Opinion
SA-22-CV-716-XR (HJB)
08-18-2023
AMY DEE PATRICK, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Xavier Rodriguez:
This Report and Recommendation concerns Plaintiff Amy Dee Patrick's request for review of the administrative denial by the Social Security Administration (“SSA”) of her application for Social Security Disability Insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title XVI of the Social Security Act respectively, pursuant to 42 U.S.C. §§ 405(g). After considering Plaintiff's brief (Docket Entry 18), Defendant's Brief in Support of the Commissioner's Decision (Docket Entry 21), the transcript (“Tr.”) of the SSA proceedings (Docket Entry 13), the other pleadings on file, the applicable case authority, relevant statutory and regulatory provisions, and the entire record in this matter, I recommend that the Commissioner's decision be VACATED and REMANDED for reconsideration.
I. Jurisdiction.
Jurisdiction to review the Agency's decision is provided by 42 U.S.C. § 405(g). I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Factual Background.
Plaintiff filed a claim for benefits on June 6, 2015, alleging disability beginning April 30, 2014. (Tr. 387-88.) Following administrative-level denials (Tr. 172-73), Plaintiff requested a formal hearing, which was held on August 19, 2017, before Administrative Law Judge (“ALJ”) Ben Barnett. (Tr. 109-26.) On October 4, 2017, ALJ Barnett determined Plaintiff was not disabled. (Tr. 177-85.) On administrative appeal, Plaintiff was granted a rehearing and her case was to be remanded to a different ALJ. (Tr. 192-96.) Contrary to the Appeals Council's order, Plaintiff's case was again heard by ALJ Ben Barnett resulting in a second determination that Plaintiff was not disabled. (Tr. 11-22, 128-49.) The Appeals Council denied Plaintiff's request for review of ALJ Barnett's second determination. (Tr. 1.)
Plaintiff then sought judicial review; on December 1, 2020, the District Court for the Western District of Texas granted the Commissioner's unopposed motion to remand Plaintiff's case for further proceedings before a new ALJ. (Tr. 1675-76.) By that point, Plaintiff had filed a new application for SSI. (Tr. 1828-37.) The Appeals Council remanded Plaintiff's case to a new ALJ, with instructions for the ALJ to consolidate Plaintiff's 2015 and 2020 applications. (Tr. 1678-81.)
The new ALJ, Gordon Momcilovic, held a hearing on both applications on February 24, 2022, at which Plaintiff and Vocational Expert (“VE”) Myrtle Johnson testified. (Tr. 1615-43.) On March 9, 2022, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 1541-59.)
In issuing his decision, the ALJ applied the five-step sequential analysis required by SSA regulations. See Part III(C), infra. At step one, the ALJ determined that Plaintiff had not engaged in substantial, gainful activity since the alleged onset date of April 30, 2014. (Tr. 1544). At step two, the ALJ determined Plaintiff had three severe impairments under 20 C.F.R. §§ 404.1520(c) and 416.920(c): major depressive disorder, post-traumatic stress disorder (PTSD), and generalized anxiety disorder. (Tr. 1544.). The ALJ deemed not severe the additionally identified impairments of hepatitis C, asthma, fractured clavicle, personality disorder, and opioid and marijuana dependence. (Tr. 1544-46.) The ALJ also determined Plaintiff's insomnia did not constitute a medically determinable impairment. (Tr. 1546.) At step three, the ALJ concluded that Plaintiff's impairments did not meet or medically equal the severity of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 415.926. (Tr. 1546-48.)
Before reaching step four in the analysis, the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, subject to a number of non-exertional limitations. (Tr. 1548.) The ALJ found that Plaintiff retained the ability to “understand, remember, and carry out simple jobs, instructions, and work-related tasks,” but she was limited to occasional interaction with supervisors, coworkers, and the public. (Id.)
At step four, the ALJ determined Plaintiff could not perform past relevant work as a cashier, based upon the VE's testimony that the demands of a cashier exceeded Plaintiff's RFC. (Tr. 1558.) At step five, the ALJ considered Plaintiff's age, education, work experience, and RFC to identify jobs in the national economy that Plaintiff could perform. (Id.) During the hearing, the VE testified that a hypothetical person with Plaintiff's RFC could perform at jobs available in the national economy, including price tagger, collator operator, and addresser clerk. (Tr. 1559.) During cross-examination, the VE testified that the three identified jobs required a reasoning level of 2. (Tr. 1641-42.) The VE also testified that a person described in the ALJ's hypothetical with Plaintiff's RFC could not perform tasks involving detailed descriptions or instructions. (Tr. 1642.)
