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Webb v. Berryhill

United States District Court, M.D. North Carolina

May 14, 2018

BONNIE R. WEBB, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          L. Patrick Auld United States Magistrate Judge

         Plaintiff, Bonnie R. Webb, brought this action pursuant to the Social Security Act (the “Act”) to obtain judicial review of a final decision of Defendant, the Acting Commissioner of Social Security, denying Plaintiff's claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket Entry 1.) Defendant has filed the certified administrative record (Docket Entry 7 (cited herein as “Tr. ”)), and both parties have moved for judgment (Docket Entries 9, 14; see also Docket Entry 10 (Plaintiff's Memorandum), Docket Entry 15 (Defendant's Memorandum)). For the reasons that follow, the Court should enter judgment for Defendant.


         Plaintiff applied for DIB and SSI, alleging an onset date of November 28, 2012. (Tr. 210-18.) Upon denial of those applications initially (Tr. 79-108, 147-52) and on reconsideration (Tr. 109-42, 155-63), Plaintiff requested a hearing de novo before an Administrative Law Judge (“ALJ”) (Tr. 164-65). Plaintiff, her attorney, and a vocational expert (“VE”) attended the hearing. (Tr. 50-78.) The ALJ subsequently ruled that Plaintiff did not qualify as disabled under the Act. (Tr. 16-32.) The Appeals Council thereafter denied Plaintiff's request for review (Tr. 1-6, 13-15), making the ALJ's ruling the Commissioner's final decision for purposes of judicial review.

         In rendering that disability determination, the ALJ made the following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of the . . . Act through December 31, 2017.
2. [Plaintiff] has not engaged in substantial gainful activity since November 28, 2012, the alleged onset date.
3. [Plaintiff] has the following severe impairments: degenerative disc disease, arthropathies, hyperlipidemia, insomnia, depression, high cholesterol, gastroesophageal reflux disease (GERD), [and] obesity.
4. [Plaintiff] 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.
5. . . . [Plaintiff] has the residual functional capacity to perform light work . . . . except she cannot climb ladders, ropes, and/or scaffolds. She can occasionally climb stairs and ramps. She must avoid extreme temperatures. She must avoid concentrated exposure to dust, fumes, etc. She can occasionally interact with the public. She can occasionally interact with supervisors and/or coworkers. She is limited to simple[, ] routine, repetitive tasks. She must have a sit/stand option and be able to change position two times in one hour.
6. [Plaintiff] is unable to perform any past relevant work.
10. Considering [Plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant No. in the national economy that [she] can perform.
11. [Plaintiff] has not been under a disability, as defined in the . . . Act, from November 28, 2012, through the date of this decision.

(Tr. 21-31 (bold font and internal parenthetical citations omitted).)


         Federal law “authorizes judicial review of the Social Security Commissioner's denial of social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope of [the Court's] review of [such a] decision . . . is extremely limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Plaintiff has not established entitlement to relief under the extremely limited review standard.

         A. Standard of Review

         “[C]ourts are not to try [a Social Security] case de novo.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, the Court “must uphold the factual findings of the ALJ if they are supported by substantial evidence and were reached through application of the correct legal standard.” Hines, 453 F.3d at 561 (internal brackets and quotation marks omitted). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

         “In reviewing for substantial evidence, the [C]ourt should not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the [ALJ, as adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks omitted). “The issue before [the Court], therefore, is not whether [the claimant] is disabled, but whether the ALJ's finding that [the claimant] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

         When confronting that issue, the Court must take note that “[a] claimant for disability benefits bears the burden of proving a disability, ” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and that, in this context, “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 12 months, '” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).[1] “To regularize the adjudicative process, the Social Security Administration has . . . detailed regulations incorporating longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and work experience in addition to [the claimant's] medical condition.” Id. “These regulations establish a ‘sequential evaluation process' to determine whether a claimant is disabled.” Id. (internal citations omitted).

