Opinion
CIVIL ACTION NO. 9:19-1030-RMG-BM
01-30-2020
TIFFANY NICOLE DOVER, Plaintiff, v. ANDREW SAUL, 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 she 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 August 11, 2015 (protective filing date), alleging disability beginning June 1, 2015, due to cancerous tumors in her right breast, neuropathy, carpal tunnel syndrome, depression, and pain in her legs, back, knees and hands. (R.pp. 38-43, 46-47, 49, 177-178, 179-187, 202, 206). 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 March 2, 2018. (R.pp. 34-63). The ALJ thereafter denied Plaintiff's claims in a decision issued June 25, 2018. (R.pp. 15-28). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-3).
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 was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she 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. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the Court should reverse and remand her case 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."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)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
[emphasis added].
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 was forty-two years old on her alleged onset of disability date, and forty-four years old at the time of the ALJ's decision. She has a high school education and past relevant work experience in childcare as a babysitter. (R.pp. 26, 28, 58, 202, 206-207). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.
After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of malignant neoplasm, polyneuropathy, carpal tunnel syndrome, lumbar back disc bulge, and mild knee osteoarthritis (R.p. 18), she nonetheless retained the residual functional capacity (RFC) to perform a range of light work with a requirement that she was limited to standing and walking for 2 hours each in an 8-hour workday and sitting for 6 hours in an 8-hour workday. Plaintiff was also limited to frequently pushing and pulling with the upper and lower extremities, reaching overhead, handling, and fingering; never climbing ladders, ropes, and scaffolds; frequently climbing ramps and stairs; frequently balancing, stooping, kneeling, crouching, and crawling; and avoiding concentrated exposure to hazards. (R.p. 21). At step four, the ALJ found that Plaintiff could not perform any of her past relevant work with these limitations. (R.p. 26). The ALJ then obtained testimony from a vocational expert (VE), and found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with these limitations, and was therefore not disabled during the period at issue. (R.pp. 26-27).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
Plaintiff asserts that in reaching this decision the ALJ failed to resolve inconsistencies between the VE's testimony and the Dictionary of Occupational Titles (DOT). However, after a careful review and consideration of the evidence and arguments presented, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that the decision should therefore be affirmed. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
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).
Step Five , DOT
Plaintiff initially contends that the ALJ failed to resolve inconsistencies between the DOT and the VE's testimony as to her need to be limited to standing and walking for 2 hours each in an 8-hour workday and sitting for 6 hours in an 8-hour workday. Specifically, Plaintiff argues that for each of the three jobs identified by the VE, the DOT and SCO set out that an individual "must be capable of standing and walking for six (6) hours in an 8-hour workday". Plaintiff's Brief, p. 8. However, contrary to Plaintiff's assertion, the descriptions of these jobs do not mandate specific standing and walking requirements. See Inspector, Aligning (DOT 706.687-022), 1991 WL 679076; Packing-Line (DOT 753.687-038, 1991 WL 680354; and Marker (DOT 209.587-034), 1991 WL 671802. Rather, the requirements for each of the three jobs is detailed, as follows, with three alternative physical demand requirements:
The Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (SCO) is the DOT's companion publication. See SSR 00-4P, 2000 WL 1898704, at *1 ["information in the [DOT] including its companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO)].")]
Also referred to as "assembler". (R.p. 27); see also DOT 706.687-022.
STRENGTH: . . . Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/ or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.See 706.687-022 (Inspector); 753.687-038 (Packing-Line); and 209.587-034 (Marker)[Emphasis Added].
Based upon Plaintiff's RFC as established by the ALJ, she would be unable to meet the first alternative because, since she is limited to walking and standing two hours each in an 8-hour workday, she could not meet the first alternative to walk or stand to a significant degree. Plaintiff also could not meet the third alternative, which requires constant pushing and/or pulling, since she was limited to frequent pushing and pulling. (R.p. 21). However, the VE's testimony regarding her ability to perform the jobs identified is not inconsistent with regard to the second alternative, for a position that "requires sitting most of the time but entails pushing and/or pulling of arm or leg controls". See 706.687-022 (Inspector); 753.687-038 (Packing-Line); and 209.587-034 (Marker). The ALJ found that Plaintiff could sit up to six hours in an 8-hour workday with the ability to frequently push and pull with her upper and lower extremities (R.p. 21), and when the ALJ posed a hypothetical to the VE where Plaintiff would be limited to two hours standing and walking each in an 8-hour workday with this limitation, the VE testified that the three jobs identified could be performed sitting or standing as long as the worker remained at the work station. (R.pp. 58, 60). The ALJ further specifically asked the Vocational Expert to confirm whether his testimony was consistent with the job descriptions in the DOT, to which the VE responded "[i]t is". (R.p. 60). Cf. Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980)[ALJ may rely on VE opinion based on training, experience and familiarity with skills necessary to function in various jobs].
