Opinion
Civil Action No. 6:18-935-BHH-KFM
06-14-2019
Lisa Rowena Hill, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civ. Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on August 12, 2014, and an application for supplemental security income ("SSI") on December 4, 2014 (Tr. 232, 1063) . In both applications, the plaintiff alleged that she became unable to work on June 21, 2014. The applications were denied initially and on reconsideration by the Social Security Administration. On May 13, 2015, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff Robert E. Brabham, Jr., an impartial vocational expert, appeared on March 10, 2017, considered the case de novo, and on May 3, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 129-39). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on March 16, 2018 (Tr. 1-4). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
(2) The claimant has not engaged in substantial gainful activity since June 21, 2014, the alleged onset date (20 C.F.R §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbar and cervical degenerative disc disease, status-post cervical fusion; degenerative joint disease involving bilateral knees; dysfunction left shoulder joint; obesity (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except never balancing, kneeling, or crawling and occasional climbing ramps/stairs, stooping, or crouching and no overhead reaching with bilateral upper extremities.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on December 29, 1969, and was 44 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969 and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from June 21, 2014, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), 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), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his or her past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
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). "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." Id. 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. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 44 years old on her alleged disability onset date (June 21, 2014) and 47 years old on the date of the ALJ's decision (May 3, 2017). She has a tenth grade education and past relevant work as an order filler, stock clerk, and produce manager (Tr. 137, 1092).
At the administrative hearing, the plaintiff testified that knee trouble ultimately necessitated her work stoppage. At the time of the hearing, the plaintiff noted that she had developed other health issues that prevented her from working. Specifically, she opined that the most severe impairment challenging her employment was her back. She testified that her back caused her issues with standing and sitting. Despite having had a four level fusion, she had numbness and pain in her neck, with issues rotating her neck more than 35 degrees, and frequent headaches. She also had issues with her lumbar spine. She also testified that she had issues with her bilateral shoulders including the ability to reach overhead and raising her left arm to shoulder height. She mentioned that she had daily issues of tingling and numbness in her hands and knees (Tr. 1091-1101).
The plaintiff testified that her lumbar spine caused her problems with sitting straight up, bending, stooping, and sitting for longer than 25 minutes. Due to her spine problems, she sat to brush her teeth, needed help with bathing and dressing, and if she dropped something, she would need someone else to help pick it. With respect to her knees, she noted that she had trouble navigating stairs and had swelling one to two times per week, despite having had surgical intervention previously. She stated that when her knees swelled she was forced to sit and elevate them (Tr. 1098-1102).
She further noted that she required assistance with household chores, cooking, and doing things such as going to the grocery store. She told the ALJ that she was unable to walk more than 50-75 feet before needing to stop and rest. She was able to sit for approximately 20 to 25 minutes before she needed to stand up. She needed both hands to lift a gallon of milk and had to use a motorized cart at the grocery store. She stated that she had been unable to drive for over a year prior to her hearing due to her inability to turn her neck and difficulty pressing the pedals (Tr. 1092-1109).
The ALJ's first hypothetical to the vocational expert at the hearing included a limitation to "occasional overhead reaching with the left upper extremity," and the vocational expert identified several jobs that an individual could perform with the stated limitations (Tr. 1112-113). The ALJ asked if the testimony was consistent with the Dictionary of Occupational Titles ("DOT"), and the vocational expert replied that it was (Tr. 1114). The ALJ then stated, "I know the DOT doesn't break down overhead reaching . . . and all other reaching and it also doesn't break down limitations of just one extremity" (Tr. 1114). The vocational expert testified that this was correct and "[t]hat portion of testimony is based on my experience in the field of rehabilitation counseling for in excess of 18 years now and certainly to a high degree of professional certainty" (Tr. 1114).
