Opinion
CIVIL ACTION NO. 17-4891
10-30-2018
JUDITH MARY ABRAMS v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration
REPORT AND RECOMMENDATION
Plaintiff, Judith Mary Abrams, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act").
Plaintiff filed a Brief and Statement of Issues in Support of Request for Judicial Review ("Pl.'s Br."), defendant filed a Response to Request for Review of Plaintiff ("Def.'s Br."), and plaintiff filed a reply thereto ("Pl.'s Reply"). For the reasons set forth below, this court recommends that plaintiff's Request for Review be DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for DIB on April 9, 2015, alleging disability beginning December 2, 2013. (R. 91-99.) Plaintiff's claim was denied initially, and a request for hearing was timely filed. (R. 55-56.) A hearing was held on January 25, 2017, before Administrative Law Judge ("ALJ") Deborah Mande. (R. 23-41.) Plaintiff, represented by counsel, appeared and testified. (R. 26-37.) Carolyn Rutherford, a vocational expert ("VE"), also appeared and testified. (R. 37-40.) In a decision dated April 5, 2017, the ALJ found that plaintiff was not disabled under the Act. (R. 11-19.) The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.Id.
2. The claimant has not engaged in substantial gainful activity since December 2, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative joint disease and obesity (20 CFR 404.1520(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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
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 CFR 404.1567(a) except she cannot climb stairs.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on November 13, 1958 and was 55 years old, which is defined as an individual of advanced age, on the alleged disability date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. The claimant has acquired work skills from past relevant work (20 CFR 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569(a) and 404.1568(d)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 2, 2013 through the date of this decision (20 CFR 404.1520(g)).
Plaintiff filed a request for review of the ALJ's decision. (R. 88-90.) The request was denied by the Appeals Council on September 15, 2017, and the ALJ's decision became the final decision of the Commissioner. (R. 1-5.) Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 134 S. Ct. 1274 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of United States Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, "so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).
To be eligible for benefits, the claimant must demonstrate an "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). Specifically, the impairments must be such that the claimant "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). Under the Act, the claimant has the burden of proving the existence of a disability and must furnish medical evidence indicating the severity of the impairment. 42 U.S.C. § 423(d)(5). In the case of DIB, a claimant must establish disability prior to the expiration of her insured status. See 20 C.F.R. § 404.131(a); Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
The Social Security Administration employs a five-part procedure to determine whether an individual has met this burden. 20 C.F.R. § 404.1520. This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment which meets or equals the requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether the claimant is able to perform other work, in view of her age, education, and work experience. See id. The claimant bears the burden of establishing steps one through four of the five-step evaluation process, while the burden shifts to the Commissioner at step five to show that the claimant is capable of performing other jobs existing in large numbers in the national economy. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).
The Social Security Administration recently promulgated amendments to selected regulations. For purposes of this opinion, the court will refer to the version of the relevant regulations in effect at the time of the ALJ's decision in April 2017.
III. BACKGROUND
At the time of the hearing, plaintiff was separated from her husband and living with her two children, ages sixteen and twenty. (R. 27.) She had a driver's license, but did not drive because she did not have a car. Id. To get to the hearing, plaintiff took a bus. Id. Plaintiff's education history includes high school and "some college," but she did not receive a college degree. Id.
Plaintiff last worked as an administrative assistant for the American Red Cross for twenty years, until 2013. (R. 28.) As an administrative assistant, she "typed patient reports, I would fetch the mail and deliver it, copies and delivering things and picking things up in the building or in - bringing things into the lab for the techs, [and] filing." Id. In this position, plaintiff estimated that she spent approximately half the day seated at a desk and half the day standing and walking. (R. 29.) The most plaintiff had to lift at this job was a case of paper, which she estimated to weigh twenty or thirty pounds. Id.
She was fired from this position in 2013, because "I was on family leave, but sometimes I would come in too late in the morning because I had a problem with my irritable bowel syndrome and I guess they just didn't like that I did that. I would make up the time, but it didn't matter." (R. 28.) Plaintiff did not seek work after being fired from the American Red Cross because she "started feeling bad with my knee - my knee was bothering me when I was in work, I had two surgeries on it, but it just kept getting worse." Id. Plaintiff had difficulty performing the four hours of walking and standing due to knee pain. (R. 29.) Due to knee pain, she is not able to walk and stand for very long. Id. After approximately fifteen or twenty minutes, her legs begin cramping. Id. It is "about the same" whether she is standing or walking. Id.
