King v. SSA

Filing 19

MEMORANDUM OPINION & ORDER: (1) Ms. King's Motion for Summary Judgment (Doc. # 14 ) is DENIED; (2) The Commissioner's Motion for Summary Judgment (Doc # 18 ) is GRANTED; (3) This matter is DISMISSED and STRICKEN from the Court's active docket; and (4) A separate Judgment shall be entered herewith. Signed by Judge David L. Bunning on 8/1/2022.(APR)cc: COR

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 20-251-DLB
BESSIE ANN KING
v.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

KILOLO KIJAKAZI,
ACTING COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

***********
I.

INTRODUCTION
This matter is before the Court on Plaintiff Bessie Ann King’s Motion for Summary

Judgment (Doc. # 14), filed pursuant to 42 U.S.C § 405(g), which allows Plaintiff to obtain
judicial review of an administrative decision by the Social Security Administration.
Defendant Kilolo Kijakazi, Acting Commissioner of the Social Security Administration,1
has filed a Cross-Motion for Summary Judgment (Doc. # 18). The Court, having reviewed
the administrative record and the parties’ motions, and for the reasons stated herein,
affirms the Commissioner’s decision.
II.

FACTUAL AND PROCEDURAL BACKGROUND
Bessie Ann King is a 56-year-old resident of Gray Hawk, Kentucky. (Tr. 187, 190).

Ms. King filed an application for Supplemental Security Income (“SSI”) benefits with the

During the pendency of this lawsuit, Dr. Kilolo Kijakazi replaced Andrew Saul as Acting
Commissioner of the Social Security Administration. Mr. Saul, as former Commissioner, was
named in the original Complaint (Doc. # 1) of this lawsuit, but the Social Security Administration
as an entity remains the official defendant, and so the Court has substituted the current Acting
Commissioner’s name in the case caption.
1

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Social Security Administration (“SSA”) on January 15, 2018. (Tr. 187). In her application,
Ms. King alleged disability beginning in January 2016, and continuing through the date of
application, based on an anxiety disorder and a learning disability. (Tr. 188). In March
2018, Ms. King’s claim was initially denied (Tr. 97), and it was denied again on
reconsideration in July 2018 (Tr. 104).

Ms. King requested a hearing before an

Administrative Law Judge (“ALJ”) shortly thereafter (Tr. 112), and a telephonic hearing
was held before ALJ Boyce Crocker in April 2020. (Tr. 29). In his decision, ALJ Crocker
noted that Ms. King had previously applied for benefits in 2014, and was determined to
be not disabled, but that new evidence had been presented since then.

(Tr. 15).

Nonetheless, the ALJ issued an unfavorable decision later in April 2020, finding that Ms.
King was still not disabled within the Social Security Act. (Tr. 12). Ms. King then appealed
to the SSA Appeals Council, who denied her appeal in October 2020. (Tr. 1). That denial
precipitated the filing of this action. (See Doc. # 1).
III.

ANALYSIS
A.

Standard of Review

Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729-30 (6th Cir. 2007) (citing Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)). “Substantial evidence” is defined as “more
than a scintilla of evidence but less than a preponderance; it is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec’y of
Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kirk v. Sec’y of Health &
Hum. Servs., 667 F.2d 524, 535 (6th Cir. 1981)). Courts are not to conduct a de novo

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review, resolve conflicts in the evidence, or make credibility determinations. Id. (citing
Brainard v. Sec’y of Health & Hum. Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

Rather, the Court must affirm the

Commissioner’s decision if it is supported by substantial evidence, even if the Court might
have decided the case differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). In other words, if
supported by substantial evidence, the Commissioner’s findings must be affirmed even if
there is evidence favoring Plaintiff’s side. Id.; see also Listenbee v. Sec’y of Health &
Hum. Servs., 846 F.2d 345, 349 (6th Cir. 1988).

In determining whether the

Commissioner’s conclusion is supported by substantial evidence, courts “must examine
the administrative record as a whole.” Cutlip, 25 F.3d at 286.
B.

The ALJ’s Determination

To determine disability, an ALJ conducts a five-step analysis. Walters, 127 F.3d
at 529.

