Willis v. Commissioner of Social Security Administration
Filing
29
ORDER reversing the decision of the Commissioner and remanding case for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). Signed by Chief Magistrate Judge Tu M. Pham on 4/29/2021. (pcr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
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MELISSA WILLIS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
No. 20-cv-1066-TMP
ORDER REVERSING THE COMMISSIONER’S DECISION
Before the court is plaintiff Melissa Willis’s appeal from a
final decision denying her application for disability insurance
under Title II of the Social Security Act (“the Act”), 42 U.S.C.
§§ 401-34, filed on March 20, 2020. (ECF No. 1.) The parties have
consented to the jurisdiction of the United States magistrate judge
under 28 U.S.C. § 636(c). (ECF No. 13.) For the reasons below, the
Commissioner’s
decision
is
REVERSED
and
remanded
pursuant
to
sentence four of 42 U.S.C. § 405(g).
I.
FINDINGS OF FACT
Plaintiff Melissa Willis applied for disability insurance
benefits under Title II of the Act on January 20, 2017. (R. at 20,
189-95.) Willis’s application alleged that she has been disabled
since November 27, 2016. (R. at 189.) According to Willis, she
suffers from hypertension, degenerative disc disease, impingement
syndrome of her left shoulder, osteoarthritis, and obesity. (ECF
No. 22 at 2.) Willis’s application was denied initially on March
21,
2017,
and
upon
reconsideration
by
the
Social
Security
Administration (“SSA”) on October 6, 2017. (R. at 62-72, 89.) At
Willis's request, a hearing was held before an Administrative Law
Judge (“ALJ”) on December 12, 2018. (R. at 38, 122.) Willis and
vocational expert David Boatner, M.Ed., testified at the hearing.
(R. at 39.)
During the hearing, Willis testified that she has suffered
back injuries that have caused nerve problems in her lower back
and legs, at least three of which occurred at work and required
surgery. (R. at 42, 45-46.) Additionally, she testified that she
has arthritis in various parts of her body and that her injuries
have prevented her from being employed. (R. at 42-43.) She is
currently taking Flexeril (a muscle relaxer), Tramadol (a pain
reliever), and Lasix (for her joint swelling). (R. at 48-49, 5556.) A side effect to her Lasix is that she has to go to the
bathroom approximately every fifteen or twenty minutes. (R. at
53.) According to Willis, she has a restriction on her back such
that she can lift no more than twenty-five pounds from the floor,
no more than twenty pounds with her shoulder, and no more than
five pounds over her head. (R. at 43.) On questioning from her
attorney, Willis testified that she can occasionally pick up
twenty-five pounds but that she can only lift that weight “maybe
- 2 -
three” times a day. (R. at 47.) She has trouble bending over
because of her back and legs. (R. at 47-48.) Because her legs and
ankles are swollen, she testified that she cannot walk the length
of a city block. (R. at 48-49.) She testified that she cannot reach
overhead with her left shoulder and that she can hardly put any
weight on it because when she picks things up she feels a “real
sharp pain, like, burning, sharp sensation.” (R. at 51-52.) Because
of her pain, her granddaughter helps her once a week with cleaning
and housework. (R. at 53.)
She testified that she has worked in warehouses where she was
asked to lift at least seventy pounds for her entire career. (R.
at 43.) She has since attempted to obtain office work but has
consistently been denied any opportunities because she does not
have any training. (R. at 43-44.) She testified that she has also
struggled to find employment because of her medications, which
cause her to “just fall asleep during the day” and cause her to
“go to the bathroom a lot.” (R. at 44.) She sleeps only an hour a
night, which she testified causes her to take “a couple” thirtyminute naps during the day. (R. at 55.)
