Oudsema v. Commissioner of Social Security

Filing 18

OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID OUDSEMA,
Plaintiff,
v.

Case No. 1:14-cv-1116
Hon. Ray Kent

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) which
denied his claim for disability insurance benefits (DIB) and supplemental security income (SSI).
Plaintiff was born in 1954. PageID.317. He completed the 8th grade and had
previous employment as a welder, a material handler at a leather factory, a factory worker, and a
machine operator. PageID.43, 115, 324. Plaintiff alleged that he was disabled as of June 30, 2007.
PageID.317. Plaintiff identified his disabling conditions as lung problems, swollen feet, and dizzy
spells. PageID.323. An administrative law judge (ALJ) reviewed plaintiff’s claim de novo and
entered a written decision denying benefits on May 17, 2013. PageID.37-44. This decision, which
was later approved by the Appeals Council, has become the final decision of the Commissioner and
is now before the Court for review.1

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Plaintiff’s claims were addressed in a previous ALJ’s decision dated February 14, 2011. In the 2013
decision, the ALJ observed that after plaintiff’s claim was denied, he wanted to change the onset date to
February 15, 2011. PageID.37. In his brief, plaintiff apparently seeks to amend the onset date to June 9,

I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner’s findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “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.” Cutlip v. Secretary of Health & Human
Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must
be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925
F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can

2011. PageID.496. The record reflects that the ALJ evaluated plaintiff’s claim using the onset date of June
30, 2007. The Court will review plaintiff’s claim using that date. See discussion, infra.

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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. See 20 C.F.R. §§ 404.1505 and 416.905; Abbott v. Sullivan, 905
F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a
five-step analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).

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“The federal court’s standard of review for SSI cases mirrors the standard applied in
social security disability cases.” D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d 716,
719 (W.D. Mich. 2007). “The proper inquiry in an application for SSI benefits is whether the
plaintiff was disabled on or after her application date.” Casey v. Secretary of Health and Human
Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fourth step of the evaluation. At the first step, the ALJ
found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of June
30, 2007, and that he met the insured status requirements of the Act through March 31, 2012.
PageID.40. At the second step, the ALJ found that plaintiff had severe impairments of chronic
obstructive pulmonary disease (COPD), emphysema (status post lung surgery), and obesity. Id. At
the third step, the ALJ found that plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. PageID.41.
The ALJ decided at the fourth step that:
[T]he claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except the claimant should avoid
concentrated exposure to extreme cold and fumes, odors, gases, and poor ventilation.
Id. The ALJ also found that plaintiff is capable of performing his past relevant work as a machine
operator, work which does not require the performance of work-related activities precluded by his
residual functional capacity (RFC). PageID.43. Accordingly, the ALJ determined that plaintiff has
not been under a disability, as defined in the Social Security Act, from June 30, 2007 (the alleged
onset date) through May 17, 2013 (the date of the decision). PageID.43-44.
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III. ANALYSIS
Plaintiff did not set forth a statement of errors in the form directed by the Court. See
Notice (docket no. 7). In his brief, plaintiff asserts that the ALJ’s decision is not based on substantial
evidence for two reasons. PageID.492. First, plaintiff stated that “[t]he Administrative Law Judge
in the 2013 Decision made clear errors of law by ignoring the medical records, history and findings
by the Physician Assistant, Mr. William Ulrich (PA-C), especially, with respect to the claimant’s
orthopedic disability.” PageID.493. Second, plaintiff stated that the ALJ erred in “finding that the
claimant has performed one light machine job.” PageID.494. The Court will address these claims.
A.

Opinion of William Ulrich, PA-C

The ALJ addressed Mr. Ulrich’s opinion which is set forth in a sworn statement made
on March 29, 2013 (referred to as Exhibit B6F, PageID.473-482):
As for the opinion evidence, the undersigned accords no weight to the
medical source statement in Exhibit B6F, which was completed by Mr. William
Ulrich, a physician’s assistant, for the following reasons. First, Mr. Ulrich is not an
“acceptable medical source,” per Social Security Regulation 20 C.F.R 404.1513.
Secondly, Mr. Ulrich refers to 2010 test pulmonary function test results, which were
considered in the prior ALJ decision. In addition, Mr. Ulrich’s opinion that the
claimant would be unable to withstand the requirements of an 8-hour workday due
to pulmonary and orthopedic problems, even if he had a sit/stand option, is an issue
that is solely within the purview of the Commissioner of Social Security to decide per
Social Security Ruling 96-5p. Moreover, Mr. Ulrich’s opinion in this regard is
inconsistent with the record, which shows that the claimant’s pulmonary condition
is stable on medications and that he exhibits a normal gait and station as well as a full
range of motion notwithstanding his back complaints.
PageID.42-43.
Plaintiff’s brief does not address this opinion. Rather, plaintiff lists excerpts from
medical notes prepared by Mr. Ulrich in September 2011 and August 2011, and the results of an xray from April 25, 2012 and an MRI from September 20, 2012. PageID.493. In June 2011 plaintiff
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reported “[b]ack pain, muscle pain and muscle spasm (left middle and lower back with prolonged
standing or bending” and in August 2011 plaintiff reported prolonged standing or walking more than
a city block will trigger back stiffness and spasm that requires him to sit and stop. PageID.412, 415417. These self-reports of symptoms by plaintiff are not opinions expressed by Mr. Ulrich. The xray report (indicating multilevel spondylosis, PageID.470) and the MRI (indicating “[d]egenerative
spondylosis at L5-S1 with moderate left neural foraminal narrowing,” PageID.494), are medical tests
results, not opinions expressed by Mr. Ulrich. As the ALJ observed, Dr. Ulrich’s opinions are set
forth in a separate sworn statement. Accordingly, plaintiff’s claim of error is denied.
B.

