Ferrell v. Commissioner of Social Security

Filing 13

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WENDELL LAROY FERRELL,
Plaintiff,

Case No. 1:14-cv-1232

v.
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Wendell Laroy Ferrell seeks review of the Commissioner’s decision
denying his claim for disability insurance benefits (DIB) and supplemental security income (SSI)
under Titles II and XVI of the Social Security Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who

is charged with finding the facts relevant to an application for disability benefits, and her findings
are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was 53 years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (Tr. 14, 76.) He completed the twelfth grade, attended some college classes, and was
previously employed as a customer service manager. (Tr. 38, 62.) Plaintiff applied for DIB on April
24, 2012, and SSI on April 30, 2012, alleging that he had been disabled since March 6, 2011, due
to left knee total replacement, cervical fusion, type 2 diabetes, congestive heart failure, high blood
pressure, and high cholesterol. (Tr. 68–69, 76, 86.) Plaintiff’s applications were denied on July 20,

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2012, after which time he requested a hearing before an ALJ. (Tr. 100–22.) On May 30, 2013,
Plaintiff appeared with his counsel before ALJ Carol Guyton for an administrative hearing with
testimony being offered by Plaintiff and a vocational expert (VE). (Tr. 31–66.) In a written decision
dated July 12, 2013, the ALJ determined that Plaintiff was not disabled. (Tr. 14–30.) On September
28, 2014, the Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s
final decision in the matter. (Tr. 1–4.) Plaintiff subsequently initiated this pro se action pursuant to
42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

The regulations also provide that if a claimant suffers from a

nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
404.1520(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 404.1520(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed (20 C.F.R. § 404.1520(f)).

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Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “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.
ALJ Guyton determined Plaintiff’s claim failed at the fifth step of the evaluation. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged
onset date. (Tr. 19.) At the second step in the sequential evaluation, the ALJ determined Plaintiff
had the following severe impairments: (1) degenerative disc disease of the cervical spine, status post
fusion; (2) degenerative joint disease of the left knee, status post total knee arthroplasty; and (3)
history of chronic heart failure, with ejection fraction of thirty percent in 2007, but returned to
normal. (Tr. 19.) 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. (Tr.
20.) At the fourth step, the ALJ found that Plaintiff retained the RFC based on all the impairments:
to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except the claimant can never climb ladders, ropes, or
scaffolds. The claimant can occasionally perform other postural
activities, except the claimant can never crawl. The claimant would
need a cane for balance.
(Tr. 25.) Continuing with the fourth step, the ALJ also determined that Plaintiff was unable to
perform any past relevant work. (Tr. 23.)
At the fifth step, the ALJ questioned the VE to determine whether a significant
number of jobs exists in the economy which Plaintiff could perform given his limitations. See
Richardson, 735 F.2d at 964. The VE identified the positions of customer complaint clerk,

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scheduler, and customer service representative as jobs Plaintiff could perform. (Tr. 62–64.) The VE
further testified that these positions amounted to at least 12,300 jobs in the State of Michigan. (Tr.
64.) This represents a significant number of jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir.
1988); McCormick v. Sec’y of Health & Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
Accordingly, the ALJ determined that Plaintiff was not under a disability at any point
from March 6, 2011, (the alleged onset date) through July 12, 2013, (the date of the decision). (Tr.
24–25.)
DISCUSSION
Plaintiff’s pro se brief presents two separate statements of error which do not directly
correspond to the arguments developed in the brief’s argument section. After reviewing the brief,
the Court gleans the following claims of error:
1.

The ALJ erred in discounting Plaintiff’s credibility;

2.

The ALJ erred in relying on the opinion of Dr. Saadat Abbassi, a state agency
medical consultant;

3.

The ALJ erred in finding Plaintiff was not Disabled under the Medical-Vocational
Guidelines; and

4.

The ALJ failed to adopt the VE’s testimony regarding a hypothetical that
incorporated his subjective complaints.

(ECF No. 10, PageID.925–28.) The Court will consider the issues below.
A.

