Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lawson v. Berryhill

United States District Court, D. Maryland

March 1, 2018

Duane Lawson
v.
Nancy A. Berryhill, Acting Commissioner of Social Security

          ORDER

         Dear Counsel:

         On February 17, 2017, the Plaintiff, Duane Lawson (“Mr. Lawson”), petitioned this Court to review the Social Security Administration's final decision to deny his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). (ECF No. 1.) The parties have filed cross-motions for summary judgment. (ECF Nos. 15 & 18.) These motions have been referred to the undersigned with the parties' consent pursuant to 28 U.S.C. § 636 and Local Rule 301.[1] I find that no hearing is necessary. See Loc. R. 105.6. This Court must uphold the decision of the agency if it is supported by substantial evidence and if the agency employed the proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). Following its review, this Court may affirm, modify, or reverse the Commissioner, with or without a remand. See 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89 (1991). Under that standard, I will deny both motions and remand the case for further proceedings. This letter explains my rationale.

         In his applications for DIB and SSI, Mr. Lawson alleged a disability onset date of December 15, 2009. (Tr. 198-207, 271.) His applications were denied initially and on reconsideration. (Tr. 129-33, 136-39.) A hearing was held before an Administrative Law Judge (“ALJ”) on April 26, 2013, and that ALJ found that Mr. Lawson was not disabled under the Social Security Act. (Tr. 15-29.) The Appeals Council denied Mr. Lawson's request for review (Tr. 1-4), and Mr. Lawson appealed the ALJ's decision to this Court. On February 12, 2015, this Court remanded the case for further proceedings. (Tr. 651-53.) On February 5, 2016, a different ALJ held a second hearing. (Tr. 605-50.) That ALJ issued a decision on June 27, 2016, finding that Mr. Lawson was not disabled under the Social Security Act. (Tr. 552-72.) The Appeals Council denied Mr. Lawson's request for review (Tr. 543-46), making the ALJ's June 27, 2016 decision the final, reviewable decision of the agency.

         The ALJ evaluated Mr. Lawson's claim for benefits using the five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Mr. Lawson was not engaged in substantial gainful activity, and had not been engaged in substantial gainful activity since December 15, 2009. (Tr. 557.) At step two, the ALJ found that Mr. Lawson suffered from the following severe impairments: carpal tunnel syndrome of the right hand, peripheral neuropathy of the upper extremities, and depression. (Id.) At step three, the ALJ found that Mr. Lawson's impairments, separately and in combination, failed to meet or equal in severity any listed impairment as set forth in 20 C.F.R., Chapter III, Pt. 404, Subpart P, App. 1 (“Listings”). (Tr. 559.) The ALJ determined that Mr. Lawson retained the RFC

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). He can lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for 6 hours in an 8 hour day; sit for 6 hours in an 8 hour day; never climb ladders, ropes, or scaffolds; frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; occasionally feel, handle and finger with the right dominant hand; has no limitation in the use of the left hand; is limited to the performance of routine, repetitive, simple tasks on a consistent basis, with only occasional interaction with the public, and in positions with little to no changes in the work setting day to day.

(Tr. 561.)

         At step four, relying on the testimony of a vocational expert (“VE”), the ALJ determined that Mr. Lawson was able to perform past relevant work as a housekeeper/cleaner. (Tr. 570.) At step five, the ALJ made an alternative finding that there are other jobs that exist in significant numbers in the national economy that Mr. Lawson can perform, including packer/sealer and marker. (Tr. 571-72.) Therefore, the ALJ found that Mr. Lawson was not disabled under the Social Security Act. (Tr. 572.)

         Mr. Lawson raises six issues in this appeal: (1) the ALJ erred in determining that Mr. Lawson was capable of past relevant work; (2) the ALJ failed to elicit a reasonable explanation for an apparent conflict between the VE's testimony and the Dictionary of Occupational Titles[2]; (3) the ALJ did not properly account for Mr. Lawson's moderate difficulties in maintaining concentration, persistence, and pace as required by Mascio, 780 F.3d 632; (4) the ALJ did not give the proper weight to Mr. Lawson's treating physician's opinions; (5) the ALJ did not adequately explain his finding that Mr. Lawson has no limitation in the use of his left hand; and (6) the transcript of the April 26, 2013 administrative hearing was materially altered. (ECF No. 15-1.)

         After a careful review of the ALJ's opinion and the evidence in the record, I find that the ALJ erred in relying on the VE's testimony to conclude that Mr. Lawson was capable of performing past relevant work as a housekeeper/cleaner or other work as a packer/sealer or marker. Because of this, the ALJ's findings at step four and five are not based on substantial evidence. I also find that the ALJ did not adequately account for Mr. Lawson's limitations in concentration, persistence, and pace in his RFC determination. Because the ALJ did not properly assess Mr. Lawson's RFC, the findings made in reliance on that RFC cannot be said to be based on substantial evidence. In light of these findings, I decline to address Mr. Lawson's other arguments.

