Piersante v. Social Security, Commissioner of

Filing 23

ORDER Adopting Report and Recommendation 19 15 Motion for Summary Judgment filed by Frank P Piersante granted in part; 17 Motion for Summary Judgment filed by Social Security denied. Signed by District Judge Terrence G. Berg. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK P. PIERSANTE,
v.

Plaintiff,

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 13-11079
HON. TERRENCE G. BERG
HON. MONA K. MAJZOUB
/

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on Magistrate Judge Mona K. Majzoub’s
Report and Recommendation of February 4, 2014 (Dkt. 19), recommending that
Plaintiff’s motion for summary judgment be granted, in part, that Defendant’s
motion for summary judgment be denied, and that this matter be remanded, under
sentence four,1 for further proceedings.
The law provides that either party may serve and file written objections
“[w]ithin fourteen days after being served with a copy” of the Report and
Recommendation. 28 U.S.C. § 636(b)(1). Defendant filed timely objections (Dkt. 20)
to the Report and Recommendation; Plaintiff did not file any objections, but did file

A claimant whose request for social security benefits is denied after an administrative hearing may
appeal this decision to the district court, pursuant to 42 U.S.C. § 405(g). The fourth sentence of §
405(g) gives the district court the power to “enter ... a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing,” known as a “sentence-four remand.” On a sentence-four remand, the administrative law
judge retains the discretion to grant or deny a benefits award. See Shalala v. Schaefer, 509 U.S. 292,
304 (1993).

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a response to Defendant’s objections (Dkt. 22). A district court must conduct a de
novo review of the parts of a Report and Recommendation to which a party objects.
See 28 U.S.C. § 636(b)(1). “A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions.” Id.
The Court has reviewed Magistrate Judge Majzoub’s Report and
Recommendation, and Defendant’s objections thereto. For the reasons set forth
below, Defendant’s objections are OVERRULED, and the Report and
Recommendation is ACCEPTED and ADOPTED as the opinion of the Court.
Consequently, this matter is REMANDED pursuant to sentence four of to 42 U.S.C.
§ 405(g) for further proceedings, consistent with the discussion below.
ANALYSIS
A. The Social Security Act
The Social Security Act (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.’” Combs, 459 F.3d at 642 (quoting 42
U.S.C. § 423(d)(2)(A)).

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Under the authority of the Act, the Social Security Administration (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 (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 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).
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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 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).
Judicial review of the Commissioner’s final decision is authorized pursuant to
42 U.S.C. § 405(g). Where, the Appeals Council denies review, the ALJ’s decision
stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981. Judicial
review, however, is circumscribed in that 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). Substantial evidence is “such relevant evidence as a reasonable mind
might accept to support the ALJ’s conclusion.” Bass v. McMahon, 499 F.3d 506, 509
(6th Cir. 2007) (quotation marks omitted) (quoting Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001)). This substantial evidence standard is less exacting than the
preponderance of evidence standard. See Bass, 499 F.3d at 509 (citing Bell v.

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Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996)). For example, if the ALJ’s
decision is supported by substantial evidence, “then reversal would not be
warranted even if substantial evidence would support the opposite conclusion.”
Bass, 499 F.3d at 509.
B.

The ALJ’s Decision is not Supported by Substantial Evidence
on the Issue of Whether Plaintiff was Capable of Performing
His Prior Work.

In this matter, Magistrate Judge Majzoub recommended remand for the ALJ
to reconsider a single issue – whether Plaintiff was capable of performing his prior
relevant work. The ALJ concluded that Plaintiff was capable of performing his
prior work, and thus denied Plaintiff’s claim at step four of the process.
Plaintiff testified at the hearing before the ALJ that his only past
employment was doing stock work at various grocery stores (Tr. 42). He indicated
that he was a manager at one location in 1972, but even though he was called a
“manager,” that position was “just doing stock work” (Tr. 43). Plaintiff also
indicated that he was a “grocery manager” at another location in 1999-2000, but
that he did “everything,” including stock work (Tr. 44, 59). He noted that he would
sometimes have to lift items that weighed 15 pounds, but his boss had hired
“helpers” to assist whenever he had to lift anything heavy (Tr. 61-62). The ALJ
clarified whether Plaintiff was “on [his] feet . . . doing all sorts of stuff,” to which
Plaintiff replied, “constantly” (Tr. 45).
After acknowledging that his testimony would be consistent with the
Dictionary of Occupational Titles (DOT), the Vocational Expert (“VE”) testified that

