Livingston v. Social Security Administration
REPORT AND RECOMMENDATION re 11 MOTION for Judgment on the Pleadings. For the reasons discussed, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge E. Clifton Knowles on 7/18/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
WESLEY ALAN LIVINGSTON,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Civil Action No. 2:12-cv-00055
Judge Nixon / Knowles
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain
judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff
was not disabled and denying Plaintiff Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”), as provided under the Social Security Act (“the Act”), as amended.
The case is currently pending on Plaintiff’s Motion for Judgment on the Pleadings.2 Docket No.
11. Defendant has filed a Response, arguing that the decision of the Commissioner was
supported by substantial evidence and should be affirmed. Docket No. 13.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin should therefore be substituted
for Commissioner Michael J. Astrue as the Defendant in this action. No further action needs to
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
Although Plaintiff has entitled his document “Motion for Judgment on the Pleadings,”
the Court will construe it as a Motion of Judgment on the Administrative Record.
Judgment on the Pleadings be DENIED, and that the decision of the Commissioner be
Plaintiff protectively filed his applications for DIB and SSI on January 27, 2009, alleging
that he had been disabled since July 15, 2008, due to dwarfism, autism, and depression. Docket
No. 9, Attachment (“TR”), TR 51, 52, 124, 131, 176.3 Plaintiff’s applications were denied both
initially (TR 51, 52) and upon reconsideration (TR 53, 54). Plaintiff subsequently requested (TR
71) and received (TR 81) a hearing. Plaintiff’s hearing was conducted on August 12, 2010, by
Administrative Law Judge (“ALJ”) Frank Letchworth. TR 27. Plaintiff, vocational expert
(“VE”), Julian Nadolsky, and witness for Plaintiff, Michael Livingston, appeared and testified.
On September 30, 2010, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR
25. Specifically, the ALJ made the following findings of fact:
The claimant has not engaged in substantial gainful activity
since July 15, 2008, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments:
learning disorder; depression; and organic brain syndrome
(20 CFR 404.1520(c) and 416.920(c)).
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
The claimant does not have an impairment or combination
Plaintiff’s applications for SSI and DBI were filed on February 9, 2009. TR 124, 131.
of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: He is limited to direct nonconfrontational
supervision and to jobs that require no high stress
production rates or quotas.
The claimant was born on December 20, 1975 and was 32
years old, which is defined as a younger individual age 1849, on the alleged disability onset date (20 CFR 404.1563
The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564 and
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the claimant
has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
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 404.1569,
404.1569(a), 416.969, 416.969(a)).
The claimant has not been under a disability, as defined in
the Social Security Act, from July 15, 2008, through the
date of this decision (20 CFR 404.1520(g) and 416.920(g)).
On October 18, 2010, Plaintiff timely filed a request for review of the hearing decision.
TR 14. On April 4, 2012, the Appeals Council issued a letter declining to review the case (TR
1), thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil
action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standards of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The
purpose of this review is to determine (1) whether substantial evidence exists in the record to
support the Commissioner’s decision, and (2) whether any legal errors were committed in the
process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind would accept
as adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Substantial evidence” has been
further quantified as “more than a mere scintilla of evidence, but less than a preponderance.”
Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the Administrative Law Judge must stand if substantial evidence
supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997)). If the Commissioner did not consider the record as a whole, however, the
Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985)
(citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484
F.2d 647 (6th Cir. 1973))).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by
proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful
activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” impairments4 or its equivalent. If a listing is met or
equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his or her
residual functional capacity (e.g., what the claimant can still do
despite his or her limitations). By showing a medical condition
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) Once the claimant establishes a prima facie case of disability,
the burden shifts to the Commissioner to establish the claimant’s
ability to work by proving the existence of a significant number of
jobs in the national economy which the claimant could perform,
given his or her age, experience, education, and residual functional
20 C.F.R. §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175,
1181 (6th Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
claimant’s characteristics identically match the characteristics of the applicable grid rule.
Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does not direct a conclusion as to the claimant’s
disability, the Commissioner must rebut the claimant’s prima facie case by coming forward with
particularized proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary,
820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to consider the combined effect of all the
claimant’s impairments; mental and physical, exertional and nonexertional, severe and
nonsevere. See 42 U.S.C. § 423(d)(2)(B).
C. Plaintiff’s Statement Of Errors
Plaintiff contends that the ALJ failed to properly: 1) evaluate Plaintiff’s residual
functional capacity, and 2) consider the vocational expert’s testimony. Docket No. 12.
Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the Commissioner’s
decision should be reversed, or in the alternative, remanded. Id.
Sentence four of § 405(g) states as follows:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.
42 U.S.C. §§ 405(g), 1383(c)(3).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can
be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).
1. Residual Functional Capacity
Plaintiff maintains that the ALJ’s residual functional capacity (“RFC”) determination was
not supported by substantial evidence. Docket No. 12 at 6. Specifically, Plaintiff argues that his
restrictions in social functioning are far more severe than those found by the ALJ. Id. Plaintiff
argues that he is unable “to respond appropriately to supervision, coworkers, and usual work
situations,” which is a requirement to be able to perform unskilled work. Id. at 6-7, citing SSR
85-15. As support for his assertion, Plaintiff notes his testimony, the testimony of his father, and
his work and school records. Id. at 7. Plaintiff concedes that evidence regarding his inability to
get along with supervisors and co-workers is inconsistent, and that some of Plaintiff’s own
testimony and the medical opinion of consulting examiner, Mr. Stephen Hardison, do not support
severe limitations in social functioning. Id. at 8, referencing TR 29-45, 256-76, citing TR 28891. Plaintiff contends, however, that these inconsistencies should not provide a basis for
discrediting the severity of his limitations in social functioning because: 1) Plaintiff’s own
testimony is not credible given his limited ability to understand the nature of his interaction with
others, and 2) it is questionable whether Mr. Hardison considered the other evidence of record
when rendering his opinion. Id. at 7-8, citing TR 263, 288-91. Plaintiff contends that the ALJ
failed to recognize that he was not a reliable witness when he accepted Plaintiff’s testimony at
face value, rather than considering the “more reliable” evidence of Plaintiff’s work and school
records, and the testimony of Plaintiff’s father. Id. at 8. Plaintiff further contends that it appears
that Mr. Hardison based his opinion on his interview with Plaintiff, but, as has been argued,
Plaintiff’s autism renders him an unreliable witness. Id. Plaintiff asserts that Mr. Hardison’s
basing his opinion on his interview with Plaintiff renders his opinion, “at best, an incomplete
picture of the depth of the Plaintiff’s social difficulties.” Id. at 8-9. Ultimately, Plaintiff
articulates that because Plaintiff has “substantial limitations in relating to supervisors, coworkers, and the public at large,” the ALJ should have found Plaintiff to be disabled. Id. at 9.
Defendant responds that the ALJ properly evaluated Plaintiff’s RFC. Docket No. 13 at
12. Defendant argues that the ALJ’s determination was consistent with the medical opinions of
record, including with State Agency psychologists Mr. Hardison and Dr. Edward Sachs, and
with State Agency psychiatrist Dr. Pilar Vargas. Id. at 12-13, citing Docket No. 12 at 8, TR 267,
288-91, 292-308, 314-16, 318-30, referencing TR 21-23. Defendant notes that Mr. Hardison’s
opinion was consistent with Plaintiff’s school records, including the opinion of school
psychologist, Barbara Sullivan, who noted in 1994 that Plaintiff was “much higher functioning
than most individuals with autism.” Id. at 13, quoting TR 267. Defendant also notes that, when
making his RFC determination, the ALJ adequately considered Plaintiff’s work history and
hearing testimony. Id. at 13-14, citing TR 23, 32, 33-34, 37. Finally, Defendant notes that in light
of inconsistent evidence, it is solely the ALJ’s responsibility to make an RFC determination. Id.
at 14, citing 20 CFR §§ 404.1546(c), 416.946(c).
