Huffman v. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER the Court OVERRULES the 26 Objections; ADOPTS the 25 Proposed Findings and Recommendation; DENIES Plaintiff's 20 request for judgment on the pleadings; GRANTS the Commissioner's 23 request for judgment on the pleadings; AFFIRMS the decision of the Commissioner; and DISMISSES this action. Signed by Judge Thomas E. Johnston on 7/20/2017. (cc: counsel of record; any unrepresented party) (mks)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

ROBERT HUFFMAN, OBO
KAREN BETH HUFFMAN,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-cv-02594

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is a Complaint seeking review of the final decision of the Commissioner
of Social Security (“Commissioner”).1 (ECF No. 2.) Plaintiff Robert Huffman prosecutes this
action on behalf of his wife, Karen Beth Huffman (hereinafter “Claimant”).

Plaintiff was

substituted as a party following Claimant’s death on March 24, 2016.
By standing order filed in this case on March 17, 2016, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of proposed findings and
recommendations for disposition (the “PF&R”). (ECF No. 4.) On December 14, 2016, the
magistrate judge entered his PF&R, recommending that this Court deny Plaintiff’s request for
judgment on the pleadings, grant the Commissioner’s request for judgment on the pleadings, affirm

1

While Carolyn W. Colvin was the Acting Commissioner of Social Security when Claimant commenced
this action, Nancy Berryhill became the Acting Commissioner on January 23, 2017. Acting Commissioner
Berryhill is automatically substituted as the defendant in this action. Fed. R. Civ. P. 25.

the Commissioner’s decision, and dismiss this case. Plaintiff filed timely objections to the PF&R
on January 3, 2017 (the “Objections”).
For the reasons that follow, the Court OVERRULES the Objections, (ECF No. 26),
ADOPTS the PF&R, (ECF No. 25), DENIES Plaintiff’s request for judgment on the pleadings,
(ECF No. 20), GRANTS the Commissioner’s request for judgment on the pleadings, (ECF No.
23), AFFIRMS the decision of the Commissioner, and DISMISSES this action.
I.

PROCEDURAL BACKGROUND

The facts concerning this matter are fully set forth in the PF&R and need not be repeated
here at length. In short, Claimant filed an application for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”) on June 25, 2012, alleging disability as of November 1,
2008, 2 due to diabetes, neuropathy, high blood pressure and cholesterol, heart problems, and
arterial disease. (Tr. 56.) Claimant would later complain of mental impairments, including
problems with memory and concentration. (See id. at 240.) For purposes of her DIB application,
Claimant’s date last insured (“DLI”) was June 30, 2012. (Id. at 11.) The applications were
denied initially on October 26, 2012. Upon reconsideration, Claimant’s SSI claim was allowed
with a later onset date of December 5, 2012. The DIB claim was denied upon reconsideration.
(Id. at 132–34.)
Administrative Law Judge Sabrina M. Tilley (the “ALJ”) held a hearing on July 30, 2014.
On October 29, 2014, the ALJ issued an unfavorable decision. (Tr. 11–21.) The ALJ found at
step one of the “sequential evaluation” process that Claimant “has not engaged in substantial
gainful activity since August 11, 2011, the amended alleged onset date.” (Id. at 13.) At step two,

2

Claimant orally amended her alleged onset date at the administrative hearing to August 11, 2011, her
fiftieth birthday. (Tr. 34–36.)

2

the ALJ found that Claimant had several severe impairments, specifically: degenerative disc
disease, calcaneal spurs, diabetes mellitus, peripheral neuropathy, and coronary artery disease.
(Id.) At step three of the analysis, the ALJ found that Claimant did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at 14.) The ALJ next found that
Claimant had the residual functional capacity (“RFC”) to perform less than the full range of light
work as defined in 20 CFR § 416.967(b), reduced by certain exertional limitations. (Id. at 15–
19.) Finally, the ALJ found at step four that while Claimant was incapable of performing past
relevant work, there were a significant number of jobs existing in the national economy that
Claimant could perform. (Id. at 20.)
The Appeals Council denied review of the ALJ’s decision on January 2, 2016. (Tr. 1–6.)
On March 17, 2016, Claimant filed the Complaint in this Court.
II.
A.

STANDARD OF REVIEW

Review of the PF&R

The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendations
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a party “makes general and conclusory objections
that do not direct the Court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

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B.

