Spohn v. Commissioner of Social Security

Filing 16

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
SCOTT FREMONT SPOHN,
Plaintiff,

Case No. 1:16-cv-952

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 by the Commissioner of the Social Security Administration
(Commissioner). Plaintiff 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. Section 405(g) limits the Court to a review of the administrative record,
and provides that if the Commissioner’s decision is supported by substantial evidence, it shall be
conclusive.
STANDARD OF REVIEW
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 fifty-one years of age on the date of the ALJ’s decision. (PageID.73,
86, 101.) He obtained a GED, and was previously employed as an industrial truck driver, concrete
quality controller, window installer, and concrete foreman. (PageID.44, 63–64.) Plaintiff applied
for benefits on September 25, 2013, alleging disability beginning June 1, 2009, due to degenerated
discs in the cervical region, chronic pain, damage to left ulnar nerve, degenerative disc disease,
chronic migraines, and carpal tunnel syndrome. (PageID.73–74, 86–87, 205–235.) Plaintiff’s

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applications were denied on March 5, 2014, and Plaintiff subsequently requested a hearing before
an ALJ. (PageID.128–152.) On February 5, 2015, Plaintiff appeared with his counsel before ALJ
Christopher L. Dillon for an administrative hearing at which time Plaintiff and a vocational expert
(VE) both testified. (PageID.38–71.) On May 20, 2015, the ALJ issued an unfavorable written
decision that concluded Plaintiff was not disabled. (PageID.101–124.) On June 14, 2016, the
Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s final decision
in the matter. (PageID.23–28.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
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), 416.920(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
§§ 404.1520(c) 416.920(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), 416.20(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), 416.920(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), 416.920(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 Dillon determined that Plaintiff’s claim failed at the fifth step of the evaluation.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity since June 1,
2009, the alleged disability onset date. (PageID.106–107.) At step two, the ALJ determined
Plaintiff had the severe impairments of: (1) cervical and lumbar spine disorder; (2) residuals of right
shoulder disorder; (3) carpal tunnel syndrome (CTS); (4) bilateral knee disorder; (5) obesity; (6)
affective disorder; and (7) an anxiety-related disorder. (PageID.107–108.) 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. (PageID.108–111.) At the fourth step, the
ALJ determined Plaintiff retained the RFC based on all the impairments:
for work that involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighting up to 10 pounds;
pushing or pulling similar amounts; standing and/or walking for a
total of no more than 2 hours per work day; sitting for a total of 6
hours; no climbing of ropes/ladders/scaffolding; no more than
occasional ability to perform all other postural activity; no foot pedal
operation; no more than frequent reaching with the dominant right
upper extremity, but no reaching above shoulder level with either
upper extremity; no more than frequent handling and fingering; no
more than frequent interaction with supervisors, coworkers, and the
public; and no more than simple, routine, repetitive tasks.
(PageID.111.) Continuing with the fourth step, the ALJ made no finding regarding Plaintiff’s past
relevant work. (PageID.117.) Accordingly the ALJ proceeded to the fifth step and questioned the

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VE to determine whether a significant number of jobs exist in the economy that Plaintiff could
perform given his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff
could perform other light, unskilled, work as a final inspector (450,000 national positions), final
assembler (395,000 national positions) and as a sorter (400,000 national positions). (PageID.65–67.)
Based on this record, the ALJ found that Plaintiff was capable of making a successful adjustment
to work that exists in significant numbers in the national economy. (PageID.118.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from June 1, 2009,
the alleged disability onset date, through May 20, 2015, the date of decision. (PageID.119–120.)
DISCUSSION
The medical-vocational guidelines, also known as 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.
The grids only take into consideration a claimant’s exertional (i.e., strength)
limitations. Accordingly, where a claimant suffers from “nonexertional limitations that significantly
restrict the range of available work,” use of the grids alone to make a disability determination is
inappropriate. See Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 424 (6th Cir. 2008). As the Sixth
Circuit observed:
[W]here a claimant has nonexertional impairments alone or in
combination with exertional limitations, the ALJ must treat the grids
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as only a framework for decisionmaking, and must rely on other
evidence to determine whether a significant number of jobs exist in
the national economy that a claimant can perform. Reliance upon the
grids in the presence of nonexertional limitations requires reliable
evidence of some kind that the claimant’s nonexertional limitations
do not significantly limit the range of work permitted by [her]
exertional limitations.
Id. at 424 (internal citations omitted). Plaintiff contends that the ALJ erred when he concluded that
Plaintiff’s claim failed at step five. While apparently conceding the ALJ’s RFC determination is
supported by substantial evidence, Plaintiff argues the ALJ erred when he applied the grid rule for
light work at step five, and should have applied a sedentary grid rule instead. He furthermore asserts
that a social security ruling, SSR 83–10, precludes a finding that he was able to perform light work.
A plaintiff’s residual functional capacity (RFC) represents his ability to perform
“work-related physical and mental activities in a work setting on a regular and continuing basis,”
defined as “8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96–8P, 1996
WL 374184, at *1 (SSA July 2, 1996); see also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109,
116 (6th Cir. Nov.18, 2010).
Social Security regulations and rulings state: “[l]ight work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls” (emphasis added). 20 C.F.R. § 404.1567; SSR 83–10, 1983 WL 31251, at *6
(SSA 1983); Van Winkle v. Comm’r of Soc. Sec., 29 F. App’x 353, 357 (6th Cir. Feb.6, 2002).
Plaintiff does not argue that he can not meet the lifting requirements noted above, but argues that
SSR 83–10’s description of light work is incompatible with the RFC prescribed by the ALJ that

