HUGH W. BRENNEMAN, Jr., Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for disability insurance benefits (DIB) and supplemental security income (SSI).
Plaintiff was born on June 13, 1959 (AR 163).
This court's review of the Commissioner's decision is typically focused on determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. §405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). "Substantial evidence is 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." Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court does not review the evidence de novo, make credibility determinations or weigh the evidence. Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record also contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for that decision in the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). Even if the reviewing court would resolve the dispute differently, the Commissioner's decision must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to benefits. A disability is established by showing that the claimant cannot engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at step five of the inquiry, "the burden shifts to the Commissioner to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Id. If it is determined that a claimant is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
"The federal court's standard of review for SSI cases mirrors the standard applied in social security disability cases." D'Angelo v. Commissioner of Social Security, 475 F.Supp.2d 716, 719 (W.D. Mich. 2007). "The proper inquiry in an application for SSI benefits is whether the plaintiff was disabled on or after her application date." Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
Plaintiff's claim failed at the fifth step of the evaluation. The ALJ initially found that plaintiff has not engaged in substantial gainful activity since the alleged onset date of July 27, 2010 and that she met the insured status requirements under the Social Security Act through December 31, 2012 (AR 15). Second, the ALJ found that plaintiff had severe impairments of: status-post left knee replacement as of January 2011; status-post right ankle fixation with open reduction internal fixation; degenerative disc disease of the lumbar spine; and obesity (AR 15). At the third step, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (AR 15). Specifically, plaintiff did not meet the requirements of Listings 1.02 (major dysfunction of a joint), 1.03 (reconstructive surgery or surgical arthrodesis of a major weight-bearing joint), and 1.04 (disorders of the spine) (AR 16).
The ALJ decided at the fourth step that:
(AR 16-17). At the fourth step, the ALJ also found that plaintiff was unable to perform any past relevant work (AR 22).
At the fifth step, the ALJ determined that plaintiff could perform a range of work in the national and Michigan economies (AR 22-23). The work included: "a cashier food service" (7,300 state jobs and 242,100 national jobs); and "a cashier backroom department store" (1,300 state jobs and 41,900 national jobs) (AR 23). The ALJ further stated that even if plaintiff's RFC was reduced to accommodate her alleged need to elevate her leg, "such jobs would still be available at number reduced to 50%, as set forth in the vocational expert testimony" (AR 23). Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act, from July 27, 2010 through August 25, 2011 (the date of the decision) (AR 23-24).
Plaintiff raised two issues on appeal:
At step five of the sequential evaluation, the ALJ found that plaintiff could perform 8,600 cashier jobs which were available in Michigan. Plaintiff contends that the ALJ's finding is not supported by substantial evidence.
As an initial matter, plaintiff contends that the number of available jobs should be reduced by 50%, resulting in only 4,300 jobs. Plaintiff apparently reached this number based upon the ALJ's statement that "[t]he undersigned also notes that, even if the claimant's residual functional capacity was reduced to accommodate her alleged need to elevate her leg as he representative argued, such jobs would still be available at number reduced to 50%, as set forth in the vocational expert testimony" (AR 23). Plaintiff's need to elevate her left leg was a restriction determined by her primary care physician, R. Michael, D.O., who issued a "certificate for return to school work [sic]" on April 28, 2010 stating that plaintiff could return to work on April 29, 2010 with the following limitations "4.5 hours standing may do 8 hrs if sitting [e]levate [left] leg when sitting" (AR 332).
Plaintiff justifies her need to elevate her left leg, and the use of the lesser number of jobs, because the ALJ failed to give "good reasons" for the weight given to a treating physician as required under Wilson v. Commissioner of Social Security, 378 F.3d 541, 546 (6th Cir. 2004). See 20 C.F.R. § 404.1527(c)(2) ("[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion"). The ALJ addressed Dr. Michael's limitation as follows:
(AR 21). Assuming that Dr. Michael was a treating physician, the ALJ articulated good reasons for giving little weight to the doctor's restrictions issued on April 28, 2010.
