Whited v. Astrue

Filing 22

MEMORANDUM AND ORDER that The Commissioner's decision is affirmed. Whited's complaint is dismissed. The parties shall bear their own costs. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TROY DON WHITED,
Plaintiff,

4:12-CV-3158

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Troy Don Whited's disability insurance benefits
under Titles II and XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 401 et
seq. and 1381 et seq. The Court has carefully considered the parties' filings
and the administrative record. For the reasons discussed below, the
Commissioner's decision will be affirmed.
BACKGROUND
This case involves two applications made under the SSA. In July 2009,
Whited applied for disability insurance benefits under Title II (T8, 120–29),
and for supplemental security income benefits under Title XVI. T8, 130–32.
Both claims were denied initially and on reconsideration. T54–65. Following
a hearing on December 8, 2010, the administrative law judge (ALJ) found
that Whited was not disabled as defined under 42 U.S.C. §§ 416(i), 423(d), or
1382c(a)(3)(A), and therefore not entitled to benefits under the SSA. T7–20.
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At
step one, the claimant has the burden to establish that he has not engaged in
substantial gainful activity since his alleged disability onset date. Id.;
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). If the claimant has
engaged in substantial gainful activity, he will be found not to be disabled;
otherwise, at step two, he has the burden to prove he has a medically
determinable physical or mental impairment or combination of impairments
that significantly limits his physical or mental ability to perform basic work
activities. Id. At step three, if the claimant shows that his impairment meets

or equals a presumptively disabling impairment listed in the regulations, he
is automatically found disabled and is entitled to benefits. Id. Otherwise, the
analysis proceeds to step four, but first, the ALJ must determine the
claimant's residual functional capacity (RFC), which is used at steps four and
five. § 404.1520(a)(4). At step four, the claimant has the burden to prove he
lacks the RFC to perform his past relevant work. Gonzales, 465 F.3d at 894.
If the claimant can still do his past relevant work, he will be found not to be
disabled; otherwise, at step five, the burden shifts to the Commissioner to
prove, considering the claimant's RFC, age, education, and work experience,
that there are other jobs in the national economy the claimant can perform.
Id.
In this case, at step one, the ALJ found that Whited had not engaged in
substantial gainful activity since his alleged disability onset date of October
12, 2007. T10. At step two, the ALJ found that Whited had the following
severe impairments: lumbar stenosis at the L4/L5 level,1 degenerative disc
disease, lower extremity radiculopathy,2 and obesity. T10. But at step three,
the ALJ found that Whited did not have an impairment or combination of
impairments that met or equaled a presumptively disabling impairment.
T10–11.
The ALJ found that Whited had the RFC to perform light work, as
defined in 20 C.F.R. § 404.1567(b), with several other postural and
environmental limitations not at issue on appeal. T11. At step four, the ALJ
found that Whited was unable to perform his past relevant work. T14. And at
step five, the ALJ found that Whited could perform jobs that existed in
significant numbers in the national economy, based on the testimony of
vocational expert Jeffrey F. Magrowski, Ph.D. The ALJ provided the
representative jobs of livestock sales representative, usher, and furniture
rental consultant. T14–15. So, the ALJ found that Whited was not disabled.
T15–16.
On June 5, 2012, after reviewing additional evidence, the Appeals
Council of the Social Security Administration denied Whited's request for
review. T1–4. Whited's complaint seeks review of the ALJ's decision as the
final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g).
See also § 1383(c)(3). Filing 1.

Lumbar spinal stenosis refers to a narrowing of the spinal canal caused by degenerative or
traumatic changes at the level of the lumbar vertebrae. Taber's Cyclopedic Medical
Dictionary s.v. "Stenosis, lumbar spinal stenosis" (LexisNexis 2011).
1

Radiculopathy refers to a disorder of the spinal nerve roots. Stedman's Medical Dictionary
1503 (27th ed. 2000).
2

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ANALYSIS
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id. The Court reviews for substance
over form: an arguable deficiency in opinion-writing technique does not
require the Court to set aside an administrative finding when that deficiency
had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir.
2011). And the Court defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
I. Effect of Whited's Obesity on His RFC
Whited first contends that the ALJ erred by failing to identify the
impact of his obesity on his RFC. This argument, which Whited has raised in
only the most cursory fashion, is without merit. After finding that Whited's
obesity was a severe impairment at step two, the ALJ explicitly considered
Whited's obesity in making her RFC determination. T12. The ALJ stated that
she had considered the effects of Whited's obesity alone and combined with
his other impairments, in accordance with Social Security Ruling (SSR) 02–
1p: Policy Interpretation Ruling: Titles II And XVI: Evaluation of Obesity
(2002). Whited has failed to identify any additional or greater limitations
resulting from his obesity, and the Court has no reason to believe that the
ALJ erred in her determination. See, Heino v. Astrue, 578 F.3d 873, 881–82
(8th Cir. 2009); Forte v. Barnhart, 377 F.3d 892, 896–97 (8th Cir. 2004).
II. Existence of Sufficient Numbers of Jobs in the National Economy
Whited next takes issue with the ALJ's finding at step five that he
could perform jobs that existed in significant numbers in the national
economy. As noted above, the ALJ utilized the testimony of a vocational
expert (VE), Jeffrey F. Magrowski, Ph.D. T14–15, 39–45. At the hearing,
Magrowski testified that, based on the job descriptions found in the

