Myers v. Colvin

Filing 18

ORDER: The Court does hereby ACCEPT and ADOPT the findings and recommendations set forth in the report of the United States Magistrate Judge filed on December 24, 2014. Defendant's motion for summary judgment is DENIED, Plaintiff's moti on for summary judgment is GRANTED only insofar as it seeks reversal and remand of the Commissioner's decision, and the Commissioner's decision is VACATED and REMANDED for a specific explanation of the discrepancy between the Vocational Ex pert's proposed jobs for Plaintiff and the Dictionary of Occupational Titles definitions of those jobs in light of Plaintif's Reasoning Level 1. Copies of Order sent to parties as DIRECTED.Signed by District Judge Raymond A. Jackson on 6/17/2015. (epri)

R[

t

@

1 8 2015

IN THE UNITED STATES DISTRICT COURT

LJ

FOR THE EASTERN DISTRICT OF VIRGINIA

CLtHK, U.S. DISTRICT COURT

Newport News Division

NORFOLK. VA

EVERETT MYERS,
Plaintiff,
V.

CIVIL ACTION NO.: 4:14cv32

CAROLYN W. COLVIN,

Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER

This matter is currently before the Court on Defendant's objections to the Magistrate

Judge's Report and Recommendation. For the reasons set forth below, the Magistrate Judge's
Report and Recommendation is ADOPTED, Defendant's motion for summary judgment is
DENIED, Plaintiffs motion for summary judgment is GRANTED only insofar as it seeks
reversal and remand of the Commissioner's decision, and the Commissioner's decision is

VACATED and REMANDED for a specific explanation of the discrepancy between the
Vocational Expert's proposed jobs for Plaintiff and the Dictionary of Occupational Titles
definitions of those jobs in light of Plaintiff s Reasoning Level 1.
I. FACTUAL AND PROCEDURAL HISTORY

The procedural and factual history of this is case is lengthy and complex, and the United
States Magistrate Judge recounted it thoroughly. Plaintiff filed an application for Disability
Insurance Benefits ("DIB") on September 18, 2007, alleging a disability onset date of January 1,
1984, of chronic obstructive pulmonary disease ("COPD"), post-traumatic stress disorder
1

("PTSD"), asthma, sinusitis, lower back pain, ringing in the ears, left knee injury, and macular
degeneration. Magistrate Judge's Report and Recommendation ("Magistrate Judge's R&R"),
ECF No. 15, at 2. Pursuant to 42 U.S.C. § 423(a) and 20 C.F.R. §§ 404.101(a) and 404.131(a), a

claimant for DIB must have insurance coverage at the time of the disability onset to qualify for
benefits. Plaintiffs date last insured ("DLI") was December 31, 1989, more than five years after
the alleged disability onset date.

Plaintiffs application was denied first on November 28, 2007, and again after

reconsideration on January 31, 2008. R. 136 and 138. A hearing before an Administrative Law

Judge ("ALJ") was held on March 19, 2009, and the ALJ denied Plaintiffs application on April
10, 2009. R. 141-49. After review by the Appeals Council, the ALJ's decision was vacated and
remanded for consideration of the correct DLI and an explanation of the weight given to non-

examining state agency opinions. R. 151-52. On May 5, 2010, the ALJ once again denied
Plaintiffs application. Once the Appeals Council denied Plaintiffs request for review on
February 12, 2011, the ALJ's decision became the final decision of the Acting Commissioner.
R. 3-5. On June 16, 2011, this Court received a motion for review of the Acting Commissioner's

determination. On September 28, 2012, this Court remanded the case to the Acting
Commissioner. Thereafter, the Appeals Council vacated the ALJ's decision and remanded the
case to a different ALJ. On November 8, 2013, the second ALJ denied Plaintiffs application.

On March 24, 2014, Plaintiff filed a pro se complaint seeking the Court's review of the
Commissioner's decision and the Acting Commissioner filed an Answer on May 16, 2014. ECF
Nos. 3 and 5. Plaintiff filed a Motion for Summary Judgment on July 1, 2015, and the Acting
Commissioner filed a Cross-Motion for Summary Judgment on August 6, 2014. ECF Nos. 10

and 12. Plaintiff filed a Response on August 19,2014. ECF No. 14. On August 8, 2014, the
Court entered an Order referring this action to United States Magistrate Judge Lawrence R.

