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Thomas v. Commissioner of Social Security

United States District Court, E.D. Kentucky, Lexington

August 28, 2017

BOBBY THOMAS PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          OPINION AND ORDER

          William O. Bertelsman United States District Judge.

         This is 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.

         I. Factual and Procedural History

         Plaintiff 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)[1] 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.

         Plaintiff 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.

         Plaintiff 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.

         The VE 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.[2] 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 10% reduction.

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. 220.

         The ALJ issued her decision on October 15, 2015, using the familiar five-step sequential evaluation process.[3] 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.

         Next, as a necessary antecedent to Step 4, the ALJ found that plaintiff had the following residual functional capacity (“RFC”), [4] 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 fast paced.

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.

         Plaintiff 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.

         II. Analysis

         A. Standards of Review

         In a 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] ...

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