Boatner testified at the hearing that, according to the
Dictionary of Occupational Titles (“DOT”), Willis’s prior work
experience included roles as a warehouse worker
(an unskilled job
requiring a medium level of strength) and as a shipping clerk (a
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skilled job requiring medium strength). (R. at 55-56.) The ALJ
posed a hypothetical for Boatner, asking him
to assume a hypothetical individual the claimant’s age,
education, and the past jobs [] described. Further
assume, she’s limited to the light exertional level, no
ladders, ropes, scaffolds, or hazards, the right upper
extremity, only occasional overhead reaching, and the –
I’m sorry, the left upper extremity, only occasional
overhead reaching of the left upper extremity, only
occasional push/pull. Can that hypothetical individual
perform any of her past work as actually performed or
generally performed?
(R. at 57.) Boatner testified that such an individual could not
work as either a warehouse worker or a shipping clerk, but that
the individual could work about 800 different unskilled, light
level
jobs.
(R.
“tester/inspector,”
at
58.)
Boatner
specifically
“injection-molding-machine
identified
tender,”
and
“laundry sorter” as jobs that the hypothetical individual could
perform. (R. at 58.) Boatner testified that this assessment was
consistent with the DOT. (R. at 58.)
On cross-examination, counsel for Willis asked Boatner if
these jobs required using both hands, to which Boatner testified
that “[i]f a person is limited to occasional use of either upper
extremity, it would rule out the occupational base of unskilled,
light job titles.” (R. at 59.) Counsel for Willis then asked if
any of these jobs required the ability to stay on task and if a
worker would be able to keep these jobs if he or she was required
to leave his or her workstation every thirty minutes throughout
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the day. (R. at 59.) Boatner testified that all of these jobs
require acute concentration and that a worker would likely be
unable to maintain employment if he or she were required to leave
his or her workstation every thirty minutes. (R. at 59-60.)
According to Boatner, the jobs all require a combination of
standing and walking. (R. at 60.) As a result, the worker would
not be able to perform the jobs if he or she could not stand for
more than half of the time. (R. at 60.)
After considering the record and the testimony given at the
hearing, the ALJ used the five-step analysis to conclude that
Willis was not disabled from November 27, 2016, through the date
of his decision. (R. at 30.) At the first step, the ALJ found that
Willis had not “engaged in substantial gainful activity since
November 27, 2016[.]” (R. at 22.) At the second step, the ALJ found
that
Willis
degenerative
suffers
disc
from
disease
the
of
following
the
lumbar
severe
spine,
impairments:
impingement
syndrome of the left shoulder, osteoarthritis, and obesity. (R. at
22.) In determining Willis’s severe impairments, the ALJ also
considered that Willis has been assessed with hypertension but
that this condition is “well-controlled with medication” and thus
non-severe, and that she has been treated for cardiomegaly since
August 2016 but that this is also “controlled with medication
management
treatment”
and
does
“not
require
any
specialized
cardiovascular related medical care,” making this condition non- 5 -
severe. (R. at 23.) The ALJ also noted she has had minimal
treatment for her alleged asthma and chronic obstructive pulmonary
disease and that physical examinations have not shown any severe
impairments
or
limitations
stemming
from
her
carpal
tunnel
syndrome. (R. at 23.) Additionally, the ALJ considered that Willis
has been treated for a generalized anxiety disorder but found that
it “does not cause more than minimal limitation in [Willis’s]
ability to perform basic mental work activities and is therefore
non-severe.” (R. at 24.)
At the third step, the ALJ opined that Willis's impairments
(or any combination thereof) do not meet or medically equal one of
the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (R. at 25.) Accordingly, the ALJ had to then determine whether
Willis
retained
the
residual
functional
capacity
(“RFC”)
to
perform past relevant work or could adjust to other work. The ALJ
found that:
[Willis] has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: no ladders, ropes, scaffolds or
hazards; the left extremity only occasional overhead
reaching and occasional push/pull.
(R. at 27.) In making this determination, the ALJ “considered all
symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence.” (R. at 26.) The ALJ thus found that Willis’s
alleged severe limitations were not supported by the record and
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noted that the restrictions contained in her medical files were
“consistent with light work activity.”1 (R. at 26-27.)
