Opinion
No. 5:19-CV-00166-FL
06-16-2020
Christopher R. Sumner, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Christopher R. Sumner challenges Administrative Law Judge ("ALJ") Gary Brockington's denial of his application for social security income. Sumner claims that the ALJ Brockington's step five finding lacks the support of substantial evidence. Both Sumner and Defendant Andrew Saul, Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 16, 22.
After reviewing the parties' arguments, the court has determined that ALJ Brockington erred in his determination. ALJ Brockington endorsed the opinions of state agency reviewers but relied on testimony from the Vocational Expert ("VE") which appears to conflict with their assessments. Therefore, the undersigned magistrate judge recommends that the court grant Sumner's motion, deny Saul's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In June 2017, Sumner protectively applied for disability insurance benefits and supplemental security income. In both applications, he alleged a disability that began in January 2017. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Sumner appeared at a hearing before ALJ Brockington to determine whether he was entitled to benefits. ALJ Brockington determined that Sumner had no right to benefits because he was not disabled. Tr. at 20-35.
ALJ Brockington determined that Sumner had the following severe impairments: osteoarthritis, arthritis, residual effects of a right knee injury, right DeQuervain's tenosynovitis, right wrist tendonitis, hypertension, gout, depressive disorder, borderline intellectual functioning, and a learning disorder. Tr. at 23. ALJ Brockington found that these impairments, alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Brockington then determined that Sumner had the RFC to perform light work with other limitations. Tr. at 25. He can occasionally push/pull and operate hand controls with both upper extremities. Id. Sumner can climb ramps and stairs occasionally, but he can never climb ladders, ropes, or scaffolds. Id. Sumner can balance, stop, kneel, crouch, and crawl on an occasional basis. Id. He can frequently handle objects and finger bilaterally. Id. Sumner may have occasional exposure to unprotected heights, dangerous machinery, or hazardous moving, mechanical parts. Id.
Sumner is limited to simple, routine, repetitive tasks that are not performed at a production-rate pace. Id. He is also limited to simple, work-related decisions. Id. Sumner may have frequent interaction with supervisors, coworkers, and the public. Id. He will be off-task no more than ten percent of the time in an eight-hour workday, together with normal breaks (with normal breaks defined as 10-15-minute morning and afternoon breaks and a 30-minute lunch break). Id.
ALJ Brockington concluded that Sumner could not perform his past work as a washer, truck driver, or construction equipment operator. Tr. at 33. But considering his age, education, work experience, and RFC, he found that there were jobs in significant numbers in the national economy that he could perform. Tr. at 32-33. These include inspector and hand packager, laundry folder, and small parts assembler. Tr. at 34. Thus, ALJ Brockington found that Sumner was not disabled. Tr. at 35.
After unsuccessfully seeking review by the Appeals Council, Sumner commenced this action in April 2019. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). 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) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Because Sumner's motion challenges errors about his mental functioning, the court will limit its review of the medical evidence to those impairments and symptoms.
Sumner attended special education classes while in school and school officials placed him on an individualized education program ("IEP"). Tr. at 355-60. Testing revealed that Sumner functioned in the low range of intellectual ability. Tr. at 611. Because of his trouble with attention and receiving auditory information, the test administrator advised that Sumner's instructions should be short and concise. Tr. at 612.
Follow-up testing showed that Sumner's central auditory processing was significantly depressed. Tr. at 605. Providers determined that Sumner had trouble with generalized auditory processing, with more difficulty if incoming information were linguistic in nature or long or complex in structure. Tr. at 607.
In August 2017 Dr. Lori Downing performed a consultative psychological examination. Tr. at 597-98. She noted Sumner's depressed mood and anxiety issues in the form of an adjustment disorder. Id. A mental status examination revealed limited insight and intellectual functioning. Id. Dr. Downing assessed Sumner with borderline intellectual functioning, and she could not rule out an adjustment disorder with depressed mood. Id.
