Smith v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL ACTION NO. 1:23-CV-00303-KDB

TERESA B. SMITH,

Plaintiff,

v. ORDER

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

THIS MATTER is before the Court on Plaintiff Teresa B. Smith’s Complaint (Doc. No.

1), Plaintiff’s Opening Brief (Doc. No. 5), Defendant Commissioner’s Brief (Doc. No. 6), and

Plaintiff’s Reply Brief (Doc. No. 7). Smith seeks judicial review of an unfavorable administrative

decision denying her application for disability benefits under the Social Security Act. The Court

has carefully considered this motion, the parties’ briefs, the administrative record, and the

applicable legal authority. While the Court affirms the ALJ decision on several disputed issues,

the Court finds that it must REMAND this matter for further proceedings to obtain additional

information from the consultative examiner brought in to evaluate the Plaintiff.

I. LEGAL STANDARD

The legal standard for this Court's review of social security benefit determinations is well

established. See Shinaberry v. Saul, 952 F.3d 113, 120 (4th Cir. 2020).

The Social Security Administration (SSA) provides benefits to

individuals who cannot obtain work because of a physical or mental

disability. To determine whether an applicant is entitled to benefits,

the agency may hold an informal hearing examining (among other

things) the kind and number of jobs available for someone with the

applicant's disability and other characteristics. The agency's factual

findings on that score are ‘conclusive’ in judicial review of the

benefits decision so long as they are supported by ‘substantial

evidence.’

Biestek v. Berryhill, 139 S. Ct. 1148, 1151-52, 203 L.Ed.2d 504 (2019) (quoting 42 U.S.C. §

405(g)).

“Under the substantial-evidence standard, a court looks to an existing administrative record

and asks whether it contains sufficient evidence to support the agency's factual

determinations.” Id. at 1154 (internal quotation marks and alteration omitted). “[T]he threshold for

such evidentiary sufficiency is not high. Substantial evidence ... is more than a mere scintilla.1 It

means—and means only—such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (internal quotation marks and citations omitted). Accordingly, this

Court does not review a final decision of the Commissioner de novo, Smith v. Schweiker, 795 F.2d

343, 345 (4th Cir. 1986), and must affirm the Social Security Administration's disability

determination “when [the] ALJ has applied correct legal standards and the ALJ's factual findings

are supported by substantial evidence.” Shinaberry, 952 F.3d at 120 (internal citations

omitted); see also Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Johnson v. Barnhart,

434 F.3d 650, 653 (4th Cir. 2005) (“Where conflicting evidence allows reasonable minds to differ

as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].”).

1 As the Fourth Circuit has noted, “[s]tandards are easy to recite, but harder to apply. Part

of that difficulty ... lies with confusing terminology like ‘a scintilla of evidence.’ After all, what in

the world is a ‘scintilla?’ ... [D]ating back to the nineteenth century, courts have struggled with the

‘distinction between what is a scintilla’ and what is not. Boing v. Raleigh & G.R. Co., 87 N.C. 360

(N.C. 1882) (remarking that the distinction ‘is so narrow that it is often very difficult for a court

to decide upon which side of the line’ evidence falls). Recognizing this difficulty, current South

Carolina Supreme Court Justice John C. Few once remarked, in jest, that ‘scintilla is Latin for

“whatever a judge wants it to mean.”’ ... To overcome the vagaries inherent in the term ‘scintilla,’

courts should not only recite our well-settled standards ... but also actively engage with the

[relevant underlying evidence] in analyzing the arguments of the parties.” Sedar v. Reston Town

Ctr. Prop., LLC, 988 F.3d 756 (4th Cir. 2021).

Thus, this Court may not weigh the evidence again, nor substitute its judgment for that of

the Commissioner, assuming the Commissioner's final decision is supported by substantial

evidence. See Hays, 907 F.2d at 1456. “In reviewing for substantial evidence” in support of an

ALJ's factual findings, “[the reviewing court] do[es] not undertake to reweigh conflicting

evidence, make credibility determinations, or substitute [its] judgment for that of the

ALJ.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation marks and

alteration omitted). Rather, “[w]here conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled,” the court defers to the ALJ's decision. Id. (internal quotation

marks omitted); Shinaberry, 952 F.3d at 123. This is true even if the reviewing court disagrees

with the outcome—so long as there is “substantial evidence” in the record to support the final

decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982). However, notwithstanding

this limited standard of review of the Commissioner's factual determinations, in all cases the Court

must always ensure that proper legal standards are being followed.

