West v. Commissioner Social Security Administration

Filing 17

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Mary Jane West. It is RECOMMENDED that the decision of the Commissioner be affirmed and that this action be dismissed. Objections to R&R due by 8/20/2012. Signed by Magistrate Judge Norah McCann King on 8/2/2012. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARY JANE WEST,
Plaintiff,
vs.

Civil Action 2:11-CV-448
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §§
405(g), 1383, for review of a final decision of the Commissioner of
Social Security denying plaintiff’s applications for disability
insurance benefits and supplemental security income.

This matter is

now before the Court on plaintiff’s Statement of Errors, Doc. No. 13,
and Defendant’s Memorandum in Opposition, Doc. No. 16.
Plaintiff Mary West filed her applications for benefits on
February 25, 2005, alleging disability as of August 12, 2000.
76-80, 345-47.

A.R.

The applications were denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.

A.R. 13-14, 53-59, 61-62, 348-55.

On August 27, 2009, plaintiff, represented by counsel, appeared
and testified at the administrative hearing,1 as did Paul F. Gatens,

1

Plaintiff’s claims were initially dismissed for failure to appear for
an administrative hearing scheduled for December 5, 2007. A.R. 49-52, 390393. When plaintiff did not respond to a notice to show cause for her failure
to appear, her claims were dismissed. A.R. 49-52. Upon remand after appeal,
however, an administrative hearing was held on August 27, 2009. A.R. 27-31,

M.D., who testified as a medical expert, and John R. Finch, Ph.D., who
testified as a vocational expert. A.R. 358-89.

In a decision dated

December 16, 2009, the administrative law judge found that, despite
plaintiff’s severe impairments, she nevertheless has the residual
functional capacity for a restricted range of light work.

A.R. 22-26.

Relying on the testimony of the vocational expert, the administrative
law judge also found that this residual functional capacity permitted
the performance of a significant number of jobs in the national
economy.

A.R. 25-26.

The administrative law judge therefore

concluded that plaintiff was not disabled within the meaning of the
Social Security Act.

A.R. 26.

That decision became the final decision of the Commissioner of
Social Security when the Appeals Council declined review on March 25,
2011.

A.R. 4-6.
Plaintiff was 46 years of age at the time the administrative law

judge issued his decision.
education,

A.R. 26, 76.

She has a high school

A.R. 362-63, and prior relevant work as a laundry laborer,

press operator and cashier.

A.R. 25.

She was unemployed at the time

of the August 2009 administrative hearing. A.R. 363-64.
By way of medical background, plaintiff presented to the
emergency room in August 2000 because of pain in her right shoulder.
A.R. 155.

X-rays of the right shoulder were unremarkable and

plaintiff was diagnosed with right shoulder bursitis with impingement.
A.R. 155.
In August 2000, Mark A. Holt, M.D., an orthopedic specialist,

45-48, 358-359.

2

evaluated plaintiff’s right shoulder.

A.R. 182.

particular injury to the shoulder. A.R. 182.

Plaintiff denied a

Dr. Holt diagnosed right

shoulder rotator cuff tendinitis and recommended that plaintiff rest,
avoid aggravating activities and begin physical therapy.

A.R. 182.

At a follow-up appointment on August 29, 2000, Dr. Holt reported that
plaintiff “is doing worse than expected.”

A.R. 181.

Following

subsequent visits and conservative treatment, Dr. Holt reported that
plaintiff had developed a frozen shoulder.

A.R. 174-81.

In January

2001, Dr. Holt performed surgery involving “right shoulder
manipulation under anesthesia, injection glenohumeral joint.”
157.

A.R.

Plaintiff’s condition improved post-operatively, but she still

reported occasional pain and tenderness.

A.R. 169-73.

On October 29, 2002, plaintiff sought a second opinion from David
M. Jackson, M.D., an orthopedic specialist.

A.R. 245-245A.

Plaintiff

reported that her range of motion had improved post-operatively but
that she continued to experience pain that interfered with her ability
to work.

A.R. 245.

Upon physical examination, Dr. Jackson noted

subacromial crepitation on elevation with positive impingement sign,
mildly restricted range of motion and some abnormal scapular motion
with abduction; there was no instability.
normal.

Id.

A.R. 245A.

X-rays were

Dr. Jackson concluded that plaintiff had probable

impingement syndrome leading to subacromial bursitis related to
repetitive work activities and a frozen shoulder with some mild
residual stiffness.

Id.

Plaintiff continued to report right shoulder pain following
cortisone injections.

A.R. 235-42.

On October 21, 2003, Dr. Jackson

performed a right shoulder arthroscopy and subacromial decompression.
3

A.R. 234.

Plaintiff’s condition improved, but she continued to

complain of some pain.

A.R. 219-25, 227-33.

By June 2005, plaintiff complained to Dr. Jackson that her
shoulder had worsened.

A.R. 217-18.

Dr. Jackson administered a

subacromial cortisone injection and directed plaintiff to work on
range of motion exercises.

A.R. 217.

In August 2007, Dr. Jackson examined plaintiff in connection with
her Worker’s Compensation claim.

A.R. 320-21.

He attributed

plaintiff’s frozen shoulder, subacromial impingement and bursitis to
work injuries and commented that, although plaintiff had improved
following her surgery in October 2003, “she still has significant
ongoing disability with her right shoulder.

I believe she has chronic

and permanent limits with the use of her right shoulder[.]”

A.R. 320.

Upon physical examination, however, Dr. Jackson reported that
plaintiff’s range of motion was “near normal compared to the left, she
just lacks a little bit of forward flexion.”

Id.

There was no muscle

atrophy and no point tenderness about the right shoulder.

Id.

Dr.

Jackson characterized plaintiff’s shoulder restrictions as chronic and
permanent.

A.R. 321.

On November 26, 2008, plaintiff presented to Moundbuilders
Guidance Center “due to feeling depressed for several years.”
313.

A.R.

Plaintiff was referred to a counselor and to a hospital program

so that a primary care physician could assist with her medication
needs.

Id.

Between February and May 2009, plaintiff visited Katrina Timson,
M.D., a primary care physician.

A.R. 283-95.

Although plaintiff

reported various complaints and requested medication for depression,
4

she did not complain of right shoulder pain.

Id. On July 22, 2009,

Dr. Timson performed a physical capacity evaluation, A.R. 296-97, and
reported, inter alia, no limits on plaintiff’s ability to work,
including no limitations on her ability to lift weight or to reach
above shoulder level.

Id.

Plaintiff testified at the administrative hearing that her right
shoulder pain keeps her from working. A.R. 366.
8 on a 10 point scale.

A.R. 368.

She rated the pain as

She does not use narcotic pain

medication but does take prescription Ibuprofen.

A.R. 368-69.

She

also occasionally experiences numbness and tingling from her shoulder
down to her hands.

A.R. 377-78.

Plaintiff has difficulty reaching in front, overhead or sideways
with her right arm. A.R. 367.

Reaching also causes numbness.

A.R.

378. Accordingly to plaintiff, surgery did not help her right shoulder
condition.

A.R. 367.

She performs the exercises recommended by her

doctors only sometimes.

A.R. 372.

In addition to her right shoulder, plaintiff has also suffered
from depression since 2000.

A.R. 367.

When depressed, she becomes

agitated, has crying spells and cannot concentrate.
prescribed Prozac for the condition.

Id.

A.R. 367-68, 379.

Dr. Timson
At the time

of the hearing, plaintiff had been seeing a counselor for four months.
A.R. 379.
Plaintiff estimates that, on a typical day, she can walk
approximately one block on level ground, but does not walk outside her
home on a regular basis.

A.R. 369, 372.

She can stand in one place

for about three hours and can sit without limit.
the waist. Id.

Id.

She can bend at

She can carry a gallon of milk, which weighs
5

approximately eight pounds, and can walk up and down a flight of
stairs.

A.R. 370-72.

She initially testified that she can use her

hands and fingers to engage in fine manipulation, but later testified
that numbness and tingling in her hand and fingers make it difficult
pick up and hold things.

A.R. 278-79.

Plaintiff drives several times per week, A.R. 371.

