SIMCOE v. COLVIN

Filing 28

ORDER ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION: Based on our de novo review, we find that neither of Plaintiff's objections to the Magistrate Judge's Report and Recommen dation has merit. There is no reason to conclude that the ALJ erred either in finding that transferability was not material, or in finding Plaintiff could perform a significant number of jobs in the regional and national economy. Accordingly, P laintiff's objections to the Magistrate Judge's well-reasoned Report and Recommendation are OVERRULED, and we ADOPT the recommended ruling set forth therein ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Judge Sarah Evans Barker on 6/29/2015.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHRISTOPHER S. SIMCOE,

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Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of SSA,
Defendant.

1:14-cv-01488-SEB-MJD

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
This is an action for judicial review of the final decision of Defendant
Commissioner of Social Security (“Commissioner”) finding Plaintiff Christopher Simcoe
not entitled to Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under Title II and Title XVI of the Social Security Act. See 42 U.S.C. §§ 416(i),
423(d), & 1382c(a)(3). Plaintiff filed applications for DIB and SSI on August 23, 2011,
alleging an onset of disability on March 12, 2009. R. at 18. Plaintiff’s applications were
denied initially on October 11, 2011 and on reconsideration on December 19, 2011. Id.
Plaintiff requested a hearing, which occurred before Administrative Law Judge (“ALJ”)
Ronald Jordan on April 11, 2013. Id. at 35; Docket No. 13. The ALJ determined that
Plaintiff had not been disabled at any time from the alleged date of onset through the
ALJ’s May 16, 2013 decision. Id. at 29. After the Appeals Council denied his request for
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review on July 12, 2014, the Commissioner’s decision became final, and Plaintiff timely
exercised his right to judicial review under 42 U.S.C. § 405(g). This case was referred for
consideration to Magistrate Judge Dinsmore, who on April 3, 2015 issued a Report and
Recommendation that the Commissioner’s decision be upheld because it was supported
by substantial evidence and was otherwise in accord with the law. R&R at 21; Docket
No. 22. This cause is now before the Court on Plaintiff’s Objections to the Magistrate
Judge’s Report and Recommendation.
Standard of Review
We review the Commissioner’s denial of benefits to determine whether it was
supported by substantial evidence or is the result of an error of law. Rice v. Barnhart, 384
F.3d 363, 368–69 (7th Cir. 2004); Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Dixon v. Massanari, 270 F.3d 1171,
1176 (7th Cir. 2001). In our review of the ALJ's decision, we will not “reweigh evidence,
resolve conflicts, decide questions of credibility, or substitute [our] own judgment for that
of the Commissioner.” Lopez, 336 F.3d at 539. However, the ALJ’s decision must be
based upon consideration of “all the relevant evidence,” without ignoring probative
factors. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In other words, the ALJ
must “build an accurate and logical bridge” from the evidence in the record to his or her
final conclusion. Dixon, 270 F.3d at 1176. We confine the scope of our review to the
rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93–95 (1943);
Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011).
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When a party raises specific objections to elements of a magistrate judge’s report
and recommendation, the district court reviews those elements de novo, determining for
itself whether the Commissioner’s decision as to those issues is supported by substantial
evidence or was the result of an error of law. Fed. R. Civ. Pro. 72(b). The district court
“makes the ultimate decision to adopt, reject, or modify” the report and recommendation,
and it need not accept any portion as binding; the court may, however, defer to those
conclusions of the report and recommendation to which timely objections have not been
raised by a party. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th
Cir. 2009).
Discussion
Plaintiff alleged in his DIB and SSI application that he had an onset of disability
on March 12, 2009. R. at 18. He was 39 years old at the time of the alleged onset, and