II. FACTS AND PROCEDURAL HISTORY

On July 14, 2016, Smith filed an application for a period of disability and disability

insurance benefits, alleging that she had been disabled since April 8, 2016. (AR 24). Her

application was denied on its first review and then again upon reconsideration. Id. After conducting

two hearings, the Administrative Law Judge (“ALJ”) denied Plaintiff’s application in a decision

dated March 28, 2019. (AR 24-33). The Appeals Council denied Smith’s request for review and

thus the ALJ’s decision stands as the final decision of the Commissioner. (AR 9). Plaintiff timely

sought judicial review of that decision under 42 U.S.C. § 405(g). (Doc. No. 1).

1. The Commissioner’s Decision

The ALJ followed the required five-step sequential evaluation process established by the

Social Security Administration (“SSA”) to determine whether Smith was disabled under the law

during the relevant period.2 At step one, the ALJ determined that Plaintiff had not engaged in

substantial activity since April 8, 2016. (AR 26).

At step two, the ALJ determined that Smith had medically determinable impairments that

significantly limited her ability to perform basic work activities, specifically “Guillain-Barre

syndrome and cervical degenerative disc disease.” (AR 26). The ALJ determined that Smith’s

other impairments, including anxiety and depression, were non-severe based on the four broad

areas of mental functioning set out in the disability regulations for evaluating mental disorders and

in the Listing of Impairments (20 C.F.R., Part 404, Subpart P, Appendix 1). (AR 27-28). That is,

they caused no more than “mild” limitation in any functional areas, and Smith did not allege work-

related limitations that were caused by any mental impairment. Id.

At step three, however, the ALJ decided that Smith’s impairments did not meet or

medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (20

C.F.R. 404.1520(d), 404.1525 and 404.1526). The ALJ specifically found that there were no

listings dealing with Guillain-Barre syndrome. (AR 28). Also, the ALJ found that Smith’s

2 The required five-step sequential evaluation required the ALJ to determine: (1) whether

the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a

severe impairment; (3) if so, whether the impairment (or combination of impairments) met or

equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments)

prevented the claimant from performing past relevant work; and (5) if so, whether the impairment

(or combination of impairments) prevented the claimant from performing any other jobs available

in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) and 404.1520(a)-(g).

The claimant has the burden of production and proof in the first four steps, but at step five the

Commissioner must prove the claimant can perform other work in the national economy despite

his limitations. Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015).

neurological symptoms of extremity pain, numbness, and weakness did not meet the criteria set

forth under Listing 11.00 (neurological disorders) or Listing 14.00 (immune system disorder). Id.

Before proceeding to step four, the ALJ found that Smith had the following residual

function capacity (“RFC”): “to perform medium work as defined in 20 CFR 404.1567(c) and

416.967(c) except the claimant is limited to frequent climbing ladders, ropes, scaffolds, ramps or

stairs. She can frequently stoop, crouch, kneel or crawl.” (AR 28). The ALJ then reviewed Smith’s

testimony and the evidence and found that her determinable impairments could reasonably be

expected to cause the alleged symptoms. (AR 29). However, the ALJ found that Smith’s statements

concerning the intensity, persistence, and limiting effects of the symptoms were not consistent

with the medical history and medical evidence in the record. Id. The ALJ reviewed prior medical

opinions, including the consultative examination and the opinions of the State agency consultants.

(AR 29-32). He also explained how much weight was given to each report and the reasoning for

assigning such weight. (AR 30-31).

At step four, the ALJ accepted the vocational expert’s (“VE”) testimony and found that

Smith was able to perform her past relevant work (“PRW”) as a heavy equipment operator and as

an institutional superintendent. (AR 32). The ALJ listed the job of heavy equipment operator as

medium, SVP 6 work, and the job of institutional superintendent as medium, SVP 7 work, as

actually and generally performed. Id.