“Residual Functional Capacity” is defined as the “maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical
abilities in determining a claimant’s Residual Functional Capacity, the Regulations state:
When we assess your physical abilities, we first assess the nature and
extent of your physical limitations and then determine your residual
functional capacity for work activity on a regular and continuing
basis. A limited ability to perform certain physical demands of work
activity, such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or
postural functions, such as reaching, handling, stooping or
crouching), may reduce your ability to do past work and other work.
20 C.F.R. § 404.1545(b).
The ALJ, in the case at bar, after evaluating all of the objective medical evidence of
record and Plaintiff’s reported level of activity, determined that Plaintiff retained the RFC to
perform a full range of work with “direct nonconfrontational supervision” and “no high stress
production rates or quotas.” TR 21. In making this determination, the ALJ considered the
hearing testimony, medical records, school evaluations, medical source statements, and
Plaintiff’s subjective complaints. TR 21-23.
The ALJ first considered testimonial evidence of record:
The claimant testified that his only income is food stamps and said
his father paid his house payment. The claimant stated that he can
read a newspaper and has a high school education. The claimant
stated that he had problems due to autism and dwarfism. He
reported that he worked as a maintenance man on a locomotive and
as an electrician’s helper.
The claimant’s father, Mr. Mike Livingston, testified on behalf of
his son and reported that he pays his son’s bills. He asserted that
the claimant’s small stature and autism posed severe difficulties
with the claimant obtaining and maintaining employment. His
father said that his son becomes extremely nervous when he is
working and sometimes becomes angry, yells, and loses his
temper. He stated that his son is overly sensitive to any criticism
and becomes withdrawn, touchy, and grumpy.
TR 22, referencing TR 30-45.
The ALJ next discussed the objective medical evidence and medical opinions of record,
The medical evidence reveals that a school psychological
evaluation of the claimant was performed in June 1994. Medical
records show that he was diagnosed with achondroplasia dwarfism
at 18 months with evidence of delays in gross motor and speech
and language. The claimant was assessed with autism affecting his
ability to relate to people, events, and objects. The claimant was
observed to exhibit difficulties with speech and language
communications and to respond inconsistently with sensory
stimuli, such as sight, hearing, taste, and touch. He participated in
special education classes in an effort to improve his language
Dr. Balger examined the claimant in 2000 and assessed him with
dwarfism; mild anxiety; and autism with high-functioning abilities.
A follow-up note in 2002 shows that his parents reported to the
physician that the claimant preferred not to take prescribed antipsychotic medications.
Mr. Hardison, M.A., consultatively performed a psychological
evaluation of the claimant who reported that he currently did not
take any prescribed medications although he said that he
previously had been prescribed Prozac in 2004. The WAIS-IV,
intelligence tests, were performed, and the claimant obtained a full
scale IQ score of 84, placing him in the low average range of
intelligence. Achievement tests, the WRAT-IV, were also given,
and the claimant obtained a reading score of tenth grade and an
arithmetic score of eighth grade. The examiner observed that such
scores showed that the claimant was functionally literate with
basic word recognition skills. While the claimant professed that he
was depressed, the examiner averred that he did not meet the
criteria for a specific diagnosis of depression and he also did not
currently exhibit symptoms that would indicate autism.
TR 22-23, referencing TR 225-30, 231-55, 256-76, 279-86, 287-91.
Finally, the ALJ considered Plaintiff’s subjective complaints:
The degree of the claimant’s complaints of pain is not considered
fully credible. The undersigned notes that the claimant is a nice
young man who apparently has worked at SGA level despite his
congenital dwarfism and long-term autism. The claimant testified
that he received no special treatment or accommodations in
several long-term jobs during the period of 1997 through 2007.
