Brown v. Berryhill

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