JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Lisa Christine Waters ("plaintiff," or, in context, "claimant"), challenges the final decision of defendant Commissioner of Social Security Andrew Saul ("Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that she is not disabled.
Plaintiff filed an application for DIB and an application for SSI on 23 January 2013, alleging a disability onset date of 30 May 2011 in both. Transcript of Proceedings ("Tr.") 16. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 16. On 21 June 2016, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert ("VE") testified. Tr. 16; 36-70. The ALJ issued a decision denying plaintiff's claims on 1 August 2016. Tr. 16-29.
Plaintiff timely requested review by the Appeals Council. Tr. 212-216. On 15 July 2018, the Appeals Council denied the request. Tr. 1-7. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. Plaintiff commenced this proceeding for judicial review of the ALJ's decision on 19 September 2018, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See Mot. to Proceed In Forma Pauperis ("IFP") (D.E. 1); Ord. Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).
The Social Security Act ("Act") defines disability as 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." 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
Plaintiff was 44 years old on the alleged disability onset date, 50 on the date of the hearing, and 50 on issuance of the ALJ's decision. See, e.g., 27 ¶ 7; 44. Plaintiff testified that she has at least a high school education (Tr. 27 ¶ 8) and past relevant work as a cashier and line cook (Tr. 27 ¶ 6).
Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 18 ¶ 2. At step two, the ALJ found that plaintiff had the following severe medically determinable impairments: degenerative disc disease, anxiety disorder, bilateral carpal tunnel syndrome, obesity, sleep apnea, COPD, peripheral neuropathy, and residual effects of a chronic inner ear infection (loss of balance). Tr. 18 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 19 ¶ 4.
The ALJ determined that plaintiff had the RFC to perform a limited range of "light work":
Tr. 21 ¶ 5.
Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform her past relevant work. Tr. 27 ¶ 6. At step five, the ALJ accepted the VE's testimony and found that based on his RFC determination there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of mailroom clerk, courier clerk, and parking lot attendant. Tr. 28 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the date of the alleged onset of disability, 30 May 2011, through the date of the decision, 1 August 2016. Tr. 28 ¶ 11.
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); Radford v. Colvin, 734 F.3d 288, 295-296 (4th Cir. 2013).
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded her or, alternatively, that this case should be remanded for a new hearing on the grounds that the ALJ erred in: not properly evaluating and assigning sufficient weight to the opinions of consulting examining physician Stephen Gelfand, M.D.
Social Security Ruling 00-4p requires that an ALJ inquire about and resolve in his decision conflicts between a VE's testimony and the DOT:
Soc. Sec. Ruling 00-4p, 2000 WL 1898704, at *2, 4 (4 Dec. 2000).
The Fourth Circuit has interpreted Soc. Sec. Ruling 00-4p to require that the ALJ has an independent obligation to identify apparent conflicts between a VE's testimony and the DOT. Pearson, 810 F.3d at 208-09. An ALJ does not fulfill this duty by simply relying on a VE's affirmative response to the question whether his testimony is consistent with the DOT. Id. at 208. Conflicts are apparent and must be identified by the ALJ "where the expert's testimony seems to, but does not necessarily, conflict with the [DOT]." Id. at 209. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received [an] explanation from the expert [that no conflict exists] and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10.
The ALJ asked the VE the following hypothetical:
Tr. 64 (emphasis added); see SCO app. C, C-3 (defining occasionally as up to one-third of the time and frequently as from one-third to two-thirds of the time).
The VE testified that such a hypothetical individual could not perform plaintiff's past work as a cashier (DOT #211.462-014) and line cook (DOT #313.374-014) and that the primary reason was the limitation to only occasional handling, fingering, and feeling bilaterally. Tr. 65. The VE further testified that primarily because of this same limitation there would not be other jobs available in the national economy in significant numbers that such an individual could perform. Tr. 65.
The ALJ then amended the hypothetical to mirror the RFC determination by changing the limitation on handling, fingering, and feeling:
Tr. 65 (emphasis added). Based on that one change, the VE testified that the individual would still be unable to return to her past work, but that there would now be other jobs available in significant numbers in the national economy that she could perform, namely, mailroom clerk (DOT #209.687-026),
There is an apparent conflict between the VE's testimony and the DOT with respect to the limitation to occasional operation of hand controls. While the DOT specifies that each of these three occupations requires frequent handling and fingering, it does not expressly limit any of them to occasional or less frequent use of hand controls. See SCO 343 (DOT #209.687-026/mailroom clerk (alt.)); 348 (DOT #239.547.010/office helper); and 365 (DOT #915.473.010/parking-lot attendant); DOT #209.687-026/mailroom clerk (alt.), 1991 WL 671813; #239.547.010/office helper, 1991 WL 672232; and #915.473.010/parking-lot attendant, 1991 WL 687865.
The definition of "handling" as used in the DOT expressly encompasses the use of hand-operated equipment. It reads in relevant part: "Seizing, holding, grasping, turning, or otherwise working with hand or hands. Fingers are involved only to the extent that they are an extension of the hand, such as to turn a switch or shift automobile gears." SCO, app. C, C-3 no. 9 (emphasis added). The definition of "fingering" is in accord, stating "Picking, pinching, or otherwise working primarily with fingers rather than with the whole hand or arm as in handling." Id. no. 8.
