UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WILBUR O. DUNN, JR., 

Plaintiff, 

 Civil Action 2:17-CV-196 

 Judge Algenon L. Marbley 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, Wilbur O. Dunn, Jr., brings this action under 42 U.S.C. '' 405(g) and 

1383(c)(3) for review of a final decision of the Commissioner of Social Security 

(ACommissioner@) denying his applications for Social Security disability insurance benefits and 

supplemental security income. This matter is before the United States Magistrate Judge for a 

Report and Recommendation on Plaintiff=s Statement of Errors (ECF No. 16), the 

Commissioner=s Memorandum in Opposition (ECF No. 18), Plaintiff’s Reply (ECF No. 21), and 

the administrative record (ECF No. 10). For the reasons that follow, it is RECOMMENDED 

that the Court OVERRULE Plaintiff=s Statement of Errors and AFFIRM the Commissioner=s 

non-disability finding. 

I. PROCEDURAL BACKGROUND 

 Plaintiff filed his application for Title II Social Security Disability Benefits on March 6, 

2013, alleging that he became disabled on February 15, 2009. His application was denied on 

August 16, 2013, and upon reconsideration on December 4, 2013. 
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Administrative Law Judge Andrew Gollin (the “ALJ”) held a hearing on December 7, 

2015, at which Plaintiff, represented by counsel, appeared and testified via video. Vocational 

Expert William T. Cody (the “VE”) also appeared and testified. On December 23, 2015, the ALJ 

issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security 

Act. On January 6, 2017, the Appeals Council denied Plaintiff=s request for review without 

substantive comment and adopted the ALJ=s decision as the Commissioner=s final decision. 

Plaintiff then timely commenced the instant action on March 8, 2017. 

In his Statement of Errors (ECF No. 16), Plaintiff raises a single contention of error, that 

the ALJ erred in finding that he could perform other work that exists in significant numbers in 

the national economy. More specifically, Plaintiff contends that based upon the RFC the ALJ 

found, he could not perform the representative jobs that the VE identified because of the 

limitations on his ability to bend/stoop. 

The undersigned’s discussion of the record evidence focuses on evidence relevant to 

consideration of this contention of error. 

II. RELEVANT RECORD EVIDENCE 

A. The VE’s Testimony

 The ALJ asked the VE to consider a hypothetical individual with Plaintiff’s vocational 

profile and the RFC the ALJ ultimately assessed. The VE testified that such an individual could 

not perform Plaintiff’s past work. (ECF No. 10 at PAGEID## 98-99.) The VE stated that such 

an individual could, however, perform other jobs that exist in significant numbers in the national 

or regional economy, including the following representative positions: assembler, with 300 jobs 

locally and 80,000 jobs nationally; packer, with 200 jobs locally and 70,000 nationally; and 

inspector, with 50 jobs locally and 40,000 jobs nationally. (Id. at PAGEID## 99-100.) The VE 
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further testified that all of these representative positions were classified at the sedentary level of 

exertion with a Specific Vocational Preparation (“SVP”) level of two. He added that these 

positions did not require any greater reading than level one. When asked whether his testimony 

was consistent with the Dictionary of Occupational Titles (“DOT”) and the companion 

publication, the Selected Characteristics of Occupations (“SCO”), the VE responded as follows: 

“Yes, sir. The things that aren’t addressed in the DOT such as pace of work, changes at work, 

my opinion[s] in those regards come from my professional experience. But . . . none of my 

testimony is inconsistent with the DOT.” (Id. at PAGEID# 100.) Upon further questioning, the 

VE testified that if the hypothetical individual was further limited to sedentary work and not be 

off task more than eight percent of the work period, that individual could still perform the 

representative jobs previously identified. 

 Upon cross-examination, the VE testified that the individual could be off task up to 

nineteen percent of the time before sustained employment is precluded. The VE also testified 

that an individual could continue to perform their duties while standing, although their 

performance tends to be somewhat slower. The VE pointed out that sedentary work 

contemplates the individual standing for two of the eight hours and sitting for roughly six hours. 

