Hall v. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER the plaintiff's 18 Objections are OVERRULED; adopting the 15 Proposed Findings and Recommendation of the Magistrate Judge; denying the plaintiff's 12 request for judgment on the pleadings; granting the defendant's 13 request for judgment on the pleadings; affirming the final decision of the Commissioner; and dismissing with prejudice this action and removing it from the court's docket. Signed by Judge Joseph R. Goodwin on 2/8/2019. (cc: counsel of record; Magistrate Judge; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KEVIN BRADLEY HALL,
Plaintiff,
v.

CIVIL ACTION NO. 2:18-cv-00302

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
I.

Introduction
This action was referred to the Honorable Cheryl A. Eifert, United States

Magistrate Judge, for submission to this court of proposed findings of fact and
recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate
Judge has submitted findings of fact and recommended that the court deny the
plaintiff’s request for judgment on the pleadings, grant the defendant’s request for
judgment on the pleadings to affirm the Administrative Law Judge’s decision, affirm
the final decision of the Commissioner, and dismiss this action from the court’s
docket. Proposed Findings & Rec. (“PF&R”) [ECF No. 15].
On January 7, 2019, the plaintiff timely filed Objections [ECF No. 18] to the
Magistrate Judge’s PF&R. The defendant filed a Response [ECF No. 19] on January
22, 2019, and the plaintiff Replied [ECF No. 20] on January 29, 2019. The court has

reviewed de novo those portions of the Magistrate Judge’s PF&R to which the plaintiff
objects and finds that the objections lack merit. For the reasons stated herein, the
court ADOPTS and INCORPORATES the findings and recommendation of the
Magistrate Judge. The court DENIES the plaintiff’s request for judgment on the
pleadings [ECF No. 12], GRANTS the defendant’s request for judgment on the
pleadings to affirm the ALJ’s decision [ECF No. 13], AFFIRMS the final decision of
the Commissioner, and DISMISSES with prejudice this action from the court’s
docket.
II.

Factual Background
The factual background of this case is set forth in detail in the PF&R and need

not be repeated here. The court ADOPTS the factual background and undisputed
facts as set forth in the Magistrate Judge's PF&R.
III.

Legal Standard

A district court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). This court is not, however, required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate judge
as to those portions of the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this court need not
conduct a de novo review when a party “makes general and conclusory objections that

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do not direct the Court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
The Social Security Act states 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). The Supreme Court has defined substantial evidence
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)). Further, “[substantial evidence] consists of
more than a mere scintilla of evidence but may be somewhat less than a
preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
In reviewing the case for substantial evidence, the court does not re-weigh
conflicting evidence, make determinations as to credibility, or substitute its own
judgment for that of the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). Rather, the court must adopt the Commissioner’s findings if there is
evidence in support of such findings “to justify a refusal to direct a verdict were the
case before a jury.” Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972). “Where
conflicting evidence allows reasonable minds to differ as to whether a plaintiff is
disabled, the responsibility for that decision falls on the [Commissioner] (or the
[Commissioner’s] designate, the [Administrative Law Judge]).” Walker v. Bowen,
834 F.2d 635, 640 (7th Cir. 1987). Thus, even if the court would have reached a
different decision, it must nonetheless defer to the conclusions of the ALJ if such
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conclusions are bolstered by substantial evidence and were reached through a correct
application of relevant law. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
IV.

Discussion
The plaintiff makes three objections, which will be discussed in turn.
1. The Plaintiff’s Reply Brief
?The plaintiff argues that the Magistrate Judge failed to adequately consider

the arguments raised in his Reply Brief [ECF No. 14] seeking judgment on the
pleadings. That is, he argues that the PF&R “is silent on the existence of the [R]eply
[B]rief beyond a few cursory, non-evaluative citations.” Pl.’s Obj. 2. I find the
plaintiff’s first objection to be wholly without merit. The Magistrate Judge fairly
considered

all

of the

issues

addressed

in

the

reply,

including

“special

accommodations,” PF&R 26–30, the plaintiff’s ability to work while standing, id. at
30–35, the reliability of the Vocational Expert (“VE”), id. at 32–33, the plaintiff’s
reading of Jones v. Apfel,1 id. at 27–28, and issues concerning the combined effects
of the plaintiff’s RFC limitations and his need for a special accommodation, id. at 34–
35. The plaintiff’s first objection is OVERRULED.
2. “Reasonable Accommodation”
For his second objection, the plaintiff argues that the Magistrate Judge erred
by allowing the ALJ to consider a “reasonable accommodation” in determining the
plaintiff’s disability. He argues that this court and several others have previously

1

174 F.2d 69 (5th Cir. 1999).

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adopted the position that ALJs cannot consider reasonable accommodations during
disability determinations. He goes on to argue that the Magistrate Judge’s finding is
contrary to what the Supreme Court established in Cleveland v. Policy Management

Systems Corporation. 2 But as the defendant points out, the Magistrate Judge
correctly concluded that none of the cited cases stand for the proposition that the
plaintiff claims.
In Cleveland, the Supreme Court was asked to resolve a conflict between the
ADA’s requirement that an employee be able to work with or without a reasonable
accommodation, and the Social Security Act’s requirement that a plaintiff be unable
to work. 526 U.S. 795 (1999). Specifically, the Court decided whether a plaintiff suing
for disability discrimination under the ADA is judicially estopped from claiming that
he would be capable of performing his job, with an accommodation, when he has
already asserted that he is disabled in an SSI or DIB proceeding. Id. at 797. The Court
found that the “pursuit, and receipt, of SSDI benefits does not automatically estop
the recipient from pursuing and ADA claim.” Id. The Court reasoned in part that
“when the SSA determines whether an individual is disabled for SSDI purposes, it
does not take the possibility of “reasonable accommodation” into account, nor need an
applicant refer to the possibility of reasonable accommodation when she applies for
SSDI.” Id. at 803.
Based on this reasoning, the plaintiff argues that the ALJ could not consider