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he was familiar with Plaintiff’s past work (Tr. 56-57). He noted that Plaintiff’s past
work included two positions. The VE categorized the first position as “grocery
stock,” which he classified as “unskilled, medium work for the DOT, medium for
[Plaintiff], as performed by [Plaintiff] per the file” (Tr. 58). Then, after some
clarification by Plaintiff, the VE categorized Plaintiff’s second position as “a grocery
order clerk, with DOT number 219.367-030.” The VE classified this position as
“semi-skilled, SVP-4,” that was “light per the DOT and light per [Plaintiff’s]
testimony” (Tr. 63).
Plaintiff asserts that his “past relevant work was improperly classified as
DOT 219.367-030, a shipping-order clerk” (Dkt. 15 at 18). Magistrate Judge
Majzoub agreed with this contention, finding that DOT 219.367-030 set forth the job
of a “Shipping-Order Clerk (clerical)” as follows:
Requisitions transportation from freight carriers to ship plant products.
Reads shipping orders to determine quantity and type of transportation
needed. Contacts carrier representative to make arrangements and to issue
instructions for loading products. Annotates shipping orders to inform
shipping department of loading location and time of arrival of transportation.
May perform other clerical tasks, such as typing and mailing bills, typing
correspondence, and keeping files.
DOT Code 291.367-030
Plaintiff, however, indicated that while he held the title “grocery manager,” he did
“everything,” including stock work (Tr. 44, 59). His responsibilities included
ordering groceries, but he also rotated stock, and met with vendors to setup in-store
displays (Tr. 44-45, 61-62). Magistrate Judge Majzoub noted that Plaintiff
specifically told the ALJ that he did not do a lot of paperwork and that he was on

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his feet “constantly” (Tr. 45). As such, Plaintiff’s work was not “clerical,” as set
forth in the DOT’s description of a Shipping-Order Clerk.
Defendant objects to Magistrate Judgment Majzoub’s recommendation to
remand this case to clarify Plaintiff’s past relevant work, and relies on the premise
that the ALJ did not err because Plaintiff’s non-attorney representative failed to
challenge the VE’s testimony as potentially contradictory to the DOT (Dkt. 20 at 5,
citing Martin v. Comm’r, 170 Fed. App’x. 369, 374 (6th Cir. 2006)). SSR 00-4p
provides that the adjudicator must resolve a conflict between the DOT and the VE
“before relying on the VE . . . evidence.” SSR 00-4p, 2000 WL 1898704 (2000).
“Nothing in SSR 00-4p places an affirmative duty on the ALJ to conduct an
independent investigation into the testimony of witnesses to determine if they are
correct.” Id. (quoting Martin v. Comm’r, 170 F. App’x 369, 374 (6th Cir. 2006)). To
the contrary, “an administrative law judge [need not] conduct his or her own
investigation into the testimony of a vocational expert to determine its accuracy,
especially when the claimant fails to bring any conflict to the attention of the
administrative law judge.” Ledford v. Astrue, 311 Fed. Appx. 746, 757 (6th Cir.
2009). Nevertheless, the evidence of the conflict between Plaintiff’s job as he
performed it and the VE’s classification under the DOT “casts doubt on the evidence
the ALJ relied on to make [his] determination.” Underwood v. Comm’r of Soc. Sec.,
No. 12-12633, 2013 WL 3851002, *3 (E.D. Mich. July 25, 2013). As such, Magistrate
Judge Majzoub’s recommendation is sound, because the ALJ’s step four conclusion
is not supported by substantial evidence.

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In sum, Plaintiff makes a persuasive argument that the job of ShippingOrder Clerk, as described in the DOT, requires the performance of significantly
different tasks – and less physically onerous – than the job he actually held. As
opposed to a purely clerical position, Plaintiff testified that his job required him to
stock groceries, and spend significant amounts of time on his feet. Defendant has
not offered any persuasive argument to the contrary, that the VE properly classified
Plaintiff’s prior work. Accordingly, on remand, the ALJ should develop a better
record in order to determine whether Plaintiff's past work adequately corresponds
to any job described in the DOT before relying on the DOT as evidence that Plaintiff
is able to perform his past relevant work. See, e.g., Lipke v. Astrue, 575 F. Supp. 2d
970, 983 (W.D. Wis. 2007).
CONCLUSION
For the reasons set forth above,
It is hereby ORDERED that Magistrate Judge Majzoub’s Report and
Recommendation of July 30, 2013 (Dkt. 19) is ACCEPTED and ADOPTED.
It is FURTHER ORDERED that Plaintiff’s motion for summary judgment
(Dkt. 15) is GRANTED IN PART and Defendant’s motion for summary judgment
(Dkt. 17) is DENIED.
It is FURTHER ORDERED that this matter be REMANDED for further
proceedings consistent with this opinion.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: March 18, 2014
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Certificate of Service
I hereby certify that this Order was electronically submitted on March 18,
2014, using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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