Graham v. Social Security Administration

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
VICKIE LEANNE GRAHAM, 	)
)
Plaintiff, 	)
)
) 	Case No. CIV-21-071-KEW
)
COMMISSIONER OF THE SOCIAL 	)
SECURITY ADMINISTRATION, 	)
)
Defendant. 	)
OPINION AND ORDER
Plaintiff 	Vickie 	Lee 	Graham, 	(the 	“Claimant”), 	requests
judicial review of the decision of the Commissioner of the Social
Security 	Administration, 	(the 	“Commissioner”), 	denying 	her
application for disability benefits under the Social Security Act.
The 	Claimant 	appeals 	the 	Commissioner’s 	decision, 	asserting 	that
the Administrative Law Judge, (“ALJ”), incorrectly determined she
was 	not 	disabled. 	For 	the 	reasons 	discussed 	below, 	it 	is 	the
finding 	of 	this 	Court 	that 	the 	Commissioner’s 	decision 	should 	be
and 	is 	REVERSED 	and 	the 	case 	REMANDED 	to 	the 	ALJ 	for 	further
proceedings.
Claimant’s Background
The 	Claimant 	was 	forty-nine 	(49) 	at 	the 	time 	of 	the 	ALJ’s
decision. 	She 	has 	a 	high 	school 	education 	and 	has 	worked 	in 	the
past 	as 	a 	patient 	insurance 	clerk 	and 	a 	claims 	adjuster. 	The
Claimant alleges that her inability to work began on May 19, 2018.
She claims this inability stems from neck and back pain, arthritis,
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high 	blood 	pressure, 	anxiety, 	depression, 	and 	post-traumatic
stress disorder.
Procedural History
On 	January 	22, 	2019, 	the 	Claimant 	applied 	for 	disability
insurance 	benefits 	under 	Title 	II 	(42 	U.S.C. 	§ 	401, 	et 	seq.) 	of
the 	Social 	Security 	Act 	and 	for 	supplemental 	security 	income
benefits under Title XVI (42 U.S.C. § 1381, et seq.) of the Social
Security 	Act. 	The 	Claimant’s 	applications 	were 	initially 	denied
and 	were 	denied 	on 	reconsideration. 	The 	Claimant 	filed 	a 	request
for 	a 	hearing, 	which 	was 	held 	on 	May 	14, 	2020. 	The 	hearing 	was
held telephonically due to COVID-19 and was before ALJ Jeffery S.
Wolfe. 	On 	June 	26, 	2020, 	ALJ 	David 	W. 	Engel, 	on 	behalf 	of 	ALJ
Wolfe, 	entered 	an 	unfavorable 	decision. 	The 	Claimant 	requested
review by the Appeals Council and the Council denied such request
on 	February 	1, 	2021. 	As 	a 	result, 	the 	decision 	of 	the 	ALJ
represents 	the 	Commissioner’s 	final 	decision 	for 	purposes 	of
further appeal. 20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The 	ALJ 	followed 	the 	five-step 	sequential 	process 	that 	the
social 	security 	regulations 	use 	to 	evaluate 	a 	disability 	claim.
See 	20 	C.F.R. 	§§ 	404.1520, 	416.920. 1 	At 	step 	two, 	the 	ALJ 	found
1 Step 	one 	requires 	the 	claimant 	to 	establish 	that 	he 	is 	not 	engaged 	in
substantial 	gainful 	activity, 	as 	defined 	by 	20 	C.F.R. 	§§ 	404.1510, 	416.910.
Step two requires that the claimant establish that he has a medically severe
impairment or combination of impairments that significantly limit his ability
to do basic work activities. 	20 C.F.R. §§ 404.1521, 416.921. If the claimant
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that 	the 	Claimant 	had 	the 	following 	severe 	impairments: 	“chronic
pain 	syndrome; 	degenerative 	disc 	disease 	of 	the 	cervical 	spine,
status-injury to cervical spine with surgery x 2; obesity; history
of 	back 	pain 	and 	knee 	pain 	and 	left 	carpal 	tunnel 	syndrome;
depression; 	anxiety; 	and 	posttraumatic 	stress 	disorder 	(PTSD).”