Under Step One, the ALJ considers whether the claimant is engaged in

substantial gainful activity; Step Two, whether any of the claimant’s impairments, alone
or in combination, are “severe”; Step Three, whether the impairments meet or equal a
listing in the Listing of Impairments; Step Four, whether the claimant can still perform his
past relevant work; and Step Five, whether a significant number of other jobs exist in the
national economy that the claimant can perform. See id. (citing 20 C.F.R. § 404.1520).
The burden of proof rests with the claimant for Steps One through Four. Jones v. Comm’r
of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (citing Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987)). At Step Five, the burden of proof “shifts to the Commissioner to identify

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a significant number of jobs in the economy that accommodate the claimant’s residual
functional capacity.” Id. (citing Bowen, 482 U.S. at 146 n.5).
Here, the ALJ determined at Step One that Ms. King had not engaged in
substantial gainful activity since the date of her application in January 2018. (Tr. 17). At
Step Two, the ALJ found that Ms. King’s anxiety and learning disorder were severe
impairments.

(Tr. 18).

The ALJ concluded at Step Three that Ms. King’s severe

impairments did not meet or medically equal the severity of one of the listed impairments
in the Social Security Act, and so the analysis proceeded to the next step. (Tr. 18-20).
Before completing the fourth step, the ALJ found that Ms. King had the residual functional
capacity (“RFC”) “to perform medium work . . . except that she must avoid concentrated
exposure to pulmonary irritants,” and that she is “able to perform simple, routine, and
repetitive tasks performed in a work environment free of any fast-paced production
requirements, and involving simple work-related decisions, with few, if any workplace
changes,” and that she “could have occasional interaction with coworkers, supervisors,
and the general public.” (Tr. 20). At Step Four, the ALJ noted that because Ms. King had
no past relevant work, she would automatically not be able to perform her past relevant
work with her RFC. (Tr. 22). Lastly, at Step Five, the ALJ concluded that given Ms. King’s
age, education, work experience, and RFC, there are jobs that exist in significant numbers
in the national economy that she could perform. (Id.). Specifically, after consulting with
a Vocational Expert (“VE”), the ALJ noted that Ms. King could perform “unskilled
representative light occupations such as mail sorter.” (Tr. 23). Because that job can be
performed within Ms. King’s RFC, the ALJ concluded that she was not disabled within the
definitions of the Social Security Act. (Id.).

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On appeal to this Court, Ms. King argues that the ALJ’s finding at Step Five is not
supported by substantial evidence, as he failed to identify and resolve conflicts between
the VE’s testimony and the Dictionary of Occupational Titles (“DOT”). (Doc. # 14 at 6).
Ms. King further posits that the VE’s testimony was not reliable, and that the MedicalVocational Guidelines direct a finding of disabled. (Id. at 7). After reviewing the filings
made by Ms. King and the Commissioner, the Court finds that Ms. King’s arguments do
not warrant reversal, and the Commissioner’s decision is thus affirmed for the foregoing
reasons.
C.

Discussion

As previously stated, “substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Cutlip, 25 F.3d at 286. The
Court cannot weigh the evidence or re-litigate the case, but only examine the sufficiency
of the evidence, even if the Court may have decided the case in a different manner. See
Her, 203 F.3d at 389-90. If the ALJ’s decision is supported by substantial evidence, the
Court must affirm the decision. Cutlip, 25 F.3d at 286. The Court will evaluate each of
Ms. King’s arguments in turn under this standard.
1.

The ALJ’s finding at Step Five is supported by substantial
evidence.

With respect to the ALJ’s finding at Step Five, that Ms. King is capable of
performing work as a mail sorter, Ms. King argues that the ALJ’s decision is not supported
by substantial evidence. (Doc. # 14 at 1). More specifically, Ms. King posits that the ALJ
failed to identify and resolve conflicts between the VE’s testimony and the Dictionary of

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Occupational Titles, and that the VE’s testimony was not reliable.

(Id. at 5-7).

