United States District Court, E.D. Kentucky, Lexington
OPINION AND ORDER
William O. Bertelsman United States District Judge.
a Social Security appeal filed by plaintiff, through counsel,
pursuant to 42 U.S.C. §§ 405(g). In accordance with
the Court's standard procedures, both plaintiff and the
Commissioner have filed motions for summary judgment based
upon the administrative record. Docs. 12, 14. After
considering the record and applicable law, the Court
concludes that the Commissioner's motion will be granted
and the plaintiff's will be denied.
Factual and Procedural History
Bobby Thomas filed an application for disability insurance
benefits (“DIB”) in September 2013. Tr. (Doc.
8-1) at 310-316. Plaintiff alleged a disability onset date of
February 14, 2013 (Tr. 310) due to rheumatory arthritis,
unspecified “mental illness” and obesity. Tr.
440. Plaintiff was listed as being 5'7” tall and
weighing 290 pounds. Id. After his claims were
denied initially and upon reconsideration (Tr. 259-262;
264-270), plaintiff requested a hearing before an ALJ. Tr.
271-272. On September 14, 2015, an evidentiary hearing was
held by ALJ Gloria York, at which plaintiff--represented by
counsel-testified, as did William Harpool, a vocational
expert (“VE”). Tr. 192-223.
testified that he was born in 1981 and completed high school.
Tr. 196-198. Plaintiff attributed his significant weight gain
to daily intake of prednisone, a steroid. Tr. 197. He has not
worked since February 14, 2013. Tr. 198. Plaintiff was
employed as a material handler, which required him to help
attach frames to bed springs. Tr. 198-199. Previously, he was
a border bender, clipping borders onto bed springs. Tr.
199-200. From January 2012 to February 2013 plaintiff worked
sporadically and sometimes was on sick or FMLA leave. Tr.
200-201. Plaintiff takes prescription medicines for his
rheumatoid arthritis, which provide “some relief . . .
.” Tr. 202. Plaintiff also suffers from obsessive
compulsive disorder (“OCD”), for which he
receives mental health treatment and takes prescription
medications. Tr. 205-206.
lives with his wife and two young sons, but answered
“[n]o, ma'am” when asked by the ALJ if he
“take[s] care of the children[.]” Tr. 207. In
addition, plaintiff performs no household chores, such as
cooking or yard work. Tr. 208. Plaintiff's wife primarily
does the family grocery shopping, but plaintiff does drive to
a store a couple times per week. Tr. 209. When asked what he
did all day, plaintiff stated that he “watch[es] TV and
stuff.” Tr. 210. Though it is difficult for him to do
so, plaintiff tries to attend church weekly but engages in no
other social activities because he “do[es]n't want
to be around people” as he “look[s] goofy”
and has low self-esteem. Tr. 211. Plaintiff estimated he
could stand and walk about twenty minutes each and can sit
about thirty minutes. Tr. 211. He can lift a gallon of milk
and manipulate buttons and zippers, albeit with some
difficulty at times. Tr. 212. Plaintiff sleeps poorly due to
anxiety and pain. Tr. 213. Finally, Plaintiff “stay[s]
so tired and do[es]n't feel like doing nothing” due
to the rheumatoid arthritis. Tr. 215.
then testified, classifying plaintiff's relevant past
work as a material handler, which is an entry level position
performed at the heavy level, and as a vending machine
operator, which also is an entry level position but is
performed at the medium level. Tr. 216. Tr. 48. The VE and the
ALJ then engaged in the following colloquy:
Q [by the ALJ] Mr. Harpool, I have a couple of hypothetical
questions to ask of you . . . . First, I'd like you to
assume a hypothetical individual of the Claimant's age.
He was 31-years-old on the alleged onset of disability,
33-years-old at present and a younger individual. He has
completed school through the 12thgrade and he has
past work in terms of skill and exertional level as you have
described. I'd like you to assume that he can perform
light and sedentary work, he can lift and carry 20 pounds
occasionally and 10 pounds frequently. He can stand and walk
six hours out of an eight-hour day. He can sit six hours out
of an eight-hour day. I'd like you to assume that he can
frequently handle, finger, and feel with both upper
extremities. I'd like you to assume that he is limited to
routine, repetitive tasks which require occasional
interaction with supervisors and coworkers, no interaction
with the general public, and he's limited to jobs that
are not fast paced. Can he go back to any of his past work?
A [by the VE] No.
Q Are there unskilled jobs he can do?
