Harris v. Social Security, Commissioner of

Filing 13

OPINION AND ORDER Denying Plaintiff's 9 Motion for Summary Judgment and Granting Defendant's 10 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANITA HARRIS,
Plaintiff,

Case No. 13-cv-13519
Hon. Matthew F. Leitman

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S [9] MOTION FOR
SUMMARY JUDGMENT AND GRANTING DEFENDANT’S
[10] MOTION FOR SUMMARY JUDGMENT
In mid-2007, after 24 years of employment in health care and related fields,
Plaintiff Anita Harris left her job as a licensed practical nurse. According to
Plaintiff, she was no longer able to work due to various medical conditions,
including diabetes and a persistent ulcer on her right leg that required multiple
hospitalizations. Plaintiff contends that these conditions, among others, entitle her
to disability benefits.
On December 23, 2010, Administrative Law Judge Patricia McKay (the
“ALJ”) found that Plaintiff was not entitled to benefits.

Plaintiff thereafter

appealed the ALJ’s decision to the Social Security Appeals Council (the “Appeals
Council”), which denied Plaintiff’s request for review of the ALJ’s decision.

1

Plaintiff then filed this action. Plaintiff and Defendant the Commissioner of Social
Security (“the Commissioner”) have now filed cross-motions for summary
judgment. (See ECF #9 and ECF #10.) For the reasons set forth below, the Court
GRANTS the Commissioner’s motion for summary judgment (ECF #10) and
DENIES Plaintiff’s motion (ECF #9).
PROCEDURAL HISTORY
Plaintiff filed applications for disability insurance benefits and supplemental
security income on May 9, 2006. In her applications, Plaintiff alleged that she had
been disabled since June 1, 2005, due to degenerative arthritis, diabetes, and high
blood pressure.1 (See TR at 287.) The Commissioner denied benefits. (Id. at 181,
185.) Plaintiff retained counsel and requested a de novo hearing, which was held
on September 23, 2008, before the ALJ (the “first hearing”). (Id. at 84-158.) After
hearing testimony from Plaintiff and vocational expert Pauline Pegram
(“Pegram”), the ALJ found that Plaintiff was not disabled within the meaning of
the Social Security Act (the “Act”) because Plaintiff was capable of performing her
past relevant work as a “nurse/records-co-coordinator.” (Id. at 173.) Plaintiff
appealed the ALJ’s decision, and on October 29, 2009, the Appeals Council
granted her request for review. (Id. at 178-80.) The Appeals Council remanded
the case to the ALJ for further consideration of medical evidence relating to

1

As discussed further below, although Plaintiff alleged that her disability onset
date was June 1, 2005, she continued to work at least part-time until 2007.
2

Plaintiff’s right leg injury. (Id. at 178-80.)
On remand, the ALJ held another hearing on October 4, 2010 (the “second
hearing”).

After hearing testimony from Plaintiff and a different vocational

expert, Jennifer Turecki (“Turecki”), the ALJ again found that Plaintiff was not
disabled within the meaning of the Act. (Id. at 20-38.) As described in more detail
below, after the second hearing, the ALJ found that Plaintiff was not entitled to
benefits because she was capable of performing a significant number of jobs in the
national economy. (Id. at 32-34.) Plaintiff appealed the ALJ’s decision, and on
June 17, 2013, the Appeals Council denied her request for review. (Id. at 1-6.)
Plaintiff subsequently filed this action, and the parties filed cross-motions for
summary judgment. (See ECF #9 and ECF #10.)
APPLICABLE LAW
A.

Framework for Social Security Determinations

The Act “entitles benefits to certain claimants who, by virtue of a medically
determinable physical or mental impairment of at least a year's expected duration,
cannot engage in ‘substantial gainful activity.’” Combs v. Comm'r of Soc. Sec., 459
F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 42 U.S.C. § 423(d)(1)(A)). A
claimant qualifies as disabled “if she cannot, in light of her age, education, and
work experience, ‘engage in any other kind of substantial gainful work which
exists in the national economy.’” Id (quoting 42 U.S.C. § 423(d)(2)(A)).
3