The ALJ did not address step five. The ALJ therefore found that Smith was not disabled

under the Social Security Act from April 8, 2016, through the date of the decision. (AR 33).

III. DISCUSSION

Plaintiff argues that the ALJ made several errors related to resolving allegedly conflicting

evidence, whether Plaintiff’s prior work was a “composite job,” and fully developing the record.

(See Doc. No. 5 at 7).

A. The ALJ’s Alleged Errors Related to Her PRW and RFC

Smith argues that the ALJ did not meet the applicable standards for considering the

Plaintiff’s disability application when he (1) failed to resolve conflicts about whether Smith could

perform her PRW, (2) did not consider whether Smith’s PRW was a composite job, and (3) did

not ask Smith about her anxiety, depression, and insomnia. Id. at 7-16. And, according to Plaintiff,

these errors were made worse because of the ALJ’s obligations to be more thorough with respect

to an unrepresented claimant.

Smith first claims that the ALJ failed to clarify conflicts in the evidence. The primary

conflict that Smith alleges is that, in her hearing, Smith said she had to lift “parts and stuff” that

were more than fifty pounds, but not daily. (AR 44). However, her RFC qualifies her for medium

work, which “involves lifting no more than 50 pounds at a time.” 20 C.F.R. §§ 404.1567(c),

416.967(c). So, the Plaintiff argues that her testimony and RFC are inconsistent. Further, she

alleges that this inconsistency needed to be resolved; otherwise, she could not perform her PRW

as an institutional superintendent. (Doc. No. 5 at 10). In response, Defendant argues that the RFC

was consistent with the ALJ’s determination that Smith could perform her PRW as it was

customarily (rather than actually) performed. (Doc. No. 6 at 10).

An ALJ may base his findings concerning a plaintiff’s PRW either on the job as the plaintiff

actually performed it or as the job is customarily performed as required by employers in the

national economy. SSR 82-61, 1982 SSR LEXIS 31 (Jan. 1, 1982).

A former job performed in by the claimant may have involved

functional demands and job duties significantly in excess of those

generally required for the job by other employers throughout the

national economy. Under this test, if the claimant cannot perform

the excessive functional demands and/or job duties actually required

in the former job but can perform the functional demands and job

duties as generally required by employers throughout the economy,

[she] should be found to be ‘not disabled.’

Id.; see Chavez v. Saul, 2020 U.S. Dist. LEXIS 92323 (W.D.N.C. Apr. 28, 2020). Here, the ALJ

based his denial decision on the position of institutional superintendent as it is customarily

performed as required by employers in the national economy. In making the decision to qualify

Smith’s heavy equipment operator and institutional superintendent jobs as Smith’s PRW, the ALJ

relied on the testimony and answers to hypothetical questions from the vocational expert (“VE”),

Dr. Sumpter. The VE defined the role of institutional superintendent at medium exertion. (AR

46).3 When asked a hypothetical question that included Smith’s RFC restrictions, the VE testified

that such a person could perform the PRW as customarily performed. (AR 48). Therefore, there

was substantial evidence, based on Smith’s PRW as customarily rather than actually performed,

that Plaintiff could perform her PRW (assuming the accuracy of the RFC).

Second, Smith argues that the ALJ did not ask sufficient questions to determine whether

her PRW was a composite job. (Doc. No. 5 at 11). A claimant’s past relevant work “may be a

composite job if it takes multiple DOT occupations to locate the main duties of the [PRW] as

described by the claimant.” Social Security Administration Program Operations Manual System

(“SSA POMS”) DI 25005.020(B). If a job is determined to be a composite job, an ALJ may “find

3 Plaintiff points to another potential conflict in the testimony of the VE. The VE

erroneously labeled the institutional superintendent position as medium exertion. (AR 46).