A Representative examples would be unskilled light
inspecting. . . . Region, Kentucky about 3, 300 . . .; nation
about 200, 000 . . . . There'd be unskilled light
housekeeping and cleaning, office cleaner for night-at night,
for example . . . . About 4, 000 in the region . . .,
national approximately 250, 000 . . . . Hand packing hand
working job just folding items or labeling items, that sort
of thing . . . . About 3, 200 in the region . . . . National
approximately 195, 000 . . . . Those are examples.
Q And for hand packer [that] job is light also?
A Light unskilled.
Q Are there sedentary jobs such a person could do?
A Yes. Sedentary inspecting . . . . About 3, 800 in the
region . . . . Nation about 185, 000 . . . . It would be
final assembly type jobs. Sit down assembly, unskilled . . .
. 3, 200 in the region . . . . The nation about 165, 000 . .
. . Sedentary hand working typing type jobs again . . . .
Roughly 3, 000 in the region . . . . In the nation 150, 000 .
. . . I gave you a representative of that.
Q All right. And the I guess two and a half or third
hypothetical, I'd like you to assume we have the same
individual that we talked about in terms of age, education,
and past work. And those same limitations, either light or
sedentary work, but the person would have to alternate
position from sitting to standing and vice versa every 30
minutes. Does that make a difference in your answer?
A It's only a brief change of position. It wouldn't
affect sedentary very that [sic] much. Light jobs, maybe a
Tr. 216-218. The VE then testified that a person with the
aforementioned limitations who also could stand and walk less
than two hours out of an eight-hour workday, sit less than
two hours out of an eight-hour workday and who would be
absent “close to more than four times a month”
could not perform any work. Tr. 219. When asked by
plaintiff's counsel, the VE testified that a person who
had a marked inability to tolerate stress could not work. Tr.
issued her decision on October 15, 2015, using the familiar
five-step sequential evaluation process. Tr. 165-191. At
Step 1 the ALJ found that plaintiff has not engaged in
substantial gainful activity from the alleged onset date of
January 6, 2012. Tr. 171. At Step 2, the ALJ found that
plaintiff's rheumatoid arthritis, obesity and adjustment
disorder with depression and anxiety were severe impairments.
Tr. 171. At Step 3, the ALJ found that plaintiff did not have
an impairment, singly or in combination, which met one of the
listed impairments. Tr. 172-173.
as a necessary antecedent to Step 4, the ALJ found that
plaintiff had the following residual functional capacity
(“RFC”),  which largely tracks her hypotheticals to
the VE. Specifically, the ALJ found plaintiff had the
residual functional capacity:
for a limited range of light and sedentary work. He can lift
and carry 20 pounds occasionally and ten pounds frequently;
stand and walk six hours out of an eight hour day; sit six
hours out of an eight hour day; frequently handle, finger,
and feel with both upper extremities; and is limited to
routine, repetitive tasks which require only occasional
interaction with supervisors and co-workers and no
interaction with the general public in a job which is not
Tr. 174 (emphasis omitted). Given that RFC, at Step 4 the ALJ
concluded that plaintiff could not perform his past relevant
work. Tr. 182. At Step 5, the ALJ concluded that there are
jobs that exist in significant numbers in the national
economy at both the light and sedentary exertional levels
which plaintiff could perform, such as, among others,
inspector and hand packer. Tr. 183-184. Thus, the ALJ found
that plaintiff was not disabled. Tr. 185.
promptly sought review of the ALJ's decision by the
Appeals Council (Tr. 163-164) but in October 2016, the
Appeals Council denied plaintiff's request for review.
Tr. 1-4. ALJ York's decision thus became the
Commissioner's final decision. Plaintiff then timely
commenced this action. Doc. 1.
Standards of Review
Social Security appeal, the Court is to determine whether the
ALJ's non-disability finding is supported by substantial
evidence and was made pursuant to proper legal standards. 42
U.S.C. §§ 405(g). See also Rabbers v.
Comm'r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). Substantial evidence is
“defined as more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quotation marks and citation omitted). If substantial
evidence supports the ALJ's denial of benefits that
finding must be affirmed, even if substantial evidence also
exists which would support a finding of disability.
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.
1994). As the Sixth Circuit explained:
The [Commissioner's] findings are not subject to reversal
merely because substantial evidence exists in the record to
support a different conclusion. The substantial evidence
standard presupposes that there is a zone of choice within
which the [Commissioner] may proceed without interference
from the courts. If the [Commissioner's] ...