Honeycutt v. Commissioner of Social Security
OPINION ; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
ANDRE W. HONEYCUTT,
Case No. 1:13-cv-151
Honorable Joseph G. Scoville
This is a social security action brought under 42 U.S.C. §§ 405(g), 1383(c)(3) seeking
review of a final decision of the Commissioner of Social Security finding that plaintiff was not
entitled to disability insurance benefits (DIB) or supplemental security income (SSI) benefits. On
May 8, 2007, plaintiff filed his applications for benefits alleging a May 19, 2007 onset of disability.
His claims were denied on initial review. On February 7, 2011, he received a hearing before an
administrative law judge (ALJ), at which he was represented by counsel.1 (A.R. 48-98). Plaintiff’s
testimony revealed that in 2009 he had traveled independently by Greyhound bus to Arizona and
worked from March through September as a reservations assistant at the El Tovar, a “four-or-five
star restaurant/hotel” located in Grand Canyon National Park. (A.R. 64-67). In light of plaintiff’s
testimony regarding his work in Arizona, at the close of the hearing, he amended his alleged onset
date to October 1, 2009. (A.R. 97). On May 26, 2011, the ALJ issued his decision finding that
The Appeals Council vacated an earlier decision by a different ALJ. (A.R. 60-62; see also
A.R. 101-40, 149-55).
plaintiff was not disabled. (A.R. 29-40). On December 11, 2012, the Appeals Council denied
review (A.R. 5-7), and the ALJ’s decision became the Commissioner’s final decision.
Plaintiff filed a timely pro se complaint seeking judicial review of the
Commissioner’s decision. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure, the parties voluntarily consented to have a United States magistrate judge conduct all
further proceedings in this case, including entry of final judgment. (docket # 15). Plaintiff argues
that the Commissioner’s decision should be overturned on the following grounds:
Plaintiff should be allowed to revert to May 19, 2007 as his alleged onset of disability
date because the ALJ promised that he would grant a fully favorable decision if
plaintiff changed his alleged onset of disability date to October 1, 2009. (Plf. Brief
at 1, docket # 17, ID# 1426).
Plaintiff’s work in Arizona at the Grand Canyon should be considered a failed work
attempt because he “lived on a campus in a roommate/dormitory like setting with
cafeterias and campus transportation. [His] living situation was similar to a college
student living on campus.” (Id. at 2, ID# 1427).
Plaintiff’s work in Arizona did not rise to the level of substantial gainful activity.
(Id. at 3, ID# 1428).
The ALJ’s factual finding that there were a significant number of jobs in the region
that plaintiff was capable of performing is not supported by substantial evidence. (Id.
at 4-5, ID#s 1429-30).
The ALJ misconstrued “a lot of situations.” (Id. at 6-8, ID#s 1431-33).
The Commissioner’s decision will be affirmed.
Standard of Review
When reviewing the grant or denial of social security benefits, this court is to
determine whether the Commissioner’s findings are supported by substantial evidence and whether
the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124,
125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is
defined as “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007).
The scope of the court’s review is limited. Buxton, 246 F.3d at 772. The court does not review the
evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Ulman v.
Commissioner, 693 F.3d 709, 713 (6th Cir. 2012); Walters v. Commissioner, 127 F.3d 525, 528 (6th
Cir. 1997). “The findings of the [Commissioner] as to any fact if supported by substantial evidence
shall be conclusive . . . .” 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830, 833
(6th Cir. 2006). “The findings of the Commissioner are not subject to reversal merely because there
exists in the record substantial evidence to support a different conclusion. . . . This is so because
there is a ‘zone of choice’ within which the Commissioner can act without fear of court
Buxton, 246 F.3d at 772-73.
“If supported by substantial evidence, the
[Commissioner’s] determination must stand regardless of whether the reviewing court would resolve
the issues of fact in dispute differently.” Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see
Gayheart v. Commissioner, 710 F.3d 365, 374 (6th Cir. 2013)(“A reviewing court will affirm the
Commissioner’s decision if it is based on substantial evidence, even if substantial evidence would
have supported the opposite conclusion.”). “[T]he Commissioner’s decision cannot be overturned
if substantial evidence, or even a preponderance of the evidence supports the claimant’s position,
so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Commissioner, 336 F.3d 469, 477 (6th Cir. 2003); see Kyle v. Commissioner, 609 F.3d 847, 854 (6th
The ALJ found that plaintiff met the disability insured requirement of the Social
Security Act from October 1, 2009, through the date of the ALJ’s decision. (A.R. 32). Plaintiff had
not engaged in substantial gainful activity on or after October 1, 2009. (A.R. 32). Plaintiff had the
following severe impairments: paranoid schizophrenia, bipolar disorder, depressive disorder NOS,
and a psychotic disorder. (A.R. 32). Plaintiff did not have an impairment or combination of
impairments which met or equaled the requirements of the listing of impairments. (A.R. 36). The
ALJ found that plaintiff retained the residual functional capacity (RFC) for a full range of work at
all exertional levels, with the following nonexertional limitations: “claimant is limited to simple,
routine, repetitive tasks, not performed in a fast-paced production environment involving only simple
work-related decisions; in general, relatively few work place changes; occasional interaction with
supervisors and co-workers; and who must avoid all interaction with the general public.” (A.R. 36).
