Mudge v. Commissioner of Social Security

Filing 18

Opinion and Order. The Court Adopts the Magistrate Judge's Report and Recommendation (Related doc # 15 ). Commissioner's denial of Plaintiff's Claim is affirmed. Judge Christopher A. Boyko on 7/2/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IDA L. MUDGE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
ANDREW SAUL,
Comm’r of Soc. Sec.,
Defendant.

CASE NO. 1:18-CV-00804
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon Plaintiff’s Objections (ECF #16) to the Report
and Recommendation (ECF #15) of Magistrate Judge Thomas M. Parker, who recommends that
the Court affirm the Commissioner’s decision denying Plaintiff’s claim for Supplemental
Security Income (“SSI”) under 42 U.S.C. §§ 405(g), 1383(c)(3). For the following reasons, the
Court ADOPTS the Magistrate Judge’s Report and Recommendation and AFFIRMS the
Commissioner’s denial of Plaintiff’s Claim.
BACKGROUND
The following is a procedural synopsis of Plaintiff’s Claim. The Magistrate Judge’s
Report and Recommendation contains a more detailed discussion of the facts. For a complete

1

overview of Plaintiff’s medical history, see the Magistrate Judge’s Report and Recommendation,
which refers to the original Complaint and incorporates all documents related to the dispute.
On May 22, 2014, Plaintiff filed an application for SSI, alleging she became disabled on
November 30, 2002 due to“heart murmur, a benign brain tumor, depression, asthma, [and]
anxiety.” (Transcript of Proceedings before the Social Security Administration, 57). Plaintiff
later amended her date of disability, alleging her disability began on May 22, 2014. (Tr. 11).
Plaintiff’s application was denied by the Social Security Administration initially and upon
reconsideration. (Tr. 56-88). After the denial, Plaintiff timely requested an administrative
hearing. (Tr. 103-105). An Administrative Law Judge (“ALJ”) heard Plaintiff’s case on October
25, 2016. A Vocational Expert (“VE”) testified at the hearing. After the hearing, the ALJ
denied Plaintiff’s claim on March 29, 2017. (Tr. 8-50). On February 12, 2019, the Social
Security Appeals Council denied further review, thus rendering the ALJ’s decision the final
decision of the Commissioner. (Tr. 1-5).
On April 10, 2018, Plaintiff filed her Complaint seeking judicial review of the
Commissioner’s decision. (ECF #1). On February 28, 2019, the Magistrate Judge issued his
Report and Recommendation. (ECF #15). On March 14, 2019, Plaintiff timely filed her
Objections to the Magistrate Judge’s Report and Recommendation. (ECF #16). On March 28,
2019, Defendant timely filed his Response to Plaintiff’s Objections. (ECF #17).
STANDARD OF REVIEW
When a court reviews a magistrate’s report and recommendation, it makes a de novo
determination regarding the portions to which an objection is made. 28 U.S.C. § 636(b)(1). A
review of the Commissioner’s decision, however, is not de novo. Norman v. Astrue, 694 F.

2

Supp. 2d. 738, 740 (N.D. Ohio 2010). The district court’s review of social security disability
cases is limited to whether substantial evidence in the record supports the ALJ’s findings of fact
and whether the ALJ applied the correct legal standards. 42 U.S.C. § 405(g); Norman, 694 F.
Supp. 2d. at 740 (citing Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)).
A decision must be affirmed if the ALJ’s inferences are reasonably drawn from the
record or supported by substantial evidence, even if that evidence could support a contrary
decision. Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003). Substantial evidence
has been defined as “more than a mere scintilla” of evidence. Wright v. Massanari, 321 F.3d
611, 614 (6th Cir. 2003). Further, substantial evidence is evidence a reasonable person would
accept as adequate to support the conclusion. Id. Therefore, if the record contains information
where “a reasonable mind might accept it as adequate to support” the Commissioner’s final
conclusion, then the determination should be affirmed. Id.; Kirk v. Sec’y of Health & Human
Servs., 667 F.2d 524, 535 (6th Cir. 1981). This substantial evidence standard “presupposes that
there is a zone of choice within which the decisionmakers can go either way, without
interference by the courts.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009)
(quoting Mullen v. Brown, 800 F.2d 535, 545 (6th Cir. 1986)).
ANALYSIS
A claimant is entitled to SSI benefits only when they have established disability under the
meaning of the Social Security Act. See 42 U.S.C. § 423. Disability may be established by
demonstrating an “inability to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42

