Andrew M. v. Berryhill

ANDREW M.,¹ Plaintiff, v. NANCY A. BERRYHILL,Deputy Commissioner for Operations, Social Security Administration,² Defendant.

No. 1:17-cv-03976-MJD-RLY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

August 27, 2018

ENTRY REVIEWING THE DEPUTY COMMISSIONER'S DECISION

Plaintiff Andrew M. applied for disability insurance benefits from the Social Security Administration ("SSA") on August 10, 2012, alleging an onset date of July 1, 2012. [Filing No. 16-2 at 12.] His application was initially denied on October 17, 2012, [Filing No. 16-5 at 22], and upon reconsideration on December 26, 2012, [Filing No. 16-5 at 32]. Administrative Law Judge Blanca B. de la Torre (the "ALJ") held a hearing on August 13, 2014. [Filing No. 16-3 at 33-62.] The ALJ issued a decision on September 24, 2014, concluding that Andrew M. was not entitled toreceive disability insurance benefits. [Filing No. 16-4 at 21.] However, the Appeals Council remanded the claim on March 31, 2016, with instructions to obtain supplemental evidence from a vocational expert ("VE"). [Filing No. 16-4 at 45-46.] The ALJ conducted a second hearing on July 8, 2016, [Filing No. 16-2 at 60-86], and again issued an unfavorable decision denying the claim on November 2, 2016, [Filing No. 16-2 at 9]. The Appeal Council subsequently denied review on September 29, 2017. [Filing No. 16-2 at 2.] On October 30, 2017, Andrew M. timely filed this civil action, asking the Court to review the denial of benefits pursuant to 42 U.S.C. § 405(g). [Filing No. 1.] For the reasons set forth below, the Deputy Commissioner's decision is AFFIRMED.

I.STANDARD OF REVIEW

"The Social Security Act authorizes payment of disability insurance benefits ... to individuals with disabilities." Barnhart v. Walton, 535 U.S. 212, 214 (2002). "The statutory definition of 'disability' has two parts. First, it requires a certain kind of inability, namely, an inability to engage in any substantial gainful activity. Second, it requires an impairment, namely, a physical or mental impairment, which provides reason for the inability. The statute adds that the impairment must be one that has lasted or can be expected to last ... not less than 12 months." Id. at 217.

When an applicant appeals an adverse benefits decision, this Court's role is limited to ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted). Because the ALJ "is in the best position to determine the credibility of witnesses," Craft v. Astrue, 539 F.3d 668,678 (7th Cir. 2008), this Court must afford the ALJ's credibility determination "considerable deference," overturning it only if it is "patently wrong." Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations omitted).

The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v), evaluating the following, in sequence:

(1) whether the claimant is currently [un]employed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals one of the impairments listed by the [Deputy Commissioner]; (4) whether the claimant can perform [his] past work; and (5) whether the claimant is capable of performing work in the national economy.

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). "If a claimant satisfies steps one, two, and three, [he] will automatically be found disabled. If a claimant satisfies steps one and two, but not three, then [he] must satisfy step four. Once step four is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing work in the national economy." Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).

After Step Three, but before Step Four, the ALJ must determine a claimant's residual functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable impairments, even those that are not severe." Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ "may not dismiss a line of evidence contrary to the ruling." Id. The ALJ uses the RFC at Step Four to determine whether the claimant can perform his own past relevant work and if not, at Step Five to determine whether the claimant can perform other work. See 20 C.F.R. § 404.1520(iv), (v). The burden of proof is on the claimant for Steps One through Four; only at Step Five does the burden shift to the Deputy Commissioner. See Clifford, 227 F.3d at 868.

If the ALJ committed no legal error and substantial evidence exists to support the ALJ's decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ's decision is not supported by substantial evidence, a remand for further proceedings is typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An award of benefits "is appropriate where all factual issues have been resolved and the record can yield but one supportable conclusion." Id. (citation omitted).

II.BACKGROUND

Andrew M. was 27 years of age at the time he applied for disability insurance benefits. [Filing No. 16-7 at 2.] He has at least a high school education and previously worked as a laundry attendant, warehouse worker, and banquet set-up person. [Filing No. 16-2 at 26-27.]³

The ALJ followed the five-step sequential evaluation set forth by the Social Security Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Andrew M. was not disabled. [Filing No. 16-2 at 28.] The ALJ found as follows:

• At Step One, Andrew M. had not engaged in substantial gainful activity⁴ since July 1, 2012, the alleged onset date. [Filing No. 16-2 at 14.]

• At Step Two, he had the following severe impairments: "residuals of amputation of the right forefoot in 2004 and revision of grafting in 2014," blindness of the left eye, and hypertension. [Filing No. 16-2 at 15.]

• At Step Three, he did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. [Filing No. 16-2 at 17.]

• After Step Three but before Step Four, he had the RFC "to perform work within the sedentary range, as defined in 20 CFR 404.1567(a). The claimant can lift, carry, push, andpull 10 pounds occasionally and less than 10 pounds frequently. With appropriate breaks in the morning, at lunch and in the afternoon, he can sit for a total of 6 hours in the 8-hour workday and stand and/or walk for a total of 2 hours in the 8-hour workday. The claimant is unable to work on ladders, ropes, or scaffolds. He occasionally can climb ramps and stairs, balance, stoop, crouch, kneel, or crawl. The claimant cannot tolerate concentrated exposure to extreme cold, wetness, or industrial vibrations. He cannot work on wet, slippery, or uneven surfaces. He cannot work at unprotected heights. He cannot work with materials with a font smaller than the standard 12-point or with objects smaller than a golf ball. He can use a computer monitor occasionally." [Filing No. 16-2 at 20.]

• At Step Four, relying on the testimony of the VE and considering Andrew M.'s RFC, he was incapable of performing his past relevant work as a laundry attendant, warehouse worker, and banquet set-up person. [Filing No. 16-2 at 26.]

• At Step Five of the analysis, relying on VE testimony and considering Andrew M.'s age, education, and RFC, there were jobs that existed in significant numbers in the national economy that he could have performed through the date of the decision. [Filing No. 16-2 at 27-28.]

III.DISCUSSION

Andrew M. asserts that substantial evidence does not support the ALJ's Step Five determination that he is capable of performing work as either a machine operator or an interviewer. The Court will consider each job in turn after discussing the standard.

As was noted above, at Step Five of the sequential analysis, if the claimant is not able to perform his past work, the Deputy Commissioner bears the burden of showing that he is capable of performing other jobs that exist in significant numbers in the economy. An ALJ is required to take administrative notice of job information contained in various publications, including the Dictionary of Occupational Titles ("DOT"), published by the Department of Labor. See 20 C.F.R. § 404.1566(d)(1). The ALJ often also relies on testimony from a VE to "supplement the information provided in the DOT by providing an impartial assessment of the types of occupations in which claimants can work and the availability of positions in such occupations." Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011).

The ALJ found at Step Five that Andrew M. was capable of performing two unskilled, sedentary occupations: a machine operator, DOT# 690.685-194, with 52,000 jobs available nationally and an interviewer, DOT# 205.367-014, with 33,000 jobs available nationally. [Filing No. 16-2 at 27-28.] To arrive at her conclusion, the ALJ elicited testimony from a VE by posing a hypothetical describing work-related limitations consistent with her eventual RFC finding, to which the VE affirmed that an individual with those limitations would be capable of working in the above jobs available in those numbers in the national economy. [Filing No. 16-2 at 80-83.]

"When a VE or VS provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT." Social Security Ruling ("SSR") 00-4p (S.S.A. Dec. 4, 2000), 2000 WL 1898704 at *4. "When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable...