Freeman v. Social Security Administration, Commissioner of (PLR1)

Filing 20

MEMORANDUM OPINION: It is hereby ORDERED that the Plaintiff's Motion for Summary Judgment [Doc. 14 ] be DENIED, and the Commissioner's Motion for Summary Judgment [Doc. 17 ] be GRANTED. The Clerk of Court will be directed to CLOSE this case. Signed by Magistrate Judge H Bruce Guyton on 2/19/16. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JUDY E. FREEMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 3:15-CV-216-HBG

MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), the Rules of this
Court, and the consent of the parties [Doc. 19]. Now before the Court is the Plaintiff’s Motion
for Summary Judgment and Memorandum in Support [Docs. 14 & 15] and the Defendant’s
Motion for Summary Judgment and Memorandum in Support [Docs. 17 & 18]. Judy E. Freeman
(“the Plaintiff”) seeks judicial review of the decision of the Administrative Law Judge (“the
ALJ”), the final decision of the Defendant Carolyn W. Colvin, Acting Commissioner of Social
Security (“the Commissioner”).
On April 5, 2012, the Plaintiff filed an application for supplemental security income
(“SSI”), claiming a period of disability which began July 2, 2011.

[Tr. 155].

After her

application was denied initially and upon reconsideration, the Plaintiff requested a hearing. [Tr.
81]. On January 24, 2014, a hearing was held before the ALJ to review determination of
Plaintiff’s claim. [Tr. 27-47]. On April 10, 2014, the ALJ found that the Plaintiff was not
disabled. [Tr. 11-26]. The Appeals Council denied the Plaintiff’s request for review [Tr. 1-5];
thus, the decision of the ALJ became the final decision of the Commissioner.

Having exhausted her administrative remedies, the Plaintiff filed a Complaint with this
Court on May 20, 2015, seeking judicial review of the Commissioner’s final decision under
Section 205(g) of the Social Security Act.

[Doc. 2].

The parties have filed competing

dispositive motions, and this matter is now ripe for adjudication.

I.

ALJ FINDINGS
The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity
since April 5, 2012, the application date (20 CFR 416.971 et seq.).
2. The claimant had the following severe impairments: status post
multiple cerebral infractions, low back pain, avascular necrosis of
the left hip (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to lift and carry and
push and pull 20 pounds occasionally and 10 pounds frequently
with the exception of frequently left lower extremity pushing and
pulling. With normal breaks in an 8-hour day, she can sit for 6
hours, stand and/or walk for 2 hours; she can never climb ladders,
ropes, and scaffolds; she can occasionally climb ramps and stairs;
she can occasionally balance, stoop, kneel, crouch, and crawl; she
can tolerate occasional exposure to extreme cold and heat; and she
should avoid moderate exposure to hazards.
5. The claimant is unable to perform any past relevant work (20
CFR 416.965).
6. The claimant was born on January 21, 1964 and was 48 years
old, which is defined as a younger individual age 18-49, on the
date the application was filed (20 CFR 416.963).
7.

The claimant has a limited education and is able to
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communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because
the claimant’s past relevant work is unskilled (20 CFR 416.968).
9. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the
Social Security Act, since April 5, 2012, the date the application
was filed (20 CFR 416.920(g)).
[Tr. 16-22].

II.

DISABILITY ELIGIBILITY
This case involves an application for SSI benefits. To qualify for SSI benefits, an

individual must file an application and be an “eligible individual” as defined in the Act. 42
U.S.C. § 1382(a); 20 C.F.R. § 416.202. An individual is eligible for SSI benefits on the basis of
financial need and either age, blindness, or disability. See 42 U.S.C. § 1382(a).
“Disability” is “the inability to do 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 twelve
months.”

42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a).

A claimant will only be

considered disabled if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in
the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
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for work.
42 U.S.C. § 1382c(a)(3)(B); see also 20 C.F.R. § 4015.905(a).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not
disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and 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, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy
that accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §
404.1520). Plaintiff bears the burden of proof at the first four steps. Id. The burden shifts to the
Commissioner at step five. Id. At the fifth step, the Commissioner must prove that there is work
available in the national economy that the claimant could perform. Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).

III.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining “whether the ALJ applied the
correct legal standards and whether the findings of the ALJ are supported by substantial
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evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009) (citing Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the ALJ applied the correct legal standards and
his findings are supported by substantial evidence in the record, his decision is conclusive and
must be affirmed. 42 U.S.C. § 405(g); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004).

