Salmen v. Commissioner of Social Security et al (JRG1)

Filing 20

MEMORANDUM AND OPINION finding that the Plaintiffs 13 Motion for Judgment on the Administrative Record will be DENIED, and the Commissioners 15 Motion for Summary Judgment will be GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be directed to CLOSE this case. Signed by Magistrate Judge C Clifford Shirley, Jr on 9/27/2017. (MDG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DUANE J. SALMEN,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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No. 3:16-CV-218-CCS

MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the
Federal Rules of Civil Procedure, and the consent of the parties [Doc. 19]. Now before the Court
is the Plaintiff’s Motion for Judgment on the Administrative Record and Memorandum in Support
[Docs. 13 & 14] and the Defendant’s Motion for Summary Judgment and Memorandum in Support
[Docs. 15 & 16]. Duane J. Salmen (“the Plaintiff”) seeks judicial review of the decision of the
Administrative Law Judge (“the ALJ”), the final decision of the Defendant Nancy A. Berryhill,
Acting Commissioner of Social Security (“the Commissioner”). For the reasons that follow, the
Court will DENY the Plaintiff’s motion, and GRANT the Commissioner’s motion.
I.

PROCEDURAL HISTORY
On May 21, 2012, the Plaintiff filed an application for disability insurance benefits

(“DIB”), claiming a period of disability which began December 27, 2011. [Tr. 60, 147-49]. After
his application was denied initially and upon reconsideration, the Plaintiff requested a hearing.

1

During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner
Carolyn W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted as the Defendant in this case.

[Tr. 103]. A hearing was held before the ALJ on May 6, 2014 [Tr. 29-58], and on July 25, 2014,
the ALJ found that the Plaintiff was not “disabled” [Tr. 13-28]. The Appeals Council denied the
Plaintiff’s request for review [Tr. 1-6]; thus, the ALJ’s decision became the final decision of the
Commissioner.
Having exhausted his administrative remedies, the Plaintiff filed a Complaint with this
Court on May 4, 2016, seeking judicial review of the Commissioner’s final decision under Section
405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions,
and this matter is now ripe for adjudication.
II.

ALJ FINDINGS
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through June 30, 2017.
2. The claimant has not engaged in substantial gainful activity since
December 27, 2011, the alleged onset date (20 CFR 404.1457 et
seq.).
3. The claimant has the following severe impairments: neck
disorder, status post repair of two hernias, left hip disorder, back
disorder, diabetes mellitus, and obesity (20 CFR 404.1520(c)).
4. 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 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except the
claimant must avoid all climbing of ladders, ropes, and scaffolds and
is able occasionally to climb ramps and stairs; balance; stoop; kneel;
crouch; and crawl. He should avoid working in high, exposed
places. He is able to frequently reach with both upper extremities.
6. The claimant is capable of performing past work as product
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manager, sedentary skilled (DOT 163.167-018) and rental car clerk,
light, semiskilled (DOT 295.467-026). This work does not require
the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the
Social Security Act, from December 27, 2011, through the date of
this decision (20 CFR 404.1520(f)).
[Tr. 18-24].
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’s decision
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, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (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) (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
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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) (citation omitted).
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) (citation omitted).
IV.

ANALYSIS
This case involves an application for DIB. An individual qualifies for DIB if he or she: (1)

is insured for DIB; (2) has not reached the age of retirement; (3) has filed an application for DIB;
and (4) is disabled. 42 U.S.C. § 423(a)(1).
“Disability” is 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 twelve months.”
§ 423(d)(1)(A); 20 C.F.R. § 404.1505(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 for work.
42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(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
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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).
The claimant 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)).
On appeal, the Plaintiff alleges that the ALJ committed several errors. First, the Plaintiff
contends that the ALJ failed to properly consider all of the Plaintiff’s severe impairments at step
two. [Doc. 14 at 5-6]. Second, the Plaintiff submits that the ALJ’s RFC determination is not
supported by substantial evidence because the ALJ did not properly weigh the opinion of the
Plaintiff’s treating physician, Kevin Campbell, M.D., consider the limiting effects of the Plaintiff’s
obesity, or perform a function-by-function analysis of the Plaintiff’s ability to do work-related
activities. [Id. at 7-13]. Finally, the Plaintiff maintains that substantial evidence does not support
the ALJ’s finding that the Plaintiff has past relevant work as a rental car clerk or a product manager
[Id. at 11-12]. The Court will address the Plaintiff’s allegations of error in turn.
A.

