Faggett v. Berryhill, No. 3:2017cv01058 - Document 26 (N.D. Tex. 2018)
Court Description: Memorandum Opinion and Order: The hearing decision is affirmed in all respects. (Ordered by Magistrate Judge Rebecca Rutherford on 9/28/2018) (ykp)
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Faggett v. Berryhill Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SHERRON F., Plaintiff, v. NANCAY A. BERRYHILL, Acting Com m issioner of the Social Security Administration, Defendant. § § § § § § § § § § § Case No. 3:17-cv-0 10 58-BT MEMORAN D U M OPIN ION AN D ORD ER Plaintiff Sherron F. 1 seeks judicial review of a final adverse decision of the Com m issioner of Social Security pursuant to 42 U.S.C. § 40 5(g). For the reasons explained below, the hearing decision is AFFIRMED. Backgro u n d Plaintiff alleges that she is disabled due to a variety of im pairm ents, including obesity, diabetes, arthritis, high blood pressure, GERD, asthma, early onset dementia, seizures, poor circulation, and pain in her back, knees and hands. See Administrative Record 27 & 188 (“A.R.”) (Dkt. No. 17). After her applications for disability insurance benefits were denied initially and on 1 Pursuant to the May 1, 20 18 Mem orandum Re: Privacy Concern Regarding Social Security and Im m igration Opinions issued by the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States, the Court uses only Plaintiff’s first nam e and last initial. 1 Dockets.Justia.com reconsideration, Plaintiff requested a hearing before an adm inistrative law judge (“ALJ ”). That hearing was held on April 1, 20 16. See id. 14. At the tim e of the hearing, Plaintiff was 55 years old. See id. 18. She has a college degree and past work experience as a correspondence clerk and billing clerk. See id. Plaintiff did not engage in substantial gainful activity during the four-and-a-half-m onth period at issue in this appeal, February 13, 20 10 through J une 30 , 20 10 . See id. 16. The ALJ found that Plaintiff was not disabled and therefore not entitled to disability benefits. Although the m edical evidence established that Plaintiff suffered from m orbid obesity, hypertension, syncope, arthritis, and asthm a, the ALJ concluded that the severity of those im pairm ents did not m eet or equal any im pairm ent listed in the social security regulations. See id. 17. The ALJ further determ ined that Plaintiff had the residual functional capacity (“RFC”) to perform a lim ited range of sedentary activity, including her past work as a correspondence clerk and billing clerk, and therefore was not disabled. See id. 20 . Plaintiff appealed that decision to the Appeals Council. The Council affirm ed. Plaintiff then filed this action in federal district court. Plaintiff challenges the hearing decision, arguing that the ALJ relied on faulty testim ony by a vocational expert (“VE”) in determ ining that Plaintiff had the RFC to perform her past relevant work. The Court determ ines that the hearing decision should be affirm ed in all respects. 2 Le gal Stan d ard s J udicial review in social security cases is lim ited to determ ining whether the Com missioner’s decision is supported by substantial evidence on the record as a whole and whether Com missioner applied the proper legal standards to evaluate the evidence. See 42 U.S.C. § 40 5(g); Copeland v. Colvin, 771 F.3d 920 , 923 (5th Cir. 20 14); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “m ore than a m ere scintilla. It m eans such relevant evidence as a reasonable m ind m ight accept as adequate to support a conclusion.” Richardson v. Perales, 40 2 U.S. 389, 40 1 (1971); accord Copeland, 771 F.3d at 923. The Com m issioner, rather than the courts, m ust resolve conflicts in the evidence, including weighing conflicting testim ony and determ ining witnesses’ credibility, and the Court does not try the issues de novo. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its judgment for the Com m issioner’s but m ust scrutinize the entire record to ascertain whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d at 923; Hollis v. Bow en, 837 F.2d 1378, 1383 (5th Cir.1988). The Court “m ay affirm only on the grounds that the Com m issioner stated for [the] decision.” Copeland, 771 F.3d at 923. “In order to qualify for disability insurance benefits or [supplem ental security incom e], a claim ant m ust suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)). A disabled worker is entitled to m onthly social security benefits if 3 certain conditions are m et. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage in substantial gainful activity by reason of any m edically determ inable physical or m ental im pairm ent that can be expected to result in death or last for a continued period of 12 m onths. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). The Com m issioner has promulgated a five-step sequential evaluation process that m ust be followed in m aking a disability determ ination: 1. The hearing officer m ust ascertain whether the claim ant is engaged in substantial gainful activity. A claim ant who is working is not disabled regardless of the m edical findings. 2. The hearing officer m ust determ ine whether the claim ed im pairm ent is “severe.” A “severe im pairm ent” m ust significantly lim it the claim ant's physical or m ental ability to do basic work activities. This determ ination m ust be made solely on the basis of the m edical evidence. 3. The hearing officer m ust decide if the im pairment m eets or equals in severity certain im pairm ents described in Appendix 1 of the regulations. The hearing officer m ust m ake this determ ination using only m edical evidence. 