Credibility

At the administrative hearing, Plaintiff testified that he was far more limited than that
recognized by the ALJ. Specifically, Plaintiff stated that he could not work due to weakness on the
right side of his body, fatigue, tremors, and problems with his gait due to a dragging right leg. (Tr.
44–45.) Plaintiff argues that he is entitled to relief because the ALJ’s rationale for discounting his
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testimony is not supported by substantial evidence.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984) (emphasis added); see also, Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002)
(same). As the relevant Social Security regulations make clear, however, a claimant’s “statements
about [his] pain or other symptoms will not alone establish that [he is] disabled.” 20 C.F.R. §
404.1529(a); see also, Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting
20 C.F.R. § 404.1529(a)); Hash v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009).
Instead, as the Sixth Circuit has established, a claimant’s assertions of disabling pain and limitation
are evaluated pursuant to the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, as the Sixth Circuit has repeatedly held, “subjective complaints may
support a finding of disability only where objective medical evidence confirms the severity of the
alleged symptoms.” Id. (citing Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)).
However, where the objective medical evidence fails to confirm the severity of a claimant’s
subjective allegations, the ALJ “has the power and discretion to weigh all of the evidence and to
resolve the significant conflicts in the administrative record.”Id. 105 F. App’x at 801 (citing Walters,
127 F.3d at 531).
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In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Id. (citing Walters, 127 F.3d at 531); see also, Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (“[i]t is for the [Commissioner] and his
examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate
their testimony”). It is not for this Court to reevaluate such evidence anew, and so long as the ALJ’s
determination is supported by substantial evidence, it must stand. The ALJ found Plaintiff’s
subjective allegations to not be fully credible, a finding that should not be lightly disregarded. See
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth
Circuit recently stated, “[w]e have held that an administrative law judge’s credibility findings are
virtually unchallengeable.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x. 508, 511 (6th Cir. 2013)
(citation omitted).
In finding that Plaintiff’s testimony was only partially credible, the ALJ noted that
Plaintiff’s testimony was undercut by his daily activities, part-time work after his alleged onset date,
and the objective medical record. (Tr. 21–22.) The ALJ’s reasons are supported by substantial
evidence. Plaintiff’s testimony and function report demonstrate that he was not nearly as limited
as alleged. For example, Plaintiff stated he could prepare meals, clean, mow the law, go shopping,
drive, attend church, and golf twice a month. (Tr. 55–57.) This is consistent with Plaintiff’s function
report in which Plaintiff stated he takes care of his two children, handles his personal care, prepares
meals, cleans, does laundry, drives, goes shopping, and plays golf. (Tr. 210–213.) Contrary to
Plaintiff’s assertion, the ALJ did not err in considering these activities of daily living when assessing
the claimant’s credibility. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007);
Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990); see also Keeton v.

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Comm’r of Soc. Sec., 583 F. App’x 515, 532 (6th Cir. 2014) (“Although the ability to do household
chores is not direct evidence of an ability to do gainful work, an ALJ may consider household and
social activities engaged in by the claimant in evaluating a claimant’s assertions of pain or
ailments.”) (citations and quotations omitted).
Even if that were not the case, the ALJ provided two other reasons for discounting
Plaintiff’s credibility which are also supported by substantial evidence. The record shows that
Plaintiff earned a net total of $2,400 in part time work as an inspector in the first five months of
2012. (Tr. 219–220.) Plaintiff testified that he worked two to three times a week for a period of
three hours a day. (Tr. 53.) Plaintiff drove himself to the location, took photographs, interviewed
individuals, and thereafter wrote a report on deadline. (Tr. 53.) Plaintiff’s ability to perform the
duties of this part time work was a relevant consideration in the ALJ’s determination that Plaintiff
was not as limited as alleged. See Luggen v. Colvin, No. 14-139-WOB-CJS, 2015 WL 5707211, at
*13 (E.D. Ky. Aug. 28, 2015) report and recommendation adopted, No. CV2014139WOBCJS, 2015
WL 5723578 (E.D. Ky. Sept. 29, 2015) (collecting cases).
The ALJ also noted that the medical evidence did not support a finding that Plaintiff
was as limited as that alleged. (Tr. 22.) This too is supported by substantial evidence. For example,
treatment notes from three weeks, six weeks, and three months after Plaintiff’s left knee replacement
show Plaintiff experienced a dramatic improvement. During the three month checkup on October
25, 2011, Plaintiff was described as having strength of 5/5. (Tr. 435.) The treatment note also stated
that Plaintiff had made a lot of progress, had good function, was back working, and had minimal
pain. (Tr. 435.) A checkup after Plaintiff’s cervical fusion surgery noted Plaintiff’s complaints of
right side weakness, but noted he had a motor strength of 4/5. (Tr. 643.) A March 2, 2013, treatment

