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Patterson v. Colvin

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

August 1, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Tracy L. Patterson, Plaintiff, represented by Vernon Mandel Williams, Wolfe Williams & Reynolds.

          Commissioner of Social Security, Defendant, represented by Maija DiDomenico, Office of General Counsel.


          ROBERT S. BALLOU, Magistrate Judge.

         Plaintiff 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").[1] 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.


         This 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.[2] 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).


         This 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.

         On October 11, 2013, the ALJ entered his decision analyzing Patterson's claim under the familiar five-step process[3] 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. Id.

         The ALJ 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.


         A. Testimony from Previous Vocational Expert

         The ALJ 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 "generally" correct.

         Patterson 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.[4] Patterson also complains that ...

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