Under the authority of the Act, the Social Security Administration (the
“SSA”) has established a five-step sequential evaluation process for determining
whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The five steps
are as follows:
In step one, the SSA identifies claimants who “are doing
substantial gainful activity” and concludes that these
claimants are not disabled. [20 C.F.R.] §
404.1520(a)(4)(i). If claimants get past this step, the SSA
at step two considers the “medical severity” of claimants'
impairments, particularly whether such impairments have
lasted or will last for at least twelve months. Id. §
404.1520(a)(4)(ii). Claimants with impairments of
insufficient duration are not disabled. See id. Those with
impairments that have lasted or will last at least twelve
months proceed to step three.
At step three, the SSA examines the severity of
claimants' impairments but with a view not solely to their
duration but also to the degree of affliction imposed. Id. §
404.1520(a)(4)(iii). Claimants are conclusively presumed
to be disabled if they suffer from an infirmity that
appears on the SSA's special list of impairments, or that
is at least equal in severity to those listed. Id. §
404.1520(a)(4)(iii), (d). The list identifies and defines
impairments that are of sufficient severity as to prevent
any gainful activity. See Sullivan v. Zebley, 493 U.S. 521,
532, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). A person
with such an impairment or an equivalent, consequently,
necessarily satisfies the statutory definition of disability.
For such claimants, the process ends at step three.
Claimants with lesser impairments proceed to step four.
In the fourth step, the SSA evaluates claimant's “residual
functional capacity,” defined as “the most [the claimant]
can still do despite [her] limitations.” 20 C.F.R. §
404.1545(a)(1). Claimants whose residual functional
4

capacity permits them to perform their “past relevant
work” are not disabled. Id. § 404.1520(a)(4)(iv), (f).
“Past relevant work” is defined as work claimants have
done within the past fifteen years that is “substantial
gainful activity” and that lasted long enough for the
claimant to learn to do it. Id. § 404.1560(b)(1). Claimants
who can still do their past relevant work are not disabled.
Those who cannot do their past relevant work proceed to
the fifth step, in which the SSA determines whether
claimants, in light of their residual functional capacity,
age, education, and work experience, can perform
“substantial gainful activity” other than their past
relevant work. See id. § 404.1520(a)(4)(v), (g)(1).
Claimants who can perform such work are not disabled.
See id.; § 404.1560(c)(1).
Combs, 459 F.3d at 642–43. “Through step four, the claimant bears the burden of
proving the existence and severity of limitations caused by her impairments and
the fact that [ ]he is precluded from performing her past relevant work.” Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). If the analysis reaches the
fifth step, the burden transfers to the Commissioner. See Combs, 459 F.3d at 643.
At that point, the Commissioner is required to show that “other jobs in significant
numbers exist in the national economy that [claimant] could perform given her
[residual functional capacity (“RFC”)] and considering relevant vocational
factors.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); 20
C.F.R. §§ 416.920(a)(4)(v) and (g).

5

B.

This Court’s Standard of Review

This Court has jurisdiction to review the Commissioner's final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited: the Court “must affirm the Commissioner's conclusions absent a
determination that the Commissioner has failed to apply the correct legal standard
or has made findings of fact unsupported by substantial evidence in the record.”
Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal
quotation marks omitted).
Substantial evidence is “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.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007), quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994).

If the Commissioner's decision is supported by

substantial evidence, “it must be affirmed even if the reviewing court would decide
the matter differently and even if substantial evidence also supports the opposite
conclusion.” Cutlip, 25 F.3d at 286 (internal citations omitted); see also Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the substantial
evidence standard “presupposes ... a zone of choice within which the
decisionmakers can go either way, without interference by the courts” (internal
quotation marks omitted)).
6

When reviewing the Commissioner's factual findings for substantial
evidence, the Court is limited to an examination of the record and must consider
that record as a whole. Bass v. McMahon, 499 F.3d 506, 512–13 (6th Cir. 2007);
Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The
Court “may look to any evidence in the record, regardless of whether it has been
cited by the Appeals Council.” Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001). There is no requirement, however, that either the ALJ or this
Court discuss every piece of evidence in the administrative record. Kornecky v.
Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006). Further, this Court
does “not try the case de novo, resolve conflicts in evidence, or decide questions of
credibility.” Bass, 499 F.3d at 509; Rogers, 486 F.3d at 247.
RELEVANT FACTUAL BACKGROUND
A. Plaintiff’s Testimony: Medical and Occupational Histories
1. Medical History
At the first hearing, Plaintiff testified that she had been unable to work since
June 30, 2007. (TR at 111.) Plaintiff claimed that she suffered from diabetes (id.
at 93), degenerative arthritis in her knee, joints, and back (id. at 100), and anemia
(id.). Plaintiff testified that she had been repeatedly hospitalized over the past two
years for treatment of infections related to her diabetes. (Id. at 93, 99.) She also
testified that in January 2007, she suffered a burn on her right leg from a space
7

