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Heckman v. Berryhill

United States District Court, E.D. Pennsylvania

April 28, 2017

DAVID R. HECKMAN II
v.
NANCY A. BERRYHILL, [1] ACTING COMMISSIONER OF SOCIAL SECURITY

          MEMORANDUM

          Juan R. Sánchez, J.

         Plaintiff David R. Heckman II seeks review of the final decision of the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits (DIB) and denying in part his application for supplemental security income (SSI). At issue is the finding of the Administrative Law Judge (ALJ) that Plaintiff was capable of performing certain jobs in the national economy prior to August 14, 2013, even though his vision was impaired to some degree as a result of macular degeneration, an eye disease that causes vision loss. United States Chief Magistrate Judge Linda K. Caracappa has issued a Report and Recommendation (R&R) recommending that Plaintiff's request for review be denied, to which Plaintiff objects. Because this Court agrees with the Magistrate Judge that substantial evidence in the record supports the finding that Plaintiff was not disabled prior to August 14, 2013, Plaintiff's objections to the R&R will be overruled, and his request for review will be denied.

         BACKGROUND

         In 2012, Plaintiff applied for DIB and SSI, alleging he had been disabled since November 28, 2011, as a result of numerous physical and mental impairments, including macular degeneration. After his claims were administratively denied, Plaintiff requested a hearing before an ALJ, and a hearing was held by videoconference on April 3, 2014. Plaintiff appeared at the hearing with counsel and testified regarding his impairments. A vocational expert also testified. On August 8, 2014, the ALJ issued a partially favorable written decision finding Plaintiff was disabled as of August 14, 2013, but not prior to that date. The ALJ denied completely Plaintiff's claim for DIB because Plaintiff was eligible for such benefits only if he was disabled as of March 31, 2012. The ALJ also denied Plaintiff's claim for SSI for the period from November 28, 2011, his alleged disability onset date, to August 14, 2013, his established onset date. Plaintiff thereafter sought review by the Appeals Council, which denied his appeal, rendering the ALJ's decision the final decision of the Commissioner.

         On January 19, 2016, Plaintiff filed this action, seeking review of the Commissioner's denial of benefits prior to August 14, 2013. Plaintiff argues the ALJ's finding that he was not disabled prior to August 14, 2013, is not supported by substantial evidence because the ALJ erred in determining there were jobs in the national economy that Plaintiff was capable of performing between November 28, 2011, and August 14, 2013. The case was referred to Chief Magistrate Judge Caracappa, who issued the R&R to which Plaintiff now objects.

         DISCUSSION

         In reviewing objections to a report and recommendation issued by a magistrate judge, a district court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Judicial review of a final decision of the Commissioner, in contrast, is deferential. A court must affirm the Commissioner's decision “so long as [her] conclusions are supported by substantial evidence.” Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)). Substantial evidence “is ‘more than a mere scintilla but may be somewhat less than a preponderance of the evidence.'” Id. (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971)). If the ALJ's decision is supported by substantial evidence, the district court is bound by the ALJ's findings, even if it “would have decided the factual inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).

         To qualify for DIB or SSI, a claimant must be disabled within the meaning of the Social Security Act. The Commissioner uses the same five-step sequential evaluation process to determine whether an individual is disabled in both DIB and SSI cases. See Burns v. Barnhart, 312 F.3d 113, 118-19 & n.1 (3d Cir. 2002); 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI). This inquiry proceeds as follows.

         At the first step, the Commissioner determines whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. If not, the Commissioner proceeds to the second step and determines whether the claimant has a severe, medically determinable physical or mental impairment or combination of impairments that meet a duration requirement.[2] Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Id. If so, the Commissioner next determines, at the third step, whether the claimant's impairment or combination of impairments meets or equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. If so, the claimant is disabled. If not, the Commissioner proceeds to the fourth step of the process and determines whether the claimant is still able to perform his past relevant work. Id. § 404.1520(a)(4)(iv). To make this determination, the Commissioner must assess the claimant's residual functional capacity (RFC), defined as “the most [the claimant] can still do despite [his] limitations.” Id. § 404.1545(a)(1); see also Id. § 404.1520(a)(4)(iv). The Commissioner must then compare the claimant's RFC with the physical and mental demands of his past relevant work. Id. § 404.1520(f). If the claimant retains the RFC to do his past relevant work, he is not disabled. Id. § 404.1520(a)(4)(iv), (f). If the claimant cannot perform his past relevant work, then the Commissioner must determine, at the fifth step, whether the claimant is capable of making an adjustment to other work, given his RFC, age, education, and work experience. Id. § 1404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant will be found to be disabled. Id.