However, the position is defined by the Dictionary of Occupational Titles (“DOT”) as light

exertion. DOT 182.683-010. However, Defendants correctly argue that, based on her medium

exertion RFC, Smith can perform light exertion as well as medium exertion. Thus, there is no

conflict related to the defined “exertion” of the position.

the claimant capable of performing the composite job only if he or she can perform all parts of the

job.” Id. Additionally, “[a] composite job does not have a DOT counterpart, so [it is not]

evaluate[ed] as part of step 4 considering work ‘as generally performed in the national economy.’”

Id. Smith testified that in her role as a service manager, she had to lift the back of a truck with a

tractor and pick up “parts and stuff.” (AR 44). The VE “did not find the title for what she said her

job was” and classified it as an institutional (construction) superintendent (DOT 182.167-026).

(AR 46).

Though the DOT description of the job does not include the duties of using a tractor to pick

up “parts and stuff,” this does not mean that the ALJ should have considered whether her PRW

was a composite job. Smith’s past work does not combine multiple distinct positions as defined

under the DOT. See Carothers v. Saul, 2019 U.S. LEXIS 174696, at *10 (W.D.N.C. Oct. 8, 2019)

(finding that the ALJ erred when he did not make findings about whether a position was a

composite job even though it combined two distinct positions under the DOT with different duties

and exertion levels). Additionally, the VE described the role using only the institutional

superintendent DOT classification. See Jones v. Colvin, 2016 U.S. Dist. LEXIS 24959, at *13

(E.D. Va. Feb. 4, 2016) (remanding the case when the ALJ did not make findings about whether a

position was a composite job after the VE had described one position as two different DOT

classifications).

Smith also did not specify what portion of her past role was spent using a tractor to pick

up “parts and stuff.” See Miles v. Astrue, 2008 U.S. Dist. LEXIS 125000, at *16 (D.S.C. Nov. 25,

2008) (affirming the ALJ’s decision that the claimant could perform her PRW as generally

performed when the ALJ did not consider if a position was a composite job because the lighter

DOT constituted the main duty of the Plaintiff’s past work). Lastly, Smith did not demonstrate that

her duties as a service manager were distinct from those of an institutional superintendent. See

Morris v. Kijakazi, 2023 U.S. Dist. LEXIS 208804, at *23 (D.N.M. Nov. 21, 2023) (finding that

the Plaintiff did not perform a composite job simply because she performed additional duties to

her managerial duties, and that she would need to demonstrate that her duties were distinct from

the DOT classification). Therefore, the ALJ did not err when he did not consider whether Smith’s

service manager role was a composite job.

Third, Smith alleges that the ALJ erred when he did not ask her about her anxiety,

depression, and insomnia. (Doc. No. 5 at 11). The Commissioner responds that Smith’s mental

limitations were non-severe and that she did not allege work limitations related to any mental

condition. (Doc. No. 6 at 13). It is the claimant’s burden to establish how any medically

determinable impairments affect functioning. 20 C.F.R. § 416.912(c). However, Smith did not

bring up concerns about how her anxiety, depression, and insomnia affected her functioning. (AR

41-70). Still, in cases such as Smith’s where a claimant is unrepresented, “ALJs have a ‘duty to

assume a more active role in helping pro se claimants develop the record.”” Craig v. Chater, 76

F.3d 585, 591 (4th Cir. 1996) (citing Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980) (overturned

on other grounds). Nevertheless, ALJs are not required to discuss every piece of evidence when

formulating an RFC. Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citing Dryer

v. Barnhard, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)).

The Court finds that the ALJ took Smith’s mental conditions into consideration when he

determined that her mental impairments caused no more than a “mild” limitation in any functional

areas and were non-severe. (AR 5). When determining this, the ALJ drew on evidence from the

consultative exam, Function Report, and Third Party Report. Id. When formulating the RFC, the

ALJ did not consider Smith’s mental conditions. (AR 5-9). Those sources revealed only relatively

brief references from her doctors about Smith’s mental conditions, which did not constitute a

substantial portion of the record. Instead, the record focused on her physical impairments that

stemmed from Guillain-Barre syndrome and cervical degenerative disc disease. In sum, while the

ALJ considered the portion of the record that related to her mental impairments when he

determined that the mental conditions were non-severe, he did not have to refer to that limited

portion of the record when formulating Smith’s RFC. See Thomas v. Berryhill 916 F.3d 307, 312

(4th Cir. 2019) (faulting the ALJ for not discussing a “substantial portion” of the record but

acknowledging that there is no rigid requirement that the ALJ refer to every piece of evidence).

