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Purk v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

March 10, 2017

DEBORAH L. PURK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Comm'r of Social Security, Defendant.

          DAN AARON POLSTER JUDGE

          REPORT AND RECOMMENDATION

          David A. Ruiz United States Magistrate Judge

         Plaintiff, Deborah L. Purk (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “Commissioner”), denying her applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.

         I. Procedural History

         On September 14, 2012, Plaintiff filed her applications for POD, DIB, and SSI, alleging a disability onset date of May 26, 2012. (Transcript (“Tr.”) 164-176). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 90-115). Plaintiff participated in the hearing on August 13, 2014, was represented by counsel, and testified. (Tr. 26-47). A vocational expert (“VE”) also participated and testified. Id. On November 26, 2014, the ALJ found Plaintiff not disabled. (Tr. 21.) On April 13, 2016, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-4). On June 13, 2016, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 12 & 13).

         Plaintiff asserts one assignment of error: (1) the ALJ erred at Step Five of the sequential evaluation by relying on the vocational expert's testimony that she acquired transferable skills. (R. 12, PageID# 418-423).

         II. Evidence

         A. Personal and Vocational Evidence

         Plaintiff was born in May of 1956 and was 55-years-old on the alleged disability onset date. (Tr. 164). She had at least a high school education and was able to communicate in English. (Tr. 20). She had past relevant work as a home health aide, shipping clerk, and machine operator. Id.

         B . Relevant Hearing Testimony[1]

         In a Work History Report she completed in association with her disability applications, Plaintiff identified five past jobs that she held between 1996 and 2012: (1) “home health care worker;” (2) “shipping & receiving;” (3) “machine operator;” (4) “food server - baker;” and (5) “cashier.” (Tr. 227). With respect to the “shipping & receiving” job which forms the basis of Plaintiff's sole assignment of error, she described her duties as follows:

Clean and prepare jobs for process-clean parts with degrease and tape off specific areas. Some jobs were only 2 inch[es] long while others were 25 ft or more. Some jobs were 1 piece while other jobs were over 50 pieces. After process I had to remove tape and residue from part and clean and pack for shipping.

(Tr. 227, 229, 234). According to Plaintiff, the shipping and receiving clerk position involved 6 to 8 hours of walking, 8 to 10 hours of standing, and 0 hours of sitting. (Tr. 229). All postural movements were described as frequent to constant. Id. The work involved using machines, tools or equipment; required technical knowledge and skills; and involved writing and/or completing reports. Id. She indicated that she spent 8 to 10 hours per day writing, typing, or handling small objects. Id.

         At the August 13, 2014 hearing, Plaintiff testified as follows:

• She received a GED and did not attend college. (Tr. 31-32).
• Between 1996 and 2004, she worked as a machine operator. Specifically, she did the drilling and grinding of slip yokes, which are automotive parts. The work involved being on her feet all day and lifting up to 40 pounds. (Tr. 32).
• Between 2004 and 2009, she worked in shipping and receiving for a metal fabricator. Her job duties included cleaning parts brought into the plant and “mov[ing] them down the line.” When parts were ready to be shipped, she cleaned them, packed them, and got them ready for shipment. (Tr. 32). The job involved mostly standing with occasional kneeling, and would lift no more than 40 pounds-she used a crane for any items that were heavier than 40 pounds. (Tr. 32-33).

         At the outset of the VE's testimony, the ALJ asked: “Do you understand that if you give us an opinion that conflicts with information in the DOT [Dictionary of Occupational Titles] that you need to advise us of the conflict and the basis for your opinion?” (Tr. 41) The VE responded that she understood. Id. The VE identified Plaintiff's past relevant work as follows: a home health aide, DICOT 355.674-014, semiskilled, SVP: 4, medium exertion per the DOT and medium to heavy as typically performed; a shipping and receiving clerk, DICOT 222.387-050, skilled, SVP: 5, medium exertion per the DOT and as performed; and, a machine operator, DICOT 606.685-010, semiskilled, SVP: 3, medium exertion per the DOT and as performed. (Tr. 41-42).

         The ALJ posed the following hypothetical question to the VE:

[A]ssume an individual the Claimant's age, education and work experience with the following limitations: Occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds; stand or walk six hours and sit six hours in an eight-hour workday with normal breaks; push or pull consistent with the lifting limitations; occasionally climb ladders or scaffolds; occasionally climb ramps or stairs; frequently stoop or balance; occasionally kneel, crouch or crawl. Would that individual be able to perform any of the Claimant's past work?

(Tr. 42).

         The VE testified that such an individual could not perform any of Plaintiff's past relevant work. (Tr. 42). Thereafter, the ALJ inquired as to whether “the Claimant acquired any skills from her past work that would transfer to occupations within the limitations that I've given you?” The VE responded in the affirmative. (Tr. 42). The VE identified the specific skills as “compiling and organizing.” (Tr. 42-43). The VE testified that Plaintiff's acquired skills would allow her to perform the following light exertional jobs within the parameters set by the hypothetical: a complaint clerk, DICOT 221.387-014, semiskilled, SVP: 4, light (300, 000 jobs nationally); shipping checker, DICOT 222.687-030, semiskilled, SVP: 4, light (350, 000 jobs nationally); quality control clerk, DICOT 229.587-014, semiskilled, SVP: 3, light (400, 000 jobs nationally). (Tr. ...


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