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Paul v. Colvin

United States District Court, Fourth Circuit

May 29, 2013

CAROLYN COLVIN, [1] Commissioner of Social Security, Defendant.


THOMAS M. DIGIROLAMO, Magistrate Judge.

Terrance Paul ("Plaintiff" or "Claimant") brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying his claims for Disability Insurance Benefits and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C.§§ 401-433, 1381-83(c). Before the Court are Plaintiff's Motion for Summary Judgment (Pl.'s Mot. Summ., ECF No. 17) and Defendant's Motion for Summary Judgment. (Def.'s Mot. Summ., ECF No. 18). No hearing is deemed necessary. Local Rule 105.6 (D. Md.). For the reasons presented below, Defendant's Motion for Summary Judgment is GRANTED.

I. Procedural History

Plaintiff filed his applications on March 31, 2009 alleging disability since May 21, 2007 due to right hand flexor tendon injury. R. at 189-90, 193-96, 212, 220. His claims were denied initially and on reconsideration. R. at 59-61, 66-67. On January 7, 2011, a hearing was held before an administrative law judge ("ALJ") at which Plaintiff testified. R. at 26-54. Plaintiff was represented by counsel. A supplemental hearing was held on July 19, 2011 at which a vocational expert ("VE") testified. R. at 495-505. In a decision July 29, 2011, the ALJ denied Plaintiff's request for benefits. R. at 13-21. The Appeals Council denied Plaintiff's request for review rendering the ALJ's decision the final decision subject to judicial review. R. at 1-3.

II. ALJ's Decision

The ALJ evaluated Plaintiff's claims for DIB and SSI using the sequential processes set forth in 20 C.F.R. § 404.1520, 416.920. At the first step, the ALJ determined that Claimant had not engaged in substantial gainful activity since his onset date. At step two, the ALJ determined that Claimant suffered from the following severe impairment: right fourth finger injury, status post surgeries in 5/07, 8/07 and 3/08. At step three, the ALJ found that his impairments did not meet or equal the Listings of Impairments set forth in 20 C.F.R. pt. 404, subpt, P, app. 1. The ALJ concluded at step four that Plaintiff is unable to perform his past relevant work. At step five, the ALJ concluded that, given his residual functional capacity ("RFC"), Claimant was capable of performing jobs that existed in significant numbers in the national economy. Accordingly, he concluded that Claimant was not disabled. R. at 13-21.

III. Standard of Review

The role of this court on review is to determine whether substantial evidence supports the Commissioner's decision and whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g)(1994 & Supp. V 1999); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla, but less than a preponderance, of the evidence presented. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). It is such evidence that a reasonable mind might accept to support a conclusion, and must be sufficient to justify a refusal to direct a verdict if the case were before a jury. Hays, 907 F.2d at 1456 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). This court cannot try the case de novo or resolve evidentiary conflicts, but rather must affirm a decision supported by substantial evidence. Id.

IV. Discussion

Plaintiff argues that (1) the ALJ erred in relying on hypothetical jobs from the D.O.T. without affording counsel the opportunity to cross-examine the VE; and (2) the RFC is unsupported by medical evidence.

A. VE Hypothetical

Plaintiff argues that he was improperly not afforded the opportunity to cross examine a VE about hypothetical jobs the ALJ included in his findings at step five of the sequential evaluation. R. at 20-21. In this matter, the ALJ relied on the VE's responses to interrogatories dated April 11, 2011, as well as vocational testimony provided at the supplemental hearing. R. at 271-74, 501-02. Specifically, based on the VE evidence, the ALJ identified the following jobs an individual with Claimant's RFC could perform: Counter Clerk, Tanning Salon Attendant, Laminating Machine Offbearer, School Bus Monitor, and Surveillance System Monitor. R. at 20, 271-74, 501-03.

In her decision, the ALJ also indicated that she had reviewed the Dictionary of Occupational Titles and the Bureau of Labor Statistics and included other examples of jobs within Claimant's RFC including Furniture Retail Consultant, Boat Rental Clerk, Usher and Scaling Machine Operator. R. at 21-22. It is these jobs with which Plaintiff takes issue arguing that he did not have an opportunity to cross examine a VE on these jobs and that if he did, they would be eliminated based on the same reasons he claims that the others were eliminated at the supplemental hearing.

The Court does not find that the jobs discussed by the ALJ that were subject to cross-examination at the supplemental hearing suffer from flaws or should have been eliminated as Plaintiff contends. At the supplemental hearing, counsel questioned the VE by adding restrictions of the right dominant hand as well as lifting restrictions. R. at 499. As a result, the VE indeed ruled out the occupations in certain instances.[2] R. at 499-501. It is well-established, that in order for VE testimony to be helpful, it must fairly set out all of Claimant's impairments. See Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989). The VE's testimony at the supplemental hearing in which certain occupations were eliminated was not based on the RFC ultimately accepted by the ALJ.[3] As the Commissioner points out, the ALJ is free to reject restrictions in hypothetical questions which do not accurately reflect the Claimant's limitations. As discussed below, the Court finds the ALJ's RFC is supported by substantial evidence; and accordingly rejects Plaintiff's argument that the VE testimony based on the additional limitations suggested at the supplemental hearing ...

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