heater and that the burn had developed into a persistent ulcer. (Id. at 93, 98-99.)
Plaintiff said that her sleep was frequently disrupted by pain. (Id. at 94-95, 112.)
Plaintiff noted that she was taking Glipizide for her diabetes (id. at 100) and she
was also taking Vancomycin, Darvocet, and Motrin (id. at 110).
Plaintiff further testified that as a result of her ulcer she had to keep her feet
elevated. (Id. at 94.) According to Plaintiff, she had to change the bandages on the
ulcer three times per day. (Id. at 102.) Plaintiff also said that she was prescribed a
cane in early 2007 and that she used it for balance any time that she was on her
feet. (Id. at 104.) Finally, Plaintiff asserted that she could sit only for 20 minutes
at a time. (Id. at 105.) Plaintiff testified that she weighed 308 pounds and was 5feet and 3-inches tall. (Id. at 90.)
At the second hearing, Plaintiff again testified about the arthritis in her knees
(id. at 47), her diabetes (id. at 54), and anemia (id. at 55). Plaintiff testified that
although the ulcer on her leg had healed, her leg still swelled and was painful. (Id.
at 49.) Plaintiff further testified that she would have to keep her leg elevated above
her waist indefinitely. (Id. at 50.) Plaintiff testified that her inability to sit had
gotten worse since the first hearing. (Id. at 55.) She stated that she could stand for
only 30 minutes and that in order to get comfortable she had to lay down. (Id. at
55-56.) Plaintiff testified that she was unable to walk without a cane. (Id. at 56.)

8

In addition, Plaintiff testified that she suffered a fall in 2009 and tore the
rotator cuff on her right (dominant) side. (Id. at 50-51.) Plaintiff testified that
since the fall she had experienced numbness from her right shoulder blade through
her arm.

(Id. at 52.)

Plaintiff also testified that the numbness occasionally

switched from her right side to her left side. (Id.) Plaintiff said that she was in
extreme pain from the fall and that she experienced migraine headaches. (Id. at
53.)
Plaintiff indicated that she was taking Glipizide and Intelol for diabetes,
Lisinopril for high blood pressure, Zocor for high cholesterol, iron supplements for
anemia, Atarax for anxiety, and several pain medications.

(Id. at 55.)

She

additionally testified that she experienced insomnia, nightmares, dry mouth, and an
upset stomach as side effects from the medications, and that she napped for two
hours every day. (Id. at 60.)
2. Occupational History
At the first hearing, Plaintiff testified that she had an associate’s degree in
liberal arts and that she went to vocational school for one year to become a
licensed practical nurse. (Id. at 91.) Plaintiff testified that she had held various
jobs, mostly in the medical field. For instance, Plaintiff testified that for the
previous 10 years, she had worked in home health care, with some clinical
responsibilities, including wound care, administering medication, and giving
9

injections. (Id. at 114.) Plaintiff stated that she was responsible for charting, but it
was not computer-based.

(Id.)

Plaintiff also testified that she worked in a

substance abuse clinic where she performed data entry from 1992 until 1995.2 (Id.
at 114-15, 127.) Plaintiff further stated that she had been a nanny for three years
for an autistic child. (Id. at 116-18.) Finally, Plaintiff testified that she had been a
contract transport nurse for a school from approximately 2004 until 2007. (Id. at
119, 126.)
At the second hearing, Plaintiff again testified about her jobs as a licensed
practical nurse, home health aide, and contract transport nurse. (Id. at 48, 60-61.)
She also described a job she held as a medical receptionist in a doctor’s office.3
(Id.) Plaintiff testified that in her role as a medical receptionist, she discharged
patients (id. at 48) and assisted with the doctors’ examinations (id. at 64).
Specifically, she said that she assisted with “vaginal exams” and “injections.” (Id.
at 65.) Plaintiff testified that she gave the doctors “instruments they needed for the
exams” and “gave patients discharge instructions [and] set up their appointments
for the surgery.” (Id. at 64-65.) Plaintiff stated that she was not required to do any
typing in her job as a medical receptionist. (Id. at 73.)

2

Plaintiff initially testified that she worked in the substance abuse clinic “[m]aybe
six months … [t]o a year … in the ‘90s.” (Id. at 114.) She later clarified that she
worked there from 1992 until 1995. (Id. at 127.)
3
Based on the description of Plaintiff’s responsibilities, this job appears to be
distinct from Plaintiff’s job in the substance abuse clinic. However, at various
points in the record, both jobs are referred to as “medical receptionist.”
10

Plaintiff testified at the second hearing that she worked full time until 2005
and then part-time until 2007, in each case because of her medical conditions. (Id.
at 46-49.)
B. Plaintiff’s Medical Records
As explained further below, the ALJ thoroughly reviewed Plaintiff’s medical
evidence and summarized her conclusions in each of her two written opinions.
(See id. at 26-31, 170-73.) Plaintiff does not dispute the ALJ’s factual findings
with respect to Plaintiff’s medical record, nor does Plaintiff dispute the ALJ’s
conclusion, discussed below, that she has the RFC to perform sedentary work with
certain additional exertional limitations. The Court therefore will not restate the
full record of medical evidence.