The objective medical evidence of records shows that no treating
or examining source has offered an opinion disabling him, and he
has not attempted to obtain low or no-cost mental health therapy
while in Tennessee. The claimant admitted that his electrician
helper job ended in 2007 due to lack of work rather than for any
medical or performance issues and asserted that he attempted to
draw unemployment benefits after losing his job at Ryan’s
Restaurant and such would connote that he was willing, able, and
available to look for and perform work activities. The claimant
cares for his personal needs and for those of his dog. He performs
all normal household chores, such as cooking, cleaning, laundry,
vacuuming, and sweeping. He enjoys the outdoors and frequently
walks to the park or drives his car to the grocery store on a daily
basis. He enjoys watching television; working on the computer;
visiting with his parents; mowing his lawn; and participates in
Model Railroad Club twice weekly. His ability to perform such a
variety of daily activities tends to negate the credibility of his
subjective complaints, especially the degree of pain he maintained
he experiences. One would not reasonably anticipate that a person
who experiences substantial drowsiness and side effects from
medications, the degree of pain alleged, or severe depression and
anxiety, to be able to tolerate the physical demands, the level of
concentration, or the amount of social interaction, necessary to
perform many of these activities.
TR 23, referencing TR 30-41, 149-56, 175-84 (italics in original).
As has been noted, ultimately, the ALJ found that Plaintiff retained the RFC to perform a
full range of work at all exertional levels but being limited to direct, nonconfrontational
supervision and to jobs that required no high stress production rates or quotas. TR 21.
Discussing his RFC determination generally, the ALJ stated:
This is consistent with the medical source statements of the State
Agency psychologists who noted no more than mild to moderate
mental limitations that were not so severe as to compel the
claimant to seek professional mental health treatment or to even
take prescribed anti-psychotic medications from a family
physician. Likewise, the consultative examiner did not find more
than mild to moderate limitations and averred that he was capable
of performing even detailed-type instructions so long as he worked
in a low stress environment. It is noteworthy that State Agency
physicians found no severe physical impairments.
In making this finding, the undersigned has considered all
symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 404.1529
and 416.929 and SSRs 96-4p and 96-7p. The undersigned has also
considered opinion evidence in accordance with the requirements
of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p,
TR 21-22, referencing TR 287-91, 306-09, 310-13, 314-17.
Although Plaintiff contends that some of Plaintiff’s testimony, Plaintiff’s father’s
testimony, and Plaintiff’s work and school records support a determination of more severe social
functioning limitations, the quoted passages above demonstrate that the ALJ considered all of
this evidence in making his findings. Plaintiff also suggests that the ALJ should not have placed
as much emphasis on Plaintiff’s own testimony because Plaintiff’s autism renders him an
unreliable witness, as he is not aware of his own social difficulties. As exemplified above,
however, the ALJ found Plaintiff’s complaints (including Plaintiff’s testimony) to not be fully
credible. TR 23. Finally, Plaintiff’s argument that the ALJ should not have relied on Mr.
Hardison’s opinion because it is unclear whether Mr. Hardison considered Plaintiff’s entire
medical record is unavailing, because the ALJ did considered all the evidence of record, and did
not base his opinion solely on that of Mr. Hardison. Docket No. 12 at 8; TR 21-23. Rather, the
ALJ based his RFC determination on the evidence of record, including the hearing testimony of
both Plaintiff and his father, medical records, school evaluations, medical source statements, and
Plaintiff’s subjective complaints. TR 21-23.
The ALJ’s determination that Plaintiff retained the RFC to perform a full range of work
with “direct nonconfrontational supervision” and “no high stress production rates or quotas” is
supported by the record as a whole. TR 21-23. Because the ALJ considered the evidence of
record, and substantial evidence supports the ALJ’s RFC determination, the ALJ’s determination
2. VE’s Testimony Regarding the Existence of a Significant Numbers of Jobs
Plaintiff contends that the ALJ failed to properly consider the VE’s testimony. Docket
No. 12 at 10. Specifically, Plaintiff asserts that the ALJ erred in relying on part of the VE’s
testimony but ignoring the part of the VE’s testimony that indicated that Plaintiff could
experience potential problems in maintaining steady employment without “extraordinary
accommodations.” Id. Plaintiff also argues that it was improper for the ALJ to rely on the grid
rules despite Plaintiff’s nonexertional limitations. Id. Plaintiff correctly notes that the ALJ’s
RFC finding included nonexertional limitations of “direct nonconfrontational supervision” and
“no high stress production rates or quotas” (Id., citing TR 21), and that the VE testified that an
individual with these limitations might have some difficulty getting, and retaining, a job (Id.,
referencing TR 48). Plaintiff contends, however, that the ALJ erred by failing to discuss or elicit
further testimony for clarification regarding the VE’s testimony that, although there would be
jobs that an individual with the limitations expressed in the ALJ’s hypothetical question could
perform, that hypothetical individual “might have some difficulty getting through the initial
phase of the job because of the need for direct and non confrontational supervision.” Id.