He added that while standing, the individual would be able to remain on task. When asked 

whether the individual’s ability to perform their job would be impacted if their dominant hand 

was occupied by a cane, the VE acknowledged that it could, explaining that “[o]ne must be able 

to use their hands on a frequent basis throughout the workday to be able to perform these jobs.” 

(Id. at PAGEID# 106.) In response to another question by Plaintiff’s counsel, the VE testified 

that if an individual needed to stand for 5-10 minutes each hour and could only use one hand 

during that time, it would not erode the positions identified and that erosion would only occur if 
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the individual was off task more than twelve minutes per hour. The VE agreed with Plaintiff’s 

counsel that with the positions identified, the individual would need to bend over to continue 

working while standing and that inability to do so would result in them being off task. The VE 

reiterated that being off task 20% of the day or greater would preclude competitive employment. 

B. The Administrative Decision 

The ALJ issued his decision on December 23, 2015, finding that Plaintiff had not been 

under a disability within the meaning of the Social Security Act since February 15, 2009, the 

alleged onset date, through his date last insured. (ECF No. 10 at PAGEID##53-67.) At step two 

of the sequential evaluation process,1

 the ALJ concluded that Plaintiff had the following severe 

impairments: lumbar degenerative disc disease with radiculitis and spondylosis; osteoarthritis of 

the bilateral knees; obesity; and depressive disorder; and borderline intellectual functioning. (Id. 

at PAGEID# 55.) The ALJ concluded that Plaintiff did not have an impairment or combination 

of impairments that met or medically equaled one of the listed impairments described in 20 

 

1

 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

 equal the criteria of an impairment set forth in the Commissioner’s Listing of 

 Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

 functional capacity, can the claimant perform other work available in the national 

 economy? 

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
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C.F.R. Part 404, Subpart P, Appendix 1. (Id. at PAGEID# 56-57.) At step four of the sequential 

process, the ALJ set forth Plaintiff’s Residual Functional Capacity (“RFC”) as follows: 

After careful consideration of the entire record, the undersigned finds that through 

the date last insured, the claimant has the residual functional capacity to perform 

light work as defined in 20 CFR 416.967(b) except as follows: the claimant is 

limited to no more than occasional pushing or pulling using foot controls with 

either lower extremity. The claimant could stand/walk for no more than thirty 

minutes at a time and for no more than six hours in an eight-hour workday. The 

claimant is limited to sitting no more than thirty minutes at a time and for no more 

than six hours in an eight-hour workday. He is limited to no more than occasional 

walking on rough surfaces and uneven terrain. Further, the claimant could 

occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and/or crawl; 

however, he should never climb ladders, ropes, or scaffolds. The claimant is 

limited to work involving no exposure to unprotected heights or hazardous 

machinery/equipment. The claimant is limited to work involving no operation of 

motorized vehicles or commercial driving. Additionally, the claimant is limited 

to understanding, remembering, and carrying out simple, routine tasks in an 

environment that does not require a fast-paced production rate, strict production 

rates, or quotas. The claimant is limited to no more than occasional simple workrelated decisions and no more than occasional changes in workplace setting and 

workplace duties. Finally, the claimant is limited to work the [sic] does not 

require reading or writing skills above a DOT level 1 language development 

rating or a fourth grade level. 

(Id. at PAGEID# 59.) 

 

Relying on the VE’s testimony, the ALJ concluded that Plaintiff could not perform his 

past relevant work, but could perform other jobs in existing in significant numbers in the national 

economy. The ALJ therefore concluded that Plaintiff was not disabled under the Social Security 

Act. (Id. at PAGEID# 66-67). 

III. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 
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§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)) cert. denied sub nom. Paper, 

Allied-Indus., Chem. & Energy Workers Int’l Union v. TNS, Inc., 537 U.S. 1106 (2003). 

Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to that 

finding ‘even if there is substantial evidence in the record that would have supported an opposite 

conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. 

Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). 

