Dockey v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Sally J. Berens (jln)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Hon. Sally J. Berens
COMMISSIONER OF SOCIAL SECURITY,
Case No. 1:20-cv-153
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g),
to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act. The parties have
agreed to proceed in this Court for all further proceedings, including an order of final judgment.
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. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. Plaintiff seeks
review of the Commissioner’s decision.
For the following reasons, the Court will affirm the Commissioner’s decision.
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 and Human
Servs., 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards and whether
there exists in the record substantial evidence supporting the decision. See Brainard v. Sec’y of
Health and 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 those findings are conclusive
provided substantial evidence supports them. 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 and Human Servs., 964 F.2d 524, 528 (6th Cir. 1992). 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 and Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). As has been widely recognized, 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). 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.
Plaintiff filed an application for DIB on August 11, 2016, alleging that she had been
disabled since July 26, 2016. (PageID.174–81.) Plaintiff alleged disability due to back injury;
burning in both shoulders; arthritis and stenosis; arthritis in knees, back, and wrist; heart disease
with stint; neuropathy in right arm; depression; anxiety; high blood pressure; and angina.
(PageID.88.) She was 51 years old at her alleged onset date. (PageID.87.) Plaintiff graduated from
high school and had previously worked as a cashier. (PageID.197.) Plaintiff’s application was
denied (PageID.104–06), after which she requested a hearing before an Administrative Law Judge
On August 15, 2018, ALJ Cindy Martin held a hearing and received testimony from
Plaintiff and Marie Barhydt, an impartial vocational expert. (PageID.59–85.) On January 11, 2019,
the ALJ issued a written decision finding that Plaintiff was not entitled to benefits because she was
not disabled from her alleged onset date through the date of the decision. (PageID.41–54.) The
Appeals Council denied Plaintiff’s request for review on November 19, 2019. (PageID.27–31.)
Therefore, the ALJ’s ruling became the Commissioner’s final decision. 20 C.F.R. §§ 416.1455,
416.1481. Plaintiff initiated this civil action for judicial review on February 20, 2020.
ANALYSIS OF THE 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
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), 416.920(d));
4. If an individual is capable of performing her past relevant work, 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),
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
residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders, and
she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of
proof through step four of the procedure, the point at which her residual functional capacity (RFC)
is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant
bears the burden of proof).
After determining that Plaintiff had not engaged in substantial gainful activity since her
alleged onset date, the ALJ found that Plaintiff suffered from severe impairments of cervical spine
degenerative disc disease; degenerative joint disease of the shoulders and right knee; fibromyalgia;
obesity; chronic pain disorder; depression; anxiety; unspecified personality disorder; and attention
deficit disorder. (PageID.43–44.) At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled any impairment
identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1.
The ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§
she is able to occasionally balance, stoop, kneel, crouch, crawl and climb ramps or
stairs; never climb ladders, ropes, or scaffolds; she is able to frequently handle,
finger and feel with the bilateral upper extremities; she is able to occasionally reach
overhead but frequently reach in all other directions with the bilateral upper
extremities; she is able to perform simple tasks, make simple work related decisions
and deal with occasional changes in work processes and environment.
At step four, the ALJ found that Plaintiff had no past relevant work. (PageID.52.) At step
five, based on testimony from the vocational expert, the ALJ found that an individual of Plaintiff’s
age, education, work experience, and RFC could perform the occupations of office helper, price
marker and cashier, and 1,173,000 of such jobs existed in the national economy. (PageID.53.) This
represents a significant number of jobs. See, e.g., Taskila v. Comm’r of Soc. Sec., 819 F.3d 902,
905 (6th Cir. 2016) (stating that “[s]ix thousand jobs in the United States fits comfortably within
what this court and others have deemed ‘significant’”).
Plaintiff raises the following issues in her appeal: (1) the ALJ failed to properly evaluate
the medical opinions; (2) the ALJ’s decision is not supported by substantial evidence; and (3) the
ALJ’s step-five finding is not supported by substantial evidence.
