United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
King, Magistrate Judge United States District Court
matter is before the Court on Plaintiff's Complaint
seeking judicial review, pursuant to 42 U.S.C. § 405(g),
of the final decision of the Commissioner denying his claim
for Social Security disability benefits. Plaintiff's fact
and law summary is at Docket # 18-1, and Defendant's fact
and law summary is at Docket # 24. The matter is ripe for
consented to the jurisdiction of Magistrate Judge Whalin to
determine this case, with any appeal lying before the Sixth
Circuit Court of Appeals. (Docket # 13). Following Magistrate
Judge Whalin's retirement, the Court reassigned the
matter to the undersigned Magistrate Judge for all further
proceedings. (Docket # 23). Plaintiff has impliedly consented
to the jurisdiction of the undersigned.
2016, the administrative law judge (“ALJ”) found
that Plaintiff is not disabled through the date of his
decision. (Administrative Record (“AR”), pp.
27-39). In October 2017, the Appeals Council reversed the
ALJ's decision, finding that Plaintiff became disabled on
January 5, 2016 (his fifty-fifth birthday). (AR, pp. 6-10).
The Appeals Council affirmed the ALJ's finding that
Plaintiff is not disabled for the period prior to January 5,
2016. (Id.). The issue in this case, therefore, is
whether the ALJ's decision that Plaintiff is not disabled
prior to January 5, 2016, is supported by substantial
presents two arguments. First, he argues that “the
Appeals Council erred by denying benefits at step 5 of the
sequential analysis without, at the very least, determining
whether the light occupational base was ‘significantly
reduced' by the limitation in the RFC [residual
functional capacity].” (Docket # 18-1, pp. 5-12).
Second, he argues that “the Appeals Council also erred
by failing altogether to consider the opinions of the
SSA's [Social Security Administration's]
non-examining psychological consultants and further erred by
failing to account for all of Plaintiff's work-related
mental limitations in his RFC finding.” (Docket # 18-1,
reasons below, the first argument is unpersuasive, and the
second argument is persuasive. Because the Commissioner erred
in ignoring the medical opinions of her own psychological
consultants, this matter will be REMANDED to the Commissioner
for a new decision weighing those opinions.
Commissioner's final decision
administrative hearing, the ALJ asked the vocational expert
(VE) to assume an individual having Plaintiff's age,
education, and work experience, who can perform medium work,
except that he can only occasionally stoop. The VE testified
that such an individual, in fact, cannot perform
medium work. (AR, p. 86). However, the individual can perform
a significant number of light jobs in the national economy.
(AR, pp. 84-87). Representative examples are: tagger (with
300, 000 jobs nationally), garment sorter (200, 000 jobs
nationally), and inspector (400, 000 jobs nationally).
May 2016 decision, the ALJ found that Plaintiff can perform
medium work with only occasionally stoop. (AR, p. 31). The
ALJ denied Plaintiff's disability claim, finding that,
although he can no longer perform his past relevant work,
Plaintiff retains the ability (through the decision date) to
perform a significant number of light jobs in the national
economy (i.e., those identified by the VE). (AR, pp. 37- 39).
The ALJ cited Rule 203.22 of Appendix 2 of the regulations as
a framework for decision-making. (AR, p. 38). Rule 203.22
contemplates an individual having a maximum sustained work
capability for medium work and directs an ultimate finding of
“not disabled.” Regulations, Appendix 2.
Appeals Council reversed the ALJ's decision, finding that
Plaintiff became disabled on January 5, 2016, his fifty-fifth
birthday. (AR, p. 8). The Appeals Council affirmed the
ALJ's finding that, before January 5, 2016, Plaintiff was
not disabled because he retained the ability to perform a
significant number of light jobs in the national economy.
(AR, p. 9).
support of its reversal, the Appeals Council's accepted
the ALJ's finding that Plaintiff can only occasionally
stoop. (AR, p. 8). An individual who can only occasionally
stoop has a maximum sustained work capacity for light work
because “the considerable lifting required for the full
range of medium work usually requires frequent
bending-stooping.” (Id.) (quoting Social
Security Ruling (SSR) 83-10, 1983 WL 31251, at *6)).
Beginning on January 5, 2016, Rule 202.06, which contemplates
a maximum sustained work capability for light work, directs
an ultimate finding of “disabled.” (AR, p. 9).
Commissioner did not err in applying the Appendix 2
addition to finding that Plaintiff can perform medium work
with only occasional stooping, the ALJ found that he
“must alternative the positions of sit and stand every
30 minutes.” (AR, p. 31). In relying on Rule 203.22 as
a framework for decision-making (AR, p. 38), the ALJ
implicitly found that Plaintiff's previous work
experience was skilled or semiskilled - skills not
transferable. SSR 83-12, 1983 WL 31253, at *4, provides that,
if an individual has no transferable work skills and must
alternate periods of sitting and standing, the occupational
base for light work may be significantly
extent Plaintiff's positio n is that S SR 83-12 should be
interpreted to mean that an individual who requires a
sit/stand option is unable to perform either light of
sedentary work, the Sixth Circuit long ago rejected that
interpretation as “untenable” because it
“neglects to mention the regulation's concluding
sentence: ‘[i]n cases of unusual limitation of ability
to sit or stand, a [vocational expert] should be consulted to
clarify the implications for the occupational