The Court has, however, conducted an

independent review of Plaintiff’s medical record and will incorporate comments
and citations as necessary throughout this opinion.
C. 2008 Proceedings: Vocational Expert Testimony and ALJ Findings
1. Vocational Expert Testimony
At the first hearing, the ALJ heard testimony from vocational expert Pegram.
The ALJ asked Pegram to describe Plaintiff’s past work activity from a vocational
standpoint. Pegram testified that Plaintiff’s prior jobs were all skilled or semiskilled. Pegram noted that each of the jobs required at least light exertion, except

11

for the “nurse records coordinator” or “receptionist” at the substance abuse clinic,
which was sedentary. (Id. at 122-24.)
The ALJ then asked Pegram to consider a hypothetical person of Plaintiff’s
age, education, and past relevant work experience who was physically capable of
performing light work activities. (Id. at 137.) Pegram testified that such an
individual could perform Plaintiff’s past relevant work as a nurse records
coordinator. (Id. at 139.)
Pegram also testified that Plaintiff’s “medical” and “clinical” skills from her
jobs as a licensed practical nurse would be transferrable to other nursing and
nursing assistant jobs, such as a medical assistant in a doctor’s office or a
phlebotomist. (Id. at 129.) Pegram testified that any computer or clerical skills
that Plaintiff may have acquired from her data entry job at the substance abuse
clinic would now be obsolete “and would not be transferable.” (Id. at 128-29.)
Pegram noted that all such jobs to which Plaintiff’s medical and clinical skills
would transfer would be at the medium or light exertional level. (Id.) She noted
that “[t]here’s nothing lower than a light.” (Id.)
2. The ALJ’s Initial Findings
On December 23, 2008, the ALJ issued a detailed opinion in which she
determined that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from June 1, 2005 through the date of this decision.” (Id. at 174.)
12

The ALJ reached this conclusion after progressing through the five steps of the
evaluation process. First, the ALJ determined that although Plaintiff engaged in
substantial gainful activity after the alleged onset date of June 1, 2005, Plaintiff did
not engage in substantial gainful activity after June 30, 2007.

(Id. at 169.)

Therefore, the ALJ moved to the second step of the evaluation process, in which
the ALJ concluded that Plaintiff had the following “severe impairments:”
degenerative joint disease in the right shoulder and knees, osteoarthritis,
degenerative disc disease, diabetes mellitus with foot and leg ulcerations, obesity,
and high blood pressure. (Id.)
Despite these severe impairments, the ALJ held at step three of the
evaluation process that none of the impairments, or their combination, “meets or
medically equals one of the listed impairments” under applicable SSA rules. (Id.)
The ALJ noted that there is no listing for obesity, Plaintiff’s back impairment was
not accompanied by neurological deficits, and her condition “has not resulted in
inability to ambulate effectively (e.g., the inability to walk without the use of a
walker, two crutches, or two canes).” (Id. at 170.) The ALJ also noted that
Plaintiff’s diabetes had not resulted in neuropathy, and her hypertension was
controlled with medication. (Id.)

13

At step four of the evaluation, the ALJ concluded that Plaintiff had “the
[RFC] to perform light work,” with certain exertional limitations.

(Id.)

Specifically, the ALJ noted that Plaintiff was unable to lift more than 20 pounds
occasionally, 10 pounds frequently, stand or walk 6 hours in an 8 hour day, or sit 6
hours in an 8 hour day. (Id.) The ALJ also noted that Plaintiff required a sit/stand
option and could not perform more than occasional climbing, balancing, stooping,
kneeling, crouching, crawling, or overhead reaching.

(Id.)

In making this

determination, the ALJ exhaustively reviewed Plaintiff’s medical records and
explained why Plaintiff’s impairments would not prevent her from performing
light work with the relevant limitations. (Id. at 170-73.) The ALJ also noted that
“claimant’s allegedly disabling impairments were present at approximately the
same level of severity prior to the alleged onset date” and “[t]he fact that the
impairments did not prevent the claimant from working at that time strongly
suggests that same would not currently prevent work.” (Id. at 172.)
Also at step four, the ALJ concluded that Plaintiff’s RFC enabled her to
perform her past relevant work as a “nurse/records-co-coordinator (medical
receptionist[)].” (Id. at 173.) The ALJ characterized this job as semi-skilled and
sedentary. (Id.)

14

Having found that Plaintiff could perform her past relevant work, it was
unnecessary for the ALJ to proceed to step five in order to conclude that Plaintiff
was not disabled under the Act. However, the ALJ noted that “[e]ven assuming
that the claimant did not have past relevant work as a nurse/records co-coordinator,
there are other jobs she could perform.”

