IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIE LESTER, 

Plaintiff,

vs. Civil Action 2:11-CV-0048

Judge Marbley

MICHAEL J. ASTRUE, 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

In considering plaintiff’s application for supplement security income, the Commissioner of

Social Security found that plaintiff was disabled as of the date that he attained the age of 60 but not

prior to that date. This action seeks review of that decision in this Court. On December 12, 2011,

the United States Magistrate Judge recommended that the decision of the Commissioner be affirmed

and that this action be dismissed. Report and Recommendation, Doc. No. 18. This matter is now

before the Court on plaintiff’s objection to that Report and Recommendation, Doc. No. 20. The

Court will consider the matter de novo. 28 U.S.C. §636(b); Fed. R. Civ. P. 72(b).

One of the issues in this case is the proper application of the Medical-Vocational Guidelines,

20 C.F.R., Subpt. P, Appx. 2 of Regulations No. 4. Those guidelines consider a claimant’s residual

functional capacity and vocational profile, including previous work experience, to determine if a

finding of disability is directed based upon the exertional limitations alone. See generally Heckler

v. Campbell, 461 U.S. 458 (1983). At the administrative hearing, plaintiff argued for the

application of Rule 203.10 – which applies to individuals with a marginal education, a residual

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functional capacity for medium exertion but no prior relevant work experience1

 – and a conclusion

of disability once he reached the age of 55. However, the administrative law judge applied Rule

203.01, which directs that individuals with a marginal education, a residual functional capacity for

medium exertion and prior relevant work experience are to be regarded as disabled once they reach

the age of 60. In her administrative decision, the administrative law judge expressly found that

plaintiff “is unable to perform any past relevant work (20 CFR 416.965),” and that plaintiff’s “past

relevant work is unskilled (20 CFR 416.968).” Page ID# 53. 

The Magistrate Judge concluded that the finding that plaintiff has prior relevant work

experience is supported by substantial evidence in the record. Specifically, the Magistrate Judge

referred to a report from one of plaintiff’s employers, see Page ID# 172, and to the testimony of the

vocational expert that plaintiff earned approximately $2200 from that employer in 2001 and

approximately $6200 from that employer in 2002, see Page ID# 72. Report and Recommendation,

p.7.

In his objections to the Report and Recommendation, plaintiff does not address this

conclusion but instead focuses only on his alternative argument, i.e., that the administrative law

judge erred in failing to “discuss how she determined past relevant work . . . .” Plaintiff’s Response

to the Report and Recommendation, p. 1. The Magistrate Judge concluded that administrative law

judge’s failure to expressly identify those jobs that she regarded as constituting prior relevant work

was not fatal: “‘[I]t is well settled that “an ALJ can consider all the evidence without directly

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Under the Commissioner’s regulations, work qualifies as prior relevant work “when it was done within the

last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity.” 20 C.F.R.

§416.965(a). “Substantial” work activity is “work activity that involves doing significant physical or mental

activities,” 20 C.F.R. § 416.972(a), and “gainful” work activity is “work activity that you do for pay or profit,” 20

C.F.R. §416.972(b). The regulations specify, inter alia, that monthly earnings of $740.00 in 2001 and $780.00 in

2002 “will ordinarily show that you have engaged in substantial gainful activity.” 20 C.F.R. § 416.974(b)(2).

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addressing in his written decision every piece of evidence submitted by a party.”’” Report and

Recommendation, p. 7 (quoting Kornecky v. Comm’r of Soc. Sec., 167 Fed. App’x 496, 507-09, 2006

WL 305648, * 8-9 (6th Cir. 2006)). According to plaintiff, “[i]t is inconceivable that the court would

conclude that [the administrative law judge] need not address one of the critical findings in a

decision to deny Plaintiff for nearly three (3) years of benefits.” Plaintiff’s Response to the Report

and Recommendation, p. 2.

The administrative record in this case makes clear that whether plaintiff’s prior employment

qualified as substantial gainful employment was a major issue. See Page ID## 71-73. The

administrative law judge, plaintiff’s counsel and the vocational expert all focused on the earnings

statement for 2001 and 2002 from Bellisio Foods, one of plaintiff’s employers, which reflected

earnings that satisfied the monthly earnings threshold for substantial gainful activity. It is true that

the administrative law judge expressed some concern that these earnings might not reflect substantial

gainful activity, and she gave her assurance that “I will look at it carefully.” Page ID# 34-35. 

However, as the Magistrate Judge noted, Report and Recommendation, p. 7 n.2, there was confusion

on this issue at the administrative hearing only because plaintiff’s counsel mischaracterized the

requirements of the regulations as they relate to monthly earnings. See Page ID# 71-72. 

In her decision, the administrative law judge referred to plaintiff’s “past relevant work,”

Page ID# 53, and expressly referred to the appropriate regulations. Id. Viewed in the context of the

administrative hearing, there can be no doubt that the administrative law judge found – correctly –

that plaintiff’s earnings record documented prior substantial gainful employment. What that prior

employment consisted of is simply not determinative to the application of the Medical-Vocational

Guidelines or to the outcome of this case.

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Accordingly, plaintiff’s objections to the Report and Recommendation are OVERRULED. 

The Report and Recommendation is ADOPTED and AFFIRMED. The decision of the

Commissioner of Social Security is AFFIRMED. This action is hereby DISMISSED.

The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42 U.S.C. § 405(g).

 s/Algenon L. Marbley 

 Algenon L. Marbley

 United States District Judge 

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