The ALJ Properly Weighed the Opinion Evidence
Plaintiff argues that the ALJ failed properly to apply the treating physician rule in
discounting the opinion of her treating physician, Mitchell Klausner, M.D. The treating physician
doctrine recognizes that medical professionals who have a long history of caring for a claimant
and his maladies generally possess significant insight into his medical condition. See Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must, therefore, give controlling weight to the
opinion of a treating source if: (1) the opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques,” and (2) the opinion “is not inconsistent with the other
substantial evidence in the case record.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375-76
(6th Cir. 2013) (quoting 20 C.F.R. § 404.1527). That deference is appropriate, however, only
where the opinion “is based upon sufficient medical data.” Miller v. Sec’y of Health & Human
Servs., 1991 WL 229979, at *2 (6th Cir. Nov. 7, 1991) (citation omitted). The ALJ may reject the
opinion of a treating physician where it is unsupported by the medical record, merely states a
conclusion, or is contradicted by substantial medical evidence. See Cohen, 964 F.2d at 528; Cutlip
v. Sec’y of Health & Human Servs., 25 F.3d 284, 286-87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ must
give “good reasons” for doing so. Gayheart, 710 F.3d at 376. Those reasons must be “supported
by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Id. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (citation
omitted). Simply stating that the physician’s opinions “are not well-supported by any objective
findings and are inconsistent with other credible evidence” is, without more, too “ambiguous” to
permit meaningful review of the ALJ's assessment. Id. at 376-77.
If the ALJ affords less than controlling weight to a treating physician’s opinion, the ALJ
must still determine the weight it should be afforded. Id. at 376. In doing so, the ALJ must consider
the following factors: (1) length of the treatment relationship and frequency of the examination,
(2) nature and extent of the treatment relationship, (3) supportability of the opinion, (4) consistency
of the opinion with the record as a whole, (5) the specialization of the treating source, and (6) other
relevant factors. Id. (citing 20 C.F.R. § 404.1527). While the ALJ is not required explicitly to
discuss each of these factors, the record must nevertheless reflect that the ALJ considered those
factors relevant to his assessment. See, e.g., Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007); Undheim v. Barnhart, 214 F. App’x 448, 450 (5th Cir. 2007).
On March 16, 2017, Dr. Klausner completed a check-box form regarding Plaintiff’s ability
to perform work-related activities. He indicated that during an eight-hour workday, Plaintiff could
lift and carry less than 10 pounds occasionally, stand or walk for less than two hours, sit for less
than six hours, and would be limited in pushing and pulling with her upper and lower extremities.
Dr. Klausner wrote that Plaintiff had “chronic pain from arthritis involving cervical spine,
shoulders and knees” that limited her ability to perform manual labor. He also indicated that
Plaintiff could never climb ramps/stairs/ladders/ropes/scaffolds, could never kneel, crouch, or
crawl and would be limited in reaching in all directions and around temperature extremes,
humidity, and wetness. (PageID.688–90.) The ALJ declined to give Dr. Klausner’s opinion
controlling weight for the following reasons:
Although Dr. Klausner reported treating the claimant for chronic pain in her back
and knees and his treatment notes were positive for tenderness there was no
evidence of decreased strength or range of motion (Exhibit 4F/10-17, l7F/l).
Examinations showed some diminished range of motion in her shoulder that would
be expected to cause some limitations reaching; however, she generally had good
strength in her upper extremities consistent with the ability to perform light work.
She also had diminished range of motion in her cervical/lumbar spine and right
knee but her lower extremity strength was good and there was no evidence of an
ongoing gait impairment (Exhibits 6F/5, 7F/50, l1F/12, 16F/110, 16F/254,
16F/352, 19F/49). She stated her medication was helpful for her pain and she was
able to perform her activities of daily living, which further supports the ability to
perform light work (Exhibit 16F/186).
Plaintiff argues that the ALJ’s cited reasons do not amount to good reasons, either because
her rationale is internally inconsistent or because the evidence does not support her conclusions.
First, Plaintiff argues that after stating that Dr. Klausner’s notes made no mention of decreased
strength or range of motion, the ALJ immediately contradicts this finding when she states in the
next sentence that Plaintiff “‘had diminished range of motion in her cervical spine and right knee.’”
(ECF No. 9 at PageID.1724 (quoting PageID.51).) Next, Plaintiff argues that the treatment records
the ALJ cited for her findings that Plaintiff generally had good strength in her lower extremities
and that there was no evidence of an ongoing gait impairment do not support the ALJ’s statements
because they do not mention anything about lower extremity strength or gait. (Id.) Finally, Plaintiff
argues that the ALJ’s observation regarding her use of medication to alleviate her symptoms was
not a good reason to discount Dr. Klausner’s opinion because Plaintiff told the doctor that she took
three to four Percocet each day just to be able to complete her activities of daily living. (Id.)