Approximately a week before the ALJ issued his decision, Plaintiff's counsel submitted written objections to the VE's testimony, alleging a conflict between the VE's testimony and the Dictionary of Occupational Titles (“DOT”). (Tr. 1572.) The ALJ's decision did not acknowledge or address Plaintiff's post-hearing objections to the VE's testimony, but stated that the VE's testimony was consistent with the information in the DOT. (Tr. 1559.)
III. Applicable Legal Standards.
A. Standard of Review.
The Court's review is limited to a determination of whether the Commissioner's decision applied the proper legal standard and is supported by substantial evidence. 42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). Substantial evidence is “more than a mere scintilla and less than a preponderance.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)). It means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1150 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court weighs four elements of proof in determining whether substantial evidence supports the Commissioner's determination: (1) the objective medical facts; (2) the diagnoses and opinions of treating physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work experience. Martinez, 64 F.3d at 174.
The Court may not reweigh the evidence or substitute its judgment for that of the Commissioner. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Conflicts in the evidence and credibility assessments are for the Commissioner to resolve. Martinez 64 F.3d at 174. However, the Court will find an ALJ's decision is not supported by substantial evidence if the claimant shows that (1) the ALJ failed to fulfill his duty to develop the record adequately and (2) that failure prejudiced the plaintiff. Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) (citing Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996)).
While substantial deference is afforded to the Commissioner's factual findings, legal conclusions and claims of procedural error are reviewed de novo. Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003); Gutierrez v. Barnhart, No. 04-11025, 2005 WL 1994289, at *4 (5th Cir. Aug. 19, 2005) (citing Hollis v. Bowen, 837 F.2d 1379, 1382-83 (5th Cir. 1988).
In reviewing any claimed error, the Court must determine whether the error was harmless. The error is not grounds for reversal unless the applicant shows she was prejudiced by said error. Ripley, 67 F.3d at 557. “Prejudice can be established by showing that additional evidence would have been produced if the ALJ had fully developed the record, and that the additional evidence might have led to a different decision.” Id. at 557 n.22 (citing Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)).
B. Entitlement to Benefits.
The term “disability” means the 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled only if her physical or mental impairment or impairments are so severe that she is unable to do her previous work, and cannot, considering her age, education, and work experience, participate in any other kind of substantial gainful work which exists in the national economy, regardless of whether the work exists in the area in which she lives, whether a specific job vacancy exists, or whether she would be hired if she applied for work. Id. § 423(d)(2)(A).
C. Evaluation Process and Burden of Proof.
SSA regulations require that disability claims be evaluated according to a five-step process. See 20 C.F.R. § 404.1520 (2012). At the first step, the Commissioner determines whether the claimant is currently engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). If so, the claimant will be found not disabled regardless of her medical condition or her age, education, or work experience. Id. § 404.1520(b). At the second step, the Commissioner determines whether the claimant's impairment is severe. Id. § 404.1520(a)(4)(ii). If the claimant does not have a severe impairment, she is not disabled. Id.
At the third step, the Commissioner compares the severe impairment with those on the list of specific impairments. 20 C.F.R. § 404.1520(a)(4)(iii). If the severe impairment meets or equals a listed impairment in Appendix 1 (the “Listings”), the claimant is deemed disabled without considering her age, education, or work experience. Id. § 404.1520(d); Stone v. Heckler, 752 F.2d 1099, 1100-01 (5th Cir. 1985). If the impairment is not listed, the Commissioner continues to the fourth step, determining the claimant's RFC and reviewing demands of her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If she is still able to perform her past work, she is not disabled. Id. If the claimant cannot perform her past work, the Commissioner moves to the fifth and final step, evaluating the claimant's ability to do other work, given her residual capacities, age, education, and work experience. Id. § 404.1520(a)(4)(v). If she cannot make adjustments to do other work, the claimant will be found disabled. Id.
