Walls v. Barnhart

• Decision Date: 15 July 2002
• Docket Number: No. 01-2459.,01-2459.
• Citation: 296 F.3d 287
• Parties: Tyrone WALLS, Plaintiff-Appellee, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

296 F.3d 287

Tyrone WALLS, Plaintiff-Appellee, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellant.

No. 01-2459.

United States Court of Appeals, Fourth Circuit.

Argued May 9, 2002.

Decided July 15, 2002.

ARGUED:

Kathleen Anne Kane, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellant. Dennis E. Wasitis, Law Office of Joan A. Birmingham, Baltimore, Maryland, for Appellee.

ON BRIEF:

Robert D. McCallum, Assistant Attorney General, Thomas M. DiBiagio, United States Attorney, John C. Hoyle, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellant. Joan A. Birmingham, Law Office of Joan A. Birmingham, Baltimore, Maryland, for Appellee.

Before TRAXLER, Circuit Judge, BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge BEAM wrote the opinion, in which Judge TRAXLER and Judge PAYNE joined.

OPINION

BEAM, Senior Circuit Judge.

The Commissioner of Social Security (Commissioner) appeals the order of the magistrate judge¹ vacating and remanding the administrative law judge's (ALJ) decision to uphold the Commissioner's denial of benefits to Tyrone Walls. The Commissioner contends that the district court would require her to support her decision with a greater measure of proof than that mandated by statute. We agree and affirm the Commissioner's final order.

I.

After the Commissioner denied Walls' claim for disability benefits, Walls requested a hearing before the ALJ. The ALJ determined that Walls has the severe impairment of Crohn's disease, and that his condition requires that he be able to sit or stand at his option during a period of time equivalent to a full-time work shift. The ALJ ultimately found, based on the testimony of a vocational expert (VE), that there are a significant number of jobs in the national economy that Walls can perform. Accordingly, the ALJ concluded that Walls is not disabled within the meaning of the Social Security Act (the Act). The Appeals Council denied Walls' request for review, thus making the ALJ's determination the final decision of the Commissioner. Walls sought review of the final decision denying his claim, and both he and the Commissioner moved for summary judgment. Determining that the VE's testimony lacked sufficient clarity to support a finding that Walls can work despite his need to sit or stand at his option, the district court denied both motions for summary judgment and remanded the matter for further consideration.² The Commissioner now appeals that decision.

II.

Social Security Ruling (SSR or Ruling) 83-12 recognizes that "[u]nskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will." Therefore, "[i]n cases of unusual limitation of ability to sit or stand, a[VE] should be consulted to clarify the implications for the occupational base." SSR 83-12.

Determination of eligibility for social security benefits involves a five-step inquiry. Mastro v. Apfel, 270 F.3d 171, 177 (4th Cir.2001). At step five, the agency has the burden of providing evidence of a significant number of jobs in the national economy that a claimant could perform. Powers v. Apfel, 207 F.3d 431, 436 (7th Cir.2000) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)).

The ALJ's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Consequently, judicial review, either by this court or the district court, of a final decision regarding disability benefits is limited to determining whether the findings are supported by substantial evidence and whether the correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990); Preston v. Heckler, 769 F.2d 988, 990 (4th Cir.1985). In assessing whether there is substantial evidence, the reviewing court should not "`undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of'" the agency. Mastro, 270 F.3d at 176 (citation omitted) (alteration in original).

In the matter before us, at step five of his analysis, the ALJ set forth five hypothetical scenarios, en masse, and asked the VE to address them. Included was the ALJ's directive to the VE that "[i]n hypothetical number 3, [the ALJ would] like [the VE] to make it more restrictive in the sense of providing for no prolong[ed] walking and standing but with ... the allowance for a ... sit, stand option at the claimant's discretion." After the ALJ completed his list of hypotheticals, the VE responded that "in hypothetical number 3," he would eliminate all medium jobs, reduce the light jobs by fifty percent, and include all sedentary jobs.

The ALJ made no specific findings regarding the effect of the sit/stand provision. He did, however, adopt the VE's calculations of the number of jobs in the local and national economies, which included the reductions prompted by "hypothetical number 3." The ALJ concluded that the Commissioner had satisfied her burden at step five in that Walls could perform "`other work' identified by the impartial vocational expert at the light and ... sedentary exertional levels."

In evaluating the ALJ's findings regarding step five, the district court found a contradiction between the VE's testimony and SSR 83-12's reference to the difficulty of finding unskilled jobs that allow a sit/stand option. The court reasoned that the VE's testimony that Walls could perform certain unskilled light or sedentary jobs "contradicts, or at least creates an exception to, [SSR 83-12's] statement that [unskilled light or sedentary] jobs are `particularly structured' to preclude [the sit/stand] option." Consequently, the court found it necessary to determine "what is the necessary content of, and level of scrutiny to be applied to, contradictory VE testimony."

The court found pertinent case law to be lacking and looked to the Seventh Circuit's decision in Powers for guidance. In Powers, the court found that the VE's testimony provided substantial evidence to support the hearing officer's finding that a number of jobs matching the claimant's need for a sit/stand option existed in the economy. 207 F.3d at 436-37. The claimant had contended that it was unclear whether the expert's testimony as to the number of jobs available in the economy included a sit/stand option and matched the claimant's skill level. Id. at 436. The Seventh Circuit responded that "[t]o argue... that the expert's testimony was `unclear' ignores the express limitation in the hearing officer's questions to the expert that clearly stated the conditions under which the opinion was to be expressed." Id.

In the present case, the court distinguished the result in Powers, but simultaneously relied upon the Seventh Circuit's reasoning, pointing out that in Powers, the court deemed the VE testimony sufficient only after noting "that the VE testimony was given in response to a hypothetical `asked expressly,' with `clearly stated ... conditions.'" Walls v. Barnhart, No. JFM 00-3375, mem. op. at 6 (D.Md. Oct. 4, 2001) (quoting Powers, 207 F.3d at 436). The court went on to state that "[t]here is good reason to require special clarity when a VE testifies that a person who needs a sit/stand option can perform unskilled light or sedentary jobs. The testimony contradicts, or at least creates an exception to, the Ruling's statement that such jobs are `particularly structured' to preclude that option."

"Special clarity" is not called for by the Act. 42 U.S.C. § 405(g). A special clarity criterion would require the agency to support its decisions by more than the statutorily designated substantial evidence burden. As such, the district court applied...