Smith v. Colvin

Filing 16

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 1/10/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BETTY A. SMITH,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No: 1:16-cv-01317-STA-cgc

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
Plaintiff Betty A. Smith filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her application for disability insurance benefits under
Title II of the Social Security Act (“Act”). Plaintiff’s application was denied initially and upon
reconsideration by the Social Security Administration. Plaintiff then requested a hearing before
an administrative law judge (“ALJ”), which was held on July 29, 2015. On August 19, 2015, the
ALJ issued an unfavorable decision. The Appeals Council denied Plaintiff’s request for review.
Thus, the decision of the ALJ became the Commissioner’s final decision, and Plaintiff filed an
appeal in this Court. For the reasons set forth below, the decision of the Commissioner is
AFFIRMED.
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 was a party. “The court shall have the
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). The Court’s review is limited to determining

whether there is substantial evidence to support the Commissioner’s decision and whether the
correct legal standards were applied. See Blakley v. Comm’r Of Soc. Sec., 581 F.3d 399, 405 (6th
Cir. 2009) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)). It is “more than a mere scintilla of evidence, but less than a preponderance.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
The Commissioner, not the Court, is charged with the duty to weigh the evidence, to
make credibility determinations and resolve material conflicts in the testimony, and to decide the
case accordingly. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (“When deciding
under 42 U.S.C. § 405(g) whether substantial evidence supports the ALJ’s decision, we do not
try the case de novo, resolve conflicts in evidence, or decide questions of credibility.”). When
substantial evidence supports the Commissioner’s determination, it is conclusive, even if
substantial evidence also supports the opposite conclusion. See Rogers, 486 F.3d at 241 (stating
that it is not necessary that the Court agree with the Commissioner as long as the decision is
substantially supported by the record).
Plaintiff was born on March 4, 1966. She has a high school education and past relevant
work as an assembler and clerk. She alleges disability due to poor circulation, varicose veins,
overall body pain, arthritis, depression, and a learning disability. Her amended onset date is
November 10, 2011.
The ALJ made the following findings: (1) Plaintiff last met the insured status
requirements on March 31, 2012; (2) Plaintiff has not engaged in substantial gainful activity
since the alleged onset date; (3) since the alleged onset date, Plaintiff has had the following

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severe impairments: venous varicosities, status post stripping, rheumatoid arthritis, math
disorder, reading disorder, and obesity; but she does not have impairments, either alone or in
combination, that meet or equal the requirements of any listed impairment contained in 20 C.F.R.
pt. 404, subpt. P, app. 1 of the listing of impairments; (5) on the date last insured, Plaintiff
retained the residual functional capacity to perform sedentary work except that she could lift and
carry up to ten pounds occasionally and push and pull up to ten pounds occasionally; she could
stand or walk up to two out of eight hours and sit up to six of eight hours with normal breaks; she
needed a sit/stand option every hour; she could occasionally climb stairs or ramps but never
climb ropes, ladders, or scaffolds; she could occasionally stoop, kneel, crouch, and crawl; she
could occasionally perform overhead work and use foot controls; there could be no written
instructions, no complex verbal instructions, and no work requiring math skills; her work was
limited to simple, routine work, involving simple, work-related decisions with few, if any,
workplace changes; she had no social deficits; (6) Plaintiff was unable to perform any past
relevant work; (7) on the date last insured, Plaintiff was a younger individual with a high school
education;1 (8) transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules (“the Grids”) as a framework supports a finding that
Plaintiff is not disabled whether or not she had transferable skills; (9) through the date last
insured, considering Plaintiff’s age, education, work experience, and residual functional
capacity, there were jobs existing in significant numbers in the national economy that Plaintiff
could perform; (10) Plaintiff was not under a disability within the meaning of the Act at any time
from the alleged onset date through the date last insured. R. 23 - 34.