ALJ’s finding regarding plaintiff’s past relevant
work

Plaintiff contests the ALJ’s finding that his past relevant work as a machine operator
was at the light exertional level. Specifically, plaintiff contends that he has only an eighth-grade
education and that he did not understand the vocational expert’s (VE’s) questions regarding the
scope of his past relevant work because the questions “were not made clear.” PageID.494. At this
point, the Court needs to reconstruct the procedural history of administrative proceedings which
neither party has fully explained.
The present appeal is based on an administrative hearing held on April 16, 2013 and
the vocational evidence presented at that hearing by VE Aimee Mowery. PageID.113-115. At the
hearing, the ALJ recognized that VE Mowery did not address plaintiff’s past relevant work as a
machine operator. See PageID.115-116 (“Counsel, I’m a little confused. I noticed in the past
position [sic] the ALJ found your client could do this job as a machine operator at a Light RFC. I
don’t see that described in the current file.”). The ALJ did not remedy the evidentiary omission at

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the hearing, indicating that he would address it in the future. See PageID.117-118 (“So it’s a little
bit confusing to me at this point as to what happened in the past decision and whether or not that past
decision was correct or is binding; not that I’m going to reopen the past decision, but just going to
try to find a basis for it. . . . And I’m just saying the past decision found that he could do the light
job that he’d done in the past and I’m not sure if there’s anything that changes that, if I should adopt
that, or I can find that he could do the past work as light.”).
In the written decision, the ALJ explained the procedural posture as follows:
According to a prior Administrative Law Judge (“ALJ”) decision, dated,
February 14, 2011 (Exhibit B1A), the claimant was found to be able to do his past
relevant work as a machine operator (characterized as light and unskilled per the
Dictionary of Occupational Titles). That decision was subsequently upheld by the
Appeals Council (Exhibit B2A). On October 12, 2011, the claimant filed a
subsequent Title II application for a period of disability and disability insurance
benefits. The claimant also filed a Title XVI application for supplemental security
income on October 12, 2011. In both applications, the claimant alleged disability
beginning June 30, 2007. These claims were denied initially on January 26, 2012.
In a recent post-hearing brief, documented at Exhibit Bl8E, the claimant’s
representative argued for a reopening of the prior ALJ decision in this matter and
requested withdrawal of the amended onset date he alleged in Exhibit 13D arguing,
instead, for an onset date of February 15, 2011. . .
The claimant’s representative argued that the prior ALJ decision was based
on a faulty finding that the claimant maintained the residual functional capacity to
perform his past relevant work as a machine operator and should, therefore, be
reopened. In considering the representative’s allegations in this regard, the
undersigned reviewed the transcript of the prior ALJ hearing (added as Exhibit
B11B) and notes that on pages 35, 58, and 59, the vocational expert testified that the
claimant’s past relevant work as a machine operator was light and unskilled. This
testimony was subsequently discussed in the findings in the prior ALJ decision. The
undersigned further notes that the claimant’s representative, attorney, Kenneth S.
Hoopes, represented the claimant at the prior ALJ hearing and before the Appeals
Council and, thus, had the opportunity to raise this argument at that time.
The Dennard decision (Social Security Acquiescence Ruling 98-3(6)) requires
the undersigned to adopt the findings of the demands of a claimant’s past relevant
work from the final decision of an ALJ on a prior disability claim when adjudicating
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a subsequent disability claim with an unadjudicated period arising under the same
title of the Act. Furthermore, the Drummond decision (Social Security Acquiescence
Ruling 98-4(6)) states that the undersigned must adopt a finding of a claimant’s
residual functional capacity as made in the final decision by an ALJ or the Appeals
Council in a subsequent disability claim with an unadjudicated period arising under
the same title of the Act as the prior claim. The undersigned requested a post-hearing
brief from Mr. Hoopes discussing these two cases and their applicability to the matter
at hand; however, Mr. Hoopes' submitted document at Exhibit B18E does not
specifically address these issues.
PageID.37-38.
Although the ALJ raised the issue of administrative res judicata with respect to the
2011 decision, he neither explicitly found that res judicata applied nor explicitly re-opened the
earlier decision. Rather, to remedy the problem which arose when VE Mowery failed to address the
machine operator position at the administrative hearing, the ALJ effectively re-opened the 2011
decision (by performing a de novo review of plaintiff’s claim from the original disability onset date
of June 30, 2007), and then adopted the ALJ’s previous decision as binding to the extent that it found
plaintiff able to perform his past relevant work as a machine operator:
The undersigned is aware that the vocational expert at the claimant’s most
recent hearing, Ms. Aimee Mowery, was not aware of the machine operator job since
the claimant did not list it in his work history in association with his current
application. However, the undersigned notes that this position was clearly discussed
and included in the prior ALJ decision, as documented at Exhibit Bl A, p.11.
According to the findings from the previous ALJ decision, the vocational expert
explained that the claimant’s past work as a machine operator was light, unskilled as
the claimant performed the work and light to heavy, unskilled as the work is usually
performed (according to the Dictionary of Occupational Titles). The prior ALJ
decision also reflects that the claimant’s past work as an unskilled, light machine
operator was performed within the last 15 years, resulted in substantial gainful
activity level earnings, and lasted long enough for the claimant to learn to do the job
and, is, therefore, past relevant work.
PageID.43.