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note from Dr. Karen Ohn found that Plaintiff had no motor weakness, and intact balance and gait.
(Tr. 872.) All this supports the ALJ’s reasons for discounting Plaintiff’s credibility, and Plaintiff’s
argument is thus rejected.
B.

Medical Opinions

On July 19, 2012, Dr. Saadat Abbasi, M.D., a medical consultant, reviewed the
medical record and opined on Plaintiff’s RFC for the state disability agency. Dr. Abbasi opined that
Plaintiff was able to perform light work, subject to several additional postural limitations. (Tr.
82–84, 92–94.) The ALJ gave the opinion “some weight,” noting that the record supported postural
limitations, but found that Plaintiff’s testimony and further developments in the record supported
an RFC for only sedentary work. (Tr. 22–23.) The gist of Plaintiff’s argument is that because Dr.
Abbassi did not review later developments in the record (dating through May 2013) the ALJ should
have sought out an updated medical opinion and erred in giving any weight to Dr. Abbassi’s
opinion. (ECF No. 10, PageID.927–28.)
Plaintiff’s argument does not provide a basis for disturbing the Commissioner’s
decision. Given the delay inherent in the administrative review process, few, if any cases, will
present a static medical record from a date before the decision on initial review through the date of
the ALJ’s decision. It is patent that the ALJ understood that Dr. Abbasi rendered an opinion on the
basis of the medical record as it existed in July 2012. (Tr. 22–23.) The ALJ was free to consider Dr.
Abbasi’s opinions and determine what weight, if any, they should be given. “Social Security
regulations recognize that opinions from non-examining state agency consultants may be entitled
to significant weight, because these individuals are ‘highly qualified’ and are ‘experts in Social
Security disability evaluation.’” Cobb v. Comm’r of Soc. Sec., No. 1:12–cv–2219, 2013 WL

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5467172, at *5 (N.D. Ohio Sept. 30, 2013) (quoting 20 C.F.R. §§ 404.1527(e)(2) (i),
416.927(e)(2)(i)); see Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994); see also Brooks v.
Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (“[I]n appropriate circumstances,
opinions from State agency medical and psychological consultants . . . may be entitled to greater
weight than the opinions of treating or examining sources.”).
Plaintiff’s claim that because Dr. Abassi did not review the entire record, the ALJ
erred in giving weight to the opinion is without support. “When an ALJ relies on a non-examining
source who did not have the opportunity to review later submitted medical evidence, especially
when that evidence reflects ongoing treatment,” the Sixth Circuit requires “some indication that the
ALJ at least considered these [new] facts before giving greater weight to an opinion that is not based
on a review of a complete case record.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th
Cir. 2013). Here, the ALJ explicitly stated that due to the subsequent developments in the record,
the evidence only supported a sedentary RFC.
Finally, the ALJ was not required to obtain another consultative examination. An
ALJ has the discretion to determine whether further evidence, such as additional examinations are
necessary. Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009) (citing 20 C.F.R.
§ 404.1517 (“If your medical sources cannot or will not give us sufficient medical evidence about
your impairment for us to determine whether you are disabled or blind, we may ask you to have one
or more physical or mental examinations or tests.”)). “[T]he regulations do not require an ALJ to
refer a claimant to a consultative specialist, but simply grant him the authority to do so if the existing
medical sources do not contain sufficient evidence to make a determination.” Landsaw v. Sec’y of
Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986). In other words, the regulations “do[ ]

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not require a consultative examination at government expense unless the record establishes that such
an examination is necessary to enable the administrative law judge to make the disability decision.”
Landsaw, 803 F.2d at 214 (internal quotation marks omitted) (emphasis in original). See also, Brock
v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (“[a]n ALJ must order a consultative evaluation when
such an evaluation is necessary to enable the ALJ to make the disability determination”). Here, the
record was sufficient to enable the ALJ to make a disability determination. The ALJ was not
required to seek out an additional consultative examination. Plaintiff’s claim of error is thus
rejected.
C.

