Opinion
CIVIL ACTION NO. 9:18-1157-JMC-BM
04-22-2019
REBECCA DAVIS, Plaintiff, v. NANCY A. BERRYHILL, Acting 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) on September 22, 2014, alleging disability beginning August 15, 2014, due to arthritis, positive ANA, myositis, and plantar fascitis. (R.pp. 77, 223, 246). Her claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on February 6, 2017. (R.pp. 92-123). The ALJ thereafter denied Plaintiff's claim in a decision issued April 18, 2017. (R.pp. 77-87). 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. 1-5).
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 decision should be reversed and remanded to the Commissioner for further 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, 98 2-983 (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." [emphasis added].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"].
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, who was fifty-nine years old on her alleged date of onset, and sixty-one years old at the time of the ALJ's decision, has a high school education and past relevant work experience as a tagger, packer, order processor, and press operator. (R.pp. 86-87, 118-119, 223, 247, 253). 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" impairment of undifferentiated inflammatory polyarthritis (R.p. 79), she nevertheless retained the residual functional capacity (RFC) for light work with limitations of only occasionally climbing ladders, ropes, or scaffolds; frequently fingering with her right hand, working at unprotected heights, working with moving mechanical parts, stooping, kneeling, crouching, and crawling; no climbing of ropes, ladders, or scaffolds; and frequently being exposed to humidity, wetness, dust, odors, fumes, and pulmonary irritants (R.pp. 82-83). At step four, the ALJ found that Plaintiff was not disabled because these limitations did not render her incapable of performing her past relevant work as a tagger and as a packer as those jobs are generally performed in the economy. (R.pp. 86-87).
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 erred in failing to properly evaluate the demands of her past relevant work, and that the Appeals Council erred in failing to remand the case to the ALJ to evaluate new and material evidence submitted to it. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate the demands of her past relevant work, thereby requiring a remand of this case for additional review.
At Step Four of the disability inquiry, a claimant will be found "not disabled" if he or she is capable of performing their past relevant work either as they performed it in the past, or as it is generally required by employers in the national economy. SSR 82-61, 1982 WL 31387, at *2. The claimant bears the burden of establishing that they are incapable of performing their past relevant work. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). In determining this issue, Social Security Ruling 82-62 requires the ALJ to determine the following when evaluating whether a claimant can perform their past relevant work:
1. A finding of fact as to the individual's RFC.SSR 82-62, 1982 WL 31386, at *4.
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.
Plaintiff contends that the ALJ's analysis of her RFC and her ability to perform her past relevant work fails to comply with the requirements of SSR 81-62 and SSR 82-62. In particular, she argues that the ALJ failed to properly evaluate the demands of her past relevant work or properly compare them to her RFC. As noted above, the ALJ made a finding of fact that Plaintiff had the capacity to perform a range of light work (R.pp. 82-86), and Plaintiff does not appear to challenge that the ALJ thus fulfilled the first prong under SSR 82-62. However, Plaintiff contends that the ALJ erred at the second prong in determining the demands of her past work (and thus also failed to meet the third prong of SSR 82-62 by determining whether Plaintiff's RFC would permit her to return to her past job).
Plaintiff argues that her ability to perform past relevant work is pivotal in this case because, if she is not able to do so, Medical-Vocational Guideline (Grid) Rule 202.04 (applicable to a claimant of advanced age, limited to light work, high school graduate or more that does not provide for direct entry into skilled work, and unskilled past work) would direct a finding of disabled. At her alleged onset date, Plaintiff was in the category of closely approaching advanced age, such that Grid Rule 202.13 (claimant closely approaching advanced age, high school graduate or more, unskilled or no previous work experience) would direct a finding of not disabled. However, approximately eight months after her alleged onset date, Plaintiff turned 60 (advanced age), such that, if it was determined that she had unskilled or no previous work experience and her education did not provide for direct entry into skilled work, Grid Rule 202.04 would direct a finding of disabled.
In his decision, the ALJ specifically found that Plaintiff worked as a packer from July 2007 to August 2014 at Newark Electronics (Newark). (R.p. 87). The VE testified that the job of packer, identified as Dictionary of Occupational Titles (DOT) number 753-687-038 (Packing-Line Worker), is light, unskilled work. While the ALJ concluded that Plaintiff would not be able to perform the job of packer as she actually performed it, she would be able to do the job as it is generally performed. Id. Additionally, the ALJ found that Plaintiff worked as a tagger from April 2001 to July 2004 for Sara Lee (Sara Lee) Intimates (which is also referred to as Hillshire or Sara Lee/Hillshire). (R.p. 86). The VE testified that the job of tagger, DOT 229.587-018 (Ticketer), is light, unskilled work, although the job was medium work as Plaintiff performed it. However, the ALJ concluded that Plaintiff could perform the tagger job as generally performed. (R.pp. 86-87, 118-119).