The Court concludes that the ALJ properly evaluated Dr. Klausner’s opinion and gave good
reasons for giving it less than controlling weight. First, the ALJ recognized that Dr. Klausner had
a treating relationship with Plaintiff, but she correctly noted that Dr. Klausner’s treatment notes
contained no examination findings documenting decreased strength or range of motion. This was
an accurate statement, as Dr. Klausner’s notes never mention objective findings on those issues.
(PageID.310–17, 1508.) Lack of supportability is a good reason for discounting an opinion. See
Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 253 (6th Cir. 2016) (“An example of a good
reason is that the treating physician’s opinion is ‘unsupported by sufficient clinical findings and is
inconsistent with the rest of the evidence.’”) (quoting Morr v. Comm’r of Soc. Sec., 616 F. App’x
210, 211 (6th Cir. 2015)). Moreover, ALJs are not bound by conclusory statements of doctors on
check-box forms without explanations citing detailed objective criteria and documentation. “Many
courts have cast doubt on the usefulness of these forms and agree that administrative law judges
may properly give little weight to a treating physician’s check-off form of functional limitations
that did not cite clinical test results, observations, or other objective findings[.]” Ellars v. Comm’r
of Soc. Sec., 647 F. App’x 563, 566 (6th Cir. 2016) (internal quotation marks omitted).
As for the ALJ’s statement that Plaintiff had good strength in her lower extremities,
Plaintiff is correct that the evidence the ALJ cited in support of this statement, (PageID.468, 544,
762, 1157, 1301, 1399, 1655), does not mention Plaintiff’s lower extremity strength. But that does
not mean that the ALJ was not justified in drawing the conclusion that Plaintiff had good or normal
strength. See Nealy v. Comm’r of Soc. Sec., No. 16-12179, 2017 WL 4250476, at *4 (E.D. Mich.
Sept. 25, 2017) (“The ALJ . . . is entitled to evaluate the evidence and draw appropriate
inferences.”); Stout v. Colvin, No. 3:14-CV-563, 2016 WL 1048984, at *10 (E.D. Tenn. Mar. 11,
2016) (“[A]n ALJ may draw reasonable inferences from the evidence, but may not speculate or
draw conclusions that are not supported by the record.”). In discussing the medical evidence, the
ALJ noted that, except for two instances in which Plaintiff was found to have decreased strength
in her right hand and right arm, her treatment records generally contained no findings of decreased
strength her upper extremities and no findings of decreased strength or range of motion in her
lower extremities, including when Plaintiff complained of lower back and knee pain. (PageID.48–
49, 1057, 1301.) Given the lack of such objective findings in the record, the ALJ reasonably
concluded that the Plaintiff had good or normal strength in her lower extremities. Or, stated
differently, the lack of evidence of decreased strength or range of motion in Plaintiff’s lower
extremities provided the ALJ a firm basis to discount Dr. Klausner’s opinion as inconsistent with
the record as a whole. Furthermore, the ALJ’s statement that “there was no evidence of an ongoing
gait impairment” was an accurate summation of the record, as Plaintiff was noted to have an
abnormal gait only once during the period at issue. (PageID.1484.) Thus, the ALJ could reasonably
conclude that Dr. Klausner’s opinion lacked support from both his own treatment notes and from
other evidence in the record.
Finally, the ALJ permissibly considered Plaintiff’s use of Percocet to control her symptoms
in measuring the consistency of Dr. Klausner’s opinion with the other evidence in the record. See
Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 800 n.3 (6th Cir. 2004) (“The ALJ is
permitted to consider the effectiveness of medication used to control pain and other symptoms
associated with a claimant’s impairments. 20 C.F.R. § 404.1529(c)(3)(iv).”). Although Plaintiff
disputes the ALJ’s characterization of the evidence, the ALJ’s interpretation was accurate.
Moreover, even if the ALJ overstated the effectiveness of pain relief, and Plaintiff’s medication
usage is not a good reason, any error is harmless because the ALJ provided other good reasons set
forth above to discount the opinion. See Kenworthy v. Comm’r of Soc. Sec., No. 1:15-CV-1006,
2016 WL 5859055, at *5 (W.D. Mich. Oct. 7, 2016) (stating that “the ALJ’s error here is harmless
if the ALJ provided other good reasons, supported by substantial evidence, that sustain the ALJ’s
ultimate conclusion that the treating physician’s opinion is entitled to less than controlling
Robert Roschmann, M.D.
