Opinion
5:18-CV-51-D
01-22-2019
RICARDO RICHARDS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Ricardo Richards ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying his applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 18, 22. Both filed memoranda in support of their respective motions. D.E. 19, 23. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 24 Oct. 2018 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be granted, plaintiff's motion be denied, and the Commissioner's decision be affirmed.
The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416. The court is reviewing the ALJ's decision under the versions of the regulations and Social Security rulings applicable to plaintiff's claim, although changes were made in several that subsequently took effect.
I. BACKGROUND
A. Case History
Plaintiff filed an application for DIB on 18 September 2014 and an application for SSI on 14 July 2014, alleging in both a disability onset date of 14 July 2014. Transcript of Proceedings ("Tr.") 15. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 15; 181-82. On 3 February 2017, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 15; 30-74. The ALJ issued a decision denying plaintiff's claims on 23 February 2017. Tr. 15-24.
Plaintiff timely requested review by the Appeals Council. Tr. 218-19. On 5 December 2017, the Appeals Council denied the request. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 7 February 2018, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).
B. Standards for Disability
The Social Security Act ("Act") defines disability as the "inability to engage in 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." 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
See also 20 C.F.R. § 404.1545(a)(1).
See also 20 C.F.R. § 404.1545(a)(2).
See also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2), 404.929.
C. Commissioner's Findings
Plaintiff was 27 years old on the alleged disability onset date, and 30 years old on the date of the hearing and the ALJ's decision. See, e.g., Tr. 22 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 22 ¶ 8) and past relevant work as a pizza delivery driver and caregiver (Tr. 22 ¶ 6).
Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 17 ¶ 2. At step two, the ALJ found that plaintiff had the following severe medically determinable impairments: Charcot-Marie-Tooth disease; obesity; peripheral neuropathy; hypertension; chronic gout; and obstructive sleep apnea. Tr. 18 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 18 ¶ 4.
The ALJ determined that plaintiff had the RFC to perform a limited range of sedentary work as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he can stand for 2 hours, provided he may not stand for more than 15 minutes at any given time; and can walk up to 2 hours, provided he may not walk for more than 15 minutes at any given time. The claimant
can occasionally use hand controls; may frequently handle, finger, and feel bilaterally. He may occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. He may occasionally balance, crouch and crawl. The claimant may have occasional exposure to unprotected heights, with frequent exposure to moving mechanical parts. He may only occasional operate a motor vehicle. He may have frequent exposure to dusts, odors, fumes, other pulmonary irritants, extreme heat, and vibration. The claimant is limited to work that will allow for the use of a single cane for ambulation and balance when away from the work station, and use of the work station for stability and balance while standing at the work station.Tr. 19 ¶ 5.
Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform any of his past relevant work. Tr. 22 ¶ 6. At step five, the ALJ found that there were jobs existing in significant numbers in the national economy that plaintiff could perform, including jobs in the occupations of document clerk, order clerk, and envelope addresser. Tr. 22-23 ¶ 10. The ALJ therefore concluded that plaintiff was not disabled from the alleged disability onset date, 14 July 2014, through the date of his decision, 23 February 2017. Tr. 23 ¶ 11.
II. STANDARD OF REVIEW
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. ANALYSIS
Plaintiff contends that the ALJ's decision should be reversed or modified or, in the alternative, this case should be remanded for a new hearing on the grounds that there existed a conflict between the vocational expert's testimony and the Dictionary of Occupational Titles ("DOT") that the ALJ failed to resolve. The court finds no error.
Social Security Ruling 00-4p requires that an ALJ inquire about and resolve in his decision conflicts between a vocational expert's testimony and the DOT:
Occupational evidence provided by a VE [i.e., vocational expert] or VS [i.e., vocational specialist] generally should be consistent with the occupational
information supplied by the DOT. 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. 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.Soc. Sec. Ruling 00-4p, 2000 WL 1898704, at *2, 4 (4 Dec. 2000).
Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.
. . . .
. . . The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.