The claimant bears the burden of proof at the first four steps of the evaluation process. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Once the claimant shows she is unable to perform her previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is physically able to perform and maintain for significant period of time, taking into account her exertional and non-exertional limitations. Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002). If the Commissioner finds other work the claimant is capable of performing under the ALJ's RFC assessment, the burden then shifts back to the claimant to prove that she is unable to perform that work. Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989). A finding that a claimant is not disabled at any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
IV. Analysis.
Plaintiff asserts three issues in this case: (1) that the ALJ failed to resolve conflicts within the VE's testimony and between the VE's testimony and the DOT; (2) that the ALJ failed to respond to Plaintiff's objections to the VE's testimony in accordance with the SSA's policies; and (3) that the ALJ rejected “every single mental health professional's opinion” based on “nothing more than lay speculation.” (Docket Entry 18, at 5-6.) Because remand for further proceedings is warranted on the first issue, this Report and Recommendation does not address the remaining issues.
At step five of the sequential analysis, the ALJ bears the burden of identifying available jobs in the national economy that the claimant is capable of performing in spite of existing impairments. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). The ALJ may rely upon a VE's testimony, along with other evidence, to establish the availability of jobs in the national economy that the claimant can perform. 20 C.F.R. § 404.1566(e). The ALJ may also consider the DOT, subject to the VE's more specific testimony regarding the effect of the claimant's limitations on her ability to perform specific work. Carey, 230 F.3d at 145. If an implied or indirect conflict exists between the VE's testimony and the DOT, the ALJ may rely upon the VE's testimony as long as the record reflects an adequate basis for doing so. Id. at 146. But if the conflict between the VE's testimony and the DOT is direct or obvious, the ALJ has the affirmative duty to identify and obtain a reasonable explanation for the conflict and to explain in its decision how the conflict was resolved. See SSR 00-4P; 2000 WL 1898704. When a direct and obvious conflict is not resolved or explained by the ALJ, the VE's testimony cannot constitute substantial evidence at step five, warranting reversal and remand. Dell v. Berryhill, No. 18-756-JWD-EWD, 2019 WL 4666353, at *12 (citing Carey, 230 F.3d at 145-46).
In this case, the administrative record shows the ALJ relied on the VE's testimony to determine that Plaintiff is not disabled at step five, based on Plaintiff's ability to perform jobs available in the national economy. (Tr. 1558-59.) In doing so, the ALJ failed to acknowledge or resolve clearly apparent conflicts between the VE's testimony and the DOT, raised by Plaintiff both through cross-examination and post-hearing objections. Because the conflicts were clearly apparent, the ALJ failed to resolve them, and the error was not harmless, reversal is warranted.
A. Conflict Between the VE's Testimony and the DOT.
During the hearing, the VE testified that a hypothetical person with Plaintiff's RFC could perform three jobs listed in the DOT, all requiring a reasoning level of two. (Tr. 1641-42.) While Plaintiff's RFC restricted her to “simple” tasks and instructions (Tr. 1548), level two jobs require the capacity to carry out “detailed but uninvolved” written and oral instructions. Dictionary of Occupational Titles, 1991 WL 688702, app. C-III (4th ed. 1991). On cross-examination, Plaintiff's attorney specifically inquired about whether a person described in the hypothetical could perform jobs requiring detailed tasks and instructions.
Q. And, Ms. Johnson, my last question would be, would you be able to identify the reasoning level of the jobs that you identified under Hypothetical #1?
A. Yes. The Collator Operator would be 2-1-1, and the Price Tagger is 2-1-1. And the sedentary jobs, the Addresser is 2-1-2.
Q. Okay. So, would it be correct to say that a person as described in Hypothetical #1 would not be able to perform jobs that would require detailed instructions, or the performance of detailed tasks or instructions?
A. Well, yes, because that's simple.(Tr. 1641-42.) Plaintiff's attorney highlighted the conflicts between the DOT and the VE's testimony in a post-hearing objection submitted before the ALJ issued his decision:
A hearing was conducted on February 24, 2022. We object to the vocational expert's testimony. Every single one of the occupations identified was a reasoning level 2. On cross-examination, the vocational expert clarified that an individual with limitations like you had identified would be unable to carry out detailed instructions and tasks. All reasoning level 2 occupations require the ability to do such tasks. Therefore, either all of the occupations were eliminated via crossexamination, or at the very least, there is a conflict between the vocational expert's testimony and the contents of the Dictionary of Occupational Titles as proven through that cross. We believe a fully favorable decision should be entered.(Tr. 1572.) As counsel's objection makes clear, there is a conflict between the DOT and the VE's testimony: the DOT level-two jobs identified by the VE require the capacity to understand detailed but uninvolved tasks and instructions, but the VE testified that someone with the same restrictions as Plaintiff could not do detailed work. As the ALJ's decision relied upon the VE's testimony, this conflict required resolution and a reasonable explanation.