After careful review of the decision and the case record, the undersigned is unable to find that the ALJ's determination that Plaintiff could perform the job of packer as it is generally performed is supported by substantial evidence. Although the ALJ found that Plaintiff's job from 2007 to 2014 at Newark was as a packer, in her Disability Report and Work History Report, Plaintiff listed the job she performed at Newark from July 2007 to August 2014 as "order processor." (R.pp. 247, 253, 255). In written reports, Plaintiff listed her job at Newark from July 2007 to August 2014 as an order processor in a distribution warehouse, and she described the job as pre-bagging product, entering information into a computer, standing all day, counting and pre-bagging product using a hand sealer to seal bags, lifting each box from cart to desk, using a machine to pre-bag, and pressing the release pedal all day while using it. She wrote that she lifted up to 50-75 pounds, frequently lifted 25-40 pounds, and lifted and carried boxes from conveyor belt, put them on a cart, pulled the cart back to the department, and moved carts. (R.pp. 253, 255). Thus, the written reports appear to support Plaintiff's contention that her job at Newark was not just the "packer" job identified by the ALJ.
Plaintiff's earnings history includes the names of the companies and years for which Plaintiff worked for those employers, which corresponds with a finding that she worked for Sara Lee from 2001-2004 and for Newark from 2007 until at least 2014. (R.pp. 232-234).
Moreover, at the hearing, Plaintiff testified that she had several jobs at Newark, and while she did testify that she first worked at Newark as a packer on a tilt tray, standing at the job and lifting up to 75 pounds as product came down the tilt tray (R.p. 112), it is unclear from the testimony how long she actually performed this job, as she said she left that job and worked in a department called tape cut, which required her to stand all day and lift up to 45 pounds. (R.pp. 112-113). Plaintiff stated that she next processed orders at a stand-up job at which she packed up to 75 pounds, put items on a cart, pushed carts across the floor, and pushed big boxes weighing up to 150 pounds. (R.p. 113). Thus, it does not appear, as found by the ALJ, that Plaintiff worked at Newark as a "packer" from 2007 to 2014.
Plaintiff argues that the VE identified Plaintiff's past work as four jobs (tagger DOT 229.587-018, packer DOT 753.687-038, order processor DOT 922.687-058, and press operator DOT 699.682-022), but that she actually only had three jobs during the relevant period, such that:
[i]t seems like the VE lumped [Plaintiff's] packer job as a packer and an order processor and [Plaintiff's] work history report shows that her tagger job was actually 2 different jobs, seemingly also requiring order processing. R. 257. Therefore, it appears that the record supports that both of [Plaintiff's] past work that the ALJ found she could still do were composite jobs.Plaintiff's Brief, ECF No. 12 at 21.
A composite job is a job in which no single DOT job code would be accurate alone, but rather has elements of more than one DOT job code. SSR 82-61. "In the event the main duties of past relevant work can only be described by considering multiple DOT occupations, a [claimant] may be considered to have performed a composite job." Shealy v. Colvin, No. 8:13-2383-RMG, 2015 WL 467726, at *12 (D.S.C. Feb. 4, 2015). Pursuant to the Administration's Program Operations Manual System (POMS), when comparing a claimant's RFC to a composite job as the claimant performed it, the ALJ "must find the claimant capable of performing the composite job only if he or she can perform all parts of the job." POMS DI § 25005.020B, https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020; see also Shealy, 2015 WL 467726, at *13 [noting that an ALJ may not find a claimant capable of performing past relevant work by dividing the demands of a composite job into two separate jobs and finding the claimant capable of performing the less demanding of the two jobs]. Further, it is indicated in the POMS that "[a] composite job does not have a DOT counterpart", such that an ALJ should "not evaluate it at the part of step 4 considering work 'as generally performed in the national economy.'" POMS DI § 25005.020B.
