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Barbara M. v. Berryhill

United States District Court, D. Rhode Island

February 27, 2019

BARBARA M., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Patricia A. Sullivan, United States Magistrate Judge.

         Invoking 42 U.S.C. §§ 405(g), 1383(c)(3) of the Social Security Act (the “Act”), Plaintiff Barbara M., a person closely approaching retirement age, applied for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on September 21, 2015. In her disability applications, Plaintiff alleged that, since February 19, 2015, the day following the denial of her prior disability application, she has been disabled due to neck and back pain, debilitating migraine headaches, the Epstein-Barr virus/chronic mononucleosis, depression and anxiety. The case is now before the Court on Plaintiff's motion for summary judgment challenging the decision of the Administrative Law Judge (“ALJ”) denying her applications. The Commissioner has filed a counter-motion, asking the Court to affirm. Their motions are pending before me on consent pursuant to 28 U.S.C. § 636(c)(1).

         Plaintiff has a college education and worked for many years as a ballet dancer and then as a dance instructor. Her final job before stopping work in 2012 was as a “Big Ticket/Sales Associate[] | Furniture Sales” at Macy's. Tr. 233. As relevant to this appeal from the adverse administrative decision of the Commissioner, Plaintiff relies on the two impairments found by the ALJ to be severe at Step Two - osteoarthritis of the spine and migraine headaches. See Tr. 26. In reliance on the assessment of the state agency file-reviewing physician expert at the initial phase (Dr. Youssef Georgy) and the orthopedist who testified as a medical expert at the hearing (Dr. Louis Fuchs), the ALJ found that, despite these impairments, Plaintiff retained the RFC[1] to perform light work with postural limitations resulting from degeneration in the cervical and lumbar spine. Tr. 29-32. Based on this RFC, the ALJ found that Plaintiff could still perform past relevant work as a furniture sales associate, “as per the Dictionary of Occupational Titles” (“DOT”). Tr. 32. Accordingly, the ALJ held that she was not disabled from the date of alleged onset to the date of the decision. Tr. 32-33.

         Plaintiff has challenged the ALJ's decision on two grounds.

         First, Plaintiff argued that the ALJ erred in finding that her subjective statements about “symptom severity and resulting functional limitations, ” and particularly regarding the limiting effects of the migraine headaches, were “not supported by the medical evidence, to the degree alleged.” Tr. 30. In support of this argument, Plaintiff pointed to a sentence from the testimony of the medical expert, Dr. Fuchs, who said that it would be reasonable to conclude that cervical spine issues could cause headaches as described by Plaintiff.[2] See Tr. 58. The Commissioner asked the Court to affirm the ALJ's treatment of Plaintiff's subjective statements because Dr. Fuchs plainly opined only that severe migraine headaches could be caused by an impairment of the cervical spine. The Court agreed with the latter proposition, finding that the Fuchs statement is not a medical opinion that Plaintiff's actual cervical impairment in fact caused the actual migraine symptoms as Plaintiff described them, thereby amounting to medical evidence supporting her subjective statements.[3] The Court also agreed with the Commissioner's argument that the ALJ appropriately relied on substantial evidence in determining the weight to give to Plaintiff's subjective descriptions of the impact of her migraine headaches.[4] During the hearing on the parties' dueling motions for summary judgment held on February 8, 2019, the Court laid out the relevant background and ruled against Plaintiff and in favor of the Commissioner with respect to this argument. The reasoning on which the Court's ruling is based was stated on the record at the hearing, as summarized in this memorandum and order.

         For her second argument, Plaintiff focused on the ALJ's Step Four determination that she remains capable of performing her past relevant work as a furniture sales associate. She argues that the ALJ erred in failing to resolve the conflict between the DOT, which classifies furniture sales as light work, and the testimony of the vocational expert (“VE”) that, “in my opinion, I believe it is generally and usually performed at a medium exertional level.” Tr. 63. At the hearing, the Court found Plaintiff's second argument to be far more substantive and took it under advisement. Having studied the law and the portions of the administrative record on which the parties rely, [5] and particularly the applicable regulations and the Commissioner's interpretations of the Act cited below, the Court now finds that the ALJ erred and concludes that the case must be remanded for further proceedings.