IV. ANALYSIS

As set forth above, Plaintiff maintains that the ALJ erred in concluding that he could 

perform the positions identified by the VE. According to Plaintiff, the jobs identified would 

require him to bend/stoop more than occasionally even though the RFC limits him to occasional 

stooping. In support of this assertion, Plaintiff points out that the VE testified that the jobs he 

identified would require Plaintiff to bend/stoop when standing. Plaintiff submits that the 

requirement in the RFC that he be limited to standing/walking or sitting for no more than thirty 

minutes at a time, together with limitations that he not stand/walk for more than six hours total 

and that he not sit for more than six hours total, means that he “would need to stand as much as 
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four hours per day.” (Pl.’s Reply 21, ECF No. 21.) Plaintiff asserts that he cannot, however, 

stay on task while standing all of these four hours because to continue working while standing, 

he must bend/stoop, and the RFC says he can only bend/stoop occasionally, which means onethird or less of an eight-hour day under the regulations. Applying all of the foregoing premises, 

Plaintiff concludes that because the portion of time he will be off task exceeds 19% of the 

workday, he cannot perform the jobs the VE identified per the VE’s own testimony that an 

individual who is off task twenty percent or more could not sustain competitive employment. 

The undersigned finds Plaintiff’s sole contention of error to be without merit because it 

rests on a faulty premise. As an initial matter, the undersigned notes that everyone agrees that 

“occasionally” as utilized here means up to one-third of the time. See SSR 83–10, 1983 WL 

31251, at *5 (“‘Occasionally’ means occurring from very little up to one-third of the time.”). 

Everyone also agrees that that “Stooping” is defined as “bending the body downward and 

forward by bending the spine at the waist.” See SSR 83-14, 1983 WL 31254, at *2. Thus, 

because the VE testified that to stay on task while standing would require bending, and because 

the hypothetical individual was limiting to only occasional stooping, it follows that to the extent 

the position requires the individual to stand more than occasionally, that individual will be off 

task. 

Where Plaintiff’s argument breaks down is his conclusion that the RFC assessment 

means that he “would need to stand as much as four hours per day,” (Pl.’s Reply 21, ECF No. 

21). The RFC contains no such requirement. That he can sit for at most thirty minutes at a time 

does not mean that he must then stand for thirty minutes before returning to sitting. Instead, as 

even Plaintiff’s counsel acknowledged during the hearing testimony, Plaintiff could sit for thirty 

minutes, stand up briefly, and then return to sitting. (See ECF No. 10 at PAGEID# 106 (“Let’s 
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change [the hypothetical to] where the individual would be sitting for the 30 minutes, but then 

they would need to stand, be in a standing position for approximately five to 10 minutes . . . .”).) 

All of the jobs identified by the VE are performed at the sedentary level of exertion. 

“Sedentary work” is defined as follows: 

The regulations define sedentary work as involving lifting no more than 

10 pounds at a time and occasionally lifting or carrying articles like docket files, 

ledgers, and small tools. Although sitting is involved, a certain amount of walking 

and standing is often necessary in carrying out job duties. Jobs are sedentary if 

walking and standing are required occasionally and other sedentary criteria are 

met. By its very nature, work performed primarily in a seated position entails no 

significant stooping. Most unskilled sedentary jobs require good use of the hands 

and fingers for repetitive hand-finger actions. 

SSR 83–10, 1983 WL 31251, at *5 (emphasis added). Thus, the jobs the VE identified require 

only occasional standing, consistent with the RFC’s requirement that Plaintiff only stoop/bend 

occasionally. Because the positions the VE identified do not require Plaintiff to stand more than 

he is permitted to bend/stoop, Plaintiff’s contention that he would be off task more than nineteen 

percent of the day lacks support. 

 In sum, the undersigned finds that the ALJ did not err in relying upon the VE’s testimony 

to conclude that Plaintiff could perform other work that exists in significant numbers in the 

national economy. It is therefore RECOMMENDED that Plaintiff’s sole contention of error be 

OVERRULED. 

V. DISPOSITION 

From a review of the record as a whole, the undersigned concludes that substantial 

evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED 

that the Court OVERRULE Plaintiffs’ Statement of Errors and AFFIRM the Commissioner of 

Social Security’s decision. 
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VI. PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED. 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE