Opinion
CIVIL ACTION NO. 9:18-727-TMC-BM
03-26-2019
KENNETH JACKSON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on March 31, 2014, alleging disability beginning June 28, 2013 due to post traumatic stress disorder (PTSD), bi-polar disorder, anxiety, sinusitis, high blood pressure, high cholesterol, depression, drug addiction, and erectile dysfunction. (R.pp. 166, 173, 206, 942). Plaintiff subsequently amended his alleged onset date to September 15, 2014. (R.pp. 930, 932). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on December 4, 2015. ALJ Ronald Sweeda thereafter denied Plaintiff's claims in a decision issued January 8, 2016 (R.pp. 35-50, 1013-1020), and the Appeals Council denied Plaintiff's request for review. (R.pp. 1-7). Plaintiff appealed the decision to this Court, and the decision was reversed and remanded by Order dated March 24, 2017. (R.pp. 978-1002). Another hearing was then held on on December 7, 2018, following which ALJ Sweeda again denied Plaintiff's claims in a decision issued January 22, 2018. (R.pp. 930-943, 949-977). The Appeals Council denied Plaintiff's request for review, thereby making the ALJ's decision of January 22, 2018 the final decision of the Commissioner. (R.pp. 922-924).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that she [or he] was disabled during the insured period for DIB may still receive SSI benefits if she [or he] can establish that she [or he] is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff then filed this action in United States District Court, asserting that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further administrative proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was fifty-two (52) years old when he alleges he became disabled, has at least a high school education and past relevant work experience as a land surveyor and a program supervisor. (R.pp. 166, 942). On April 13, 2015, the Department of Veterans Affairs found that Plaintiff was "permanent and totally disabled effective 9/15/14" (Plaintiff's amended onset date). (R.p. 907). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.
After a review of the evidence and testimony in the case the ALJ determined that Plaintiff does suffer from the "severe" impairments of post-traumatic stress disorder (PTSD), bipolar disorder, depression, and anxiety, thereby rendering him unable to perform any of his past relevant work. (R.pp. 933, 942). Even so, the ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform a full range of work at all exertional levels, limited to Plaintiff only being able to concentrate sufficiently in two hour increments to perform simple, repetitive tasks with no contact with the general public, no work in a team setting, and no production pace work. (R.p. 934). After obtaining Vocational Expert (VE) testimony, the ALJ found that Plaintiff was not entitled to disability benefits because there were jobs that existed in the national economy that Plaintiff could perform with these limitations. (R.pp. 942-943).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Plaintiff asserts that in reaching this decision the ALJ erred by improperly relying on the testimony of the vocational expert because there was a discrepancy between the jobs the VE testified Plaintiff could perform and the requirements for those jobs and because the VE's opinion was based on an improper hypothetical. Plaintiff further argues that the ALJ improperly evaluated the medical opinions of record. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ erred by relying on the VE's testimony in reaching his decision, thereby requiring a remand of this case for further review.
As noted, the ALJ found that Plaintiff suffers from severe mental impairments; see (R.p. 933); and when determining Plaintiff's RFC, the ALJ concluded that as a result of his mental issues Plaintiff was limited to simple, repetitive tasks for two-hour blocks of time, along with the other limitations previously noted. (R.p. 934). The ALJ then included these RFC restrictions in his hypothetical to the Vocational Expert (R.p. 971), and when asked whether there were jobs that an individual with these restrictions could perform, the VE identified the jobs of laundry worker (DOT 369.687-026), dishwasher (DOT 318.687-010), and janitor (DOT 323.687-010) as jobs that Plaintiff could perform with these limitations. (R.pp. 943, 971-972). The ALJ also asked the Vocational Expert to confirm that his testimony was consistent with the job descriptions in the DOT, to which the VE responded "[t]hey are, Your Honor". (R.p. 972).
The DOT is "a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy." Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002). "[T]he DOT, in its job description, represents approximate maximum requirements for each position rather than the range." See Fenton v. Apfel, 149 F.3d 907, 911 (8th Cir. 1998).