The Fourth Circuit has interpreted Soc. Sec. Ruling 00-4p to require that the ALJ has an independent obligation to identify apparent conflicts between a vocational expert's testimony and the DOT. Pearson v. Colvin, 810 F.3d 204, 208-09 (4th Cir. 2015). An ALJ does not fulfill this duty by simply relying on a vocational expert's affirmative response to the question whether his testimony is consistent with the DOT. Id. at 208. Conflicts are apparent and must be identified by the ALJ "where the expert's testimony seems to, but does not necessarily, conflict with the [DOT]." Id. at 209. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received [an] explanation from the expert [that no conflict exists] and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10.
The conflict plaintiff alleges relates to the 15-minute limitation on walking and standing in the ALJ's hypothetical to the vocational expert that elicited the testimony about jobs available to plaintiff upon which the ALJ relied at step five of the sequential analysis. The limitation was that the hypothetical individual "may not stand for more than 15 minutes at any given time" and "may not walk for more than 15 minutes at any given time." Tr. 66. The ALJ included this same limitation in his RFC determination. See Tr. 19 ¶ 5.
Plaintiff contends that this limitation conflicts with the definition of sedentary work in the DOT, which reads:
S - Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.DOT, app. C § IV, def. of "S-Sedentary Work," 1991 WL 688702 (U.S. Dep't of Labor 4th ed. rev. 1991). This definition has the same meaning as that for sedentary work in the Regulations, 20 C.F.R. § 404.1567(a), which is cited in the RFC determination, as indicated. See 20 C.F.R. §§ 404.1567, 416.927 (providing that the terms for exertional level as used in the Regulations have the same meaning as in the DOT).
This provision reads:
Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 404.1567(a).
The court finds that there is no conflict, apparent or otherwise, between the 15-minute walking and standing limitation in the hypothetical and the DOT. The definition provides that sedentary work "may involve walking or standing for brief periods of time." DOT, app. C § IV, def. of "S-Sedentary Work," 1991 WL 688702. The maximum walking and standing time is about two hours out of an eight-hour workday (i.e., "occasionally" or "up to 1/3 of the time"). Id.; see also Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996) (providing that for purposes of an RFC a workday is ordinarily deemed to be eight hours in length); Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5 (1983) ("[A]t the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday."). In this context, the 15-minute walking and standing limitation is consistent with "walking or standing for brief periods of time." Id. Notably, the limitation does not posit an RFC more restrictive than that provided for in the DOT definition of sedentary work, which was the nature of the concern presented in Pearson. 810 F.3d at 210-11 (finding apparent conflict between limitation in hypothetical of plaintiff to only occasional reaching upward with the nondominant arm and the capacity for frequent reaching included in the DOT definition of each of the occupations the vocational expert testified the claimant was capable of performing). The vocational expert confirmed that his testimony was consistent with the DOT. Tr. 68. The ALJ was not required to further develop the record regarding the consistency of the vocational expert's testimony with the DOT.
Plaintiff argues to the effect that the lack of inclusion in the DOT definition of the specific 15-minute limitation creates a conflict between the limitation and the DOT. As discussed, however, the greater specificity of the limitation in the hypothetical does not conflict with the DOT definition. The applicable standard is that the hypothetical and thereby the vocational expert's testimony and the DOT be consistent, not that they be identical. The court concludes that the ALJ did not err as plaintiff contends.
Plaintiff inappropriately bases his argument on the language of 20 C.F.R. § 404.1567(a), specifically, the phrase "a certain amount of walking and standing is often necessary," rather than the more precise, corresponding language of the DOT, reading, again, sedentary work "may involve walking or standing for brief periods of time," DOT, app. C § IV, def. of "S-Sedentary Work," 1991 WL 688702.
IV. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 22) for judgment on the pleadings be GRANTED, plaintiff's motion (D.E. 18) for judgment on the pleadings be DENIED, and the Commissioner's final decision be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 5 February 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 22nd day of January 2019.
/s/_________
James E. Gates
United States Magistrate Judge