Opinion
C/A No. 0:16-3984-MGL-PJG
01-23-2018
Thadous Lancer Matthews, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Thadous Lancer Matthews, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In November 2011, Matthews applied for DIB, alleging disability beginning October 6, 2011. Matthews's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on September 23, 2013, at which Matthews, who was represented by Steven Calcutt, Esquire, appeared and testified. The ALJ issued a decision on November 1, 2013 finding that Matthews was not disabled. (Tr. 164-75.) The Appeals Council granted Matthews's request for review and issued an order on February 6, 2015 vacating the hearing decision and remanding the case for further proceedings. (Tr. 181-82.) The Appeals Council instructed the ALJ as follows:
• Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and Social Security Ruling 85-16 and 96-8p).(Tr. 182.)
• As necessary, give further consideration to the claimant's education as a vocational factor and to whether the claimant is illiterate in accordance with 20 CFR 404.1564.
• Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 96-9p). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
• Give further consideration to the appropriate Medical-Vocational Rule in accordance with Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2.
A second hearing was held on October 22, 2015, at which Matthews appeared and testified and continued to be represented by Steven Calcutt, Esquire. The ALJ also heard testimony from a vocational expert. At the second hearing, Matthews amended his alleged onset date to October 1, 2012. The ALJ issued a decision on November 27, 2015 finding that Matthews was not disabled. (Tr. 9-22.)
Matthews was born in 1969 and was forty-three years old on his amended alleged disability onset date. (Tr. 21, 329.) He has a seventh-grade education and has past relevant work experience as a lawn care worker and a bucket operator for a tree service company. (Tr. 334.) Matthews alleged disability due to problems with his back, neck, and hands; and chronic obstructive pulmonary disease. (Tr. 333.)
In applying the five-step sequential process, the ALJ found that Matthews had not engaged in substantial gainful activity since October 1, 2012—his amended alleged onset date. The ALJ also determined that Matthews's cervical degenerative disc disease, status post cervical fusion with radiculopathy; lumbar degenerative disc disease with radiculopathy; osteoarthritis; bilateral carpal tunnel syndrome, status post left carpal tunnel release; COPD complicated by tobacco abuse; intermittent muscle spasms; reading learning disability; borderline intellectual functioning with higher adaptive functioning; and depression were severe impairments. However, the ALJ found that Matthews did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found that Matthews retained the residual functional capacity to
perform simple, routine, repetitive tasks at the light exertional level as defined in 20 CFR 404.1567(b) except for work requiring reading at greater than the second or third grade level, basically functionally illiterate, with instructions given verbally; ongoing interaction with the general public; crawling; climbing ladders, ropes, or scaffolds; or concentrated exposure to dust, fumes, gases, odors, or extremes of
humidity, heat, or cold; more than occasional stooping, balancing, crouching, kneeling, climbing ramps or stairs, or overhead reaching with the upper extremities; or more than frequent gross handling or fine motor tasks with the right upper extremity.(Tr. 13.) The ALJ found that Matthews was unable to perform any past relevant work, but that considering Matthews's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Matthews could perform. Therefore, the ALJ found that Matthews was not disabled from October 1, 2012 through the date of the decision.
The Appeals Council denied Matthews's request for review on October 21, 2016, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-3.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's 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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Matthews raises the following issues for this judicial review:
I. The Commissioner failed to show at step five of the sequential evaluation process other work that the Plaintiff could perform.(Pl.'s Br. at 1, ECF No. 13.)
II. The ALJ did not explain his findings regarding the Plaintiff's residual functional capacity, as required by Social Security Ruling 96-8p.
