Smathers v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 4 Complaint filed by Tina M Smathers. It is RECOMMENDED that the decision of the Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action be REMANDED to the Commissioner of Social Security Objections to R&R due by 2/17/2015. Signed by Magistrate Judge Norah McCann King on 1/28/2015. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TINA M. SMATHERS,
Plaintiff,
Civil Action 2:14-cv-500
Judge Watson
Magistrate Judge King

vs.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for supplemental security
income.

This matter is now before the Court on Plaintiff’s Statement

of Errors (“Statement of Errors”), Doc. No. 10, the Commissioner’s
Opposition to Plaintiff’s Statement of Errors (“Commissioner’s
Response”), Doc. No. 17, and Plaintiff’s Reply.

Doc. No. 18.

Plaintiff Tina M. Smathers filed her application for benefits on
May 21, 2010, alleging that she has been disabled since March 21,
2005.

PAGEID 58, 199-202.

The application was denied initially and

upon reconsideration, and plaintiff requested a de novo hearing before
an administrative law judge.
An administrative hearing was held on October 16, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did
Patricia Posey, who testified as a vocational expert.

PAGEID 75.

In

a decision dated January 24, 2013, the administrative law judge
concluded that plaintiff was not disabled from May 21, 2010, the date
her application was filed, through the date of the administrative
decision.

PAGEID 68-69.

That decision became the final decision of

the Commissioner of Social Security when the Appeals Council declined
review on April 3, 2014.

PAGEID 48-50.

Plaintiff was 40 years of age on the date of the administrative
law judge’s decision.

See PAGEID 69, 199.

She has a limited

education, is able to communicate in English, and has past relevant
work as a housekeeper.

PAGEID 66-67.

Plaintiff has not engaged in

substantial gainful activity since May 21, 2010, the application date.
PAGEID 60.
II. Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of bipolar disorder, alcohol addiction,
generalized anxiety disorder, and posttraumatic stress disorder.
PAGEID 60.

The administrative law judge also found that plaintiff’s

impairments neither meet nor equal a listed impairment and leave
plaintiff with the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels but
with the following nonexertional limitations: she can
perform no more than simple, routine tasks in a work
environment involving no interaction with the public and no
more than occasional supervision; she must work in
isolation with no more than occasional supervision.
The
claimant
has
inability
to
adapt
to
normative
work
pressures.

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PAGEID 61-63.

Although this RFC precludes the performance of

plaintiff’s past relevant work as a housekeeper, the administrative
law judge relied on the testimony of the vocational expert to find
that plaintiff is nevertheless able to perform a significant number of
jobs in the national economy, including such “representative
occupations . . . as a surveillance system monitor.”

PAGEID 66-68.

The administrative law judge noted the vocational expert’s testimony
that there were 16,500 surveillance system monitor jobs nationally and
600 in the West Virginia and Ohio region.

PAGEID 67.

The

administrative law judge also noted that the vocational expert
“reduced the number of jobs available as a surveillance system monitor
by 50%,” but nevertheless found that “a significant amount of work
remains in the national economy that the claimant could perform.”
PAGEID 68.

Accordingly, the administrative law judge concluded that

plaintiff was not disabled within the meaning of the Social Security
Act from May 21, 2010, through the date of the administrative
decision.

PAGEID 68-69.

III. Discussion
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 more than a scintilla of

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evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
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.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see 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 first argues that the
administrative law judge erred in finding that plaintiff can perform a
significant number of jobs in the national economy despite her severe
impairments.

Statement of Errors, pp. 8-13.

The vocational expert testified that an individual with
plaintiff’s vocational profile and RFC could perform the work
activities of a surveillance system monitor.

PAGEID 106-08.

The

vocational expert also testified that there were 16,500 such jobs in
the nation and 600 in the West Virginia and Ohio region, but that

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“these numbers are reduced by 50 percent” as a result of “the advent
of Homeland Security” and plaintiff’s limitations.

Id.

The

administrative law judge relied on the testimony of the vocational
expert to find that, despite her limitations, plaintiff could
nevertheless perform a significant number of jobs in the national
economy:
The vocational expert testified that given all of these
factors the individual would be able to perform the
requirements of representative occupations such as a
surveillance system monitor, DOT code 379.367-010 (16,500
jobs and 600 jobs regionally).
The region referred to by
the vocational expert consists of West Virginia and Ohio.
Although the vocational expert’s testimony is inconsistent
with the information contained in the Dictionary of
occupational Titles, there is a reasonable explanation for
the discrepancy. The vocational expert testified that due
to the recent inception of the Office of Homeland Security,
many of the jobs available involve interaction with others
and significant workplace changes.
The vocational expert
additionally testified that such jobs in the Office of
Homeland Security require training, making them semiskilled
to skilled positions. Considering these factors and based
on her experience, and education level, the vocational
expert
reduced
the
number
of
jobs
available
as
a
surveillance system monitor by 50% based on the claimant’s
inability to tolerate such work environments.
Although
reduced by 50%, the undersigned finds that a significant
amount of work remains in the national economy that the
claimant could perform, even with the limitations described
in the above-defined residual functional capacity.
PAGEID 67-68.
Plaintiff argues that 300 jobs in the West Virginia and Ohio
region and 8,250 jobs nationally is not a “significant number” of
jobs.

