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Moffit v. Berryhill

United States District Court, D. Kansas

January 3, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          John W. Lungstrum, United States District Judge.

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Administrative Law Judge's (ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.

         I. Background

         Plaintiff applied for DIB and SSI benefits, alleging disability beginning December 27, 2012. (R. 12, 227, 235). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the ALJ erred because in his decision he failed to address post-hearing objections to the vocational expert's (hereinafter, VE) testimony.

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

         The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

         The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

         The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

         The court finds no error in the ALJ's evaluation of Plaintiff's objections to the testimony of the VE, presented in her Representative's Brief after the hearing.

         II. Discussion

         Plaintiff specifically stated that before the court she does not “dispute the ALJ's RFC finding” (Pl. Br. 5), nor contest the VE's expertise, but that she “fully endorse[s] the vocational expert's critical, and singular role in evaluating the issues raised in the post hearing memorandum.” (Pl. Br. 8) (emphasis in Plaintiff's Brief). Therefore, the court accepts that the VE in this case is qualified to testify as a vocational expert and to present the opinions she presented, as she presented them. Moreover, the court will not question the RFC assessed by the ALJ.

         Plaintiff points out that at step five it is the Commissioner's burden to show, when considering the RFC assessed and the vocational factors of age, education, and work experience, that Plaintiff is able to perform other jobs existing in the economy. (Pl. Br. 6). She argues that the Commissioner's step five burden may be met only “on the basis of up-to-date and ‘reliable' job information.” Id. (citing Haddock, 196 F.3d at 1090; and Andrade v. Sec'y of Health and Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993)). She argues that the Social Security Administration's (hereinafter SSA) Hearings, Appeals, and Litigation Manual (HALLEX) in 2015 at § I-2-5-55 required that when a claimant raises an objection to a VE's testimony, “the ALJ is obligated to ‘rule on the objection and discuss any ruling in the decision.'” (Pl. Br. 7) (quoting HALLEX § I-2-5-55; and citing Parker v. Colvin, No. 14-35794, 2015 U.S. App. LEXIS 21390 at *3 (9th Cir. Mar. 12, 2015)[1]; McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2004); Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002); and Soc. Sec. Ruling (SSR) 13-2p (an ALJ is required to comply with HALLEX in decision-making). Plaintiff argues that the ALJ failed to address the specific objections raised in her Representative's Brief submitted after the hearing and thereby “failed to fulfill his clear obligation to address facially valid objections, ” and “implicitly ‘played vocational expert' in his predetermination that the issues raised would or could not change the vocational expert's testimony.” (Pl. Br. 8).

         She argues “the well-known fact that the Dictionary of Occupational Titles (DOT) is an obsolete and static database that is no longer being developed or enhanced by the United States Department of Labor (USDOL), ” that it was last updated in 1991, and that the USDOL now provides information of that type in the Occupational Information Network (O*NET). Id. at 9. She argues that the O*NET is cross referenced to the DOT and, unlike the DOT, “has been updated on a regular basis through the present.” Id. Plaintiff also asserts that the USDOL uses a “Standard Occupational Classification (SOC) system to classify workers into occupational categories, ” and that “[m]ultiple DOT codes, through crosswalks, are assigned to SOC codes.” Id., n.5. Plaintiff argues that the representative jobs of which the VE testified by DOT code number as available within the economy to an individual with the RFC and vocational profile assessed by the ALJ are not applicable within the present economy, and that the O*NET and the SOC reveal that such jobs in the present economy require abilities beyond the RFC assessed in this case. Id., at 9-10.

         Plaintiff asserts that she is not suggesting that the vocational issues raised in her Brief can be answered by her or by this court consulting the O*NET, the SOC, or even the DOT and deciding whether the VE testimony was “correct.” (Pl. Br. 10). She argues, however, that this is what the ALJ did when he did not present Plaintiff's argument, and these documents to the VE to resolve and explain her resolution of these issues. (Pl. Br. 10-11). Plaintiff points out that, pursuant to the case of Haddock and SSR 00-4p, an ALJ has the affirmative duty to inquire whether there are inconsistencies between VE testimony and the DOT, and if there are, to obtain a reasonable explanation for the conflict. Id. at 11. She argues that her post hearing Representative Brief raised several issues which ...

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