The ALJ then presented a second hypothetical that corresponded to the residual functional capacity ("RFC") ultimately used in the decision, which included a limitation to "no overhead reaching with bilateral upper extremities" (Tr. 1114-115). The vocational expert responded that the individual could perform occupations such as assembler, DOT No. 739.684-094, 1991 WL 680137; machine tender, DOT No. 731.685-014, 1991 WL 679811; and order clerk, DOT No. 209.567-014, 1991 WL 671794 (Tr. 1114-115). The ALJ asked the vocational expert whether his testimony was consistent with the DOT "except for . . . the overhead reaching distinction that you've already talked about," and the vocational expert testified that it was (Tr. 1115).
In response to a third hypothetical in which the ALJ added a limitation to "only occasional all reaching, reaching in all directions and occasional handling," the vocational expert testified that there would not be any work that such an individual could perform (Tr. 1115-116).
ANALYSIS
The plaintiff argues that the ALJ erred at step five of the sequential evaluation process by failing to identify and resolve a conflict between the vocational expert's testimony and the DOT's requirements for the jobs identified by the vocational expert (doc. 12 at 4-7).
Social Security Ruling 00-4p provides in pertinent part:
When a [vocational expert ("VE")] . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE . . . evidence and information provided in the DOT. In these situations, the adjudicator will:2000 WL 1898704, at *4.
Ask the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT; and
If the VE's . . . evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.
When vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled. 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.
In Pearson v. Colvin, the Court of Appeals for the Fourth Circuit ruled that an "ALJ independently must identify conflicts between the expert's testimony and the [DOT]" and that merely asking the vocational expert if there are any conflicts is insufficient. 810 F.3d 204, 209 (4th Cir. 2015). In addition, the court held that a vocational expert's testimony that apparently conflicts with the DOT can only provide substantial evidence if the ALJ receives an explanation from the vocational expert explaining the conflict and determines both that the explanation is reasonable and that it provides a basis for relying on the testimony rather than the DOT. Id. at 209-10 (citing SSR 00-4p, 2000 WL 1898704, at *2). The court further decided that "[a]n ALJ has not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]" and that an ALJ errs if he "ignores an apparent conflict because the expert testified that no conflict existed." Id. at 210. The court concluded that, because there was no explanation regarding the apparent conflict, there was no reasonable basis in that case for relying on the vocational expert's testimony, and therefore the testimony could not provide substantial evidence for a denial of benefits. Id. at 211.
As noted above, in response to the ALJ's hypothetical that corresponded to the RFC assessment, the vocational expert identified three representative occupations that the individual could perform (Tr. 114-115). The ALJ relied on this testimony at step five of the sequential evaluation process in finding that plaintiff could perform other work that exists in significant numbers in the national economy (Tr. 137-38). The DOT provides that each of the occupations identified by the vocational expert require frequent reaching. See assembler, DOT No. 739.684-094, 1991 WL 680137; machine tender, DOT No. 731.685-014, 1991 WL 679811; and order clerk, DOT No. 209.567-014, 1991 WL 671794.
The plaintiff argues:
Clearly, if one must be capable of reaching on a frequent basis to perform said jobs, [the plaintiff] could not perform any of those jobs where she has been restricted to no overhead reaching. The [vocational expert] was under an obligation to not only identify the conflict of delineated reaching, but also the difference in the frequency required of reaching.(Doc. 12 at 5-6). The plaintiff further argues, "[T]he [vocational expert] never states with specificity on the record that despite being unable to reach overhead the jobs with frequent reaching are performable based on his observation and knowledge of these jobs" (doc. 15 at 2).
The Commissioner argues in response that there is no apparent conflict between the vocational expert's testimony and the DOT because the DOT does not address overhead reaching (doc. 14 at 8). The undesigned disagrees. In Pearson, the Fourth Circuit considered this issue and held that an apparent conflict existed between the vocational expert's testimony that the claimant could perform three occupations with an RFC limitation to "occasional overhead lifting/reaching using the nondominant upper extremity" and the DOT, which listed frequent reaching as a requirement for all three jobs. 810 F.3d at 210-11. The court stated:
Although the Dictionary does not expressly state that the occupations identified by the expert require frequent bilateral overhead reaching, the Dictionary's broad definition of "reaching" means that they certainly may require such reaching. Comparing the Dictionary definition to Pearson's limitations, the vocational expert's testimony that Pearson could fulfill the requirements of these occupations apparently conflicts with the Dictionary. Although we could guess what these occupations require in reality, it is the purview of the ALJ to elicit an explanation from the expert as to whether these occupations do, in fact, require frequent bilateral overhead reaching. If the explanation does not provide a reasonable basis for relying on the expert's testimony, that testimony cannot provide substantial evidence for a denial of benefits. If the expert's explanation is reasonable, the ALJ can resolve the apparent conflict with the Dictionary and rely on the expert's testimony.Id. at 211.
