Gearing v. Comm'r of Soc. Sec., Case No. 1:18 CV 2841

417 F.Supp.3d 928

George John GEARING, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 1:18 CV 2841

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

Signed October 24, 2019

Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, United States District Judge, Chief Judge

INTRODUCTION

This matter is before the Court upon the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. 15)("R&R"), recommending that the decision of the Commissioner be VACATED and this matter REMANDED for further proceedings. Defendant filed an objection to the R&R. For the reasons that follow, the R&R is REJECTED with respect to the Step Five analysis and AFFIRMED in all other respects. The decision of the Commissioner is AFFIRMED.

STANDARD OF REVIEW

When objections are made to a Magistrate Judge's Report and Recommendation, the district court reviews the case de novo. Federal Rule of Civil Procedure 72(b) provides in pertinent part:

(b) Dispositive Motions and Prisoner Petitions.

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Here, the Court notes that it will apply the de novo standard of review to the objection raised by the government. The Court reviewed for clear error those parts of the R&R to which no party objected. Having done so, the Court finds no clear error and, therefore, proceeds to a de novo review solely with respect to the government's objection.

ANALYSIS

The government objects to the Magistrate Judge's recommendation that substantial evidence does not support the Administrative Law Judge's ("ALJ") determination that plaintiff is capable of performing a significant number of jobs in the national economy. The decision is based on the testimony of the vocational expert ("VE"). The VE testified as follows:

Q. Okay. Would there be other jobs that the hypothetical individual could perform and, if so, could you give me several demonstrative examples?

A. There are positions that would meet the hypothetical. One second. Examples that would fit this hypothetical include electronics assembler, DOT 723.687-010, sedentary, unskilled, SVP 2, nationally approximately 70,000.

Charge account clerk DOT 205.367-014, sedentary, unskilled, SVP 2, nationally approximately 70,000.

Bench assembler, DOT 713.687-026, sedentary, unskilled, SVP 2, nationally approximately 100,000. These are examples that fit your hypothetical.

Later, upon cross-examination, the VE testified as follows:

Q. It's correct that in responding to the Judge's hypothetical questions that you testified based upon current data?

A. Yes, sir.

According to the R&R, the VE's testimony was "based on 2018 data," and not data from the relevant time period. Here, the R&R indicates that the relevant time period is March 31, 2013, i.e. , the claimant's "date last insured." Because the data is from 2018 and not from 2013, the R&R recommends finding that the ALJ's decision is not supported by substantial evidence.

Upon review, the Court disagrees with the R&R and finds the objection by the government to be well-taken. The R&R characterizes the VE's testimony as pertaining to 2018. But, the VE testified only that the data relied upon is "current." There is nothing in the record suggesting that the "current" data was actually compiled in 2018. Nor is there any evidence suggesting how frequently data is updated or that the data relied upon was not also applicable to 2013. Moreover, the VE knew of the plaintiff's "date last insured" because the VE attended the hearing by phone. (Tr. 526, 531, 538). Regardless, it would be reasonable to interpret the VE's testimony to mean that the VE relied on "current data," as opposed to "outdated data," i.e. , data pre-dating the alleged onset date. This is especially so in that ALJs make disability determinations based on a period of time, not a one-day snapshot.¹ The Court finds that the ALJ's reliance on the VE's use of "current" data supports a finding that substantial evidence exists to show that plaintiff is capable of performing a significant number of jobs in the national economy. Regardless, the Court agrees with the government that, to the extent the testimony is arguably ambiguous, any error on the ALJ's reliance thereon is harmless. To the extent the testimony could be construed to mean that the data was actually compiled on the date of the hearing, the data shows that a total of 240,000 jobs exist. As noted by the government, the Sixth Circuit has held that as few as 2,000 jobs constitute a "significant number." Nejat v. Comm'r of Soc. Sec. , 359 Fed.Appx. 574, 579 (6th Cir. 2009) (2,000 jobs is sufficient to a finding of non-disability). It defies basic logic that just five years earlier fewer than 2,000 of those jobs existed. "No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result." Shkabari v. Gonzales , 427 F.3d 324, 328 (6th Cir. 2005) (citation omitted). See also Kobetic v. Comm'r of Soc. Sec. , 114 Fed. App'x 171, 173 (6th Cir. 2004) (When "remand would be an idle and useless formality," courts are not required to "convert judicial review of agency action into a ping-pong game.").

