NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0860n.06 No. 13-5455 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT JOSE P H R. BRANON, P laintif f-App ellant,

v. COMMISSIONER OF SOCIAL SECURITY, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF KENTUCKY

BEFORE: M ERRITT an d CLAY, Circuit Judges; and S TAF F ORD, Distric t Judge. * MERRITT, Circuit Judge. This is an appea l from a de nial of social se curity disability benef its brought pur suant to Section 205(g ) of the Socia l Security Act. 42 U.S.C. § 405(g ). Be cause substantial evidence supports the denial of be nefits, we a ffirm. The question turns on the cr edibility

of the testimony

of a voc ational expert that signif icant jobs exist in the economy to

acc ommodate plaintiff, whose disability has attributes of both “ sedenta ry” and “ light” w ork under the so-ca lled “medica l-vocational grids” used by the Social Secur ity

Administration. I. Background Plaintiff J oseph B ranon w orked a s a lineman for the telephone company

for thirty y ear s. Over the cour se of his employ ment, he deve loped g radua lly deter ioratingback pr oblems. Plaintiff filed for be nefits in September 2006, c laiming he beca me disabled on May

31, 2006,

The Honor ab l e W illiam H. Stafford, J r., United States District J udg e for the Norther n * District of F lorida, sitting by desig nation.Branon v. Comm’r of Soc . Sec.

No. 13-5455 due to deg ener ative disc disea se. He was 48 y ear s of ag e at that time and ha d retire d from his job at the telephone company afte r spending

about six months on “light duty ” due to his bac k problems. The r ecor d seems to indicate that he wante d the onset of his disability claim to coincide w ith his retirement fr om the telephone c ompany . The disability claim was de nied in August 2008, by

which time plaintiff had tur ned 50 y ear s old. After

the Appea ls Council denied 1 revie w, plaintiff appe aled to the district cour t. The district court r emande d the ca se bec ause the administrative law judg e fa iled to acknowle dg e plaintiff’ s chang e in ag e ca teg ory duringthe

course of the proc eeding s. The district cour t noted that the cha

ng e fr om the “young er pe rson” cate g ory to the “appr oachingadvanc ed ag e” c ateg ory might make no differ ence in the outcome, but it mus t be consider ed by the administrative law judg e. Branon v. Astrue , 2010 WL4809041, at *1 (W.D. Ky . Nov. 18, 2010). On r emand, the a dminist rative la w judg e conduc ted another hear ing that included testimony by a vocational expert, but no other new e vidence was submitted. The a dminist rative la

w judg e ac knowledg ed that plaintiff wa s now over 50 y ear s of ag e, but ag ain denied be nefits. The A ppeals Council denied r eview, a nd plaintiff appe aled to the district court a g ain. A mag istrate judg e issued a Re port and Rec ommendation in favor of the Commi ssioner. The district c ourt adopted the mag istrate judg e’s Repor t and Recommendation in a summary

order . This appea l followed.

Ag e 50 ser

ves as a demar cation line betwee n “young er person” (less than 50 y ear s of ag e) 1 and “per son closely approa ching advanc ed ag e” (50-54 y ear s of ag e) for purpose s o f an alyzing disability claims. 2Branon v. Comm’r of Soc. Sec.

No. 13-5455 On appeal, plaintiff makes essentially two broad arguments, First, he contends that the residual functional capacity determined by the administrative law judge is unsupported by the evidence and in violation of legal standards. His second argument is that the administrative law judge failed to use the medical-vocational grids “favorably” as required by the social security rules and further that if they had been applied correctly he would have been entitled to a determination of “disabled” at age 50 as a matter of law. II. Merits On appeal from a denial of benefits, we review a district court’s decision de novo

. Crum v. Sullivan , 921 F.2d 642, 644 (6th Cir. 1990). However, we review the final decision of the Social Security Administration in this case the decision of the administrative law judge dated August 24, 2011 to determine whether the applicable legal standards were applied, and whether substantial evidence exists in the record to support the decision. Richardson v. Perales , 402 U.S. 389, 401 (1971). A claimant will be considered “disabled” under the Social Security Act if he meets two requirements. See42 U.S.C. § 423(d). First, he must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment must be severe enough that he is unable to do his previous work and cannot, based on his age, education, and work experience, “engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2) (A). If the plaintiff cannot perform 3Branon v. Comm’r of Soc. Sec.

