Opinion
CIV. 1997-5093
February 20, 2002
Catherine R. Enyeart, Enyeart Koehn, Hot Springs, S.D., Attorneys for Plaintiff.
Diana J. Ryan, US Attorney's Office, Rapid City, S.D., Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
I. PROCEDURAL HISTORY
Pending before the Court is a motion for summary judgment filed by Steven Thompson (Thompson) on September 25, 2001. Thompson initially filed an application for disability benefits on April 7, 1992, which was denied on May 14, 1992. AR 91-94, 104-06. Thompson reapplied on April 20, 1993, alleging a disability commencing on November 17, 1991. AR 147-50. His application was initially denied and also denied upon reconsideration. AR 154-56, 171-72. A hearing was held which resulted in a finding of no disability on November 22, 1994. AR 247-64. The Appeals Council reviewed the decision and remanded for a new hearing. AR 413-15. The Administrative Law Judge (ALJ), after a second hearing, determined on October 7, 1996, that Thompson was not disabled. AR 490-504. The Appeals Council denied Thompson's request for review on October 23, 1997. AR 523-24. Subsequently, Thompson filed a complaint in this Court on November 6, 1997. The case was remanded under sentence 6 of 42 U.S.C. § 405(g). AR 525-28. After a third hearing, Thompson once again received an unfavorable decision on March 19, 1999. AR 5-20. He is before the Court seeking a closed period of disability from November 18, 1991, to December 1, 1995. AR 32.
II. FACTUAL BACKGROUND General
Thompson was born on June 9, 1954, and resides in Hill City, South Dakota. AR 33, 91, 94. He has earned a GED and attended a nine-month vocational course in sport-engine mechanics in 1978 or 1979. AR 34. Additionally, in 1995 he completed a two-year course in computer-aided-drafting (CAD). AR 34, 424.
Thompson has a varied work history. He has worked as a laborer, a carpenter, and a logger. AR 420-24. He also has worked repairing chain saws and as a small engine mechanic. Id. Additionally, he worked on a railroad track crew. Id. He was also self-employed for a period doing small engine repair. Id. At the time of the last hearing, he was employed as a computer-aided drafter. Id.
Left Arm Injury
Thompson injured his left arm in a chain saw accident in June, 1977. AR 353. He suffered a laceration on its medial border about a couple of inches above the elbow. Id. Thompson underwent surgery on June 14, 1977, where a complete laceration of the ulnar nerve was discovered and repaired. AR 359, 361. The first surgery, however, was not completely successful and he underwent another operation on December 27, 1978, where he was given a nerve graft. AR 365, 367. Thompson's left arm was eventually given a permanent partial disability rating of twenty-five percent. AR 270. He alleges he has no feeling from his ring finger to his elbow in his left arm. AR 47-48. He also claims to have no feeling in his left hand which is physically weak. AR 48. Additionally, he states that he has a numb sensation in his right leg. Id. Thompson testified that he did not seek any treatment for his left upper extremity between 1991 and 1995, the period at issue in this action. AR 45.
EMBRight Shoulder Injury
Thompson injured his right shoulder in the spring of 1982. AR 372. An arthroscopy in 1986 revealed "some posterior degenerative disease of the glenoid." AR 131. A subacromial decompression was performed during this period. Id. Thompson was improving until he reinjured his shoulder. Id. An MRI scan did not reveal any tears, but did show an abnormality of the posterior inferior right glenoid. Id.
On November 7, 1991, Dr. Gill diagnosed "[c]hronic right shoulder pain, probably secondary to recurrent subacromial impingement and irritation." AR 132. Dr. Gill noted "[t]here may also be a component of posterior subluxation." Id. Dr. Gill performed a Glenohumeral arthroscopy and subacromial decompression on Thompson's right shoulder on November 18, 1991. AR 133-34.
Dr. Berkebile was requested by the South Dakota Disability Determination Services to give an opinion concerning Thompson's shoulder. AR 135. On February 25, 1992, it was Dr. Berkebile's opinion that Thompson "does have [a] rather marked posterior instability of his right shoulder and I think he would be benefitted by having a stabilization procedure or at least he ought to be evaluated for a stabilization procedure." AR 136. The doctor's further opinion was that Thompson would be able to return to work as a small engine mechanic if the procedure was successful. AR 136. He indicated that Thompson could work with his arms at waist level or slightly above waist level. AR 243.
On March 12, 1992, Thompson was referred to Dr. Hawkins. AR 140. Dr. Hawkins' examination revealed an anterior incision over his shoulder which was a subacromial depression type incision. AR 211. He noted that Thompson was "obviously in a fair amount of pain." Id. The doctor determined that Thompson had a limited range of motion but could get past the limitations. Id. He was also tender. Id. The doctor found soft tissue irritation around the right shoulder. AR 212. He recommended a rehabilitation program. Id.