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Dictionary of Occupational Titles (DOT),3 a person with Whited's RFC could
perform the representative jobs of livestock sales representative, usher, and
furniture rental consultant. T39–45. The ALJ accepted this testimony and
found that Whited could perform these jobs, and that they existed in
significant numbers in the national economy. T14–15.
Whited has raised objections to both aspects of the ALJ's findings—his
ability to perform these jobs, and the existence of these jobs in sufficient
numbers. He first argues that the actual duties performed by livestock sales
representatives and furniture rental consultants are more strenuous than
suggested by the definitions in the DOT and the VE's testimony. Whited
claims that as actually performed, these positions would require him to
complete physical tasks in excess of the ALJ's RFC determination.
According to the DOT, both positions are classified as "light" work.4
DOT §§ 260.257-010, 295.357-018. The DOT states that the livestock job
involves, among other duties, contacting prospective buyers to persuade them
to purchase livestock, inspecting livestock, and attending meetings to keep
informed of trends and developments in the livestock industry. DOT §
260.257-010. Whited asserts that the position would actually involve loading
and unloading livestock, and penning and feeding livestock, and would
therefore exceed his RFC. Similarly, while the DOT description for the
position of furniture rental consultant does not include any significant
physical duties, Whited claims that the position would actually require him
to move furniture. DOT § 295.357-018.
However, Whited has failed to support his claims with any evidence
that would contradict the DOT descriptions. The ALJ may take notice of the
physical demands and strength ratings of jobs found in the DOT. See 20
C.F.R. § 404.1566(d)(1); see also, Porch v. Chater, 115 F.3d 567, 571 (8th Cir.
1997); SSR 00-4p: Titles II and XVI: Use of Vocational Expert and Vocational
Specialist Evidence, and Other Reliable Occupational Information in
Disability Decisions (2000). The DOT creates a rebuttable presumption as to
a job's classification. Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir.
2008); see also Young v. Apfel, 221 F.3d 1065, 1070 (8th Cir. 2000). This
presumption can be rebutted by the testimony of a VE, Jones v. Astrue, 619
F.3d 963, 978 (8th Cir. 2010), but it cannot be rebutted by unsupported
U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. 1991) (available at:
http://www.oalj.dol.gov/LIBDOT.HTM) (last accessed July 25, 2013).
3

The DOT defines "light" work similarly to the Social Security Administration's definition.
Compare DOT App'x C (available at: http://www.oalj.dol.gov/public/dot/references/dotappc.h
tm) (last accessed July 25, 2013), with 20 C.F.R. § 404.1567(b). Whited has not identified
any material difference between these definitions.
4

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conclusions in Whited's brief. The ALJ properly relied upon the testimony of
the VE, which was consistent with the DOT, and Whited has not shown any
error in this regard.5
Whited next argues that the ALJ erred in finding that these jobs
existed sufficient jobs in the national economy. As noted above, at step five,
the burden shifts to the Commissioner to prove, considering the claimant's
RFC, age, education, and work experience, that there are other jobs in the
national economy that the claimant can perform. Gonzales, 465 F.3d at 894;
§§ 404.1520(a)(4)(v); 404.1560(c). The ALJ found, based on the VE's
testimony, that there were 500 usher positions in Nebraska and 30,000
nationally, 200 furniture rental consultant positions in Nebraska, and 20,000
nationally, and 5,000 livestock sales representative jobs in Nebraska and
75,000 nationally. T15. Based on these figures, the ALJ found that there were
sufficient jobs in the national economy. T15.
Whited first claims that 200 jobs for furniture consultants in Nebraska
is not a reasonable number of jobs, because most of these jobs would exist in
Omaha or Lincoln, which are more than 200 miles from Whited's home. He
next argues that, contrary to the ALJ's findings, usher jobs simply do not
exist in this day and age. Both arguments are without merit.
Work exists in the national economy when there is a significant
number of jobs (in one or more occupations) having requirements which the
claimant is able to meet with his or her physical or mental abilities and
vocational qualifications. 20 C.F.R. § 404.1566(b). The jobs must exist in
significant numbers in either the region where the claimant lives or in
several other regions of the country. § 404.1566(a). The lack of work in the
claimant's local area will not support a finding of disability. § 404.1566(c).
Therefore, whether jobs are available near Whited's residence is beside the
point. That said, there must be more than "[i]solated jobs that exist only in
very limited numbers in relatively few locations outside of the region" where
the claimant lives. § 404.1566(b). That standard has been satisfied in this
case. The relevant question is not whether 200 furniture rental consultant
jobs in the state of Nebraska are, standing alone, sufficient. Rather, the
Court looks to the total number of jobs found to exist by the ALJ: 5,700 in
Nebraska and 125,000 nationally. And these numbers exceed levels the
Eighth Circuit has considered sufficient to constitute a "significant number."
See, Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003); Long v. Chater,
108 F.3d 185, 188 (8th Cir. 1997); Johnson v. Chater,108 F.3d 178, 180 (8th
Cir. 1997).
Whited has not argued that he would be unable to perform these jobs as described in the
DOT.
5