Here, of course, the ALJ found that Plaintiff's past relevant work consisted of three jobs; a tagger for Sara Lee, a press operator at Alcoa, and a packer at Newark. Yet, the VE testified that Plaintiff's work consisted of four jobs (tagger, packer, order processor, and press operator), and it is unclear, other than the press operator job, which of Plaintiff's past jobs corresponded with which of the jobs identified by the VE. As Plaintiff listed her job at Newark as an order processor, it may be that the order processor job identified by the VE (which the VE testified was a medium job both as actually and as generally performed) pertains to Plaintiff's job at Newark. In any event, while there is substantial evidence suggesting that Plaintiff may have performed a composite job based on this case record, this was not addressed by the ALJ in his decision, such that remand is necessary to resolve this issue. See, e.g., Parker v. Berryhill, No. 1:16-3852-TMC-SVH, 2017 WL 4075128, at *12 (D.S.C. Aug. 24, 2017), adopted, No. 1:16-3852-TMC, 2017 WL 4037680 (D.S.C. Sept. 13, 2017) (collecting cases)["Because the record suggests Plaintiff performed jobs as a coach and a teacher in combination, the ALJ erred in determining Plaintiff could perform PRW as a teacher without considering whether the job of teacher was performed as part of composite job."]. Further, even if a job performed by Plaintiff at Newark is not a composite job, it is unclear whether the DOT job identified pertains to the job Plaintiff testified she performed. The DOT code identified by the VE has an industry designation of "Rubber Goods Industry" and provides that such a worker performs tasks as a member of a conveyer line crew "to finish and pack plastic or rubber footwear..." DOT 753.687-038, 1991 WL 680354. This issue also needs to be resolved on remand.
Plaintiff testified and provided information in the written reports that she worked at Alcoa Building Products (also identified as Mastic Home Exteriors, Inc.) from April 2004 to July 2007 as a press operator. The ALJ also found that Plaintiff worked as a press operator at Alcoa Building Products (Mastic Home Exteriors, Inc.) from April 2004 to July 2007. However, it is clear that the ALJ found that Plaintiff could not do this past relevant work, which the VE testified was medium work both as actually and as generally performed. (R.pp. 86, 87, 119).
The ALJ did also find that Plaintiff could perform her other past relevant work as a tagger as generally performed. However, this job also appears to possibly be a composite job. In her Disability Report and Work History Report, Plaintiff listed the job she performed at Sara Lee from 2001 to 2004 as a processor. (R.pp. 247, 253, 257). In the written reports, Plaintiff described the job of processor as requiring her to tag garments, pick up garments, pick up tags, staple tags on garments, place garments on hangers, fold garments, place garments in boxes, and place boxes on pellets. (R.pp. 253, 257). At the hearing, Plaintiff testified that that she worked for Sara Lee as a tagger, which required her to tag garments, stand all day at the job, go up and down stairs, put garments on hangers, put garments in boxes, and tape up the boxes. (R.p. 116). The DOT provides that the job of ticketer requires recording or stamping information on tags, fastening the tag to cloth or carpeting, computing the number produced to determine the required number of tags, trimming excess threads using scissors, and keeping records. DOT 229.587-018. However, as described by Plaintiff, the job she had appears to have required substantial packing and lifting. Additionally, even if the tagger job is not a composite job and the DOT number identified by the VE (229.587-018) accurately describes the work Plaintiff performed at Sara Lee, there is a conflict between the VE's testimony and the DOT as to the tagger (ticketer) job. The VE stated that a claimant who could only frequently finger with her right hand could perform the job. However, the DOT provides that the tagger job requires a claimant to be able to constantly (2/3 or more of the time), rather than frequently, perform fingering. DOT No. 229.587-018 (Ticketer), 1991 WL 672150. Therefore, the VE's testimony that Plaintiff could perform this job is not supported by substantial evidence.
The Commissioner argues that there is no conflict with the DOT because the ALJ only identified a limitation with Plaintiff's right hand, and the DOT description does not provide that both hands are required to perform the job. However, the DOT description does not indicate that the job of ticketer can be performed with one hand, nor did the ALJ discuss this discrepancy at the hearing or in his decision. Moreover, the ALJ could not properly just rely on the VE's testimony, as even when a VE states that there is no conflict, "the ALJ has an affirmative 'duty to make an independent identification of apparent conflicts.'" Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). In a recent decision, the Fourth Circuit noted that an ALJ could not rely unquestioningly on the VE's testimony, but "must ensure that any 'apparent' conflicts between the Dictionary and the VE's testimony are reasonably resolved." Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019); see also SSR 00-4P, 2000 WL 1898704, at *2. Here, the ALJ did not reasonably resolve the apparent conflict between the VE's testimony and the DOT. Indeed, he found that the VE's testimony was consistent with the DOT (which, as noted above, it was not) and that there was no conflict. (R.p. 87).
Therefore, this case should be remanded to the Commissioner for further proceedings consistent with this opinion. With respect to any remaining claims of error asserted by the Plaintiff, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge April 22, 2019
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).