Dr. Downing opined that Sumner could understand, follow, and retain instructions but would have trouble with complex tasks. Tr. at 598. He could sustain attention and concentration to perform simple and repetitive tasks and relate appropriately to others. Id. She found that Sumner would function best in a low-stress setting given his decreased ability to tolerate stress and pressure. Id.
Dr. Jennifer Fulmer, a state agency psychologist, conducted a mental residual functional capacity assessment later that month. Tr. at 31. She determined that Sumner would have difficulty understanding and remembering detailed instructions, but he could understand and remember simple one and two-step instructions. Id. Dr. Fulmer determined that Sumner could sustain attention and concentration to perform one and two-step tasks in a standard work setting that did not require extensive social interaction. Id. She noted that Sumner would have trouble adapting to change but he could work in a stable environment. Tr. at 31-32.
Dr. Sean Sayers, another state agency psychologist, made findings much like Dr. Fulmer. Tr. at 32. Dr. Sayers determined that Sumner could understand, remember, and carry out one to three-step instructions, but he would have difficulty with detailed instructions. Id. Sumner could understand and remember short and simple work procedures and maintain concentration, persistence, and pace to stay on-task for two-hour periods. Id. Although Sumner could respond appropriately to the public, Dr. Sayers advised that he have limited contact to reduce stress. Id. Dr. Sayers found that Sumner could adapt to minimal workplace changes and perform work in a stable environment. Id.
D. Step Five
Sumner asserts that the step five finding was flawed because the VE's testimony conflicted with the DOT, arguing that the limitation to simple, routine, repetitive tasks conflicted with the reasoning level two jobs identified at step five. The Commissioner contends that there was no conflict between the VE's testimony and the DOT and thus ALJ Brockington could rely on the former to make his finding at step five.
The Commissioner supported his position with a recent Fourth Circuit case that addressed this question See Lawrence v. Saul, 941 F.3d 140 (4th Cir. 2019) (a limitation to simple, routine, repetitive tasks does not conflict with jobs classified by the DOT with a reasoning level of two). Given the Lawrence decision, Sumner, for his part, concedes this point. Yet Sumner maintains that the jobs identified at step five conflict with ALJ Brockington's consideration of the medical opinion evidence. And Sumner contends that ALJ Brockington failed to elicit an explanation for this conflict from the VE. The undersigned agrees.
The Lawrence decision was issued after Sumner filed his supporting brief.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant is capable of performing is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence about the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved." SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). "Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT." Id. "When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled." Id. "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." Id.
In Pearson v. Colvin, the Fourth Circuit interpreted SSR 00-04p as placing an "affirmative duty" on the ALJ to independently "identify conflicts between the [VE's] testimony and the [DOT]." 810 F.3d 204, 208-09 (4th Cir. 2015). "An ALJ has not fully developed the record if it contains an unresolved conflict between the [VE's] testimony and the [DOT]." Id. at 210.
In offering her testimony, the VE said she would advise ALJ Brockington of any conflict with the DOT. Tr. at 79. ALJ Brockington presented a hypothetical question to the VE that contained the restrictions in Sumner's RFC. The VE identified three jobs that such an individual could perform. The DOT categorizes all three of the jobs—inspector and hand packager, laundry folder, and small parts assembler —as having a reasoning level of two. Positions with a reasoning level two involve, in part, "[a]pply[ing] commonsense understanding to carry out detailed but uninvolved written or oral instructions."
The DOT Reasoning Level functions are part of the General Educational Development ("GED"), which range from Level 1 (lowest reasoning ability) to Level 6 (highest reasoning ability).
Dr. Fulmer opined that Sumner would have difficulty understanding and remembering detailed instructions but that he could understand and remember simple, two-step commands. Tr. at 98. Similarly, Dr. Sayers found that Sumner would have trouble with detailed instructions but determined that he could perform very short and simple tasks. Tr. at 176.