However, as correctly noted by the Plaintiff in his brief (and the Defendant does not dispute), the three jobs identified by the VE as being jobs that Plaintiff could perform with his RFC require a general educational development (GED) reasoning level of 2. Plaintiff argues that a reasoning level of 2 requires the person to be able to "apply common sense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations" (emphasis added), while a restriction to simple, repetitive tasks with no contact with the general public, no work in a team setting, and no production pace work, as is the case here, restricts Plaintiff to performing jobs with a reasoning level of no more than 1. See Piner v. Berryhill, No. 17-317, 2017 WL 4712084, at * 14 (D.S.C. Sept. 28, 2017), adopted by 2017 WL 4682004 (D.S.C. Oct. 18, 2017) [Discussing GED reasoning levels requirements]. Plaintiff argues that there is therefore a discrepancy between the requirements for these positions as set forth in the DOT and the VE's testimony that Plaintiff could perform these jobs with the RFC assigned by the ALJ, and the undersigned agrees.
The Defendant argues that, in discussing these jobs during his testimony, the VE noted that all three positions had an "SVP" (Specific Vocational Preparation)[the amount of time that it takes to learn a job] of 2 (R.pp. 971-972), and that the SVP is what is at issue when considering whether there is a conflict in this case, not the GED reasoning level. However, an SVP level is not the same thing as a GED reasoning level, which is what Plaintiff is challenging here. They are two different things. See Pearson v. Commissioner, No. 16-2726, 2017 WL 1378197, at * 13 (D.S.C. Mar. 29, 2017), adopted by, 2017 WL 1364220 (D.S.C. Apr. 14, 2017). Although the Defendant contends that an SVP of one to two corresponds to unskilled work, the ALJ in this case specifically limited Plaintiff to simple, repetitive tasks with no contact with the general public, no work in a team setting, and no production pace work. (R.p. 934). Those limitations could relate to Plaintiff's reasoning level. Cf. Meloni v. Colvin, 109 F.Supp. 3d 734, 740 (M.D.Pa. 2015)[Where the parties disputed whether SVP or GED reasoning level was the proper category to assess a limitation to simple 1 and 2 step instructions, the Court held those contentions "demonstrate[s]" the importance of the ALJ questioning the VE regarding conflicts. The Court should not be interpreting vocational evidence in the first instance; that is the realm of a vocational expert."].
Moreover, when the parties briefed this case, the Fourth Circuit had not addressed in a precedential decision whether a GED reasoning level of 2 is incompatible with the ability to perform simple, repetitive work. However, the Fourth Circuit had held, albeit in an unpublished decision, that there is an apparent conflict between a GED reasoning level of 2 and a limitation to simple, one-to-two step tasks. See Henderson v. Colvin, 643 F.d Appx. 273, 276-277 (4th Cir. 2016). While the Defendant attempts to distinguish the Henderson decision, courts in this District have previously applied its holding in deciding this issue, and the undersigned agrees with the analysis and holdings as set forth in those decisions. See Pearson v. Commissioner, No. 16-2726, 2017 WL 1378197, at * 12-13 (D.S.C. Mar. 29, 2017), adopted by 2017 WL 1364220 (D.S.C. Apr. 14, 2017); Christopherson v. Colvin, No. 15-4725, 2016 WL 7223283, at * 9 (D.S.C. Nov. 18, 2016), adopted by, 2016 WL 7212785 (D.S.C. Dec. 13, 2016); Sullivan v. Colvin, No. 16-79, 2016 WL 7228854, at * 10 (D.S.C. Nov. 10, 2016); c.f. Watson v. Colvin, No. 15-4935, 2017 WL 694645, at * * 4-5 (D.S.C. Feb. 22, 2017). The Defendant also attempts to distinguish cases based on "simple, repetitive tasks" (the RFC assigned by the ALJ here) from the ] "simple one-to-two step tasks" (the RFC in Henderson). However, several cases in this District (post the Henderson decision) have applied this reasoning to claimants with limitations to "simple, routine, and repetitive tasks." See Frady v. Nancy A. Berryhill, Acting Comm'r of Soc. Sec. Admin., No. 18-1543, 2019 WL 1244308, at 15-16 (D.S.C. Mar. 5, 2019), report and recommendation adopted sub nom., Frady v. Berryhill, No. 18-1543, 2019 WL 1243073 (D.S.C. Mar. 18, 2019); Abstance v. Berryhill, No. 18-109, 2019 WL 669799, at *3 (D.S.C. Feb. 19, 2019)[Finding that "[t]he limitation of Plaintiff to 'simple, routine, repetitive task[s]' due to 'her mental impairments' raises a legitimate question whether her reasoning capacity is sufficient to meet Level Two demands to 'apply commonsense understanding to carry out detailed but uninvolved written or oral instructions'".]; Austin v. Berryhill, No. 17-1797, 2018 WL 2392209, at * 19 (D.S.C. Apr. 24, 2018)), report and recommendation adopted sub nom, 2018 WL 2389595 (D.S.C. May 24, 2018); Rogers v. Berryhill, No. 17-1317, 2018 WL 1474429, at * 12 (D.S.C. Mar. 9, 2018), report and recommendation adopted, 2018 WL 1471905 (D.S.C. Mar. 26, 2018); Helton v. Berryhill, No. 16-3640, 2018 WL 704708, at *1 (D.S.C. Jan. 19, 2018), report and recommendation adopted, 2018 WL 690067 (D.S.C. Feb. 1, 2018); Stepp v. Berryhill, No. 17-771, 2017 WL 6806664, at *13 (D.S.C. Dec. 6, 2017), report and recommendation adopted, 2018 WL 294517 (D.S.C. Jan. 3, 2018); Cf. Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at * 10 (D.S.C. Jan. 29, 2018)[conflict with ALJ limited Plaintiff to simple and routine tasks in a low stress work environment], report and recommendation adopted, 2018 WL 835228 (D.S.C. Feb. 13, 2018).
