JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Gwenerva M. Williams ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings (D.E. 18, 20). Both parties filed memoranda in support of their respective motions. (D.E. 19, 21). The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(13). (See D.E. 22). For the reasons set forth below, it will be recommended that the Commissioner's motion be allowed, plaintiff's motion be denied, and the final decision of the Commissioner be affirmed.
Plaintiff filed an application for DIB on 24 January 2011, alleging a disability onset date of 14 December 2009. Transcript of Proceedings ("Tr.") 19. The application was denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 19. On 45 January 2013, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff and a vocational expert testified. Tr. 32-53. The AU issued a decision denying plaintiff's claim on 22 January 2013. Tr. 19-27. Plaintiff timely requested review by the Appeals Council. Tr. 12. On 15 May 2014, the Appeals Council denied the request for review. Tr. 1-4. At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. § 404.981. Plaintiff commenced this proceeding for judicial review on 14 July 2014, pursuant to 42 U.S.C. § 405(g). (See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 5); Compl. (D.E. 6)).
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," the temporal criterion being known as the duration requirement. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509 (defining duration requirement); 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). 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).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
20 C.F.R. § 404.1520(a)(4).
The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.
In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 404.1523. If a medically severe combination of impairments is found, the combined impact of those impairments must be considered throughout the disability determination process. Id.
Claimant was 50 years old on the alleged onset date of disability and 53 years old on the date of the hearing. See, e.g., Tr. 38. She reports that she has four years of college (see, e.g., Tr. 197, 328), and she has past relevant work as a file clerk and mail clerk (Tr. 26 ¶ 6).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that claimant had not engaged in substantial gainful activity since the date of alleged onset of disability. Tr. 21 ¶ 2. At step two, the ALJ found that claimant had the following medically determinable impairments that were severe within the meaning of the Regulations: cervical pain with bilateral radicular symptoms, low back pain, carpal tunnel syndrome, obesity, asthma, and diabetes mellitus. Tr. 21 ¶ 3. At step three, the ALJ found that claimant did not have `an impairment or combination of impairments that meets or equals one of the Listings. Tr. 21 ¶ 4.
The ALJ next determined that claimant had the RFC to perform light work—that is, to lift and carry up to 20 pounds occasionally and 10 pounds frequently, and to stand, walk, and sit for 6 hours in an 8-hour workday.
Tr. 21-22 ¶ 5.
Based on his determination of claimant's RFC, the ALJ found at step four that claimant was able to perform her past relevant work as a file clerk and mail clerk Tr. 26 ¶ 6. The ALJ accordingly concluded that claimant had not been under a disability at any time from the date of the alleged onset of disability through the date of the decision. Tr. 27 ¶ 7.
Under 42 U.S.C. § 405(g), 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. Perales, 402 U.S. at 401.
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).
Plaintiff contends that the ALJ's decision should be reversed and DIB awarded or, alternatively, that this case be remanded for a new hearing on the grounds that the ALJ erred by not adequately developing the record regarding her past relevant work and not resolving a purported conflict between the vocational expert's testimony and the DOT. Each ground is discussed in turn below.
Plaintiff argues that the ALJ's finding that she could return to her past relevant work as a file clerk and mail clerk is flawed because the ALJ failed to adequately question plaintiff and otherwise develop the record regarding the physical and mental demands of her past relevant work as required by Social Security Ruling 82-62. The court disagrees.
Under the Regulations and associated Social Security Rulings, a plaintiff is deemed able to perform his past relevant work if he retains the RFC to perform the demands and, duties of such work as he actually performed it or as generally performed in the national economy. See 20 C.F.R. § 404.1560(b)(2); Soc. Sec. Ruling 82-61, 1982 WL 31387, at *1-2 (1982); Soc. Sec. Ruling 82-62, 1982 WL 31386, at *3 (1982). "The decision as to whether the [plaintiff] retains the functional capacity to perform past work which has relevance has far-reaching implications and must be developed and explained fully in the disability decision." Soc. Sec. Ruling 82-62, 1982 WL 31386, at *3. Accordingly, Social Security Ruling 82-62 provides that a decision determining a plaintiff to have the RFC to perform past relevant work "must contain among the findings the following specific findings of fact:"
Id. at *4.
