Brown v. Berryhill ( 2019 )


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  • UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    NORA BROWN, )
    )
    Plaintiff, )
    )
    v. ) Civil Case No. 18-589 (RJL)
    )
    NANCY A. BERRYHILL, )
    Acting Commissioner, )
    Social Security Administration ) F I i E D
    Defendant. SEP 12 259
    Clerk, U.S. Oisir.ct & Bane upiry
    he Qistuet af Columbia
    MEMORANDUM OPINION Courts fer theses’
    September IT. 2019 [#15, #16]
    Plaintiff Nora Brown (“plaintiff”) brings this action against defendant Nancy A.
    Berryhill, Acting Commissioner of the Social Security Administration (“defendant”)
    pursuant to 42 U.S.C. § 405(g), seeking reversal of the denial of her application for
    Social Security Disability Insurance (“DIB”) and Supplemental Security Income (“SSI”)
    benefits. See Compl. [Dkt. #1]. This case comes before me on plaintiff's Motion for
    Judgment of Reversal [Dkt. #15] and defendant’s Motion for Judgment of Affirmance
    [Dkt. #16]. For the reasons set forth below, I DENY plaintiff's motion and GRANT
    defendant’s motion.
    BACKGROUND
    I. Statutory Background
    Titles I] and XVI of the Social Security Act provide benefits for “disabled”
    claimants, 42 U.S.C. §§ 423(a), 1382(a)(1), who demonstrate an inability “to engage in
    It
    any substantial gainful activity by reason of any medically determinable physical or
    mental impairment . .. which has lasted or can be expected to last for a continuous period
    of not less than 12 months,” 
    id. §§ 423(d)(1)(A),
    1382c(a)(3)(A). In order to qualify, the
    impairment must be “of such severity that [the claimant] 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.” /d.
    §§ 423(d)(2)(A), 1382c(a)(3)(B).
    The Commissioner of the Social Security Administration (“Commissioner’’)
    assesses disability claims through a five-step sequential evaluation. See 20 C.F.R. §§
    404.1520(a)(4), 416.920(a)(4). The burden of proof rests on the claimant in steps one
    through four, but shifts to the Commissioner at step five. Butler v. Barnhart, 
    353 F.3d 992
    , 997 (D.C. Cir. 2004). At step one, the claimant must show that she is not presently
    engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(),
    416.920(a)(4)G). At step two, the claimant must show that she has at least one “‘severe
    impairment” or combination of impairments that significantly limits her ability to
    perform basic work activities. See 
    id. §§ 404.1520(a)(4)(ii),
    416.920(a)(4)(il). If she
    does, step three requires the Commissioner to determine whether the claimant’s
    impairments “meet” or are “functionally equal” to one of the impairments listed in the
    relevant regulations, Appendix | to subpart P of 20 C.F.R. § 404 (“Listed Impairments”).
    
    Id. §§ 404.1520(a)(4)(ii1),
    416.920(a)(4)(iii). If they do, the claimant “is deemed disabled
    and the inquiry is at an end.” 
    Butler, 353 F.3d at 997
    ; 20 C.F.R. §§ 404.1520(d),
    416.920(d).
    If the claimant does not succeed at step three, the Commissioner assesses a
    ee
    claimant’s “residual functional capacity” (“RFC”)—that is, the Commissioner must
    determine the most work the claimant can still do despite her limitations. /d.
    §§ 404.1520(a)(4), 416.920(a)(4), 404.1545(a). At step four, the claimant must
    demonstrate that she is incapable of performing her prior work based on her RFC. Jd. §§
    404.1520(a)(4)(iv), 416.920(a)(4)(iv). If she makes this showing, the burden shifts at
    step five to the Commissioner to demonstrate that, based on the claimant’s RFC, she can
    “make an adjustment to other work” in the national economy. /d. §§ 404.1520(a)(4)(v),
    416.920(a)(4)(v). If the Commissioner concludes that the claimant can engage in “other
    work,” then she is not disabled under the regulations. Jd. §§ 404.1520(g), 416.920(g).