Substantial evidence is “more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994) (citing Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981))
(internal citations omitted).
It is immaterial whether the record may also possess substantial evidence to support a
different conclusion from that reached by the ALJ, or whether the reviewing judge may have
decided the case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4
(6th Cir. 1986). The substantial evidence standard is intended to create a “‘zone of choice’
within which the Commissioner can act, without the fear of court interference.” Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)). Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence,
nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing
Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972)).
In addition to reviewing the ALJ’s findings to determine whether they were supported by
substantial evidence, the Court also reviews the ALJ’s decision to determine whether it was
reached through application of the correct legal standards and in accordance with the procedure
mandated by the regulations and rulings promulgated by the Commissioner. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
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On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes
v. Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing Halsey v.
Richardson, 441 F.2d 1230 (6th Cir. 1971)).

IV.

POSITIONS OF THE PARTIES
On appeal, the Plaintiff argues that the ALJ erred at step five of the sequential evaluation

when he concluded that other work existed in the national economy that the Plaintiff could
perform given her residual functional capacity (“RFC”). [Doc. 15 at 3]. While the Plaintiff
agrees that the ALJ’s RFC determination is supported by substantial evidence, the Plaintiff
disagrees with the ALJ’s finding that the RFC corresponds with an ability to perform light work.
[Id.]. Specifically, the Plaintiff contends that her restriction to walking and standing no more
than two hours in an eight-hour workday conflicts with the requirements of light work and,
instead, falls within the definition of sedentary work. [Id. at 3-4]. As a result of misclassifying
the Plaintiff’s exertional level, the Plaintiff argues that the ALJ incorrectly applied the MedicalVocational Guidelines (“the grids”) by concluding that the grids directed a finding of “not
disabled” due to an “ability” to perform light work. [Id. at 3].
The Commissioner submits that the only issue before the Court is whether the ALJ
properly relied on vocational expert testimony in concluding that other work existed that the
Plaintiff was cable of performing given her RFC. [Doc. 18 at 3]. The Commissioner explains
that at step five, the ALJ observed that the grids would direct a finding of “not disabled” if the
Plaintiff could perform a full range of light work. [Id.]. However, because the ALJ found that
additional limitations impeded the Plaintiff’s ability to perform light work, the Commissioner
argues that the ALJ properly employed testimony from a vocational expert to establish the
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existence of jobs. [Id. at 4-5].

The Commissioner also points out that the Plaintiff ignores other

limitations, such as her restrictions for lifting, carrying, pushing, or pulling which exceed the
exertional demands for sedentary work, and that an inability to stand or walk no more than two
hours in an eight-hour workday does not necessarily conflict with the requirements of light work.
[Id. at 5-6].

V.

ANALYSIS
As discussed above, at step five of the sequential evaluation, the Commissioner has the