On April, 30, 1992, Dr. Gill allowed Thompson to go back to work with restrictions. AR 232. Thompson was to do no pushing or pulling with the right shoulder, perform no repetitive overhead activity, and lift nothing greater than five pounds. Id.
Dr. Hawkins performed a surgical procedure described as a "[r]ight shoulder posterior capsular shift," on November 18, 1992. AR 214. After postoperative recovery, Thompson was placed in rehabilitation therapy consisting of range of motion exercises. AR 222. He was also given anti-inflammatory medication and pain medication. Id. Concerning Thompson's work status, the doctor noted that he was to be restricted to "a light duty sedentary type position." AR 223.
On February 10, 1993, Dr. Hawkins noted that there were still indications of significant pain and tenderness about the posterior shoulder. AR 224. There was also some component of glenohumeral pain and also the possibility of a small component of anterior instability. AR 224. The doctor prescribed continued therapy and on July 21, 1993, he indicated that Thompson would have to pursue more sedentary type work. AR 225, 227.
Thompson completed a pain questionnaire in May, 1993. AR 199-204. Thompson indicated he suffered pain in his right shoulder ranging from a dull ache to a severe sharp pain if he was using his right arm. AR 199. He stated that he could lift no weight without increasing his pain with his right arm but could lift zero to fifteen pounds without increasing his pain using his left arm. AR 202. Besides the surgeries and physical therapy, Thompson has testified that he received injections in his shoulder. AR 65.
Psychological Problems
Thompson was treated for depression from at least March 8, 1995, to November 8, 1995. AR 419. He was prescribed medication as part of his treatment and stated that the medication helped him. Id. Additionally, he saw a counselor who submitted a Psychiatric Review Technique Form indicating that Thompson suffered from affective disorder and anxiety disorder. AR 453-61.
Daily Activities
In completing the pain questionnaire, Thompson described some of his daily activities and limitations. He admitted that he could shop, but could not lift heavy grocery sacks with his right arm. AR 200. He occasionally cooked, loaded his dishwasher, and vacuumed. Id. He alleged he could no longer hunt, fish, or do wood-working. AR 201. He did indicate he was able to do some light gardening. AR 201.
At the last hearing, Thompson described his daily activities during the period in question. He would read or watch television most of the time. AR 59. He claimed that he did not vacuum, sweep, or take out the trash. Id. He was able to do some cooking and load the dishwasher. AR 59-63. Further, he was able to do some light gardening and take his children fishing. AR 60. He also hunted and shot one deer during the period in question. AR 61. Thompson was also able to drive a car with a manual transmission during this period. AR 62.
During his schooling for CAD, he carried an average of fifteen credit-hours a semester and attended classes five days per week for seven hours per day followed by an average of one and one-half hours of homework. AR 34-35. He was able to maintain a 3.8 or 3.9 grade-point-average based on a 4.0 scale. AR 35.
Also during the period in question, he worked at Sears in a supervisory position where he trained people in the mechanics department and did paperwork. AR 38-39. He worked five days per week for eight hours per day. Id. He spent about fifty percent of his time sitting and the other fifty percent standing or walking. AR 39. The job required him to lift less than ten pounds. Id. About one-third to one-fourth of his time was spent writing. Id.
After November, 1992, Thompson did not work until August, 1995, where he started at United Building Centers as a drafter. AR 41. He worked there eight hours per day, five days per week. Id. At this job, he was on his feet about twenty-five percent of the time and was at a keyboard seventy-five percent of the time. AR 42. He never lifted anything over ten pounds. Id.
III. THE DECISION OF THE ALJ
The ALJ determined at step one of the five-step sequential process that Thompson did not engage in substantial gainful activity from November 18, 1991, to May 4, 1992, and from November 17, 1992, to August 1, 1995. AR 19. At step two, the ALJ determined that Thompson suffered from a right shoulder instability and residuals from his left arm injury which he classified as severe. Id. But at step three, the ALJ determined that Thompson's severe impairments "[did] not meet or equal the requirements of any impairment listed in Appendix 1, Subpart P, Regulations No. 4." Id. The ALJ concluded that Thompson's testimony was not fully credible. Id. Based upon the aid of a vocation expert (VE), the ALJ determined Thompson's RFC as follows:
The five-step sequential evaluation process is as follows:
(1) If the claimant is working and such work is substantial gainful activity, the claimant is not deemed disabled for purposes of the Social Security Act;
(2) The claimant must have a severe impairment(s) which is an impairment that significantly limits the claimant's physical or mental ability to do basic work activities;
(3) If the impairment(s) either meets or equals one of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1, and meets the duration requirement, the claimant will be found to be disabled without considering the claimant's age, education, and work experience;
(4) The impairment(s) must prevent the claimant from doing past relevant work. If such a conclusion cannot be made based upon the claimant's current work activity or medical facts alone, then the ALJ reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's former employment activities. If the ALJ determines that the claimant can still do past relevant work, then the claimant is not disabled for the purposes of the Social Security Act; and
(5) The impairment(s) must also prevent the claimant from doing any other work. However, "[i]f [the claimant has] only a marginal education, and long work experience (i.e., 35 years or more) where [the claimant] only did arduous unskilled physical labor, and [the claimant] can no longer do this kind of work, [a different rule is used] (see § 404.1562)."20 C.F.R. § 404.1520. See also Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (acknowledging the five-step sequential evaluation process of 20 § C.F.R. § 404.1520).