She has

difficulty sleeping at night and must therefore nap during the day.
A.R. 370, 373, 379-80. She has no hobbies.
with friends or family. A.R. 374.
play cards or board games.

She does not often visit

She and her husband occasionally

Id.

On a typical day, plaintiff gets up around 7:30.
can care for her personal needs. Id.
her husband.

Id.

She cares for her puppy.
and 2:00 A.M.

A.R. 373.

A.R. 373.

She

She shares household chores with

Plaintiff can use the vacuum.

grocery shopping on her own.

A.R. 372.

Id.

She can go

She watches television.

Id.

She goes to bed between midnight

A.R. 372.

After reviewing plaintiff’s medical records, Dr. Gatens, the
medical expert, testified that plaintiff’s main impairment was right
shoulder impingement syndrome and frozen shoulder, with complaints of
pain documented in the record since August 7, 2000.

A.R. 380.

Dr.

Gatens also noted a normal neurologic exam and reference to left ankle
pain as of February 2004 related to an old ankle fracture.

A.R. 380-

81. There was no documented impairment of plaintiff’s left arm.

A.R.

383. According to Dr. Gatens, plaintiff’s impairments do not meet or
equal a listed impairment.

A.R. 381.

According to Dr. Gatens,

plaintiff could sit six to eight hours per day, with a change of
position every two hours, and could stand and walk six to eight hours
6

per day, with a three to five minute break every 60 to 90 minutes.
A.R. 381-82.

Plaintiff could lift twenty pounds occasionally and ten

pounds frequently.

A.R. 382.

She could use both hands for repetitive

and sustained actions such as grasping, pushing, pulling and fine
manipulation of objects in front of her.

Id.

Plaintiff could

frequently bend at the waist, squat, stoop and crouch and could
occasionally climb stairs.

She could not climb ladders, scaffolding

or ropes and could not engage in overhead lifting or extensive
reaching or pushing with the right arm.

A.R. 382-83. In assessing

plaintiff’s residual functional capacity, Dr. Gatens considered the
likelihood of pain associated with the documented impairments.

A.R.

383.
Dr. Finch, the vocational expert, was asked to assume a claimant
with plaintiff’s vocational profile and the exertional capacity and
limitations articulated by Dr. Gatens.

A.R. 386.

In response, Dr.

Finch testified that such a claimant could not perform any of
plaintiff’s past relevant work.

Id.

However, such a claimant could

perform such light, unskilled jobs as inspector, order clerk and
information clerk.

A.R. 386-87.

According to Dr. Finch, the region

offers 3,000 inspector jobs, 1,300 order clerk jobs and 2,000
information clerk jobs.

Id.

Assuming the credibility of plaintiff’s

subjective complaints, however, such a claimant could not work because
of difficulty in reaching in all directions and in handling objects.
A.R. 387.
Upon examination by plaintiff’s counsel, Dr. Finch testified
that, in identifying these jobs, he relied on the reports of the
United States Department of Labor and the Ohio Department of Job and
7

Family Services.

A.R. 387-88.

In his decision, the administrative law judge found that
plaintiff’s severe impairments consist of right shoulder impingement
syndrome, frozen shoulder and status post remote left ankle fracture.
A.R. 21.

The administrative law judge concluded that plaintiff’s

depression was not severe because it does not cause more than minimal
limitation in her ability to perform basic mental work.

Id.

Relying on the testimony of Dr. Gatens, the medical expert, the
administrative law judge also found that plaintiff has the residual
functional capacity to perform light work except that she is able to
sit for two hours at a time for a total of six to eight hours in an
eight-hour workday and is able to stand and/or walk 60-90 minutes at a
time, with a break for sitting for three to five minutes, for a total
of six to eight hours in an eight-hour workday.

Id.

He also found

that plaintiff can use both hands for reaching, manipulation and
grasping and that she has no limits on the operation of foot controls.
Id.

She can frequently bend, stoop and crouch and can occasionally

climb stairs, but cannot climb ladders or scaffolds.

Id.

Plaintiff

is precluded from overhead reaching or extensive reaching towards the
front with her right arm, but she has no limitation in the use of her
left arm.