Therefore, even in light of the ALJ’s heightened duty to pro se claimants, the ALJ did not err when

he did not use Smith’s alleged mental impairments in formulating her RFC.

B. The ALJ’s Development of the Record Related to the Consultive Exam

Finally, Smith argues that the ALJ’s decision was not supported by substantial evidence

because the ALJ did not fully develop the record with respect to the consultative exam. When

evidence is incomplete, insufficient, or inconsistent, the ALJ has a choice between recontacting a

medical source for clarification, requesting additional existing evidence, asking the claimant to

undergo a consultative examination, or asking the claimant or others for more information. 20

C.F.R. § 404.1520b(b)(2)(i)-(iv). Additionally, “when an administratively ordered consultative

examiner’s opinion contains what ought to be an easily clarified ambiguity on a key issue, it

logically follows that an ALJ must engage in a simple § 404.1520b(b)(2) inquiry.” Oakes v.

Kijakazi, 70 F.4th 207, 214 (4th Cir. 2023).

In Oakes, the Fourth Circuit reversed a District Court decision affirming the

Commissioner’s denial of a disability application and remanded the case for additional questioning

of the consultative examiner. The court found that to the extent the examiner’s recommendation

was ambiguous, the medical record was incomplete and the ALJ should have “take[n] additional

actions” to seek clarification. 20 C.F.R. § 404.1520b(b). Id. at 213-14. In so holding, the court

noted that the lack of other medical evidence was the “reason that the ALJ ordered a consultative

examination … in the first place” and “here, it cannot be said that the insufficiency in the record

could not be resolved or that the ALJ reasonably endeavored to obtain additional evidence to

remedy it. Id. at 214 (referring to the ALJ's determination as “woefully premature.” The court

concluded that scheduling “such an examination only to immediately dismiss its results on easily

curable grounds amounts to a half-hearted execution of regulations intended to discern the truth of

one's claim… it cannot be said that an ALJ applies sound legal principles by simply giving up.”

Id.

Here, as in Oakes, the ALJ ordered a consultative exam but then dismissed the consultative

examiner’s conclusion that Smith’s “ability to perform work-related activities such as bending,

stooping, lifting, walking, crawling, squatting, carrying, traveling, pushing and pulling heavy

objects, as well as the ability to hear or speak, appeared to be mildly to moderately impaired.” (AR

9). The ALJ found that the evaluation was too “vague and not in specific function-by-function

terms consistent with Agency rules and regulations.” Id. Following Oakes, the Court finds that the

ALJ failed to make a § 404.1520b(b)(2) inquiry when he attributed less weight to Dr. Burgess’s

opinion solely because of its vagueness. This was an easily clarified ambiguity and therefore the

ALJ’s RFC determination was premature and warrants remand.

In ordering remand pursuant to sentence four of 42 U.S.C § 405(g), the Court does not

forecast a decision on the merits of Plaintiff's reconsidered application for disability benefits. See

Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017). “Under § 405(g),

‘each final decision of the Secretary [is] reviewable by a separate piece of litigation,’ and a

sentence-four remand order ‘terminate[s] the civil action’ seeking judicial review of the Secretary's

final decision.” Shalala v. Schaefer, 509 U.S. 292, 299, 113 S. Ct. 2625, 125 L.Ed.2d 239 (1993)

(alteration in original) (emphasis omitted) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 624-25,

110 S. Ct. 2658, 110 L.Ed.2d 563 (1990)).

V. ORDER

NOW THEREFORE IT IS ORDERED that the Commissioner's decision is

REVERSED. This matter is REMANDED for a new hearing pursuant to sentence four of 42

US.C. § 405(g).

SO ORDERED ADJUDGED AND DECREED.

Signed: June 24, 2024

Kenneth D, Bell Sy,

United States District Judge \ i

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