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Plaintiff’s education is discussed below.
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The Social Security Act defines disability as the inability to engage in substantial gainful
activity. 42 U.S.C. § 423(d)(1). The claimant bears the ultimate burden of establishing an
entitlement to benefits. See Oliver v. Comm’r of Soc. Sec., 415 F. App’x 681, 682 (6th Cir.
2011) (citing Wyatt v. Sec’y Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992)). The
initial burden of going forward is on the claimant to show that he or she is disabled from
engaging in his or her former employment; the burden of going forward then shifts to the
Commissioner to demonstrate the existence of available employment compatible with the
claimant’s disability and background. Id. (“The claimant bears the burden of proof during the
first four steps, but the burden shifts to the Commissioner at step five.”)
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. An individual 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 an
individual 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.
4. An individual who can perform work that he or she has done in the past will not be
found to be disabled.
5. If an individual cannot perform his or her 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.
See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (describing the five-step
sequential process for claims of disability).
Further review is not necessary if it is determined that an individual is not disabled at any
point in this sequential analysis. 20 C.F.R. § 404.1520(a).
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Here, the sequential analysis

proceeded to the fifth step with a finding that, although Plaintiff cannot perform her past relevant
work, there are a significant number of jobs existing in the national economy that she can
perform. Plaintiff argues that substantial evidence does not support the ALJ’s findings. She
specifically argues that the ALJ erred in applying Grid Rule 201.21 in making his decision
instead of Grid Rule 201.17. According to Plaintiff, the ALJ incorrectly found that she “had at
least a high school education”2 (which led to a finding of not disabled under Grid Rule 201.21)
when she was actually illiterate as that term is defined in 20 C.F.R. §404.1564 (which would
have led to a finding of disabled under Grid Rule 201.17).3 The Court is not persuaded by
Plaintiff’s arguments.
Grid Rule 201.21 provides that a claimant who
- is a younger individual age 45-49,
- has a high school education,
- has skilled or semiskilled work experience but with no transferable skills, and
- can perform sedentary work

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“A high school education and above” is defined as:
High school education and above means abilities in reasoning, arithmetic, and language
skills acquired through formal schooling at a 12th grade level or above.
We generally consider that someone with these educational abilities can do semiskilled
through skilled work.

20 C.F.R. § 404.1564(b)(4).
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“Illiterate” is defined as:
The inability to read or write. We consider someone illiterate if the person cannot read or
write a simple message such as instructions or inventory lists even though the person can
sign his or her name. Generally, an illiterate person has had little or no formal schooling.

20 C.F.R. § 404.1564(b)(1).
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is not disabled. 20 C.F.R. pt. 404, subpt. P, app. 2, tbl. 1, Rule 201.21. Grid Rule 201.17,
provides that a claimant who
- is a younger individual age 45-49,
- is illiterate or unable to communicate in English,
- has unskilled previous work experience or no past relevant work, and
- can perform sedentary work
is disabled. 20 C.F.R. pt. 404, subpt. P, app. 2, tbl. 1, Rule 201.17. As noted by Plaintiff, Grid
Rule 201.21 applies to an individual with a high school education while Grid Rule 201.17
applies to an individual who is illiterate as defined in Social Security’s Education Regulation.
In the present case, the ALJ applied Grid Rule 201.21, which directs a finding of not
disabled. Plaintiff argues that he should have applied Grid Rule 201.17 instead, which according
to Plaintiff, would direct a finding of disabled. Plaintiff argues that the ALJ incorrectly found
that she has a high school education in that her numerical grade level does not accurately reflect
her educational abilities. See 20 C.F.R. § 404.1564(b) (providing that “the numerical grade level
that you completed in school may not represent your actual educational abilities. These may be
higher or lower. . . . The term education also includes how well you are able to communicate in
English since this ability is often acquired or improved by education.”) In support of her
argument, Plaintiff points to the ALJ’s finding that her reading and math disorders are severe
impairments and the restriction that she work with “no written instructions, no complex verbal
instructions, and no work requiring math skills.” R. 23, 27. Plaintiff argues that this severe
impairment finding and the restriction describe an individual who is illiterate rather than one
with high school education.