Moreover, the descriptions of each of these occupations also encompasses use of hand-operated equipment. For example, the description of the mailroom clerk occupation states: "Opens envelopes by hand or machine.... [S]eals envelopes by hand or machine. Stamps outgoing mail by hand or with postage meter.... May weigh mail to determine that postage is correct..... May address mail, using addressing machine." DOT #209.687-026/mailroom clerk (alt.), 1991 WL 671813. The description of the office helper occupation states: "May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine." DOT #239.547.010/office helper, 1991 WL 672232. The description of the parking-lot attendant occupation states: "Parks automobiles for customers in parking lot or storage garage: .... Records time and drives automobile to parking space, or points out parking space for customer's use." DOT #915.473.010/parking-lot attendant, 1991 WL 687865.
Thus, the DOT appears to indicate that these three occupations require frequent handling without any limitation on the use of hand controls to only occasional or less frequent use. Nonetheless, the VE testified that the hypothetical individual could perform them all even though that individual was limited to only occasional use of hand controls.
The VE did not identify this apparent conflict, but instead testified when asked by the ALJ that her testimony was consistent with the DOT. Tr. 67. When further asked by the ALJ whether any portion of her testimony was outside the scope of the DOT, she identified only the testimony she gave regarding absenteeism, which she said was based on her professional experience.
The failure of the ALJ to identify or explain the apparent conflict is particularly problematic here because it was only after the ALJ changed his hypothetical to the VE to provide for frequent handling, fingering, and feeling that the VE found that there would be work available to the hypothetical individual. See Tr. 65. The clear implication is that limitations on the ability to handle can have a material effect on the occupational base available to plaintiff.
The Commissioner concedes that there is an apparent conflict between the DOT and the VE's testimony regarding the mailroom clerk occupation as to the hand controls limitation. It also concedes that there is an apparent conflict as to the limitation of plaintiff to simple and routine tasks and simple work-related decisions because this occupation requires a reasoning development level of 3. See, e.g., Yurek v. Astrue, No. 5:08-CV-500-FL, 2009 WL 2848859, at *8-9 (E.D.N.C. 28 July 2009), mem. & recomm. adopted, 2009 WL 2848859, at *1 (2 Sept. 2009).
The Commissioner argues that there is no apparent conflict in the case of the courier clerk occupation because, by using that title for this occupation rather than the DOT title of office helper, the VE was indicating that the tasks would be restricted to a subset among those listed in the occupational definition that did not require use of hand controls, citing the provision in the definition reading that the worker "[m]ay specialize in delivering mail, messages, documents, and packages between departments of establishment and be designated Messenger, Office (clerical)." DOT #239.547.010/office helper, 1991 WL 672232. The basic deficiency in this purported explanation of the VE's testimony is that neither the VE nor the ALJ provided it at the hearing or, in the case of the ALJ, the decision, but that the Commissioner is providing it after issuance of the decision based on his speculation as to the VE's and ALJ's unstated reasoning. The court, of course, must review the ALJ's decision based on the record before it, not based on such post hoc rationales. Notably, the VE did not use the occupational title the DOT associates with the subset of tasks the Commissioner cites, "Messenger, Office (clerical)," as might be expected had she, in fact, been limiting the occupation to these tasks, but a different title, courier clerk, not appearing in the definition for the office helper occupation.
The Commissioner contends that there is no apparent conflict between the DOT and the VE's testimony regarding the parking-lot attendant occupation as to the hand controls limitation because, again, the VE based her testimony on a subset of tasks within this occupation that does not require more than occasional use of hand controls.
In support of his argument that no apparent conflict arose regarding the courier clerk and parking-lot attendant occupations as to the hand controls limitation the Commissioner cites the Fourth Circuit's decision in Walls v. Barnhart, 296 F.3d 287, 291 (4th Cir. 2002). The case is inapposite. There, the Fourth Circuit held that the district court erred in requiring special clarity in how the VE's testimony regarding the plaintiff's ability to perform sedentary work with a sit/stand option was consistent with Social Security Ruling 83-12, which provides that unskilled or sedentary jobs are structured to preclude the sit/stand option. Id. at 290-92; see also Soc. Sec. Ruling 83-12, 1983 WL 31253, at *4 (1983). As can be seen, Walls did not involve an apparent conflict between a VE's testimony and the DOT, but between a VE's testimony and a Social Security Ruling. Indicative of this fact, there is no citation in Walls to Social Security Ruling 00-4p which, as discussed, addresses apparent conflicts between a VE's testimony and the DOT. The case also predates Pearson. In addition, unlike here, the VE in Walls did make clear his analysis regarding the sit/stand option. See Walls, 296 F.3d at 290, 291. Lastly, the specific focus of Walls was the sit/stand option, which is not at issue in the instant case.
The court concludes that the ALJ's failure to identify or explain the apparent conflict between the DOT and the VE's testimony relating to the limitation to occasional use of hand controls requires remand. In the absence of such identification and explanation, the VE's testimony fails to provide substantial evidence supporting the ALJ's determination at step five, relying on the VE's testimony, that there are jobs that exist in significant numbers in the national economy that plaintiff could perform. See Pearson, 810 F.3d at 209-10.
Further, by not adequately developing the record on the apparent conflict between the DOT and the vocational expert's testimony, the ALJ failed to build "an accurate and logical bridge from the evidence to his conclusion" that plaintiff could perform the three occupations in issue. Monroe, 826 F.3d at 189 (internal quotation marks omitted). This failing precludes the court from conducting meaningful substantial evidence review of the ALJ's decision and provides an independent ground for remand. Id. at 189-91; Radford, 734 F.3d at 295.
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 18) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 25) for judgment be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3) for further proceedings consistent with this Memorandum and Recommendation. The court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 3 September 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
