Lynch v. Social Security Administration

Filing 21

MEMORANDUM OPINION Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/30/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
THELMA J. LYNCH,

)
)
)
)
) NO. 3:14-cv-1384
) CHIEF JUDGE CRENSHAW
)
)
)
)
)
MEMORANDUM OPINION

Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

Pending before the Court is Thelma J. Lynch’s Motion for Judgment on the
Administrative Record (Doc. No. 15), to which the Social Security Administration (“SSA”) has
responded (Doc. No. 17.)

Plaintiff did not file a reply to the SSA’s response.

Upon

consideration of the parties’ briefs and the transcript of the administrative record (Doc. No. 12), 1
and for the reasons set forth below, Plaintiff’s Motion for Judgment will be DENIED and the
decision of the SSA will be AFFIRMED.
I.

Magistrate Judge Referral

In order to ensure the prompt resolution of this matter, the Court will VACATE the
referral to the Magistrate Judge.
II. Introduction
Plaintiff filed an application for supplemental security income (“SSI”) under Title XVI of
the Social Security Act on March 15, 2011, and an application for disability insurance benefits

1

Referenced hereinafter by “Tr.” followed by the page number found in bolded typeface at the bottom right corner
of the transcript page.

(“DIB”) under Title II of the Social Security Act on March 22, 2011, 2 alleging disability onset as
of January 1, 2009, due to diabetes, neuritis, asthma, high blood pressure and migraines. (Tr.
333.) Her claim to benefits was denied at the initial and reconsideration stages of state agency
review. Plaintiff subsequently requested de novo review of her case by an Administrative Law
Judge (“ALJ”). Plaintiff’s case was heard on December 10, 2012, when Plaintiff appeared with
counsel and gave testimony. (Tr. 219-54.) Testimony was also received from an impartial
vocational expert (“VE”). (Id.) At the conclusion of the hearing, the matter was taken under
advisement until February 1, 2013, when the ALJ issued a written decision finding Plaintiff not
disabled. (Tr. 196-214.) That decision contains the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act through
September 30, 2013.
2. The claimant has not engaged in substantial gainful activity since January 1, 2009, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The earnings record and the claimant’s testimony establish that the claimant has not
engaged in substantial gainful activity (SGA) since the alleged onset date.
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, 404.1526, 416.920(d),
416.925 and 416.926).
5. [T]he claimant has the residual functional capacity (RFC) to perform lifting and/or
carrying of 50 pounds occasionally and 10 pounds frequently; standing and/or
walking of 2 hours, 30 minutes at one time, in an 8 hour workday; sitting of 7 hours
in an 8 hour workday; occasional overhead reaching; frequent other reaching;
frequent postural activities; occasional climbing of ladders and stairs; the avoidance
of concentrated exposure to fumes, dust, gases, irritating inhalants, and temperature
extremes; an ability to understand and carry out detailed tasks and instructions; have
occasional interaction with the public; and have frequent interaction with coworkers
and supervisors.
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The Act and implementing regulations regarding DIB (contained in Title II of the Act and 20 C.F.R. Part 404 of
the regulations) and SSI (contained in Title XVI of the Act and 20 C.F.R. Part 416 of the regulations) are
substantially identical. Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (noting that the Title II and the Title XVI
definition of “disability” is “verbatim the same” and explaining that “[f]or simplicity sake, we will refer only to the
II provisions, but our analysis applies equally to Title XVI.”) The Court will cite to the regulations interchangeably.

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6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was 49 years old (a younger individual age 18-49) on the alleged
disability onset date. The claimant subsequently changed age category to closely
approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has a high school equivalence education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has transferable job skills (See
SSR 82-41and 20 CFR Part 404, Subpart P, Appendix 2).
10. 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, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,
from January 1, 2009, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
(Tr. 198-99, 201, 208-09.)
On April 24, 2014, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision (Tr. 1–6), thereby rendering that decision the final decision of the SSA. This civil
action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. ' 405(g). If the
ALJ’s findings are supported by substantial evidence based on the record as a whole, then those
findings are conclusive. Id.
III. Review of the Record
Plaintiff does not challenge her RFC or any of the ALJ’s findings in steps one through
four of the sequential evaluation process. She does not allege any errors regarding the ALJ’s
factual findings with respect to her severe impairments or her credibility, nor does she allege any
errors regarding the ALJ’s analysis of the medical records or opinion evidence. As such, a
lengthy review of the record is unnecessary. To be sure, the ALJ reviewed all of the record
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evidence including: (1) Plaintiff’s medical records related to her physical and mental
impairments from 2010-2012; (2) opinion evidence from state agency consultants and examiners,
and (3) opinion evidence from treating sources. (Tr. 201-08.) Then, after considering all of this
evidence, the ALJ concluded that:
Substantial medically acceptable clinical findings; radiographic, laboratory, and
psychological diagnostic techniques; physician, psychiatrist, psychologist, nurse
practitioner, therapist, etc., opinions; and daily activities of living are consistent
with the RFC, and the subjective complaints have been accepted as far as they are
supported by the objective evidence and medical opinions.
(Tr. 208.) Plaintiff does not dispute this conclusion.
IV. Conclusions of Law
A. Standard of Review
This Court reviews the final decision of the SSA to determine whether substantial
evidence supports that agency’s findings and whether it applied the correct legal standards.
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). Substantial evidence means
“‘more than a mere scintilla,’ but less than a preponderance; substantial evidence is such
‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).