At Step Four, the ALJ found that Willis was unable to perform
any of her past relevant work. (R. at 29.) Next, in evaluating
Step Five, the ALJ considered that Willis has at least a high
school education and she is closely approaching advanced age to
find that “there are jobs that exist in significant numbers in the
national
economy
that
[Willis]
can
perform.”2
(R.
at
29.)
Specifically, the ALJ found that Willis could enter the workforce
as a tester inspector, an injection molding machine tender, or a
laundry sorter. (R. at 31.) As such, on February 22, 2019, the ALJ
entered a decision denying Willis's request for benefits. (R. at
30-31.) On January 13, 2020, the SSA's Appeals Council denied
Willis's request for review. (R. at 1.) The ALJ's decision then
became the final decision of the Commissioner. (R. at 1.)
1The
ALJ considered medical records from her surgery on her left
shoulder in February 2016, her physical therapy with Sports
Orthopedics and Spine in March 2016, a consultative examination by
Dr. Donita Keown, M.D., in August 2017, a physical examination by
Lauderdale Community Hospital in November 2017, an electromyogram
and physical examination at Bingham Nerve and Muscle in December
2017 and August 2018, an appointment at the Campbell Clinic in
September 2018, treatment records at Ripley Medical Clinic in May,
September, October, and December 2018, her obesity, and reports by
Disability Determination Section (“DDS”) medical consultants. (R.
at 26-29.)
2Willis
testified at the hearing that she completed the eleventh
grade and that she earned her General Equivalency Diploma (“GED”)
in either 1994 or 1995. (R. at 45.) Willis was 52 years old at the
time of the hearing. (R. at 45.)
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On March 20, 2020, Willis filed the instant action. (ECF No.
1.) In her brief filed on January 8, 2021, Willis argues that the
ALJ
did
not
have
substantial
evidence
to
support
his
RFC
determination and that the ALJ disregarded the vocational expert’s
opinion on cross-examination that Willis was unable to perform any
work when her physical limitations are taken into account. (ECF
No. 22 at 7-9.) The Commissioner filed a response on March 9, 2021,
arguing that the ALJ had substantial justification to support his
decision because it was based on a thorough review of Willis’s
medical history and he incorporated an opinion by the vocational
expert that was based on a hypothetical that was consistent with
objective medical evidence. (ECF No. 25 at 6-12.) On March 30,
2021, Willis filed a reply, arguing that the ALJ “stopped short of
including the evidence presented at trial and in the record” in
his analysis. (ECF No. 28 at 2.)
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 the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the
- 8 -
Commissioner's decision is limited to whether there is substantial
evidence to support the decision and whether the Commissioner used
the proper legal criteria in making the decision. Id.; Cardew v.
Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir. 2018); 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 Cir.
1984)).
If
substantial
Commissioner's
decision,
evidence
is
found
to
support
the
however,
the
court
must
affirm
that
decision and “may not even inquire whether the record could support
a decision the other way.” Barker v. 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. 1989)). Similarly, the court may not
try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d
- 9 -
709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007)). Rather, the Commissioner, not the court, is
charged with the duty to weigh the evidence, to make credibility
determinations,
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).
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 period of not less than 12 months.” 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 the country.
Under the Act, the claimant bears the ultimate burden of
establishing an entitlement to benefits. Oliver v. Comm'r of Soc.
Sec., 415 F. App'x 681, 682 (6th Cir. 2011). The initial burden is
- 10 -
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
employment
to
compatible
demonstrate
with
the
the
existence
claimant's
of
available
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. 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 of Impairments contained in the
Social
Security
Regulations.
See
20
C.F.R.
§§
404.1520(d),
404.1525, 404.1526. 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, the ALJ must undertake the fourth step in the
analysis and determine whether the claimant has the RFC to return
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to any past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv) &
404.1520(e). 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
404.1520(a)(4)(v),
national
economy.
404.1520(g)(1),
See
20
C.F.R.
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 analysis. 20 C.F.R.
§ 404.1520(a)(4).
C.