burden of proving that other work exists in the national economy that the claimant can perform
given the claimant’s RFC and vocational factors, including age, education, and work skills.
Walters, 127 F.3d at 529 (citing 20 C.F.R. § 404.1520). In many cases, the Commissioner may
meet her burden by applying the applicable grid rule, which based upon the claimant’s age,
education, and whether she has transferable job skills, will indicate a finding of “disabled” or
“not disabled.” Id. (citing Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003); Burton v.
Sec’y of Health & Human Servs., 893 F.2d 821, 822 (6th Cir. 1990). Essentially, the grids allow
an ALJ to take administrative notice that jobs are available in the national economy in which a
claimant is capable of performing without having to consult additional evidence. See Kirk, 667
F.2d at 529. However, if a claimant suffers from non-exertional limitations or cannot perform
substantially all of the exertional demands of a job at a given exertional level, the grids only
provide a framework for the Commissioner’s decision, and the Commissioner must utilize other
evidence, such as testimony from a vocational expert, to determine whether work exists in the
nationally economy the claimant can perform. Walters, 127 F.3d at 529 (citing Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 537-38 (6th Cir. 2001); Cline v. Comm’r of Soc. Sec., 96
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F.3d 146, 150 (6th Cir. 1996)).
During the administrative hearing, a vocational expert provided testimony in response to
several hypothetical questions posed by the ALJ. Of relevance, the ALJ asked the vocational
expert to assume that a hypothetical individual with the same age, education, and prior work
experience as the Plaintiff could lift, carry, push, and pull 20 pounds occasionally and 10 pounds
frequently with the exception of frequent left lower extremity pushing and pulling, sit for six
hours and stand or walk for two hours in an eight-hour workday with normal breaks, never climb
ladders, ropes, or scaffolds, occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and
crawl, and could tolerate occasional exposure to extreme cold and heat but must avoid moderate
exposure to hazards. [Tr. 44-45]. Based upon these restrictions, the vocational expert testified
that work existed in the economy for the hypothetical individual, including sewing machine
operator, cashier II, and a range of assembly occupations such as a bench assembler or seated
assembler, all of which were classified as light, unskilled jobs by the vocational expert. [Tr. 45].
The vocational expert also testified to the number of jobs available in the national economy for
each position and confirmed that her testimony was consistent with the Dictionary of
Occupational Titles. [Tr. 45-46].
In the disability determination, the ALJ found that the Plaintiff had the foregoing RFC
and concluded at step five that work existed in the national economy that the Plaintiff could
perform. [Tr. 21-22]. In regard to the ALJ’s step five finding, the ALJ stated the following:
If the claimant had the residual functional capacity to perform the
full range of light work, a finding of “not disabled” would be
directed by Medical-Vocational Rule 202.17. However, the
claimant’s ability to perform all or substantially all of the
requirements of this level of work has been impeded by additional
limitations. To determine the extent to which these limitations
erode the unskilled light occupational base, I asked the vocational
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expert whether jobs exist in the national economy for an individual
with the claimant’s age, education, work experience, and residual
functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the
requirements of representative occupations such as sewing
machine operator with 83,000 jobs nationally; cashier II with
110,000 jobs nationally; and seated assembler with 20,00 jobs
nationally.
[Id.].
The Court disagrees with the Plaintiff’s contention that “the ability to stand/walk 2 hours
out of 8 describes a maximum RFC for ‘sedentary work.’” [Doc. 15 at 3]. First, the Court finds
that the Plaintiff’s two hour standing and walking restriction is not necessarily inconsistent with
the regulation’s definition of light wok. “Light work” is defined as lifting no more than 20
pounds frequently or carrying up to 10 pounds and “requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 416.967(b) (emphasis added). Social Security Ruling 83-10 further
explains that “the full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday,” but “[a] job is also in this category when it
involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot
controls.” 1983 WL 31251, at *5-6 (Jan. 1, 1983). “Sedentary work,” by contrast, is defined as
“lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools” and involves sitting with a certain amount of walking or standing
as necessary. 20 C.F.R. § 416.967(a). Specifically, sedentary work requires standing or walking
no more than two hours in an eight-hour workday and sitting the reaming six hours of the
workday. Soc. Sec. Rul. 83-10, 1983 WL 31251 at *5. The primary distinction between
sedentary and most light work is that “a job is in [light work] category when it requires a good
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deal of walking or standing.” Id.
While the Plaintiff argues [Doc. 15 at 4] that her RFC does not comport with the most
essential difference between light and sedentary work—that is, the ability to stand and walk for
prolonged periods—the Plaintiff ignores that light work, by definition, may also be done by
primarily sitting with some pushing and pulling of arm-hand or leg-foot controls. The Plaintiff
does not contend that any other restriction within her RFC, namely her ability to lift, carry, push,
or pull, falls outside the requirements of light work or could not be performed from a seated
position. Therefore, while the Plaintiff would certainly be precluded from performing light jobs
that required a “great deal or standing or walking,” the Plaintiff’s standing and walking
restriction does not preclude her from performing all jobs that fall within the light work category.
See e.g., Knowles v. Colvin, No. 1:12–CV–371, 2014 WL 1153063, at *7 (S.D. Miss. Mar. 21,
2014) (affirming the ALJ’s decision that the claimant could perform light work although the
RFC determination limited the claimant to standing and walking up to two ours in an eight-hour
workday); Hence v. Astrue, No. 4:12CV1, 2012 WL 6691573, at *8 (E.D. Va. Nov. 30, 2012)
adopted by No. 4:12CV1, 2012 WL 6697109 (E.D. Va. Dec. 21, 2012) (“[A]n RFC limiting
standing or walking to about two hours does not mandate a finding that [a claimant] could only
perform sedentary work.”).
Second, the ALJ did not conclude that the Plaintiff could perform a full range of light
work. The ALJ specifically observed that the Plaintiff’s “ability to perform all or substantially
all of the requirements of [a full range of light work] has been impeded by additional
limitations.” [Tr. 21]. As such, and contrary to what the Plaintiff seems to suggest, the ALJ did
not rely exclusively on the grids to make a finding of “not disabled.” Rather, the ALJ properly
recognized that the grids could only serve as a framework for decisionmaking due to additional
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limitations that impeded the Plaintiff’s ability to perform a full range of light work. [Id.].
Consequently, the ALJ employed vocational expert testimony and relied on that testimony to
determine that jobs existed that the Plaintiff could perform given her RFC. [Id.]. The vocational
expert positively testified that even with the Plaintiff’s two hour standing and walking restriction,
she could still perform light, unskilled jobs including sewing machine operator, cashier II, and
seated assembler occupations.

[Tr. 44-46].