Plaintiff contends that, even if the ALJ’s determination regarding Plaintiff’s social abilities was
supported by substantial evidence, the vocational evidence is unclear as to whether Plaintiff
would be able to maintain steady employment, and step five of the sequential evaluation process
requires that the ALJ prove that Plaintiff could acquire and maintain employment, such that the
VE’s equivocal testimony that Plaintiff “might” be able to retain a job is inconsistent with the
ALJ’s determination. Id. at 12, citing Jones v. Commissioner, 336 F.3d 469, 474 (6th Cir. 2003),
referencing TR 48.
Defendant responds that the VE’s testimony supports the ALJ’s finding that there are a
significant number of jobs that Plaintiff could perform. Docket No. 13 at 14. Specifically,
Defendant argues that the ALJ proffered multiple appropriate hypothetical questions to the VE
and that the VE’s responses to those hypothetical questions regarding the identification of
appropriate jobs were unequivocal. Id. at 14-15, citing TR 46-48. Defendant contends that the
evidence of record, including Plaintiff’s work history, further supports the ALJ’s finding. Id.,
citing TR 32, 33-34, 37.
As explained above, the Commissioner has the burden at step five of the sequential
evaluation process of establishing the claimant’s ability to work by proving the existence of a
significant number of jobs in the national economy that the claimant could perform, given his or
her age, experience, education, and residual functional capacity. 20 C.F.R. §§ 404.1520,
416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). The Commissioner’s
burden at step five can be satisfied by relying on the grid rules only if Plaintiff is not
significantly limited by nonexertional impairments, such as mental limitations, manipulative
limitations or environmental limitations. Abbot v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). In
the presence of nonexertional limitations that would preclude the application of the grid rules,
“expert testimony would be required to satisfy the Secretary’s burden of proof regarding the
availability of jobs which this particular claimant can exertionally handle.” Kirk v. Secretary,
667 F.2d 524, 531 (6th Cir. 1983). In other words, the ALJ may rely on the testimony of a
vocational expert in response to a hypothetical question as substantial evidence of the existence
of a significant number of jobs that the claimant is capable of performing as long as the
hypothetical question accurately represents the claimant’s credible limitations. See Varley, 820
F.2d at 779 (quoting O’Banner v. Secretary, 587 F.2d 321, 323 (6th Cir. 1978)).
In the case at bar, the ALJ’s hypothetical questions posed to the VE addressed Plaintiff’s
nonexertional limitations. TR 46-48. The ALJ specifically addressed Plaintiff’s limitations with
the VE as follows:
Thank you for that. In the first hypothetical, Dr. Nadolsky,
assume the claimant has no physical limitations, no
exertional limitations. However, he is limited to performing
no more than simple and low level detailed instructions,
can have no more than occasional interaction with the
public, will perform better in an object focused work
setting than in a public setting, can adjust to occasional
changes in work settings or routines. With those as the
limitations, would the claimant be capable of performing
any of the three jobs that you described?
He would be able to do I think the road builder, the setting
of forms, concrete pouring forms. I don’t believe he’d be
able to do the other two jobs. I think he could do part of the
locomotive job but the cleaning part he couldn’t do the
maintenance part, but not the total job. [sic]
For the sake of this first question, Dr. Nadolsky, let’s
assume the claimant has no past work experience. The
claimant was born in December ‘75 so he’s currently 34
years of age and has a high school education. Would there
be other jobs to accommodate such factors?
