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Dunn v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division, Dayton

January 23, 2018

WILBUR O. DUNN, JR., Plaintiff,

          Algenon L. Marbley Judge.



         Plaintiff, Wilbur O. Dunn, Jr., brings this action under 42 U.S.C. §' 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (''Commissioner'') denying his applications for Social Security disability insurance benefits and supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 16), the Commissioner's Memorandum in Opposition (ECF No. 18), Plaintiff's Reply (ECF No. 21), and the administrative record (ECF No. 10). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's non-disability finding.


         Plaintiff filed his application for Title II Social Security Disability Benefits on March 6, 2013, alleging that he became disabled on February 15, 2009. His application was denied on August 16, 2013, and upon reconsideration on December 4, 2013.

         Administrative Law Judge Andrew Gollin (the “ALJ”) held a hearing on December 7, 2015, at which Plaintiff, represented by counsel, appeared and testified via video. Vocational Expert William T. Cody (the “VE”) also appeared and testified. On December 23, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. On January 6, 2017, the Appeals Council denied Plaintiff's request for review without substantive comment and adopted the ALJ's decision as the Commissioner's final decision. Plaintiff then timely commenced the instant action on March 8, 2017.

         In his Statement of Errors (ECF No. 16), Plaintiff raises a single contention of error, that the ALJ erred in finding that he could perform other work that exists in significant numbers in the national economy. More specifically, Plaintiff contends that based upon the RFC the ALJ found, he could not perform the representative jobs that the VE identified because of the limitations on his ability to bend/stoop.

         The undersigned's discussion of the record evidence focuses on evidence relevant to consideration of this contention of error.


         A. The VE's Testimony

         The ALJ asked the VE to consider a hypothetical individual with Plaintiff's vocational profile and the RFC the ALJ ultimately assessed. The VE testified that such an individual could not perform Plaintiff's past work. (ECF No. 10 at PAGEID## 98-99.) The VE stated that such an individual could, however, perform other jobs that exist in significant numbers in the national or regional economy, including the following representative positions: assembler, with 300 jobs locally and 80, 000 jobs nationally; packer, with 200 jobs locally and 70, 000 nationally; and inspector, with 50 jobs locally and 40, 000 jobs nationally. (Id. at PAGEID## 99-100.) The VE further testified that all of these representative positions were classified at the sedentary level of exertion with a Specific Vocational Preparation (“SVP”) level of two. He added that these positions did not require any greater reading than level one. When asked whether his testimony was consistent with the Dictionary of Occupational Titles (“DOT”) and the companion publication, the Selected Characteristics of Occupations (“SCO”), the VE responded as follows: “Yes, sir. The things that aren't addressed in the DOT such as pace of work, changes at work, my opinion[s] in those regards come from my professional experience. But . . . none of my testimony is inconsistent with the DOT.” (Id. at PAGEID# 100.) Upon further questioning, the VE testified that if the hypothetical individual was further limited to sedentary work and not be off task more than eight percent of the work period, that individual could still perform the representative jobs previously identified.

         Upon cross-examination, the VE testified that the individual could be off task up to nineteen percent of the time before sustained employment is precluded. The VE also testified that an individual could continue to perform their duties while standing, although their performance tends to be somewhat slower. The VE pointed out that sedentary work contemplates the individual standing for two of the eight hours and sitting for roughly six hours. He added that while standing, the individual would be able to remain on task. When asked whether the individual's ability to perform their job would be impacted if their dominant hand was occupied by a cane, the VE acknowledged that it could, explaining that “[o]ne must be able to use their hands on a frequent basis throughout the workday to be able to perform these jobs.” (Id. at PAGEID# 106.) In response to another question by Plaintiff's counsel, the VE testified that if an individual needed to stand for 5-10 minutes each hour and could only use one hand during that time, it would not erode the positions identified and that erosion would only occur if the individual was off task more than twelve minutes per hour. The VE agreed with Plaintiff's counsel that with the positions identified, the individual would need to bend over to continue working while standing and that inability to do so would result in them being off task. The VE reiterated that being off task 20% of the day or greater would preclude competitive employment.

         B. The Administrative Decision

         The ALJ issued his decision on December 23, 2015, finding that Plaintiff had not been under a disability within the meaning of the Social Security Act since February 15, 2009, the alleged onset date, through his date last insured. (ECF No. 10 at PAGEID##53-67.) At step two of the sequential evaluation process, [1] the ALJ concluded that Plaintiff had the following severe impairments: lumbar degenerative disc disease with radiculitis and spondylosis; osteoarthritis of the bilateral knees; obesity; and depressive disorder; and borderline intellectual functioning. (Id. at PAGEID# 55.) The ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in ...

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