In determining whether

substantial evidence supports the agency’s findings, a court must examine the record as a whole,
“tak[ing] into account whatever in the record fairly detracts from its weight.” Brooks v. Comm’r
of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383,
388 (6th Cir. 1984)). The agency’s decision must stand if substantial evidence supports it, even
if the record contains evidence supporting the opposite conclusion. See Hernandez v. Comm’r of
Soc. Sec., 644 F. App’x 468, 473 (6th Cir. 2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th
Cir. 1997)).
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Accordingly, this court may not “try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir.
2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ
fails to follow agency rules and regulations, the decision lacks the support of substantial
evidence, “even where the conclusion of the ALJ may be justified based upon the record.”
Miller, 811 F.3d at 833 (quoting Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014)).
B. The Five-Step Inquiry
The claimant bears the ultimate burden of establishing 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 result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must
“result[] from anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). The SSA
considers a claimant’s case under a five-step sequential evaluation process, described by the
Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
disabled.
3) A finding of disability will be made without consideration of vocational factors, if
a claimant is not working and is suffering from a severe impairment which meets
the duration requirement and which meets or equals a listed impairment in
Appendix 1 to Subpart P of the Regulations. Claimants with lesser impairments
proceed to step four.
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4) A claimant who can perform work that he has done in the past will not be found
to be disabled.
5) If a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of
Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden through step four of proving the existence and severity of the limitations her
impairments cause and the fact that she cannot perform past relevant work; however, at step five,
“the burden shifts to the Commissioner to ‘identify a significant number of jobs in the economy
that accommodate the claimant’s residual functional capacity . . . .” Kepke v. Comm’r of Soc.
Sec., 636 F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)).
The SSA can carry its burden at the fifth step of the evaluation process by relying on the
Medical-Vocational Guidelines, otherwise known as “the grids,” but only if a nonexertional
impairment does not significantly limit the claimant, and then only when the claimant’s
characteristics precisely match the characteristics of the applicable grid rule. See Anderson v.
Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321 F.3d 611,
615–16 (6th Cir. 2003).

Otherwise, the grids only function as a guide to the disability

determination. Wright, 321 F.3d at 615–16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Cir. 1990). Where the grids do not direct a conclusion as to the claimant’s disability, the SSA
must rebut the claimant’s prima facie case by coming forward with proof of the claimant’s
individual vocational qualifications to perform specific jobs, typically through vocational expert

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testimony. Anderson, 406 F. App’x at 35; see Wright, 321 F.3d at 616 (quoting SSR 83-12,
1983 WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant’s residual functional capacity (“RFC”) at steps four and
five, the SSA must consider the combined effect of all the claimant’s impairments, mental and
physical, exertional and nonexertional, severe and nonsevere. 42 U.S.C. §§ 423(d)(2)(B), (5)(B);
Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R.
§ 404.1545(e)).
C. Plaintiff’s Statement of Errors
Plaintiff alleges two errors:
1. Under the regulations and other policy guidance, a limitation to standing and
walking of 2 hours in an 8 hours day is consistent with a finding that the claimant
can perform “sedentary work,” and not “light work” or “medium work.” Pursuant
to SSR 00-4p, an ALJ may not appropriately make findings or accept vocational
testimony that is inconsistent with the exertion level definitions set forth in the
regulations; in other words, an ALJ may not make a sedentary job “light” or
“medium” by increasing the lifting requirements of the job.
2. The ALJ’s step 5 error is probably not “harmless” because consideration of the
exact same vocational factors of age, education, and past work experience direct a
finding that she is “disabled” at a maximum RFC for “sedentary work”; however,
the reason the record is unclear about this is that the ALJ never inquired about
whether Ms. Lynch’s past semiskilled jobs provided transferable skills to the
sedentary level of exertion.
(Doc. No. 16 at Page ID## 733, 738.)
Specifically with respect to Plaintiff’s first allegation of error, she argues that based on
the ALJ’s findings of fact, which she does not contest, the ALJ should have found that Plaintiff’s
RFC is “at the sedentary level.” (Id. at Page ID# 733 (emphasis in original).) Plaintiff contends
that the ALJ determined that Plaintiff’s “RFC is at the medium exertion level.” (Id. at Page ID#
734.) Plaintiff is mistaken. In his decision the ALJ stated as follows:
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If the claimant had the [RFC] to perform the full range of medium work, a finding
of “not disabled” would be directed by Medical-Vocational Rule 203.29 and Rule
203.22. 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.
(Tr. 208-09 (emphasis added.))

