Hughart v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JOSEPH WAYNE HUGHART, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 22-cv-48-DES
)
MARTIN O’MALLEY, 1 	)
Commissioner of Social Security, 	)
)
Defendant. 	)
OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Joseph Wayne Hughart (“Claimant”) seeks
judicial review of a final decision by the Commissioner of the Social Security Administration
(“Commissioner”) denying his claim for disability insurance benefits under Title II of the Social
Security Act (the “Act”). For the reasons explained below, the Court REVERSES and REMANDS
the Commissioner’s decision denying benefits.
I. 	Statutory Framework and Standard of Review
The Act defines “disability” as the “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). To be deemed disabled under the Act, a claimant’s
impairment(s) must be “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).
1 Effective December 20, 2023, Martin O’Malley, Commissioner of Social Security, is substituted as the
defendant in this action pursuant to Fed. R. Civ. P. 25(d). No further action is necessary to continue this
suit by reason of 42 U.S.C. § 405(g).
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 1 of 10

2
Social security regulations implement a five-step sequential process to evaluate a disability
claim. 	20 C.F.R. § 404.1520(a)(4). 	This process requires the Commissioner to consider:
(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers
from a medically determinable severe impairment(s); (3) whether such impairment meets or
medically equals a listed impairment set forth in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) whether
the claimant can perform his past relevant work considering the Commissioner’s assessment of
the claimant’s residual functional capacity (“RFC”); and (5) whether the claimant can perform
other work considering the RFC and certain vocational factors. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
The claimant bears the burden of proof through step four, but the burden shifts to the
Commissioner at step five. Lax v. Astrue, 489 F.3d 1080, 1084. If it is determined, at any step of
the process, that the claimant is or is not disabled, evaluation under a subsequent step is not
necessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
A district court’s review of the Commissioner’s final decision is governed by 42 U.S.C.
§ 405(g). 	The scope of judicial review under § 405(g) is limited to determining whether the
Commissioner applied the correct legal standards and whether the Commissioner’s factual findings
are supported by substantial evidence. See Noreja v. Soc. Sec. Comm’r, 952 F.3d 1172, 1177 (10th
Cir. 2020). 	Substantial evidence is more than a scintilla but means only “‘such 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). In
conducting its review, the Court “may neither reweigh the evidence nor substitute [its] judgment
for that of the agency.” 	Noreja, 952 F.3d at 1178 (quotation omitted). 	Rather, the Court must
“meticulously examine the record as a whole, including anything that may undercut or detract from
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 2 of 10

3
the ALJ’s findings in order to determine if the substantiality test has been met.” Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted).
II. 	Claimant’s Background and Procedural History
In October 2019, Claimant applied for disability insurance benefits under Title II of the
Act. (R. 17, 187-88). Claimant alleges he has been unable to work since an amended onset date
of September 13, 2018, due to arthritis in his feet, gall bladder problems, arthritis and limited range
of motion in his shoulders, pain and limited range of motion in his left knee, high blood pressure,
back problems, and irritable bowel syndrome. (R. 37, 187, 254). Claimant was 50 years old on
the date of the ALJ’s decision. (R. 24, 187). He completed two years of college and has past work
as a warden, police officer, and chief of police. (R. 23, 53, 255).
Claimant’s claim for benefits was denied initially and on reconsideration, and he requested
a hearing. (R. 62-84, 120-21). ALJ Carol Lynn Latham conducted an administrative hearing and
issued a decision on May 10, 2021, finding Claimant not disabled. (R. 14-24, 31-59). The Appeals
Council denied review on December 20, 2021 (R. 3-8), rendering the Commissioner’s decision
final. 20 C.F.R. § 404.981. Claimant filed this appeal on February 10, 2022. (Docket No. 2).
III. 	The ALJ’s Decision
The ALJ found at step one that Claimant had not engaged in substantial gainful activity
since his amended alleged onset date of September 18, 2018.2 (R. 19). At step two, the ALJ found
Claimant had the severe impairments of residual effects of left shoulder SLAP (torn glenoid
labrum in the shoulder joint) post-surgery; residual effects of meniscal tear in the left knee post-
surgery; and mild rotator cuff tendonitis, low-grade partial rotator cuff tear, and mild arthritic
2 In her decision, the ALJ indicates Claimant, through counsel, amended his onset date to September 18,
2018 (R. 17); however, Claimant’s counsel indicated at the administrative hearing that he would like to
amend the onset date to September 13, 2018 (R. 37).
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 3 of 10

4
changes to the glenoid humeral joint in the right shoulder with residual effects from surgery.
(R. 19-20). At step three, the ALJ found Claimant’s impairments did not meet or equal a listed
impairment. (R. 20).
Before proceeding to step four, the ALJ determined Plaintiff had the RFC to perform less
than the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a) with the following
non-exertional limitations:
“[N]o more than frequent climbing of ramps or stairs; no more than occasional
climbing of ladders, ropes or scaffolds; no more than frequent kneeling or
crouching; no more than occasional crawling; and no more than occasional
overhead reaching bilaterally.
(R. 20-21). The ALJ provided a summary of the evidence that went into this finding. (R. 21-23).
Based on the testimony of a vocational expert (“VE”) as per the Dictionary of Occupational
Titles (“DOT”), the ALJ concluded at step four that Claimant could return to his past relevant work
as a warden and chief of police as generally performed in the national economy. 	(R. 23).
Accordingly, the ALJ concluded Claimant was not disabled. (R. 24).
IV. 	Issues Presented
Claimant asserts the ALJ erred by: (1) failing to consider and account for Claimant’s
hemorrhoids in the RFC, (2) finding him capable of returning to his past composite work as a
warden and chief of police as generally performed, and (3) failing to resolve a conflict between
the VE’s testimony and the DOT regarding the exertional requirements of Claimant’s past relevant
work as a warden and chief of police. The Court agrees the ALJ failed to resolve a conflict between
the VE’s testimony and the DOT regarding the exertional requirements of Claimant’s past relevant
work.
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 4 of 10

5
V. 	Analysis
At step four of the sequential analysis, the ALJ considers the claimant’s RFC and assesses
his ability to return to past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ is required to
make specific findings in three phases at this step. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th
Cir. 1996). In phase one, the ALJ evaluates the claimant's mental and physical RFC. Id. In phase
two, the ALJ examines the demands of the claimant's past relevant work. Id. Finally, in phase
three, the ALJ ascertains “whether the claimant has the ability to meet the job demands found in
phase two despite the [RFC] limitations found in phase one.” Id. (citing Social Security Ruling
(“SSR”) 82-62, 1982 WL 31386, at *3 (Jan. 1, 1982)). The claimant has the burden at step four to
show he is unable to perform his past relevant work “both as [he] actually performed that work in
the past and as it is generally performed in the national economy.” Adams v. Colvin, 616 F. App'x
393, 394 (10th Cir. 2015) (unpublished). If past relevant work remains possible, the analysis stops
with a finding of not disabled. 20 C.F.R. § 404.1520(a)(4)(iv).
In this case, the ALJ determined that Claimant’s past relevant work as a warden and a chief
of police was sedentary “according to classifications found in the [DOT].” 	(R. 23). 	Claimant
argues this determination is not supported by substantial evidence. Specifically, Plaintiff points to
an inconsistency between the DOT classification for his past relevant work as a warden and a chief
of police and the VE’s testimony regarding the exertional level of such jobs as generally performed
in the national economy and asserts the ALJ failed to explain how she reconciled these conflicting
classifications when evaluating Claimant’s ability to perform his past relevant work at step four.
(Docket No. 12 at 6-10). The Court agrees.
The Court finds there is unambiguously a conflict in the record between the VE’s testimony
and the DOT regarding the exertional requirements of the warden and chief of police jobs. As set
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 5 of 10