The Commissioner argues that no conflict exists between the VE's testimony and the DOT because courts in the Fifth Circuit have held that the capacity to perform jobs with a reasoning level of two is not inconsistent with an RFC limiting a claimant to simple instructions and tasks. (Docket Entry 21, at 4). In support of this argument, the Commissioner relies on Powell v. Kijakazi, No. 3:21-CV-02226-G-BH, 2023 WL 2563738, at *14 (N.D. Tex. Feb. 27, 2023). Powell, however, is distinguishable. In that case, the court noted that the plaintiff's counsel had not presented any conflict through cross-examination and “[n]othing at the hearing appear[ed] to have triggered any reason for the ALJ to elicit a ‘reasonable explanation' for any possible conflicts.” Id. Absent an apparent conflict, no further explanation was needed by the ALJ. Id.
Such is not the case here. In this case, Plaintiff's attorney did reveal conflicts with the VE's testimony through cross-examination and post-hearing objections, requiring explanation and resolution in the ALJ's decision. Therefore, the undersigned finds Powell to be distinguishable.
B. The ALJ Failed to Resolve Conflicts Between the VE's Testimony and the DOT.
The ALJ failed to resolve or explain the apparent conflict between the VE's testimony and the DOT, leaving the record void of substantial evidence supporting the ALJ's step-five decision. During the hearing, the ALJ did not pose questions to the VE to resolve the conflict within the VE's testimony or the conflict between the VE's testimony and the DOT. Simply asking if there is conflict between the VE's testimony and the DOT is not sufficient to resolve the conflict. Ambriz v. Kijakazi, No. 5:20-CV-00727-RBF, 2022 WL 855987, at *9 (W.D. Tex. Mar. 23, 2022). Even after receipt of Plaintiff's objections revealing conflict in the VE's testimony, the ALJ failed to resolve the conflict or adequately describe the reasoning for relying on the VE's testimony. Nowhere in the ALJ's decision is there justification for relying on the VE's testimony, other than the general statement that the VE's testimony is consistent with the information in the DOT. (Tr. 1559.)
The Commissioner does not specifically respond to Plaintiff's argument that the ALJ erred in failing to resolve conflicts between the DOT and the VE's testimony, other than by taking the position that there is no conflict to resolve. (See Docket Entry 21, at 3-5.) For the reasons stated above, this position is incorrect. Because the ALJ erred in failing to resolve conflict between the VE's testimony and the DOT, the record lacks substantial evidence to support the ALJ's decision that Plaintiff is not disabled at step five of the analysis. See Ambriz, 2022 WL 855987, at *9 (finding no substantial evidence to support ALJ's step-five decision where unresolved conflict remained).
C. The ALJ's Error is Not Harmless.
Plaintiff has the burden of showing that the ALJ's error was prejudicial and not harmless. Graves v. Colvin, 837 F.3d 589, 593 (5th Cir. 2016) (“The party seeking to overturn the Commissioner's decision has the burden to show that prejudice resulted from an error.”) (quoting Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012)). An error is harmless only “when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.” Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021).
In this case, the ALJ's error is not harmless because it is evident the ALJ could have reached a different conclusion at step five of the analysis. If the conflict had been explored, the VE may have been able to explain or justify why Plaintiff could perform the identified jobs in the DOT. Alternatively, the VE may have also realized that Plaintiff could not perform the identified jobs, considering her RFC and restrictions. If the ALJ had fully developed the record, additional evidence could have been provided which could have changed the outcome of the ALJ's decision. Therefore, the Plaintiff was prejudiced by the ALJ's error and is entitled to relief. See Ripley, 67 F.3d at 557 n.22 (recognizing prejudice when a potentially different outcome could have been reached).
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that the Commissioner's decision finding that Plaintiff is not disabled be VACATED and REMANDED to the Commissioner of Social Security for further proceedings.
VI. Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).