Unfortunately for Ms. King, both of her arguments are unavailing.
Before proceeding to Step Five, the ALJ concluded that Ms. King’s RFC would
allow her to “perform simple, routine, and repetitive tasks . . . involving simple work-related
decisions, with few, if any workplace changes,” in addition to other limitations. (Tr. 20).
During the hearing, the VE testified that mail sorter was the only job in the DOT that would
match Ms. King’s RFC when posed as a hypothetical by the ALJ. (Tr. 47-48). In the DOT
listing for mail sorter, the job is assigned a Specific Vocational Preparation (“SVP”)
number of 2, which indicates that a worker could learn how to complete the job in
“anything beyond short demonstration up to and including one month.”2 In addition to the
SVP, the mail sorter job is also assigned a Reasoning Level of 3, which requires the ability
to “[a]pply commonsense understanding to carry out instructions furnished in written, oral,
or diagrammatic form [and] [d]eal with problems involving several concrete variables in or
from standardized situations.”3
Ms. King argues that these listings do not align with the mental components of her
RFC, which restrict her only to “simple work-related decisions[.]” (Doc. # 14 at 7).
Instead, she writes that her mental RFC “is more consistent with a reasoning level of 1
(“R1”), which requires the ability to understand and carry out simple one- or two-step
instructions with occasional or no variables in job situations.” (Id.). Because of the

Dictionary of Occupational Titles, Appendix C, UNITED STATES DEPARTMENT OF LABOR,
(4th. ed, 1991), https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC,
accessed August 1, 2022.
2

3

Id.
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posited inconsistency, Ms. King further alleges that there is a “clear and significant conflict
between the VE’s testimony and the DOT which was not addressed by the ALJ.” (Id.).
Ms. King is correct that the law “imposes on ALJs an affirmative duty to ask VEs if
the evidence they provide ‘conflicts with the information provided in the DOT’ and to
resolve any ‘apparent conflicts.’” Joyce v. Comm’r of Soc. Sec., 662 F. App’x 430, 435
(6th Cir. 2016) (quoting SSR 00-4p, 2000 WL 1989704 (Dec. 4, 2000)). In the Sixth
Circuit, “an ALJ satisfies her duty to inquire if she asks the VE whether the VE’s testimony
is consistent with the DOT and receives an affirmative response.” Id. (citing Martin v.
Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006)).
Here, in the ALJ’s opinion, he wrote that he had “determined that the vocational
expert’s testimony [was] consistent with the information contained in the Dictionary of
Occupational Titles.” (Tr. 23). Furthermore, the transcript of the telephonic hearing
shows that the ALJ asked the following question to the VE: “Has your testimony, Ms. Hale,
been consistent with the Dictionary of Occupational Titles?” (Tr. 49). Ms. Hale, the VE,
responded, “Yes, your honor.” (Id.). Thus, the ALJ in Ms. King’s case satisfied his duty
under Sixth Circuit case law to inquire about and resolve any conflicts between the
testimony.
Second, Ms. King argues that the VE’s testimony was facially unreliable because
the DOT’s mail sorter listing is obsolete, and “commonsense dictates that when [the
DOT’s] descriptions appear obsolete, a more recent source of information should be
consulted.” (Doc. # 14 at 8). In support of this argument, Ms. King points out that the
DOT has been replaced by O*NET (a newer digital database) within the Department of

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Labor, and the updated O*NET listing for mail sorter lists duties that would be beyond her
RFC. (Id. at 9).
While Ms. King has provided evidence that at least one other district court has
identified discrepancies between the DOT and O*NET as evidence of the mail order listing
being obsolete, this Court notes that the SSA’s governing regulations have not formally
adopted O*NET. See 20 C.F.R. § 404.1566(d) (listing acceptable sources that the ALJ
may take administrative notice of for accessing job data). In Cunningham v. Astrue, the
only controlling case cited by Ms. King in support of this argument, the Sixth Circuit noted
that “when such descriptions appear obsolete, a more recent source of information should
be consulted.” 360 F. Appx 606, 615 (6th Cir. 2010). However, in Cunningham, the two
jobs being considered, document preparer and security camera monitor, were listed in
the DOT but were completely omitted from O*NET, which the court saw as a “common
sense” indicator of the DOT’s unreliability, thus translating to a lack of substantial
evidence. Id. at 615-16. O*NET’s “Crosswalk” function links the DOT mail sorter listing
to its own “Mail Clerks and Mail Machine Operators, Except Postal Service” listing. See
Hamilton v. Berryhill, No. 4:17-CV-53-HBB, 2018 WL 1324163, at *5 (W.D. Ky. Mar. 14,
2018) (identifying parallel mail sorter listings via “Crosswalk” function inside O*NET).
Thus, because the mail sorter listing is included in O*NET, no “commonsense” evidence
of obsolescence exists as contemplated by Cunningham. 360 F. App’x at 615.
In spite of the shortcomings in her arguments, Ms. King has presented evidence
that the ALJ’s decision at Step Five was a close call. Nonetheless, as previously stated,
this Court cannot re-weigh the evidence or re-litigate the case, but only examine the
sufficiency of the evidence, even if the Court may have decided the case in a different

