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Turner v. Commissioner of Social Security

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

January 13, 2020

Charles R. Turner, Plaintiff,
Commissioner of Social Security, Defendant.


          James L. Graham United States District Judge.

         Plaintiff Charles R. Turner brings this action under 42 U.S.C. § 405(g) for review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for a period of disability and disability insurance benefits. On April 12, 2018, the administrative law judge (“ALJ”) held a hearing at which plaintiff appeared and was represented by counsel. In his decision of August 27, 2018, the ALJ found that plaintiff had severe impairments consisting of: chronic obstructive pulmonary disease; lumbar, thoracic, and cervical degenerative disc disease; left shoulder degenerative joint disease, obesity; and remote history of gunshot wound. R. 18. The ALJ found that plaintiff had the residual functional capacity (“RFC”) to perform light work with additional restrictions on climbing, stooping, kneeling, crouching and crawling, overhead reaching with the left arm, and exposure to extreme heat and cold, excessive humidity, and pulmonary irritants. R. 21. After considering the testimony of Vocational Expert (“VE”) Eric Pruitt, the ALJ found that plaintiff was capable of performing his past relevant work as an “Inspector and Hand Packager” as that job is generally performed, and that he was not disabled. R. 26-28.

         This matter is before the court on plaintiff's November 19, 2019, objections to the November 5, 2019, report and recommendation of the magistrate judge recommending that the decision of the Commissioner be affirmed. The Commissioner has responded to the objections. I. Standard of Review If a party objects within the allotted time to a report and recommendation, the court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         The court's review “is limited to determining whether the Commissioner's decision ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). “The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion.” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006)(quotation marks and citation omitted). However, “‘a decision of the Commissioner will not be upheld where the [Commissioner] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         II. Plaintiff's Objections

         A. Record Evidence

         Plaintiff's objections concern the ALJ's determination that plaintiff could perform his past work as a packager of plastic bottles, as that job is generally performed. The record reveals that in an undated work history form (R. 365), plaintiff described this job as packing plastic bottles at very fast pace, stacking them up on skids, pulling them with a hand cart, inspecting them for flaws, and doing inventory. He indicated that this job involved walking, standing, stooping, crouching, handling, reaching and handling small objects twelve hours per day, kneeling eight hours per day, and sitting one-half hour per day. The job involved stacking full large boxes five feet high, twenty per skid, carrying each box ten feet, then pulling the full skids fifty feet or more for twelve hours. Plaintiff checked a box indicating that the heaviest weight lifted was twenty pounds, but then checked another box indicating that he frequently lifted twenty-five pounds. At the evidentiary hearing, plaintiff testified that his job involved “manufacturing plastic bottles, ” including constantly picking the bottles from the conveyer and inspecting them, packing them, moving the boxes, pushing the skids into another room and stacking them. He testified that he had to lift forty to fifty pounds. R. 136.

         The VE testified that plaintiff's plastic bottle job fell within the classification of “Inspector and Hand Packager (plastic prod.), ” Dictionary of Occupational Titles (“DOT”) Code 559.687-074, described as:

Inspects molded plastic products, such as bottle caps or tips, for defects, and packs inspected products into shipping cartons: visually examines molded products for defects, such as scratches, discoloration, and flash, and discards defective products. Packs inspected product in cartons according to customer specifications, and carries cartons to storage area. May attach metal bands to bottle tops prior to packing to form necks for bottles and measure necks to ensure specified length, using gauge.

Inspector and Hand Packager (plastic prod.), Dictionary of Occupational Titles, This job is classified as unskilled work in the light strength range. R. 145. Based on plaintiff's testimony, the VE concluded that plaintiff's past job was actually performed at the medium strength level. R. 145. After considering the hypothetical restrictions posed by the ALJ, the VE concluded that plaintiff could perform the job of Inspector and Hand Packager as it is customarily performed, but not as he previously performed it. R. 146. During his cross-examination of the VE, plaintiff's counsel did not question the VE concerning his opinion that plaintiff's prior job fell within the DOT classification of Inspector and Hand Packager, nor did he argue to the ALJ that this classification was incorrect. Counsel's only objection was that he did not believe that the Hand Packager job was performed at a level of substantially gainful employment. R. 150.

         In a letter to the ALJ dated August 23, 2018, counsel argued that because plaintiff's past packager job entailed additional duties not falling in the DOT category of Inspector and Hand Packager, the VE erroneously classified plaintiff's prior job as being in that category, and the VE's testimony was not consistent with the DOT. For the first time in his statement of specific errors filed in this court, plaintiff argued that his job more appropriately fell within the category of “Packager, Hand (any industry), ” DOT Code 920.587.018, classified as medium strength work. That catch-all job classification lists duties found in a diverse range of job settings, from bakery work to aircraft manufacturing, including many duties not previously performed by plaintiff:

Packages materials and products manually, performing any combination of following duties: Cleans packaging containers. Lines and pads crates and assembles cartons. Obtains and sorts product. Wraps protective material around product. Starts, stops, and regulates speed of conveyor. Inserts or pours product into container or fills containers from spout or chute. Weighs containers and adjusts quantity. Nails, glues, or closes and seals containers. Labels containers, container tags, or products. Sorts bundles or filled containers. Packs special arrangements or selections of product. Inspects materials, products, and containers at each step of packaging process. Records information, such as weight, time, and date packaged....

Packager, Hand (any industry) alternate titles: hand packager), Dictionary of Occupational Titles,

         B. ...

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