Step Two – Severe Impairments

The Plaintiff complains that he has additional severe impairments beyond those accounted
for by the ALJ at step two, including cervical spondylosis, cervical degenerative disc diseases,
cervical stenosis, cervical radiculitis, and diabetic neuropathy. [Doc. 14 at 5-6]. In the disability
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decision, the ALJ found that the Plaintiff had severe impairments consisting of “neck disorder,
status post repair of two hernias, left hip disorder, back disorder, diabetes mellitus, and obesity.”
[Tr. 18].
At step two, “the ALJ must find that the claimant has a severe impairment or impairments”
to be found disabled. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88 (6th Cir. 1985).
To be severe, an impairment or combination of impairments must “significantly limit[] your
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Step two has
been described as “a de minimis hurdle,” Higgs v. Brown, 880 F.2d 860, 862 (6th Cir. 1988), and
serves to screen out groundless claims, Farris, 773 F.2d at 89. It is well settled that the ALJ’s
failure to identify some impairments as “severe” is harmless where the ALJ continues the disability
determination and considers all impairments, both severe and non-severe as required by 20 C.F.R.
§ 404.1545(e), at subsequent steps. See Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007)
(“And when an ALJ considers all of a claimant’s impairments in the remaining steps of the
disability determination, an ALJ’s failure to find additional severe impairments at step two ‘[does]
not constitute reversible error.’”) (quoting Maziarz v. Sec’y of Health & Human Servs., 837 F.2d
240, 244 (6th Cir.1987)); Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003)
(“Because the ALJ found that Pompa had a severe impairment at step two of the analysis, the
question of whether the ALJ characterized any other alleged impairment as severe or not severe is
of little consequence.”).
As an initial matter, the Court is not convinced that the Plaintiff’s severe impairment of
“neck disorder” does not encompass the more specific diagnosis of cervical spondylosis, cervical
degenerative disc diseases, cervical stenosis, or cervical radiculitis. The Plaintiff does not offer
any evidence to the contrary other than his argument that cervical radiculitis is distinct and separate
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from a “neck disorder” because the Plaintiff experienced radiating pain. [Doc. 14 at 6]. However,
courts have recognized generic or broad terminology to encompass more specific diagnoses. See
e.g., Waters v. Comm’r of Soc. Sec., No. CIV.A. 10-14927, 2012 WL 511998, at *6 (E.D. Mich.
Jan. 5, 2012) (“[W]hile the ALJ did not include the term ‘lumbar back condition’ in her Step Two
findings, she found the ‘history of gunshot wound,’ thereby acknowledging Plaintiff’s claim that
alleged bullet fragments (allegedly causing back pain) created a work-related limitation.”),
adopted by, No. 10-14927, 2012 WL 512021, at *1 (E.D. Mich. Feb. 16, 2012); Williams v.
Comm’r of Soc. Sec., No. CIV.A. 10-14149, 2011 WL 6217418, at *7 (E.D. Mich. Nov. 4, 2011)
(“Finally, the ALJ’s recognition of a ‘discogenic degenerative disorder of the back’ as a severe
impairment at step two seems to encompass Plaintiff’s cervical facet syndrome.”), adopted by, No.
10-14149, 2011 WL 6217074 (E.D. Mich. Dec. 14, 2011).
Furthermore, to the extent that the additional neck impairments complained of by the
Plaintiff constitute separate and distinct impairments from “neck disorder,” the Plaintiff has not
set forth any evidence demonstrating that the impairments significantly limit his ability to perform
work-related activities. A diagnosis alone says nothing about the severity of a condition. Higgs,
880 F.2d at 863.
Regardless, the Court finds that any error would be harmless because the ALJ continued
the disability determination and considered all of the Plaintiff’s impairments. See Fisk, 253 F.
App’x at 583.

The ALJ discussed imagining studies in which cervical disc protrusion,

degenerative changes, chorionic cervicogenic spondylitic, and foraminal changes of the cervical
spine were noted. [Tr. 22, 519, 523]. In addition, the ALJ considered and assigned “great weight”
to the opinions of consultative examiner Raymond Azbell, M.D., who assessed and noted a history
of diabetic neuropathy, cervical degenerative disc disease, and neck pain with symptoms of pain
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radiating to the right arm and elbow [Tr. 371-73], and nonexamining state agency physician
Charles Settle, M.D., who noted that the record contained diagnoses of cervical spondylosis,
cervical degenerative disc diseases, cervical stenosis, and cervical radiculitis [Tr. 22, 66].
Crediting these physicians’ opinions demonstrates that the ALJ fulfilled her obligation that all of
the Plaintiff’s impairments be considered. See Bledsoe v. Barnhart, 165 F. App’x 408, 412 (6th
Cir. 2006) (by crediting a medical source’s opinion that considered obesity, the ALJ was found to
have sufficiently consider the impairment).
Accordingly, the Court finds that the ALJ did not commit reversible error at step two and
properly considered all of the Plaintiff’s impairments, both severe and non-severe, at subsequent
steps of the disability determination.
B.

