Pearson v. Colvin

• Decision Date: 17 December 2015
• Docket Number: No. 14–2255.,14–2255.
• Citation: 810 F.3d 204
• Parties: Jeffrey PEARSON, Plaintiff–Appellant, v. Carolyn W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

810 F.3d 204

Jeffrey PEARSON, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant–Appellee.

No. 14–2255.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2015.

Decided: Dec. 17, 2015.

ARGUED:E. Gregory Wallace, Campbell University School of Law, Raleigh, North Carolina, for Appellant. Mark Anthony Exley, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:Anthony W. Bartels, Bartels Law Firm, Jonesboro, Arkansas, for Appellant. Dana J. Boente, United States Attorney, Office of the United States Attorney, Alexandria, Virginia; Nora Koch, Acting Regional Chief Counsel, Taryn Jasner, Supervisory Attorney, Naomi Mendelsohn, Assistant Regional Counsel, Social Security Administration, Philadelphia, Pennsylvania, for Appellee.

Before MOTZ, GREGORY, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY and Judge HARRIS joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Jeffrey Pearson appeals the denial of his application for Social Security disability benefits. He contends that substantial evidence does not support the determination of the administrative law judge denying those benefits because the judge failed to resolve a conflict between the vocational expert's testimony and the Dictionary of Occupational Titles. We reverse and remand for further proceedings.

I.

In the past, Pearson has worked in a number of fields, including as a groundskeeper and a press operator in a plastics factory. On February 5, 2009, Pearson was laid off from his most recent job. Six weeks later, he applied for Social Security disability benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381, 1382c(a)(3) (2012). Pearson alleged disability due to arthritis of the spine, degenerative joint disease and a torn rotator cuff in his right shoulder, shin splints, degenerative artery disease in his feet, a hiatal hernia, irritable bowel syndrome, post-traumatic stress disorder, depression, and anxiety.

Pearson's application for benefits was denied initially and upon rehearing. An administrative law judge (ALJ) then affirmed the denial. The Social Security Appeals Council (Appeals Council), however, granted Pearson's request for review and remanded the case for further consideration, including testimony from a vocational expert.

During the second ALJ hearing, at the beginning of the vocational expert's testimony, the ALJ asked the expert: "[i]f your testimony here today differs [from] what is contained within the Dictionary of Occupational Titles, will you please so advise both [Pearson's counsel] and myself?"¹ The expert agreed to do so.

The ALJ presented the vocational expert with a series of hypotheticals. The ALJ first posed the following scenario to the expert:

[A]ssume a hypothetical individual the same age, education and work experience which our claimant possesses. Further assume that this hypothetical individual can lift and carry up to 20 pounds occasionally and ten pounds frequently; sit six hours in an eight hour day and stand and walk a total of six hours in an eight hour day. Further assume that this hypothetical individual would be limited to occasionally overhead lifting and reaching using the upper nondominant extremity. Likewise, this hypothetical individual could perform occasional bending, stooping, crouching, kneeling and crawling.... The hypothetical individual, I would restrict to ambulating on level surfaces. Likewise, this hypothetical individual could perform no more than frequent fingering and handling using the upper extremities.... None exertionally. I would restrict this hypothetical individual to performing simple, routine tasks, with supervision which is simple, direct and concrete.

The ALJ then asked the vocational expert whether this hypothetical person could perform any of Pearson's past jobs. The expert said he could not.

The ALJ next asked the vocational expert whether this hypothetical person could perform any other jobs in the national economy. The expert testified that the hypothetical individual could perform unskilled and light work, including jobs as a motel cleaner (Dictionary 323.687–014), cashier II (Dictionary 211.462–010), and bench press operator (Dictionary 690.685–014). Pearson's counsel asked the expert no questions. At no time did the vocational expert mention any conflicts between his testimony and the Dictionary.