(Tr. 	19). 	At 	step 	four, 	the 	ALJ 	determined 	that 	the 	Claimant 	had
the following residual functional capacity (“RFC”):
“[The Claimant can] perform sedentary work as defined in
20 	CFR 	404.1567(a) 	and 	416.967(a). 	Specifically 	. 	. 	.
the 	Claimant 	can 	stand 	and 	walk 	two 	hours 	in 	an 	8-hour
workday, 	sit 	for 	6 	hours 	in 	an 	8-hour 	workday 	and 	lift
and carry less than 10 pounds frequently and hold up to
10 	pounds 	occasionally. 	Frequent 	use 	of 	the 	hands
bilaterally 	(frequent 	handling 	and 	fingering) 	and
frequent 	reaching. 	The 	claimant 	is 	limited 	to 	simple
routine 	tsks 	with 	routine 	supervision 	with 	only 	the
occasional 	contact 	with 	supervisor 	or 	coworkers 	and 	no
contact with the general public.
(Tr. 21). The ALJ then concluded that this RFC would not allow the
Claimant 	to 	return 	to 	her 	past 	relevant 	work. 	(Tr. 	28). 	The 	ALJ
then 	proceeded 	to 	step 	five. 	At 	this 	step 	she 	relied 	on 	the
Vocational 	Expert’s 	(“VE”) 	testimony 	and 	ultimately 	found 	that
is 	engaged 	in 	substantial gainful 	activity 	(step 	one) 	or 	if 	the 	claimant’s
impairment is not medically severe (step two), disability benefits are denied.
At step three, the claimant’s impairment is compared with certain impairments
listed 	in 20 	C.F.R. 	Pt. 	404, 	Subpt. 	P, 	App. 	1. 	A 	claimant 	suffering 	from 	a
listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation
proceeds to step four, where claimant must establish that he does not retain the
residual functional capacity (“RFC”) to perform his past relevant work. If the
claimant’s step four burden is met, the burden shifts to the Commissioner to
establish at step five that work exists in significant numbers in the national
economy 	which 	the 	claimant 	– 	taking 	into 	account 	his 	age, 	education, 	work
experience, 	and 	RFC 	– 	can 	perform. 	Disability 	benefits 	are 	denied 	if 	the
Commissioner shows that the impairment which precluded the performance of past
relevant work does not preclude alternative work. See generally, Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
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considering 	claimant's 	age, 	education, 	work 	experience, 	and 	RFC,
there 	are 	jobs 	that 	exist 	in 	significant 	numbers 	in 	the 	national
economy 	that 	the 	Claimant 	can 	perform. 	(Tr. 	28). 	Thus, 	the 	ALJ
found 	that 	the 	Claimant 	had 	not 	been 	under 	a 	disability 	from 	May
19, 2018, through the date of the decision. (Tr. 29).
Errors Alleged for Review
The 	Claimant 	only 	challenges 	the 	ALJ’s 	step 	five 	findings.
Specifically, she asserts that the ALJ did not meet his burden at
step five because he failed to address the Claimant’s post-hearing
objections and rebuttal evidence regarding the VE’s testimony.
Social Security Law and Standard of Review
The 	Social 	Security 	Act 	defines 	“disability” 	as 	the
“inability to engage in any substantial gainful activity by reason
of 	any 	medically 	determinable 	physical 	or 	mental 	impairment. . .”
42 	U.S.C. § 423(d)(1)(A). 	A 	claimant 	is 	disabled 	under 	the Social
Security 	Act 	“only 	if 	his 	physical 	or 	mental 	impairments 	are 	of
such 	severity 	that 	he 	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. 	. 	.” 42 	U.S.C. § 423(d)(2)(A).
Judicial review of the Commissioner’s final determination is
limited 	to 	two 	inquiries: 	first, 	whether 	the 	correct 	legal
standards 	were 	applied; 	and 	second, 	whether 	the 	decision 	was
supported by substantial evidence. Noreja v. Comm’r, SSA,952 F.3d.