The ALJ’s RFC Determination
Although Willis’s brief does not delineate her arguments on
appeal, it appears that Willis first contends the ALJ erred in how
he determined her RFC. A claimant's RFC is “the most [the claimant]
can still do despite [the claimant's] limitations.” 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). The ALJ must assess the claimant's
RFC based on all of the relevant evidence in the record. 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3); see also SSR 96-8P, 1996 WL
374184, at *3 (S.S.A. July 2, 1996) (“The RFC assessment is a
function-by-function assessment based upon all of the relevant
evidence
of
an
individual's
ability
to
do
work-related
activities.”). “[T]he ALJ is charged with the responsibility of
evaluating the medical evidence and the claimant's testimony to
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form an ‘assessment of [her] residual functional capacity.’” Webb
v.
Comm'r
of
Soc.
Sec.,
368
F.3d
629,
633
(6th
Cir.
2004)
(alteration in original) (quoting 20 C.F.R. § 416.920(a)(4)(iv)).
In making this determination, the ALJ may consider both objective
medical evidence of a severe medical condition and the credibility
of the claimant's subjective complaints. See Steagall v. Comm'r of
Soc. Sec., 596 F. App'x 377, 381 (6th Cir. 2015); Schmiedebusch v.
Comm'r of Soc. Sec., 536 F. App'x 637, 649 (6th Cir. 2013).
“Credibility determinations regarding the applicant's subjective
complaints rest with the ALJ and are afforded great weight and
deference as long as they are supported by substantial evidence.”
Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 473 (6th Cir.
2014) (citing Torres v. Comm'r of Soc. Sec., 490 F. App’x 748, 755
(6th Cir. 2012)). While ALJs may not “cherry pick[] evidence,”
they may “neutrally . . . weigh[] the evidence.” White v. Comm'r
of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009). Moreover, because
the
court
must
affirm
the
decision
of
the
ALJ
if
there
is
substantial evidence to support his decision, it is not enough for
the claimant to prove that substantial evidence supports his or
her preferred RFC as well. Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007); Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 477 (6th Cir. 2003).
Willis
argues
that
the
ALJ’s
RFC
determination
lacks
substantial evidence because he did not consider her “asthma,
- 13 -
chronic
pain,
tiredness
from
poor
sleep,
low
concentration,
frequent need to be absent from the work station, [her] inability
to
stand
for
a
length
of
time
because
of
edema
and
[her]
limitations on lifting and carrying more than 20-25 [pounds],
lifting
over
5
[pounds]
with
her
left
shoulder
and
working
overhead.” (ECF No. 22 at 8.) This argument boils down to an
assertion that, in Willis’s view, the record supports a finding
that
she
cannot
perform
even
light
work
with
additional
limitations.
While it may be true that if the evidence had been weighed
differently that the ALJ’s RFC determination might have been
different, the Sixth Circuit has instructed courts that their role
is not to “weigh evidence, assess credibility, or resolve conflicts
in testimony — that’s the ALJ’s job.” Dyson v. Comm’r of Soc. Sec.,
786 F. App’x 586, 588 (6th Cir. 2019) (citing Crum v. Sullivan,
921 F.2d 642, 644 (6th Cir. 1990)). Therefore, the ALJ’s RFC
determination must stand if it is backed by substantial evidence.
See id. (citing Rogers, 486 F.3d at 241; Jones, 336 F.3d at 477).
SSA regulations define “light work” as:
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.
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20 C.F.R. § 416.967(b). The ALJ found that Willis has the RFC to
perform light work, provided that she has additional limitations,
such as not using ladders, scaffolds, ropes, or hazards, and only
occasionally using her left upper extremity for overhead reaching,
pushing,
and
pulling.
(R.
at
26.)
In
so
finding,
the
ALJ
extensively reviewed Willis’s medical and treatment history from
2016 to the present, thoroughly explaining the results of her
visits to various healthcare providers and noting that the record
was consistent with the SSA definition for light work activity.
For instance, the ALJ noted that treatment notes from Sports
Orthopedics and Spine in November 2016 recommended that she lift
no more than twenty-five pounds, only perform occasional overhead
work with her left arm, and that she has a 7% impairment of her
left upper extremity and a 4% whole person impairment due to her
left
shoulder.