RFC
1.

Treating Physician Kevin Campbell, M.D.

The Plaintiff asserts that the ALJ did not properly consider the medical opinion offered by
his treating physician, Dr. Campbell. [Doc. 14 at 8-10].
Dr. Campbell completed a form entitled, “Medical Opinion Re: Ability To Do WorkRelated Activities (Physical)” on August 7, 2013, wherein Dr. Campbell opined on the impact the
Plaintiff’s impairments have on his physical capabilities during an eight-hour workday. [Tr. 54244]. Dr. Campbell opined that due to the Plaintiff’s lower back pain and previous hernias, the
Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, could stand and
walk (with normal breaks) for about two hours, had no limitations in his ability to sit, but must
periodically alternate between sitting, standing, or walking every 10 to 15 minutes, must walk
around for 15 minutes every half hour, and must be able to shift positions at will. [Tr. 542]. In
addition, the Plaintiff could occasionally twist, stoop, and crouch, but he could never climb ladders
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or stairs due to back pain. [Tr. 543]. Dr. Campbell concluded that the Plaintiff would be absent
from work about two days per month. [Tr. 544].
The ALJ assigned “some weight” to Dr. Campbell’s opinion because it was consistent with
the ability to perform light work, but gave “little weight” to the Plaintiff’s ability to sit/stand/walk
at one time and the total amount that the Plaintiff could stand and walk. [Tr. 23]. The ALJ
reasoned that the evidence did not support the foregoing requirements and the total amount the
Plaintiff could stand and walk appeared to be based on subjective complaints and was not
consistent with other medical evidence or the Plaintiff’s activities. [Id.].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other
substantial evidence in the case record, it must be given “controlling weight.” 20 C.F.R. §
404.1527(c)(2). When an opinion does not garner controlling weight, the appropriate weight to be
given to an opinion will be determined based upon the length of treatment, frequency of
examination, nature and extent of the treatment relationship, amount of relevant evidence that
supports the opinion, the opinion’s consistency with the record as a whole, the specialization of
the source, and other factors which tend to support or contradict the opinion. § 404.1527(c)(1)(6).
When an ALJ does not give a treating physician’s opinion controlling weight, the ALJ must
always give “good reasons” for the weight given to a treating source’s opinion in the decision. §
404.1527(c)(2). A decision denying benefits “must contain specific reasons for the weight given
to the treating source’s medical opinion, supported by evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
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the treating source’s medical opinion and the reasons for the weight.” Soc. Sec. Rul. 96-2p, 1996
WL 374188 at *5 (July 2, 1996). Nonetheless, the ultimate decision of disability rests with the
ALJ. 20 C.F.R. § 404.1527(d)(1).
The only error cited by the Plaintiff is that the ALJ failed to weigh Dr. Campbell’s
limitation regarding absences. [Doc. 14 at 10]. In this regard, the Plaintiff argues that the ALJ
failed to mention that Dr. Campbell opined that the Plaintiff would be absent two days per month,
nor did she provide any explanation for rejecting this particular limitation. [Docs. 14 at 10 & 17
at 2]. As a result, the Plaintiff submits that the ALJ could not have properly evaluated the opinion.
[Doc. 17 at 2].
The Court is not persuaded. “[T]the ALJ was not required to discuss each limitation
separately.” Titus v. Astrue, No. 1:11CV1286, 2012 WL 3113165, at *11 (N.D. Ohio June 12,
2012) (rejecting the plaintiff’s argument “that the ALJ committed reversible error because he did
not specifically discuss each of the limitations set forth by Dr. Wilson in his assessment.”), adopted
by, No. 1:11CV01286, 2012 WL 3113160, at *1 (N.D. Ohio July 31, 2012). The ALJ must only
give “good reason” for the weight assigned to a treating source’s opinion, supported by the record,
and make clear why the opinion was entitled to the weight assigned. Here, the ALJ explained why
“some weight” was given to Dr. Campbell and provided a reasoned explanation for rejecting
several of the Plaintiff’s sit/stand/walk limitations. The ALJ then adopted the opinions of Dr.
Azbell as well as the nonexamining state agency physicians, whose opinions contradict Dr.
Campbell’s finding that the Plaintiff would be absent from work such that he would be unable to
work on a sustained basis. The Court further notes that “an ALJ can consider all evidence without
directly addressing in his written decision every piece of evidence submitted by a party.” Kornecky
v. Comm’r of Soc. Sec., 167 Fed. App’x. 496, 508 (6th Cir. 2006) (quoting Loral Defense Systems–
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Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)). In sum, the Court finds that the ALJ’s
assignment of weight to Dr. Campbell’s opinion is supported by substantial evidence and makes
clear to subsequent reviewers the reasons why it was assigned “some weight.”
Therefore, the Court finds the Plaintiff’s assignment of error is not well-taken.
2.

