SOUDERS v. COLVIN
ENTRY ON JUDICIAL REVIEW OF DENIAL OF BENEFITS - The ALJ's decision that Souders is not disabled and therefore not entitled to benefits is AFFIRMED. Judgment consistent with this Entry shall now issue. Signed by Magistrate Judge William G. Hussmann, Jr on 11/20/2013.(JLM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
LISA R. SOUDERS
(Social Security No. XXX-XX-3389),
CAROLYN W. COLVIN,
Acting Commissioner of the Social
ENTRY ON JUDICIAL REVIEW OF DENIAL OF BENEFITS
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, pursuant to the parties’ consents and an Order of
Reference dated March 21, 2013. (Docket No. 14). Plaintiff, Lisa R. Souders,
seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“Commissioner”, “SSA”) denying her Disability
Insurance Benefits (“benefits”) under the Social Security Act. 42 U.S.C. § 301
et seq. For the reasons set forth below, the Commissioner’s decision must be
Souders applied for benefits on February 26, 2010, alleging a disability
onset date of February 4, 2010.1 Souders was 47 on the alleged onset date and
had limited education. (R. 16). Her application was denied initially and upon
reconsideration. (R. 106-08, 112-14). On November 18, 2011, an
administrative law judge (“ALJ”) held a hearing at which both Souders and a
vocational expert (“VE”) testified. On December 16, 2011, the ALJ issued a
decision finding Souders not disabled. (R. 18). On November 1, 2012, the
Appeals Council denied her appeal (R. 1-6), leaving the ALJ’s decision as the
final decision of the Commissioner. 20 C.F.R. §§ 404.955(a), 404.981. As a
final decision, jurisdiction is proper in this court. 42 U.S.C. § 405(g).
The ALJ found that: (1) Souders did not engage in substantial gainful
activity after her alleged disability onset date; (2) Souders had the following
severe impairments: lumbosacral strain; lumbar disc syndrome; plantar
fasciitis; and urinary incontinence; (3) none of her impairments, alone or in
combination, met or equaled an impairment listed in 20 CFR Part 404, Subpart
P, Appendix 1 (R. 12-13); (4) Souders had the residual functional capacity
(“RFC”) to perform sedentary work with additional restrictions, none of which is
at issue on appeal (R. 13-16); (5) she was unable to perform her past relevant
1 Souders’s application lists an alleged onset date of October 18, 2007. (R. 154).
However, a previous application for benefits was denied on February 3, 2010, and
Souders did not appeal that decision. (R. 92-100). Thus, by operation of law, her
alleged disability onset date is the day after her previous application was denied.
work as a hand packager (R. 16); and (6) given Souders’s age, education, work
experience, and RFC, there existed jobs in significant numbers in the national
economy she could perform. (R. 16-17). Based on these findings, the ALJ
concluded that Souders was not disabled.
In order to qualify for benefits, Souders must establish that she suffered
from a “disability” as defined by the Act. “Disability” is defined as the “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
The Social Security regulations outline a five-step inquiry the ALJ is to
perform in order to determine whether a claimant is disabled. The ALJ must
consider whether the claimant: (1) is presently employed; (2) has a severe
impairment or combination of impairments; (3) has an impairment that meets
or equals an impairment listed in the regulations as being so severe as to
preclude substantial gainful activity; (4) is unable to perform his past relevant
work; and (5) is unable to perform any other work existing in significant
numbers in the national economy. 20 C.F.R. § 404.1520(a)(4). The burden of
proof is on Souders for steps one through four; only after Souders has met her
evidentiary burden does the burden shift to the Commissioner at step five.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
An ALJ’s findings are conclusive if they are supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.
Ed. 2d 842 (1971) (internal quotation omitted); see also Perkins v. Chater, 107
F.3d 1290, 1296 (7th Cir. 1997).
Souders raises only one issue on appeal: whether the ALJ erred at step
five by determining that a significant number of jobs existed in the national
economy that a person with Souders’s age, education, work history, and RFC
was capable of performing. (R. 17). The ALJ relied on the VE’s testimony that
Souders could work as an order clerk, assembly worker, or inspector. There
were 1,180,000 such jobs nationally, but only 56 in the Madison, Indiana
three-county region. (R. 58-59). Souders alleges that the number of regional
jobs is small enough to put it into a “gray area” that requires the ALJ to apply
several factors before determining whether a claimant is disabled. Trimiar v.
Sullivan, 966 F.2d 1326, 1329-30 (10th Cir. 1992). These factors include: (1)
extent of the claimant’s disability; (2) the reliability of the VE’s testimony; (3)
the distance a claimant can travel to engage in assigned work; (4) whether the
jobs are isolated; and (5) the types and availability of such work. Id. at 1330
(internal quotation omitted). Souders argues that since she lives outside the
three-county region, there are a minuscule number of jobs available, see id.
(650-900 jobs statewide required application of the factors), and since the ALJ
did not discuss the Trimiar factors in his step five analysis, the ALJ did not
meet his evidentiary burden. Therefore, the ALJ’s decision that Souders is not
disabled is not supported by substantial evidence.
Despite the paucity of jobs regionally, Souders’s claim fails as a matter of
law. As the Commissioner correctly notes, Trimiar is a Tenth Circuit case and
not binding precedent. Moreover, neither Trimiar nor any Seventh Circuit case
drew a bright line as to how many jobs constitute a significant number. See
Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (citing Allen v. Bowen,
816 F.2d 600, 602 (11th Cir. 1987)) (“As few as 174 jobs has been held to be
significant, and it appears to be well-established that 1,000 jobs is a significant
Moreover, SSA’s own regulations state that it is the number of positions
in the national economy that determines whether there are a significant
number of jobs a claimant can perform. 20 C.F.R. § 404.1566(a) (emphasis
added). The availability of jobs in a certain region is immaterial unless the
available jobs “exist only in very limited numbers in relatively few locations
outside of the region” where a claimant resides. Id. at § 404.1566(b). This
exception does not apply to Souders, as over one million positions existed in
the national economy. (R. 58-59). In the absence of any statutory or Seventh
Circuit case law finding the Commissioner’s interpretation of the regulation
unreasonable, the court must defer to that interpretation. Cf. Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 104 S. Ct. 2778, 81 L.
Ed. 2d 694 (1984) (Even assuming this is an implicit legislative delegation of
authority, “a court may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the administrator of an
agency.”). The ALJ was therefore permitted to rely on the VE’s testimony as to
the number of positions available nationally to meet his step five burden, and
he was not required to consider the Trimiar factors. The ALJ’s findings that a
significant number of jobs existed and his decision that Souders is not disabled
were well supported, and the court must affirm them.
For the foregoing reasons, the ALJ’s decision that Souders is not disabled
and therefore not entitled to benefits is AFFIRMED. Judgment consistent with
this Entry shall now issue.
SO ORDERED the 20th day of November, 2013.
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
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