Review of the ALJ’s Findings and Decision

Judicial review of a final decision regarding disability benefits is limited to determining
whether the findings are supported by substantial evidence and whether the correct law was
applied. See 42 U.S.C. § 405(g) (“The findings of the Secretary as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987) (“A factual finding by the ALJ is not binding if it was reached by means of an improper
standard or misapplication of the law.”). Substantial evidence requires more than a scintilla, but
less than a preponderance, of the evidence. Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001).
“It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

“In reviewing for

substantial evidence, [the court should] not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for that of the Secretary.” Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996). If “conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled,” the Court must defer to the Commissioner’s decision. Id. (citing
Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).
A claimant bears the burden of proving to the Commissioner that she is disabled within the
meaning of the Social Security Act. 42 U.S.C. § 423(d)(5); English v. Shalala, 10 F.3d 1080,
1082 (4th Cir. 1993). “The term ‘disability’ means . . . 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)(A).

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The Commissioner uses a five-step “sequential evaluation” process to evaluate a disability
claim. See 20 C.F.R. §§ 404.1520(a) & 416.920(a)(4). In Hall v. Harris, the Fourth Circuit
provided the following description of the “sequential evaluation” analysis:
Under the process the ALJ must determine in sequence: (1) whether the claimant is
currently engaged in substantial gainful activity; (2) if not, whether he has a severe
impairment; (3) if so, whether that impairment meets or equals the medical criteria
of Appendix 1 which warrants a finding of disability without considering vocational
factors; and (4) if not, whether the impairment prevents him from performing his
past relevant work. By satisfying either step 3 or 4, the claimant establishes a prima
facie case of disability. The burden then shifts to the Secretary and leads to the fifth
and final inquiry in the sequence: whether the claimant is able to perform other
work considering both his remaining physical and mental capacities (defined as
residual functional capacity) and his vocational capabilities (age, education, and
past work experience) to adjust to a new job.
658 F.2d 260, 264–65 (4th Cir. 1981); see also 20 C.F.R. §§ 404.1520 & 416.920 (providing the
“sequential evaluation” analysis). The claimant bears the burden of proof at steps one through
four, but the burden shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If a decision regarding
disability can be made at any step of the process, however, the inquiry ceases. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4).
III.

DISCUSSION

Plaintiff raises three objections to the PF&R. First, he contends that the magistrate judge
erred in finding that the Fourth Circuit’s holding in Bird v. Commissioner of Social Security, 699
F.3d 337 (4th Cir. 2012), did not require the ALJ to consider medical evidence submitted after
Claimant’s date last insured (“DLI”). Second, he accuses the ALJ of failing to apply the “special
technique” in evaluating Claimant’s mental impairments. Third, he faults the magistrate judge
for endorsing the ALJ’s reliance on the “equivocal” testimony of the vocational expert.

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A.

Retrospective Consideration of Post-DLI Medical Evidence

To qualify for DIB, a claimant must prove that she became disabled on or before the date
that her insured status expired. 20 C.F.R. §§ 404.101(a), 404.131(a); see Johnson v. Barnhart,
434 F.3d 650, 655–66 (4th Cir. 2005). “Medical evaluations made after a claimant’s insured
status has expired,” however, “are not automatically barred from consideration.” Bird, 699 F.3d
at 340. Rather, post-DLI medical evaluations “may be relevant to prove a disability arising before
the claimant’s DLI.” Id. (emphasis added).
In Bird, the Fourth Circuit discussed the circumstances in which the Commissioner is
required to give retrospective consideration to post-DLI evidence. In that case, the claimant filed
for DIB benefits alleging disabling post-traumatic stress disorder (“PTSD”). He did not have any
medical records predating the DLI, yet two pertinent records produced after the DLI suggested
that the claimant suffered from severely disabling PTSD that had been ongoing since his days
spent in combat during the Vietnam War. Id. at 339. The administrative law judge declined to
consider the post-DLI records on the basis that they failed to reflect the claimant’s pre-DLI
condition.
The Fourth Circuit remanded, reasoning that post-DLI records “could be reflective of a
possible earlier and progressive degeneration.” Id. at 341 (internal quotation marks omitted). The
court recognized that “evidence created after a claimant’s DLI, which permits an inference of
linkage between the claimant’s post-DLI state of health and her pre-DLI condition, could be the
‘most cogent proof’ of a claimant’s pre-DLI disability.” Id. (citing Moore v. Finch, 418 F.2d
1224, 1226 (4th Cir. 1969)). Retrospective consideration of the post-DLI evidence was necessary