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1172, 1177 (10th Cir. 2020). Substantial evidence is “more than a
scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 	1084 	(10th 	Cir. 	2007). 	“It 	means 	— 	and 	means 	only 	— 	‘such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Biestek v. Berryhill, 139 S.Ct. 1148, 1154
(2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). 	The 	court 	may 	not 	re-weigh 	the 	evidence 	nor 	substitute
its 	discretion 	for 	that 	of 	the 	agency. 	Casias 	v. 	Sec’y 	of 	Health
& Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless,
the 	court 	must 	review 	the 	record 	as 	a 	whole, 	and 	the
“substantiality of the evidence must take into account whatever in
the record fairly detracts from its weight.” Universal Camera Corp.
v. 	NLRB, 	340 	U.S. 	474, 	488 	(1951); 	see 	also, 	Casias, 	933 	F.2d 	at
800-01. 	The 	Commissioner’s 	decision 	will 	stand, 	even 	if 	a 	court
might 	have 	reached 	a 	different 	conclusion, 	as 	long 	as 	it 	is
supported 	by 	substantial 	evidence. 	White 	v. 	Barnhart, 	287 	F.3d
903, 908 (10th Cir. 2002).
Consideration of Post-Hearing Objections and Evidence
The 	Claimant 	believes 	that 	since 	the 	ALJ 	failed 	to 	address
the 	post-hearing 	objections 	and 	rebuttal 	evidence 	regarding 	the
VE’s 	testimony, 	that 	the 	ALJ’s 	decision 	must 	be 	reversed. 	This
Court 	agrees. 	The 	ALJ 	failed 	to 	apply 	the 	proper 	legal 	standards
by failing to meaningfully address the objections and explain his
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reasoning 	for 	rejecting 	them. 	Therefore, 	his 	decision 	is 	not
supported by substantial evidence and must be reversed.
At 	the 	hearing 	the 	ALJ 	asked 	the 	VE 	whether 	jobs 	existed 	in
the 	national 	economy 	for 	an 	individual 	with 	the 	Claimant’s 	age,
education, work experience, and RFC. (Tr. 51-59). The VE identified
two 	sedentary 	unskilled 	jobs 	that 	this 	hypothetical 	individual
could 	perform: 	document 	preparer 	and 	touch 	up 	screener. 	(Tr. 	54-
56).Following the hearing, the Claimant’s representative submitted
a post-hearing memorandum. This memorandum consisted of objections
to the VE’s testimony and evidence that the Claimant believes shows
that 	the 	jobs 	identified 	by 	the 	VE 	are 	not 	unskilled 	as 	they 	are
currently 	performed 	in 	the 	national 	economy. 	(Tr. 	367-87). 	The
evidence 	submitted 	included 	information 	from 	the 	Department 	of
Labor 	and 	a 	vocational 	opinion 	from 	Paula 	Santagati, 	which 	both
parties refer to as the Santagati report. (Tr. 375-76; 386).
The Social Security Regulations state that when a VE is used
the 	Claimant 	has 	“the 	right 	to 	review 	and 	respond 	to 	the 	VE
evidence prior to the issuance of a decision.” SSR 96-9p, 1996 WL
374185 (July 2, 1996). The Regulations also specify that the VE’s
opinion 	is 	not 	binding 	and 	“must 	be 	weighed 	along 	with 	all 	other
evidence.” 	Id. 	In 	this 	case, 	nothing 	in 	the 	ALJ’s 	opinion
indicates that he considered the post-hearing memorandum. In fact,
the 	only 	mention 	he 	ever 	makes 	about 	the 	memorandum 	is 	when 	he
states 	that 	he 	received 	it 	and 	considered 	it. 	(Tr. 	16). 	In 	his
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step-five 	analysis 	he 	simply 	states 	that 	“based 	on 	the 	testimony
of the [VE]” jobs existed in the national economy that the Claimant
could perform, therefore a finding of not disabled was appropriate.
(Tr. 	29). 	This 	statement 	fails 	to 	address 	if 	he 	considered 	the
post-hearing 	objections 	or 	evidence 	at 	step 	five, 	which 	is 	the
step they are relevant to. From this Court’s reading of the ALJ’s
decision, 	it 	is 	impossible 	to 	determine 	if 	the 	ALJ 	actually
considered 	the 	submitted 	objections 	and 	evidence 	as 	required 	by
the regulations.
The 	Commissioner 	asserts 	that 	the 	ALJ 	is 	not 	required 	to
address the Claimant’s objections because they were made after the
hearing. The Court is unpersuaded by this argument for two reasons.
First, 	the 	Commissioner 	asserts 	that 	the 	HALLEX 	does 	not 	require
the 	ALJ 	to 	rule 	on 	these 	objections. 	But 	the 	Claimant 	never
asserted that the HALLEX did require the ALJ to do so. The Claimant
relied 	on 	the 	language 	of 	SSR 	96-9p, 	as 	discussed 	above. 	The
Commissioner does not present any evidence or arguments related to
SSR 96-9p.