3

U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.905(a).
To determine disability, the Commissioner must follow a five-step sequential analysis.
This may be summarized as follows:
(1) If the claimant is doing substantial gainful activity, he is not
disabled.
(2) If the claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
(3) If the claimant is not doing substantial gainful activity, is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, the claimant is
presumed disabled without further inquiry.
(4) If the impairment does not meet or equal a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
[“RFC”] and use it to determine if the claimant’s impairment
prevents him from doing past relevant work. If claimant’s
impairment does not prevent him from doing his past relevant
work, he is not disabled.
(5) If the claimant is unable to perform relevant work, he is not
disabled if, based on his vocational factors and RCF, he is capable
of performing other work that exists in significant numbers in the
national economy.
20 C.F.R. § 416.920(a)(4)(I)-(v); See also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
In the present case, Plaintiff objects to the ALJ’s findings at Step Five of the above
analysis and to the ALJ’s reliance on the VE’s testimony about significant jobs in the national
economy. Plaintiff claims the VE incorrectly calculated the number of available jobs under the
Medical-Vocational Guidelines and that the Medical Vocational Guidelines should have directed
a “disabled” finding for Plaintiff. (ECF #11, Page ID: 822). Plaintiff similarly claims the jobs
presented by the VE are improper for someone of Plaintiff’s age and vocational skill level.

4

However, the Magistrate Judge determined that the ALJ applied the proper legal standard when
she relied on the VE’s testimony and that substantial evidence supported the ALJ’s decision.
Accordingly, the Magistrate recommended this Court affirm the ALJ’s finding of no disability.
Plaintiff, as Claimant, bears the burden of proof at Steps One through Four of the
analysis. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). In Step Five of the
analysis, the burden shifts to the Commissioner to produce evidence showing whether there is
work available in the economy that accommodates a plaintiff’s RFC and vocational abilities.
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999). “To meet the burden of showing
that [a Plaintiff] could perform jobs available in the national economy, the Commissioner must
make a finding ‘supported by substantial evidence that [Plaintiff] has the vocational
qualifications to perform specific jobs.’” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238
(6th Cir. 2002) (quoting Varley v. Sec’y of Health & Human Serv., 820 F.2d 777, 779 (6th Cir.
1987)).
“Substantial evidence may be produced through reliance on the testimony of a [VE] in
response to a ‘hypothetical’ question, but only ‘if the question accurately portrays [plaintiff’s]
individual physical and mental impairments’” or limitations. Varley, 820 F.2d 779 (quoting
Podedwomy v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). While testifying, a VE may be asked
hypothetical questions so the ALJ can gain information about potential jobs Plaintiff could
fulfill. The hypothetical questions in the present case referenced Plaintiff’s age, education, past
relevant work and physical and mental impairment, clearly portraying Plaintiff’s individual
impairments. The ALJ asked the VE not only about Plaintiff’s physical ability to perform
certain tasks but also about the impact Plaintiff’s concentration and need for extra time would