Plaintiff "sometimes" does her own grocery shopping, but "usually take[s] one of the [electric] carts they have." (R. 30.) Around the house, she washes the dishes, makes beds, and sweeps the floor, but her children do the laundry. Id. Plaintiff has trouble "carrying [the baskets] and going down steps." Id. Plaintiff testified that she would be able to pick up and move a ten pound object, but would only be able to carry it "if I strapped it to my back" because carpal tunnel syndrome is making it more difficult for her to carry things. (R. 31.) When asked about her hobbies, plaintiff stated that she mostly watches Netflix, watches movies, and plays with her two little dogs. (R. 31-32.)
Plaintiff is still undergoing treatment on her knees. (R. 32.) Plaintiff's doctors have advised that she has to get a knee replacement, but she is too young at this time. Id. Before the hearing, plaintiff received an injection in her left knee but stated, "if anything, my knee feels worse than it was before." Id. She had previously received a cortisone injection in her right knee that "actually did help a tiny bit." Id. Plaintiff does not take pain medication, but was given an anti-inflammatory medication by her doctor. (R. 33). She also takes blood pressure medication and Prilosec. Id. Plaintiff stated that she has trouble falling asleep and staying asleep at night. Id.
In response to questioning by her attorney, plaintiff stated that she goes out of the house only "once or twice a month," and that she is usually accompanied by her son. (R. 34.) She has difficulty with stairs, and it may take her fifteen or twenty seconds to get up a flight of steps. Id. Plaintiff has issues with falling; she had last fallen "about five weeks ago," because of "the position I was in with my [left] knee, I didn't stand up the right way or it just gave out." (R. 35.) Plaintiff can comfortably walk one block, but if she walks more than one block she feels pain and discomfort in her knee. Id.
Plaintiff also explained that carpal tunnel syndrome causes her some difficulty in using her hands. Id. Specifically, if she holds a phone for too long, her hand gets numb. Id. At her prior job, she had to use accommodations such as a "cutting board" instead of scissors, and a speakerphone so she did not have to hold the phone. Id. Plaintiff has not typed since her last day of work, and does not know if she could type due to carpal tunnel syndrome at the present time. Id.
The VE classified plaintiff's past work as administrative clerk, light, semi-skilled, with an SVP of 4. (R. 37.) When asked if there are any skills that would transfer to the sedentary exertional level, the VE stated, "Yes, there would be basic clerical skills such as reasoning document[s], maintaining records, [and] compiling data." (R. 38.) The VE then identified several jobs at the sedentary exertional level with SVPs of 3: order clerk, for which there are 30,000 positions nationally; telephone work positions, for which there are 60,000 positions nationally; and rooting clerk and reservation clerk positions for which there are 40,000 positions nationally. Id. The VE further testified if a hypothetical person were expected to have three or more unscheduled breaks per day that were more than a few minutes each, "it would be considered excessive and preclude sustaining work." Id.
In response to questioning by plaintiff's attorney, the VE testified that a hypothetical person would not be precluded from working the identified jobs if plaintiff required a phone or keyboard accommodation. (R. 40.) Rather, "[p]hone and keyboard accommodations are generally mainstream now, a lot of employers have them without you even asking, it's not really considered an accommodation because they're so readily available and readily used." Id.
IV. DISCUSSION
The ALJ found that the evidence of record supports a finding that plaintiff had the severe impairments of degenerative joint disease of the knees and obesity. (R. 13.) However, the ALJ further found that neither impairment met nor medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15.) Ultimately, the ALJ determined that plaintiff had acquired work skills from past relevant work that are transferable to other jobs she could perform based on her age, education, work experience, and residual functional capacity ("RFC"). (R. 18.)
In her request for review, plaintiff argues that substantial evidence does not support the ALJ's decision. (Pl.'s Br. at 3-8.) Specifically, plaintiff contends that the ALJ's finding that plaintiff has transferable skills is contrary to the law. Id. Defendants respond that the ALJ's decision is supported by substantial evidence. (Def.'s Br. at 2-7.)
The transferability of skills "is an issue only when an individual's impairment(s), though severe, does not meet or equal the criteria in the Listing of Impairments in Appendix 1 of the regulations but does prevent the performance of past relevant work (PRW), and that work has been determined to be skilled or semiskilled." Social Security Ruling 82-41, Titles II and XVI: Work Skills and their Transferability as Intended by the Expanded Vocational Factors, 1982 WL 31389 (S.S.A. Jan. 1, 1982). The regulations describe transferable skills as "skills that can be used in other jobs, when the skilled or semi-skilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work." 20 C.F.R. § 404.1568(d)(1). When the claimant is a person of advanced age, the regulations provide that "we will find that you have skills that are transferable to skilled or semiskilled sedentary work only if the sedentary work is so similar to your previous work that you would need to make very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry." 20 C.F.R. § 404.1568(d)(4).
Plaintiff's past work was classified as "administrative clerk," which is a semi-skilled job. (R. 37.) The VE testified that "basic clerical skills" would transfer from plaintiff's former job as an administrative clerk to the sedentary exertional level. (R. 37-38.) These skills include reading documents, maintaining records, and compiling data. Id. The VE provided the occupations of order clerk, telephone worker, and routing/reservation clerk. Id.
Plaintiff argues that "the ALJ made no findings whether the transferring of skills involved 'very little or no adjustment,'" per 20 C.F.R. § 404.1568(d). (Pl.'s Br. at 5.) However, review of the ALJ's decision plainly demonstrates that she did make such a finding. The decision provides, in relevant part: "I find the jobs listed by the vocational expert are so similar to the claimant's previous work that the claimant would need to make very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry." (R. 18.) The ALJ then went on to discuss the skills that would overlap:
Plaintiff's brief further asserts that "the ALJ did not show any indication that she even knew that this was an issue, [and] certainly did not discuss in her decision" and "failed to engage in any of the required analysis." (Pl.'s Br. at 5, 8.) Again, a plain reading of the ALJ's decision demonstrates the contrary. --------
The occupation of order clerk (DOT #249.362-026) would require the skills of reading, documenting, maintaining records, and compiling data that would be obtained from the claimant's past relevant work as an administrative clerk (DOT #219.362-010). The occupation of telephone worker (DOT #193.262-014) would require the skills of reading, documenting, maintaining records, and compiling data that would be obtained from the claimant's past relevant work as an administrative clerk. The occupation of routing/reservation clerk (DOT #249.367-070) would require the skills of reading, documenting, maintaining records, and compiling data that would be obtained from the claimant's past relevant work as an administrative clerk.Id. Thus, the ALJ's decision clearly sets forth her findings with regard to the transferability of skills, and such findings appear to be consistent with the DOT.
Plaintiff briefly argues that the ALJ "did not pose any question to the vocational expert designed to address" this issue. (Pl.'s Br. at 5.) However, plaintiff does not cite any authority that would require VE testimony to establish that the claimant would need to make very little, if any, vocational adjustment. While SSR 81-42 permits the consultation of a VE "as necessary," and states that VE testimony may be required in evaluating "obviously unusual occupations in isolated vocational settings," the skills at issue in the present case are not unusual. On the contrary, the court notes that SSR 82-41 provides clerical and administrative skills as an example of skills that "can usually be accomplished with very little, if any, vocational adjustment" because they have "universal applicability across industry lines." SSR 82-41, 1982 WL 31389, at *6.
This court's review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). This court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr., 806 F.2d at 1190-91. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2012) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); see also Burns, 312 F.3d at 118 ("We also have made clear that we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder."). Because the ALJ clearly set forth her finding regarding the transferability of plaintiff's skills, and the finding appears consistent with the relevant regulations, SSR 82-41, and the DOT, the court finds that substantial evidence supports the ALJ's decision.
V. CONCLUSION
After a careful and thorough review of all of the evidence in the record, and for the reasons set forth above, this court finds that the ALJ's findings are supported by substantial evidence. Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this 30th day of October, 2018, upon consideration of plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's response, and plaintiff's reply, it is respectfully recommended that plaintiff's Request for Review be DENIED.
The parties may file objections to the Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
BY THE COURT:
/s/ Thomas J. Rueter
THOMAS J. RUETER
United States Magistrate Judge ORDER
AND NOW, this day of , 2018, upon consideration of plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's Response to Request for Review of Plaintiff, and plaintiff's Reply thereto, after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby
ORDERED
1. The Report and Recommendation is APPROVED and ADOPTED.
2. Plaintiff's Request for Review is DENIED.
3. The Clerk of Court is hereby directed to mark this case closed.
BY THE COURT:
/s/_________
C. DARNELL JONES, II, J.