ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER IS REMANDED TO THE ALJ UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g)
TIMOTHY S. BLACK, District Judge.
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to supplemental security income ("SSI") and disability insurance benefits ("DIB"). (See Administrative Transcript at Doc. 8, Ex. 2 ("PageID") (PageID 101-110) (ALJ's decision)).
I.
On September 29, 2008, Plaintiff protectively filed for DIB and SSI, alleging disability beginning April 15, 2008. (PageID 59-64). Plaintiff alleges disability due to knee problems, depression, and anxiety. Plaintiff's applications were denied initially on February 3, 2009, and upon reconsideration on June 15, 2009. (PageID 174-180, 185-197). Plaintiff appeared and testified at a hearing on December 7, 2010 in Dayton, Ohio. (PageID 116-139). An impartial vocational expert also appeared and testified. (Id.) The ALJ issued her decision on December 17, 2010, finding that Plaintiff was not disabled as defined by the Social Security Act and, therefore, not entitled to benefits. (PageID 101-110).
The Appeals Council denied review, making the ALJ's decision the final determination of the Commissioner. (PageID 59-64). Plaintiff then properly commenced this action in this Court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff is 64 years old. Plaintiff completed the eleventh grade and then earned his GED. (PageID 120). Plaintiff's past relevant work includes newspaper carrier (unskilled, light exertion), hand packer (unskilled, medium exertion), forklift operator (semi-skilled, medium exertion), tank assembler (semi-skilled, medium exertion), and general production assembler (unskilled, light exertion).1 (PageID 51).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since April 15, 2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: osteoarthritis, bilateral knees; obesity; anxiety; depression; alcohol abuse in remission (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity2 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) subject to the following limitations: only low stress work with no assembly line production quotas and work that is not fast paced.
6. The claimant is capable of performing past relevant work as a newspaper carrier. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from April 15, 2008, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
(PageID 101-110).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, not entitled to DIB or SSI. (PageID 110).
On appeal, Plaintiff argues that the ALJ erred in finding that Plaintiff was capable of his past work as a newspaper carrier.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has 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 decision is supported by substantial evidence, a reviewing court must affirm."
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A. The record reflects that:
1. Hearing Testimony
Plaintiff is five feet eight inches tall, and weighs 240 pounds. (PageID 119). He lives in a rented out "sleeping room" with no kitchen privileges but a microwave and refrigerator. (PageID 119-120). Plaintiff's most recent job was a factory line operator for Jefferson Industries/Honda, which he quit in April 2008, because he could not handle standing twelve hours a day on the cement for five days a week. (PageID 120-121). At the December 7, 2010 hearing, Plaintiff had recently obtained a part-time job at K-Mart stocking shelves and helping customers. (PageID 124).
Plaintiff testified that his primary physical impairments are arthritis in his legs, a problem with his sciatic nerve down the right side, and low energy level. (PageID 122). He testified that he could stand in one spot for possibly two hours and that he sometimes has trouble sitting and then standing back up. (PageID 126). His primary mental impairments are depression, anxiety, and trouble sleeping. (PageID 123). He attends appointments at Consolidated Care at least once every other month. (Id.) He testified that he was taking Wellbutrin, but his doctors would not give him anything for anxiety because he tried to overdose on anxiety pills in 2008 and was admitted to a psychiatric hospital. (PageID 131). Plaintiff took Seroquel and Ambien at night and had not had alcohol in over two years. (PageID 123). He attends Alcoholics Anonymous meetings about twice a week, sometimes more. (PageID 124).
Plaintiff usually makes his meals in the microwave. (PageID 125). A typical day for him is to get up, get lunch at the Carry and Kitchen, and then go to the library and C-Tech (a job placement center). (PageID 125-126). Plaintiff's hobbies include fishing in the summer and he sometimes sees his daughter and grandchildren. (PageID 127).
Vocational Expert ("VE") William J. Braunig testified that a newspaper carrier must complete his entire route within the day. (PageID 135-136). The VE indicated that an individual limited to low-stress work with no quotas would not "be very marketable." (PageID 137).
2. Physical Impairments
Plaintiff has a history of knee problems. X-rays taken in October 2010 revealed osteoarthritic changes in both knees. (PageID 802). There was narrowing of the femoral patellar compartment as well as narrowing of a moderate degree involving the medial femorotibial compartment, mild narrowing of the lateral femoral tibial compartment with minimal osteophytic spur formations. (Id.) In the left knee, there was narrowing of the femoral patellar compartment, moderate to severe narrowing of the medial femorotibial compartment and mild narrowing of the left lateral femorotibial compartment with osteophytic spur formations involving posterior aspect of the patella, distal femur, and proximal tibia without fractures or dislocations. (Id.)
3. Dr. Macy
Treating source, Joe D. Macy, M.D., completed a Basic Medical Form in October 2008 indicating that Plaintiff can stand/walk for one-half hour uninterrupted and two total hours in an eight-hour workday. (PageID 379). Dr. Macy also indicated that Plaintiff is limited to sitting three hours in an eight-hour workday and can only lift 6-10 pounds frequently and 11-20 pounds occasionally. (Id.) Plaintiff is further moderately limited in his ability to push/pull and bend. (Id.) Notably, Dr. Macy concluded that Plaintiff was unemployable for a period of 12 months or more. (Id.)
3. Mental Impairments
Plaintiff was admitted to the Emergency Room at Mercy Memorial Hospital on September 16, 2008. (PageID 328). His admitting diagnosis was: suicide attempt, drug overdose, major depression, and alcohol abuse. His discharge diagnosis stated: transferred to Detmer for inpatient psych facility, suicide attempt, drug overdose, major depression, alcohol abuse, mild rhabdomyolysis, and abnormal liver function tests, could be alcoholic liver disease. (Id.)
Plaintiff indicated that he had no energy and no desire to live. (PageID 331). On mental status examination, Plaintiff's affect was constricted and guarded, his insight was poor, and his impulse control was poor. (PageID 353). He was assessed a GAF score of 30,3 indicating severe dysfunction. (Id.) His assigned discharge GAF was 50,4 still indicative of serious symptoms. (PageID 609). Plaintiff began bi-weekly counseling at Consolidated Care with Dr. Bloom and Ms. Christine in October 2008 for depression and anxiety. (PageID 452).
Plaintiff was examined by consultative clinical psychologist George O. Schulz, Ph.D., on December 10, 2008 at the request of the Bureau of Disability Determination ("BDD"). (PageID 450-457). Dr. Schulz diagnosed Plaintiff with dysthymia, alcohol abuse, psychosocial, and environmental problems — primarily financial and occupational. (PageID 455). He assigned Plaintiff a GAF score of 555 and opined that Plaintiff's ability to withstand the stress and pressures associated with carrying out work activity at an adequate pace and perseverance over a prolonged period — including an eight hour workday or five-day workweek — is moderately impaired. (PageID 455-456).
B.
Plaintiff maintains that the ALJ erred in finding that he was capable of his past work as a newspaper carrier.
Defendant argues that the vocational expert ("VE") "clearly felt that such a position [newspaper carrier] was low stress because `the timeframe in which someone completes their route is typically up to the individual.'" (PageID 846). However, the VE acknowledged that a newspaper carrier's route would "need to be completed within the day" and that a newspaper delivered three days late would not be sufficient. (PageID 135-136). The VE determined that if an individual were limited to low-stress work — defined as having no quotas at all and no real need to complete tasks within a timeframe — "I don't think that you'd be very marketable." (PageID 137). Accordingly, the VE clearly testified that a newspaper carrier would have to meet a quota of finishing his route "within the day." This is not merely unsupported speculation by Plaintiff's attorney, but rather the VE's own testimony. Moreover, it is common sense that customers expect to receive their newspapers on the proper date, and thus a newspaper carrier is clearly subject to the timeframe and quota of finishing his route on time each workday.
Therefore, pursuant to the ALJ's own RFC restricting Plaintiff to low-stress work with no production quotas, Plaintiff is not able to perform his past relevant work as a newspaper carrier. Accordingly, the ALJ's Step Four analysis is not supported by substantial evidence. The ALJ erred in finding that Plaintiff could still perform the newspaper carrier job.
The record demonstrates that Plaintiff was 58 years old, a person of advanced age, on the alleged onset date.6 20 C.F.R. § 404.1563(e) (DIB), 416.963(e) (SSI). Under the Medical-Vocational Guidelines ("the Grid"),7 Grid Rule 202.06 renders an individual of advanced age with a high school education and skilled or semiskilled-skills not transferable, limited to light work, disabled. However, Grid Rule 202.07 renders an individual of advanced age with a high school education and skilled or semiskilled-skills transferable, limited to light work, not disabled. While Plaintiff has past relevant work experience that is considered semiskilled (forklift operator and tank assembler), it is unclear whether such skills are transferable.8 Accordingly, this Court does not have sufficient information to determine disability.
III.
A sentence four remand provides the required relief in cases where there is insufficient evidence in the record to support the Commissioner's conclusions and further fact-finding is necessary. See Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted). In a sentence four remand, the Court makes a final judgment on the Commissioner's decision and "may order the Secretary to consider evidence on remand to remedy a defect in the original proceedings, a defect which caused the Secretary's misapplication of the regulations in the first place." Faucher, 17 F.3d at 175. "It is well established that the party seeking remand bears the burden of showing that a remand is proper under Section 405." Culbertson v. Barnhart, 214 F.Supp.2d 788, 795 (N.D. Ohio 2002) (quoting Willis v. Sec'y of Health & Human Servs., 727 F.2d 551 (6th Cir. 1984)).
IV.
The Court concludes that remand is appropriate in this matter because there is insufficient evidence to support the ALJ's decision.
IT IS THEREFORE ORDERED that the decision of the Commissioner to deny benefits to John Roberts is REVERSED, and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g).
On remand, the ALJ shall: (1) engage a vocational expert to identify Plaintiff's transferable skills (if any), and jobs to which those skills could be transferred (if any); and (2) determine whether Plaintiff is disabled under the Medical-Vocational Rules.
The Clerk shall enter judgment accordingly.