5

have on her employment performance. (Tr. 46-47). Even pursuant to Plaintiff’s need for breaks
and spoken instruction with visual demonstration, the VE testified that there were positions
Plaintiff could work, including garment sorter, folder and bench assembler. (Tr. 48). Thus, the
ALJ was permitted to rely on the VE’s testimony as substantial evidence. See Anderson v.
Comm’r of Soc. Sec., 406 Fed. Appx. 32, 34 (6th Cir. 2010).
Plaintiff claims the VE’s testimony does not provide a significant number of jobs the ALJ
can rely on, and therefore, that the Commissioner failed to meet her burden of proof at Step Five.
(ECF #16). However, as discussed in Defendant’s Response, the VE identified three potential
“light jobs.” (ECF #17). These jobs included a total of 168,000 positions in the national
economy. (Tr. 46-47). The ALJ then adopted this finding of 168,000 positions Plaintiff could
potentially fill.
The Sixth Circuit has already addressed “the difficult task of enumerating exactly what
constitutes a ‘significant number [of jobs]’” in Hall v. Bowen, concluding that courts should
address the determination on a “case-by-case basis.” 837 F.2d 272, 275 (6th Cir. 1988); See also
Martinez v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1987) (“Congress has explicitly determined
that it is the existence of jobs that is essential, and that an [ALJ] is not required to consider the
hiring practices of the employers, or whether a claimant could actually obtain work if he applied
for it.”) (emphasis in original). In Nejat v. Comm’r of Soc. Sec., the ALJ reviewing plaintiff
Nejat’s case found that Nejat could perform “800 inspector jobs, 2000 assembly jobs, and 2000
hand packer jobs.” 359 F.App’x 574, 578 (6th Cir. 2009). The Sixth Circuit accepted these
much lower numbers as “significant.” In the present case, there are significantly more potential
jobs than in Nejat. The three different types of jobs the VE provided, totaling more than 168,000

6

jobs in the national economy, constitute a significant number for the ALJ to rely on.
Plaintiff claims she should be found disabled pursuant to the Medical-Vocational
Guidelines because it states that for a person of “advanced age” (over fifty-five), a finding of
disability is appropriate, even if that individual could perform a full range of sedentary and light
unskilled work. See, 20 C.F.R. Pt. 404, Subpt. P, App. 2. However, it would have been
incorrect for the ALJ to rely exclusively on the Medical-Vocational Guidelines when
determining these numbers. When the characteristics of the claimant correspond to criteria in
the Guidelines and the claimant suffers only from either exertional impairments or his
nonexertional impairments do not significantly affect his RFC, the ALJ may rely exclusively on
the Guidelines in determining whether there is other work available that the claimant can
perform. 20 C.F.R. § 404.1569(a). Here, since Plaintiff suffers from both exertional
impairments and from a nonexertional impairment that significantly affects her RFC, the
Medical-Vocational Guidelines should not be exclusively relied on.
While the Medical-Vocational Guidelines may determine whether a claimant may work
in the national economy, not “all possible variations of factors” fall under these Guidelines. 20
C.F.R. § 404.1569, see also 20 C.F.R. § 416.969. The Guidelines do not apply “if one of the
findings of fact about the person’s vocational factors and residual functional capacity is not the
same as the corresponding criterion of a rule.” 20 C.F.R. § 404.1569. For example, in Anderson
v. Comm’r of Soc. Sec., where a claimant’s RFC was between two Guidelines, the MedicalVocational Guidelines were found “not binding and [were] instead used only as an analytical
framework.” 406 Fed. Appx. at 35. Due to this, it would be incorrect for Plaintiff’s potential
jobs or disability to be calculated pursuant to the Medical-Vocational Guidelines. Plaintiff’s age

7

and education factors do not coincide with any potential range of work in the Guidelines and
thus do not allow for a calculation under the Guidelines. For this reason, the Magistrate was
correct in upholding the ALJ’s adoption of 168,000 jobs from the VE and in holding the
Medical-Vocational Guidelines were not binding for Plaintiff.
The ALJ applied the proper standard by adopting the number of jobs in the national
economy proposed by the VE. The record reflects why the ALJ could not properly calculate this
number from the Medical-Vocational Guidelines, as Plaintiff desired. Further, the record shows
the VE properly considered Plaintiff’s age, education and mental and physical impairments in
response to the hypotheticals proposed during the ALJ hearing. Due to this, the ALJ properly
adopted the VE’s findings when determining Plaintiff’s SSI denial. Accordingly, Plaintiff’s
challenges to the ALJ’s disability determination are unfounded.
CONCLUSION
Based on the foregoing analysis, the Court finds that Plaintiff’s Objections are without
merit and the Commissioner’s decision denying Plaintiff’s Application for Supplemental
Security Income was correct. Therefore, the Magistrate Judge’s Report and Recommendation
(ECF #15) is ADOPTED and the Commissioner’s denial of Plaintiff’s Claim is AFFIRMED.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: July 2, 2019

8