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Whitlock v. Berryhill

United States District Court, W.D. Kentucky, Louisville Division

October 3, 2018

KENNETH WHITLOCK PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge United States District Court

         This 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 determination.

         Plaintiff 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.[1]

         In May 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 evidence.

         Plaintiff 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, pp. 12-16).

         For the 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.

         The Commissioner's final decision

         At the 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). (Id.).

         In his 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.

         The 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).

         In 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).

         The Commissioner did not err in applying the Appendix 2 rules.

         In 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 reduced.[2]

         To the 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 ...


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