United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
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.
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.
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.
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
[DE 9 at 23-24].
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,
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].
Standard of Review
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.
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 ...