         I. Background

         During the hearing, the ALJ called as a witness a VE, whose impressive curriculum vitae is in the record. Tr. 289-93. Much of the VE's testimony focused on Plaintiff's work as a dance instructor. Ultimately, the VE testified that the postural limitations that the ALJ had included in her hypothetical (and later would include in the RFC in her decision) would eliminate all prior work related to dance, both as “generally performed, ” confirmed by the DOT, which classifies dance teacher as heavy work, and as “actually performed” by Plaintiff. Tr. 59, 61; see 20 C.F.R. § 404.1560(b)(2)[6] (past relevant work inquiry focuses on work as “actually performed” or as “generally performed” in national economy). The ALJ accepted this opinion and did not find that Plaintiff could perform her prior work as a dance instructor. Tr. 32-33.

         As to Plaintiff's other past work, as a furniture sales associate, the VE testified that “furniture sales associate” is classified in the DOT under 270.357-030, which provides that it is light work with limited postural requirements. Tr. 60; DOT 270.357-030, 1991 WL 672448 (4th ed. rev. 1991). In response to the ALJ's hypothetical questions regarding what “past work” could be performed by a person capable of doing light work with and without postural limitations, the VE opined that such an individual would be able to work as a furniture sales person “according to the DOT.” Tr. 60-61. In describing the DOT classification, the VE injected into his answer that “[t]hat's [furniture sales] often also found at a medium exertional level in many settings.” Tr. 60. Later in the testimony, the VE directly disagreed with the DOT with respect to the job of furniture sales associate:

[T]he DOT has furniture sales, a person at a light exertional level. However, it has been my experience that a lot of times furniture salespeople are required to move around furniture . . . which would put it into a medium exertional level. So it's not uncommon for it to be performed at a medium exertional level.

Tr. 62. When directly asked by Plaintiff's attorney, the VE gave his opinion: “my opinion is, is that it's [furniture sales] generally performed at a medium exertional level.” Id.

         With respect to the level at which Plaintiff actually performed her job as a furniture sales associate, the ALJ and the VE both questioned her about what she was required to do. In response, she explained that she was required to move around furniture and big carpets and to stand on her feet for up to twelve hours a day. Tr. 62-63. In her brief, the Commissioner acknowledges that the VE's testimony establishes that Plaintiff actually performed furniture sales at the medium exertional level. ECF No. 16 at 10.[7]

         In the resulting decision, the ALJ made the RFC determination that Plaintiff is able to perform light work, with certain postural limitations. Tr. 29. At Step Four, the ALJ focused on the job of furniture sales associate “as generally” performed. In considering Plaintiff's ability to do this job as “generally performed, ” the ALJ acknowledged the direct conflict between the DOT and the VE's opinion, in that the VE testified that the DOT classifies furniture sales as light, but declined to adopt that classification as an accurate reflection of how the work is “generally performed.” Instead, as the ALJ noted, the VE expressed the inconsistent opinion that this work is “generally performed at the medium exertional level.” Tr. 32. Nevertheless, with no explanation for why she was apparently rejecting the opinion of the VE, the ALJ then found that Plaintiff could perform this work “as per the [DOT].” Id. Inconsistent with this apparent rejection of the VE, the ALJ also stated that she was relying on the opinion of the VE in reaching the conclusion that “the demands of the above job [furniture sales associate] would fit within the parameters of the [RFC] as assessed . . . .” Tr. 33. Missing from the ALJ's decision is the critical finding that, as limited by her RFC, Plaintiff could still perform the prior work of furniture sales associate “as generally performed” in the national economy. See 20 C.F.R. § 404.1560(b)(2).

         The parties do not dispute that this issue is potentially material: because of Plaintiff's age, and subject to other characteristics that would require further development at Step Five, it is possible that the determination that the furniture sales associate job is “generally performed” at the medium exertional ...

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