Second, 	the 	cases 	relied 	on 	by 	the 	Commissioner 	to 	support
the Commissioner’s assertion are not binding on this Court and are
factually 	distinct 	from 	the 	case 	before 	this 	Court. 	The
Commissioner 	relies 	on 	Brault 	v. 	Cov. 	Sec. 	Admin., 	683 	F.3d 	443
(2d. 	2012). 	In 	Brault, 	the 	claimant 	asserted 	that 	once 	he
challenged 	the 	VE 	evidence, 	that 	the 	ALJ 	must 	explain 	why 	the
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challenge 	was 	rejected. 	Id. 	at 	448. 	The 	Second 	Circuit 	assumed
that 	the 	ALJ 	did 	consider 	the 	objections 	and 	then 	rejected 	the
Claimant’s argument. Id.
Here, the Claimant presented objections, as well as evidence,
to rebut the VE’s testimony. This is unlike the claimant in Brault
who only presented broad objections. In Brault, the Second Circuit
also 	assumed 	that 	the 	ALJ 	considered 	the 	objections. 	But 	in 	this
case, 	the 	ALJ’s 	limited 	mention 	of 	the 	evidence 	is 	not 	enough 	to
determine if he considered the evidence that the Claimant presented
to rebut the VE’s testimony.
The 	Commissioner 	also 	argues 	that 	the 	Claimant 	has 	not
established 	any 	conflicts 	between 	the 	VE’s 	testimony 	and 	the
Dictionary of Occupational Titles. The Commissioner also contends
that 	the 	Santagati 	report 	is 	not 	rebuttal 	evidence. 	The 	Court
declines 	to 	address 	these 	arguments. 	They 	amount 	to 	nothing 	more
than 	post 	hoc 	rationalizations, 	which 	this 	Court 	cannot 	use 	as 	a
basis to affirm the ALJ’s decision. See, e.g., Haga v. Astrue, 482
F.3d 	1205, 	1207–08 	(10th 	Cir.2007) 	(“[T]his 	court 	may 	not 	create
or 	adopt 	post-hoc 	rationalizations 	to 	support 	the 	ALJ's 	decision
that are not apparent from the ALJ's decision itself.”) [citations
omitted]; 	Allen 	v. 	Barnhart, 	357 	F.3d 	1140, 	1142 	(10th 	Cir.2004)
(“Affirming 	this 	post 	hoc 	effort 	to 	salvage 	the 	ALJ's 	decision
would 	require 	us 	to 	overstep 	our 	institutional 	role 	and 	usurp
essential 	functions 	committed 	in 	the 	first 	instance 	to 	the
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administrative process.”). While the reasons that the Commissioner
provides 	may 	be 	persuasive, 	they 	were 	not 	presented 	by 	the 	ALJ.
The 	ALJ 	only 	mentioned 	the 	post-hearing 	objections 	and 	evidence
one 	time. 	(Tr. 	17). 	He 	provided 	no 	explanation 	or 	opinion 	as 	to
his 	consideration 	or 	rejection 	of 	this 	evidence. 	Therefore, 	we
have 	no 	way 	of 	knowing 	that 	this 	is 	what 	the 	ALJ 	intended 	or
thought when he did not discuss the evidence.
Because the ALJ failed to meaningfully address the Claimant’s
objections 	to 	the 	VE’s 	testimony 	and 	her 	rebuttal 	evidence, 	the
decision 	of 	the 	Commissioner 	must 	be 	reversed, 	and 	the 	case
remanded to the ALJ for further analysis as outlined above.
Conclusion
The 	decision 	of 	the 	Commissioner 	is 	not 	supported 	by
substantial 	evidence 	and 	the 	correct 	legal 	standards 	were 	not
applied. 	Therefore, 	this 	Court, 	in 	accordance 	with 	the 	fourth
sentence 	of 	42 	U.S.C. 	405(g), 	the 	ruling 	of 	the 	Commissioner 	of
the 	Social 	Security 	Administration 	should 	be 	and 	is 	REVERSED 	and
the 	case 	is 	REMANDED 	for 	further 	proceedings 	consistent 	with 	the
Opinion and Order.
IT IS SO ORDERED this 27th Day of March, 2023.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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