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White v. Colvin

United States District Court, E.D. North Carolina, Western Division

March 27, 2015

Lawrence White, Plaintiff,
v.
Carolyn Colvin, Acting Commissioner of Social Security, Defendant.

MEMORANDUM & ORDER

ROBERT T. NUMBERS, II, Magistrate Judge.

Plaintiff Lawrence White instituted this action on October 29, 2013 to challenge the denial of his application for social security income. White claims that Administrative Law Judge Lisa R. Hall erred in her determination by misclassifying his past relevant work, failing to identify work that he could perform at step five and finding the Plaintiff was not fully credible. Both White and Defendant Carolyn Colvin, the Acting Commissioner of Social Security, have filed dispositive motions seeking a resolution in their favor.

After reviewing the parties' arguments, the court has determined that ALJ Hall reached the appropriate decision. ALJ's Hall's decision fully considered all of the evidence, properly analyzed the relevant medical evidence and accurately concluded that Plaintiff's impairments did not preclude all gainful activity. Therefore the undersigned magistrate judge has determined[1] that White's Motion for Summary Judgment will be denied, that Colvin's Motion for Judgment on the Pleadings will be granted, and that the Commissioner's final decision is affirmed.

I. Background

White filed an application for disability insurance benefits on April 13, 2011, alleging a disability that began on December 31, 2009. The Social Security Administration denied White's claim initially and upon reconsideration. Administrative Law Judge Hall held a hearing on December 6, 2012 and, in a decision dated April 17, 2013, denied White's application. (Tr. at 17-23.) The ALJ found that White had the following severe impairments: osteoarthritis and hypertension. ( Id . at 19.) The ALJ also found that his impairments, alone or in combination, did not meet or equal a Listing impairment. ( Id.) The ALJ determined that White had the RFC to perform a full range of medium work with the following limitation: should avoid concentrated exposure to hazards. ( Id. at 20.) The ALJ determined that White was capable of performing his past work as an industrial cleaner. ( Id. at 22.) The ALJ also made alternative findings at Step Five, concluding that, based on his age, education, work experience and RFC, a finding of "not disabled" would be directed by Medical-Vocational Guideline Rules 203.11 and 203.03. ( Id. at 23.) Thus, the ALJ found that White was not disabled. ( Id .)

After unsuccessfully seeking review by the Appeals Council, White commenced this action and filed a complaint pursuant to 42 U.S.C. § 405(g) on October 29, 2013. [D.E. 2].

II. STANDARD OF REVIEW

When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to the determination of 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. Chafer, 99 F.3d 635, 638 (4th Cir. 1996).

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 conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment then, at Step Four, the claimant's residual functional capacity ("RFC") is assessed to determine whether plaintiff 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).

III. ANALYSIS

A. Past relevant work

At step four of the sequential analysis, the ALJ determines whether the plaintiff retains the RFC to meet the mental and physical demands of any past relevant work ("PRW"). 20 C.F.R. §§ 404.1560(b), 416.960(b) (2011). The regulations allow the ALJ to "use the services of vocational experts [VEs] or vocational specialists, or other resources, such as the [DOT] and its companion volumes and supplements, published by the Department of Labor" when making this determination. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). A plaintiff will be found not disabled if she can meet the demands of the past relevant work as it was actually performed by the plaintiff or as it is generally performed in the national economy. Id. ; SSR 82-62, 1982 WL 31386, at *3.[2] A VE may offer relevant evidence regarding the demands of the past work as it was actually performed, and both the ALJ and VE may rely on the plaintiff's testimony and other documentation describing the prior jobs. Id. ; see also Pass v. Chater, 65 F.3d at 1207; Crawley v. Comm'r, No. SAG-11-2427, 2013 WL 93202, at *3 (D. Md. Jan. 7, 2013).

White first argues that the ALJ erred in classifying his past relevant work as industrial cleaner (DOT: 381.687-018). At step four of the sequential analysis, the plaintiff has the burden of showing that she can no longer perform her past relevant work. 20 C.F.R. § 416.920(e); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (through step four of the SEP, plaintiff carries the burden of production and proof). Nevertheless, "the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing SSR 82-62; 20 C.F.R. §§ 416.971, 416.974, and 416.965.) "[I]n finding that an individual has the capacity to perform a past relevant job, the [ALJ's] decision must include a specific finding of fact as to the physical and mental demands of the past job'" as well as analysis of whether that individual's RFC would impact her ability to perform such a job. Alderman v. Barnhart, 297 F.Supp.2d 876, 879 (W.D. Va. 2003) (citing SSR 82-62).

