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Neice v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

February 19, 2015

RICHARD W. NEICE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT S. BALLOU, Magistrate Judge.

Plaintiff, Richard W. Neice ("Neice"), filed this action challenging the final decision of the Commissioner of Social Security ("Commissioner") determining that he was not disabled and therefore not eligible for supplemental security income ("SSI") and disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433, 1381-1383f. Specifically, Neice alleges that the Administrative Law Judge ("ALJ") erred by improperly questioning the vocational expert and by failing to give greater weight to the consultative examiner's opinion. Neice also asserts that the case should be remanded to the Commissioner to consider additional evidence submitted to the Appeals Council. I agree that the ALJ did not provide a sufficient explanation for the weight given to the consultative examiner's opinion, and further that the additional evidence submitted to the Appeals Council is new, material, and should be considered by the Commissioner. As such, I RECOMMEND GRANTING IN PART Neice's Motion for Summary Judgment (Dkt. No. 15), DENYING the Commissioner's Motion for Summary Judgment (Dkt. No. 17), and reversing and remanding this case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Report and Recommendation.


This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Neice failed to demonstrate that she was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).


Neice protectively filed for SSI and DIB on February 3, 2010, claiming that his disability began on December 31, 2009. R. 294-97, 326. The Commissioner denied his application at the initial and reconsideration levels of administrative review. R. 134-65, 168-201. On June 20, 2012, ALJ Jeffrey J. Schueler held a hearing to consider Neice's disability claim. R. 69-107. Neice was represented by an attorney at the hearing, which included testimony from Neice and vocational expert Mark Holland. R. 69-107.

On June 26, 2012, the ALJ entered his decision analyzing Neice's claim under the familiar five-step process[2] and denying Neice's claim for benefits. R. 51-68. The ALJ found that Neice suffered from the severe impairments of bipolar disorder, low back pain, left elbow pain, prostatitis, and alcohol abuse. R. 56. The ALJ determined that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 57. The ALJ decided that Neice retained the RFC to perform light work, [3] except work involving:

exposure to extreme cold or hazards; requires more than occasional climbing, balancing, stooping, kneeling, crouching, or crawling. Additionally, the claimant requires work limited to simple, routine, repetitive tasks, in a low-stress work environment defined has [sic] having only occasional decision-making or changes in work setting, and that involves only occasional interaction with co-workers or the public.

R. 58. The ALJ determined that Neice could not return to his past relevant work as a pipe fitter helper or tree trimmer (R. 61), but that Neice could work at jobs that exist in significant numbers in the national economy such as a garment folder, marker, or checker. R. 62. Thus, the ALJ concluded that he was not disabled. R. 63. On November 13, 2013, the Appeals Council denied Neice's request for review (R. 1-6), and this appeal followed.


Absence of Physical Restriction in Vocational Expert Hypothetical & RFC

Neice alleges that the ALJ failed to include a limitation for his left elbow pain both in the hypothetical presented to the vocational expert and in the RFC. Dkt. No. 16, p. 11. Neice claims that the vocational expert was not provided the opportunity to consider whether an individual with elbow impairment could perform the jobs identified. Id. at 12. At the administrative hearing, the ALJ asked the vocational expert to determine the number of jobs available for an individual with Neice's vocational background and his ultimately determined RFC. R. 97-100. The vocational expert testified that such an individual could work as a garment folder or a packager. R. 100.

The purpose of a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). A vocational expert's opinion must be given in response to proper hypothetical questions, which fairly set out all of the claimant's impairments. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005) (quoting Walker, 889 F.2d at 50). The ALJ has "some discretion to craft hypothetical questions to communicate to the vocational expert what the claimant can and cannot do." Fisher v. Barnhart, 181 F.Appx. 359, 364 (4th Cir. 2006). Hypothetical questions should adequately reflect the plaintiff's RFC as found by the ALJ and supported by sufficient evidence. Id.

Substantial evidence supports the ALJ's RFC determination for Neice's physical limitations. "[F]ailure to include a severe impairment in a complainant's RFC determination is not itself error. The ALJ's conclusion that a claimant has severe impairments is made at Step Two of the sequential evaluation and is separate and distinct from the ALJ's assessment of a claimant's RFC, considered as part of Steps Four and Five." Mills v. Astrue, No. CA 2:10-1657-CMC, 2011 WL 3840989, at *2 (D.S.C. Aug. 26, 2011). Additionally, the ALJ noted skepticism of Neice's credibility regarding his elbow pain, despite finding it as a severe impairment. In his explanation for Neice's RFC, the ALJ found that "X-rays do not suggest the presence of a condition that can reasonably be expected to cause the degree of pin [sic] and physical limitations he claims. Clinical findings are notable only for tenderness, and they document intact range of motion and the absence of any neurological deficits." R. 60-61. The ALJ did not find that the record demonstrated a functional limitation, particularly because treatment had been very conservative and Neice had not received a referral for further evaluation or treatment. R. 61. Without a finding of a functional limitation, the ALJ was not required to add such a limitation to the RFC. See, e.g., Thompson v. Astrue, 442 F.Appx. 804, 806 (4th Cir. 2011) ("Here, although ...

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