Rodriguez v. Colvin, 2015 WL 778852, *4 (W.D. Tex. Feb. 23, 2015) (no direct or
obvious conflict between vocational expert and DOT where nothing in DOT job
description indicated overhead reaching required for job); accord Carey, 230
F.3d at 146 (finding there was no conflict with the DOT because the DOT did not
state that the job required two hands); Ridenhour v. Astrue, 2009 WL 77765, *13
(N.D. Tex. Jan. 12, 2009) (finding no obvious conflict where although reaching
was required for job, the DOT did not specific the job must be performed by the
dominant hand or arm or require bilateral use of the arms and hands).
At the administrative hearing, the VE testified that a hypothetical person of
Plaintiff’s age, education, work experience, and functional limitations—including
specifically a limitation that the individual could only occasionally reach
overhead—could work as a correspondence clerk and billing clerk, as those jobs
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are “customarily performed.” Plaintiff’s representative did not challenge the VE’s
testimony on this point at the hearing. Indeed, he did not ask the vocational
expert any questions at all. A.R. 52. Nothing about the way the DOT describes the
correspondence clerk and billing clerk occupations indicates overhead reaching is
required. There is no other evidence in the record that contradicts the VE’s
conclusion. The VE’s testimony, which is not in direct conflict with the DOT,
constitutes substantial evidence in support of the ALJ’s decision.
Even if the Court were to find that there is an implied or indirect conflict
between the VE’s testimony and the DOT, the ALJ properly relied upon the VE’s
testimony that Plaintiff can perform her past work because the record reflects an
adequate basis for doing so.
Conclusion
The hearing decision is affirmed in all respects.
SO ORDERED.
September 28, 2018.
RRthfd
____________________________
REBECA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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