The ALJ assigned great weight to the opinion of Robert Roschmann, M.D., the State
agency physician who initially reviewed Plaintiff’s claim. Dr. Roschmann opined that Plaintiff
could perform light work, except that she could frequently climb ramps/stairs and balance but only
occasionally stoop, kneel, crouch, and crawl; could never climb ladders, ropes, or scaffolds; could
frequently reach overhead, handle, and finger with her left upper extremity but only occasionally
reach overhead with her right upper extremity. (PageID.51.) “Generally, an ALJ is permitted to
rely on [a] state agency physician’s opinions to the same extent as she may rely on opinions from
other sources.” Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 274 (6th Cir. 2015) (citing 20
C.F.R. § 404.1527). “Thus, an ALJ may provide greater weight to a state agency physician’s
opinion when the physician’s finding and rationale are supported by evidence in the record.” Id.
Citing Miller v. Commissioner of Social Security, 811 F.3d 825 (6th Cir. 2016), Plaintiff
argues that that ALJ erred in giving great weight to Dr. Roschmann’s opinion because the ALJ
failed to indicate that she had considered that he did not have the complete record to review. In
Miller, the court stated, “[w]here the non-examining source did not review a complete case record,
‘we require some indication that the ALJ at least considered these facts before giving greater
weight to an opinion’ from the non-examining source.” Id. at 834 (quoting Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009)). Plaintiff apparently reads Miller’s reference to “these
facts” as referring to the state agency physician’s lack of access to the complete record. Courts
applying Miller, however, had read “these facts” differently. In Sloan v. Commissioner of Social
Security, No. 17-11150, 2019 WL 458163 (E.D. Mich. Feb. 6, 2019), the court noted that Blakley,
which Miller quoted, had in turn quoted Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007), for
the requirement “that the ALJ at least considered these facts.” Id. at *3 (citing Fisk, 253 F. App’x
at 585). The Sloan court observed that Fisk indicated that the phrase “these facts” refers to evidence
that the state agency physician did not have at the time he rendered his opinion—as opposed to the
fact that the state agency physician did not review the complete record—as shown by the following
statement in Fisk: “where, as here, the treating source referred [the claimant] to numerous sources
and made recommendations that accounted for a year’s worth of specialists’ opinions, we require
some indication that the ALJ at least considered these facts before giving greater weight to an
opinion that is not based on a review of a complete case record.” Id. (quoting Fisk, 253 F. App’x
at 585) (internal quotation marks omitted). See also Gibbens v. Comm’r of Soc. Sec., 659 F. App’x
238, 247–48 (6th Cir. 2016) (concluding that the ALJ satisfied Miller’s requirement because while
“Dr. Tanna’s assessment was completed in 2008, the ALJ’s own analysis clearly spanned the entire
record—through the final degenerative changes to Gibbens’s spine that culminated in a cervical
discectomy and fusion, the last medical event included in the record[, and] [t]he decision was
informed by both Dr. Tanna’s assessment and the findings of Dr. Abel’s complete physical
examination, as well as medical evidence later entered into the record”).
This Court finds the Sloan court’s analysis of Miller both cogent and based on a proper
reading of the cases underlying Miller. The appropriate inquiry, then, is whether the ALJ
considered the evidence that Dr. Roschmann did not review. Plaintiff does not argue that the ALJ
did not do so, and the ALJ’s decision indicates that it was based on consideration of the entire
record. Moreover, it is notable that while the ALJ’s RFC determination closely tracks Dr.
Roschmann’s opinion, it is, at least in some respects, more restrictive. (PageID.46, 51.)
Accordingly, this claim of error is rejected.
Substantial Evidence Supports the ALJ’s Decision
Plaintiff next contends that remand is required because substantial evidence does not
support the ALJ’s decision. This argument essentially reiterates Plaintiff’s argument above that
the ALJ “conjured out of whole cloth” his conclusion that Plaintiff had good lower extremity
strength, and there was no evidence of a gait impairment. (ECF No. 9 at PageID.1730 (quoting
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).) Plaintiff argues that “[j]ust because a
medical record does not mention a finding does not mean that there is no problem—it could simply
[be] those areas were not examined or that the physician failed to chart the findings.” (Id. at
PageID.1729.) While Plaintiff’s statement is correct, it is just as true that a lack of findings could
indicate normal functioning because the provider found nothing out of the ordinary. But at bottom,
the point remains that a lack of findings, for whatever reason, undermines the conclusion that a
claimant is disabled. In any event, for the reasons set forth above, the Court concludes that the
ALJ’s findings are supported by substantial evidence.
Plaintiff also argues that certain records the ALJ cited as providing “no evidence of
decreased strength” were actually “positive for weakness and numbness.” But this is not a correct
characterization of the evidence. The pages Plaintiff cites reflect her subjective reports of her
symptoms, not objective findings of the physician. (PageID.467, 478.) “Because [a claimant’s]
subjective complaints do not constitute objective medical findings,” Walton v. Comm’r of Soc.