The ALJ again affirmed the denial of benefits. He found that Pearson has the following severe impairments: "right shoulder tendonitis and synovial lesion, left ear disorder (status-post left tympanoplasty ), diffuse joint pain due to arthritis, back pain, carpal tunnel syndrome of the right wrist, anxiety, and depression." However, the ALJ found that, with those impairments, Pearson retains the residual functional capacity

to perform less than the full range of unskilled, light work.... Physically, he retains the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours in an eight-hour workday; sit for six hours in an eight-hour workday; is limited to occasional overhead lifting/reaching using the nondominant upper extremity; can do no more than frequent fingering and handling; can occasionally bend, stoop, crouch and crawl; is limited to ambulating on level surfaces; and is limited to face-to-face communication due to alleged hearing loss in one ear. Mentally, the claimant is limited to simple, routine tasks with supervision that is simple, direct, and concrete.

This residual functional capacity mirrors that of the individual in the first hypothetical that the ALJ posed to the vocational expert. The ALJ concluded that although Pearson could not perform any relevant past work, he could perform jobs that exist in significant numbers in the national economy, including work as a motel cleaner, cashier II, and machine tender/bench press operator; these are the same jobs the vocational expert mentioned. The ALJ thus found Pearson not disabled and not entitled to benefits.

Pearson requested an Appeals Council review of this decision, which the Council denied. Pearson then filed this action in federal court. Upon consideration of the parties' cross-motions for summary judgment, a magistrate judge issued a report recommending grant of summary judgment to the Acting Commissioner of the Social Security Administration (Commissioner). Pearson filed objections, arguing that the magistrate judge erred in recommending affirmance of the ALJ's finding that he was not disabled or eligible to receive benefits. This was assertedly so because the ALJ did not resolve a conflict between the vocational expert's testimony and the Dictionary as to whether the jobs identified by the expert required an ability Pearson did not have—to frequently reach overhead with both arms. The district court overruled the objection, adopted the magistrate judge's recommendation, and granted the Commissioner summary judgment. This timely appeal followed.

II.

When reviewing a Social Security disability determination, a reviewing court must "uphold the determination when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence." Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir.2012). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.2005) (per curiam) (internal quotation marks omitted). It "consists of more than a mere scintilla of evidence but may be less than a preponderance." Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.2012) (internal quotation marks omitted).

In considering an application for disability benefits, an ALJ uses a five-step sequential process to evaluate the disability claim. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2015). The ALJ determines whether a claimant: first, is currently gainfully employed; second, has a severe impairment; and third, has an impairment that meets or equals the requirements of a listed impairment. Id. § 404.1520(a)(4)(i), (ii), (iii). Fourth, the ALJ considers the claimant's residual functional capacity to determine whether he can perform the functions of his past relevant work. Id. § 404.1520(a)(4)(iv). Fifth, the ALJ considers the claimant's age, education, work experience, and residual functional capacity to decide whether he can perform alternative work that exists in significant numbers in the national economy. Id. §§ 404.1520(a)(4)(v), 404.1560(c). The claimant has the burden of proof for the first four steps, but at the final, fifth step the Commissioner bears the burden to prove that the claimant is able to perform alternative work. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

To answer this final question—whether sufficient other work exists for the claimant in the national economy—the ALJ "rel[ies] primarily" on the Dictionary. Soc. Sec. Admin., Policy Interpretation Ruling: Titles II & XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, Social Security Ruling (SSR) 00–4p, 2000 WL 1898704 (Dec. 4, 2000), at *2 (the Ruling). The ALJ "may also use" a vocational expert to address complex aspects of the employment determination, including the expert's observations of what a particular job requires in practice or the availability of given positions in the national economy. Id.

Because the expert's testimony can sometimes conflict with the Dictionary, the Social Security Administration has promulgated a multi-page, formal ruling to "clarif[y the] standards for the use of vocational experts" at ALJ hearings. Id. at *1. The Ruling requires that the ALJ "inquire, on the record, ... whether" the vocational expert's testimony "conflict[s]" with the Dictionary,...