Statement of Errors, pp. 8-13.

Plaintiff notes that the

vocational expert limited plaintiff to a single job, reduced the

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available positions for that job by 50 percent, and did not suggest
that the job was representative of a larger category of jobs that
plaintiff could perform.

Id.

The Commissioner does not address

plaintiff’s argument that the administrative law judge erred in
finding that 300 jobs in the West Virginia and Ohio region and 8,250
jobs in the nation constitute a significant number of jobs.

Instead,

the Commissioner argues that the administrative law judge properly
determined that 600 jobs regionally and 16,500 jobs nationally is a
significant number of jobs.

Commissioner’s Response, pp. 4-7.

The Social Security Act defines “disability” as the “inability
to engage in any 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.”
423(d)(1)(A).

42 U.S.C. §

The Social Security Administration has established a

five-step sequential evaluation process for determining whether an
individual is disabled.

20 C.F.R. § 416.920.

The claimant bears the

burden of proof through step four; once a claimant proves that she is
unable to perform her past relevant work, the burden shifts to the
Commissioner to show that the claimant can make adjustments to other
work that exists in the national economy.

See Rabbers v. Comm'r of

Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009); 42 U.S.C. § 423(d).
"Work which exists in the national economy" is defined as "work
which exists in significant numbers either in the region where [the

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claimant] lives or in several regions of the country."
423(d)(2)(A).

42 U.S.C. §

“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 [the
claimant’s] physical or mental abilities and vocational
qualifications.”

20 C.F.R. § 416.966(b).

“There is no ‘magic number’

that qualifies as ‘significant’ for purposes of satisfying this prong
of the disability inquiry.

Cunningham v. Astrue, 360 F. App'x 606,

615 (6th Cir. 2010) (quoting Hall v. Bowen, 837 F.2d 272, 275 (6th
Cir. 1988)).

The determination of what constitutes a significant

number of jobs is a fact-specific inquiry guided by common sense.
Hall, 837 F.2d at 275.

Many criteria are relevant to this

determination, including “the level of claimant's disability; the
reliability of the vocational expert's testimony; the reliability of
the claimant's testimony; the distance claimant is capable of
travelling to engage in the assigned work; the isolated nature of the
jobs; the types and availability of such work, and so on.”

Id.

In addition to the considerations articulated in Hall, courts
often look to what other courts have determined to be a significant
number of jobs.

A review of cases suggests that the number of jobs

required to constitute a “significant number” depends largely on the
size of the geographic region at issue.

Generally speaking, as the

size of the relevant geographic region increases, the number of jobs
required to be considered “significant” also increases.

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For example,

the United States Court of Appeals for the Sixth Circuit has found
that 125 jobs in a two-county area may be a significant number of
jobs, Stewart v. Sullivan, 904 F.2d 708 (6th Cir. 1990), and that
1,350 jobs in a nine-county area may be a significant number of jobs.
Hall, 837 F.2d at 275.

However, these numbers may not be significant

where the relevant region is the entire State of Ohio.

West v.

Chater, No. C-1-95-739, 1997 WL 764507, at *2 (S.D. Ohio Aug. 21,
1997) (“[T]he Court finds as a matter of law that 100 jobs locally,
1,200 jobs statewide and 45,000 jobs nationally do not constitute a
significant number of jobs . . . .”).

Another major factor that

courts often consider is the number of individual jobs identified by
the vocational expert that the claimant can perform.

Where the

vocational expert identifies several potential jobs, the Court must
consider the collective number of jobs available.

See White v.

Astrue, No. 3:10-CV-375, 2011 WL 2358548, at *14 (M.D. Tenn. June 8,
2011).

A court will likewise consider whether the vocational expert

limited the plaintiff to the specific jobs identified or whether the
jobs identified were merely representative of a larger category of
jobs that the claimant could perform.

See Riser v. Comm’r of Soc.

Sec., No. 13-11135, 2014 WL 1260127, at *20 (E.D. Mich. Mar. 26, 2014)
(finding 1,000 jobs in Michigan to be a significant number where the
vocational expert “hinted that there were other jobs” available to the
plaintiff); Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997)
(applying Hall and finding that 200 jobs in Iowa and 10,000 jobs in

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the national economy was a significant number where the jobs
identified by the vocational expert were “merely representative of a
larger category of jobs that [the plaintiff] could perform”).
As discussed supra, the Commissioner has the burden at step
five to show that the claimant can make adjustments to other work that
exists in the national economy.

See Rabbers, 582 F.3d at 652.

In

order to satisfy this burden, the Commissioner may provide evidence
that a significant number of jobs exists in the local or national
economy.

See Geiger v. Apfel, 229 F.3d 1151 (6th Cir. 2000) (citing

Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999)).

In the case

presently before the Court, there is some ambiguity as to the precise
number of jobs available to plaintiff in the regional and national
economies.