4. If the claim ant has a “severe im pairm ent” covered by the regulations, the hearing officer must determ ine whether the claim ant can perform his or her past work despite any limitations. 5. If the claim ant does not have the residual functional capacity to perform past work, the hearing officer m ust decide whether the claim ant can perform any 4 other gainful and substantial work in the econom y. This determ ination is m ade on the basis of the claim ant’s age, education, work experience, and residual functional capacity. See 20 C.F.R. § 40 4.1520 (b)-(f); Copeland, 771 F.3d at 923 (“The Com m issioner typically uses a sequential five-step process to determ ine whether a claim ant is disabled within the m eaning of the Social Security Act. The analysis is: First, the claim ant m ust not be presently working. Second, a claim ant m ust establish that he has an im pairm ent or combination of im pairm ents which significantly lim it [her] physical or m ental ability to do basic work activities. Third, to secure a finding of disability without consideration of age, education, and work experience, a claim ant m ust establish that his im pairm ent m eets or equals an im pairm ent in the appendix to the regulations. Fourth, a claim ant m ust establish that his im pairm ent prevents him from doing past relevant work. Finally, the burden shifts to the Secretary to establish that the claim ant can perform the relevant work. If the Secretary m eets this burden, the claim ant m ust then prove that he cannot in fact perform the work suggested.” (internal quotation m arks om itted)); Audler v. Astrue, 50 1 F.3d 446, 447– 48 (5th Cir. 20 0 7) (“In evaluating a disability claim , the Com m issioner conducts a five-step sequential analysis to determ ine whether (1) the claim ant is presently working; (2) the claim ant has a severe impairm ent; (3) the im pairm ent m eets or equals an im pairm ent listed in appendix 1 of the social security regulations; (4) the im pairment prevents the 5 claim ant from doing past relevant work; and (5) the im pairment prevents the claim ant from doing any other substantial gainful activity.”). The claimant bears the initial burden of establishing a disability through the first four steps of the analysis; on the fifth, the burden shifts to the Com m issioner to show that there is other substantial work in the national economy that the claim ant can perform . See Copeland, 771 F.3d at 923; Audler, 50 1 F.3d at 448. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and term inates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bow en, 813 F.2d 55, 58 (5th Cir. 1987). In reviewing the propriety of a decision that a claim ant is not disabled, the Court’s function is to ascertain whether the record as a whole contains substantial evidence to support the Com missioner’s final decision. The Court weighs four elem ents to determ ine whether there is substantial evidence of disability: (1) objective m edical facts; (2) diagnoses and opinions of treating and exam ining physicians; (3) subjective evidence of pain and disability; and (4) the claim ant's age, education, and work history. See Martinez, 64 F.3d at 174. The ALJ has a duty to fully and fairly develop the facts relating to a claim for disability benefits. See Ripley , 67 F.3d at 557. If the ALJ does not satisfy this duty, the resulting decision is not substantially justified. See id. However, the Court does not hold the ALJ to procedural perfection and will reverse the ALJ ’s decision as not supported by substantial evidence where the claim ant shows that the ALJ failed to fulfill the duty to adequately develop the record only if that 6 failure prejudiced Plaintiff, see Jones v. Astrue, 691 F.3d 730 , 733 (5th Cir. 20 12)—that is, only if Plaintiff's substantial rights have been affected, see Audler, 50 1 F.3d at 448. “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 m ight have led to a different decision.” Ripley , 67 F.3d at 557 n. 22. Put another way, Plaintiff “must show that he could and would have adduced evidence that m ight have altered the result.” Brock v. Chater, 84 F.3d 726, 728– 29 (5th Cir. 1996). An alys is The ALJ found Plaintiff not disabled at the fourth step of the sequential evaluation because the ALJ determ ined Plaintiff could perform her past work as a correspondence clerk and billing clerk. A.R. 20 . In m aking this determination, the ALJ relied on VE testimony that a hypothetical person of Plaintiff’s age, education, work experience, and functional lim itations could work as a correspondence clerk and billing clerk, as those jobs are “custom arily perform ed.” Id. 50 -51. Plaintiff argues the ALJ erred in relying on the VE testim ony because it is contrary to the requirem ents for those jobs that are reported by the supplem ent to the Dictionary of Occupational Titles (“DOT”) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (“SCO”). The Departm ent of Labor promulgated the DOT to provide “standardized occupational information to support job placem ent activities.” See Dep’t of Labor, 7 D.O.T. at xv (4th ed. 1991). The DOT, along with a com panion volum e—the SCO, contains descriptions of the requirements for thousands of jobs in the national economy and classifies those jobs based on various factors. According to the DOT and the SCO, the correspondence clerk job requires, am ong other things, “frequent” reaching. DICOT 20 9.362-0 34, 1991 WL 671772. The billing clerk job requires “constant” reaching. DICOT 214.362– 0 42, 1991 WL 671876. Because the ALJ found that Plaintiff could only “occasionally reach overhead,” see A.R. 17, Plaintiff argues there is a conflict between the VE’s testim ony and the applicable DOT job descriptions. Occupational evidence provided by a VE generally should be consistent with the occupational inform ation supplied in the DOT. Social Security Ruling (“SSR”) 0 0 – 4p, 20 0 0 WL 189870 4, at *2 (Dec. 4, 20 0 0 ). But, the DOT does not include every specific skill qualification for a particular job. Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 20 0 0 ). And, the Fifth Circuit has warned against giving DOT job descriptions a role that is exclusive of m ore specific vocational expert testim ony with respect to the effect of an individual claim ant’s lim itations on his or her ability to perform a particular job. See id. A direct conflict between VE testim ony and the DOT m ay arise when the VE’s testim ony concerning the exertional or skill level of a job is facially different from the description of the job found in the DOT. Id. When a “direct and obvious conflict” exists between the DOT and the VE’s testim ony, the ALJ must explain or resolve the conflict. Id. If the ALJ does not resolve the conflict, the weight of the VE’s testim ony is lessened 8 such that reversal and rem and for lack of substantial evidence usually follows. Id. at 146. On the other hand, when a conflict is im plied or indirect, the ALJ can accept and rely upon the VE’s testim ony provided the record reflects an adequate basis for doing so. See id. at 146; see also Gaspard v. Soc. Sec. Adm in. Com m ’r, 60 9 F. Supp. 2d 60 7, 613 (E.D. Tex. 20 0 9) (affirming Com m issioner’s decision to rely on VE testimony despite im plied conflict where adequate evidence supported VE testimony). In this case, there is no direct and obvious conflict between the DOT and the VE‘s testim ony. The DOT’s narrative descriptions for the correspondence clerk and billing clerk jobs do not specifically state, or otherwise indicate, that overhead reaching is required. For example, the description for the correspondence clerk job states: Com poses letters in reply to correspondence concerning such items as requests for m erchandise, dam age claim s, credit inform ation, delinquent accounts, incorrect billing, unsatisfactory service, or to request information: Reads incom ing correspondence and gathers data to formulate reply. Operates typewriter to prepare correspondence or to com plete form letters, or dictates reply. May route correspondence to other departm ents for reply. May keep files of correspondence sent, received, or requiring further action. May process orders, prepare order form s, and check progress of orders. DICOT 20 9.362-0 34, 1991 WL 671772. The billing clerk job description states: Operates calculator and typewriter to com pile and prepare customer charges, such as labor and m aterial costs: Reads com puter printout to ascertain m onthly costs, schedule of work completed, and type of work 9 perform ed for custom er, such as plum bing, sheet m etal, and insulation. Com putes costs and percentage of work com pleted, using calculator. Com piles data for billing personnel. Types invoices indicating total item s for project and cost am ounts. DICOT 214.362– 0 42, 1991 WL 671876. There is no conflict between the VE’s testim ony and the DOT because the DOT’s descriptions for correspondence clerk and billing clerk are silent as to what type of reaching is required. Gutierrez v. Colvin, 20 16 WL 40 560 67, at *1 (9th Cir. J uly 29, 20 16) (holding there is no apparent conflict between the VE’s conclusion that an individual with an inability to reach above shoulder level with her right hand/ arm could perform cashier work and the DOT’s generic job description requiring frequent reaching); Rodriguez v. Colvin, 20 15 WL 778852, *4 (W.D. Tex. Feb. 23, 20 15) (no direct or obvious conflict between vocational expert and DOT where nothing in DOT job description indicated overhead reaching required for job); accord Carey , 230 F.3d at 146 (finding there was no conflict with the DOT because the DOT did not state that the job required two hands); Ridenhour v. Astrue, 20 0 9 WL 77765, *13 (N.D. Tex. J an. 12, 20 0 9) (finding no obvious conflict where although reaching was required for job, the DOT did not specific the job m ust be perform ed by the dom inant hand or arm or require bilateral use of the arm s and hands). At the adm inistrative hearing, the VE testified that a hypothetical person of Plaintiff’s age, education, work experience, and functional limitations—including specifically a lim itation that the individual could only occasionally reach overhead—could work as a correspondence clerk and billing clerk, as those jobs 10 are “custom arily perform ed.” Plaintiff’s representative did not challenge the VE’s testim ony on this point at the hearing. Indeed, he did not ask the vocational expert any questions at all. A.R. 52. Nothing about the way the DOT describes the correspondence clerk and billing clerk occupations indicates overhead reaching is required. There is no other evidence in the record that contradicts the VE’s conclusion. The VE’s testim ony, which is not in direct conflict with the DOT, constitutes substantial evidence in support of the ALJ ’s decision. Even if the Court were to find that there is an im plied or indirect conflict between the VE’s testim ony and the DOT, the ALJ properly relied upon the VE’s testim ony that Plaintiff can perform her past work because the record reflects an adequate basis for doing so. Co n clu s io n The hearing decision is affirmed in all respects. SO ORDERED. Septem ber 28, 20 18. RRthfd ____________________________ REBECA RUTHERFORD UNITED STATES MAGISTRATE J UDGE 11
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