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Thomas P. v. Berryhill

United States District Court, D. Rhode Island

September 27, 2018

THOMAS P., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          William E. Smith Chief Judge.

         Magistrate Judge Patricia A. Sullivan filed a Report and Recommendation (“R. & R.”) (ECF No. 14) in this case, recommending the Court deny Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 8) and grant Defendant's Motion for an Order Affirming the Commissioner's Decision (ECF No. 12).

         Plaintiff objected to the R. & R. (ECF No. 15), pressing again his argument that a case from the Ninth Circuit Court of Appeals, Disastio v. Shalala, 47 F.3d 348, 349-350 (9th Cir. 1995), has a better view of the relationship between vocational-expert testimony and a claimant's residual functional capacity than that enunciated in a case from the Sixth Circuit, Anderson v. Comm'r of Soc. Sec., 406 Fed.Appx. 32, 36 (6th Cir. 2010), which was recently followed by a court in the First Circuit, Foxworth v. Colvin, 249 F.Supp.3d 585, 589-90 (D. Mass. 2017).

         After review of the arguments on both sides, the Court agrees with the reasoning provided by Magistrate Judge Sullivan, and therefore adopts her recommended disposition. Plaintiff's Motion (ECF No. 8) is DENIED, and Defendant's Motion (ECF No. 12) is GRANTED.

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         The matter is before the Court on Plaintiff Thomas P.'s motion to reverse the Commissioner's decision denying Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”). Plaintiff claims that the Step-Five finding of the Administrative Law Judge (“ALJ”) is erroneous because it relies on a significant misstatement of the testimony of the Vocational Expert (“VE”) regarding the number of jobs at the light exertion level available in the national economy that Plaintiff could perform based on his residual functional capacity of less than the full range of light work. In light of that error, Plaintiff further argues that the ALJ should have found Plaintiff disabled under Medical-Vocational Guideline 201.14 beginning on the day when he turned 50 because, apart from the light job tainted by error, the VE's testimony established only jobs at the sedentary exertion level. Defendant Nancy A. Berryhill (“Defendant”) has filed a motion for an order affirming the Commissioner's decision.

         The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the record, I find that the ALJ's findings are sufficiently supported by substantial evidence and that his error in inflating the number of available jobs at the light exertional level in the national economy is harmless. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 8) be DENIED and Defendant's Motion for an Order Affirming the Commissioner's Decision (ECF No. 12) be GRANTED.

         I. Background

         After being disabled for several years ending in January 2011, Tr. 160, Plaintiff returned to work and, until February 2014, was employed as a machine operator and maintenance/cleaner. Id. Based on the instant application, which was filed on September 23, 2014, the ALJ found that Plaintiff has suffered from an array of severe impairments, including left knee osteoarthritis, neuropathy, asthma, degenerative disc disease of the cervical and lumbar spine, borderline intellectual functioning and depression. Tr. 14. In a decision that carefully analyzes the medical, opinion and other evidence of record, the ALJ found that, throughout the period in issue, Plaintiff retained the residual functional capacity (“RFC”)[1] to perform less than the full range of light work[2] in that he was found to be limited to standing and walking “for about three hours in an eight-hour workday, ” with only occasional pushing and pulling with the left leg and with other limitations caused by mental impairments and asthma. Tr. 17. Based on this RFC and the VE's testimony, at Step Four, the ALJ concluded that Plaintiff cannot perform his past relevant work. Tr. 22. Then, at Step Five, the ALJ found that Plaintiff was not disabled during the period in issue because his RFC permitted him to make a successful adjustment to other work that exists in sufficient numbers in the national economy, including one unskilled light job (foot press operator) and several unskilled sedentary jobs (assembler, packager, and inspector). Tr. 22-23.

         II. Standard of Review

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - that is, the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel, 71 F.Supp.2d 28, 30 (D.R.I. 1999). Once the Court concludes that the decision is supported by substantial evidence, the Commissioner must be affirmed, even if the Court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987); see also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). The determination of substantiality is based upon an evaluation of the record as a whole. Brown, 71 F.Supp.2d at 30; see also Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). Thus, the Court's role in reviewing the Commissioner's decision is limited. Brown, 71 F.Supp.2d at 30. The Court does not reinterpret the evidence or otherwise substitute its own judgment for that of the Commissioner. Id. at 30-31 (citing Colon v. Sec'y of Health & Human Servs., 877 F.2d 148, 153 (1st Cir. 1989)). “[T]he resolution of conflicts in the evidence is for the Commissioner, not the courts.” Id. at 31 (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)).

         III. Disabilit ...


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