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Green v. Berryhill

United States District Court, S.D. Alabama, Southern Division

March 12, 2018

RAYMOND JAMES GREEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 24 & 25 (“In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, Plaintiff's brief, the Commissioner's brief, and the arguments of counsel at the February 15, 2018 hearing before the Court, it is determined that the Commissioner's decision denying benefits should be affirmed.[1]

         I. Procedural Background

         Plaintiff filed an application for a period of disability and disability insurance benefits on November 6, 2013, alleging disability beginning on August 2, 2011. (See Tr. 192-95.)[2] Green's claim was initially denied on June 30, 2014 (Tr. 117) and, following Plaintiff's July 7, 2014 request for a hearing before an Administrative Law Judge (“ALJ”) (see Tr. 137-38), a hearing was conducted before an ALJ on October 20, 2015 (Tr. 39-75). On March 4, 2016, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to disability insurance benefits. (Tr. 19-34.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential evaluation process and determined that Green retains the residual functional capacity to perform those light and sedentary jobs identified by the vocational expert (“VE”) during the administrative hearing (Tr. 33; see also Tr. 24). On April 26, 2016, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (Tr. 15); the Appeals Council denied Green's request for review on March 27, 2017 (Tr. 1-3). Thus, the hearing decision became the final decision of the Commissioner of Social Security.

         Given the unique issue raised by Plaintiff in his brief (see Doc. 14), which relates to the VE's testimony (see Id. at 5), the undersigned sets forth the Administrative Law Judge's (ALJ's) relevant step 5 finding, as follows:

10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

         Through the date last insured, if the claimant had the residual functional capacity to perform the full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.21. However, the claimant's ability to perform all or substantially all of the requirements of this level of work was impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, through the date last insured, I asked the vocational expert whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would have been able to perform the requirements of representative occupations such as an information clerk, DOT Code 237.367-018, light and unskilled work (approximately 990, 000 jobs in the national economy, 8, 000 in Alabama); parking lot attendant, DOT Code 915.473-010, light and unskilled work (approximately 650, 000 jobs in the national economy, 5, 000 in Alabama); and surveillance system monitor, DOT Code 379.367-010, sedentary and unskilled work (approximately 900, 000 jobs in the national economy, 7, 000 in Alabama). It is concluded that these represent a significant number of jobs.

         Based on the testimony of the vocational expert, I conclude that, through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, the claimant was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. A finding of “not disabled” is therefore appropriate under the framework of the above-cited rule.

11. The claimant was not under a disability, as defined in the Social Security Act, at any time from December 14, 2011, the amended alleged onset date, through March 31, 2015, the date last insured (20 CFR 404.1520(g)).

         (Tr. 33-34 (emphasis in original)).

II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation to determine whether the claimant is disabled, which considers: (1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment; (3) if so, whether the severe impairment meets or equals an impairment in the Listing of Impairments in the regulations; (4) if not, whether the claimant has the RFC to perform h[is] past relevant work; and (5) if not, whether, in light of the claimant's RFC, age, education and work experience, there are other jobs the claimant can perform.

Watkins v. Commissioner of Social Sec., 457 Fed.Appx. 868, 870 (11th Cir. Feb. 9, 2012)[3] (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the burden, at the fourth step, of proving that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors:

(1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education and work history. Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return to his past relevant work, the [Commissioner of Social Security] has an obligation to develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a plaintiff proves that he cannot do his past relevant work, as here, it then becomes the Commissioner's burden-at the fifth step-to prove that the plaintiff is capable-given his age, education, and work history-of engaging in another kind of substantial gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).

         The task for the Magistrate Judge is to determine whether the Commissioner's decision to deny claimant benefits, on the basis that he can perform those light and sedentary jobs identified by the vocational expert during the administrative hearing, is supported by substantial evidence. Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).[4] Courts are precluded, however, from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “'[e]ven if the evidence preponderates against the Commissioner's findings, [a court] must affirm if the decision reached is supported by substantial evidence.'” Id. (quoting Crawford v. Commissioner of Social Sec., 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).

         On appeal to this Court, Green argues that the Commissioner's decision to deny him benefits is due to be remanded because the ALJ erred in failing to directly address, contrary to agency authority, post-hearing objections to the vocational expert's testimony. (Doc. 14, at 5.) Green contends that, as a claimant, he had a right to challenge the VE's testimony and have his objections ruled upon by the ALJ and, further, that the ALJ's failure to rule on his post-hearing objections was not harmless error. (See Id. at 5-9.) Green contends that the ALJ's error was not harmless because his post-hearing memorandum and the objections raised therein were valid inasmuch as: (1) the assumed sit/stand limitation is an accommodation the agency cannot rely upon at step 5 to identify jobs the claimant can perform (id. at 9-10); and (2) the VE's testimony was generally unreliable. As for the general unreliability of the VE's testimony, Plaintiff makes the following argument:

Here, Plaintiff raised several valid questions about how the vocational expert arrived at his conclusions regarding job incidence data. Specifically, Plaintiff objected on the basis of the logical inconsistency between the vocational expert saying, on one hand, that he was relying on his “experience” to offer an estimate regarding the number of employers where the jobs he offered could be found, but then could not name even one such employer. Tr. 242. Moreover, this inability is also inconsistent with his claim that even though he does not know the number of employers, he can still offer an estimate regarding the number of jobs. Tr. 242-43. The objections memorandum also noted the incongruity between the vocational expert's testimony, on one hand, that there are 650, 000 light and unskilled parking lot attendants in the national economy (where the employer accommodates the need to alternate between sitting and standing, and does not require more than 4 hours of standing/walking during an 8 hour day) and, on the other, information available through the “County Business ...

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