Step Four also requires a claimant to show "an inability to return to his or her previous work (i.e., occupation), and not simply to his or her specific prior job." DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983). In determining whether a claimant can perform his or her past relevant work, the ALJ "may rely on the general job categories of the Dictionary as presumptively applicable to a claimant's prior work. The same label, however, may be used in a variety of ways." DeLoatche, 715 F.2d at 151. Further, a "claimant may overcome the presumption that the [Commissioner]'s generalization applies by demonstrating that [his] duties were not those envisaged by the framers of the [Commissioner]'s category." Id.

Here, White's past work could reasonably correspond to the DOT industrial cleaner position. The job descriptions of his past work at Bojangles and the DOT description of the industrial cleaner position have several similar job duties. The chart below compares White's past relevant work experience with DOT's industrial cleaner classification.

White's Past Relevant Work DOT Industrial Cleaner Keeps the parking lot clean (Tr. 33) Picks up refuse from grounds (DOT: 381.687-018) Stocks and unloads boxes (Tr. 33-34) Collects trash and waste (DOT: 381.687-018) Takes the trash out of the restaurant (Tr. 33) Arranges boxes and materials in a neat and orderly manner (DOT: 381.687-018) Cleans the dumpster pad and the drive-thru pad Cleans floors, using water hose (DOT: using a power washer or a deck brush (Tr. 34) 381.687-018)

The DOT classification need not mirror a claimant's past relevant work but only contain some comparable duties. DeLoatche, 715 F.2d at 151 ("the Secretary may rely on the general job categories of the [DOT] as presumptively applicable to a claimant's prior work."). Thus, the job descriptions are sufficiently similar to permit his work at Bojangles to be characterized as industrial cleaner. Additionally, White has not identified an alternate DOT listing that more closely resembles his previous work.

Even if his past relevant work were misclassified as an industrial cleaner, any error would be harmless inasmuch as the ALJ determined that, given his RFC for medium work, White could perform his past work at Bojangles as he actually performed that job. (Tr. at 22) As there is no evidence to establish that White is unable to perform the functional demands and job duties of the industrial cleaner job as it is generally performed, or of his past work as it was actually performed, White's argument that his past relevant work was mischaracterized is unpersuasive.

White further contends that the lack of testimony by a vocational expert warrants remand. Specifically, he asserts that the Notice of Hearing stated that a VE would testify and included the resume of one VE. At the hearing, however, no such testimony was offered.

However, the testimony of a VE was not required inasmuch as the ALJ determined, at Step Four, that White was capable of performing his past relevant work, both as it is generally performed and as it was actually performed. (Tr. at 22) In deciding a case at Step Four, an ALJ need not adduce VE testimony, but may rely on information about the past relevant work that is provided by the claimant. See 20 C.F.R. § 404.1560; Parker v. Comm'r, No. SAG-12-1223, 2013 WL 1338418, at *1 (D. Md. Mar. 29, 2013). At the hearing, the ALJ specifically asked White questions about the demands of his job. For example, the ALJ asked what type of work he did and how many hours he spent on various job duties. (Tr. at 33-35.) White also completed forms detailing the type of work he performed, how much lifting was required, and what his duties included. (Tr. at 201-02.) The ALJ made a finding of fact as to White's RFC, made findings of fact as to the physical and mental demands of his past relevant work, based on descriptions from the DOT and other evidence, and made a finding of fact that his RFC would permit a return to his past relevant work. (Tr. at 20, 22.) Therefore, the the ALJ complied with requirements of SSR 82-62. White assignment of error at step four lacks merit and is rejected.

B. Step Five

White also contends that, for the Commissioner to carry her burden at Step Five, VE testimony was required to identify jobs that he was capable of performing. At Step Five, the ALJ concluded that a finding of "not disabled" was directed by Medical-Vocational Rules 203.11 and 203.03. Although White had a limitation to avoid concentrated exposure to hazards, the ALJ determined that this limitation did not significantly erode the occupational job base at any exertional level. (Tr. at 23.)

At Step Five, the Commissioner must prove in one of two ways that a claimant remains able to perform other jobs available in the community. Where the claimant has purely exertional impairments, the ALJ may apply the Social Security Administration's Medical-Vocational Guidelines (the "Grids"), contained in 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 2, to establish the claimant's vocational ability. See McLain v. Schweiker, 715 F.2d 866, 870 n. 1 (4th Cir. 1983). If, however, the claimant suffers from nonexertional impairments or a combination of exertional and nonexertional limitations, the ALJ may not rely upon the Grids and must consider vocational expert testimony. Id . See also Grant v. Schwieker, 699 F.2d ...


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