had past work experience as a retail store assistant manager, as a restraint assistant
manager, and as a warehouse truck loader. Id. at 40–42. He claimed disability because of
vascular disease in his left leg, a fracture in his right hand, depression, obesity, and a
cervical neck injury. Id. at 20–22. The ALJ determined, with the help of a vocational
expert (“VE”), that Plaintiff had not been under a disability at any time from the alleged
date of onset through the ALJ’s May 16, 2013 decision. Id. at 29.
At Step One of his five-step analysis of the claim, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since his alleged disability onset
date. Id. at 20. At Step Two, the ALJ found that Plaintiff suffered from two severe
impairments: vascular disease in his left leg and obesity. Id. at 21–22. At Step Three, the
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ALJ found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled a “listed impairment” under 20 CFR Part 404, Subpart P,
Appendix 1. Id. at 22. Specifically, the ALJ considered and rejected Listing 4.11 (chronic
venous insufficiency), and he found that there was no evidence that Plaintiff’s obesity,
for which there is no individual listing, “considered alone or in combination with all other
impairments, meets or medically equals any listing.” Id. At Step Four, the ALJ found that
Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with
additional limitations:
[S]edentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except:
lift, carry, push, or pull ten pounds occasionally and five pounds frequently;
stand and walk for two hours in an eight hour workday day at intervals of
five or ten minutes spread evenly throughout the day; sit for six hours
during an eight hour workday, but must have the opportunity to stand at his
work station for up to five minutes each hour at his discretion; occasionally
stoop, balance, crouch, crawl, kneel, and climb stairs or ramps; no work
around hazards such as unprotected heights or unguarded, dangerous
moving machinery; no climbing ladders, scaffolds, or ropes; no walking on
wet or uneven surfaces.
Id. at 22. Then the ALJ determined that Plaintiff’s RFC prevented him from performing
any of his past relevant work. Id. at 28. At Step Five, the ALJ found that “[t]ransferability
of job skills is not material to the determination of disability” for a claimant with
Plaintiff’s profile. Id. at 28–29. He then consulted a VE, who testified that a hypothetical
person of Plaintiff’s age, education, work experience, and RFC, could perform jobs such
as interviewer (with 500 positions available regionally and 32,000 nationwide), check
cashier (10,000 regionally and 600,000 nationwide), and telemarketer (5,000 regionally
and 340,000 nationwide). Id. The ALJ determined, based on the VE testimony, that these
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jobs existed in significant numbers in the regional and national economy, leading him to
the conclusion that Plaintiff was not disabled. Id. at 29. Magistrate Judge Dinsmore, in
his Report and Recommendation, affirmed the ALJ report, concluding that it was
supported by substantial evidence. R&R at 21–22.
Plaintiff raises two objections to the Report and Recommendation. First, he alleges
that Magistrate Judge Dinsmore erred in rejecting his challenge to the ALJ’s finding that
transferability of job skills was not material. See Pl.’s Obj. 1–2; Docket No. 22 at 8; R&R
at 8. Second, he objects to the Magistrate Judge’s determination that Plaintiff could
perform “significant numbers” of jobs in the regional and national economy. See Pl.’s
Obj. 2–3; R&R at 8–10.
I. Transferability
Plaintiff argues that the ALJ erred in determining that “transferability is not an
issue[,]” and in concluding that jobs as a check cashier and telemarketer, which are
classified as “semi-skilled,” are available to Plaintiff. Pl.’s Obj. 1; R. at 28–29.
The Dictionary of Occupational Titles defines check cashier and telemarketer as
“semi-skilled” jobs. See R. at 63. As Plaintiff correctly notes, the ALJ did not make any
specific finding about whether Plaintiff’s past work had given him skills that transfer
over to check cashier and telemarketer positions. Instead, the ALJ determined that
“[t]ransferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant
is ‘not disabled,’ whether or not the claimant had transferable skills.” R. at 28.

