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Plummer v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

October 4, 2017

LARRY LYNN PLUMMER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Michael G. Gotsch, Sr. United States Magistrate Judge

         Plaintiff Larry Lynn Plummer (“Plummer”) filed his complaint in this Court seeking a remand of the Social Security Commissioner's (“the Commissioner's”) final decision to deny his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act for further consideration of his application. For the reasons discussed below, this Court AFFIRMS the Commissioner's final decision.

         I. Procedure

         On October 7, 2013, Plummer filed his Title II application for DIB with the Social Security Administration (“SSA”) pursuant to 42 U.S.C. § 423, alleging disability beginning April 30, 2013. The SSA denied Plummer's application initially on December 8, 2013, and again upon reconsideration on January 14, 2014. On July 10, 2015, a video hearing was held before an administrative law judge (“ALJ”) where Plummer and an impartial expert appeared and testified. On July 23, 2015, the ALJ issued his decision finding that Plummer was not disabled at Step Five of the evaluation process and denied Plummer's application for DIB. On July 21, 2016, the Appeals Council denied Plummer's request for review, making the ALJ's decision the final decision of the Commissioner.

         On September 16, 2016, Plummer filed a complaint in this Court seeking reversal or remand of the Commissioner's decision. [DE 1]. On March 6, 2017, Plummer filed his opening brief. [DE 16]. Thereafter, on June 11, 2017, the Commissioner filed a responsive memorandum asking the Court to affirm the decision denying Plummer benefits. [DE 21]. Plummer filed no reply brief despite being afforded more than fourteen days to do so. See N.D. Ind. L.R. 7-3(d). Pursuant to 28 U.S.C. § 636(b)(1)(B) and 42 U.S.C. § 405(g), this Court may enter a ruling in this matter based on the parties' consent.

         II. Relevant Background

         Prior to filing a Title II application for DIB, Plummer worked as an automobile sales person, Dictionary of Occupational Titles (“DOT”) #273.353-010. The ALJ found that Plummer has severe impairments, including osteoarthritis, minor degenerative disc disease of the lumbar spine, obesity and mild chronic obstructive pulmonary disease. [DE 9 at 22]. Based on these impairments, the ALJ found Plummer had the residual function capacity (“RFC”) to do the following as defined by 20 CFR 404.1567(b):

. . . perform light work . . . as the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; and he can sit, stand or walk for 6 hours each in an 8-hour workday. The claimant cannot climb ladders, ropes or scaffolds but can occasionally climb ramps and stairs; and occasionally balance, stoop, kneel, crouch, and crawl. The claimant can only reach overhead with his left upper extremity; and frequently reach in all other directions with the left upper extremity. The claimant must avoid hazards, such as unprotected heights and moving mechanical machinery; and he cannot perform commercial driving. The claimant can tolerate no more than frequent exposure to extreme cold, extreme heat, humidity, wetness, dust, odors, fumes, and pulmonary irritants.

[DE 9 at 23-24].

         Based upon the RFC listed above, the vocational expert (“VE”) testified at the ALJ hearing on July 10, 2015, that Plummer could perform his past work as an automobile sales person as it was generally performed, as it does not require greater than occasional overhead reaching with the left upper extremity or greater than frequent reaching in all directions bilaterally. [Id. at 65-67]. When asked if his testimony was consistent with the DOT, the VE testified that it was. [Id. at 68]. The VE acknowledged that the DOT lacked a detailed analysis of the reaching plane required for an automobile sales person, but explained that he had used the DOT's description of the job to evaluate which reaching planes and extremities would be necessary for an automobile sales person. [Id. at 68-69]. Plummer's counsel at the hearing did not ask any follow-up questions of the VE. [Id. at 69]. After performing the requisite five-step analysis, [1] the ALJ concluded that Plummer was not disabled because he was capable of performing his past work as an automobile sales person. [Id. at 26-27].

         III. Analysis

         A. Standard of Review

         On judicial review, under the Social Security Act, the Court must accept that the Commissioner's factual findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Thus, a court reviewing the findings of an ALJ will reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous legal standard. Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). A court reviews the entire administrative record but does not reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).

         The ALJ bears the burden at Step Five of establishing that the claimant can perform other work that “exists in significant numbers in the national economy.” Overman v. Astrue,546 F.3d 456, 464 (7th Cir. 2008). If a VE's testimony is reliable, it can satisfy this burden. Britton v. Astrue,521 F.3d 799, 803 (7th Cir. 2008). “A finding based on unreliable VE testimony is equivalent to a finding that is not supported by substantial evidence and must be ...


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