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when the record cannot be said to “rule out any linkage” between the claimant’s final condition
and her earlier symptoms. Id. (citation omitted).
Importantly, the Fourth Circuit emphasized that post-DLI evidence is not always relevant
to determining the existence of a disabling condition prior to the DLI. The Fourth Circuit’s
opinion in Johnson provides an example. 434 F.3d at 650. Distinguishing that case, the Bird court
explained:
In Johnson, after the SSA administrative hearing had concluded, the claimant’s
treating physician submitted a new assessment identifying additional impairments
that were not linked in any manner to the claimant’s condition before her DLI.
Because there was no evidence that these impairments existed before the claimant’s
DLI, we held that the evidence was not relevant, and that the ALJ was not required
to give the new assessment retrospective consideration.
699 F.3d at 341 (citing Johnson, 434 F.3d 656) (internal citations omitted).

The question

presented by way of Plaintiff’s Objections is whether Claimant’s post-DLI evidence gave rise to
an “inference of linkage” between her post-DLI state of health and her pre-DLI condition. Id. If
so, the ALJ was required to consider the evidence in her decision.
Taking up this objection, the Court turns to the post-DLI evidence of Claimant’s mental
impairment. The medical record most strongly suggesting the existence of a mental impairment
is that of Claimant’s psychological consultative examination conducted on March 3, 2013, nine
months after her DLI. The examiner found moderate deficiencies in Claimant’s immediate
memory, severe deficiencies in delayed memory, and marked deficiencies in attention/
concentration and diagnosed an anxiety disorder and a cognitive disorder. (Tr. 487.) Later that
same month and upon review of the consultative examination, a State agency psychologist opined
that Claimant “does not retain the mental/emotional capacity to complete work-related activity in
a manner consistent with [substantial gainful activity].” (Id. at 99.) The agency psychologist
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placed the onset date of Claimant’s mental impairment on December 5, 2012, three months prior
to the consultative examination, because Plaintiff had told the examiner that his wife’s “[c]ognitive
difficulties were not as severe 6 months ago” but “began to be a problem [then] and . . .
continue[d] to . . . increase[] over the past 6 months.” (Id.) Finally, Plaintiff points to a
comprehensive psychiatric evaluation of July 10, 2013 where Claimant reported “a history of panic
episodes with development of severe agoraphobia during the past year.” (Id. at 646.) Plaintiff
suggests that this evaluation places the onset date for Claimant’s panic attacks just after her DLI.
Though this evidence supports the onset of a disabling mental condition some months after
Claimant’s DLI, there are no medical records evidencing a mental impairment prior to that date.
As the magistrate judge noted, Claimant’s June 6, 2011 Cabin Creek Health Center record
indicated normal mental health status; an examination of October 9, 2012 revealed no objective
findings to support Claimant’s complaints of memory loss; and a December 29, 2012 EEG was
returned normal. The Court thus finds this case more akin to Johnson than Bird. Unlike in Bird,
where the evidence of record suggested that the claimant’s PTSD symptoms had been ongoing and
therefore related back to the relevant period, Claimant put forward no evidence that she suffered
from a mental impairment prior to her DLI. The ALJ was left without means to link the postinsured status evidence to the insured status period.3
For these reasons, the Court FINDS Bird inapplicable. The ALJ did not err in failing to
consider whether Claimant’s post-DLI evidence of mental impairments related back to the period
of insured status.

It is worth noting that the ALJ remarked at the administrative hearing, “I don’t see much in the
way of mental impairments in the record prior [to December of 2012].” Claimant’s counsel
responded, “I think that’s correct.” (Tr. 31.)
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B.

Application of Special Technique

Like the first, Plaintiff’s second objection takes issue with the ALJ’s consideration of
Claimant’s mental health impairments.