6
forth above, Claimant’s past relevant work as a warden and as a chief of police is classified as
sedentary in the DOT. See DOT § 187.117-018, 1991 WL 671347 (4th ed. 1991) (warden); DOT
§ 375.117-010, 1991 WL 673118 (4th ed. 1991) (police chief). 	When asked to summarize
Claimant’s past jobs, as outlined in the DOT and as actually performed, the VE testified as follows:
A “He was a warden, it’s sedentary . . . . He was a police officer, medium . . . . And
he was a chief of police, sedentary . . . . 	The job as a police officer as actually
performed and as described in the DOT . . . are accurate. I take exception to the
warden job, it being sedentary. 	I think it’s closer to medium because when a
prisoner goes out of control . . . it doesn’t matter whether you’re the warden or
anyone else, in the vicinity to get that prisoner back under control. It’s not a
sedentary position . . . . I think the same thing holds true for the chief of police.
Q Well, is it your position that the chief of police is closer to the medium level as well?
A I do.
(R. 53-54). The VE later affirmed this testimony by stating:
A There’s no way in god’s earth that a warden is going to be sedentary. At light at the
very best. Because he’s always walking around.
(R. 58). Because the VE referred to Claimant’s past work in a general sense, it is clear to the Court
that the VE testified the jobs as generally performed in the national economy were performed at a
higher exertional level than indicated in the DOT.
The ALJ posed a hypothetical question to the VE matching the RFC set forth above, and
the VE testified that a hypothetical person with Claimant’s age, education, and work history could
perform the jobs of warden and chief of police “as defined in the DOT” but not “as actually
performed.” (R. 54). Based on this testimony, the ALJ concluded Claimant could return to his
past relevant work as a warden and chief of police as generally performed in the national economy.
(R. 23).
The Court agrees the ALJ failed to reconcile critical discrepancies between the DOT and
the VE’s testimony, thus the ALJ’s determination is not supported by substantial evidence. The
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 6 of 10

7
Commissioner correctly points out that the “ALJ may rely on the [DOT’s] job description for
claimant’s job category as presumptively applicable to a claimant’s prior work.” (Docket No. 16
at 12) (quoting Andrade v. Sec’y of Health and Hum. Servs., 985 F.2d 1045, 1051 (10th Cir. 1993).
Nonetheless, “a claimant may overcome the presumption that the [DOT’s] entry for a given job
title applies to him by demonstrating that the duties in his particular line of work were not those
envisaged by the drafters of the category.” Andrade, 985 F.2d at 1051. The VE’s testimony that
the warden and police chief jobs are “not sedentary,” but rather “closer to medium” meets this
burden.
Notably, the DOT is not vested with the force of a presumption, but rather is merely
evidence on an equal footing with the VE’s opinion when there is a conflict. See SSR 00-4p, 2000
WL 1898704, at *2 (Dec. 4, 2000) (“Neither the DOT nor the VE . . . evidence automatically
‘trumps’ when there is a conflict.”). The regulations also plainly state that a VE is permitted to
testify regarding the physical demands of a claimant’s past relevant work as generally performed
in the national economy. See 20 C.F.R. § 404.1560(b)(2) (“A [VE] . . . may offer relevant evidence
within his or her expertise or knowledge concerning the physical or mental demands of a
claimant’s past relevant work, either as the claimant actually performed it or as generally
performed in the national economy.”). 	Thus, the DOT and the VE’s testimony are competent
evidence and the Court must decide whether the ALJ resolved the conflict between them in a
manner that comports with applicable law. Richardson v. Perales, 402 U.S. 389, 399 (1971) (trier
of fact has the duty to resolve conflicting evidence); Haga v. Astrue, 482 F.3d 1205, 1208 (10th
Cir. 2007) (same).
The ALJ’s duty to develop the record includes questioning the VE about the source of his
opinions and any deviations from publications such as the DOT. Haddock v. Apfel, 196 F.3d 1084,
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 7 of 10