Id.

Her driving is not restricted as long as no overhead

or extensive reaching with the right arm is required.

Id.

Relying on

the testimony of the vocational expert, the administrative law judge
found that plaintiff is unable to perform any past relevant work as a
laundry laborer, press operator or cashier,

A.R. 25, but that there

are jobs that exist in significant numbers in the national economy
that plaintiff can perform.

Id.

Accordingly, the administrative law
8

judge concluded that plaintiff is not disabled within the meaning of
the Social Security Act.

A.R. 26.

Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk
v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981).

This Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility.

Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.
536.

Kirk, 667 F.2d at

If the Commissioner’s decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the
matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d
1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983)), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff complains that “[t]he
Commissioner did not carry the burden at the fifth step of the
sequential evaluation in establishing that there was other work that
Plaintiff could perform” and that the administrative law judge’s
decision was not supported by substantial evidence.
9

Id. at 1.

In

determining at the fifth step whether a claimant’s impairments
“prevent him or her from performing work that exists in the national
economy,” administrative law judges may consider “‘reliable job
information’ available from various publications” and testimony from
vocational experts as “sources of occupational evidence[.]”
00-4p, 2000 SSR LEXIS 8 at *3 (S.S.A. Dec. 4, 2000).

S.S.R.

These

publications include the Dictionary of Occupational Titles, published
by the Department of Labor, which “includes information about jobs
(classified by their exertional and skill requirements) that exist in
the national economy.”

S.S.R. 00-4p, 2000 SSR LEXIS 8 at *1; 20

C.F.R. §§ 404.1569, 416.969.

At times, the testimony of a vocational

expert may conflict with information contained in the Dictionary of
Occupational Titles.

See, e.g., Lindsley v. Comm’r of Soc. Sec., 560

F.3d 601, 603 (6th Cir. 2009).

Neither type of evidence, however,

“automatically ‘trumps’ the other when there is a conflict.”
00-4p, 2000 SSR LEXIS 8 at *5.

S.S.R.

Therefore, “[i]n an effort to insure

that such actual or apparent conflicts are addressed, the Social
Security Administration has imposed an affirmative duty on
[administrative law judges] to ask the “vocational experts] if the
evidence that he or she has provided ‘conflicts with [the] information
provided in the [Dictionary of Occupational Titles].’”

Lindsley, 560

F.3d at 603 (quoting S.S.R. 00-4p, 2000 SSR LEXIS 8 at *9).
Administrative law judges must also “obtain a reasonable explanation
for ... apparent conflict[s]” if the vocational expert’s testimony
“appears to conflict with the DOT.”

2000 SSR LEXIS 8 at *9.

In the case presently before the Court, Dr. Finch, the vocational
expert, testified that a claimant with the residual functional
10

capacity for a limited range of light work could perform such jobs as
inspector, order clerk and information clerk.

In her Statement of

Errors, plaintiff complains that the administrative law judge erred in
relying on this testimony because the Dictionary of Occupational
Titles includes “several” inspector jobs that require medium strength.
Statement of Errors, p. 5.

Therefore, plaintiff argues, there is no

evidence of the actual number of light inspector jobs available to
her.

Id.

Second, plaintiff contends that the job of order clerk is

beyond plaintiff’s “level of education and skill” because some of the
order clerk positions detailed in the Dictionary of Occupational
Titles are semi-skilled and, plaintiff represents, some order clerk
positions “may include entering data into a computer.”

Id. at 6.

Finally, plaintiff argues that the job of information clerk is beyond
plaintiff’s residual functional capacity because the Dictionary of
Occupational Titles identifies some of those positions as requiring
medium exertion and are skilled.

Id.

Accordingly, plaintiff takes

the position that substantial evidence does not support the
administrative law judge’s decision because there is no evidence in
the record that a significant number of jobs within plaintiff’s
residual functional capacity exist in the national economy.

Id. at 6-

7.
Plaintiff’s arguments are not well-taken.

When given the

opportunity to cross-examine Dr. Finch during the administrative
hearing, plaintiff never challenged Dr. Finch’s conclusions or
otherwise identified a possible conflict between Dr. Finch’s testimony
and the Dictionary of Occupational Titles.
Q:

Okay.