Significantly, since the briefing of this case, the Fourth Circuit has now held in a published decision, in discussing whether there was a conflict between the DOT and the testimony of the VE under similar findings, as follows:
This requires us to decide whether there is an "apparent conflict" between a limitation to "short, simple instructions" (as found in [Plaintiff's] RFC) and a need to carry out "detailed but uninvolved . . . instructions" (as found in jobs requiring Level 2 reasoning). We hold there is.See Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019). Therefore, in light of the Fourth Circuit's holding in Thomas, and pursuant to SSR 00-4p, some explanation should have been obtained from the VE for how Plaintiff could perform the three jobs identified by the VE with this reasoning level requirement. This would have allowed the ALJ to resolve any conflicts by determining if the explanation given by the VE was "reasonable and provides a basis for relying on the VE . . . testimony rather than the DOT information." Id. However, the ALJ did not obtain a reasonable explanation for the conflict between the DOT and the VE's testimony before relying on VE's testimony that Plaintiff could perform the three jobs listed by the VE. Indeed, the ALJ specifically stated in his decision that, pursuant to SSR 00-4p, he had "determined that the vocational expert's testimony is consistent with the information contained in the [DOT]" (emphasis added). (R.p. 943). After Henderson and the caselaw following that decision, and as now further clarified by Thomas, this finding was clear error under the facts of this case.
SSR 00-4p provides:
Occupational evidence provided by a VE ... generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE ... evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE ... evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.See SSR 00-4p, 2000 WL 1898704 (2000).
In Henderson, the Fourth Circuit found that, because there was an apparent conflict between the VE's testimony and the DOT, the ALJ erred in relying on the VE's conclusory testimony and in failing to inquire further. Henderson, 643 F. Appx. at 277-278, citing Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015) [Holding that an ALJ must independently identify conflicts between the VE's testimony and the DOT and that a VE's testimony that apparently conflicts with the DOT only provides substantial evidence to support the ALJ's decision if the ALJ received an explanation from the VE explaining the conflict and determined both that the explanation was reasonable and provided a basis for relying on the VE's testimony rather than the DOT]. Further, "the VE's failure to identify the conflict [as was the case here] did not absolve the ALJ of his independent duty to consult the DOT and to determine whether the VE's testimony was consistent with its descriptions of the identified jobs". Pearson, 2017 WL 1378197, at * 12. See also Thomas v. Berryhill, 916 F.3d at 313.
In sum, although the VE testified that Plaintiff's RFC would allow him to perform the three jobs identified, he did not note the discrepancy between the requirements for these jobs as set forth in the DOT and the limitations the ALJ had placed on Plaintiff's RFC, and because the VE did not identify and resolve this conflict with respect to Plaintiff's ability to perform the jobs identified, the ALJ improperly relied on the VE's testimony in finding that Plaintiff could perform these jobs. Thomas v. Berryhill, 916 F.3d at 313; Christopherson, 2016 WL 7223283, at * 9. Therefore, this action should be remanded for the ALJ to obtain VE testimony in compliance with SSR 00-4p with respect to any conflict between the reasoning level for the jobs identified by the VE and the limitations imposed by the ALJ in his RFC. See generally, Pearson, 810 F.3d 204 [discussing process for resolving of conflict]; cf. DeWalt-Gallman v. Berryhill, No. 16-2332, 2017 WL 2257418, at * 4 (D.S.C. May 5, 2017), adopted by 2017 WL 2225133 (D.S.C. May 22, 2017).
With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence 4 of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for re-evaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge March 26, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).