In response to the administrative law judge’s

hypothetical, the vocational expert testified as follows:
Well there would be no jobs -- they would not -- those jobs
would not be something an individual could do, but I
believe an individual could carry out the work activities
of a surveillance system monitor.
And the DOT code is
379.367-010. Now these numbers are reduced by 50 percent.
Even though the DOT lists this as a unskilled occupation,
in my opinion, since the advent of Homeland Security, at
least 50 percent of those jobs rise to the level of
semiskilled and it would be my opinion also that those jobs
might involve interaction with others and some workplace
change.
But in settings that I’m recommending here, I
believe there would be no work change setting. The numbers
are 16,500 and regionally 600. I don’t believe I can offer
anything else, Your Honor, that would meet the limitation.
PAGEID 107-08.

The administrative law judge cited this testimony,

noted that the vocational expert “reduced the number of jobs available
as a surveillance system monitor by 50%,” and found that, “[a]lthough

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reduced by 50 %, . . . a significant amount of work remains in the
national economy that the claimant could perform.”

PAGEID 67-68.

It

is unclear from the vocational expert’s testimony and the
administrative law judge’s decision whether plaintiff would be able to
perform 600 jobs in the region consisting of West Virginia and Ohio
and 16,500 jobs in the nation, or whether plaintiff would be limited
to only 300 jobs regionally and 8,250 jobs nationally (i.e., a 50
percent reduction in the jobs identified).

Plaintiff argues for the

latter interpretation of the record; the Commissioner used the former
interpretation in her briefing, but failed to even acknowledge
plaintiff’s interpretation.

Both interpretations are reasonable, and

the difference may very well be significant.

See Riser, 2014 WL

1260127 at *19 (“Courts have found that quantities greater than 8,000
jobs nationally are insignificant.”) (citing cases); Bishop v.
Shalala, 64 F.3d 662 (6th Cir. 1995) (finding 16,400 jobs in the
national economy to be a significant number of jobs).

Moreover,

unlike the vocational evidence presented in Jenkins v. Bowen, 861 F.2d
1083 (8th Cir. 1988), which was cited by the Commissioner,
Commissioner’s Response, p. 5, the vocational expert in this case did
not suggest that the surveillance system monitor job was
representative of other jobs that plaintiff could perform.

To the

contrary, the vocational expert testified that plaintiff could “carry
out the work activities” of only the surveillance system monitor job,
and she further reduced the number of available jobs by 50 percent

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because of plaintiff’s specific limitations.

PAGEID 107-08.

With regard to the local economy, the Commissioner has cited
several cases in which a small number of jobs in a geographic region
has been found to be significant.

See Weaver v. Sec'y of Health &

Human Servs., 34 F.3d 1069 (6th Cir. 1994) (finding 500 jobs within a
150 mile radius of the claimant’s home to be a significant number of
jobs); Johnson v. Sec'y of Health & Human Servs., 985 F.2d 560 (6th
Cir. 1993) (finding that 8,000 jobs in the lower peninsula of Michigan
and 500 to 750 jobs in the greater Lansing, Michigan area, where the
plaintiff lived, to be a significant number of jobs); Stewart, 904
F.2d at 708 (finding that 125 jobs in a “local geographical area,”
which was presumed to span two counties in Kentucky, to be a
significant number of jobs); Jenkins, 861 F.2d at 1083 (finding 500
jobs in the St. Louis area to be a significant number of jobs because
the plaintiff’s unique skills and twenty-five years of experience as a
security guard made him well-qualified to perform the sedentary
security jobs described by the vocational expert).

However, the

region identified in each of these cases is significantly smaller than
the articulated region in this case, which the vocational expert
identified as West Virginia and Ohio.

Although it is not improper to

consider an entire state as the relevant region, Pollice v. Sec'y of
Health & Human Servs., 843 F.2d 1392 (6th Cir. 1988) (“[T]he term
‘region’ is flexible . . . and gives the Secretary sufficient latitude
to treat an entire state as the region to be considered.”), neither

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party has cited any case in which the relevant region spanned two
entire states.

Considering the size of the region identified by the

vocational expert in this case, the number of jobs available to the
claimant (whether 300 or 600) may not be considered significant.

See

West, 1997 WL 764507 at *2 (finding 1,200 jobs statewide to not be a
significant number of jobs); Waters v. Sec'y of Health & Human Servs.,
827 F. Supp. 446, 449 (W.D. Mich. 1992) (finding that 1,000 semiskilled sedentary jobs within Michigan may not be a significant number
of jobs).
Considering the size of the region identified by the vocational
expert, the ambiguity as to the number of jobs available, plaintiff’s
limitations, and the fact that the vocational expert identified only a
single job that plaintiff could perform, all discussed supra, the
Court cannot conclude that the administrative law judge’s step five
finding is supported by substantial evidence.

It is accordingly

RECOMMENDED that the decision of the Commissioner be REVERSED pursuant
to Sentence 4 of 42 U.S.C. § 405(g) and that this action be REMANDED
to the Commissioner of Social Security for further consideration of
whether plaintiff can perform work that exists in significant numbers
in the national economy.

Having concluded that this action must be

remanded on this basis, the Court need not and does not address
plaintiff’s remaining arguments.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file

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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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

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

January 28, 2015

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