A.R. 387-88.

You gave examples of certain jobs that the
11

claimant–A:

Yes.

Q:

—- could perform based on a certain hypothetical.

A:

Yes.

Q:

What was the source of that information, where did you
come up with those numbers?

A:

These numbers are drawn from the United States
Department of Labor reports.

Q:

Okay. Can you tell me specifically what publication
it’s from?

A:

Yes, I draw all my numbers from the United States
Department of Labor.

Q:

Is there a certain edition of that?

A:

It’s all available on the website.

Q:

Is that where you found it?

A:

Yes. In addition you find local numbers through the
Ohio Department of Job and Family Services through
their data collection of employment figures.

ATTY: That’s all the questions.
Id.

The administrative law judge understood the vocational expert’s

testimony as “consistent with the information found in the Dictionary
of Occupational Titles (DOT) and its companion publication, the
Selected Characteristics of Occupations (SCO) . . . .”

A.R. 25.

The

administrative law judge had no additional duty to further interrogate
the vocational expert or “to conduct an independent investigation into
the testimony of witnesses to determine if they are correct.”

See

Lindsley, 560 F.3d at 606 (quoting Martin v. Comm’r, No. 04-4551, 170
F. App’x 369, 374 (6th Cir. Mar. 1, 2006)).

Plaintiff had the

opportunity, through her counsel, to challenge the accuracy and
reliability of the testimony of the vocational expert, to make further
12

inquiry of Dr. Finch and to present evidence of a conflict between Dr.
Finch’s testimony and the statistics provided by the Department of
Labor.

Beinlich v. Comm’r, No. 08-4500, 345 Fed. App’x 163, at *168-

69 (6th Cir. Sept. 9, 2009) (stating that plaintiff’s counsel had the
obligation to “bring out any conflicts with the” Dictionary of
Occupational Titles).

Plaintiff’s failure to do so will not now

provide a basis for relief.

Id.

Cf. Hammond v. Comm’r of Soc. Sec.,

116 F.3d 1480 (table), 1997 U.S. App. LEXIS 14906, at *7 (6th Cir.
June 18, 1997) (stating that plaintiff waived argument objecting to
jobs identified by the vocational expert where plaintiff failed to
raise it during the administrative hearing); Dantzer v. Comm’r of Soc.
Sec., No. 3:09CV2198, 2011 U.S. Dist. LEXIS 36433, at *33-34 (N.D.
Ohio Jan. 4, 2011) (“Failure to challenge the basis of the VE’s
testimony at the administrative hearing constitutes a waiver of the
issue in the district court.”).
Moreover, even if a conflict between Dr. Finch’s testimony and
the Department of Labor’s Dictionary of Occupational Titles existed,
plaintiff’s arguments are nevertheless unavailing.

The Dictionary of

Occupational Titles does not automatically trump the testimony of a
vocational expert.

See S.S.R. 00-4p, 2000 SSR LEXIS 8 at *5.

Indeed,

“the social security regulations do not require the Secretary or the
[vocational] expert to rely on classifications in the Dictionary of
Occupational Titles.”

Conn v. Sec’y of Health and Human Servs., 51

F.3d 607, (6th Cir. Feb. 6, 1995) (citing 20 C.F.R. § 404.1566(d)).
See also Wright v. Massanari, Acting Comm’r of Soc. Sec’y, 321 F.3d
611, 616 (6th Cir. 2003) (same).

Here, Dr. Finch testified to a

significant number of jobs in the regional economy that plaintiff
13

could perform, and that testimony provides substantial evidence
supporting the Commissioner’s decision.

See, e.g., Burbo v. Comm’r,

No. 10-2016, 2011 U.S. App. LEXIS 26143, at *16-18 (6th Cir. Sept. 21,
2011).

Under these circumstances, the Court concludes that the

decision of the Commissioner must be affirmed.
It is therefore RECOMMENDED that the decision of the Commissioner
be affirmed and that this action be dismissed.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

August 2, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

14