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Wilson v. Berryhill

United States District Court, W.D. Missouri, Western Division

July 9, 2018

NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.



         Before the Court is Plaintiff's appeal of the Commissioner's denial of her application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S. §§ 1381, et seq. and Social Security Disability Insurance (SSDI) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. Plaintiff has exhausted her administrative remedies and the matter is now ripe for judicial review. After carefully reviewing the files and records, the Court finds the decision of the Commissioner is supported by substantial evidence in the record as a whole and the decision is AFFIRMED.


         Judicial review of the Commissioner's decision is a limited inquiry into whether substantial evidence supports the findings of the Commissioner and whether the correct legal standards were applied. See 42 U.S.C. §§ 405(g), 1383(c)(1)(B)(ii)(3). Substantial evidence is less than a preponderance of the evidence and requires enough evidence to allow a reasonable person to find adequate support for the Commissioner's conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Freeman v. Apfel, 208 F.3d 687, 690 (8th Cir. 2000). This standard requires a court to consider both the evidence that supports the Commissioner's decision and the evidence that detracts from it. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). “The fact that some evidence may support a conclusion opposite from that reached by the Commissioner does not alone permit our reversal of the Commissioner's decision.” Page v. Astrue, 484 F.3d 1040, 1042-43 (8th Cir. 2007). “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must affirm the denial of benefits.” Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)). Courts “defer heavily to the findings and conclusions of the Social Security Administration” and will disturb the Commissioner's decision only if it falls outside the “zone of choice.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Casey v. Astrue, 503 F.3d 687, 691 (8th Cir. 2007).


         The procedural history, facts, and issues of this case are contained in the record and the parties' briefs, so they are not repeated here. The ALJ found Plaintiff suffered from the following severe impairments: moderate bilateral hip osteoarthritis; mild shoulder osteoarthritis; bilateral knees degenerative disc disease; diabetes mellitus, type 2, uncontrolled with neuropathy; obesity, and; carpal tunnel syndrome. After finding Plaintiff's impairments did not meet or equal a listed impairment, the ALJ determined that Plaintiff retained the following residual functional capacity (“RFC”):

[C]laimant has the residual functional capacity to lift and carry 10 pounds occasionally and less than 10 pounds frequently; sit for 6 hours and stand and/or walk for 2 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday. As regards to manipulative limitations, as for reaching overheard she could reach overhead left occasionally and reach all other left occasionally. She can occasionally climb ramps and stairs, never climb ladders or scaffolds, never balance, occasionally stoop, never kneel, never crouch, and never crawl. She should never be exposed to unprotected heights, never be exposed to moving mechanical parts. She could occasionally be limited to push and pull at 10 pounds on an occasionally basis, but never with the upper left extremity. Finally, she should be limited to jobs that can be performed while using a hand held assistive device that should be used at all times while standing.

         The ALJ concluded that Plaintiff is unable to perform past relevant work but is not disabled because she can perform jobs that exist in significant numbers in the national economy, including representative occupation of surveillance system monitor. Plaintiff argues on appeal that the ALJ's determination is not supported by substantial evidence in the record and that the ALJ did not apply the appropriate legal standards.


         After full and careful review of the record and briefs, the Court affirms the decision of the ALJ for the reasons set forth herein.

         Plaintiff objects to the ALJ's findings on the basis that the ALJ did not properly perform the disability analysis at step five. The disability determination is made after the ALJ goes through a five-step sequential analysis. At step five, if the claimant cannot perform past relevant work, “the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.” Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998). At this step, “the Commissioner has the burden to establish that jobs realistically suited to the claimant's residual functional capabilities are available in the national economy.” Id. at 1207.

         In this case, after questioning and presentation of a hypothetical containing Plaintiff's RFC, the vocational expert testified that Plaintiff could perform only one job: surveillance system monitor (DOT 379.367-010). There are 600 such jobs in Missouri and 35, 000 nationally. The Court notes that the number of types of jobs a claimant can perform is not relevant to the ultimate issue of whether there is a significant number of jobs that the claimant can perform. Halliburton v. Colvin, No. 4:14-cv-00268-NKL, 2014 WL 6649150, at *2 (W.D. Mo. Nov. 24, 2014). Furthermore, the number of jobs cited as being available are more than sufficient to meet the significant numbers of jobs requirement. Id.; see also Welsh v. Colvin, 766 F.3d 926, 930 (8th Cir. 2014) (concluding that 330 jobs available in Iowa and 36, 000 available nationally constituted a significant number of jobs).

         Plaintiff's objection takes two forms: First, the ALJ misstated Plaintiff's educational level in his findings because he stated in his opinion that Plaintiff completed high school when, in fact, she did not graduate. Second, the ALJ relied on the vocational expert's testimony regarding the availability of the surveillance system monitor occupation without inquiring as to whether such jobs existed in the national economy as described in the DOT.

         On the first point, the Court finds the error harmless. During the hearing, the vocational expert heard Plaintiff's testimony that she attended twelfth grade but did not graduate. The ALJ told the vocational expert to take into account Plaintiff's educational level. Thus, there is no reason to conclude that the vocational expert assumed Plaintiff was a high school graduate in rendering an opinion concerning occupational availability. See Applegate v. Colvin, No.4:12-cv-3029, 2013 WL 1222124, at *11-12 (D. Neb. Mar. 25, 2013) ...

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