This objection concerns application of the “special

technique.”
Mental impairments require a distinct analysis under Social Security regulations. 20
C.F.R. § 404.1520a. The ALJ uses a “special technique” when evaluating the severity of a mental
impairment. Id. The technique is employed at steps two and three of the sequential evaluation.
See Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008); Rabbers v. Comm’r of Soc. Sec. Admin.,
582 F.3d 647, 652–53 (6th Cir. 2009). Using this technique, the ALJ first evaluates the “pertinent
symptoms, signs, and laboratory findings to determine whether [the claimant] ha[s] a medically
determinable mental impairment.” 20 C.F.R. § 404.1520a(b)(1). Next, upon a finding that the
claimant has a medically determinable mental impairment, the ALJ must rate the degree of
functional limitation resulting from that impairment. Id. at § 404.1520a(b)(2). The rating process
requires an evaluation of the claimant’s performance in “four functional areas essential to the
ability to work: activities of daily living; ability to maintain social functioning; concentration,
persistence, and pace in performing activities; and deterioration or decompensation in work or
work-like settings.” Felton-Miller v. Astrue, 459 F. App’x. 226, 231 (4th Cir. 2011) (citing 20
C.F.R. §§ 404.1520a and 416.920a). Only after evaluating the degree of functional limitation
may the ALJ determine whether the mental impairment is a severe impairment.

Id. at §

404.1520a(d). Further, as mental impairments are considered “non-exertional limitations,” 20
C.F.R. § 404.1569a, they must be considered in the ALJ’s determination of the claimant’s RFC
even if they do not independently constitute a severe impairment under step two.

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In this case, Plaintiff claims that the ALJ failed to use the special technique to evaluate
Claimant’s mental impairments. He argues that remand is the only appropriate remedy. At the
time Plaintiff filed the Objections, the Fourth Circuit had not yet addressed whether a failure to
employ the special technique requires remand or whether harmless error analysis is applicable.
See Wright v. Colvin, 2:16-cv-02053, 2016 WL 7650795, at *9–10 (S.D. W. Va. Dec. 14, 2016),
report and recommendation adopted by 2017 WL 64911 (S.D. W. Va. Jan. 5, 2017) (discussing
circuit split among the federal appellate courts to have ruled on the issue). When presented with
the question earlier this year, the Fourth Circuit was unwilling to find that failure to follow the
special technique requires remand in every case. Patterson v. Comm’r of Soc. Sec. Admin., 846
F.3d 656, 658 (4th Cir. 2017). There, the ALJ failed to articulate his findings concerning the
claimant’s mental health impairments in accordance with the special-technique regulation. The
Fourth Circuit reviewed the decision for harmless error.

Noting that “failure to properly

document application of the special technique will rarely, if ever, be harmless because such a
failure prevents, or at least substantially hinders, judicial review,” id. at 662, the court held that
“the ALJ’s lack of explanation requires remand.” Id. at 663 (citations and internal quotation
marks omitted).
The ruling in Patterson would seem favorable to Plaintiff at first blush. Yet upon review
of the ALJ’s decision, the Court cannot find that the ALJ failed to apply the special technique as
Plaintiff claims. At step two of the sequential analysis, the ALJ found “no evidence of a severe
mental impairment supported by the record prior to December 5, 2012.” (Tr. 14.) She then
proceeded to review specific medical records evincing normal mental health status, all of which
the Court discussed above: June 6, 2011 records from Cabin Creek Health Center revealing a