Other than with respect to overhead reaching, which the VE discussed separately and based his answer on his observance of jobs being performed, his education, training, and experience. (R.pp. 59-60).
Therefore, Plaintiff has not shown that VE's testimony was inconsistent with the DOT, nor has she shown that she would be unable to perform these jobs due to the walking or standing limitations set forth in the RFC. Cf. Michelle L. v. Berryhill, No. 17-2796, 2019 WL 1057964 at ** 8-9 (N.D.Tex. Mar. 6, 2019)[Finding plaintiff failed "to identify any evidence showing that the limitation of standing and/or walking 2 hours out of an 8-hour workday would preclude her from the identified jobs . . . and none of the identified job descriptions in the DOT directly conflict with the VE's testimony based upon Plaintiff's assigned RFC."]; Heeman v. Colvin, No. 13-3607, 2015 WL 5474679, at *17 (D.S.C. Sept. 16, 2015)[Discussing Commissioner's argument that "there is an enormous difference between (1) a 'conflict' between VE evidence and the DOT and (2) VE evidence concerning a limitation that the DOT does not address", and finding that Courts have held that "a VE can provide more detailed information about jobs or occupations than the DOT without presenting a conflict ."](internal citations omitted); Styles v. Berryhill, No. 18-266, 2019 WL 3812037, at *5 (D.S.C. Aug. 14, 2019)[Noting that no conflict with the DOT exists when DOT job description "did not include a provision that was actually incompatible with the RFC the [VE] relied on, but rather was simply silent or unclear as to one of the RFC's limitations"], quoting Gable v. Colvin, No. 14-2820, 2015 WL 5604176, at * 17 (D.S.C. Sept. 22, 2015).
Courts have reached similar conclusions finding no conflict in the DOT where it was merely silent on the availability of a sit/stand option. Cf. Craig v. Berryhill, No. 17-0580, 2018 WL 3636574, at *6 (W.D.N.C. July 31, 2018)["Because the DOT is silent on the availability of the [sit/stand] option, it cannot be said that a VE testifying about the option would be in conflict with the DOT."](collecting cases and quoting Cogar v. Colvin, No. 13-380, 2014 WL 1713795, at *7 (W.D.N.C. Apr. 30, 2014)); Williams v. Colvin, No. 15-60, 2016 WL 1276415, at *5 (E.D.N.C. Mar. 30, 2016)[noting that because the DOT is silent as to a sit/stand option, there was no conflict between the VE's testimony and the DOT].
Finally, Plaintiff also argues that the ALJ failed to address the inconsistency between the VE's testimony and the DOT with regards to reaching and handling, as the ALJ limited Plaintiff to frequent performance of these activities while the job of hand packer requires constant reaching and handling. However, even if this Court agrees with the Plaintiff that substantial evidence does not support a finding that she could not perform the job of hand packer, the VE also testified that Plaintiff could perform the jobs of assembler with 241,0000 jobs available, and of marker pricer with 1,900,000 jobs available. (R.p. 27). Consistent with Plaintiff's RFC, the DOT lists reaching and handling for these two jobs as frequently. See DOT Nos. 706.687-022 and 29.587-034. Thus, even if Plaintiff can only perform those two jobs, the VE (as well as the ALJ in his decision) identified sufficient jobs that Plaintiff can perform with her limitations to disqualify her from receiving disability benefits. Cf. 20 C.F.R. §§ 404.1566(b), 416.966(b) ["Work exists in the national economy when there is a significant number of jobs (in one or more occupations)"](emphasis added); see Hicks v. Califano, 600 F.2d 1048, 1051, n. 2 (4th Cir. 1979) [Holding that as few as 110 regional jobs is not an insignificant number]; see also McDonald v. Colvin, No. 12-1700, 2013 WL 5492551 at * 3 (C.D.Cal. Sept. 30, 2013)[1,000 jobs regionally and 20,000 nationally constituted a significant number]. Thus, any error by the ALJ in finding Plaintiff could perform the hand packer position, if such error is assumed, would be harmless. See Ngarurih v. Ashcroft, 371 F.3d 182, 190 n. 8 (4th Cir.2004) ["reversal is not required when the alleged error clearly had no bearing on the ... substance of the decision reached."].
Conclusion
Substantial evidence is defined as "... evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984). As previously noted, if the record contains substantial evidence to support the decision (i.e., if there is sufficient evidence to justify a refusal to direct a verdict were the case before a jury), this Court is required to uphold the decision, even should the Court disagree with the decision. Blalock, 483 F.2d at 775.
Under this standard, the record contains substantial evidence to support the conclusion of the Commissioner that the Plaintiff was not disabled within the meaning of the Social Security Act during the relevant time period. Therefore, it is recommended that the decision of the Commissioner be affirmed.
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 30, 2020
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).