No. 13-5455 his past work, the burden shifts to the Commissioner to show that, considering the plaintiff’s age, education, work experience, and residual functional capacity, the plaintiff is capable of 2 performing other work that is available in significant numbers in the national economy. 20 C.F.R. §§ 416.920(f), 404.1520(f); see Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987). A. Residual Functional Capacity Based on his review of the entire record, including medical records, opinions of treating and non-treating physicians, and plaintiff’s own testimony, the administrative law judge determined that plaintiff had the residual functional capacity to perform a limited range of light work. Plaintiff contends that the administrative law judge failed to adequately consider the 3 opinions of his treating neurosurgeon, Sean McDonald, M.D., in reaching this finding.

Residual functional capacity is defined as “an assessment of an individual’s ability to do 2 sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Social Security Ruling 96 8p. Residual functional capacity is the most plaintiff can do, not the least, after taking into 3 consideration physical and mental limitations. See20 C.F.R. § 404.1545(a); Social Security Ruling 96-8p: Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims. Jobs are categorized as sedentary, light, medium, heavy and extra heavy. We are concerned here with only the sedentary and light categories. Sedentary work involves “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. . . . Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a). Light work involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. . . . A job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).

4Branon v. Comm’r of Soc . Sec.

No. 13-5455 Plaintiff sought tre atment from Dr . McDona ld starting in 2005. Dr . McDona ld diag nosed lower ba ck pain a

nd lumbar ra diculopathy

and pre scribed me dication. Diag nostic tests showed possible disc herniation but no evidenc e of ne rve r oot impingement. Plaintiff dec lined surg ery or phy sical thera

py pref err ing to stick with a home exercise pr og ram, medic ation and epidur al steroid injections. Be cause plaintiff wante d to continue to work until his eligibility for r etireme nt on May 31, 2006, and he w as unable to continue in his work as a lineman, Dr. Mc Donald g ave plaintiff a letter

to give to his employ er in the f all of 2005 that stated he could lift no more than five pounds fr equently

and 15 pounds occ asionally , could not stay in one position more than 20 minutes, no working at heig hts and no repe titive bending or twisting at the w aist. I n Dec ember 2005, Dr. McD onald noted no sig nificant c hang es fr om the last visit and he rec ommended that plaintiff continue with “lig ht work” of a “se dentar

y ” natur e in his employ

ment. Dr. McD onald g ave the same re port in Marc h 2006. Plaintiff retired on Ma y 31, 2006. In September 2006, pla intiff saw Dr . L axmaiah Manchikanti, a pa in specialist. At that time, plaintiff repor

ted to Dr. Manc hikanti that he could sit for one hour, stand for 30-40 minutes, and lift 30-40 pounds. Dr. Manc hikanti reporte d a norma l ga it, mil d tender ness in neck and bac k, normal streng th and normal re flexes. Dr. Manc hikanti diag nosed lumbar disc displaceme nt and lumbar a nd cer vical deg ener ation. He r ecommende d phy sical thera py and lumbar steroid injec tions. P laintiff commenc ed injection ther apy approximately

ever y three months, as well as takingpresc ribed medic ation and see ing D r. Manc hikanti periodica lly , claiming “g reat relief” in the wee ks following the injections.

5Branon v. Comm’r of Soc . Sec.

No. 13-5455 At some point, plaintiff stopped taking presc ription medication. At a January 2008 visit, plaintiff re ported to Dr. Ma nchikanti that “nothingis working .” The repor t from that appointment indicates that his condition appea red satisfactory

but that plaintiff no longe r wa nted to continue with medication or injec tion therapy . He wa s discharg ed in “satisfactory condition” and did not make a

return a ppointment. This is the last medica l rec ord in his file until a phy sician hired by

the Commiss ioner e x amined his file and c oncluded, ba sed only on the file a

nd without actually

seeingplaintiff, that plaintiff could lift 50 pounds occ asionally , 25 pounds fre quently

and could stand or

walk for six out of eig ht hours. We find that the objective c linical and diagnostic findings pr ovide substantial evidenc e to support the finding s of the administrative law judge that plaintiff ca

n perf orm a limited rang e of light wor k. The a dminist rative la

w judg e also noted that plaintiff ref used more a g g ressive treatment, eventually

even f oreg oing the steroid injections and pa in medication and c hoosing to rely only on over- the-c ounter medic ations, with no ex planation. This conser vative tre atment approa ch sug g ests the abse nce of a disablingcondition. I n addition, plaintiff’s own asse ssments of his limit ations do not support a finding of a disablingcondition. He re ported to Dr. Manchika nti abiliti es g reater than D r. McDona ld reporte d to plaintiff’s employ er. H e re ported that he could stand f

or 30-40 minutes, sit for an hour and lift 30-40 pounds. He also repor ted doing some roofingin 2006 after the onset of disability , occa sionally hunting a nd fishing, a

nd mowing a small piece of

lawn. The a dminist rative la

w judg e ac cepte d some, but not all, of Dr. McD onald’s medica l finding s. Plainti ff’ s own repor ts were inconsistent with the findings of his phy sicians. B ut 6Branon v. Comm’r of Soc . Sec.