Medical-Vocational Guidelines

An ALJ’s finding that a plaintiff possesses the capacity to perform substantial gainful
activity that exists in the national economy must be supported by substantial evidence that the
plaintiff has the vocational qualifications to perform specific jobs. Varley, 820 F.2d at 779. This
evidence may be produced through the testimony of a VE in response to a hypothetical question
which accurately portrays the claimant’s physical and mental limitations. See Webb v. Comm’r of
Soc. Sec., 368 F.3d 629, 632 (6th Cir. 2004); Varley, 820 F.2d at 779. Accordingly, the ALJ posed
several questions to the VE at the administrative hearing. (Tr. 61–65.) The VE first classified
Plaintiff’s past work as a customer service manager, which was based off her earlier questioning of
Plaintiff. (Tr. 41–44, 62.) Next, the VE identified several skills that Plaintiff would have acquired
in this past work and would transfer into other positions. The VE identified these skills as customer
service skills, communications skills, problem-solving skills, and supervisory skills. (Tr. 63.) The
VE further identified the positions of customer complaint clerk, scheduler, and customer service
representative as positions to which those skills would transfer. (Tr. 63.) Plaintiff presents several

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claims regarding the ALJ’s treatment of the VE’s testimony that all amount to an argument that he
should be found disabled under the Medical-Vocational Guidelines, or “Grids.”
The Grids consider four factors relevant to a particular claimant’s employability: (1)
residual functional capacity, (2) age, (3) education, and (4) work experience. 20 C.F.R., Part 404,
Subpart P, Appendix 2. Social Security regulations provide that “[w]here the findings of fact made
with respect to a particular individual’s vocational factors and residual functional capacity coincide
with all the criteria of a particular rule, the rule directs a conclusion as to whether the individual is
or is not disabled.” 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00. In other words, a claimant
may be awarded benefits if he satisfies the requirements of one of the particular rules correlating to
a finding of disability. See Russell v. Comm’r of Soc. Sec., 20 F. Supp. 2d 1133, 1134 (W.D. Mich.
1998).
The ALJ found that Plaintiff possessed the following vocational factors: (1) was
limited to sedentary work; (2) was closely approaching advanced age;2 (3) possessed at least a high
school education; and (4) had previous work skills that were transferrable. (Tr. 23). According to
the grids, an individual possessing these particular vocational factors is considered “not disabled.”
See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 201.15. Because, however, the ALJ determined
Plaintiff possessed additional nonexertional impairments, the ALJ used § 201.15 as a framework and
consulted a VE as to whether jobs exist in the economy that someone similar to Plaintiff could
perform. The VE testified that there were. (A.R. 61–65). Relying on the VE’s testimony, therefore,

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The ALJ erred in using Plaintiff’s age as of his alleged disability onset date. (Tr. 23.) The relevant time for
determining a claimant’s age in applying the regulations is not the alleged onset date, but rather the date of the ALJ’s
decision. Varley, 820 F.2d at 780 (“the claimant's age as of the time of the decision governs in applying the regulations”).
The ALJ’s error here is harmless, however, as the Plaintiff’s age of 53 is still classified as closely approaching advanced
age. See 20 CFR §§ 404.1568, 416.968.