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limited him to two hours of standing or walking during the workday. The Court is not persuaded.
In his decision, the ALJ concluded, at step five, that there was a significant number
of jobs that Plaintiff could perform, given his RFC. The ALJ specifically noted that:
In determining whether a successful adjustment to other work can be
made, I must consider the claimant’s residual functional capacity,
age, education, and work experience in conjunction with the MedicalVocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If
the claimant can perform all or substantially all of the exertional
demands at a given level of exertion, the medical-vocational rules
direct a conclusion of either “disabled” or “not disabled” depending
upon the claimant’s specific vocational profile (SSR 983-11). When
the claimant cannot perform substantially all of the exertional
demands of work at a given level of exertion and/or has nonexertional
limitations, the medical-vocational rules are used as a framework for
decisionmaking unless there is a rule that directs a conclusion of
“disabled” without considering the additional exertional and/or
nonexertional limitations (SSRs 83-12 and 83-14). If the claimant
has solely nonexertional limitations, section 204.00 in the MedicalVocational Guidelines provides a framework for decisionmaking
(SSR 85-15).
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.21 and Rule 202.14. However, the
claimant’s ability to perform all or substantially all of the
requirements of this level of work has been impeded by additional
limitations. To determine the extent to which these limitations erode
the unskilled light occupational base, I asked the vocational expert
whether jobs exist in the national economy for an individual with the
claimant’s age, education, work experience, and residual functional
capacity. The vocational expert testified that given all of these
factors the individual would be able to perform the requirements of
representative occupations such as Final Inspector (Dictionary of
Occupational Titles (DOT) codes 7.27.687-054), with 450,000 jobs
nationally; Final Assembler (DOT code 731.687-018), with 395,000
jobs nationally; and Sorter (DOT code 733.687-062), with 400,000
jobs nationally.
Although the vocational expert’s testimony is inconsistent with the
information contained in the DOT, there is a reasonable explanation
for the discrepancy. Pursuant to SSR 00-4p, I have determined that
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the vocational expert’s testimony is consistent with the information
contained in the DOT, with the exception of the information related
to overhead reaching and the combination of light lifting/carrying and
sedentary standing/walking requirements, which the DOT does not
address. As it relates to those limitations, the vocational expert relied
upon her own education, expertise and experience in the vocational
field.
(PageID.118.)
Plaintiff contends that his RFC is not properly classified as light because the ALJ
found he could only stand or walk for two hours in a workday. Plaintiff primarily relies on SSR 8310 for support. That ruling clarifies “the manner in which the medical-vocational rules in Appendix
2 of Subpart P, Regulations No. 4, address the issue of capability to do other work, and to provide
definitions of terms and concepts frequently used in evaluating disability under the
medical-vocational rules.” SSR 83–10, 1983 WL 31251 (SSA Jan. 1, 1983.)
Plaintiff correctly notes that “light work” is defined as “as lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted in a particular light job may be very little, a job is in this category when it requires
a good deal of walking or standing—the primary difference between sedentary and most light jobs.”
Id. at *5; see also 20 C.F.R. §§ 404.1567(b), 416.967(b). But the ALJ’s RFC is not plainly
incongruent with this definition. That is because the regulations go on to note that “A job is also
in this [light work] category when it involves sitting most of the time but with some pushing and
pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work.”
SSR 83–10, 1983 WL 31251 at *5. Admittedly, this is a close case. Not only is Plaintiff unable to
perform a “good deal of walking or standing,” he also cannot operate foot pedals. Thus, Plaintiff
clearly would be unable to perform a large swath of light work jobs. But the fact remains the ALJ