No. 13-5455 plaintiff fa

ults the administrative law judg e bec ause he did not give suf ficient we ight to the lowball finding of Dr. Mc Donald that plaintiff c ould lift no more than five pounds f reque ntly and 15 pounds occa sionally , could not stay in one position more than 20 minutes, and could not do any repe titive bending or

twisting at the w aist. The administrative law judge noted that this finding, and in fa ct all of Dr . McDona ld’s repor ts ex cept one or two, we re ma de bef ore the disability onset date of

May 31, 2006, and thus wer e outside the disability period. The administrative law judge also noted that there was nothingcurr ent from Dr . McDona ld about plaintiff’s condition in the re cord. Plaintiff claims that the administrative law judg e’s f inding c oncer

ning his re sidual functional c apac ity

was “ internally

inconsistent, contradic tory and unsupported.” Pl. Br. at 6. The mag istrate judg e agree d, but found the er ror ha rmless bec ause it did not have a n eff ect on the outcome. Report a

nd Recommendation at 2-3 . The a dminist rative la w judg e found tha

t plaintiff suffe rs from a

non-exertional impairment, that is, a postural impairme nt nece ssitating that he alternate betwe en sitting a nd standingever

y 30 minutes. The administrative law judg e found that plaintiff ca

n “sit, stand and/or wa lk, about six hours ea ch in an e ight- hour workda y , but needs the option to alternate be tween sitting and standingabout eve ry 30 minutes.” The mag istrate judg e pointed out that “simple arithmetic” show s that an individual who must alternate betwee n sitti ng and standingever

y 30 minutes would stand for about f our hours a

nd sit for about four

hours in an eig ht-hour wor

kday

. We ag ree with the mag istrate judg e that any err or is harmless. A r eview of the hea ring transcr ipt and the hy

potheticals posed to the voc ational expert make c lear that the administrative 7Branon v. Comm’r of Soc . Sec.

No. 13-5455 law judg e under stood that plaintiff must be able to cha ng e positions between sitting and standing regularly . The hy

potheticals we re c lear

and without inconsistency . One of the hy potheticals asked the vocational e x pert to identify jobs where the individual could “sit and stand in 30- minute increme nts, would have to sit for 30 and sta nd for 30.” Hr’gTr. at 17. The voc ational expert testified at leng th about jobs in Kentucky and the national economy wher e an individual would be allowe d to alternate betwe en sitting a nd standing and then we nt on to ex plain that there

are a sig nificant number

of jobs, such as infor

mation clerk jobs, whe re the individual could sit, stand or move a

bout at will so long as he stay ed at his work station. The vocational expert also identified a sig nificant number of ca shier jobs, noting that they wer e mostly

sedenta ry when viewed f rom the standingrequire ment, but were considere d light bec ause the individual might have to lift 10-20 pounds oc casiona lly . Hr’gTr. at 18- 19. Where, a s here , the desc ription of the residual f unctional ca

pacity g iven by the administrative law judg e to the vocational expert included all the r eleva

nt limi tations, we re ly

on that descr iption and not the char acte rization in the written de scription. English v. Astrue , 2008 WL782443, at *5 (W.D. Ky . Mar. 21, 2008)

.

B. Th e Me dical-Vocational Guidelines or “G rids” Once an administrative law judge deter

mines a plaintiff’s r esidual func tional capa city , he may use the medic al-voc ational guidelines, or “grids,” to deter mine the plaintiff’s leve l of disability and potential for

employ ment. The g rids cata g orize jobs by their phy sical-e x ertion require ments, namely , sedenta ry , light, medium, heavy , and ver y heavy

. SeeSocial Security 4

An exertional limit ation is an impairment-ca used limit ation that aff

ects one’s capa

bility to 4 perf orm an exertional activity (strength activity ) such as sitti ng , standing , walking , lifting, car rying 8Branon v. Comm’r of Soc. Sec.