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the ALJ found that Plaintiff was not disabled. (A.R. 24).
Plaintiff’s argument centers on the differences between Grid Rules 201.14 and
201.15. In the former, a claimant limited to sedentary work, closely approaching advanced age,
possessing at least a high school education, who does not have transferable work skills is
automatically determined to be disabled. In the latter, the same claimant, but who does have
transferable skills is not automatically disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. After
determining Plaintiff had transferable skills, the ALJ used Rule 201.15 as a framework to determine
that Plaintiff was not disabled. (Tr. 23; see Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 424 (6th
Cir. 2008)). The relevant inquiry, then, is whether Plaintiff had transferable skills. “Transferability
means applying work skills which a person has demonstrated in vocationally relevant past jobs to
meet the requirements of other skilled or semiskilled jobs.” SSR 82–41, Titles II & XVI: Work
Skills & Their Transferability As Intended by the Expanded Vocational Factors Regulations
Effective Feb. 26, 1979, 1982 WL 31389 at * 2 (S.S.A. 1982). As noted, at the administrative
hearing the VE testified that Plaintiff obtained several skills in his past work that would transfer to
other positions. The VE further testified that there would be a “less than minimal adjustment” for
Plaintiff to these positions. (Tr. 63.) In fact, the VE stated that the skills in these other positions
were really subsets of skills Plaintiff had already developed. (Tr. 63.) The Court agrees. The VE’s
testimony provides substantial evidence that Plaintiff acquired skills that would transfer to several
other positions, and accordingly, Plaintiff’s claim is rejected.
D.

Hypothetical

Plaintiff next contends that the ALJ erred by refusing to adopt the hypothetical posed
to the VE which incorporated his subjective complaints. (ECF No. 10, PageID.928.) However, a

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hypothetical question need only include those limitations which the ALJ accepts as credible. See
Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990). It is well settled that
a hypothetical question to a VE need not include unsubstantiated complaints. See Casey v. Sec’y of
Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); see also Carrelli v. Comm’r of Soc.
Sec., 390 F. App’x 429, 438 (6th Cir. 2010) (“[I]t is ‘well established that an ALJ may pose
hypothetical questions to a vocational expert and is required to incorporate only those limitations
accepted as credible by the finder of fact.’”) (quoting Casey, 987 F.2d at 1235). The VE does not
determine a claimant’s medical restrictions or how they impact the claimant’s RFC—that is the
ALJ’s job. See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 247 (6th Cir. 1987). The
ALJ, having found that Plaintiff’s subjective complaints were not fully credible, was not bound by
the VE’s responses to hypothetical questions incorporating a contrary assumption.
The Court finally notes the ALJ’s hypothetical questions to the VE did not include
all the limitations which the ALJ found credible, because it omitted postural limitations which were
part of Plaintiff's RFC, i.e., only occasional postural activities and no crawling. (Tr. 22, 63–65.)
While the ALJ should have posed these limitations in a hypothetical to the VE, in this instance the
Court agrees with Defendant that the ALJ’s error is harmless. An ALJ’s violation of the Social
Security Administration’s procedural rules is harmless and “will not result in reversible error absent
a showing that the claimant has been prejudiced on the merits or deprived of substantial rights
because of the [ALJ]’s procedural lapses.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546–47
(6th Cir. 2004). The Court finds the error here to be harmless because the DOT descriptions for the
positions identified in support of the Commissioner’s step 5 finding do not require the postural
abilities that the ALJ found Plaintiff had limitations in doing. Postural limitations include activities

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such as climbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling. SSR
96–9P, Titles II & XVI: Determining Capability to Do Other Work-Implications of A Residual
Functional Capacity for Less Than A Full Range of Sedentary Work, 1996 WL 374185 at *7 (S.S.A.
July 2, 1996). A review of the DOT descriptions for the jobs identified by the VE demonstrates that
the postural abilities Plaintiff would be limited in are not required abilities for the positions. See
SCHEDULER, DICTIONARY OF OCCUPATIONAL TITLES, 1991 WL 672210 (4th ed. 1991); CUSTOMER
SERVICE REPRESENTATIVE, DICTIONARY

OF

OCCUPATIONAL TITLES, 1991 WL 672224 (4th ed.

1991); CUSTOMER-COMPLAINT CLERK, DICTIONARY OF OCCUPATIONAL TITLES, 1991 WL 672252
(4th ed. 1991).

Accordingly, the ALJ’s failure to include all credible limitations into his

hypothetical to the VE amounts to harmless error. Plaintiff’s claims are thus rejected.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision will be AFFIRMED. A
separate judgment shall issue.
Dated:

January 27, 2016

/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE

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