Leonard ("Magistrate Judge") to conduct hearings and submit proposed findings of fact and, if

applicable, recommendations for disposition of this matter. On December 24,2014, Magistrate
Judge Leonard filed his Report and Recommendation ("R&R") in which he recommended that
Defendant's Motion for Summary Judgment be DENIED, that the Plaintiff s Motion for

Summary Judgment be GRANTED to the extent it seeks reversal and remand of the
Commissioner's decision, and DENIED to the extent it seeks entry of an order directing the
award of benefits, and that the Commissioner's decision be VACATED and REMANDED

specifically for an explanation of the discrepancy between the jobs defined by the VE, Ms.
Edwards, and the DOT definitions of those jobs in light of Mr. Meyers' Reasoning Level 1. ECF
No. 15.

On January 12, 2015, Defendant filed Objections to the Magistrate Judge's R&R. ECF
No. 16. On January 27, 2015, Plaintiff filed a response. ECF No. 17. This matter is now ripe
for disposition by the Court.
11. STANDARD OF REVIEW

Under Rule 72(b)(3) of the Federal Rules of Civil Procedure, a district judge is required
to "determine de novo any part of the magistrate judge's disposition that has been properly

objected to." The "de novo" requirement means that a district court judge must give "fresh
consideration" to the objected-to portions of the Magistrate Judge's report and recommendation.
See Wilmer v. Cook, 11A F.2d 68, 73 (4th Cir. 1985) ("[A]ny individual findings of fact or

recommendations for disposition by the [Magistrate Judge], if objected to, are subject to final de

novo determination...by a district judge..."); UnitedStates v. Raddatz, 447 U.S. 667, 675

(1980). "The districtjudge may accept, reject, or modify the recommended disposition; receive
further evidence; or recommit the matter to the magistratejudge with instructions." Fed. R. Civ.
P. 72(b)(3).

A district court reviewing an administrative decision under the Social Security Act must
determine whether the factual findings are supported by substantial evidence and were reached

through application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996) (superseded by statute on other grounds). "Substantial evidence" is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion," and "consists
of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id.

(internal quotation and citations omitted). In reviewing for substantial evidence, the Court does

not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for
that of the Commissioner. Id. The Commissioner's findings as to any fact, if supported by
substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389,
390 (1971) (citing 42 U.S.C. § 405(g)).
III. DISCUSSION

Defendant raises four objections to the Magistrate Judges R&R: 1) That ALJ Pianin

properly relied on skill levels consistent with the Commissioner's controlling regulations in
finding that Plaintiff could perform the unskilled jobs identified by the VE; 2) That ALJ Vest
properly relied on the Commissioner's regulatory definitions of skill levels in finding that
plaintiff could perform the unskilled jobs identified by the VE; 3) That the law-of-the-case

doctrine is not applicable in this case; and 4) That the ALJ is ultimately responsible for resolving

conflicts in the evidence. After a full review of the record, the parties' briefs both on

Defendant's objections and on the underlying Motions for Summary Judgment, the Court, having
given fresh consideration to the Magistrate Judge's findings, finds that the ALJ's new
determination of Plaintiffs Reasoning Level 2 was not supported by substantial evidence, and

directly conflicts with the Court's initial remand Order. Therefore, for the additional reasons
stated below, the Court ADOPTS the Magistrate Judge's Report and Recommendation.
A.

ALJ Reliance on Skill Levels

Defendantfirst objects to the Magistrate Judge's finding that Judge Pianin improperly
relied on skill levels in finding that Plaintiff could perform the unskilled jobs identified by the
VE and second to the Magistrate Judge's finding that Judge Vest improperly relied on the

Commissioner's regulatory definitions of skill levels in finding that Plaintiff could performthe
unskilledjobs identified by the VE. The Court overrules these objections because the Magistrate

Judge conducted a significant, fair, thorough, and exhaustive review of the record and relevant
legal authority and found that instead of complying with this Court's remand Order and

explaining the discrepancy between the VE's testimony and Plaintiffs Reasoning Level 1, the
ALJ completely changed Plaintiffs Reasoning Level. In so doing, the entire foundation of the
Court's remand Order was bypassed.
This Court's remand Order was clear that the "ALJ failed to elicit any explanation for the

discrepancies between the VE testimony and DOT description for each of the jobs that the VE
identified. This explanation is necessary to provide sufficient basis for review and accordingly,
the Court FINDS that the ALJ's decision is not supported by substantial evidence." Remand
Order, 4:1 lcv62 ECF No. 18, at 10. The ALJ's task, as outlined both in the Court's remand

Order and Social Security Ruling 00-4p noted that "where there is an apparent unresolved
conflict between [VE] evidence and the [DOT], the adjudicator must elicit a reasonable

explanation for the conflict..and "resolve the conflict by deciding if the [VE's] explanation of
the conflict is reasonable." Id. (citing Fisher v. Barnhart, 181 Fed.Appx. 359,265 (E.D.Va.