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manner. See Her, 203 F.3d at 389-90. Because the ALJ followed SSA regulations and
controlling case law interpreting those regulations, the Court finds that his decision at
Step Five is supported by substantial evidence and must be affirmed.
2.

The ALJ’s reading of the Medical-Vocational Guidelines is
supported by substantial evidence.

Lastly, Ms. King briefly argues that the ALJ incorrectly applied the MedicalVocational Guidelines at Step Five. (Doc. # 14 at 9). The Medical-Vocational Guidelines
are regulations which provide for “cases which cannot be evaluated on medical
considerations alone.” 20 C.F.R. 404(P), app. 2 § 200.00. The Guidelines also provide
for consideration of “vocational factors . . . in combination with the individual’s residual
functional capacity[,]” and when “the findings of fact . . . coincide with all of the criteria of
a particular [Guideline], the rule directs a conclusion as to whether the individual is or is
not disabled.” Id. In short, the Guidelines direct the ALJ to a certain conclusion when a
claimant’s “vocational factors” and RFC are certain. See id.
Ms. King has argued that the Guidelines direct the ALJ to find her disabled. In
support of that argument, she writes that she “is clearly precluded from carrying out the
mental demands of a mail sorter [and] given the Commissioner’s failure to meet his
burden of proving that jobs exist at the medium or light level of exertion, [she] is relegated
to sedentary work only.” (Doc. # 14 at 10). From there, Ms. King argues that the MedicalVocational Guidelines dictate a finding of “disabled” for people who can only perform
sedentary work. (Id.). While her reading of the Guidelines is correct, the root of Ms.
King’s argument, that she is “relegated to sedentary work only,” is prefaced either on her
RFC being incorrect, or in the mail sorter job being invalid, because the RFC assigned to
her by the ALJ would not direct a finding of disabled under the Guidelines. See 20 C.F.R.
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404(P), app. 2. She has proven neither of those arguments, but the Court will nonetheless
address them arguendo.
As previously stated, the ALJ determined that Ms. King had the RFC “to perform
medium work” as defined by the governing regulations.

(Tr. 20).

In making that

determination, the ALJ cited medical opinions and prior administrative findings from Ms.
King’s previous application for benefits. (E.g., Tr. 20-23). While Ms. King has not directly
argued that the determined RFC is incorrect, the Court sees that it is clearly supported by
substantial evidence and must be upheld. With respect to the mail sorter position, the
Court has already stated that the ALJ’s reasoning at Step Five is supported by substantial
evidence, as the ALJ appropriately questioned the VE, and the mail sorter position is not
facially obsolete. Thus, Ms. King’s argument that she is “relegated to sedentary work
only” is unavailing, and thus, the Medical-Vocational Guidelines which relate to people
who can only perform sedentary work are not applicable to her.
IV.

CONCLUSION
In close, the Court again notes that in reviewing the decision of an ALJ, the Court

cannot re-litigate a case, and it cannot re-weigh the evidence. Her, 203 F.3d at 389-90.
Even when the Court may have decided a case differently, the Court must affirm the ALJ’s
decision if it is supported by substantial evidence. Cutlip, 25 F.3d at 286. In this case,
for the reasons stated herein, the ALJ’s decision is supported by an ample amount of
substantial evidence, and thus it will be affirmed.
Accordingly, IT IS ORDERED that:
(1)

Ms. King’s Motion for Summary Judgment (Doc. # 14) is DENIED;

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(2)

The Commissioner’s Motion for Summary Judgment (Doc. # 18) is

GRANTED;
(3)

This matter is DISMISSED and STRICKEN from the Court’s active docket;

(4)

A separate Judgment shall be entered herewith.

and;

This 1st day of August, 2022.

K:\DATA\SocialSecurity\MOOs\London\20-251 King MOO.docx

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