United States District Court, W.D. Virginia, Roanoke Division
TRACY L. PATTERSON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
L. Patterson, Plaintiff, represented by Vernon Mandel
Williams, Wolfe Williams & Reynolds.
Commissioner of Social Security, Defendant, represented by
Maija DiDomenico, Office of General Counsel.
S. BALLOU, Magistrate Judge.
Tracy L. Patterson ("Patterson") filed this action
challenging the final decision of the Commissioner of Social
Security ("Commissioner") finding her not disabled
and therefore ineligible for disability insurance benefits
("DIB") and supplemental security income
("SSI") under the Social Security Act
("Act"). 42 U.S.C. §§ 401-433, 1381-1383f.
Patterson argues that the Administrative Law Judge
("ALJ") erred by adopting the testimony of the
vocational expert ("VE") from a previous hearing.
Patterson also alleges that the ALJ erred by: (1) improperly
discounting the opinion of Patterson's treating
physician; (2) failing to properly consider a reviewing
source opinion; and (3) giving great weight to his previous
decision dated October 28, 2011. I agree that the ALJ erred
by adopting the testimony of the VE from a previous hearing.
Accordingly, I GRANT IN PART Patterson's Motion for
Summary Judgment (Dkt. No. 14), DENY the Commissioner's
Motion for Summary Judgment (Dkt. No. 16), and REVERSE AND
REMAND this case for further administrative proceedings
consistent with this Opinion.
court limits its review to a determination of whether
substantial evidence exists to support the Commissioner's
conclusion that Patterson failed to demonstrate that she was
disabled under the Act. 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.
represents Patterson's third application for SSI and DIB
benefits. She initially filed for disability on June 12,
2007, which application was denied in an unfavorable decision
at the hearing level on June 25, 2009 by ALJ Geraldine Page.
R. 67-80. Patterson's second application likewise was
denied at the hearing level in an unfavorable decision by ALJ
Richard Scrutton. R. 85-98. Patterson protectively filed this
her third attempt for SSI and DIB on December 15, 2011,
claiming that her disability began on October 29, 2011, due
to chronic kidney disease, bipolar disorder, depression,
anxiety, degenerative disc disease of the cervical and lumbar
spine, osteoarthritis, diabetes, fibromyalgia, schizophrenia,
nerve damage in her right leg, high blood pressure, and high
cholesterol. R. 232-339, 256. Patterson's date last
insured was September 30, 2013. R. 12. Thus, she must show
that her disability began on or before September 30, 2013 and
existed for twelve continuous months to receive DIB. 42
U.S.C. §§ 423(a)(1)(A), (c)(1)(B), (d)(1)(A); 20 C.F.R. §§
404.101(a), 404.131(a). The state agency denied
Patterson's applications at the initial and
reconsideration levels of administrative review. R. 106-16,
118-29, 132-43, 144-55. On July 23, 2013, ALJ Joseph T.
Scruton held a hearing to consider Patterson's claims for
DIB and SSI. R. 29-63. Counsel represented Patterson at the
hearing, which included testimony from VE Robert Jackson.
October 11, 2013, the ALJ entered his decision analyzing
Patterson's claim under the familiar five-step
process and denying her claim for benefits. R.
11-24. The ALJ found that Patterson was insured at the time
of the alleged disability onset and that she suffered from
the severe impairments of degenerative disc disease of the
lumbar spine with mild to moderate stenosis and spondylosis,
obesity, fibromyalgia, orthopedic disorders most prominent in
the knee, right leg, and right hip, diabetes mellitus,
history of kidney disease/diabetic nephropathy, asthma, and
depression NOS (not otherwise specified). R. 14. The ALJ
determined that these impairments, either individually or in
combination, did not meet or medically equal a listed
impairment. R. 14. The ALJ concluded that Patterson retained
the residual functional capacity ("RFC") to perform
a limited range of sedentary work. R. 16. Specifically, the
ALJ found that Patterson must avoid kneeling, climbing
ladders, and crawling, that she can occasionally crouch and
stoop, but can seldom climb stairs. Id . Patterson
will also require work allowing for in-place position shifts
while seated and not requiring standing/walking more than 30
minutes at any one time without a 15-minute period of
sitting. Id . Additionally, Patterson must use a
cane for most of the time when she is standing, and should
avoid concentrated exposure to pulmonary irritants, such as
dust, odors, or gases. Finally, Patterson can maintain
attention and concentration for eight hours with normal
breaks for tasks involving short and simple instructions.
determined that Patterson was unable to return to any of her
past relevant work, but that she could perform jobs that
exist in significant numbers in the national economy, such as
telephone clerk, addressing clerk, and charge-account clerk.
R. 22-23. Thus, the ALJ concluded that Patterson was not
disabled. R. 24. Patterson appealed the ALJ's decision
and the Appeals Council denied her request for review on
October 8, 2014. R. 1-3. This appeal followed.
Testimony from Previous Vocational Expert
had the benefit of a vocational expert ("VE") at
the hearing held on July 23, 2013. At the hearing, the ALJ
did not ask the VE to make an independent assessment of
Patterson's ability to return to her previous work or
what jobs she could do given her RFC. Instead, the ALJ simply
characterized the testimony of the VE at the hearing held two
years earlier and asked the VE if he agreed with that
previous testimony. Specifically, the ALJ asked the VE if he
agreed with the conclusion previously that Patterson could
not return to her past relevant work. He did. Likewise, the
VE was asked whether he agreed that Patterson could work in
the occupations previously identified by the VE, and if the
number of jobs which existed two years earlier would still be
valid. The VE did not disagree with the previous testimony,
but said that he would have looked at different jobs, and
admitted that he had not investigated the number of jobs
available. Nevertheless, he thought the numbers were
asserts that the ALJ erred by adopting the testimony of the
VE at the September 2011 hearing which was part of the second
application for benefits. Patterson argues that, contrary to
the ALJ's finding, the VE who testified at the July 2013
hearing ("current VE") did not support the
testimony of the VE from the September 2011 hearing
("previous VE") regarding whether Patterson can
perform other work that exists in significant numbers in the
national economy. Patterson also complains that ...