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did not preclude Plaintiff from using arm-hand controls. Thus, Plaintiff’s RFC is not, on its face,
inconsistent with the definition of light work.2
To reiterate, Plaintiff cannot perform a full range of light work. But that is not what
the ALJ found. In such cases when a claimant’s RFC does not coincide with the definition of one
of the ranges of work because the claimant has additional limitations that may erode the
occupational base, the Commissioner uses the grids only as a framework for decision making and
relies on other vocational evidence, such as VE testimony, to determine whether the claimant can
still do a significant number of jobs with those nonexertional limitations. Burton v. Sec’y of Health
& Human Servs., 893 F.2d 821, 822 (6th Cir. 1990). Thus the ALJ could not, and did not, rely only
on the grids to make his step five determination. As the ALJ clearly stated, he used the grids only
as a framework, and relied on the VE’s testimony to determine whether a significant number of jobs
exists that Plaintiff could perform. In response to a hypothetical mirroring the RFC, the ALJ
identified 1,195,000 national light and unskilled jobs in three representative occupations of positions
Plaintiff was capable of performing. A VE’s testimony in response to an accurate hypothetical may
provide substantial evidence at step five that the claimant is able to perform a significant number
of jobs. Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). Here, the numbers provided by the
VE constitute a significant number of jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988);

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Plaintiff also contends that a finding of light work runs counter to the opinion of the Agency’s consultant and
the POMS. (PageID.439.) It does not appear that the agency medical expert classified Plaintiff’s RFC as sedentary.
Instead, it appears it was made by an agency official. (PageID.81–86.) But even if the expert did opine that Plaintiff’s
RFC was for sedentary work, such would not mandate reversal because the final responsibility for determining RFC lies
with the ALJ. See Coldiron v. Comm’r of Soc. Sec., 371 F. App’x 435, 439 (6th Cir.2010) (citing 42 U.S.C. §
423(d)(5)(B)). Secondly, the POMS Plaintiff references was not effective on the date of the ALJ’s decision. See
Program Operations Manual System (POMS), DI 24014.006, available at
https://secure.ssa.gov/poms.nsf/lnx/0425015006. But even if the ALJ violated the POMS, such would not require
reversal. See Bates v. Comm’r of Soc. Sec., No. 1:15-CV-739, 2016 WL 4607566, at *4 (W.D. Mich. Sept. 6, 2016)
(noting that the POMS have no legal force).

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McCormick v. Sec’y of Health & Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
Plaintiff contends that, notwithstanding the VE testimony, the DOT descriptions of
the jobs identified by the VE are incompatible with the ALJ’s RFC determination. (PageID.440.)
Plaintiff has waived this claim. Though Plaintiff’s counsel extensively questioned the VE, he did
not object to the VE’s testimony that Plaintiff was capable of performing the three identified
positions. (PageID.67–71.) “The Sixth Circuit, along with other courts across the country, have
generally recognized that a claimant’s failure to object to testimony offered by a vocational expert,
at the time of the administrative proceeding, waives the claimant’s right to raise such issues in the
district court.” Harris v. Comm’r of Soc. Sec. Admin., No. 1:11–cv–1290, 2012 WL 4434078, at *3
(N.D. Ohio Sept. 24, 2012) (citing Hammond v. Chater, No. 96–3755, 1997 WL 338719, at *3 (6th
Cir. June 18, 1997) (finding the plaintiff’s failure to raise objections to the VE’s testimony waived
the argument on appeal)); see Lyon v. Comm’r of Soc. Sec., No. 1:11–cv–1104, 2013 WL 1149967,
at *4 (W.D. Mich. March 19, 2013) (the plaintiff’s challenge to the VE’s testimony was waived
because she failed to object to the testimony at the administrative hearing). Accordingly, the Court
deems this error waived.
Even if Plaintiff did not waive this objection, it would not succeed. At the hearing,
the VE admitted the testimony was inconsistent with the DOT in two respects: the DOT did not
account for overhead reaching and the reduced range of standing. (PageID.66–67.) Under SSR
00-4p, the ALJ was obligated only to ask the VE whether his testimony was consistent with the
DOT, and he did so. See, e.g., Davidson v. Astrue, 2009 WL 3161358, *3 (E.D. Ky. Sept.28, 2009)
(David Bunning, J.). Having identified the inconsistency, the ALJ found a reasonable explanation
for it by referencing the VE’s education, expertise, and experience in the vocational field.

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(PageID.118.)
In sum, the ALJ did not err by determining Plaintiff’s ability to stand or walk for two
hours in an eight-hour workday fell within a reduced range of light work. Because Plaintiff was
unable to perform the full range of light work, however, the ALJ properly relied on VE testimony
in determining there were significant numbers of jobs in the national economy that Plaintiff could
perform.
Plaintiff’s claims of errors are denied.
CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is AFFIRMED.
A separate judgment shall issue.

Dated: July 3, 2017

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

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