    Otherwise, the claimant is disabled and entitled to benefits. Jd.
    Ifa claimant’s application for DIB or SSI is initially denied, she has the option of
    seeking review by an administrative law judge (“ALJ”). See 20 C.F.R. § 404.929. When
    disability claims are adjudicated before an ALJ, the ALJ is obligated to compile a
    comprehensive record incorporating all facts pertinent to the Commissioner’s
    determination. See Simms v. Sullivan, 
    877 F.2d 1047
    , 1050 (D.C. Cir. 1989). The ALJ’s
    opinion must show that he “has analyzed all evidence and has sufficiently explained the
    weight he has given to obviously probative exhibits,” 
    id., including evidence
    that was
    rejected, Brown v. Bowen, 
    794 F.2d 703
    , 708 (D.C. Cir. 1986).
    A claimant may appeal the ALJ’s decision to the Appeals Council. 20 C.F.R.
    § 416.1470(a). The Council may deny the request for review, grant the request but
    dismiss the case, grant the request and remand the case to the ALJ, or grant the request
    3
    and issue a decision. 20 C.F.R. § 404.967. Ifthe Council grants review and issues a
    decision, it may affirm, modify, or reverse the ALJ’s decision. 20 C.F.R. § 404.979.
    When the Appeals Council considers a claimant’s appeal and enters a decision, “it is the
    Appeal’s Council decision which constitutes the Commissioner’s final decision for
    purposes of judicial review under 42 U.S.C. § 405(g).” Schoenfeld v. Apfel, 
    237 F.3d 788
    , 792 n.2 (7th Cir. 2001). Where the Appeals Council adopts, as modified, the
    opinion of the ALJ, a court “must review the decision of the ALJ as modified by the
    Appeals Council.” Arbogast v. Bowen, 
    860 F.2d 1400
    , 1402-03 (7th Cir. 1988).
    Il. Factual Background
    Plaintiff first applied for DIB and SSI benefits on December 17, 2013, claiming
    that she had been disabled since August 8, 2012. AR at 90. Her initial applications were
    denied in July 2014, AR at 107-10, and her request for reconsideration was denied in
    August 2014, AR at 114-17. She challenged the Commissioner’s decision at a hearing
    before an ALJ in July 2016. AR at 20-46. Prior to the hearing, plaintiff submitted a
    memorandum requesting that the hearing record be held open for thirty days if the ALJ
    considered vocational testimony about other jobs in the economy under step five of the
    sequential evaluation process. AR at 218-19. At the hearing, plaintiff was represented
    by an attorney who gave an opening argument. AR at 24~25. Both plaintiff and a
    vocational expert testified and were examined by both plaintiff's attorney and the ALJ.
    AR at 26-45. After asking the vocational expert a hypothetical question and receiving a
    response, plaintiff's attorney stated “Okay, thank you. That’s all I have, your honor.”
    AR at 44. At the conclusion of the hearing, the following exchange took place:
    4
    ALJ: Counselor, do you have any further evidence to present today?
    ATTY: No, your honor.
    ALJ: Any closing?
    ATTY: No, your honor.
    ALJ: Okay. So I’m going to leave the record open for 30 days. In that
    timeframe, please electronically submit your [appointment of
    representative form] and fee agreement.
    ATTY: Yes.
    ALJ: Also track down the worker’s comp [insurance medical exam]
    and send that in as well.
    ATTY: Okay.
    ALJ: Anything further we need to be discussing today?
    ATTY: Don’t think so, your honor, no.
    ALJ: As I said, I’m going to leave the record open for 30 days for
    those additional items.
    AR at 45-46. Notably, plaintiff did not repeat her request to submit a post-hearing
    memorandum at the hearing itself.
    After the hearing, plaintiff did not submit the requested medical exam. AR at 90.