CONCLUSION

For the foregoing reasons, the court REJECTS the R&R with respect to the Step Five challenge. The Court ADOPTS the remainder of the R&R in total. Accordingly, the decision of the Commissioner is AFFIRMED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

Jonathan D. Greenberg, United States Magistrate Judge

Plaintiff, George John Gearing, ("Plaintiff" or "Gearing"), challenges the final decision of Defendant, Andrew Saul,¹ Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") under Title II 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 VACATED and REMANDED for further consideration consistent with this opinion.

I. PROCEDURAL HISTORY

In February 2013, Gearing filed an application for DIB, alleging a disability onset date of August 27, 2011 and claiming he was disabled due to lumbar disc disease with back and leg pain and muscle spasms, low back pain, frequent falls, depression and anxiety, and hypertension. (Transcript ("Tr.") 197-98, 215.) The application was denied initially and upon reconsideration, and Gearing requested a hearing before an administrative law judge ("ALJ"). (Id. at 30.)

On February 26, 2015, an ALJ held a hearing, during which Gearing, represented by a non-attorney representative, and an impartial vocational expert ("VE") testified. (Id. ) On May 1, 2015, the ALJ issued a written decision finding Gearing was not disabled. (Id. at 37.) The ALJ's decision became final on August 19, 2016, when the Appeals Council declined further review. (Id. at 1-7.) Gearing, through counsel, appealed that decision to this Court, which remanded the case as a result of the ALJ's failure to provide "sufficiently specific reasoning" to support the weight assigned to the opinion of treating physician Dr. Kurtz. Gearing v. Berryhill , No. 1:16-cv-2440, 2017 WL 3575765 (N.D. Ohio July 31, 2017), report and recommendation adopted by 2017 WL 3537601 (N.D. Ohio Aug. 17, 2017).

The same ALJ heard the case on remand on April 10, 2018.² (Tr. 523-66.) On August 22, 2018, the ALJ issued a written decision finding Gearing was not disabled. (Id. at 498-517.) Given the earlier federal court remand, the Social Security Agency ("SSA") allowed Gearing to bypass the Appeals Council and present his case for judicial review. (Id. at 495-96.)

On December 11, 2018, Gearing filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 11, 13, 14.) Gearing asserts the following assignments of error:

(1) The ALJ again improperly rejected the opinion of the treating specialist.

(2) The ALJ was not properly appointed under the United States Constitution at the time he heard the case.

(3) SSA failed to meet its [S]tep 5 burden because the VE's testimony was not time-relevant.

(4) An outright award is appropriate given the particular circumstances of this case.

(Doc. No. 11.)

II. EVIDENCE

A. Personal and Vocational Evidence

Gearing was born in March 1964 and was 49 years-old on the date last insured (Tr. 515), making him a "younger person" at all times relevant to his claim under social security regulations. See 20 C.F.R. § 404.1563(c). He has a limited education and is able to communicate in English. (Tr. 516.) He has past relevant work as a locomotive mechanic. (Id. at 515.)

B. Medical Evidence During the Relevant Period³

During the period relevant to his claim,⁴ Gearing sought treatment from neurologist Lisa Kurtz, M.D. on three occasions. (Tr. 240-44, 491-94.) On November 22, 2011, Gearing complained that earlier in the week his leg suddenly went numb and he almost fell over. (Id. at 242.) Dr. Kurtz noted Gearing had a history of lumbar disc disease, and she observed that Gearing had an antalgic gait. (Id. ). On May 10, 2012, Gearing complained that he had been falling a lot, that he had trouble walking, and that he was experiencing more weakness than pain in his legs. (Id. at 241.) In one instance, his leg reportedly went out and he fell into his dresser. (Id. ) On November 22, 2012, Gearing complained that his legs were bothering him and that he had fallen a few times. (Id. at 240.) He...