(Id.)

Specifically, the ALJ cited

vocational expert Pegram’s testimony that, taking into account Plaintiff’s age,
education, work experience, and RFC, Plaintiff could perform jobs such as
inspecting, sorting, packaging, and hand assembly. (Id. at 174.) The ALJ stated
that 30,000 such jobs exist in Michigan, and half of those jobs are in southeastern
Michigan. (Id.)
D. The Appeals Council Decision
Plaintiff appealed the ALJ’s decision, and on October 29, 2009, the Appeals
Council granted her request for review. (Id. at 178-80.) The Appeals Council
remanded the case to the ALJ for further consideration of medical evidence
relating to Plaintiff’s right leg injury. (Id. at 178-80.) Specifically, the Appeals
Council noted that “[a]dditional evidence was received … suggesting the
claimant’s impairments may be more severe than previously indicated.” (Id. at
178.) The Appeals Council further noted that, in connection with the appeal,
Plaintiff “submitted additional evidence consisting of updated medical assessments
from treating sources … indicating that her condition has not improved, she cannot
15

stand and walk for any prolonged period of time, and she must elevate her leg
throughout the day.” (Id.) The Appeals Council found that “further development
and evaluation are needed to determine the extent to which the claimant’s
impairments impact her functional ability.” (Id. at 178-79.)
The Appeals Council ordered the ALJ, on remand, to “give further
consideration” to the treating source opinions and to Plaintiff’s maximum RFC.
(Id.) The Appeals Council authorized the ALJ to “obtain supplemental evidence
from a vocational expert to determine whether the claimant has acquired any skills
that are transferable with very little, if any vocational adjustment….” (Id.)
E. 2010 Proceedings: Vocational Expert Testimony and ALJ Findings
1. Vocational Expert Testimony
On remand, the ALJ determined that it was appropriate to obtain
supplemental evidence from a vocational expert. At the second hearing, vocational
expert Turecki testified that she had reviewed the evidence in the record with
respect to Plaintiff’s claim and was present for Plaintiff’s testimony at the second
hearing. (Id. at 72.) Turecki testified that a hypothetical person of Plaintiff’s age,
education, and past relevant work experience who was physically capable for
performing sedentary work and had certain additional exertional limitations,
including restrictions on reaching overhead, could not perform any of Plaintiff’s
past relevant work. (Id. at 75.) However, Turecki testified that such a hypothetical
16

claimant could perform the job of general office receptionist. (Id. at 75.) Turecki
further testified that the skills from Plaintiff’s job as a medical receptionist would
transfer to being a general office receptionist, which is considered semi-skilled and
sedentary. (Id. at 73.) In response to a question from the ALJ, Turecki listed the
specific skills that would transfer to the general office receptionist job as “greeting
of people and giving them information” and “[a]nswering phones.” (Id. at 74.)
Turecki testified that, in Southeast Michigan, there were 1,000 general office
receptionist jobs that required no typing. (Id. at 74.)
2. The ALJ’s Findings
On December 23, 2010, the ALJ issued a second opinion in which she again
determined that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from June 1, 2005 through the date of this decision.” (Id. at 33.) At
step one, the ALJ again found that Plaintiff engaged in substantial gainful activity
through 2007, but not thereafter. (Id. at 25.) The ALJ proceeded to step two and
determined that Plaintiff had the following “severe impairments:” obesity, diabetes
with non-healing ulcer of the right leg, degenerative joint disease in the right
shoulder, degenerative disc disease of the cervical spine with mild radiculitis, and
history of right knee arthroscopy. (Id.)

17

At step three of the evaluation process, the ALJ once again found that
Plaintiff did not have “an impairment or combination of impairments that meets or
medically exceeds one of the listed impairments….”

(Id. at 26.)

The ALJ

reviewed the medical evidence regarding the ulcer on Plaintiff’s leg and found that
“records reveal the ulcer to have cleared up, with no evidence of recurrent edema.”
(Id.) The ALJ stated that “claimant ambulates effectively, albeit with the reported
use of a cane, and does not meet the other highly specific requirements of any
musculoskeletal or neurological listing.” (Id.)
At step four of the evaluation, the ALJ changed her conclusion from the
2008 findings. Specifically, the ALJ found that Plaintiff had the RFC to perform
only sedentary work. (Id. at 27.) The ALJ noted that Plaintiff was limited to
“occasional crouching, crawling, kneeling, stooping/bending and climbing of
stairs” and must avoid “overhead reaching with the right upper extremity” and
climbing ladders.

(Id.)