    But she did file a “Post-Hearing Memorandum of Law & Objections to the Vocational
    Witness’ Testimony.” AR at 90, 220-38. In it, she objected to the vocational expert's
    testimony regarding job incidence in the economy because, among other things, the
    expert relied on outdated skill level information. AR at 220-23. Plaintiff also objected
    that the jobs identified by the vocational expert could not be performed within plaintiff's
    hypothetical RFC. AR at 223-24. Finally, plaintiff objected to any unfavorable decision
    being issued before she had further opportunity to address her objections at a
    supplemental hearing. AR at 224.
    Based on the evidence received at the hearing and in the record, the ALJ
    concluded that plaintiff satisfied the first two steps of the five-step sequential evaluation
    5
    process because she was not engaged in any gainful activity and had several severe
    impairments: “spine disorder, diabetes mellitus type two, osteoarthritis, hearing loss,
    depression[,] and apnea.” AR at 92~—93. The ALJ found that plaintiff did not satisfy step
    three of the five-step process because her impairments did not meet or functionally equal
    the impairments listed in the relevant regulations. AR at 93. Therefore, the ALJ assessed
    plaintiffs residual functional capacity and found that she could “perform medium work
    as defined in 20 CFR 404.1567(c) and 416.967(c) except she is capable of not more than
    occasionally climbing and should avoid exposure to loud noises like those in loud traffic.
    Further, the claimant is limited to occupations consisting of routine repetitive tasks.” AR
    at 95-99. Based on this assessment, the ALJ concluded at step four that plaintiff was
    able to perform her past work as a barista. AR at 99. The ALJ therefore found that
    plaintiff was not disabled and was not entitled benefits. AR at 100. In her decision, the
    ALJ denied plaintiff's request for a supplemental hearing “in part because the instant case
    is resolved at step four of the sequential evaluation process.” AR at 90.
    In November 2016, plaintiff sought review of the ALJ’s decision by the Appeals
    Council. AR at 239-41. The Council adopted the ALJ’s findings regarding steps one
    through three, namely that plaintiff was without gainful employment and suffered from
    several impairments that, while severe, did not meet or functionally equal the
    impairments listed in relevant regulations. AR at 5S—6. It also adopted the ALJ’s finding
    as to plaintiff's RFC.' AR at 5—6. But the Appeals Council disagreed with the ALJ's
    step four conclusion that plaintiff could perform her past work as a barista because that
    work requires exposure to loud noise, which fell outside plaintiff's RFC. AR at 5.
    Finding that plaintiff satisfied step four, the Council continued to step five, where it
    found that the Commissioner demonstrated that, based on plaintiff's RFC, she could work
    as a bagger or cleaner. AR at 6. The Council based this finding on the testimony of the
    vocational expert, who testified that both jobs fell within the plaintiff's RFC and existed
    in the national economy. AR at 6-7. Thus, the Council found that plaintiff was not
    disabled. AR at 7.
    On March 19, 2018, plaintiff filed suit in this Court seeking review of the denial of
    her claims for DIB and SSI. See generally Compl. Plaintiff subsequently moved for
    judgment of reversal; defendant moved for affirmance.
    LEGAL STANDARD
    In a Social Security disability case, a reviewing court must uphold the
    Commissioner’s determination if it correctly applies the governing legal standards and is
    based on substantial evidence in the record. 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial
    evidence is “such relevant evidence as a reasonable mind might accept as adequate to
    support [a] conclusion,” Smith v. Bowen, 
    826 F.2d 1120
    , 1121 (D.C. Cir. 1987), and
    demands, as a practical matter, evidence of “more than a scintilla, but less than a
    preponderance of the evidence,” Affum v. United States, 
    566 F.3d 1150
    , 1163 (D.C. Cir.
    ' The Appeals Council faulted the ALJ for failing to address a Medical Examination
    Report in assessing plaintiff's RFC, but after considering that report, the Council
    nonetheless adopted the ALJ’s RFC finding. AR at 5.