Deciding that the vocational expert's testimony apparently conflicts with the Dictionary here does not mean that an ALJ must find Pearson, or any other claimant with this limitation, unable to perform these jobs. Rather, it simply means that the ALJ and the expert should address exactly what form of reaching the stated occupations require and whether the claimant can fulfill those requirements. As the Seventh Circuit put it, "this is exactly the sort of inconsistency the ALJ should have resolved with the expert's help." Prochaska, 454 F.3d at 736 (remanding the case for the ALJ to determine whether the vocational expert's testimony conflicted with the Dictionary because "the ALJ asked the expert for work that could be done by someone who could only 'occasionally reach above shoulder level' while a cashier's requirements, under the [Dictionary], include 'reaching' frequently").
Here, as in Pearson, there is an apparent conflict between the vocational expert's testimony regarding available jobs and the DOT, which states that the identified jobs require frequent reaching. Thus, as instructed in Pearson, the ALJ and the vocational expert were required to "address exactly what form of reaching the stated occupations require and whether the claimant can fulfill those requirements." Id. In the various hypotheticals presented at the administrative hearing, the ALJ and vocational expert here did discuss the fact that the DOT does not break down the various levels of reaching, that the vocational expert's testimony in that regard was based on his experience, and that if a limitation to occasional reaching in all directions was added there would be no jobs available (Tr. 1112-116). While it appears from this testimony that the ALJ and the vocational expert recognized that the reaching requirement was a potential issue and that the vocational expert was testifying with respect to overhead reaching based upon his training and experience, it is unclear to what extent the type and frequency of reaching was considered by the vocational expert in straying from the DOT. Even more problematic for the undersigned, however, is the ALJ's failure to fulfill his duty as required by SSR 00-4p to "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." 2000 WL 1898704, at *4. Rather, at step five of the sequential evaluation process, the ALJ stated, "Pursuant to SSR 00-4p, I have determined that the vocational expert's testimony is consistent with the information contained in the [DOT]" (Tr. 138). Clearly, the vocational expert's testimony was not consistent with the DOT, and the ALJ did not explain how he resolved the conflict.
To the extent the Commissioner argues that the plaintiff's attorney was required to point out the conflict between the vocational expert's testimony and the DOT at the administrative hearing (doc. 14 at 10 ("[H]e did not raise any concerns about a conflict . . . .")), the undersigned recommends the district court reject the argument. The ALJ's affirmative duty to resolve conflicts between the DOT and the vocational expert's testimony and to identify jobs at step five cannot be shifted to the claimant. See Pearson, 810 F.3d at 210 (providing that an ALJ "has a duty to investigate the facts and develop the record independent of the claimant or his counsel" and has "not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]"). See also Watson v. Colvin, C.A. No. 0:15-4935-RBH, 2017 WL 694645, at *4 (Feb. 22, 2017) (stating that SSR 00-4p "puts the onus of identifying and obtaining a reasonable explanation of any conflicts between the vocational expert's testimony and the DOT on the ALJ") (citation omitted).
While there may be a reasonable explanation for the apparent conflict here, the ALJ never identified and resolved it in his decision. Accordingly, it would be speculation for the court to assume the ALJ realized the conflict and necessarily considered it in light of his decision, which indicated that here were no conflicts between the vocational expert's testimony and the DOT. Thus, the vocational expert's testimony cannot provide substantial evidence for the ALJ's finding at step five. See Pearson, 810 F.3d at 211.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge June 14, 2019
Greenville, 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
300 East Washington Street
Greenville, South Carolina 29601
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).