In 2003, long after issuance of Social Security Ruling 82-62, the Regulations were amended to provide expressly for reliance on the testimony of a vocational expert in determining whether a claimant is able to perform his past relevant work. See 68 F.R. 51153, 2003 WL 22001943 (26 Aug. 2003) (adding (b)(2) to 20 C.F.R. § 404.1560). The relevant provision reads:
20 C.F.R. § 404.1520(b)(2). Thus, an ALJ may properly rely on the testimony of a vocationial expert in lieu of himself describing the physical and mental demands of the past job. See, e.g., Collier v. Astrue, No. 7:11-CV-68-D, 2012 WL 3095099, at *11 (E.D.N.C. 22 June 2012), mem. & recomm. adopted by 2012 WL 3095325 (30 July 2012); Lybrand v. Astrue, No. 3:10-2293-JFA-JRM, 2012 WL 762092, at *4 (D.S.C. 8 Feb. 2012), rep. & recomm. adopted by 2012 WL 762088 (7 Mar. 2012).
The decision here meets these standards. The ALJ made appropriate findings regarding plaintiff's RFC and explained the basis for his findings. (See Tr. 21-26 ¶ 5). Plaintiff does not directly challenge the ALJ's RFC determination.
During the hearing, the ALJ, as well as the vocational expert, elicited testimony from plaintiff regarding her work as a file clerk. Tr. 35-37, 49-50. The record also includes a work history report completed by plaintiff containing detailed descriptions by her of both the file clerk and mail clerk jobs. Tr. 205, 207, 211. The record substantiates that the ALJ and vocational expert were familiar with the report at the hearing and that the ALJ considered it in his decision.
The ALJ obtained testimony from the vocational expert identifying the classification of plaintiff's jobs under the DOT. See Tr. 37-38. The ALJ also elicited testimony from the vocational expert regarding whether a person with plaintiff's RFC could perform those jobs. See Tr. 50-51. Accepting that testimony, the ALJ found that plaintiff could perform her past work as a file clerk and mail clerk:
Tr. 27 ¶ 6.
Plaintiff argues that the ALJ erred by not inquiring into the mental demands of plaintiff's past relevant work. But the mental demands of this work, as plaintiff performed it, can arguably be inferred from the descriptions plaintiff provided in the work history report and her testimony. Moreover, of course, the vocational expert offered opinion evidence on the mental demands; of such work by testifying, in response to the ALJ's hypothetical, that a person with the RFC the ALJ found plaintiff to have could perform such work. That RFC contained no mental limitations. The ALJ could properly rely on the vocational expert's opinion with respect to the mental demands of this work pursuant to the authorities previously discussed. The court fmds no error by the ALJ in the extent to which he developed the record regarding the demands of plaintiff's past relevant work.
The court does note, though, a potential conflict between the ALJ's findings regarding plaintiff's mental RFC and the mental demands of the mail clerk job. After reviewing the relevant medical evidence and other pertinent evidence, the ALJ found:
Tr. 26 ¶ 5. The finding that plaintiff can maintain attention and concentration with respect to "work [that] is not detailed and complex," while consistent with the performance of unskilled work, such as the file clerk occupation, is not necessarily consistent with the performance of semi-skilled work, such as the mail clerk occupation. Compare 20 C.F.R. § 404.1568(a) ("Unskilled work is work which needs little or no judgment to do simple duties. ..." (emphasis added)) with id. (b) ("Semi-skilled work is work which needs some skills but does not require doing the more complex work duties." (emphasis added)). Similarly, the finding that plaintiff's ability to understand, remember, and carry out instructions addresses only "simple instructions" is consistent with the performance of unskilled work. See Soc. Sec. Ruling 85-15, 1985 WL 56857, at *4 (1985) ("The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions...." (emphasis added)). The finding does not address instruction-related abilities with respect to semi-skilled work.
The court need not resolve the potential conflict between these findings and the ALJ's determination that plaintiff can perform the mental demands of the mail clerk occupation because her ability to perform her past relevant work is adequately established by her ability to perform the file clerk occupation. Thus, any error by the ALJ with respect to plaintiff's ability to perform the mental demands of the mail clerk occupation is harmless. See, e.g., Garner v. Astrue, 436 Fed. Appx. 224, 226 n* (4th Cir. 2011) (recognizing burden on Social Security claimant to show that an error by the AU is harmful) (citing Shinseki v. Sanders, 556 U.S. 396 (2009)).
Plaintiff also argues that it was error for the AU not to inquire about the extent to which the file clerk and mail clerk jobs required overhead reaching in light of the limitation of plaintiff in the RFC determination to only occasional overhead reaching. The court disagrees.
As discussed, not only does the record include detailed descriptions of both the file clerk and mail clerk jobs, but the AU and vocational expert elicited testimony from her regarding both. Plaintiff did not mention overhead reaching in either her work history report or testimony.