2006); SSR 00-4p, 2000 WL 1898704 at *2). Further, the ALJ must resolve any such conflict
before relying on additional testimony to make an ultimate disability determination. Id. The
Court's remand Order did not instruct the ALJ to simply revise Plaintiffs Reasoning Level,

instead it required, consistent with Social Security Rulings, that the ALJ first explicitly explain
the discrepancy between the determined Reasoning Level and the record evidence. Becausethe

Magistrate Judge correctly found that no such explicitfinding has been made, the Court finds it
necessary to remand this case yet again.
B.

The Law of the Case Doctrine

The Magistrate Judge correctly held that the law-of-the-case doctrine applies in this case.

As a general principle, "when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case." Christianson v. ColdIndus.
Operating Corp., 486 U.S. 800, 815-816 (1998). Defendant argues that the law-of-the-case
doctrine is inapplicable in this case because "ALJ Pianin did not assign a reasoning level or rely
upon reasoning levels in finding that Plaintiff could perform unskilled work." ECF No. 16 at 10.
The Court's remand Order was clear: the ALJ was to explain the discrepancy between the jobs

proposed by Ms. Edwards and the DOT definitions of those jobs when considering Plaintiffs
Reasoning Level 1. The Court is mindful of the split among the circuits on whether the law-of-

the-case doctrine applies in Social Security cases generally, and specifically in cases analogous

6

to this. However, the Court finds that the very error the Court initially identified in its remand

Order was premised upon a conflict between the evidence and Plaintiff s Reasoning Level.
Therefore, the Court's instruction to the ALJ for an explanation of the discrepancy was premised

on the notion that the Reasoning Level had been established. It was error, then, and in violation
of the law-of-the-case doctrine for the ALJ to alter the Reasoning Level.
C.

ALJ as Finder of Fact

Finally, Defendant objects to the Magistrate Judge's finding that the ALJ exceeded the
scope of this Court's remand Order. Defendant argues that "the only question before this Court
is whether ALJ Vest properly resolved any conflicts between the VE's testimony, Tr. 607-16,

and the DOT regarding skill levels in finding that Plaintiff could perform the unskilled jobs
identified by the VE." ECF No. 16 at 12. Certainly the ALJ is tasked with making factual
findings to resolve any conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). The Court's remand Order in no
way subverted the ALJ's authority to resolve conflicts in the evidence. Indeed, as the Magistrate
Judge noted, "Judge Vest's only course of action, as controlled by this Court's mandate, was to

explain the discrepancy between the jobs proposed by Ms. Edwards and the DOT definitions of
those jobs, considering Mr. Myers' Reasoning Level 1." ECF No. 15. The Court remanded the
case precisely to resolve a conflict in the evidence. The ALJ exceeded the scope of that Order by
changing Plaintiffs Reasoning Level and failing to explain the discrepancy between the record
evidence and Plaintiffs Reasoning Level 1. The Court overrules this objection in part and
sustains this objection in part. On remand, the ALJ is specifically directed to consider all

relevant evidence relating to Plaintiffs Reasoning Level, explain the discrepancy between the

jobs identified in the national economy and Plaintiffs Reasoning Level 1, and issue a new
decision.

The Court remanded this case once for one very specific purpose: for a factual resolution

of a discrepancy between the record and the identified Reasoning Level. Once again the Court
finds it necessary to remand the case for an explanation of the same discrepancy. The ALJ is

most certainlythe finder of fact and the arbiter of conflicts in the evidence, however, because the
law-of-the-case doctrine dictates that "[djeviation from the court's remand order in the

subsequent administrative proceedings is itself legal error, subject to reversal on furtherjudicial
review," the Court finds it appropriate to remand the case for the specific purpose stated below.
Sullivan V. Hudson, 490 U.S. 877, 885-56 (1989).
IV. CONCLUSION

This Court has independently reviewed the record in this case and the objections to the

Report. Havingdone so, the Court finds that there is no meritorious reason to sustain
Defendant's objections. After carefiil review of the Magistrate Judge's Report and
Recommendation, the Court does hereby ACCEPT and ADOPT the findings and
recommendations set forth in the report of the United States Magistrate Judge filed on December
24, 2014. Defendant's motion for summary judgment is DENIED, Plaintiff s motion for

summary judgment is GRANTED only insofar as it seeks reversal and remand of the
Commissioner's decision, and the Commissioner's decision is VACATED and REMANDED

for a specific explanation of the discrepancy between the Vocational Expert's proposed jobs for
Plaintiff and the Dictionary of Occupational Titles definitions of those jobs in light of Plaintiff s
Reasoning Level 1.

8

The Court DIRECTS the Clerk to send a copy of this Order to the parties.
IT IS SO ORDERED.

Norfolk, Virginia
June

,2015

Raymond A.. ackson

United atates District Judge