The ALJ said that Plaintiff must be allowed “some

flexibility between sitting and standing while engaged in the work.” (Id.) In
making this determination, the ALJ conducted a thorough review of Plaintiff’s
medical records, including the records identified by the Appeals Council. (Id. at
28-31.) Notably, the ALJ identified medical records indicating that Plaintiff’s right
leg ulcer had “completely healed” by October 5, 2009. (Id. at 30.)

18

Next, the ALJ concluded that Plaintiff was “unable to perform any past
relevant work.” (Id. at 31.) The ALJ stated that Plaintiff’s past relevant work
included work as a licensed practical nurse, home health care aide, medical
receptionist/records clerk, and medical transcriptionist. (Id. at 32.) The ALJ noted
that “[a]ll of these jobs [are] considered semi-skilled in nature with the nursing
position being medium in exertion while the clerical jobs [are] classified as light.”
(Id.) The ALJ reiterated that Plaintiff was limited to sedentary work and found that
she was therefore unable to perform any past relevant work. (Id.)
At step five of the evaluation, the ALJ concluded that Plaintiff “has acquired
work skills from past relevant work that are transferable to other occupations with
jobs existing in significant numbers in the national economy.” (Id.) Specifically,
the ALJ cited vocational expert Turecki’s testimony that Plaintiff had acquired the
skills of greeting people, giving information, and answering telephones through her
job as a medical receptionist. (Id.) The ALJ also cited Turecki’s testimony that an
individual with the same age, education, past relevant work experience, and RFC
as Plaintiff could perform the job of general office receptionist. (Id. at 33.) The
ALJ further stated that 1,000 such jobs exist in southeast Michigan. (Id.) The ALJ
also noted that such jobs “would not be adversely impacted by the need to elevate
one’s feet to footstool level” and “the use of a cane would not interfere with the
performance of such jobs.” (Id.)
19

ANALYSIS
Plaintiff presents two specific challenges to the ALJ’s decision.

First,

Plaintiff asserts that “the evidence of record does not support the [ALJ’s] finding
that [P]laintiff acquired work skills from her past relevant work as a medical
receptionist.” (Pla.’s Br. at 1.) Second, Plaintiff claims that the ALJ erroneously
found certain “tasks” to be transferrable skills. (Id. at 14-15.) For the reasons
discussed below, the Court concludes that the Commissioner’s decision is
supported by substantial evidence, and Plaintiff’s arguments lack merit.
A. Plaintiff’s Work Skills from Past Relevant Work
Plaintiff asserts that the ALJ’s finding that she acquired work skills from her
past relevant work as a medical receptionist is not supported by substantial
evidence. (Id. at 7.) Plaintiff cites to vocational expert Pegram’s testimony in the
first hearing.

Specifically, Plaintiff asserts that Pegram “concluded that no

transferable skills resulted from [P]laintiff’s work as a ‘medical receptionist’” and
that Plaintiff’s “other past work afforded no transferable skills to any other
sedentary jobs.” (Id. at 13.) Plaintiff points to Pegram’s statements that Plaintiff’s
computer skills were so outdated as to be obsolete and that “[t]here’s nothing lower
than a light” exertional level job to which her past relevant work skills would
transfer. (Id. at 13, citing TR at 128-29.)

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Plaintiff also takes issue with the ALJ’s reliance on the testimony of the
second vocational expert. Plaintiff contends that Turecki “was not provided a
description of [P]laintiff’s work at the substance abuse clinic” and “neither
testimony from [P]laintiff, nor guidance from the ALJ were offered.” Plaintiff
claims that Turecki therefore “erroneously found transferable clerical skills.” (Id.
at 14.) Plaintiff maintains that her past relevant work afforded her no transferrable
skills to any sedentary positions. (Id. at 12.)
Plaintiff’s contentions are without merit. There is substantial evidence in the
record to support the ALJ’s conclusion that Plaintiff acquired work skills from her
past relevant work as a medical receptionist and that those skills are transferable to
being a general office receptionist. At the second hearing, the ALJ asked Turecki
whether “the skills from [Plaintiff’s] past work transfer to any other types of jobs.”
(TR at 73.) Turecki responded that “[t]he medical receptionist job would” have
skills that would transfer to being a general office receptionist, which “would be
considered semi-skilled and sedentary.” (Id.) The ALJ also asked Turecki to
identify the “specific skills from [the medical receptionist job] that transfer to the
general office receptionist” job. (Id. at 74) Turecki identified “greeting of people
and giving them information” and “[a]nswering phones” as the transferrable skills.
(Id.) The ALJ expressly relied on this testimony in concluding that Plaintiff