Obesity

The Plaintiff maintains that the ALJ did not comply with Social Security Ruling 02-1p for
discussing how obesity affects the Plaintiff’s ability to work. [Doc. 14 at 7]. In the RFC portion
of the disability determination, the ALJ noted that she considered the impact obesity had on the
Plaintiff’s functional limitations, including the Plaintiff’s ability to perform routine movements
and necessary physical activity within a work environment. [Tr. 20].
While Social Security Ruling 02-1p, 2002 WL 34686281, at *6 (Sept. 12, 2002), requires
an ALJ to take into consideration the effects obesity may have on a disability claimant, “[i]t is a
mischaracterization to suggest that Social Security Ruling 02-1p offers any particular procedural
mode of analysis for obese disability claimants,” Bledsoe, 165 F. App’x at 411-12. Here, the ALJ’s
decision demonstrates that she considered obesity and any effect it may have on the Plaintiff’s
ability to perform work-related functions. Moreover, as mentioned above, the ALJ credited the
opinions of Dr. Azbell and Dr. Settle, both of whom considered the Plaintiff’s obesity in assessing
the Plaintiff’s functional limitations. [Tr. 71, 371-73]; see Bledsoe, 165 F. App’x 412. The
Plaintiff argues that had the ALJ properly considered the Plaintiff’s obesity, “clear limitations
would have been included in the RFC” [Doc. 14 at 7], yet fails to identify any limitations that
should have been included in, or were not accommodated by, the Plaintiff’s RFC.
Therefore, the Court finds that the ALJ properly considered the Plaintiff’s obesity and
arguments to the contrary are without merit.
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3.

Function-by-Function Assessment

The Plaintiff also contends that the ALJ erred by failing to include a function-by-function
assessment in the RFC determination as required by Social Security 96-8p. [Doc. 14 at 10-11].
“Although a function-by-function analysis is desirable, SSR 96–8p does not require ALJs
to produce such a detailed statement in writing,” as there is a difference “between what an ALJ
must consider and what an ALJ must discuss in a written opinion.” Beason v. Comm’r of Soc.
Sec., 2014 WL 40463380, *13 (E.D. Tenn. 2014) (quoting Delgado v. Comm’r of Soc. Sec., 30 F.
App’x 542, 547 (6th Cir. 2002)). Social Security Ruling 96-8p simply requires that the ALJ
consider each function independently, but does not demand that the ALJ provide a narrative
discussion in the decision of each function. Delgado, 30 F. App’x at 547-48. “[T]he ALJ need
only articulate how the evidence in the record supports the RFC determination, discuss the
claimant’s ability to perform sustained work-related activities, and explain the resolution of any
inconsistencies in the record.” Id. (citation omitted).
The Court finds that the ALJ properly considered the Plaintiff’s functions in light of Social
Security Ruling 96-8p. The ALJ’s RFC determination addressed the Plaintiff’s testimony, medical
evidence, medial opinions, and the Plaintiff’s daily living activities. [Tr. 21-23]. The ALJ’s
discussion demonstrates that she considered each function separately and supports the ALJ’s
ultimate conclusion that the Plaintiff has the ability to perform light work with additional
exertional limitations. The Plaintiff contends that “it is clear that the ALJ failed to include
substantial limitations in the RFC finding correlating to symptoms and limitations which were
well-documented in the record.” [Doc. 14 at 11]. Again, the Plaintiff fails to identify any
limitations that should have been included in his RFC, nor does he cite to any record evidence of
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symptoms or limitations that are “well-documented.” Such blanket assertions without any citation
to the record or supporting evidence is insufficient to undermine the ALJ’s RFC determination.
Accordingly, the Court finds the Plaintiff’s argument in this regard is not-well taken.
C.