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The ALJ found that Plaintiff had a high school education, in part, based on the previous
ALJ’s finding in November 2011 concerning Plaintiff’s educational level. R. 32, 118 (Finding
No. 8: “The claimant has at least a high school education and is able to communicate in
English.”) Plaintiff has pointed to no evidence in the record that her reading and writing ability
is worse than it was at the time of the prior determination. Thus, the present ALJ was bound by
the prior ALJ’s finding under Drummond v. Secy. of Health & Human Servs., 126 F.3d 837, 842
(6th Cir. 1997) (holding that, absent evidence that a claimant’s condition has improved, findings
issued by an ALJ as part of a prior disability determination are binding on an ALJ in a
subsequent proceeding). As there was no evidence of a change in circumstances in Plaintiff’s
condition, the ALJ properly determined that he was bound by the prior decision regarding her
educational level. See at *21 (Smith v. Comm’r of Soc. Sec., 2015 WL 899207 E.D. Mich. Mar.
3, 2015) (determining that the ALJ was bound by a prior ALJ finding that the claimant was
literate because there was “no evidence that his condition has in fact changed or worsened since
the first ALJ decision”).
Additionally, Plaintiff did not submit school records or other testing to show that she is
functionally illiterate. She testified that she was not good at reading or writing but never testified
that she was unable to perform these tasks. She graduated from high school, was able to
complete the written test to obtain her driver’s license, performed semi-skilled work as a produce
clerk, and obtained both semi-skilled and unskilled jobs. She also performed other activities such
as household chores, going out by herself, and grocery shopping, which indicates that she has the
ability to function on her own, despite any reading or math deficiencies. The ALJ accounted for
her reading and math difficulties in his residual functional capacity finding, and substantial
evidence supports his finding regarding her educational level. See Caudill v. Comm’r of Soc.

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Sec., 424 Fed. App’x 510, 516 (6th Cir. 2011) (finding the claimant to be literate despite
evidence that he had a second grade reading level and was diagnosed with a developmental
reading disorder). 4
At step five, the Commissioner has the burden to provide “evidence about the existence
of work in the national economy that [a claimant] can do given [his or her] residual functional
capacity . . . age, education, and work experience.” 20 C.F.R. § 404.1520(g) (internal citations
omitted). If a claimant’s residual functional capacity and step five characteristics (age, education,
and work experience) correspond precisely to a Grid Rule, the Grid Rule is used to direct a
finding of disabled or not disabled. 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00. When a
claimant’s ability to perform the full range of work at a specific exertional level is significantly
diminished by an impairment(s) not manifested as a limitation on strength, the fact-finder must
use the Grids as a framework and obtain vocational expert testimony to make a correct decision,
which was done in this case. E.g., Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990)
(collecting cases) (cited in Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 424 (6th Cir. 2008)).
Here, the vocational expert was asked a hypothetical question regarding an individual of
Plaintiff’s age, education, past relevant work, and residual functional capacity. The vocational
expert responded that such an individual could perform the jobs of lens inserter, small product
sorter, and small production inspector and that those jobs exist in significant numbers in the
national economy. R. 79. As the hypothetical question to the vocational expert included those
impairments the ALJ found credible and excluded those he discredited for legally sufficient
reasons, the vocational expert’s testimony that Plaintiff could perform work existing in
significant numbers in the national economy was substantial evidence in support of the ALJ’s
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Because substantial evidence supports the ALJ’s use of Grid Rule 201.21 instead of Grid Rule 201.17, it is not
necessary for the Court to address Plaintiff’s arguments concerning the transferability of skills and the use of the
term “unskilled” in Grid Rule 201.17.

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determination. See Winslow v. Comm’r of Soc. Sec., 566 F. App’x 418, 421 (6th Cir. 2014) (“The
record reflects, however, that the hypothetical questions were proper because the ALJ
incorporated all of the functional limitations that she deemed credible.”).
Because substantial evidence supports the ALJ’s determination that Plaintiff was not
disabled, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: January 10, 2018.

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