Having established that the ALJ properly excluded the leg elevation restriction from the RFC, the issue before the Court is whether the ALJ's decision is supported by substantial evidence, where the vocational evidence established that plaintiff could perform 8,600 jobs in the regional economy, defined as the State of Michigan. In Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988), the Sixth Circuit found that 1,350 to 1,800 jobs in the Dayton, Ohio, area was significant number in that case. In reaching its determination, the court observed that there is no "magic number" that represents a "significant number" of jobs. Id. "The decision should ultimately be left to the trial judge's common sense in weighing the statutory language as applied to a particular claimant's factual situation." Id. The judge may consider factors such as: vocational expert's testimony; the reliability of the claimant's testimony; the distance claimant is capable of traveling to engage in the assigned work; the isolated nature of the jobs; and the types and availability of such work. Id.
The Sixth Circuit also considered the relevant statute and regulation. The definition of disability in 42 U.S.C. § 423(d)(2)(A), which states in pertinent part that "`work which exists in the national economy' means work that exists in significant numbers either in the region where such individual lives or in several regions of the country." Id. at 274-75. Finally, the applicable regulation, 20 C.F.R. § 404.1566(b), provides in pertinent part:
Id. at 275.
In Police v. Secretary of Health and Human Services, No. 87-1609, 1988 WL 28536 (6th Cir. April 1, 1988), the Sixth Circuit found that 3,600 jobs located within the State of Michigan was considered to be a significant number. Given these considerations, the existence of 8,600 jobs is sufficient to establish a "significant number" of jobs that plaintiff can perform in the State of Michigan. Even if the Court adopted plaintiff's reasoning and reduced these available jobs by 50%, the resulting 4,300 jobs would exceed the 3,600 statewide jobs identified in Police. Accordingly, plaintiff's claim of error will be denied.
Plaintiff contends that the ALJ used meaningless "boilerplate language" to evaluate her credibility, when he stated that:
(AR 18). Plaintiff relies on the Seventh Circuit decision in Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012), which criticized the Agency's use of this language in ALJ decisions:
Bjornson, 671 F.3d at 645-46. The court also opined that "[t]he Social Security Administration had better take a close look at the utility and intelligibility of its `templates.'" Id. at 646.
While the Seventh Circuit noted that "we first stubbed our toe" on this "opaque boilerplate," id. at 644, the court did not summarily reverse the ALJ's decision for using the boilerplate, see id. at 644-49. Rather, the Court considered the ALJ's specific reasons for rejecting the ALJ's credibility determination. See id. at 646 ("[t]he administrative law judge based his doubts about Bjornson's credibility on his assessment of the medical reports or testimony of the three doctors whom we've mentioned"). Assuming that this Court agreed with the Seventh Circuit's characterization of the Commissioner's boilerplate language, the ALJ's use of the language in this case is not, in and of itself, grounds for reversal because the ALJ also gave specific reasons for rejecting plaintiff's credibility. Examples of the ALJ's reasons include the following:
The claimant's activities of daily living seem to contradict some of her alleged limitations as mentioned above. Although the claimant alleged difficulty climbing stairs, she lives in a second floor apartment, she goes grocery shopping every week and attends church every Sunday. She also alleged difficulty standing for long periods of time and testified that she can only lift up to 5 pounds. However, she occasionally does her own grocery shopping, takes public transportation to and from the grocery store, and manages to carry her groceries the entire way. She also lives alone and is capable of preparing light meals, tending to her own personal care needs, and does her own cleaning, vacuuming, and laundry. As for her complaints of pain, the records document the claimant's pain rating to be 3 or 4, not as excruciating as 9 or 10, as she stated at the hearing.
(AR 18-20, 22). Accordingly, plaintiff's claim of error is denied.
The ALJ's determination is supported by substantial evidence. The Commissioner's decision will be affirmed pursuant to 42 U.S.C. § 405(g). A judgment consistent with this opinion will be issued forthwith.