The ALJ found that plaintiff’s testimony regarding his subjective limitations was not fully credible.
(A.R. 36-38). Plaintiff could not perform any past relevant work. (A.R. 38). Plaintiff was 34-yearsold as of the date of his alleged onset of disability and 38-years-old on the date of the ALJ’s decision.
Thus, at all times relevant to his claims for DIB and SSI benefits, plaintiff was classified as a
younger individual. (A.R. 38). Plaintiff has at least a high-school education and is able to
communicate in English. (A.R. 38). The ALJ found that the transferability of jobs skills was not
material to a determination of disability. (A.R. 39). The ALJ then turned to the testimony of a
vocational expert (VE). In response to a hypothetical question regarding a person of plaintiff’s age
with his RFC, education, and work experience, the VE testified that there were approximately 7,500
jobs in the lower half of Michigan’s Lower Peninsula that the hypothetical person would be capable
of performing. (A.R. 93-95). The ALJ found that this constituted a significant number of jobs and
that plaintiff was not disabled. (A.R. 39-40).
Plaintiff argues that he should be allowed to revert to May 19, 2007, as his alleged
onset of disability date because the ALJ “stated at the hearing that he would grant [plaintiff] a fully
favorable decision if [he] changed [his] onset date.” (Plf. Brief at 1, docket # 17, ID# 1426; Reply
Brief at 4-5, docket # 23, ID#s 1483-84). This argument finds no support in the administrative
record. The court conducts its appellate review of the Commissioner’s final administrative decision
on the basis of the certified administrative record (see Certification, docket # 6, ID # 16) and under
a deferential statutory standard of review. See 42 U.S.C. §§ 405(g), 1383(c)(3). There is no
evidence that the ALJ made any promise to plaintiff or his attorney. (A.R. 48-98). The certified
administrative record shows that plaintiff, with the assistance of counsel, elected to amend his
alleged onset of disability date. (A.R. 97, 373). The alleged onset of disability date in this case is
October 1, 2009.
Plaintiff argues that the work he performed in Arizona should be considered a failed
work attempt because he “lived on a campus in a roommate/dormitory like setting with cafeterias
and campus transportation. [His] living situation was similar to a college student living on campus.”
(Plf. Brief at 2, ID# 1427). In 2009, plaintiff traveled by bus to Arizona and worked as a “host and
advanced reservations representative” at the El Tovar hotel and restaurant in Grand Canyon National
Park. (A.R. 64-67). Unsuccessful work attempts pertain to failed attempts to rejoin the work force
after the alleged onset of disability.2 See 20 C.F.R. §§ 404.1574(c), 416.947(c). Plaintiff performed
his work in Arizona before his alleged onset of disability. Plaintiff’s work in Arizona was not an
unsuccessful work attempt. See Coleman v. Commissioner, No. 12-10809, 2013 WL 1316913, at
* 9 (E.D. Mich. Feb. 27, 2013).
Plaintiff argues that his work in 2009 did not rise to the level of substantial gainful
activity (SGA). (Plf. Brief at 3, ID# 1428). The SGA threshold in 2009 was $980 per month. See
http://www.socialsecurity.gov/OACT/COLA/sga.html (last visited March 25, 2014). Plaintiff
worked for seven months in Arizona and earned $8,314. (A.R. 32, 65, 330-31). Earnings are
“averaged only over the months worked.” Anderson v. Heckler, 726 F.2d 455, 457-58 (8th Cir.
1984); see Ramirez v. Colvin, No. CV-13-4396, 2014 WL 292016, at * 2-3 (C.D. Cal. Jan. 27, 2014);
Dixon v. Commissioner, No. 3:11-cv-482, 2012 WL 2826970, at * 15 (N.D. Ohio July 10, 2012).