    7
    2009) (internal quotation marks omitted). A reviewing court may not substitute its own
    judgment for that of the Commissioner or engage in independent fact-finding. See
    Martin v. Apfel, 
    118 F. Supp. 2d 9
    , 13 (D.D.C. 2000). Bearing in mind this deferential
    standard, this Court’s task on appeal is to carefully scrutinize the record to determine
    whether the Commissioner’s decision is supported by substantial evidence and to ensure
    that the Commissioner has adequately articulated the basis for the decision. See 
    Simms, 877 F.2d at 1050
    . Remand is appropriate if the Commissioner’s reasoning is not fully
    articulated. Ademakinwa v. Astrue, 
    696 F. Supp. 2d 107
    , 111 (D.D.C. 2010).
    DISCUSSION
    Plaintiff asks this Court to reverse the Appeals Council’s decision and remand the
    case for reconsideration. The sole basis for this request is that both the ALJ and the
    Appeals Council “ignored altogether” her post-hearing objections to vocational testimony
    regarding other work she can perform, consistent with her RFC, at step five of the
    sequential analysis. Pl.’s Reply Mem. |. For the reasons discussed below, I find
    plaintiff's arguments in favor of reversal and remand unconvincing and therefore deny
    her motion.
    I. The Appeals Council’s Step Five Determination Was Supported by
    Substantial Evidence. Any Procedural Error Was Therefore Harmless.
    Plaintiff contends that the Appeals Council’s failure to respond to her post-hearing
    objections regarding the other work the Council concluded she was capable of
    performing means that the Council’s step five determination was not supported by
    substantial evidence. But I need not remand the case if an alleged procedural error is
    harmless. In this context, “[a]n error is harmless ‘when it is clear from the record that the
    [Commissioner’s] error was inconsequential to the ultimate nondisability
    determination.’” Davis v. Berryhill, 
    272 F. Supp. 3d 154
    , 180 (D.D.C. 2017) (quoting
    Tommasetti v. Astrue, 
    533 F.3d 1035
    , 1038 (9th Cir. 2008)). Here, any error in failing to
    address plaintiff's objections was harmless because those objections were meritless.
    Plaintiff raised a number of objections in her post-hearing memorandum. Nearly
    all of them focused on the vocational expert’s reliance on the Dictionary of Occupational
    Titles (“DOT”) for information about jobs, their requirements, and their prevalence. See
    AR at 220-24. In brief, plaintiff contended that the DOT was no longer updated by the
    Department of Labor, was outdated, and could not, therefore, provide valid information
    about the requirements or prevalence of jobs in the modern economy. See 
    id. Before this
    Court, plaintiff reiterates her objection regarding the skill level required to perform the
    alternative jobs identified by the vocational expert. See Pl.’s Mem. at 11 & n.9. In the
    post-hearing memorandum, she objected that “the jobs offer[ed] at [the] hearing are no
    longer performed at an unskilled level pursuant to current labor market data.” AR at 222.
    She further explained that by cross-referencing the DOT codes for alternative jobs
    identified by the vocational expert with the Department of Labor’s modern, updated
    compendium of jobs—the Occupational Information Network, or “O*NET”—it became
    clear that the equivalent jobs identified in O*NET were no longer performed at the same
    skill level they once were in the DOT. See 
    id. Before this
    Court, plaintiff points out that
    the alternative employment identified by the Appeals Council—bagger (DOT code
    920.687-014) and industrial cleaner (DOT code 381.687-018)—are now semiskilled to
    9
    skilled jobs. See Pl.’s Mem. at 14.
    But plaintiff's arguments about the vocational expert’s testimony and the Appeals
    Council’s reliance on it are flawed. Plaintiff insists that the job numbers cited by the
    vocational expert must have come from the Department of Labor’s O*NET service. See
    AR at 222 (“The Department of Labor compiles job incidence data through SOC/OES
    Codes which are defined in O*NET.”). Because O*NET has been updated and because
    there are far fewer job codes—called SOC Codes—in O*NET than there were in the
    DOT, plaintiff explained in her post-hearing memorandum that “the job numbers
    reported” by the Department of Labor “are for jobs as they are performed in the current
    world of work and have no correlation to how the jobs are defined in the DOT.” /d.