         This sequential evaluation process (“SEP”) has up to five steps: “The claimant (1) must not be engaged in ‘substantial gainful activity, ' i.e., currently working; and (2) must have a ‘severe' impairment that (3) meets or exceeds the ‘listings' of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform [the claimant's] past work or (5) any other work.” Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999).[2] A finding adverse to the claimant at any of several points in the SEP forecloses an award and ends the inquiry. For example, “[t]he first step determines whether the claimant is engaged in ‘substantial gainful activity.' If the claimant is working, benefits are denied. The second step determines if the claimant is ‘severely' disabled. If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

         On the other hand, if a claimant carries his or her burden at each of the first three steps, the “claimant is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at step three, i.e., “[i]f a claimant's impairment is not sufficiently severe to equal or exceed a listed impairment, the ALJ must assess the claimant's residual functional capacity (‘RFC').” Id. at 179.[3] Step four then requires the ALJ to assess whether, based on that RFC, the claimant can perform past relevant work; if so, the claimant does not qualify as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior work, the analysis proceeds to the fifth step, whereupon the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's RFC] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Commissioner cannot carry its “evidentiary burden of proving that [the claimant] remains able to work other jobs available in the community, ” the claimant qualifies as disabled. Hines, 453 F.3d at 567.[4]

         B. Assignments of Error

         Plaintiff argues that the Court should overturn the ALJ's finding of no disability on these grounds:

1) “[t]he ALJ accepted vocational testimony that appears to conflict with the [Occupational Information Network (‘O*Net') and the Dictionary of Occupational Titles (‘DOT')] yet he failed to obtain an explanation from the [VE]” (Docket Entry 10 at 3 (bold font and single-spacing omitted));
2) “the ALJ found [Plaintiff's] testimony not entirely credible but the ALJ d[id] not give legally sufficient reasons supported by substantial evidence for finding [Plaintiff's] testimony not entirely credible” (id. at 9 (bold font and single-spacing omitted)); and
3) “the ALJ d[id] not give a full function-by-function analysis of the nonexertional mental functions associated with [Plaintiff's] mental impairments” (id. at 18 (bold font and single-spacing omitted)).

         Defendant contends otherwise and seeks affirmance of the ALJ's decision. (Docket Entry 15 at 5-30.)

         1. Conflicts Between the VE's Testimony and the O*Net/DOT

         In Plaintiff's first issue on review, she contends that the ALJ erred by failing to resolve two apparent conflicts between the VE's testimony and the O*Net and the DOT, respectively, in violation of Social Security Ruling 00-4p, Policy Interpretation Ruling: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational Information in Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000) (“SSR 00-4p”), and Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015). (See Docket Entry 10 at 2-9). According to Plaintiff, the VE's testimony that (1) an individual limited to occasional interaction with the public, coworkers, and supervisors could perform the jobs of Marker (DOT No. 209.587-034, 1991 WL 671802 (4th ed. rev. 1991)), Final Inspector (DOT No. 727.687-054, 1991 WL 679672), and Page (DOT No. 249.687-014, 1991 WL 672351) (see Tr. 76-77) conflicts with the O*Net's description of the degree of interpersonal contact required by all three jobs (see Docket Entry 10 at 6-7 (citing Docket Entries 10-1 to 10-3)); and (2) a person restricted to simple, routine, repetitive tasks (“SRRTs”) could perform the three jobs in question conflicts with the DOT's requirement of Reasoning Development Level (“RDL”) 2 for all three jobs (see Id. at 7-8 (citing Docket Entries 10-4 to 10-7)). Plaintiff's contentions fall short.

         SSR 00-4p places an affirmative duty on an ALJ to elicit an explanation from the VE as to any “apparent unresolved conflict” between the VE's testimony and the DOT:

Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the [DOT]. When there is an apparent unresolved conflict between VE . . . evidence and the [DOT], the [ALJ] must elicit a reasonable explanation for the conflict before relying on the VE . . . evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the [ALJ's] duty to fully develop the record, the [ALJ] will inquire, on the record, as to whether or not there is such consistency.

         SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added). “[A]n ALJ has not fulfilled his affirmative duty merely because the [VE] responds ‘yes' when asked if her testimony is consistent with the [DOT], ” Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus, “[t]he ALJ independently must identify . . . where the [VE's] testimony seems to, but does not necessarily, conflict with the [DOT], ” Id. at 209 (emphasis added); see also Id. (rejecting the Commissioner's argument that an “apparent” conflict meant only an “obvious” one).

         As relevant to the instant case, the ALJ queried the VE whether an individual limited to, inter alia, SRRTs and occasional interaction with the public, coworkers, and supervisors, could perform any other jobs existing in significant No. in the national economy. (See Tr. 76.) In response, the VE opined that such an individual would remain capable of performing the jobs of Marker, Final Inspector, and Page, and provided the corresponding DOT codes for the three jobs, as well as their incidence in the national economy. (See Tr. 76-77.) The ALJ ...

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