III. The ALJ failed to consider Listing 12.05.
IV. The ALJ failed to properly assess opinion evidence.
DISCUSSION
Matthews first argues that the ALJ erred at Step Five of the sequential process. At this step, the ALJ must determine whether the claimant's impairments prevent him from doing any other kind of work. 20 C.F.R. § 404.1520(a)(4). In this case, the ALJ found that Matthews was unable to return to his past relevant work. Therefore, as discussed above, the burden shifted to the Commissioner to establish that Matthews had the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy, and he may carry this burden by obtaining testimony from a vocational expert. Further, as part of the ALJ's duty at this step, the ALJ must resolve any apparent conflicts between a vocational expert's testimony and the Dictionary of Occupational Titles ("DOT"). See Pearson v. Colvin, 810 F.3d 204, 208-11 (4th Cir. 2015); SSR 00-04p, 2000 WL 1898704 ("When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled.").
In this case, the ALJ found at Step Five that there were jobs that existed in significant numbers in the national economy that Matthews could perform. Specifically, the ALJ observed that the vocational expert testified that an individual with Matthews's age, education, work experience, and residual functional capacity would have been able to perform the requirements of the following light, unskilled occupations: production machine tender (DOT # 208.685-018) and production assembler (DOT # 706.687-010). (Tr. 21.) The ALJ further found "[p]ursuant to SSR 00-4p, I have determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles." (Id.)
Matthews suggests that an apparent conflict exists between the testimony provided by the vocational expert and the occupational information in the DOT, and that the ALJ erred in failing to resolve this conflict. As pointed out by Matthews, his residual functional capacity (as well as the hypothetical question presented to the vocational expert) included a statement limiting Matthews from "work requiring reading at greater than the second or third grade level, basically functionally illiterate, with instructions given verbally." (Tr. 13.) However, Matthews argues that the jobs identified by the vocational expert have a language level that exceed that limitation. For example, as explained by the DOT in describing the job of production assembler, it indicates a language level of one and states, "READING: Recognize meaning of 2,500 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers." DOT # 706.687-010. The other job identified by the vocational expert—production machine tender (DOT # 208.685-018)—lists a language level of two which has an even higher rate of reading. Thus, the language level appears to exceed the limitations in Matthews's residual functional capacity; however, that is not to say that the jobs identified by the vocational expert are definitively incompatible with Matthews's residual functional capacity. Rather, the ALJ simply had a duty to resolve this inconsistency. See Pearson, 810 F.3d at 208-11; SSR 00-04p. As other courts have explicitly stated, a claimant is not per se disabled if he or she is illiterate. However, many of these courts have also found that the ALJ must definitively explain why he deviates from the DOT's language requirements when finding that a claimant would be able to perform the work identified by the vocational expert giving the literacy limitation. See, e.g., Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001); Chaoprasrihomkhao v. Berryhill, No. 1:16-CV-01778-JLT, 2018 WL 287303, at *5 (E.D. Cal. Jan. 4, 2018).
The Commissioner's response fails to address this argument or otherwise discuss the ALJ's duty to resolve apparent conflicts. Rather, the Commissioner simply contends that Matthews did not actually assert that a conflict existed and generally argues that Matthews's counsel at the hearing failed to raise any objections.
Specifically, Matthews argues that the jobs identified had a language level of two. The court notes that production machine tender (DOT # 208.685-018) does indicate a language level of two; however, production assembler (DOT # 706.687-010) has a language level of one. Regardless, for the reasons discussed herein, the court finds that a language level of one is an apparent conflict requiring resolution.
The court notes that the Medical-Vocational Guidelines ("the Grids") directs a finding of not disabled in certain circumstances even if the claimant is illiterate; however, the Grids were not applicable in this case and the DOT does not address illiteracy.
Thus, the ALJ's finding that the vocational expert's testimony was consistent with the information contained in the DOT is unsupported by substantial evidence. Moreover, review of the vocational expert's testimony reveals that the vocational expert does not appear to have offered a reasonable explanation for the conflict. Rather, his testimony is unclear at best. (See Tr. 128-29.) Based on the foregoing, the court is constrained to recommend this matter be remanded for further consideration of this issue, as the ALJ failed to elicit a reasonable explanation for this apparent conflict.
Further consideration of these matters may impact Matthews's remaining issues. Therefore, in light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments).
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. January 23, 2018
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).