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mental status within normal limits; October 9, 2012 neurology records showing normal memory,
attention span, and concentration upon examination; and a record of a normal EEG performed
December 20, 2012. The ALJ concluded by making specific findings in the four functional
categories:
[T]he undersigned finds that with regard to the “B” criteria for the period August
11, 2011, the amended alleged onset date, to December 5, 2012, the claimant had
mild restrictions of activities of daily living; mild difficulties in maintaining social
functioning; mild difficulties in maintaining concentration, persistence, and pace;
and no repeated episodes of decompensation.
(Id. 15.) The ALJ’s findings on each of the four categories distinguish this case from Patterson.
846 F.3d at 662 (noting the ALJ “did not rate Patterson’s four areas of functional limitation listed
in § 404.1520a(c)(3) according to the prescribed scale”). The ALJ went on to explain her
reasoning as follows:
On March 29, 2013, Karl G. Hursey, Ph.D., a State agency psychological
consultant, completed a Psychiatric Review Technique form and opined the
claimant had severe mental impairments of an organic mental disorder and an
anxiety disorder resulting in moderate restrictions of activities of daily living,
moderate difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, and pace; and no repeated episodes of
decompensation. The evidence did not establish the presence of the “C” criteria.
Dr. Horsey completed a Mental Residual Functional Capacity Assessment form and
opined that the claimant did not retain the mental/emotional capacity to complete
work-related activity in a manner consistent with SGA as of December 5, 2012,
which was three months prior to the consultative evaluation showing cognitive
difficulties. The undersigned gives great weight to this opinion but notes it is after
the period at issue and the evidence of record dated prior to this does not support
evidence of a severe mental impairment.
(Tr. 19.)
Contrary to Plaintiff’s assertion, the ALJ did apply the special technique. The ALJ
conducted an analysis, applying the special technique to evaluate Claimant’s functional limitations
arising from her mental impairments, and evaluated Claimant’s treatment records and the
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consultative findings. Inasmuch as Plaintiff argues that the ALJ’s analysis was deficient, the
Court finds that the ALJ appropriately analyzed the meager mental health evidence of record.
While the ALJ found that Dr. Hursey’s opinion supported severe mental impairments as of
December 5, 2012, she concluded that Claimant had put forward no evidence supporting the onset
of an impairment prior to that date. This is yet another salient factor distinguishing this case from
Patterson. In that case, the Fourth Circuit found that the ALJ’s error was exacerbated by a failure
to weigh conflicting evidence bearing on the claimant’s mental impairments. 846 F.3d at 660.
There is no such evidence of conflict here. Rather, the utter lack of evidence led the ALJ to
conclude that Claimant had not proven a disabling mental impairment prior to December 2012.
In conclusion, the ALJ appropriately applied the special technique. The ALJ’s evaluation
of Claimant’s mental impairments and the manner in which she considered the impairments in
formulating RFC is supported by substantial evidence.
C.

Testimony of the Vocational Expert

As his final objection, Plaintiff challenges the ALJ’s reliance on the vocational expert’s
testimony. Plaintiff claims that the expert’s testimony was unreliable because her opinions were
ambiguous. Principally, Plaintiff objects to the vocational expert testifying that her opinion of the
number of available jobs was “pretty much” consistent with the Dictionary of Occupational Titles
(“DOT”).

The magistrate judge found that the ALJ’s reliance on the vocational expert’s

testimony was based upon substantial evidence.
Social Security Ruling 00-4p requires an ALJ to “inquire, on the record” whether a
vocational expert’s testimony conflicts with the DOT. 2000 WL 1898704, at *2; Pearson v.
Colvin, 810 F.3d 204, 208 (4th Cir. 2015). Where there is an apparent conflict between the

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expert’s testimony and the DOT, the Ruling directs the ALJ to “[i]dentify and obtain a reasonable
explanation” for the conflict and “[e]xplain in the determination or decision how any conflict that
has been identified was resolved.” SSR 00-4P, at *1. “[T]he context of the word ‘apparent’ in
SSR 00-4p makes plain that . . . the ALJ must identify where the expert’s testimony seems to, but
does not necessarily, conflict with the [DOT].” Pearson, 810 F.3d at 209.
The magistrate judge reviewed the pertinent colloquy between ALJ and vocational expert
at the administrative hearing. To summarize, the vocational expert testified that mailroom clerk
positions would be available to a person with limitations like Claimant’s. Due to Claimant’s
limited capacity to stand and walk, the expert reduced the projected number of available clerk
positions nationally (102,000) by 75 percent. The ALJ asked, “And so you would guestimate say
around close to 25,000 nationally for instance?” (Tr. 53.) “Roughly,” the vocational expert
responded, while admitting, “[t]here isn’t really any reliable way that I’m aware of to weed these
out.” (Id.) The ALJ then asked a question that Plaintiff finds particularly objectionable: “And
you’re consistent with the DOT pretty much?” (Id.) The vocational expert answered, “Yes
ma’am.” (Id.)
Plaintiff argues that the vocational expert’s testimony must be completely consistent with
the DOT, not nearly consistent or “pretty much” consistent. But Plaintiff has not demonstrated
any manner in which the occupational evidence provided by the vocational expert in this case
conflicted with the DOT. To illustrate, Pearson involved an apparent conflict relating to the
degree of reaching required in the three jobs provided by the vocational expert. “For all three, the
[DOT] list[ed] frequent reaching as a requirement.”