         The claimant bears the burden of proof at steps two through four. Zirnsak, 777 F.3d at 611. Thus, the claimant must prove by a preponderance of the evidence that he has a severe impairment which either meets or equals a listed impairment or prevents him from performing his past relevant work. See Id. at 611-12. At step five, however, the burden shifts to the Commissioner to prove that “work exists in significant numbers in the national economy that [the claimant] can do.” See Id. at 612 (quoting 20 C.F.R. § 404.1560). At the fourth and fifth steps of the evaluation process, the Commissioner “often seeks advisory testimony from a vocational expert” and “will generally consult the Dictionary of Occupational Titles (DOT), a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy.” Burns, 312 F.3d at 119.

         Applying the prescribed five-step process, the ALJ in this case found, at steps one through three, that (1) Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date of November 28, 2011; (2) Plaintiff suffered from numerous severe physical and mental impairments, including macular degeneration[3]; and (3) Plaintiff's severe impairments, individually and in combination, did not meet or equal the severity of a listed impairment. R. at 16-19. The ALJ then determined Plaintiff's RFC, finding that prior to August 14, 2013, Plaintiff was capable of performing light work subject to numerous additional limitations, including that he was limited to occupations “which do not require bilateral fine visual acuity.”[4] R. at 19. For the period beginning on August 14, 2013, however, the ALJ's RFC assessment included the additional limitation that Plaintiff would have to “miss more than 4 day[s] of work per month secondary to blurred vision, marked-to-extreme limitations in behaving in an emotionally stable manner, [and] marked-to-extreme limitations in interacting with others.” R. at 25-26. Based on this RFC assessment, the ALJ found, at step four of the evaluation process, that Plaintiff was unable to perform any past relevant work at any time after his alleged disability onset date of November 28, 2011, noting Plaintiff's past work as a heavy equipment operator “require[d] medium exertional demands.” R. at 27. Finally, crediting the vocational expert's hearing testimony regarding the availability of jobs for a person with Plaintiff's RFC, the ALJ concluded, at step five, that prior to August 14, 2013, Plaintiff would have been able to perform the requirements of light, unskilled jobs such as sorter of agricultural produce, garment sorter, and folder‒fabric material, all of which exist in significant numbers in the national economy. R. at 28-29. As to the period beginning on August 14, 2013, however, the ALJ concluded there were no jobs in the national economy Plaintiff could perform. R. at 29. The ALJ thus found Plaintiff was disabled as of August 14, 2013, but not before that date.

         Plaintiff challenges the ALJ's step-five finding that Plaintiff was capable of making a successful adjustment to other work prior to August 14, 2013. Plaintiff argues the vocational expert's testimony that Plaintiff could perform the agricultural produce sorter, garment sorter, and folder jobs conflicts with the ALJ's RFC finding that Plaintiff was limited to jobs not requiring “bilateral fine visual acuity” because, according to the DOT, each of the jobs identified by the vocational expert requires constant or frequent “near acuity, ” a term defined in a companion publication to the DOT to mean “[c]larity of vision at 20 inches or less.” U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, App. C (1993 ed.). Plaintiff maintains the ALJ failed to resolve this conflict in accordance with Social Security Ruling (SSR) 00-4p, and, as a result, the ALJ was precluded from relying on the vocational expert's testimony to find there were jobs Plaintiff could perform in the national economy prior to August 14, 2013.

         SSR 00-4p is a policy interpretation ruling addressing the Social Security Administration's “standards for the use of vocational experts . . . who provide evidence at hearings before [ALJs].” SSR 00-4p, 2000 WL 1898703, at *1. Recognizing that occupational evidence provided by a vocational expert “generally should be consistent with the occupational information supplied by the DOT, ” the SSR provides that “[w]hen there is an apparent unresolved conflict between [vocational expert] . . . evidence and the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the [vocational expert] . . . evidence to support a determination or decision about whether the claimant is disabled.” Id. at *2. As interpreted by the Third Circuit, SSR 00-4p requires an ALJ to “(1) ask, on the record, whether the [vocational expert's] testimony is consistent with the DOT, (2) ‘elicit a reasonable explanation' where an inconsistency does appear, and (3) explain in its decision ‘how the conflict was resolved.'” Zirnsak, 777 F.3d at 617 (quoting Burns, 312 F.3d at 127). While an ALJ's “failure to comply with these requirements may warrant remand in a particular case, . . . the presence of inconsistencies does not mandate remand, so long as ‘substantial evidence exists in other portions of the record that can form an appropriate basis to support the result.'” Id. (quoting Rutherford, 399 F.3d at 557).

         The Magistrate Judge found the vocational expert's testimony did, in fact, conflict with the DOT in that the ALJ's hypothetical posited an individual who could not perform jobs requiring bilateral fine visual acuity, yet the vocational expert testified such a person could perform jobs that the DOT classifies as requiring frequent or constant near acuity.[5]See R&R 9. Despite this conflict, however, the Magistrate Judge concluded remand was not warranted because Plaintiff's counsel questioned the vocational expert about whether the visual acuity limitation included in the ALJ's hypothetical would prevent a person from performing the agricultural produce sorter job and the vocational expert opined it would not. The Magistrate Judge also found there was substantial evidence in other portions of the record to support the ALJ's ...


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