Yes, it would, there would be many jobs the person could
perform at different levels, I think for example, at the
medium level he could perform jobs such as conveyer
feeder, a conveyer off-barrier, and these are all unskilled
jobs, he would not have any skills from the work – well, he
didn’t have work experience based on the hypothetical.
But I think he can perform the job as a packaging machine
tender, could also work in some jobs as a cleaner, could
definitely work as a mold cleaner. I think these are
examples of the kinds of medium jobs that a person could
do and in terms of numbers of these kinds of jobs in the
local labor market there’s a total of about 800 medium jobs
that the claimant could do under that hypothetical.
Nationwide there’s about one and one-quarter million of
the same types of jobs.
All right, and would it be fair to assume that in addition to
the medium exertion jobs you’ve identified there might be
additional light and sedentary level jobs as well?
Well, there would, the same kinds of unskilled jobs.
Correct, thank you, sir.
In fact, there would be greater numbers at the light level
but not for sedentary.
That’s all I’ll need on this hypothetical. Now, next
hypothetical, Dr. Nadolsky, assume that in addition to what
was provided in that first hypothetical, the claimant can
have – let me rephrase, let’s assume further that any
supervision of the claimant must be direct and non
confrontational. Let’s assume further that the claimant can
perform no highly stressful production rate or quota jobs.
Would this affect the answer to the previous hypothetical?
I don’t believe it would affect my answer to the
hypothetical, I think he might have some difficulty getting
through the initial phase of the job because of the need for
direct and non confrontational supervision. He may or may
not have difficulty getting through the initial phase.
Well, would there be any jobs that would accommodate the
further requirement of direct and non confrontational
Yes, there would be many jobs, I think the kind of jobs that
I testified to but he’d also be able to perform other jobs.
Examples would be jobs such as a hand sander, a cushion
stuffer, a furniture wiper, a decal applier, a gasket
inspector, I believe these are examples of the kinds of jobs
that are light in nature that a person could perform
consistent with that hypothetical.
When considering the evidence at step five of the sequential evaluation, including the
VE’s responses regarding the numbers of available appropriate jobs, the ALJ stated:
The claimant’s ability to perform work at all exertional levels has
been compromised by nonexertional limitations. To determine the
extent to which these limitations erode the occupational base of
unskilled work at all exertional levels, the Administrative Law
Judge asked the vocational 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 unskilled medium occupations such as conveyer
feeder, packaging machine tender, and cleaner, such as mold
cleaner. There are 800 such jobs in the local economy and 1.25
[sic] such jobs in the national economy. The vocational expert also
listed unskilled light and sedentary jobs that include hand sander,
cushion stuffer, furniture wiper, decal applier, and gasket
inspector. There are 1100 such jobs in the local economy and 1.5
[sic] such jobs in the national economy [sic]
Pursuant to SSR 00-4p, the vocational expert’s testimony is
consistent with the information contained in the Dictionary of
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy. A finding of
“not disabled” is therefore appropriate under the framework of
section 204.00 in the Medical-Vocational Guidelines.
TR 24-25, referencing TR 46-49.
Although Plaintiff argues that the VE’s responses to the hypothetical questions were
equivocal, the VE very clearly testified that “there would be many jobs” that would
accommodate Plaintiff’s limitations, including his “further requirement of direct and non
confrontational supervision.” The ALJ’s hypothetical questions properly included Plaintiff’s
exertional and nonexertional limitations, and the VE appropriately and unequivocally listed
several jobs that an individual with Plaintiff’s limitations could perform. Because the ALJ’s
hypothetical questions to the VE contained Plaintiff’s exertional and nonexertional limitations,
the ALJ could rely on the testimony of the VE for evidence of the existence of a significant
number of jobs in the local and national economies that Plaintiff would be able to perform. See
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Hardaway v. Secretary, 823 F.2d 922, 927928 (6th Cir. 1987); and Varley, 820 F.2d at 779. Accordingly, Plaintiff’s claim fails.
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Pleadings be DENIED, and that the decision of the Commissioner be
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
E. CLIFTON KNOWLES
United States Magistrate Judge
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