The Plaintiff does not contend that her RFC

precludes her from performing any of the jobs identified by the vocational expert. Because the
hypothetical properly represented all of the Plaintiff’s limitations, vocational expert testimony
provided substantial evidence that the Plaintiff could perform a reduced range of light work
despite her standing and walking restriction. See Hensley v. Colvin, No. 5:13-CV-27810, 2015
WL 566626, at *17-18 (S.D. W. Va. Feb. 10, 2015) (finding that the claimant’s restriction to
standing and walking no more than two hours in an eight-hour workday did not conflict with a
limited range of light work where vocational expert testified to jobs at the light exertional level);
Lewis v. Astrue, No. 2:10-CV-139, 2011 WL 4356235, at *4 (E.D. Tenn. May 11, 2011) adopted
by No. 2:10-CV-139, 2011 WL 4356211, at *1 (E.D. Tenn. Sept. 16, 2011) (holding same); see
also Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001) (“A vocational expert’s testimony
concerning the availability of suitable work may constitute substantial evidence where the
testimony is elicited in response to a hypothetical question that accurately sets forth the
plaintiff’s physical and mental impairments.”).
The Plaintiff relies on Campbell v. Astrue, No. CIV.A. 09-5356, 2010 WL 4689521, at
*4-5 (E.D. Pa. Nov. 2, 2010), to support her position. [Doc. 15 at 5]. In Campbell, the court
found problematic the ALJ’s finding that the claimant’s RFC allowed for a “narrowed range of
light work” where she was limited to no more than one to two hours of standing or walking in an
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eight-hour workday. Id. at *5. However, this Court finds the Campbell decision unpersuasive
for several reasons.
First, in Campbell, the court took issue with the ALJ’s characterization of the claimant’s
exertional capabilities as falling into the range of “light work” when the ALJ questioned the
vocational expert. Id. at *5 n.5. Here, the ALJ did not express the Plaintiff’s “RFC as falling at
the ‘light’ level” when he presented the hypothetical question to the vocational expert. See id.
Instead, and in accordance with Social Security Ruling 96-8p, the hypothetical consisted of the
Plaintiff’s function-by-function abilities. [Tr. 44-46]. Based upon those abilities, the vocational
expert testified as to the jobs available that the Plaintiff could perform, qualifying the exertional
level for each job identified. [Id.].
Second, while Campbell recognized that jobs in the light category could include sitting
jobs that require pushing or pulling of arm or leg controls, the court found this exception was not
applicable to the case. No. CIV.A. 09-5356, 2010 WL 4689521, at *5. Therefore, the court had
no occasion to consider whether the claimant’s RFC allowed him to perform seated jobs, which
is the inverse of the facts presented in the case presently before this Court.
Finally, the Campbell court failed to appreciate that 20 C.F.R. § 416.967(b) and Social
Security Ruling 83-10 “provide requirements for a full range of light work, not a limited range of
light work.” See Ambrose v. Colvin, No. 3:14-CV-1618, 2015 WL 877790, at *15 (M.D. Pa.
Mar. 2, 2015) (rejecting Campbell’s decision and finding that substantial evidence supported the
ALJ’s determination that the Plaintiff could perform a reduced range of light work even though
the claimant was restricted to occasional walking and standing, i.e., up to 1/3 of an eight-hour
workday, because “the ALJ appropriately consulted the VE in accordance with SSR 83–12, and
included all of the RFC limitations in his hypothetical”).
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In the present matter, the ALJ

recognized that the Plaintiff had additional limitations that impeded her ability to perform a full
range of light work. Consistent with Social Security Ruling 83-12, which instructs adjudicators
to employ vocational expert testimony where “more difficult judgments are involved” due to a
claimant’s exertional limitations falling somewhere “‘in the middle’ in terms of the regulatory
criteria for exertional ranges of work,” 1983 WL 31253, at *3 (Jan. 1, 1983), the ALJ consulted a
vocational expert, provided the vocational expert a function-by-function assessment of the
Plaintiff’s abilities, and based upon those abilities, the vocational expert opined that jobs existed
within the area of light, unskilled work that accommodated the Plaintiff’s RFC.
Accordingly, because the Plaintiff’s ability to walk and stand for two hours in an eighthour workday does not conflict with a reduced range of light work, and is supported by the
vocational expert’s testimony, the Court finds that the ALJ did not err at step five. Therefore, the
Plaintiff’s allegation of error is not well-taken.

VI.

CONCLUSION
Based upon the foregoing, it is hereby ORDERED that the Plaintiff’s Motion for

Summary Judgment [Doc. 14] be DENIED, and the Commissioner’s Motion for Summary
Judgment [Doc. 17] be GRANTED. The Clerk of Court will be directed to CLOSE this case.

ORDER ACCORDINGLY,

United States Magistrate Judge

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