No. 13-5455 Ruling 83 10. There are numbered tables for the sedentary, light, and medium level (Tables 1, 2, and 3, respectively), and a specific rule, not applicable here, for the heavy and very heavy levels. Social Security Ruling 83 10; 20 C.F.R. Part 404, Subpt. P, App. 2. Based on the plaintiff’s residual functional capacity, the administrative law judge must first determine which table to apply, if any. For instance, if the plaintiff’s residual functional capacity limits him to a sedentary exertional level, then Table No. 1 is the appropriate table. Next, based on the plaintiff’s age, education, and previous work experience, the rule directs a finding of “disabled” or “not disabled.” The administrative law judge can utilize the grids onlywhere the grids accurately and completely describe the plaintiff’s abilities and limitations. Therefore, a finding of “disabled” or “not disabled” based solely on the grids is only appropriate when the ability to perform a full range of either medium, light or sedentary activities is present. In this case, the administrative law judge found that plaintiff’s residual functional capacity was for a limited range of light work, a finding that falls between the category of “light work” and “sedentary” for purposes of the grids because plaintiff needed the option to change position every 30 minutes or so. To be able to do a full range of light work requires more continuous standing or walking than plaintiff is capable of. Sedentary work requires more continuous sitting than plaintiff is capable of. Had plaintiff been able to perform the entire range of light work, the grid would have mandated a finding of “not disabled.” Had the administrative law judge found that plaintiff’s residual functional capacity limited him entirely to sedentary pushing, and pulling. SeeSocial Security Ruling 83 10.

9Branon v. Comm’r of Soc. Sec.

No. 13-5455 work, the applicable grid would have found plaintiff “disabled.” Compare 20 C.F.R. Part 404, Subpt. P, App. 2, Table 1 Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically Determinable Impairment(s), Rule 201.14 with 20 C.F.R. Part 404, Subpt. P, App. 2, Table 2 Residual Functional Capacity: Maximum Sustained Work Capability Limited to Light Work as a Result of Severe Medically Determinable Impairment(s), Rule 202.14. Because plaintiff had the additional limitations of needing to alternate between sitting and standing at 30-minute intervals and not being able to push or pull weight repetitively, plaintiff does not fall entirely within either grid. When a plaintiff’s residual functional capacity is not squarely within either grid, the grid guidelines are not binding and instead are used only as an analytical framework. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(d). In such a situation, Social Security Ruling 83-12 directs that a vocational expert be called to testify as to whether a significant number of jobs exist in the national economy that a hypothetical individual with plaintiff’s limitations can perform. So long 5

SSR 83 12 states: 5 In some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work. . . . However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot 10Branon v. Comm’r of Soc . Sec.

No. 13-5455 as the hy pothetical is ac curate, the administrative law judge may

rely on the vocational expert’s testimony to find that the plaintiff ca n perf orm a sig nificant number of jobs in the national economy . That is exactly what the a dminist rative la w judg e did, and we find no err or in his approa ch. Plaintiff then argues that he should be f ound “disabled” beca

use the findingthat he ca n do only some, not all, of the jobs identified as lig ht somehow “e rodes” or “de cimates” the number of jobs available to him. However , that is not how the rules work, a s expl ained by the Social Security Ruling quoted in footnote f ive above . The re sidual functional ca pacity is based on the plaintiff’s par

ticular disabilities, which then lea ds to a furthe r question for the vocational e x pert as to whethe r a sig nificant number of jobs exis t in the economy suitable for a

n individual with plaintiff’s disabilities. The vocational expert is not a medical expert and doe s not opine in any way about the plaintiff’ s particular phy sical or menta l limi tations. He testifies only as to what kinds and how many

jobs ex ist that would be suitable for the pla intiff based on the administrative law judg e’s hy

potheticals. The voc ational expert noted only that the jobs identified wer e so limited in their exertional require ments that they could be pe rfor

med by individuals li mited to both li g ht work and less than lig ht work. An individual who is limit ed to light wor k can g ener ally

also perf orm

ordinarily sit or stand at will. In cases of unusual limitati on of ability to sit or stand, a vocational expe rt should be consulted to clarify the implications for t he occ upational base. (Emphasis adde d.)

11Branon v. Comm’r of Soc. Sec.

No. 13-5455 sedentary work and this does not require or indicate any change to that individual’s residual functional capacity. Anderson v. Comm’r of Soc. Sec. , 406 Fed. App’x 32 (6th Cir. 2010). The vocational expert testified that there exists a significant number of jobs in both Kentucky and the national economy that plaintiff could perform. The jobs would allow plaintiff to alternate between sitting and standing every 30 minutes throughout the work day for example, information or desk clerk and certain kinds of cashier jobs. Hr’g Tr. at 18-19. For the foregoing reasons, we affirm the judgment of the district court.

12