810 F.3d at 210.

The ALJ’s RFC

assessment, on the other hand, restricted the claimant’s ability to reach overhead with one arm.

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Id. The Fourth Circuit reasoned that the ALJ erred in failing to identify and resolve the conflict
between the expert’s testimony that the claimant was suited to perform the jobs and the
requirements of those jobs as set forth in the DOT. Id. at 210–11. Pearson’s definition of an
“apparent conflict” does not extend to the somewhat guarded testimony of the vocational expert
in this case. In the Fourth Circuit’s view, SSR 004-p simply requires the ALJ to “compare the
express language of the [DOT] and the vocational expert’s testimony.” The court expressly
sought to avoid a standard that “would allow the claimant to nitpick an ALJ’s or expert’s word
choice on appeal.” Id. at 209.
Plaintiff also argues that while the vocational expert’s testimony may not have been in
apparent conflict with the DOT, it was too vague to support the ALJ’s finding that sufficient jobs
existed in the national economy that Claimant could perform. Plaintiff cites four favorable outof-circuit cases on this point, though none is factually similar. In each case, the vocational
expert’s equivocal testimony wholly undermined the ALJ’s conclusion that the claimant retained
the ability to work despite his or her limitations. Talbert v. Comm’r of Soc. Sec., No. 1:15-cv468, 2016 WL 3387308, at *10 (S.D. Ohio June 15, 2016), report and recommendation adopted,
2016 WL 3855447 (July 15, 2016) (vocational expert’s testimony could not support ALJ’s stepfive finding when the expert acknowledged that the job of usher, which the claimant allegedly
could perform, was one of five different job titles within a particular DOT provision but did not
clarify how many of the 700 regional jobs she cited were usher jobs); Watkins v. Comm’r of Soc.
Sec., No. 1:14-cv-514, 2015 WL 1476743, at *7 (S.D. Ohio Mar. 31, 2015) (finding the vocational
expert’s noncommittal testimony that the claimant would experience “more than very little”
vocational adjustment by transferring jobs was insufficient to establish that the claimant had

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acquired skills that were transferable with very little vocational adjustment); Brown v. Colvin, No.
3:13-cv-01832-HZ, 2014 WL 6388540, at *9 (D. Or. Nov. 13, 2014) (finding vocational expert’s
testimony insufficient to support a finding of no disability where the expert could not confirm
whether a significant number of representative occupations existed in the national or local
economy); Williams v. Astrue, No. 3:10-cv-00235-J-JBT, 2011 WL 721501, at *4 (M.D. Fla. Feb.
22, 2011) (step-five decision to deny benefits not supported by substantial evidence where
vocational expert admitted it was “debatable” whether the relevant jobs could be performed with
the use of a 15 inch footstool required by the claimant).
Here, the vocational expert’s testimony that “roughly” 25,000 postal positions existed in
the national economy did not leave the ALJ’s step-five conclusions without support. Even
accounting for some reduction in the expert’s estimate, the ALJ appropriately concluded that
available jobs existed in significant numbers. Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th
Cir. 1979) (stating in dicta that 110 jobs in a particular region may constitute a significant number);
see also Young v. Astrue, 519 F. App’x 769, 772 (3d Cir. 2013) (“[T]he testimony from the
vocational expert that 20,000 jobs were available in the national economy is sufficient to support
a finding that work exists in significant numbers.”); Johnson v. Chater, 108 F.3d 178, 180 (8th
Cir. 1997) (finding that vocational expert testimony that there were 10,000 jobs nationally
sufficiently showed a significant number).

Identification of an occupation appropriate for

Claimant, existing in significant numbers, fulfills the Commissioner’s burden at the fifth step of
the process.
The Court FINDS the ALJ reached a decision at step five that was supported by substantial
evidence.

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IV.

CONCLUSION

For these reasons, the Court OVERRULES the Objections, (ECF No. 26), ADOPTS the
PF&R, (ECF No. 25), DENIES Plaintiff’s request for judgment on the pleadings, (ECF No. 20),
GRANTS the Commissioner’s request for judgment on the pleadings, (ECF No. 23), AFFIRMS
the decision of the Commissioner, and DISMISSES this action.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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July 20, 2017