(R.
at
27.)
Likewise,
based
on
a
consultive
examination in August 2017, Dr. Keown concluded that Willis could
“sit six to eight hours a day, walk or stand four to six hours,
lift 25 to 30 pounds occasionally and 10 to 15 pounds on a more
frequent basis and she did not require handheld assistive devices.”
(R. at 27.) Additionally, the ALJ opined that the computerized
tomography
scans
abnormalities,
and
that
X-rays
her
in
the
physical
record
showed
examinations
were
only
mild
otherwise
unremarkable, and that her obesity would limit her to, at most,
light work. (R. at 27-28.); see Stewart v. Comm’r of Soc. Sec.,
- 15 -
811 F. App’x 349, 354 (6th Cir. 2020) (“[A] judge should . . .
consider
a
impairments’
claimant's
when
obesity
proceeding
‘in
through
combination
the
with
normal
other
five-step
disability analysis.”) (quoting Shilo v. Comm'r of Soc. Sec., 600
F. App'x 956, 959 (6th Cir. 2015)); Downs v. Comm'r of Soc. Sec.,
634 F. App'x 551, 553 (6th Cir. 2016) (“This diagnostic evidence
-
which
reveals
significant
mostly
degeneration
mild-to-moderate
-
offers
support
findings
to
the
and
no
ALJ's
RFC
determination.”). Further, the ALJ elected to give only partial
weight to the opinions of DDS reviewers because he found that their
conclusions
(that
she
could
perform
reduced
medium
work)
overstated her functional capacity based on the record. (R. at 2829.) In short, the ALJ’s RFC determination had a sufficient basis
to satisfy the substantial evidence standard. See Dyson, 786 F.
App’x at 590 (“We regularly find that substantial evidence supports
a no-disability determination when the ALJ relies primarily on
independent medical advice consistent with the claimant’s medical
records.”).
Although Willis testified at the hearing that her limitations
are far more severe than what her medical records show, the ALJ
found that “the severity of limitation alleged by [Willis] is not
supported by the record.” (R. at 26.) Indeed, “[a]n ALJ may
discount
a
claimant's
credibility
when
the
ALJ
finds
contradictions among the medical reports, claimant's testimony,
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and other evidence.”
377,
381
(6th
Steagall v. Comm'r of Soc. Sec., 596 F. App'x
Cir.
2015)
(internal
quotations
and
citations
omitted). Here, the ALJ noted that Willis’s testimony as to the
severity of her impairments (specifically that she cannot perform
work activity at any level and that he back pain is chronic and
severe) was contradicted by objective medical evidence showing, at
most, only mild impairments. (R. at 29.); Curler, 561 F. App’x at
473 (“Had Curler suffered from severe pain associated with her
back condition, the medical records would have revealed severe
back or leg abnormalities, abnormal functioning on physical exams,
recommendations
significant
for
doctor
more
aggressive
recommended
treatment,
functional
and
more
limitations.”).
Moreover, outside of her testimony at the hearing, Willis’s alleged
symptoms of having to go to the restroom often and nap every half
hour are not supported by objective evidence in the record to the
extent that they should meaningfully alter her RFC.3 Van Winkle v.
Comm’r of Soc. Sec., 29 F. App’x 353, 357 (6th Cir. 2002) (“An ALJ
need not fully credit subjective complaints where there is no
underlying medical basis.”). As such, the ALJ considered Willis’s
treatment
history
(including
objective
3In
medical
evidence
and
her brief, Willis cites to a neurology report from the Jackson
Madison County General Hospital that states that her activity
tolerance is “Feel tired/fatigued/sleepy during day time.” (R. at
718.) Additionally, the record shows that she is prescribed Lasix,
which causes increased urination.
- 17 -
physician opinions) and her testimony to conclude that Willis could
return to light work with some limitations. Because there is “more
than a scintilla of evidence” – enough that “a reasonable mind
might accept as adequate” – to support the ALJ’s RFC determination,
the court finds that this is not grounds for reversal. Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25
F.3d 284, 286 (6th Cir. 1994)); see also Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 713-14 (6th Cir. 2012) (“As long as the ALJ
cite[s] substantial, legitimate evidence to support his factual
conclusions, we are not to second-guess.”).
D.
The Vocational Expert
Willis’s second argument on appeal is that the ALJ’s decision
must be remanded because the ALJ did not follow the vocational
expert’s opinion on cross-examination that Willis’s limitations
rendered her unable to work any jobs in the national economy. While
not stated as such, this amounts to an argument that the ALJ’s
decision at Step Five – whether a significant number of jobs in
the national economy exist that
substantial
evidence
because
Willis can perform
the
expert’s
–
lacked
testimony
was
unreliable.
“The
Commissioner
has
the
burden
at
step
five
of
the
disability analysis of showing that there are a significant number
of jobs in the economy that accommodate the claimant's RFC and
vocational profile.” Collins v. Comm'r of Soc. Sec., 357 F. App'x
- 18 -
663, 670 (6th Cir. 2009). “This mandates the Commissioner to ‘make
a finding supported by substantial evidence that the claimant has
the vocational qualifications to perform specific jobs.’” Amir v.
Comm'r of Soc. Sec., 705 F. App'x 443, 451 (6th Cir. 2017)
(internal alterations omitted) (quoting Howard v. Comm'r of Soc.
Sec., 276 F.3d 235, 238 (6th Cir. 2002)). It is well settled that
“[a] vocational expert's testimony concerning the availability of
suitable
work
may
constitute
substantial
evidence
where
the
testimony is elicited in response to a hypothetical question that
accurately
sets
forth
the
plaintiff's
physical
and
mental
impairments.’” Thomas v. Comm'r of Soc. Sec., 550 F. App'x 289,
290 (6th Cir. 2014) (quoting Smith v. Halter, 307 F.3d 377, 378
(6th Cir. 2001)). When crafting a hypothetical individual to pose
to a vocational expert, the “ALJ is required to incorporate only
those limitations that he or she accepted as credible.”4 Lester v.
Soc. Sec. Admin., 596 F. App'x 387, 389-90 (6th Cir. 2015) (citing
Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010) and
Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th
Cir. 1993)); see also Brantley v. Comm'r of Soc. Sec., 637 F. App'x
888, 897 (6th Cir. 2016) (“[A] hypothetical need not include a
comprehensive
list
of
a
claimant's
4For
medical
conditions”).
In
this reason, it was proper for the ALJ to omit Willis’s alleged
restroom and mid-day sleeping needs from his hypothetical for the
vocational expert.
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forming his or her analysis at Step Five, an ALJ must evaluate the
reliability of a vocational expert's opinion on a case-by-case
basis. Biestek v. Berryhill, 139 S. Ct. 1148, 1157 (2019).
During the hearing, the ALJ posed a hypothetical individual
to
the
vocational
expert.
The
ALJ’s
hypothetical
individual
mirrored a person with Willis’s RFC, asking the vocational expert
to assume a hypothetical individual the claimant’s age,
education, and the past jobs [] described. Further
assume, she’s limited to the light exertional level, no
ladders, ropes, scaffolds, or hazards, the right upper
extremity, only occasional overhead reaching, and the –
I’m sorry, the left upper extremity, only occasional
overhead reaching of the left upper extremity, only
occasional push/pull. Can that hypothetical individual
perform any of her past work as actually performed or
generally performed?
(R. at 57.) In response, the vocational expert testified that there
existed ample jobs that the individual could perform, for instance
a “tester inspector,” an “injection molding machine tender,” and
a “laundry sorter.” (R. at 58.) The vocational expert further
testified that these three jobs were representative of about 800
potential job titles that would fit the ALJ’s hypothetical. (R. at
58.) The ALJ based his conclusion that Willis was not disabled on
this testimony.