    Plaintiff is partially correct—SOC codes did form part of the vocational expert’s
    testimony, as she herself acknowledged. See AR at 40. But that is not the whole story.
    At the hearing, the vocational expert explained that she did not acquire her jobs data
    directly from O*NET but rather from a private data source called SkilITRAN, generally
    relied on by those in her field, which uses data sourced from the Bureau of Labor
    Statistics (“BLS”). See AR at 39-40. It is true that this underlying BLS data is itself
    reported according to O*NET SOC code, but SkillTRAN does the work of breaking this
    down further by DOT code.’ See 
    id. Thus, the
    number of jobs reported by the vocational
    ? The vocational expert’s testimony, read together, stands for this proposition:
    “SKHITRAN ... [i]s a program that takes in — assesses the labor market
    using DOT codes. ... It’s a package — like a computer program. ... [T]he
    numbers of jobs come from ... . [the] Bureau of Labor Statistics ... in
    groupings of SOC codes. ... That is one general area. Say the position of
    10
    examiner came from SkilITRAN’s extrapolation of the number of jobs available for the
    identified DOT code and not from the broader SOC Code.
    Given this context, plaintiff's argument that the job numbers reported by the
    vocational examiner refer to “modern” jobs that are no longer performed at the plaintiff's
    skill level fails. Plaintiff contends that the unskilled jobs identified by the Appeals
    Council based on the vocational expert’s testimony—bagger (DOT Code 920.687-014)
    and industrial cleaner (DOT Code 381.687-018)—are actually now the jobs of hand
    packer and packager (SOC Code 53-7064.00) and janitor and cleaner (SOC Code 37-
    2011.00), both of which are performed at the semiskilled to skilled level and therefore
    fall outside the plaintiff's RFC. But because the vocational expert reported numbers
    based on DOT code and the Appeals Council’s findings refer to the DOT Code, the skill
    level of jobs based on SOC Code is irrelevant.
    Thus, the vocational expert reported and the Appeals Council relied on current job
    numbers for the unskilled jobs bagger and cleaner, which it concluded were within
    plaintiff's RFC. Unfortunately for the plaintiff, it is not appropriate for this Court to go
    beyond the record before me and overturn the Appeals Council’s reliance on job numbers
    related to modern, skilled jobs when every indication in the record is that the Council
    never did so. I therefore conclude that the Council’s step five determination was
    supported by substantial evidence. Accord Dennison v. Berryhill, No. 17-CV-1059F,
    
    2019 WL 2088506
    , at *9 (W.D.N.Y. May 13, 2019) (considering and rejecting nearly
    cashiers. But yet multiple DOT codes could fall within that. It could be all
    different type[s] of cashiers that could fall within that.”
    AR at 39-40.
    11
    identical arguments about a vocational expert’s use of Skill TRAN and DOT rather than
    O*NET).
    II. The Post-Hearing Objections Were Not Procedurally Proper.
    What’s more, plaintiff's objections were not procedurally proper and therefore
    would not require remand for failure to provide an explanation for rejecting them even if
    they had merit. Plaintiff contends that the ALJ and Appeals Council both failed to
    address her post-hearing objections to the vocational expert’s testimony. The ALJ
    declined to do so, the plaintiff insists, because she concluded that plaintiff was not
    disabled at step four of the sequential analysis and therefore did not need to address
    plaintiff's objections related to step five. For its part, the Appeals Council simply failed
    to mention plaintiff's objections. But the ALJ and Appeals Council need only respond to
    plaintiff's objections if they were properly made, and they were not.
    First, the post-hearing memorandum in which plaintiff raised her objections was
    not properly submitted and so need not have been considered by the ALJ. Plaintiff insists
    that the record remained open for 30 days after the hearing “to submit [this objections]
    memorandum,” but this assertion is contradicted by the very transcript plaintiff cites.