ALJ Brockington found persuasive the limitations assessed by state agency reviewers. Tr. at 32. Yet ALJ Brockington also concluded that considering the entire record, including Sumner's testimony, he was more limited than these assessors determined. Id. So there appears to be an inconsistency between the reasoning level two jobs and the ALJ Brockington's consideration of the medical opinion evidence, especially given that he determined that Sumner had more restrictions that the state agency reviewers found.
ALJ Brockington's assessment of the medical opinion evidence conflicts with the skills associated with reasoning level two jobs identified at step five to find he was not disabled. ALJ Brockington concluded that the opinions of Drs. Fulmer and Sayers—that Sumner would have difficulty with detailed instructions, but he can understand and remember simple, two-step commands and could perform short, simple tasks—were persuasive and supported by the record. Tr. at 32. And ALJ Brockington found that Sumner would be "somewhat more limited" than these reviewers found. Id.
Yet the RFC did not reflect such limitations. And the step five finding that Sumner could perform jobs with a reasoning level of two, which requires understanding and carry out detailed instructions, conflicts with these medical assessments. These contradictions require explanation. See Ezzell v. Berryhill, 688 F. App'x. 199, 201 (4th Cir. May 4, 2017) (ALJ cannot give significant weight to a medical opinion inconsistent with his RFC assessment without resolving the conflict); see also 20 C.F.R. § 404.1527(b); SSR 96-8p (If a medical opinion conflicts with the ALJ's RFC, the conflict must be explained in the decision.).
Another court in this Circuit issued an instructive decision applicable here. In Bailey v. Berryhill, the plaintiff was limited to "simple, routine, repetitive tasks" but both the ALJ and VE found that she could perform jobs requiring reasoning level two. Bailey v. Berryhill, No. 1:17-cv-326-FDW, 2019 WL 1139498, at *3-5 (W.D.N.C. Mar. 12, 2019). The court determined:
In the instant case, given the ALJ's findings of Plaintiff's inability to understand and remember detailed instruction, and the Fourth Circuit's recent holding in Thomas [finding an apparent conflict between a limitation to short, simple instructions and a need to carry out detailed but uninvolved instructions required for reasoning level two jobs], this Court finds that an apparent conflict exists. Because the occupations identified by the VE have an apparent conflict with Plaintiff's RFC that was not identified or explained by the ALJ, the ALJ improperly relied on the VE's testimony in finding that Plaintiff could perform these jobs.Bailey, 2019 WL 1139498, at *5 (citing Thomas v. Berryhill, No. 17-2215, 2019 WL 193948, at *4 (4th Cir. Jan. 15, 2019), as amended (Feb. 22, 2019)).
The circumstances of this case are very similar to Bailey. And although the Commissioner may ultimately be correct that Sumner can perform work in the national economy, this matter must be remanded for further proceedings to clarify the issue. See also King v. Berryhill, No. 3:18-CV-00001-RJC, 2019 WL 1317732, at *5 (W.D.N.C. Mar. 22, 2019), aff'd sub nom. King v. Saul, 787 F. App'x 170 (4th Cir. 2019) (noting there is "a meaningful difference exists between a limitation to perform only simple, routine, repetitive tasks—[p]laintiff's RFC limitation here—and a limitation to only receive and follow short, simple instructions—the RFC limitation in Thomas.").
So there is a conflict between a finding that Sumner had difficulty with detailed instructions and concluding, at step five, that he could perform jobs which would require understanding and carrying out detailed instructions. ALJ Brockington needed to explain this conflict. Having failed to do so, his reliance on the VE's testimony about the availability of other work lacks the support of substantial evidence. Thus, remand is warranted, and the district court should grant Sumner's motion on this issue.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Sumner's Motion for Judgment on the Pleadings (D.E. 16), deny Saul's Motion for Judgment on the Pleadings (D.E. 22), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: June 16, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge