Ward v. Colvin

Filing 20

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Judge J. Daniel Breen on 6/7/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
PATRICIA ANN WARD,
Plaintiff,
v.

No. 16-1169

NANCY A. BERRYHILL, Commissioner
of Social Security,1
Defendant.
______________________________________________________________________________
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
______________________________________________________________________________
I. Introduction and Procedural Background
Before the Court is the Social Security claim of Plaintiff, Patricia Ann Ward, pursuant to
42 U.S.C. § 405(g), seeking judicial review of the final decision of Nancy A. Berryhill,
Commissioner of Social Security (“Commissioner”), denying her claim for disability insurance
benefits. On March 29, 2013, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits, alleging a disability onset date of January 5, 2013. (Docket Entry
(“D.E.”) 13-3 at PageID 47.) Her claim was initially denied on June 27, 2013, and again on
August 26, 2013, following reconsideration. (Id.) On September 10, 2013, Ward requested a
hearing before an Administrative Law Judge (“ALJ”), which was conducted on November 12,
2014. (Id.) The ALJ, Marty S. Turner, issued an unfavorable decision on December 4, 2014.
(Id.) Plaintiff appealed the ALJ’s decision, and that ruling became the final decision of the
Commissioner when the Appeals Council denied Claimant’s appeal on April 21, 2016. (Id. at
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Nancy A. Berryhill is currently the acting Commissioner of Social Security, replacing
Carolyn W. Colvin.

PageID 37). She later timely filed this action seeking the Court’s review of the ALJ’s decision.
(D.E. 1.)
II. Standard of Review
A federal court’s review of the Social Security Administration’s denial of a claim for
benefits “is limited to determining whether it is supported by substantial evidence and was made
pursuant to proper legal standards.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014). “Substantial evidence requires 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.” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016)
(internal quotation marks omitted). “If substantial evidence supports the ALJ’s decision, then
reversal is unwarranted even if substantial evidence backs the opposite conclusion.” Turk v.
Comm’r of Soc. Sec., 647 F. App’x 638, 639 (6th Cir. 2016) (citing Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007)).
To establish eligibility for disability benefits, an applicant must show an inability to
engage in any substantial gainful activity resulting from a long-lasting impairment. 42 U.S.C.
§§ 1382c(a)(3)(A) & 423(d)(1)(A); Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 903 (6th Cir.
2016). The Social Security Act (the “Act”) places the burden of establishing entitlement to
benefits on a claimant. Oliver v. Comm’r of Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).
Thus, a claimant bears the burden of proving that she has a disability within the meaning of the
Act. Siebert v. Comm’r of Soc. Sec., 105 F. App’x 744, 746 (6th Cir. 2004) (citing Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). If a claimant meets this burden, the
Commissioner is charged with demonstrating that employment is available despite her disability
and background. Born v. Sec’y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir. 1990).

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The Social Security Administration employs a five-step sequential inquiry when processing
applications for disability benefits:
(1) Does the claimant show she is not engaged in substantial gainful activity? (2)
Does the claimant have a severe impairment? (3) Does the impairment meet any
one of the items on a list of impairments presumed severe enough to render one
disabled? (4) Can the claimant perform her past jobs? (5) Can the claimant
perform other jobs that exist in significant numbers in the national economy?
Taskila, 819 F.3d at 903 (internal quotation marks omitted).
III. The Administrative Decision
On December 4, 2014, the ALJ issued a decision denying Ward’s application for
disability insurance benefits. (D.E. 13-3 at PageID 47.) ALJ Turner determined that Claimant
met the insured status requirements of the SSA and that she had not engaged in substantial
gainful activity since the alleged onset date, January 5, 2013. (Id. at PageID 49.) He further
found that her regional pain syndrome (“RPS”) and prior arthropathies were severe impairments
within the meaning of 20 C.F.R. 404.1520(c). (Id.) However, the ALJ concluded that Plaintiff’s
impairments were not severe enough to “meet or medically equal the criteria of an impairment
listed in 20 C.F.R Part 404, Subpart P, Appendix 1.” (Id.) Next, ALJ Turner assessed that Ward
had the residual functional capacity (“RFC”) to perform light work, with limitations of lifting
one pound with her non-dominant upper extremity. (Id. at PageID 49-50.) He further found that
she could not push/pull or handle or finger with her non-dominant upper extremity but that she
could use it for guidance. (Id. at PageID 50.) Based on these findings, the ALJ determined that
Plaintiff was unable to perform her past relevant work, which included jobs as a sitter, cook, data
entry clerk, and nurse assistant. (Id. at PageID 52.)
The ALJ then considered whether there were significant jobs in the national economy
that Claimant could perform. (D.E. 13-3 at PageID 52.) In making this determination, ALJ

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Turner consulted a vocational expert (“VE”). The judge asked the VE whether, in light of
Ward’s RFC as well as her age, education, and past work experience, there were “jobs in the
national economy that [Claimant] could perform.” (Id. at PageID 73.) In response, the VE
stated that Ward could perform the work of a gate guard, with 5,000 jobs nationwide and 1,000
in Tennessee; survey worker, with 205,000 jobs nationwide and 800 in Tennessee; and mail
clerk, with 120,000 jobs nationwide and 700 in Tennessee. (Id. at PageID 73-75.) The ALJ
concluded that “considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant [was] capable of making a successful adjustment to other work
that exists in significant numbers in the national economy.” (Id. at PageID 53.) Accordingly, the
judge made a finding that Plaintiff was not disabled. (Id.)
IV. Analysis
In the present action, Ward contends that the ALJ erred in concluding that the jobs of
gate guard, mail clerk, or survey worker exist in significant numbers in the national economy.
Under the Regulations, “work exists in the national economy when it exists in significant
numbers either in the region where [the claimant] live[s] or in several other regions of the
country.” 20 C.F.R. § 404.1566(a). There is no bright line boundary separating a “significant
number” from insignificant numbers of jobs. Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988).
What constitutes a significant number of jobs is to be determined on a case-by-case basis. Id. In
making its determination, the court should consider “the level of claimant’s disability; the
reliability of the [VE’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;
the types and availability of such work; and so on.” Id.; see also Born, 923 F.2d at 1174. These
factors are suggestions only; the ALJ is not required to explicitly consider each factor. Harmon

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v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999). “The decision should ultimately be left to the trial
judge’s common sense in weighing the statutory language as applied to a particular claimant’s
factual situation.” Hall, 837 F.2d at 275.
“[W]hen there is testimony that a significant number of jobs exists for which a claimant
is qualified, it is immaterial that this number is a small percentage of the total number of jobs in a
given area.” Hall, 837 F.2d at 275. The Regulations state that “[i]t does not matter whether . . .
(1) [w]ork exists in the immediate area in which you live; (2) [a] specific job vacancy exists for
[the claimant]; or (3) [the claimant] would be hired if [she] applied for work.” 20 C.F.R. §
416.966(a). “The Act, its legislative history and the regulations make it clear that the test is
whether work exists in the national economy, not in plaintiff’s neighborhood.” Harmon, 168
F.3d at 292.
Plaintiff avers that she lives in Jackson, Tennessee and cannot drive long distances due to
pain and swelling from her RPS. (D.E. 18 at PageID 445.) She asserts that there is no proof in
the record that any of the jobs identified by the VE are available in the area where she lives. (Id.)
She further argues that the VE did not specify other regions of the country where those jobs are
available. (Id.) Thus, she concludes, the ALJ’s decision was not supported by substantial
evidence. (Id.)
In Harmon v. Apfel, the plaintiff made a similar argument, which the Sixth Circuit
rejected. 168 F.3d 289 (6th Cir. 1999). In that case, a VE opined that there were 700,000 jobs
nationally and 700 jobs within a 75-mile radius of plaintiff’s home that she could perform. Id. at
291. On appeal, the claimant contended that her disability “prevent[ed] her from traveling to
most of those jobs and that inability to travel is a factor in determining whether [she was]
disabled within the meaning of the [SSA].” Id. Upon review, the court explained that the SSA

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required either that work exists in significant numbers in the region where an applicant lives or
in several regions of the country. Id. at 292 (citing 42 U.S.C. § 423(d)(2)(A)). With respect to
her claim that her disability affected her ability to travel to jobs that were available, the court
noted that “individual considerations extrinsic to the disability itself cannot enter into a finding
of disability.” Id. at 292-93 (citing Lopez Diaz v. Sec’y of Health, Educ. And Welfare, 585 F.2d
1137, 1140 (1st Cir. 1978) (“A person, otherwise able to work, is in effect offered a choice: he
can choose either to commute the distance to his job or he can move closer and avoid the
expense and inconvenience.”) In other words, while “travel to and from work is a factor to be
considered, it refers to intrinsic factors concerning plaintiff’s condition, not extrinsic factors such
as where plaintiff has chosen to live in relation to any identified regional jobs.” Id. at 292.
Despite recognizing and being “sympathetic to plaintiff’s plight, the law [was] clear that [the
court could] not base [its] decision on plaintiff’s argument.” Id. at 293.
The VE testified that there were 330,000 jobs nationwide and 2,500 in Tennessee in three
occupations that Ward is able to perform. Although enumerating exactly what constitutes a
significant number of jobs is a “difficult task,” other courts’ decisions support a finding that the
number of available jobs identified by the VE in this case is significant. See Taskila, 819 F.3d at
905 (finding 6,000 jobs nationally was significant); Harmon, 162 F.3d at 292 (concluding that
700 jobs regionally was significant where 700,000 jobs existed nationally); Bishop v. Shalala, 64
F.3d 662, at *2 (6th Cir. 1995) (unpublished table decision) (determining that 16,400 available
jobs was a significant number); Born, 923 F.2d at 1174 (finding that 1,350-1800 jobs in local
economy constituted a significant number). Additionally, Ward’s focus on her inability to travel
long distances is misplaced. The location Plaintiff has chosen to live in relation to available jobs
is an extrinsic factor, and is irrelevant to a disability determination. See Harmon, 168 F.3d at

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293. In sum, the VE’s testimony provided substantial evidence that Claimant is not disabled, and
the ALJ’s denial of her request for benefits was proper. See Ealy v. Comm’r of Soc. Sec., 594
F.3d 504, 512-13 (6th Cir. 2010) (“Substantial evidence may be produced through reliance on
the testimony of a vocational expert (VE) in response to a hypothetical question, but only if the
question accurately portrays [a claimant’s] individual physical and mental impairments.”)
(internal quotations and citation omitted).
V. Conclusion
Based on the foregoing and the record as a whole, the decision of the Commissioner is
AFFIRMED.
IT IS SO ORDERED this 7th day of June 2017.

s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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