21

acquired work skills from her past relevant work as a medical receptionist and that
such skills are transferrable to the job of general office receptionist. (Id. at 33.)
Plaintiff’s attempts to discredit Turecki’s testimony at the second hearing are
unsuccessful. Plaintiff attacks Turecki’s testimony on the ground that Turecki
“was not provided a description of [P]laintiff’s work at the substance abuse clinic”
(Pla.’s Br. at 14.) However, Turecki testified that prior to the second hearing she
had “reviewed the evidence provided to [her] regarding [Plaintiff].” (TR at 72; see
also id. at 74 (referencing Turecki’s “review of the file”)). Plaintiff has made no
specific showing that the evidence provided to Turecki lacked any relevant
information regarding Plaintiff’s occupational history. Moreover, even if Turecki
had not reviewed Plantiff’s work history before the second hearing, Plaintiff’s
testimony regarding her job as a medical receptionist at that hearing – for which
Turecki was present – was more extensive than her testimony at the first hearing.
(Id. at 48, 64-65.) It was the testimony in the second hearing, in which Plaintiff
testified that she “discharge[ed] patients” and “set up their appointments,” on
which Turecki appears to have based her conclusion that Plaintiff possessed
transferrable skills. (See id. at 64-65, 73.) Taken as a whole, the record does not
support Plaintiff’s contention that Turecki lacked a basis for her conclusion that
Plaintiff’s skills were transferrable to general office receptionist, nor does the

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record support Plaintiff’s contention that the ALJ erred in relying on Turecki’s
testimony.
Plaintiff incorrectly relies on Pegram’s testimony from the first hearing to
support her view that, contrary to Turecki’s testimony, her past relevant work
afforded her no transferrable skills. Pegram did testify in the first hearing that
“there’s nothing lower than a light” exertional job to which Plaintiff’s skills would
transfer (id. at 129), and such testimony arguably supports Plaintiff’s assertion that
she lacked transferable skills. However (and importantly), this testimony from
Pegram was not relevant to the ALJ’s initial determination that Plaintiff was not
disabled because that decision (in 2008) was based on a wholly separate ground:
namely, that Plaintiff was capable of performing her past relevant work. (Id. at
173 (“Transferability of job skills is not material to the determination of disability
because … claimant is ‘not disabled,’ whether or not the claimant has transferable
job skills”).) The ALJ made no finding in connection with the first hearing that
this testimony by Pegram was credible or accurate. In sharp contrast, in the 2010
proceedings, the issue of Plaintiff’s transferrable skills was front and center, and in
those proceedings, Turecki testified that Plaintiff’s skills were transferrable to
general office receptionist. That Turecki identified transferable skills that Pegram
did not identify is not at all surprising because, as discussed above, Turecki had the
benefit of hearing additional testimony in which Plaintiff described in detail the
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work she performed as a medical receptionist, including giving patients discharge
instructions and setting up future appointments. (Id. at 48, 64-65.) This Court
does not accept Plaintiff’s argument that the ALJ should have adopted Pegram’s
testimony at the first hearing over Turecki’s at the second.
Finally, the Court notes that Plaintiff was represented by counsel at both the
first and second hearings, and counsel had the opportunity to, and in fact did,
cross-examine Turecki at the second hearing. (Id. at 79-80.) Plaintiff’s counsel
asked Turecki, among other things, whether the office receptionist job had
requirements for finger manipulation and whether the requirement to ambulate
with a cane would reduce the availability of light jobs. (Id.) What Plaintiff’s
counsel did not ask Turecki was any question regarding the transferability of skills
from Plaintiff’s previous work. Plaintiff’s counsel had the opportunity at the
second hearing – but declined – to examine the alleged conflict between the
testimonies of the two vocational experts. Instead, Plaintiff did not challenge
Turecki’s testimony until after the ALJ issued her decision. In general, a plaintiff
may not seek relief based on alleged conflicts in a vocational expert’s testimony
when plaintiff had the opportunity to cross-examine the vocational expert about the
conflicts but did not do so. See, e.g., Ledford v. Astrue, 311 Fed.Appx. 746, 757
(6th Cir. 2008) (“[N]othing in applicable Social Security regulations requires the
[ALJ] to conduct his or her own investigation into the testimony of a vocational
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expert to determine its accuracy, especially when the claimant fails to bring any
conflict to the attention of the [ALJ]”).4 Even if Plaintiff’s claim that she did not
possess transferable skills had merit, the failure by Plaintiff’s counsel to crossexamine Turecki on this issue severely undermines Plaintiff’s request for relief.
B. Job Responsibilities as Tasks versus Skills
Plaintiff also asserts that the ALJ erred in concluding that Plaintiff had
transferable skills because the skills the ALJ deemed transferrable were “tasks”
rather than “skills.” (Pla.’s Br. at 14.) Specifically, Plaintiff contends that “the
capacities to greet people, give information[,] and answer phones are not
sufficiently complicated to rise to the level of skills” and instead “represent routine
job functions demanded of any worker filling the role of ‘general office
receptionist.’” (Id.) As support, Plaintiff cites the O*NET website entry for
“receptionists and information clerks,” which categorizes “greet[ing] persons,”
“provid[ing] information,” and “answer[ing] telephones” as tasks rather than skills.
(Id. at Ex. 1).
Plaintiff’s argument is unpersuasive. As used by the SSA for the purposes of
making disability determinations, a skill is “knowledge of a work activity which

