Eastwood v. Commissioner of Social Security
ORDER AFFERMING THE DECISION OF THE COMMISSIONER. Signed by Magistrate Judge Tu M. Pham on 9/15/2017. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
LESLIE C. EASTWOOD,
) No. 14-cv-01269-TMP
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
ORDER AFFIRMING THE COMMISSIONER’S DECISION
Before the court is plaintiff Leslie C. Eastwood’s appeal
from a final decision of the Commissioner of Social Security1
insurance benefits under Title II and Title XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq.
On December 6,
2016, the parties consented to the jurisdiction of the United
States magistrate judge pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, the decision of the
Commissioner is affirmed.
Carolyn W. Colvin was the Acting Commissioner of Social Security
at the time this case was filed. Therefore, she is named in the
in the caption to this case. As of the date of this order, the
Acting Commissioner of Social Security is Nancy A. Berryhill.
On May 9, 2006, Eastwood applied for disability benefits
under Title II and Title XVI of the Act.
(R. at 100, 105.)
Eastwood alleged disability beginning on May 5, 2006, due to
problems with both of his shoulders and heart problems resulting
from a stent in his main artery.
(R. at 100, 139.)
Security Administration (“SSA”) denied Eastwood’s application at
the initial level on October 20, 2006.
(R. at 40–41, 46–49,
Eastwood reapplied for benefits under Title II and Title
XVI of the Act on August 26, 2009.
(R. at 109.)
alleged disability beginning on May 5, 2006, this time due to
“rips and tears in shoulders” and heart disease.
(R. at 42–45, 54–57.)
(R. at 178.)
At Eastwood’s request,
a hearing was held before an Administrative Law Judge (“ALJ”) on
March 22, 2011.
(R. at 25–39.)
After this hearing, Eastwood
amended his alleged disability onset date to August, 7 2009.
(R. at 543.)
On June 29, 2011, the ALJ issued a decision
denying Eastwood’s request for benefits after finding Eastwood
was not under a disability because he
retained the residual
significant numbers in the national economy.
(R. at 14–18.)
January 1, 2012, the SSA’s Appeals Council denied Eastwood’s
request for review.
(R. at 1.)
Eastwood then filed a complaint
in this court, and the court remanded the case on October 31,
further administrative proceedings.
(R. at 619–20.)
9, 2013, the SSA’s Appeals Council remanded the case to the ALJ
for proceedings based on the court’s order.
(R. at 621–25.)
April 25, 2013, the ALJ held a second hearing and, on June 11,
(R. at 540–79.)
On August 4, 2014, the SSA’s
Appeals Counsel denied Eastwood’s request for review.
decision for the Commissioner.
Subsequently, on August
Eastwood argues that the ALJ’s determination that Eastwood is
not disabled is not supported by substantial evidence because
existing in significant numbers in the national economy.
No. 16 at 9–11.)
CONCLUSIONS OF LAW
Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which he or she was a party.
“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).
making the decision.
Id.; Burton v. Comm'r of Soc. Sec., No.
16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); Cole
v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
evidence is more than a scintilla of evidence but less than a
preponderance, and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in the record fairly
detracts from its weight.’”
Abbott v. Sullivan, 905 F.2d 918,
923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383,
Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v.
Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
Similarly, the court may “not try the case de novo,
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
The Commissioner, not the court, is charged with
the duty to weigh the evidence and to resolve material conflicts
in the testimony.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th
Cir. 1990); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP,
2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).
The Five-Step Analysis
The Act defines disability as the “inability to engage in
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
42 U.S.C. § 423(d)(1).
Additionally, section 423(d)(2) of the
Act states that:
An individual shall be determined to be under a
disability only 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.
For purposes of the preceding
sentence (with respect to any individual), “work which
exists in the national economy” means work which
exists in significant numbers either in the region
where such individual lives or in several regions of
establishing an entitlement to benefits.
Oliver v. Comm’r of
Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).
burden is on the claimant to prove she has a disability as
defined by the Act.
Siebert v. Comm’r of Soc. Sec., 105 F.
App’x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at
529); see also Born v. Sec’y of Health & Human Servs., 923 F.2d
1168, 1173 (6th Cir. 1990).
If the claimant is able to do so,
the burden then shifts to the Commissioner to demonstrate the
existence of available employment compatible with the claimant’s
disability and background.
Born, 923 F.2d at 1173; see also
Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir.
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
See 20 C.F.R. §§ 404.1520, 416.920.
claimant must not be engaged in substantial gainful activity.
See 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, a finding
must be made that the claimant suffers from a severe impairment.
third step, the ALJ determines whether the impairment meets or
Impairments contained in the Social Security Regulations.
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d).
the impairment satisfies the criteria for a listed impairment,
the claimant is considered to be disabled.
On the other hand,
if the claimant’s impairment does not meet or equal a listed
404.1520(a)(4)(iv), 404.1520(e), 416.920(a)(4)(iv).
If the ALJ
determines that the claimant can return to past relevant work,
then a finding of not disabled must be entered.
But if the
ALJ finds the claimant unable to perform past relevant work,
claimant can perform other work existing in significant numbers
in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4)(v),
necessary if it is determined that an individual is not disabled
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The ALJ’s Step Five Determination
that the ALJ erred in finding
perform work existing in significant numbers in the national
What amounts to a significant number is not a settled
amount but rather a variable quantity that an ALJ must work out
on a case-by-case basis.
See Taskila v. Comm'r of Soc. Sec.,
819 F.3d 902, 905 (6th Cir. 2016) (“[T]his argument . . . tries
question reviewed for substantial evidence into a legal question
reviewed as a matter of statutory interpretation.”); see also
Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (“[W]e cannot
set forth one special number which is to be the boundary between
a ‘significant number’ and an insignificant number of jobs.”).
entitlement analysis, the ALJ examines how the claimant’s age,
education, and work experience affect that claimant’s ability to
SSR 83-10, 1983 WL 31251, at *1 (S.S.A. January 1, 1983).
SSA has promulgated a grid of rules for ALJs to consult when
exertional limitations2 have on the number of jobs available to a
Exertional limitations “affect [a claimant’s] ability to meet
the strength demands of jobs.”
20 C.F.R. §§ 404.1569a(a),
Nonexertional limitations are “[l]imitations or
restrictions which affect your ability to meet the demands of
jobs other than the strength demands, that is, demands other
than sitting, standing, walking, lifting, carrying, pushing or
20 C.F.R. § Pt. 404, Subpt. P, App. 2; see also
Heckler v. Campbell, 461 U.S. 458, 468 (1983) (approving SSA’s
use of this grid).
limitations and is not disabled on the sole grounds of her or
framework for consideration of how much the individual's work
capability is further diminished . . . .”
20 C.F.R. § Pt. 404,
Subpt. P, App. 2, Rule 200.00(e)(2); Jordan v. Comm'r of Soc.
Sec., 548 F.3d 417, 424 (6th Cir. 2008); SSR 83-14, 1983 WL
31254, at *3 (S.S.A. January 1, 1983).
In such a circumstance,
the Sixth Circuit requires ALJs to consider “expert vocational
testimony or other similar evidence to establish that there are
jobs available in the national economy for a person with the
Abbott, 905 F.2d at 927 (quoting
Tucker v. Heckler, 776 F.2d 793, 795–96 (8th Cir. 1985)).
also consider a “claimant's disability; the reliability of the
vocational expert's testimony; the reliability of the claimant's
testimony; the distance claimant is capable of travelling to
engage in the assigned work; the isolated nature of the jobs;
[and] the types and availability of such work.”
F.3d at 904 (citing Hall, 837 F.2d at 275).
pulling, are considered nonexertional.”
entitlement analysis, the ALJ used the grid as a framework and
limitations, as well as his age and education, on his ability to
(R. at 546–52.)
The ALJ also considered the testimony of
a vocational expert who informed the ALJ that, based on the
limitations the ALJ provided in a hypothetical, Eastwood could
work one occupation — furniture rental consultant.
(R. at 552,
The vocational expert further explained that there
were approximately 400,000 jobs in existence nationally in this
occupation and 3,060 jobs available in Tennessee.
considering all of these factors, the ALJ found that, while
finding that Eastwood was not disabled.3
(R. at 551–52.)
The court notes Eastwood’s implicit suggestion that, in light of
how severely his nonexertional limitations erode at the light
work job base available to him, the ALJ should have placed
Eastwood in the sedentary work category and, therefore, found
(EFC No. 16 at 9–10.); see generally SSR 83-14,
1983 WL 31254, at *3 (S.S.A. January 1, 1983) (“[A]n additional
exertional or nonexertional limitation may substantially reduce
a range of work to the extent that an individual is very close
to meeting a table rule which directs a conclusion of
‘Disabled.’”); Jon C. Dubin, Overcoming Gridlock: Campbell After
a Quarter-Century and Bureaucratically Rational Gap-Filling in
Administration's Disability Programs, 62 Admin. L. Rev. 937
However, Eastwood has not provided, and the court has
not found, any Sixth Circuit case law to support this
Eastwood takes issue with this finding for three reasons.
First, Eastwood argues that one occupation does not amount to a
significant amount of work.
(ECF No. 16 at 9–10.)
regionally and nationally is also not a significant amount of
Finally, Eastwood contends that, since he cannot
drive long distances, (R. at 193, 572), the ALJ should have
demonstrated that there were furniture rental consultant jobs
available in the region near him.
Addressing Eastwood’s first argument, the fact that the ALJ
The Sixth Circuit has recognized that a
single occupation can provide a significant amount of work.
Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 579 (6th Cir.
occupation was a substantial amount of work).
Thus, the ALJ did
not err in relying on the existence of only one occupation when
deciding that Eastwood could work jobs that exist in significant
Eastwood alleges that the number of jobs available is not enough
to be significant, “[t]here is no ‘magic number’ that qualifies
as ‘significant’ for purposes of satisfying this prong of the
Cunningham v. Astrue, 360 F. App'x 606,
discussed above, the ALJ decides what is significant by applying
a multitude of factors and, as a result, the amount that is
significant varies widely from case to case.
819 F.3d at 906 (finding 200 regional jobs and 6,000 national
jobs sufficient), and Ward v. Berryhill, No. 16-1169, 2017 WL
2465180, at *3 (W.D. Tenn. June 7, 2017) (finding 2,500 regional
(W.D. Ky. June 6, 2017) (finding 1,100 regional jobs and 110,000
Dictionary of Occupational Titles), and Mackins v. Astrue, 655
F. Supp. 2d 770, 773 (W.D. Ky. 2009) (finding 900 regional jobs
and 60,000 national jobs insufficient due to the obsolete nature
of the work).
Eastwood has not raised any arguments that call
Thus, the court finds that substantial evidence supports the
ALJ’s decision that 3,060 regional jobs and 400,000 national
jobs met the statutory requirements for a significant number of
In response to Eastwood’s final argument, it is correct
that when a claimant presents a physical inability to drive,
driving becomes an intrinsic factor that an ALJ should consider
pertinent to the determination of whether there is a significant
amount of work available.
See Simons v. Barnhart, 114 F. App'x
727, 735 (6th Cir. 2004); Ward, No. 16-1169, 2017 WL 2465180, at
Nevertheless, regardless of the nature of the claimant’s
available in a convenient location for the claimant.
§ 404.1566 (“It does not matter whether . . . [w]ork exists in
the immediate area in which you live.”).
Furthermore, when a
claimant admits that she or he can drive at all, courts treat
driving as an extrinsic factor that an ALJ does not have to
See Simons, 114 F. App'x at 735; Ward, No. 16-1169,
2017 WL 2465180, at *3.
a short distance.
Here, Eastwood admitted he could drive
(ECF No. 16 at 10; R. at 193, 572.)
result, Eastwood’s limited ability to drive does not undermine
the ALJ’s finding that there was substantial work available to
Therefore, the court upholds the ALJ’s conclusion that
numbers in the national economy.
Accordingly, the Commissioner’s decision that Eastwood is not
disabled is affirmed.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
September 15, 2017
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