Indeed, plaintiff's own attorney did not ask her about it although he was present when the ALJ presented the hypothetical to the vocational expert, including the limitation of plaintiff to occasional overhead reaching. See Tr. 50-53. While plaintiff's counsel asked the vocational expert an alternative hypothetical, it did not include avoidance of all overhead reaching, but rather occasional handling and grasping in addition to occasional overhead reaching. See Tr. 52. Plaintiff, of course, had the burden at step four of showing that she could not perform her past relevant work. She cannot justly condemn the AU for not developing at the hearing evidence she herself chose not to present.
Moreover, the vocational expert deemed the record sufficiently developed for her to render an opinion regarding the extent that plaintiff's past relevant work required overhead reaching. She found expressly that the occupations of file clerk and mail clerk do not require overhead reaching. Tr. 51.
As part of her argument that the ALJ did not adequately develop the record on the demands of her past relevant work, plaintiff contends that he relied solely on the opinion of the vocational expert in determining the demands of the past relevant work. As discussed, of course, the ALJ considered other evidence—plaintiff's work history report and hearing testimony. In the cases plaintiff cites in support of her argument (see Pl.'s Mem. 7-8), the court found that the ALJ's reliance was solely on the vocational expert's opinion. See, e.g., Parker, 664 F. Supp. 2d at 556; Prim v. Astrue, Civ. Act. No. 7:07cv213, 2008 WL 444537, at *6-8 (W.D. Va. 13 Feb. 2008) (collecting cases)). Furthermore, these cases were decided before the amendment to 20 C.F.R. § 404.1560 adding subsection (b)(2) providing expressly for reliance on vocational expert opinions. The court, the District of South Carolina, which issued one of the decisions plaintiff cites, Parker, has upheld since the amendment an ALJ's reliance on the opinion of a vocational expert, Lybrand.
In any event, plaintiff has made no showing that any failure by the ALJ to question her regarding overhead reaching harmed her. She has adduced no evidence that her past relevant work involved more than occasional overhead reaching. Nor has she demonstrated that such evidence would justify her past relevant work being classified other than as the vocational expert did. For this and the other reasons discussed, the court rejects plaintiff's challenge to the ALJ's development of the record regarding the demands of her past relevant work.
Social Security Ruling 00-4p requires that
Soc. Sec. Ruling 00-4p, 2000 WL 1898704, at *2 (2000). Plaintiff argues that the vocational expert's testimony that plaintiff can perform her past relevant work conflicts with the DOT and SOC because under them the occupations of file clerk and mail clerk require frequent reaching and the RFC determination by the ALJ limited plaintiff to only occasional overhead reaching. Plaintiff therefore contends that the ALJ erred in not asking the vocational expert regarding this conflict.
The court disagrees. As noted, the job descriptions do not specify that overhead reaching in particular is required. Rather, the SOC defines "reaching" as "[ejxtending hand(s) and arm(s) in any direction." SOC, app. C § 8 (emphasis added). Thus, no conflict exists between the VE testimony, and the DOT and SOC. See, e.g., Byrd v. Apfel, No. 98-1781, 1998 WL 911718, at *6 (4th Cir. 31 Dec. 1998); Harris v. Astrue, No. 2:12-CV-45, 2013 WL 1187151, at *5 (N.D.W. Va. 21 Mar. 2013); Gatling v. Astrue, No. 2:11-CV-21-FL, 2012 WL 4357013, at *9 (E.D.N.C. 21 Sept. 2012); Cooper v. Astrue, No. 11-761, 2012 WL 2393771, at *4 (D. Or. 25 June 2012). Even if the ALJ were deemed to have been required to inquire about a conflict with the DOT and SOC, the error was harmless because no conflict existed. See Amick v. Colvin, No. 5:12-0922, 2013 WL 4046349, at *6 (S.D.W. Va. 8 Aug. 2013). The court accordingly rejects this challenge by plaintiff to the ALJ's decision.
After careful consideration of the ALJ's decision and the record in this case, the court concludes that the decision is supported by substantial evidence of record and based on proper legal standards. IT IS THEREFORE RECOMMENDED that the Commissioner's motion (D.E. 20) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 18) for judgment on the pleadings be DENIED, and the final decision of the Commissioner be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until 8 July 2015 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is 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.
20 C.F.R. § 404.1567(b). The Dictionary of Occupational Titles ("DOT") defines "light work" as:
DOT app. C § IV, def. of "L-Light Work" (U.S. Dep't of Labor 4th ed. rev. 1991),