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Social Security Ruling (“SSR”) 82–41 requires an ALJ “to make certain findings
of fact” about the transferability of job skills, but only in cases “[w]hen the issue of skills
and their transferability must be decided.” S.S.R. 82–41. The ALJ properly consulted the
Medical Vocational Guideline Rules in determining the relevance of transferability. R. at
28–29; 20 C.F.R. pt. 404, subpt. P, App. 2., Rules 201.27–29. These rules, commonly
known as the “grids,” are based on vocational factors such as age, education, and work
experience, in combination with each of the possible exertional levels–i.e. sedentary,
light, medium, heavy, and very heavy. Based on the interaction of these factors, the grids
may direct a finding that a claimant is or is not disabled. Martinez v. Colvin, No. 12 C
3888, 2013 WL 6696177, at *14 (N.D. Ill. Dec. 18, 2013); see also 20 C.F.R. pt. 404,
subpt. P, App. 2., Rules 202.20–22.
Often, as is the case here, a claimant’s RFC varies to some degree from the
exertional levels captured by the grids. For example, an individual’s RFC can be
sedentary work with additional limitations, while the grids only advise for a sedentary
work level. The court in Martinez v. Colvin, No. 12 C 3888, 2013 WL 6696177, at *14
(N.D. Ill. Dec. 18, 2013) faced a similar situation; there, the plaintiff’s RFC was light
work with additional limitations. Id. The court found that the additional RFC limitations
prevented complete adherence to the grids. Id. However, the court explained that despite
the fact that the grids were not controlling, the guidelines’ conclusions with respect to
transferability remained applicable:
The ALJ recognized that because Plaintiff has limitations impeding the full
range of light work, the Grids were not conclusive and a VE had to be
consulted. Nevertheless, because the Grids presumptively determine that
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transferability of skills is not an issue for a person of Plaintiff’s age,
education, and communication skills, the ALJ was not required by S.S.R.
82–41 to determine whether she has any transferable work skills.
Id. at *15 (citations omitted). See also Williams v. Colvin, No. 5:13–cv–180, 2014 WL
1681707, at *12 (D. Vt. Apr. 28, 2014) (holding the ALJ correctly found that
transferability was not material where plaintiff was a younger individual, had at least a
high school education, and had a sedentary to light work RFC with additional
limitations); Putnam v. Colvin, No. CV–12–00543–PHX–JAT, 2014 WL 1053608, at *8
(D. Ariz. Mar. 19, 2014) (holding the ALJ properly determined that transferability was
not material where plaintiff had a sedentary RFC with additional limitations); James v.
Colvin, No. 3:12–CV–01815–JO, 2013 WL 6145297, at *4 (D. Or. Nov. 21, 2013)
(upholding ALJ’s finding that transferability was not material where plaintiff was closely
approaching advanced age, had high school and limited college education, could
communicate English, and had a light RFC with additional limitations).1 Because the
plaintiff’s demographic profile directed a result of not disabled regardless of her past
relevant work and transferability of skills, the Martinez court concluded that
transferability was not material. Martinez, 2013 WL 6696177, at *14; see also 20 C.F.R.
pt. 404, subpt. P, App. 2., Rules 202.20–22. Though the aforementioned cases are not
binding on this Court, we find their analysis persuasive.

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Plaintiff argues that Martinez is not analogous to the present case because the plaintiff in Martinez was limited to
light work with additional limitations, while Plaintiff is limited to sedentary work with additional limitations. Pl.’s
Obj. 1-2. However, as we have shown above, the transferability analysis in Martinez has been used by other district
courts, for various plaintiffs with differing exertional limitations. See Chart. 20 C.F.R. pt. 404, subpt. P, App. 2.,
Rules 201.27–29.

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Here, the ALJ correctly assessed that Plaintiff was a “younger individual” with “at
least a high school education [who] is able to communicate in English.” R. at 28; 20
C.F.R. pt. 404, subpt. P, App. 2., Rules 201.27–29. Additionally, as discussed above, the
ALJ determined that Plaintiff’s RFC was sedentary with additional limitations. R. at 22.
Because of these additional limitations, the ALJ correctly determined that the grids were
not directly applicable to Plaintiff’s situation. Id. at 29. Because of Plaintiff’s
demographic profile, grid rules 201.27–29, which lay out the guidelines for individuals of
a younger age with at least a high school education and a sedentary RFC, direct a result
of not disabled regardless of previous work experience and transferability of skills. See
20 C.F.R. pt. 404, subpt. P, App. 2., Rules 201.27–29. Based on these rules, the ALJ
correctly determined that while Plaintiff’s additional RFC factors limit the range
available positions, they do not alter the guidelines’ conclusion that transferability is not
an issue for a person with Plaintiff’s demographic profile. The grids presumptively
determine that transferability of skills is not material for someone—such as Plaintiff—
who is a younger individual, who has at least a high school education, and who can
communicate in English. See Martinez, 2013 WL 6696177, at *15; 20 C.F.R. pt. 404,
subpt. P, App. 2., Rules 201.27–29. Thus, the ALJ did not err in determining that “semiskilled” jobs, such as check cashier and telemarketer, may be considered available to
Plaintiff.
II.