8
1091 (10th Cir. 1999). As such, “the ALJ must investigate and elicit a reasonable explanation for
any conflict between the [DOT] and expert testimony before the ALJ may rely on the expert's
testimony as substantial evidence to support a determination of nondisability.” Id.; see also SSR
00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (“When there is an apparent unresolved conflict
between VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for
the conflict before relying on the VE . . . evidence to support a determination or decision about
whether the claimant is disabled.”). However, SSR 00-4p focuses on circumstances where an ALJ
adopts a VE’s testimony over the DOT; it is silent as to the circumstances present in this case,
where the ALJ relied on the DOT over a directly contrary VE opinion. 	Nonetheless, when
considered in conjunction with SSR 82-62, as well as with the relevant regulations, SSR-004p does
not mean that an ALJ can ignore a conflict between the DOT and the opinion of a qualified VE,
fail to explore the reasons for the conflict, and then rely on the DOT without explanation.
In this case, the ALJ seemed to recognize there was a conflict, but failed to recognize what
the conflict was. For example, when the ALJ asked the VE if his testimony was consistent with
the DOT, the VE replied, “Yes . . . with the exception of my discussion about . . . as jobs are
actually performed . . . and the way they were defined in the DOT.” Then, in an effort to resolve
such conflict, the ALJ stated in her decision that the VE’s testimony was consistent with the DOT
“except as to . . . the characterization of the above jobs as actually performed . . . . This part is
based upon the [VE’s] education, training and professional experience working in the vocational
field.” (R. 23). The ALJ then concluded that Claimant was able to perform the jobs of warden
and chief of police “as generally performed according to the [DOT], despite the [VE’s] testimony
that those jobs as actually performed by the claimant were closer to the medium exertional level.”
(emphasis added). 	Missing from the ALJ’s decision is both an understanding that the VE was
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 8 of 10

9
referring to a conflict between the DOT and the way that the jobs were generally performed, not
as actually performed by the claimant, as well as a discussion regarding how she reached the
decision to credit the DOT over the VE’s opinion that the warden and chief of police jobs are
generally performed closer to the medium level. 	This lack of explanation is contrary to the
mandate that a decision regarding a claimant’s “[p]ast [r]elevant [o]ccupation” must clearly
explain “how specific evidence leads to a conclusion” and must “reconcile any significant
inconsistencies.” 	SSR 82-62, at *3-4. 	Thus, although the ALJ is “entitled to resolve any
evidentiary conflicts in the record,” Haga, 482 F.3d at 1208, the ALJ’s failure to explain why she
disregarded the VE’s hearing testimony regarding the exertional level of Claimant’s past relevant
work a generally performed and instead relied on the DOT constitutes error.
In sum, the Court finds that the ALJ erred in determining Claimant could return to his past
work as a warden and chief of police because she failed to properly consider the testimony of a
qualified VE that, as generally performed, such jobs can only be performed by an individual who
is capable of medium work. The ALJ failed to recognize such conflict existed and failed include
the mandatory written rationale that reconciles “any significant inconsistencies.” SSR 82-62, at
*4. Accordingly, the ALJ’s step four determination that Claimant could return to his past relevant
work as a warden and chief of police as generally performed in the national economy is not
supported by substantial evidence.
VI. 	Conclusion
For the foregoing reasons, the Commissioner’s decision finding Claimant not disabled is
REVERSED and REMANDED for proceedings consistent with this Opinion and Order.
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 9 of 10

10
SO ORDERED this 21st day of March, 2024.
______________________________________
D. EDWARD SNOW
UNITED STATES MAGISTRATE JUDGE
6:22-cv-00048-DES Document 20 Filed in ED/OK on 03/21/24 Page 10 of 10