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Now, plaintiff claims that VE Lozer’s testimony back in 2011 was insufficient to
support the finding that plaintiff’s past relevant work as a machine operator was performed at the
light exertional level. In support of this claim, plaintiff cites excerpts from VE James Lozer’s 2011
testimony. PageID.221-228.2 Because plaintiff claims that the VE misunderstood his testimony and
with respect to his past relevant work as a machine operator at the light exertional level, the Court
will review plaintiff’s and the VE’s testimony on this issue.
Plaintiff testified that he worked for Track Corporation as a welder from 2004 until
2007. PageID.222-223. He operated a machine and welded manually. PageID.223. He sometimes
had to lift things over 20 pounds operating the machine. Id. The items lifted weighed 15, 20 or 25
pounds depending on the type of material. PageID.224. At the end of the shift, he would throw the
pieces that did not get fully welded into a basket, which “sometimes might weigh 75 or 80 pounds.”
Id. Plaintiff would take the basket to a table and hand wire feed the parts that did not get welded
completely. Id. Prior to this job, plaintiff worked for Shay Corporation doing “welding, robotic”
which “was a lot heavier.” PageID.225. He operated robotic welders. Id. This work involved lifting
items which weighed “probably 40 pounds.” Id. Prior to that job, plaintiff worked on a press
machine that involved fiberglass items which weighed at least 100 pounds. PageID.226-227. VE
Lozier testified that, according to the Dictionary of Occupational Titles, the majority of machine
operator jobs involve light, unskilled work and that plaintiff “did perform one of the jobs in that
category.” PageID.229.

2

The Court notes that plaintiff’s brief refers to the administrative transcript pages rather than the
PageID numbers. See PageID.494.

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It is the claimant’s burden at the fourth step of the sequential evaluation to show an
inability to return to any past relevant work. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
To support a finding that a claimant can perform his or her past relevant work, the Commissioner’s
decision must explain why the claimant can perform the demands and duties of the past job as
actually performed or as ordinarily required by employers throughout the national economy. The
Act requires that a claimant show that his impairments are so severe that he is “unable to do his
previous work.” Studaway v. Secretary of Health & Human Services, 815 F.2d 1074, 1076 (6th Cir.
1987), quoting 42 U.S.C. § 423(d)(2)(A). To proceed past step four, plaintiff must demonstrate
more than “merely an inability to return to his old job,” he “must prove an inability to return to his
former type of work and not just to his former job.” Studaway, 815 F.2d at 1076 (internal quotation
marks omitted) (emphasis in original). See Clendening v. Commissioner of Social Security, 482 Fed.
Appx. 93, 96 (6th Cir. 2012) (“[t]he relevant inquiry is whether he could still perform that type of
work and not necessarily the specific job that he had in the past”).
Here, the testimony does not support VE Lozer’s conclusion that one of plaintiff’s
past machine operator jobs was performed at the light exertional level. See 20 C.F.R. §§
404.1567(b) and 416.967(b) (“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds”). As discussed, plaintiff testified
that his least exertional machine operator job involved lifting 15 to 25 pounds on a regular basis with
some lifting up to 80 pounds. This lifting exceeded the requirements of light work. Nevertheless,
VE Lozier also testified that according to the Dictionary of Occupational Titles, the majority of
machine operator jobs involve light, unskilled work. This testimony is sufficient to establish that
plaintiff could return to his former type of work. See Studaway, 815 F.2d at 1076; Clendening, 482
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Fed. Appx. at 96. Substantial evidence supports the ALJ’s determination that plaintiff could return
to his past relevant work as a machine operator. Accordingly, plaintiff’s claim of error is denied.
IV. CONCLUSION
The ALJ’s determination is supported by substantial evidence. The Commissioner’s
decision will be AFFIRMED pursuant to 42 U.S.C. § 405(g). A judgment consistent with this
opinion will be issued forthwith.

Dated: March 16, 2016

/s/ Ray Kent
Ray Kent
United States Magistrate Judge

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