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Whited's argument that usher positions simply do not exist is likewise
without merit, as it is supported by nothing but allegations in Whited's brief.
The ALJ was entitled to rely upon the testimony of the VE that usher jobs
existed in the numbers stated, Guilliams v. Barnhart, 393 F.3d 798, 803–04
(8th Cir. 2005); 20 C.F.R. § 404.1566(d), and Whited's allegations to the
contrary do not convince the Court the ALJ erred. See Bavaro v. Astrue, 413
Fed. Appx. 382, 384 (2d Cir. 2011) (ALJ properly relied upon VE testimony
that sufficient jobs existed in the photofinishing industry, and court would
not take notice of decline in that industry based on claimant's conclusory
proclamations).
III. Whited's Ability to Sit, Stand, and Walk
Whited's brief concludes by stating that the "level of claimant's
limitations found by the ALJ in standing, sitting, walking as reflected by the
record do not constitute substantial evidence justifying a denial of benefits."
Filing 15 at 15. It is not clear if Whited has simply inserted this as
concluding statement, or if he is raising a new argument not otherwise
addressed in his brief. Whited appears to be arguing (in the most conclusory
fashion) that the ALJ erred in her RFC determination. The record makes
clear that Whited claimed greater limitations in standing, sitting, and
walking than the ALJ found credible. So, liberally construed, Whited has
implicitly raised two arguments: that the ALJ erred in discounting his
testimony, and more broadly, that the RFC assessment was not supported by
substantial evidence. The Court finds no merit in either argument.
Questions of credibility are for the ALJ in the first instance, and the
Court defers to the ALJ's credibility findings where the ALJ expressly
discredits a claimant's testimony and gives a good reason for doing so. Finch
v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). The ALJ found Whited's
complaints of disabling pain less than credible, as well as his claimed
inability to sit, stand, and walk for any significant amount of time. T11–13.
This finding was based on several factors, including the fact that Whited was
able to work 8 hours a day, once a week, at a livestock auction, from May
2008 to May 2009. T13, 195–96. The ALJ properly found that Whited's ability
to work for approximately a year detracted from his credibility. See Medhaug
v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009); Tindell v. Barnhart, 444 F.3d
1002, 1006 (8th Cir. 2006). This finding, in turn, factored into the ALJ's
overall RFC assessment, see Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.
2005), which the Court likewise finds to have been supported by substantial
evidence.
The ALJ relied upon the opinions of the state agency medical
consultants, Jerry Reed, M.D., and Glen Knosp, M.D. T13, 308–17. Reed
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opined that Whited was capable of working at the RFC found by the ALJ, and
Knosp concurred. T308–17. While other doctors and treatment providers
opined that Whited suffered from greater limitations, the ALJ adequately
explained why she had discounted these opinions. T12–13. It is the ALJ's role
to weigh conflicting evidence and to resolve disagreements among physicians,
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007), and Whited does not claim
that the ALJ erred in doing so. The RFC determination was also supported
by Whited's ability to work at the livestock auction. T13–14. While this work
was not itself sufficient to support an RFC to perform more strenuous work
on a full-time basis, it was probative evidence that the ALJ was entitled to
consider. Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004). In sum, the
Court finds that the ALJ's decision was supported by substantial evidence,
including the ALJ's independent review of the medical evidence, the opinions
of the state agency medical consultants, and Whited's activities, including his
work at the livestock auction. See Krogmeier v. Barnhart, 294 F.3d 1019,
1023–24 (8th Cir. 2002).
IV. Failure to Explain Findings
Finally, Whited argues that the ALJ did not adequately explain her
findings, or in the parlance of Judge Posner, that the ALJ failed to build a
"logical bridge" between the evidence and her conclusion. Sarchet v. Chater,
78 F.3d 305, 307 (7th Cir. 1996); see also Scott v. Astrue, 647 F.3d 734, 740
(7th Cir. 2011). In point of fact, Whited does not actually make this
argument; instead, he simply quotes at great length from a Seventh Circuit
case, Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012). In Bjornson, the court
faulted the ALJ for failing to explain why she had rejected the claimant's
testimony concerning her symptoms. 671 F.3d at 644–49. Here, it is Whited
that has failed to build a logical bridge: between his lengthy quote from
Bjornson and his own case. Whited offers no suggestions as to how the ALJ
erred in this case. And as the Court explained above, the ALJ offered
sufficient reasoning for her RFC determination and discounting Whited's
testimony.
CONCLUSION
The Court has reviewed the administrative record and finds that the
ALJ did not err in any of the ways asserted by Whited. The Court therefore
concludes that the Commissioner's decision was supported by substantial
evidence and should be affirmed.
IT IS ORDERED:

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1.

The Commissioner's decision is affirmed.

2.

Whited's complaint is dismissed.

3.

The parties shall bear their own costs.

4.

A separate judgment will be entered.

Dated this 26th day of July, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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