         Mr. Lawson argues that the ALJ failed to elicit a reasonable explanation for the apparent conflict between the VE's testimony and the DOT. (ECF No. 15-1 at 15-16.) During the February 5, 2016 hearing, the ALJ presented the VE with a series of hypothetical questions that were consistent with the RFC assessment. (Tr. 641-42.) In response to the questions, the VE testified that a hypothetical individual with limitations mirroring those of Mr. Lawson could perform a job as a housekeeper/cleaner (DOT 323.687-014). The VE noted that he was varying from the DOT “because the DOT mentions reaching and handling but doesn't specifically mention whether it's bimanual or unilaterally that the person needs to do that.” (Id.) The VE noted that “there are one-armed individuals who do housekeeping cleaning work.” (Tr. 642.) The VE further testified that a hypothetical individual could also perform jobs as a packer/sealer (DOT 920.685-026) or as a marker (DOT 209.587-034), referring back to his explanation for varying from the DOT. (Id.) The VE testified that the packer/sealer job had more than 1, 000 positions available locally and more than 300, 000 available nationally. (Id.) The marker job had more than 1, 000 positions available locally and more than 100, 000 available nationally. (Id.)

         The Commissioner assumes, for the sake of argument, that “the ALJ did not perform a proper analysis regarding [Mr. Lawson's] ability to return to his past relevant work.” (ECF No. 18-1 at 4.) This Court will do likewise and assume that Mr. Lawson's argument that his past work as a housekeeper qualifies as an unsuccessful work attempt, and not substantial gainful activity. (See ECF No. 15-1 at 15.) Because the ALJ made findings at step five, the ALJ's step four error is not in itself a basis for remand.

         At step five, the Commissioner bears the burden to prove that the claimant is able to perform work that exists in the national economy. See, e.g. Pearson, 810 F.3d at 207. To determine whether the Commissioner meets it burden, the ALJ “relies primarily” on the DOT, and “may also use a vocational expert to address complex aspects of 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. (internal citations and quotation marks omitted). If a vocational expert's testimony conflicts with the DOT, the ALJ must “elicit a reasonable explanation for [the conflict] and resolve conflicts between the expert's testimony and the DOT.” Id. at 208 (internal quotation marks omitted). If the ALJ does not elicit a reasonable explanation for the conflict, the ALJ may not rely on the vocational expert's testimony to support a determination about whether the claimant is disabled. Id.

         In Pearson, a vocational expert testified that a claimant was capable of performing three occupations available in sufficient numbers in the national economy. Id. at 210. For each of the three occupations, the DOT listed frequent reaching as a requirement. The ALJ found that the claimant's nondominant arm could only occasionally reach upward. Based on the DOT's broad definition of reaching, the Fourth Circuit held that the occupations identified by the expert may require frequent bilateral overhead reaching. Because of the apparent conflict between the vocational expert's testimony and the DOT, the ALJ was required to elicit a reasonable “explanation from the expert as to whether these occupations do, in fact, require frequent bilateral overhead reaching, ” before relying on the expert's testimony. Id. at 211. In addition, the Fourth Circuit noted that “it is not enough that some positions [may] exist in which the worker need not frequently reach overhead with both arms.” Id. The ALJ must elicit evidence regarding “how many of these positions do not require frequent bilateral overhead reaching” before concluding that such work exists in significant numbers in the national economy. Id. (“If there are a sufficient number of these positions that do not require frequent bilateral overhead reaching, the ALJ can properly find Pearson not disabled.”)

         Here, the VE identified an apparent conflict between his testimony and the DOT, but his explanation was not a reasonable one for two reasons. First, although the VE testified that “there are one-armed individuals who do housekeeping [and] cleaning work, ” this is not sufficient information for the ALJ to conclude that there is a “reasonable explanation” for the conflict between the VE's testimony and the DOT. This is most plainly evident with respect to the occupation of housekeeper/cleaner, which includes duties such as making beds, moving furniture, hanging drapes, and rolling carpets. It is difficult to imagine how a person with limitations identical to Mr. Lawson (who cannot tie his shoes, see Tr. 630, 636) could hang drapes or move furniture on a full-time basis relying almost solely on the use of his non-dominant arm and hand. It may be that the housekeeper occupation does not usually require persons to complete these tasks, and the VE could have explained this to the ALJ. But the ALJ made no such inquiry and the VE gave no such explanation. The same goes for the occupations of packer and marker, both of which require at least frequent reaching and handling. Mr. Lawson suggests that if a person is only capable of reaching or handling with their ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.