Past Relevant Work

The Plaintiff lastly claims that substantial evidence does not support the ALJ’s finding that
the Plaintiff has past relevant work as a product manager or a rental car clerk.
“A claimant bears the burden of proving she cannot perform her past relevant work either
as she performed the job or as the job is generally performed in the national economy.” Ellis v.
Astrue, No. 3:11-CV-535, 2012 WL 5304203, at *5 (E.D. Tenn. Oct. 4, 2012) (internal citations
omitted) (citing Studaway v. Sec’y of Health and Human Servs., 815 F.2d 1074, 1076 (6th Cir.
1987)). Past work is relevant if three conditions are met: (1) the work was performed at the level
of substantial gainful activity, (2) the job was performed long enough for the claimant to learn it,
and (3) the job was performed in the past 15 years. 20 C.F.R. § 404.1560(b)(1). “Past work
experience must be considered carefully to assure that the available facts support a conclusion
regarding the claimant’s ability or inability to perform the functional activities required in this
work.” Social Security Ruling 82-62, 1982 WL 31386, at *2 (Jan. 1, 1982). Moreover, “the
Commissioner’s decision must explain why the claimant can perform the demands and duties of
the past job . . . .” D’Angelo v. Comm’r of Soc. Sec., 475 F. Supp.2d 716, 723 (W.D. Mich. 2007).
Here, the ALJ concluded at step four that the Plaintiff had past relevant work as a product
manager and rental car clerk. [Tr. 23-24]. The ALJ based her finding on testimony offered by a
vocational expert (“VE”). [Tr. 23]. Specifically, the VE classified the Plaintiff’s past work, in
relevant part, as a product manager and car rental clerk and testified that based upon the Plaintiff’s
RFC, the Plaintiff could perform the jobs of product manager and car rental clerk as it is generally
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performed in the national economy. [Tr. 53-54].
The Plaintiff argues that the job of rental car clerk does not qualify as past relevant work
because it was performed more than 15 years prior to the ALJ’s decision. [Doc. 14 at 11]. The
Commissioner does not directly dispute the Plaintiff’s position, but instead argues that substantial
evidence supports the ALJ’s finding that the product manager job is past relevant work, and,
therefore, the Plaintiff’s argument with regard to the rental car clerk job is inconsequential to the
ALJ’s denial of benefits. [Doc. 16 at 18 n.1]. The Court agrees with the Plaintiff that the rental
car clerk job does not constitute past relevant work since it was performed in 1998 and 1999 [Tr.
177, 194], exceeding the requisite 15 year time period.

The Court also agrees with the

Commissioner, however, that substantial evidence nonetheless supports the ALJ’s step four
finding because the Plaintiff’s job as a product manager constitutes past relevant work.
In reaching this conclusion, the Court observes that if a claimant is found to be able to do
any past work, either as she performed it or as generally performed in the national economy, a
finding of “not disabled” is appropriate. Soc. Sec. Rul. 82-61, 1982 WL 31387, at *1-2 (Jan. 1,
1982). Here, the VE’s testimony and the Plaintiff’s Disability Report, Work History Report, and
testimony demonstrate that the Plaintiff performed the job of product manager at the level of
substantial gainful activity, it was performed long enough for the Plaintiff to learn it, and it was
performed in the past 15 years of the ALJ’s decision. [Tr. 37-38, 52-54, 177, 194, 196].
The Plaintiff argues that he “never performed such a job as product manager.” [Doc. 14 at
11]. To the contrary, the Plaintiff listed the job of “product manager” in his Disability Report
under the “Job History” section [Tr. 177] and likewise listed “product manager” on his Work
History Report [Tr. 194, 196]. In addition, the Plaintiff confirmed during his testimony that he
worked as a product manager for three years, earning over $1,000.00 a month as reflected in his
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Disability Report and Work History Report. [Tr. 37]. Moreover, the VE classified the job as a
product manager without any objection by the Plaintiff or his counsel. [Tr. 52].
The Plaintiff also contends that the ALJ did not provide any explanation or foundation for
finding that the product manager job constitutes past relevant work. [Doc. 14 at 11]. “However,
the ALJ may use a [VE’s] services in determining whether a claimant can perform his past relevant
work,” D’Angelo, 475 F. Supp.2d at 724 (citing 20 C.F.R. § 404.1560(b)(2)), which is precisely
what the ALJ did in this case. [Tr. 23]. Moreover, the Plaintiff has not presented any evidence
that would suggest the product manager job was not performed at the level of substantial gainful
activity, was not performed long enough for him to learn it, or was not performed within 15 years
of the ALJ’s decision.
Accordingly, the Court finds that substantial evidence supports the ALJ’s determination at
step four that the Plaintiff has past relevant work as a product manager.
V.

CONCLUSION
Based on the foregoing, the Plaintiff’s Motion for Judgment on the Administrative Record

[Doc. 13] will be DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 15]
will be GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court
will be directed to CLOSE this case.
ORDER ACCORDINGLY.
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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