4

Plaintiff points out that “guidance from the ALJ [was not] offered” at the second
hearing regarding the transferability of skills. However, it is not clear from
Plaintiff’s brief what guidance Plaintiff thinks the ALJ should have offered nor
how any such omission would result in reversible error. The Court finds that this
argument has no merit. 
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requires the exercise of significant judgment that goes beyond the carrying out of
job duties and is acquired through performance of an occupation which is above
the unskilled level.” (Social Security Ruling (“SSR”) 82-41.) The SSA further
indicates that “[s]kills refer to experience and demonstrated proficiency with work
activities in particular tasks or jobs.” (Id., emphasis added.) The SSA regulations
and policy statements do not provide bright-line rules for distinguishing between
skills and tasks, and as the previous quotation demonstrates, any such lines would
not be easy to delineate.

The vocational expert’s testimony, and the ALJ’s

determination, that greeting people, providing information, and answering
telephones were transferrable skills does not appear to be precluded by the SSA’s
definition of “skill.”

Indeed, the Sixth Circuit has treated comparable job

responsibilities as skills. (See, e.g., Taylor v. Sec’y of Health & Human Servs., 891
F.2d 292 (Table), 1989 WL 150763 at *4 (6th Cir. 1989) (“[W]e conclude that
plaintiff acquired certain skills in her job; namely, the ability to … deal with the
general public….”) (emphasis added).)
Moreover, no SSA regulation or policy statement requires an ALJ to give
any weight to the descriptions on the O*NET website.

That website “is the

complete Dictionary of Occupational Titles (DOT) revised fourth edition, as
supplied

electronically

by

http://www.occupationalinfo.org/.)

the

U.S.

of

Labor.”

(See

The Sixth Circuit has recognized that the
26

Dept.

Commissioner is not bound by the job descriptions in the Dictionary of
Occupational Titles (the “DOT” or the “Dictionary”).

See, e.g., Monateri v.

Commissioner, 436 Fed.Appx. 434, 446 (6th Cir. 2011) (holding that “the Social
Security regulations do not obligate [the ALJ and consulting vocational experts] to
rely on the Dictionary’s classifications” and “neither the Commission nor the
[vocational expert] has an obligation to employ the DOT”). In fact, the SSA
recognizes that vocational expert testimony may trump the DOT. See SSR 00-4p
(“A [vocational expert] may be able to provide more specific information about
jobs or occupations than the DOT”). In this case, vocational expert Turecki and
the ALJ were not bound by the classification of greeting people, answering phones,
and providing information on O*NET as “tasks” rather than “skills,” and the ALJ’s
finding that Plaintiff had transferrable skills is supported by substantial evidence.
Finally, as noted above, when a vocational expert’s testimony allegedly
conflicts with the DOT, it is the responsibility of plaintiff’s counsel to bring out
such conflict on cross-examination. See, e.g., Ledford, 311 Fed.Appx. at 757.
Even if Plaintiff’s argument that greeting people, answering phones, and providing
information are “tasks” and not “skills” had merit, the failure by Plaintiff’s counsel
to cross-examine Turecki on this issue once again undermines Plaintiff’s request
for relief.

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CONCLUSION
The decision by the ALJ to deny Plaintiff’s claim for benefits was supported
by substantial evidence based upon the record as a whole. Plaintiff argues that “all
of the requirements necessary for a finding of ‘disabled’ pursuant to 20 CFR Part
404, Subpart P, Appendix 2, § 201.14, have been met.”

(Pla.’s Br. at 15.)

However, a finding of “disabled” under the provision cited by Plaintiff requires a
determination that Plaintiff does not possess transferrable skills. As discussed
above, the ALJ’s conclusion that Plaintiff has skills transferrable to a job as a
general office receptionist is supported by substantial evidence.
For all of the reasons stated above, the Court GRANTS Defendant’s Motion
for Summary Judgment (ECF #10) and DENIES Plaintiff’s Motion for Summary
Judgment (ECF #9).
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 2, 2014
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 2, 2014, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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