Plaintiff earned an average of $1,187 per month, in excess of the SGA threshold. This almost
certainly is the reason why plaintiff’s attorney counseled him to amend his alleged onset of disability
date to October 1, 2009. (A.R. 32, 97). If plaintiff’s work at the El Tovar had been within the period
he claimed to have been disabled, the ALJ would have found that he was not disabled at step 1 of
the sequential analysis.3
The result would not be altered if the law allowed plaintiff to revert to an alleged onset of
disability in 2007. Work “performed at the substantial gainful activity earnings level for more than
6 months” cannot be considered an unsuccessful work attempt, “regardless of why it ended or was
reduced below the substantial gainful activity earnings level.” Smith v. Astrue, No. 10-cv-12648,
2011 WL 3897800, at * 2 (E.D. Mich. Sept. 6, 2011); 20 C.F.R. §§ 404.1574(c)(5), 416.974(c)(5).
“Administrative law judges employ a five-step sequential inquiry to determine whether a
claimant is disabled within the meaning of the Social Security Act.” Warner v. Commissioner, 375
F.3d 387, 390 (6th Cir. 2004). Under the sequential analysis, “The claimant must first show that he
Plaintiff argues that the ALJ’s factual finding that there are a significant number of
jobs in the regional economy that he is capable of performing is not supported by substantial
evidence. (Plf. Brief at 4-5, ID#s 129-30; Reply Brief at 4, ID# 1483). The VE identified 7,500 jobs
in the lower half of Michigan’s Lower Peninsula that a hypothetical person of plaintiff’s age with
his RFC, education, and work experience would be capable of performing. (A.R. 93-95). This
constitutes a significant number of jobs. See Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993)
(1,400 is a significant number and collecting cases where as few as 174 positions were found to be
a significant number); Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (1,350 is a significant
number); Martin v. Commissioner, 170 F. App’x 369, 375 (6th Cir. 2006) (870 jobs is a significant
number); see also Nejat v. Commissioner, 359 F. App’x 574, 579 (6th Cir. 2009) (collecting cases
holding that as few as 500 jobs constituted a significant number). It is well settled that a VE’s
opinion, given in response to an accurate hypothetical, is sufficient to satisfy the substantial evidence
is not engaged in substantial gainful activity. Next, the claimant must demonstrate that he has a
‘severe impairment.’ A finding of ‘disabled’ will be made at the third step if the claimant can then
demonstrate that h[is] impairment meets the durational requirement and ‘meets or equals a listed
impairment.’ If the impairment does not meet or equal a listed impairment, the fourth step requires
the claimant to prove that he is incapable of performing work that he has done in the past.
Finally, if the claimant’s impairment is so severe as to preclude the performance of past work, then
other factors, including age, education, past work experience, and residual functional capacity, must
be considered to determine if other work can be performed. The burden shifts to the Commissioner
at this fifth step to establish the claimant’s ability to do other work.” White v. Commissioner, 572
F.3d 272, 282 (6th Cir. 2009).
Plaintiff argues that the ALJ misconstrued “a lot of situations.” (Plf. Brief at 6-8,
ID#s 1431-33; Reply Brief at 1-5, ID#s 1480-84). For example, he takes issue with the ALJ’s
observation that plaintiff “did some sightseeing in Arizona.” (A.R. 36). Plaintiff testified: “I did
some sightseeing, but not much.” (A.R. 66). The ALJ did not misconstrue plaintiff’s testimony.
None of the purported inaccuracies in the ALJ’s opinion provides a basis for disturbing the
Plaintiff emphasizes portions of the medical record that he believes support his claims
for DIB and SSI benefits. His burden on appeal is much higher than identifying evidence on which
the ALJ could have based a finding in his favor. “The findings of the Commissioner are not subject
to reversal merely because there exists in the record substantial evidence to support a different
conclusion. . . . This is so because there is a ‘zone of choice’ within which the Commissioner can
act without fear of court interference.” Buxton, 246 F.3d at 772-73. “[T]he Commissioner’s
decision cannot be overturned if substantial evidence, or even a preponderance of the evidence
supports the claimant’s position, so long as substantial evidence also supports the conclusion reached
by the ALJ.” Jones v. Commissioner, 336 F.3d at 477. The ALJ’s decision easily passes scrutiny
under this deferential standard of review.
For the reasons set forth herein, a judgment will be entered affirming the
Dated: March 25, 2014
/s/ Joseph G. Scoville
United States Magistrate Judge
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