2

526 U.S. 795 (1999).

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the VE’s testimony explaining “accommodations” when determining whether jobs
existed in the national economy. The problem with the plaintiff’s argument, however,
is that it conflates “reasonable accommodations” under the ADA, which is a term of
art, with jobs that are capable of accommodating the plaintiff’s needs. That is, the VE
testified to jobs that the plaintiff could perform while having to adjust positions, use
a cane, or carry an O2 tank, but he did not testify that the plaintiff could do specific
jobs only if the employer allowed him to adjust positions, use a cane, and carry an O2
tank. In other words, a “reasonable accommodation” might be required to do a
particular job, but a particular job may allow for certain accommodations by the very
nature of the job. See, e.g., Martiv v. Berryhill, No. CV 1:16-3741-SVH, 2017 WL
3446573, at *14–15 (D.S.C. Aug. 11, 2017) (finding that the ALJ did not err when he
relied on the VE’s testimony to find that jobs would generally accommodate
claimant’s restrictions); Loop v. Colvin, No. 3:12cv2302, 2013 WL 4517866, at *3–4
(N.D. Ohio Aug. 21, 2013) (“[T]he VE’s response to the ALJ’s hypotheticals reflected
his professional opinion on common workplace accommodations—not formal
accommodations that must be requested under the ADA.”); Titus v. Astrue, No.
1:11CV01286, 2012 WL 3113160, *10 (N.D. Ohio July 31, 2012) (explaining the
difference between the effects that the individual’s needs “would have when being
considered for job placement as opposed to [the individual’s] ability to perform the
job”).
Here, the VE was asked whether an individual with the plaintiff’s limitations,
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including the limitations that the plaintiff would only be able to walk or stand for up
to two hours in an eight-hour workday and require an assistive device to walk and
require O2 use could perform light and sedentary work. Tr. 68–70. The VE opined
that such an individual would be relegated to sedentary work but would still be able
to compete for a significant number of jobs in the national market. Id. The plaintiff’s
attorney and the VE then had the following exchange:
AT: So [VE] if someone requires use of oxygen and needs
to bring a portable oxygen tank to work, you don’t consider
that an accommodation?
VE: Yeah, that could be an accommodation. Some
employers would not perhaps permit that, but the

sedentary work was basically office work that I gave in
hypo 2 I think would allow that normally.
AT:

Okay.

VE: But, yeah, it could be considered, I guess, an
accommodation.
Tr. 72 (emphasis added).
The VE, while using the attorney’s term “accommodation” was not referring to
a reasonable accommodation under the ADA in order for the plaintiff to perform work
at the sedentary level. The VE simply stated that most office work would normally
tolerate the plaintiff’s needs, which was well within the VE’s expertise. See Higgins

v. Comm’r, Soc. Sec. Admin., 898 F.3d 793, 796 (8th Cir. 2018) (“ALJs may properly
rely on VE testimony that a certain needed modification is part of the function
workplace. It makes no difference that a particular workplace modification . . . might
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be called an ‘accommodation’ or even a ‘reasonable accommodation.’”). As such, the
Magistrate Judge did not err, and the plaintiff’s objection is OVERRULED.
3. Facts and Inferences
For the plaintiff’s final objection, he argues that the Magistrate Judge
“misstated and improperly inferred several facts from the record to conclude [that the
plaintiff] was capable of performing the representative occupations named by the
vocational expert.” Obj. 8. The plaintiff faults the Magistrate Judge for claiming that
“[w]ith the use of [his] walker device . . . , [the plaintiff] would not be required to use
his hand at all times while standing and it would represent an alternative assistive
device that would allow him to work while standing.” PF&R at 33–34.3 The plaintiff
also faults the Magistrate Judge for asserting that the plaintiff need not always carry
his oxygen tank. The plaintiff argues that these are either post hoc rationalizations
or unsupported by the record. I disagree.
As the Magistrate Judge explained, while the plaintiff is required to change
positions multiple times per day, if the plaintiff is standing “merely in order to change
positions, rather than to fulfill his job duties, there is no reason for him to hold or
carry his oxygen tank at all.” Id. at 32. The Magistrate Judge reasoned that not
having to lift the oxygen tank and use of an alternative assistive device to stand is
consistent with all three jobs identified by the VE, which were categorized as clerical
positions, primarily requiring desk work and telephone communications. Id. While

As described by the plaintiff, the “walker” is like a “little dolly that you put your knee on.” TR. at
60.
3

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the plaintiff argues that the Magistrate Judge’s analysis is inappropriate because the
VE did not discuss whether the plaintiff could put his oxygen tank on the floor or lean
on his walker while standing, as defense counsel points out, the Magistrate Judge is
not barred from using common sense.
V.

Conclusion
For the foregoing reasons, the plaintiff’s Objections [ECF No. 18] are

OVERRULED. The court ADOPTS the Magistrate Judge’s PF&R [ECF No. 15],
DENIES the plaintiff’s request for judgment on the pleadings [ECF No. 12], GRANTS
the defendant’s request for judgment on the pleadings [ECF No. 13], AFFIRMS the
final decision of the Commissioner, and DISMISSES with prejudice this action and
REMOVES it from the court’s docket.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record,
the Magistrate Judge, and any unrepresented party.
ENTER:

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February 8, 2019