    Pl.’s Mem. 10. As I set out above, the ALJ left the hearing record open only for the
    “additional items” she had specifically requested—an appointment of representative
    form, a fee agreement, and an insurance medical exam.’ AR at 45-46. As the record was
    * It is hardly surprising that the ALJ did not leave the record open for a post-hearing
    memorandum. Plaintiff's only request to file such a document came as part of the pre-
    trial memorandum she sent to the ALJ. This request was never repeated at the hearing
    itself.
    12
    no longer open, the ALJ need not have considered plaintiff's post-hearing objections.
    Plaintiff contends that the Agency’s own Hearings, Appeals and Litigation Law Manual
    (“HALLEX”) requires the ALJ to respond to all objections a plaintiff raises toa
    vocational expert’s testimony. See Pl.’s Mem. 8 n.4 (citing HALLEX § I-2-6-74(B)).
    But the provision plaintiff cites relates to the “Conduct of the Hearing” and requires ALJs
    to respond to objections raised at the hearing itself. See HALLEX § I-2-6-74(B). It does
    not cover a situation like the present one where plaintiff raised no objection at the hearing
    and then filed a post-hearing brief without permission. See AR at 44 (stating, after asking
    the vocational examiner a question, “That’s all I have, your honor.”); AR at 46 (saying,
    after conclusion of vocational expert’s testimony and in response to ALJ's question
    whether there was anything further to discuss “Don’t think so, your honor, no”).
    Second, the ALJ did, in fact, consider and reject plaintiff's request for a
    supplemental hearing. As I explained above, the ALJ denied plaintiff's request for a
    supplemental hearing “in part because the instant case is resolved at step four of the
    sequential evaluation process.” AR at 90 (emphasis added). Plaintiff contends that
    because the Appeals Council ultimately overturned the ALJ’s step four decision, the
    denial of a request for a supplemental hearing on evidence related to step five became
    improper. But the ALJ denied the hearing only “in part’ because of her step four
    determination, meaning that after considering plaintiffs request, she had another reason
    or reasons for denying that request in addition to the step four determination. True, the
    ALJ did not set out any further reasoning in her decision, but “[a]n ALJ does not have to
    state on the record every reason justifying a decision.... ‘An ALJ’s failure to cite
    13
    specific evidence does not indicate that such evidence was not considered.’” Brault v.
    Social Sec. Admin., 
    683 F.3d 443
    , 448 (2d Cir. 2012).
    Third, regardless of any alleged errors made by the ALJ, the step five
    determination plaintiff challenges was actually made by the Appeals Council, so it is the
    Appeals Council’s decision that I must review. See 
    Arbogast, 860 F.2d at 1402-03
    . But
    plaintiff did not raise her objections to the vocational expert's job numbers in her brief to
    the Appeals Council, so the Appeals Council did not err in failing to rule on those
    objections. To be sure, in her brief, plaintiff lodged a procedural challenge against the
    ALJ’s failure to specifically address the objections raised in her post-hearing
    memorandum. See AR at 240 (“The ALJ erred by failing to address the claimant’s post-
    hearing memorandum and objections raised therein. ... The ALJ’s failure to rule on
    objections .. . is harmful because the ALJ failed to follow the Agency’s own policy and
    procedural guidelines ....”). But she did not raise the substantive arguments themselves
    to the Appeals Council. As I explained above, it was not error for the ALJ to ignore
    plaintiff's post-hearing objections, so neither was it error for the Appeals Council to
    conclude that the ALJ did not err in failing to address them. And since the Appeals
    Council was not presented with substantive objections to the vocational expert’s
    testimony, it did not (and could not) err in failing to address them.
    14
    CONCLUSION
    For the foregoing reasons, the Court finds that this case must be remanded to the
    ALJ. A separate Order consistent with this decision accompanies this Memorandum
    Opinion.
    15