United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
HANLY A. INGRAM, Magistrate Judge.
Plaintiff, Steve Edward Brown, brings this action pursuant to 42 U.S.C §§ 405(g) and 1383(c) to obtain judicial review of an administrative decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits. The parties each filed a notice of consent to the referral of this matter to a magistrate judge. D.E. 13; 14. Accordingly, this matter was referred to the undersigned to conduct all proceedings and enter final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. D.E.15. The Court, having reviewed the record and for the reasons stated herein, will deny Plaintiff's Motion for Summary Judgment (D.E. 18) and grant the Commissioner's Motion for Summary Judgment (D.E. 19).
Brown filed a Title II application for a period of disability and disability insurance. D.E. 9-2 at 1. He alleges disability beginning on November 8, 2010 ( Id. ), due to problems with back and leg pain, breathing, high blood pressure, and high cholesterol (D.E. 18-1 at 3-4). Defendant also alleges that he suffers from depression. D.E. 9-1 at 219. Brown's claim was denied initially and upon reconsideration. D.E. 9-2 at 6. Subsequently, upon Brown's request, an administrative hearing was conducted before Administrative Law Judge John L. McFadyen ("ALJ") on March 15, 2012. Id. During the hearing, the ALJ heard testimony from Brown, impartial medical expert Theron Blickenstaff, and vocational expert Dr. Norman E. Hankins ("VE"). Id. Brown, who was forty-one years old as of the alleged onset date, has an eleventh grade education and completed his GED. D.E. 18-1 at 2. Though Brown has past relevant work experience, the VE testified that such work exceeds his residual functional capacity and the ALJ accepted that testimony. D.E. 9-2 at 14.
In evaluating a claim of disability, an ALJ conducts a five-step sequential analysis. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). If a claimant is not found disabled at step 3, the ALJ must determine the claimant's residual functional capacity, which is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. § 404.1520(e). Fourth, if a claimant's impairments do not prevent him from doing past relevant work (given the ALJ's assessment of his residual functional capacity), he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering his residual functional capacity, age, education, and past work) do not prevent him from doing other work that exists in the national economy, he is not disabled. 20 C.F.R. § 404.1520(f).
In this case, at Step 1, the ALJ found that Brown has not engaged in substantial gainful activity since November 8, 2010, the alleged onset date of disability. D.E. 9-2 at 8. At Step 2, the ALJ found that Brown has the following severe impairments: "back disorder and asthma." Id. The ALJ found Brown's mental impairment of anxiety to be non-severe. Id. At Step 3, the ALJ found that Brown's impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 9-10. At Step 4, the ALJ determined that Brown had the residual functional capacity (RFC) "to perform light work as defined in 20 CFR 404.1567(b) in a clean but not sterile environment." Id. at 10. The ALJ found that Brown could not return to his past relevant work, which required that he perform work at a medium level of exertion. Id. at 14. At step 5, the ALJ relied on the testimony of the VE to find that, based on Brown's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Brown could perform. Id. at 14-15. Accordingly, on November 28, 2012, the ALJ issued an unfavorable decision, finding that Brown was not disabled, and therefore, ineligible for disability insurance benefits. Id. at 15. The Appeals Council declined to review the ALJ's decision on November 19, 2013 (D.E. 9-1 at 6-9), and Brown now seeks judicial review in this Court.
Under the Social Security Act, a "disability" is defined as "the inability to engage in substantial gainful activity' because of a medically determinable physical or mental impairment of at least one year's expected duration." Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007). Judicial review of the denial of a claim for Social Security benefits is limited to determining whether the ALJ's findings are supported by substantial evidence and whether the correct legal standards were applied. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). "Substantial evidence" is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). The substantial evidence standard "presupposes that there is a zone of choice within which decision makers can go either way, without interference from the court." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ( en banc ) (quotes and citations omitted).
In determining the existence of substantial evidence, courts must examine the record as a whole. Id. (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, courts are not to conduct a de novo review, resolve conflicts in evidence, or make credibility determinations. Id. (citations omitted); see also Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999); see also Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); Mullen, 800 F.2d at 545.
A. Claim that the ALJ erred in failing to inquire of the Vocational Expert whether his testimony was consistent with the Dictionary of Occupational Titles.
Brown's motion first contends that the ALJ erred by failing to inquire of the vocational expert, on the record, whether his testimony was consistent with the Dictionary of Occupational Titles ("DOT"), as is affirmatively required by Social Security Ruling (SSR) 00-4p. D.E. 18-1 at 11-13. The Commissioner implicitly concedes that the ALJ did not do so, but argues that Plaintiff fails to identify any conflict between the VE's testimony and the DOT, and that the error was therefore harmless. D.E. 19 at 12. Plaintiff notes that the ALJ stated, "Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles." D.E. 9-2 at 15. Plaintiff argues that, because the ALJ did not fulfill his affirmative duty to inquire of the VE, on the record, whether his testimony conflicted with the DOT, the ALJ could not rely on the opinion of the VE in making his decision. D.E. 18-1 at 13.
However, the ALJ's failure to strictly bide by SSR 00-4p could be harmless, and, therefore, not require a remand if the Court can determine that there was no actual conflict between the VE's testimony and the DOT. An error is harmless where it has no bearing on the procedure used or the substance of the ultimate decision. United States Steel Corp. v. Envtl. Prot. Agency, 595 F.2d 207 (5th Cir. 1979). The Sixth Circuit has found that the harmless-error rule applies in the Social Security context. See e.g. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009); Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001) (failure to explain weight given to treating physician not reversible error where ALJ's opinion is nonetheless supported by substantial evidence and error was harmless.). The failure to strictly abide by the guidelines in SSR 00-4p does not necessitate reversal where the ALJ's opinion is supported by substantial evidence and the error was harmless.
During the ALJ's examination of the VE, the VE was asked to "assume that the claimant is limited to light work; that he should also work in a clean, but not sterile environment.... Would there be any jobs that he could perform based on [those] restrictions?" D.E. 9-1 at 33. The VE responded with examples of jobs that could be performed within those limits such as "hand packers and packagers, inspectors, testers, and sorters of various kinds of small parts, machine feeders, and... miscellaneous assembler and fabricators." Id. The VE represented that 146, 250 jobs of that nature exist in the state of Tennessee, and 6, 767, 002 exist in the national economy. Id. A review of the DOT descriptions for "Inspector and Hand Packager, " "Inspector and Sorter, " and "Laboratory Tester" each indicate a classification of light work without atmospheric conditions (DOT 559.687-074 "Inspectors and Hand Packagers"; DOT 589.387-010 "Inspector and Sorter"; DOT 689.384-014 "Laboratory Tester"), which classifications are consistent with the VE's testimony about Brown's ability to perform such jobs given the restrictions in the hypothetical imposed by the ALJ. Thus, the VE testimony is not in conflict with the DOT in regard to positions involving jobs that were limited to light work in a clean but not sterile environment, which corresponds to Brown's RFC. For this reason, the ALJ's determination is supported by substantial evidence, and the ALJ's failure to ask the VE whether the evidence he presented was consistent with the information contained in the DOT was harmless error.
B. Claim that the ALJ improperly failed to assign greater weight to the opinions of the examining sources than was ...