As is manifest, the ALJ did not determine that Plaintiff

maintained the ability to perform jobs at the medium exertional level. If this fact were not
abundantly clear already, after setting forth the VE’s testimony regarding Plaintiff’s past relevant
work, all of which fell in the medium to heavy exertional level, the ALJ stated, “[t]he VE also
testified that all past relevant work must be eliminated as beyond the requirements in the
established RFC.” (Tr. 208.) Thus, it is beyond cavil that the ALJ understood that Plaintiff
could not perform work at the medium exertion level. Plaintiff’s contention to the contrary is
simply incorrect.
Plaintiff also argues that even a finding of “light work” would be improper because the
ALJ’s RFC assessment confined Plaintiff to jobs allowing her to, among other things, stand or
walk for only 30 minutes at one time for a maximum of 2 hours a day. (Tr. 201.)
20 C.F.R. § 404.1567 defines the physical exertion classifications for work in the national
economy. As pertinent here, § 404.1567 states:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it 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. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine
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that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.
Id. (emphasis added.)) Plaintiff contends that because of her significant stand/walk restriction
she cannot do a “good deal” of walking or standing, thus she is unable “to do substantially all” of
the activities required to perform light work. Consequently, Plaintiff argues, an RFC finding that
Plaintiff can do light work is erroneous. While Plaintiff’s statement of facts is correct, her
analysis is not.
Plaintiff accurately states that the stand/walk limitation prevents her from doing a “good
deal” of walking or standing. (Id.) Plaintiff is also correct that based on the ALJ’s RFC
assessment, she is unable “to do substantially all” of the activities required to perform “a full or
wide range of light work.” (Id.) However, these facts do not, as Plaintiff reasons, exclude
Plaintiff from doing any light work. Rather, as the ALJ found, they exclude Plaintiff from
performing “a full or wide range of light work.” (Id.) However, merely because Plaintiff could
not do a full or wide range of light work did not dictate a finding that she could only perform
sedentary work. See Blakenship v. Comm’r of Soc. Sec., 624 F. App’x 416, 429 (6th Cir. 2015)
(rejecting Plaintiff’s suggestion “that there is an either/or dichotomy between light work and
sedentary work, and because she could not perform a full range of light work, she must
necessarily have only been able to do sedentary work”). The regulations do not direct such a
finding, nor do they force the ALJ to choose a single exertional level from a menu of exertional
options—sedentary, light, medium, or heavy. Rather, the regulations allow ample room for more
nuanced exertional findings. See id. (recognizing that Plaintiff could not do a full range of light
work, but the ALJ did not err in finding her not disabled because the VE testified to available
jobs that are considered “light [work] because of their weight lifting requirements, and are
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considered ‘sitting jobs’”); see also Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th
Cir. 2010) (recognizing that the claimant’s RFC was between two exertional levels); 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 the VE testified to jobs at the
light exertional level). As a result, the ALJ did not err in concluding that Plaintiff’s RFC
allowed her to perform a limited range of “light work.”
As to her second claim of error, Plaintiff argues that the ALJ erred in not using the
Medical-Vocational Guidelines to make a disability finding and in not obtaining testimony from
the VE regarding whether Plaintiff had any transferable skills, because determining whether
Plaintiff had, or did not have, transferable skills was essential to making a disability finding
using the Medical-Vocational Guidelines.
Appendix 2 to Subpart P of Part 404 of the Code of Federal Regulations sets forth the
Medical-Vocational Guidelines, also referred to as the “grids.” The Sixth Circuit has explained
the purpose of the grid’s as follows:
Once an administrative law judge determines a plaintiff’s residual functional
capacity, he may use the medical-vocational guidelines, or “grids,” to determine
the plaintiff’s level of disability and potential for employment. The grids
categorize jobs by their physical-exertion requirements, namely, sedentary, light,
medium, heavy, and very heavy. There are numbered tables for the sedentary,
light, and medium level (Tables 1, 2, and 3, respectively), and a specific rule, not
applicable here, for the heavy and very heavy levels. Based on the plaintiff’s
residual functional capacity, the administrative law judge must first determine
which table to apply, if any. For instance, if the plaintiff’s residual functional
capacity limits him to a sedentary exertional level, then Table No. 1 is the
appropriate table. Next, based on the plaintiff’s age, education, and previous
work experience, the rule directs a finding of “disabled” or “not disabled.” The
[ALJ] can utilize the grids only where the grids accurately and completely
describe the plaintiff’s abilities and limitations. Therefore, a finding of “disabled”
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or “not disabled” based solely on the grids is only appropriate when the ability to
perform a full range of either medium, light or sedentary activities is present.
Branon v. Comm’r of Soc. Sec., 539 F. App’x 675, 679–80 (6th Cir. 2013) (internal citations
omitted, emphasis added). Here, the ALJ found that because of the significant stand/walk
limitations, Plaintiff’s RFC allowed her to perform a limited range of light work, in other words,
the ALJ found that Plaintiff’s RFC fell between the category of “light work” and “sedentary.” 3
If the ALJ had found that Plaintiff was able to perform jobs solely within a single exertional
category, the ALJ would have used the grids to direct a disability finding. However, the range of
work available to Plaintiff was not limited to sedentary work, and included a variety of jobs
classified as “light work.” Under the circumstances present here, the grids did not direct a
finding because they did not “accurately and completely describe the plaintiff’s abilities and
limitation.” See Anderson, 406 F. App’x at 35 (noting that “[w]here a claimant’s RFC is in
between two exertional levels, such as the case here where the ALJ found that Anderson could
perform a limited range of light work, the grid guidelines, which reflect only common—and not
all—patterns of vocational factors, are not binding and are instead used only as an analytical
framework.”) Id.
Based on her erroneous belief that she was confined to sedentary work and that the grids
applied, Plaintiff also argues that the ALJ erred by not questioning the VE regarding the
transferability of job skills because transferability of job skills is essential to determining
whether the grids direct a disability finding. Because the grids did not direct a conclusion
regarding disability in this case, the ALJ found that transferability of job skills was “not material
to the determination of disability” and instead, as he was required to do, he used the grids as an
3

Specifically, the ALJ sought information from the VE regarding jobs that “are above a full range of sedentary but
less than a full range of light [work].” (Tr. 244.)

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analytical framework for determining disability. (Tr. 208; see also Branon, 539 F. App’x at 680;
20 C.F.R. Part 404, Subpt. P, App. 2, §200.00(d).
In such a situation, Social Security Ruling 83–12 directs that a [VE] be called to
testify as to whether a significant number of jobs exist in the national economy
that a hypothetical individual with plaintiff’s limitations can perform. So long as
the hypothetical is accurate, the [ALJ] may rely on the vocational expert’s
testimony to find that the plaintiff can perform a significant number of jobs in the
national economy.
Branon, 539 F. App’x at 680.
Plaintiff does not dispute that the ALJ presented the VE with hypothetical questions that
covered the limitations included in her RFC. Indeed, the ALJ questioned the VE regarding all of
Plaintiff’s limitations, even those that he did not ultimately find credible. (Tr. 243-50.) When he
questioned the VE specifically regarding the limitations in Plaintiff’s RFC assessment, the VE
testified to the availability of a significant number of jobs in the state and national economies
that Plaintiff could perform. The VE testified that someone with Plaintiff’s RFC could work as
“a sewing machine operator” or a “price tagger,” both classified as “light work;” a “garment
inspector,” classified as “light work” but with the number of jobs available in the state and
national economy reduced by 30% due to Plaintiff’s stand/walk limitations; and a “telemarketer”
classified as “sedentary.” (Tr. 208-09.) The VE testified that each of these jobs was available in
significant numbers in the state and national economy, even with the 30% reduction in the
“garment inspector” job. (Tr. 245-47.) Plaintiff does not dispute the accuracy of the VE’s
testimony.
The ALJ was entitled to, and did, rely on the VE’s testimony in finding that there were
jobs available to Plaintiff and thus, that she was not disabled. See Branon, 539 F. App’x at 680;
see also Anderson, 406 F. App’x at 35 (noting that “[a]s long as the VE’s testimony is in
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response to an accurate hypothetical, the ALJ may rely on the VE’s testimony to find that the
claimant is able to perform a significant number of jobs”).
Based on the foregoing, the ALJ’s decision that Plaintiff was not disabled was supported
by substantial evidence on the record as a whole. Accordingly, the ALJ’s decision will be
affirmed.
V. Conclusion
In light of the foregoing, Plaintiff’s Motion for Judgment on the Administrative Record
will be DENIED and the decision of the SSA will be AFFIRMED. An appropriate order is
filed herewith.

____________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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