Sec., 60 F. App’x 603, 610 (6th Cir. 2003) (citing Young v. Sec’y of Health & Human Servs., 925
F.2d 146, 151 (6th Cir.1990)), Plaintiff’s argument lacks merit.
Substantial Evidence Supports the ALJ’s Step Five Finding
Plaintiff contends that the ALJ’s decision is not supported by substantial evidence at
step five because the vocational expert was required to identify jobs that exist in the region where
a claimant lives or several specific regions, but the vocational expert only identified jobs existing
in the national economy. At step five of the sequential process, the burden shifts to the
Commissioner to establish by substantial evidence that a significant number of jobs exist in the
national economy that Plaintiff could perform, her limitations notwithstanding. See 20 C.F.R. §
404.1566; 42 U.S.C. § 423(d)(2)(A). The Commissioner satisfies this requirement by
demonstrating that there exists a significant number of jobs either: (1) in the region where the
claimant resides, or (2) in multiple other regions of the country. See 20 C.F.R. § 404.1566; 42
U.S.C. § 423(d)(2)(A).
In response to the ALJ’s hypothetical question, the vocational expert testified as follows:
There would be occupations that comport with these restrictions. For example, the
job of an office helper. It is an SVP of 2. I would estimate around 40,000 jobs in
the national economy. The corresponding DOT Code is 239.567-010. The job of a
price marker would comport with the limitations. This is also a light occupation
with an SVP of 2. I would estimate around 307,000 jobs nationally. The DOT Code
is 209.587-034. And with the limitations the job of a cashier could be performed.
This is an SVP of 2. I would estimate around 826,000 jobs in the national economy.
The DOT Code is 211.462-010.
Plaintiff contends that this testimony did not comport with 42 U.S.C. § 423(d)(2)(A)
because the vocational expert testified as to jobs which existed nationally rather than jobs which
existed either in Plaintiff’s region or in several regions. (ECF No. 9 at PageID.1730.) This
argument lacks merit. As noted above, the Sixth Circuit has held that “[s]ix thousand jobs in the
United States” satisfies the Commissioner’s requirement to identify a significant number of jobs
in the national economy a claimant can perform. Taskila, 819 F.3d at 905. The Sixth Circuit has
also observed that “the number of jobs that contributes to the ‘significant number of jobs’ standard
looks to the national economy—not just a local area.” Harmon v. Apfel, 168 F.3d 289, 292 (6th
Cir. 1999). In Phillips v. Astrue, No. 5:10-cv-2651, 2011 WL 5526079 (N.D. Ohio Nov. 14, 2011),
the court rejected an argument similar to the one Plaintiff makes:
The VE testified that Plaintiff could perform a total of 106,000 jobs in the national
economy. (See Tr. 48-49.) Work that exists in the national economy is defined as
work that exists either in the region where an individual lives or in several regions
of the country. Id. (quoting 42 U.S.C. § 423(d)(2)(A)); Hall v. Bowen, 837 F.2d
272, 275 (6th Cir. 1988). Plaintiff suggests that this definition requires a VE
literally to state numbers of jobs in the “regional” economy as opposed to the
“national” economy. This is a non sequitur. Plaintiff does not cite, and the Court is
not aware of any legal authority that requires a VE to use magic words in his
testimony to designate numbers of jobs in the “regional” economy; therefore, the
Court is not persuaded that the VE should have done so here. Moreover, there is no
reason to assume the VE intended a definition other than that set forth in the
Phillips, 2011 WL 5526079, at *11. Here, the vocational expert testified that there existed
approximately 1,173,000 jobs in the national economy that an individual with Plaintiff’s RFC
could perform. Given that the vocational expert identified such a large number of jobs, it was
reasonable for the ALJ “to infer that such jobs exist in several regions.” Vining v. Astrue, 720 F.
Supp. 2d 126, 128 (D. Me. 2010) (expressly rejecting the argument that claimant was entitled to
relief because the ALJ failed to specify whether the 10,000 jobs identified by the vocational expert
existed in the region of claimant's residence or multiple regions).
Accordingly, this claim of error is rejected.
For the reasons stated above, the Court concludes that the ALJ’s decision is supported by
substantial evidence. Accordingly, the Commissioner’s decision is affirmed. An order consistent
with this opinion will enter.
Dated: March 31, 2021
/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
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