However, this
finding overlooks a critical inconsistency
within the vocational expert’s testimony. On cross-examination,
the vocational expert testified that “[i]f a person is limited to
occasional use of either upper extremity, it would rule out the
- 20 -
occupational base of unskilled, light job titles” because each job
recommended by the vocational expert required “bilateral upper
extremities.” (R. at 59-60.) This statement by the vocational
expert directly contradicts his earlier opinion that the ALJ’s
hypothetical individual could perform unskilled, light work in the
national economy, as the ALJ’s hypothetical individual could only
occasionally use his or her left upper extremity. (R. at 57-58.)
Additionally, the ALJ incorporated this physical limitation into
his
RFC
determination,
finding
that
Willis
was
limited
to
“occasional overhead reaching and occasional push/pull” with her
left upper extremity. (R. at 27.) Consequently, the vocational
expert testified both that a person with Willis’s RFC could perform
around 800 different job titles and also that a person with
Willis’s RFC could perform none of them.
While
an
ALJ
is
not
required
to
rely
on
“alternate
hypothetical[s] based on [claimant]'s preferred theory of the
case,” Blythe v. Berryhill, No. 18-1028-TMP, 2019 WL 4277000, at
*10 (W.D. Tenn. Sept. 10, 2019), several district courts within
the Sixth Circuit have found that an ALJ commits reversible error
where he or she “relie[s] on [a] vocational expert's initial,
confident testimony about the jobs the claimant could perform
without recognizing the expert's conclusions collapsed on cross
examination.” Lucy v. Saul, No. 19-1083-TMP, 2020 WL 1318803, at
*10 (W.D. Tenn. Mar. 20, 2020); see also Reed v. Comm’r of Soc.
- 21 -
Sec., 2021 WL 928401, at *3-5 (S.D. Ohio Mar. 11, 2021) (vacating
a decision by the ALJ because it relied on a vocational expert’s
testimony
that
the
claimant
“would
be
able
to
perform
the
requirements of specific occupations such as housekeeping cleaner,
folder, and inspector” but on cross-examination the “[claimant’s]
ability to perform these jobs was brought into question by the
vocational expert's own testimony”); Wyczlinski v. Astrue, No.
3:09-CV-481, 2011 WL 798135, at *6-8 (S.D. Ohio Mar. 1, 2011)
(reversing an ALJ’s decision because “the vocational expert's
testimony [was] so flawed that it [was] of little or no value”
where the expert proposed certain jobs for the claimant
but
“immediately retreated from this position” on cross-examination).
In short, a finding based on unreliable vocational expert testimony
“is equivalent to a finding that is not supported by substantial
evidence and must be vacated.” Goode v. Comm’r of Soc. Sec., 966
F.3d 1277, 1282 (11th Cir. 2020) (quoting Chavez v. Berryhill, 895
F.3d 962, 968 (7th Cir. 2018)).
After the ALJ found that Willis was unable to return to her
previous employment, “[t]he Commissioner ha[d] the burden at step
five of the disability analysis of showing that there are a
significant number of jobs in the economy that accommodate the
claimant's RFC and vocational profile.” Collins, 357 F. App'x at
670 (citing Jones, 336 F.3d at 474). An important aspect of
determining if significant jobs exist is “the reliability of the
- 22 -
vocational expert's testimony.” Hall v. Bowen, 837 F.2d 272, 275
(6th Cir. 1988). Here, the ALJ relied exclusively on the vocational
expert’s testimony that someone with Willis’s RFC (which includes
“only occasional overhead reaching of the left upper extremity,
only occasional push/pull”) could work as a tester inspector, an
injection molding machine tender, and a laundry sorter. (R. at 2930, 57.) This finding, however, overlooks the vocational expert’s
contradictory testimony that a person who is limited to occasional
use of either extremity could not perform “the occupational base
of unskilled, light job titles.” (R. at 59.) Therefore, the ALJ’s
decision at Step Five is not supported by substantial evidence.
III.
CONCLUSIONS
For the reasons above, the Commissioner’s decision is not
supported by substantial evidence and is REVERSED. This case is
remanded under sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
/s/ Tu M. Pham_________________________
TU M. PHAM
Chief United States Magistrate Judge
April 29, 2021_________________________
Date
- 23 -
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