Significant Number of Jobs in the Regional and National Economy
As part of his analysis at Step Five, the ALJ was required to determine whether

significant jobs were available to Plaintiff in the regional and national economy. The ALJ
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found, in consultation with a VE, that the positions of interviewer (500 positions
available regionally and 32,000 nationwide), check cashier (10,000 regionally and
600,000 nationwide), and telemarketer (5,000 regionally and 340,000 nationwide)
constituted a significant number of jobs in the regional and national economy that
Plaintiff could perform. R. at 29.
We have rejected Plaintiff’s argument that the ALJ should have disregarded
available check cashier and telemarketer positions based on the transferability of skills.
Pl.’s Obj. 1; R&R at 8; Tr. 29, 63. The combined jobs (15,500 regional and 972,000
national) from telemarketer, check cashier, and interviewer positions are significant for
the purposes of Step Five. “[I]t appears well established that 1,000 jobs constitutes a
significant number.” Weatherbee v. Astrue, 649 F.3d 565, 572 (7th Cir. 2011) (citing
Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009)).
Even if the ALJ had only considered the number of jobs for the interviewer
position, he would likely have reached the same conclusion. While Plaintiff is correct in
noting that there is no Seventh Circuit precedent explicitly ratifying 500 regional and
32,000 national jobs or less as significant, other courts of appeals have affirmed ALJ
findings that similar figures sufficed. See Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th
Cir. 1988) (500 regional jobs is a significant number); Craigie v. Bowen, 835 F.2d 56, 58
(3d Cir. 1987) (200 regional jobs is a significant number). Additionally, the Seventh
Circuit has shown approval of numbers less than 500 regional and 32,000 national jobs
when determining significance. “As few as 174 jobs has been held to be significant[.]”

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Liskowitz, 559 F.3d at 743 (citing Allen v. Bowen, 816 F.2d 600, 602 (11th Cir, 1987)).2
While the question is not before us, it is likely that remand would not be warranted even
if the ALJ’s Step Five analysis had compelled the conclusion that only interviewer
positions were available to Plaintiff. Issacs v. Barnhart, No. 4:05-CV-00185-DFH-WGH,
2006 WL 3240114, at *9 (S.D. Ind. Oct. 13, 2006); see also Spiva v. Astrue, 628 F.3d
346, 353 (7th Cir. 2010) (noting that under the doctrine of harmless error, no remand is
necessary when “it is predictable with great confidence that the agency will reinstate its
decision”).
Conclusion
Based on our de novo review, we find that neither of Plaintiff’s objections to the
Magistrate Judge’s Report and Recommendation has merit. There is no reason to
conclude that the ALJ erred either in finding that transferability was not material, or in
finding Plaintiff could perform a significant number of jobs in the regional and national
economy. Accordingly, Plaintiff’s objections to the Magistrate Judge’s well-reasoned
Report and Recommendation are OVERRULED, and we ADOPT the recommended
ruling set forth therein.
IT IS SO ORDERED.

06/29/2015
Date: ___________________

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The Seventh Circuit used “174 jobs” as a reference point to show that 4,000 regional jobs was more than
significant for Step Five determination. “Liskowitz does not argue that 4,000 jobs is insignificant; nor would such an
argument be plausible.” Liskowitz, 559 F.3d at 743.

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Distribution:
Joseph W. Shull
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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