Eastwood v. Commissioner of Social Security

Filing 21

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
WESTERN DIVISION
LESLIE C. EASTWOOD,

)
)
)
)
) No. 14-cv-01269-TMP
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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
(“Commissioner”)

denying

his

application

for

disability

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).
No. 20.)

(ECF

For the reasons set forth below, the decision of the

Commissioner is affirmed.

1

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.

I.

PROCEDURAL HISTORY

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.)

The Social

Security Administration (“SSA”) denied Eastwood’s application at
the initial level on October 20, 2006.
188.)

(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.)

Eastwood again

alleged disability beginning on May 5, 2006, this time due to
“rips and tears in shoulders” and heart disease.
The

SSA

denied

reconsideration.

the

second

application

(R. at 42–45, 54–57.)

(R. at 178.)

initially

and

upon

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
functional

capacity

(“RFC”)

to

perform

retained the residual
jobs

significant numbers in the national economy.

that

exist

in

(R. at 14–18.)

On

January 1, 2012, the SSA’s Appeals Council denied Eastwood’s
request for review.

(R. at 1.)

Eastwood then filed a complaint

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in this court, and the court remanded the case on October 31,
2012,

pursuant

to

sentence

four

of

further administrative proceedings.

42

U.S.C.

§

405(g)

(R. at 619–20.)

for

On January

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.)

On

April 25, 2013, the ALJ held a second hearing and, on June 11,
2013,

issued

disability.

a

decision

again

(R. at 540–79.)

finding

Eastwood

not

under

On August 4, 2014, the SSA’s

Appeals Counsel denied Eastwood’s request for review.
535–37.)

Therefore,

the

ALJ’s

decision for the Commissioner.
10,

2014,

Eastwood

filed

a

decision

(Id.)

the

instant

became

(R. at

the

final

Subsequently, on August
action.

(ECF

No.

1.)

Eastwood argues that the ALJ’s determination that Eastwood is
not disabled is not supported by substantial evidence because
the

ALJ

erred

in

determining

Eastwood

could

perform

existing in significant numbers in the national economy.

work
(ECF

No. 16 at 9–11.)
II.
A.

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

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the Commissioner of Social Security, with or without remanding
the cause for a rehearing.”
review
there

of
is

whether

the

Commissioner’s

substantial

the

42 U.S.C. § 405(g).
decision

evidence

Commissioner

making the decision.

used

is

limited

to

support

the

the

proper

legal

Judicial
to

whether

decision

and

criteria

in

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).

Substantial

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.”

Kirk v.

Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In

determining

whether

substantial

evidence

exists,

the

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,
388

(6th

support

Cir.
the

1984)).

If

Commissioner’s

affirm

that

decision

record

could

support

and
a

substantial
decision,

“may

not

decision

the

evidence

however,
even

the

inquire

other

way.”

is

found

to

court

must

whether

the

Barker

v.

Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v.

-4-

Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
1989)).
resolve

Similarly, the court may “not try the case de novo,
conflicts

credibility.”

in

the

evidence

or

decide

questions

of

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)).

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).
B.

The Five-Step Analysis
The Act defines disability as 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

42 U.S.C. § 423(d)(1).

period

of

not

less

than

12

months.”

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

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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
the country.
Under

the

Act,

the

claimant

bears

the

establishing an entitlement to benefits.

ultimate

burden

of

Oliver v. Comm’r of

Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).

The initial

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.
2014).
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
Regulations.

See 20 C.F.R. §§ 404.1520, 416.920.

First, the

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.
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20

C.F.R.

§§

404.1520(a)(4)(ii),

416.920(a)(5)(ii).

In

the

third step, the ALJ determines whether the impairment meets or
equals

the

severity

criteria

set

forth

in

the

Listing

Impairments contained in the Social Security Regulations.
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d).

of
See
If

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
impairment,
analysis
return

and
to

the

ALJ

must

determine
any

past

undertake

whether

the

relevant

the

fourth

claimant

work.

See

step

has
20

404.1520(a)(4)(iv), 404.1520(e), 416.920(a)(4)(iv).

the

in
RFC

C.F.R.

the
to
§§

If the ALJ

determines that the claimant can return to past relevant work,
then a finding of not disabled must be entered.

Id.

But if the

ALJ finds the claimant unable to perform past relevant work,
then

at

the

fifth

step

the

ALJ

must

determine

whether

the

claimant can perform other work existing in significant numbers
in the national economy.
404.1520(g)(1),

See 20 C.F.R. §§ 404.1520(a)(4)(v),

416.960(c)(1)-(2).

Further

review

is

not

necessary if it is determined that an individual is not disabled
at

any

point

in

this

sequential

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

-7-

analysis.

C.

The ALJ’s Step Five Determination
Eastwood argues

that the ALJ erred in finding

he could

perform work existing in significant numbers in the national
economy.

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
to

transform

the

significant-numbers

inquiry

from

a

fact

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.”).
When

an

ALJ

reaches

the

fifth

step

of

the

disability

entitlement analysis, the ALJ examines how the claimant’s age,
education, and work experience affect that claimant’s ability to
work.

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
assessing

what

effect

these

factors

and

the

claimant’s

exertional limitations2 have on the number of jobs available to a

2

Exertional limitations “affect [a claimant’s] ability to meet
the strength demands of jobs.”
20 C.F.R. §§ 404.1569a(a),
416.969a(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
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claimant.

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).
If

a

claimant

has

both

exertional

and

nonexertional

limitations and is not disabled on the sole grounds of her or
his

exertional

limitations,

the

ALJ

uses

the

grid

as

“a

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
claimant's characteristics.”

Abbott, 905 F.2d at 927 (quoting

Tucker v. Heckler, 776 F.2d 793, 795–96 (8th Cir. 1985)).

ALJs

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.”
-9-

Id.

Taskila, 819

Upon

reaching

the

fifth

step

of

Eastwood’s

disability

entitlement analysis, the ALJ used the grid as a framework and
considered

the

effect

of

all

of

Eastwood’s

various

physical

limitations, as well as his age and education, on his ability to
work.

(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.
576–578.)

(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.

(Id.)

After

considering all of these factors, the ALJ found that, while
Eastwood
available

could
to

not

return

Eastwood

in

to

his

prior

significant

finding that Eastwood was not disabled.3

3

work,
numbers,

work

remained

mandating

a

(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
him disabled.
(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
Mass
Justice
Adjudication
in
the
Social
Security
Administration's Disability Programs, 62 Admin. L. Rev. 937
(2010).
However, Eastwood has not provided, and the court has
not found, any Sixth Circuit case law to support this
proposition.
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Eastwood takes issue with this finding for three reasons.
First, Eastwood argues that one occupation does not amount to a
significant amount of work.
maintains

that

the

(ECF No. 16 at 9–10.)

quantity

of

jobs

in

this

Second, he
occupation

regionally and nationally is also not a significant amount of
work.

(Id.)

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.

(Id.)

Addressing Eastwood’s first argument, the fact that the ALJ
found

only

one

occupation

disability status.

for

Eastwood

does

not

alter

his

The Sixth Circuit has recognized that a

single occupation can provide a significant amount of work.

See

Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 579 (6th Cir.
2009)

(finding

the

existence

of

2,000

jobs

occupation was a substantial amount of work).

in

a

single

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
numbers.
With

regard

to

Eastwood’s

second

argument,

although

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
disability inquiry.”

Cunningham v. Astrue, 360 F. App'x 606,

-11-

615

(6th

Cir.

2010)

(quoting

Hall,

837

F.2d

at

275).

As

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.

Compare Taskila,

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
jobs

and

330,000

Berryhill,

No.

national

jobs

sufficient),

4:16-CV-00106-HBB,

2017

WL

with

Johnson

2454326,

at

v.

*6–10

(W.D. Ky. June 6, 2017) (finding 1,100 regional jobs and 110,000
national

jobs

insufficient

due

to

the

unreliability

of

the

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

into

the

question

testimony

about

the

reliability

of

position

rental

of

the

vocational
furniture

expert’s

consultant.

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
jobs.
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

-12-

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
*3.

Nevertheless, regardless of the nature of the claimant’s

limitations,

an

ALJ

has

no

duty

to

establish

that

available in a convenient location for the claimant.

jobs

are

20 C.F.R.

§ 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
consider.

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.)

As a

result, Eastwood’s limited ability to drive does not undermine
the ALJ’s finding that there was substantial work available to
him.

Therefore, the court upholds the ALJ’s conclusion that

Eastwood

could

perform

other

work

existing

in

significant

numbers in the national economy.
III. CONCLUSION
For

the

reasons

described

supports

the

determination

existing

in

significant

that

numbers

above,

substantial

Eastwood
in

the

can

evidence

perform

national

work

economy.

Accordingly, the Commissioner’s decision that Eastwood is not
disabled is affirmed.

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IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
September 15, 2017
Date

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