The claimant retains the functional capacity for a wide range of tasks at the sedentary and light exertional levels in which he avoids exposure to extremes in temperature and vibration; can sit for two to four hours at a time, stand two to three hours at a time, and walk up to two hours, and can perform these activities for up to two thirds of the day each. Manipulatively, the claimant should avoid any above the shoulder activities, can lift and carry up to10 pounds frequently and 20 pounds occasionally using both arms, and can lift no more than five pounds using his dominate right upper extremity. He cannot perform more than occasional unsupported forward reaching with his right upper extremity, can perform frequent, but not constant and repetitive, handling and fingering with his right upper extremity, and has diminished feeling in his left fourth and fifth fingers but retains good grip strength in his left hand.
Id. At step four, the ALJ determined that Thompson was unable to perform his past relevant work and had no transferable skills. AR 20. At step five, the ALJ found that there were significant numbers of jobs existing in the local and national economy of which Thompson could perform. Id. These included bookkeeper and accountant, and food and beverage order clerk. Id. Consequently, the ALJ concluded that Thompson was not disabled during the period in question, as defined by Social Security Act (the Act). Id.
IV. STANDARD OF REVIEW
The decision of the ALJ must be upheld if it is supported by substantial evidence in the record as a whole. See 42 U.S.C. § 405(g); Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F.3d 601, 603 (8th Cir. 1994), cert. denied, 573 U.S. 1076, 115 SCt 722, 130 L.Ed.2d 627 (1995)); Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. See Fines v. Apfel, 149 F.3d 893 (8th Cir. 1998) (citing Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). See also Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 SCt 1420, 1427, 28 L.Ed.2d 842 (1971)); Onstead v. Sullivan, 962 F.2d 803 (8th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F.2d 1005, 1007 (8th Cir. 1991)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner's decision to include giving consideration to evidence in the record which fairly detracts from the decision. See Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991).
The Court's role is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. See Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F.2d at 1374 (citing Locher, 986 F.2d at 727 (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984))). The Court must review the Commissioner's decision to determine if an error of law has been committed. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. See Smith v. Sullivan, 982 F.2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D.Ark. 1979), aff'd per curiam, 615 F.2d 1288, 1289 (8th Cir. 1980). As long as the ALJ's decision is supported by substantial evidence, then this Court cannot reverse the decision of the ALJ even if the Court would have decided it differently. See Smith v. Shalala, 987 F.2d at 1374. In other words, "`[i]f, after review, [the Court] find[s] it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the Court] must affirm the denial of benefits.'" Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996) (citing Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
V. DISCUSSION
Thompson presents five issues: (1) whether the ALJ erred in finding that Thompson was not credible; (2) whether the ALJ erred in the formulation of the residual functional capacity (RFC); (3) whether the ALJ erred in applying step five of the sequential process; (4) whether the ALJ erred in not finding a trial work period; and (5) whether the ALJ abused its discretion in not considering benefits pursuant to 42 U.S.C. § 425(b).
Credibility Determination
Thompson argues that the ALJ failed to reveal any real inconsistencies in Thompson's testimony which was supported by the evidence as a whole. Plaintiff's Opening Memorandum at 32 (Plaintiff's Memorandum). "Where adequately explained and supported, credibility findings are for the ALJ to make." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing Tang v. Apfel, 205 F.3d 1084, 1087 (8th Cir. 2000)). The Eighth Circuit Court of Appeals, in Polaski v. Heckler, outlined the necessary steps an ALJ must take in determining the credibility of a claimant's subjective complaints. 739 F.2d 1320, 1321-22 (8th Cir. 1984). Under Polaski:
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.
Id. (emphasis in original). See also 20 C.F.R. § 416.929(c)(3). The ALJ is not required to "discuss methodically each Polaski consideration, so long as he acknowledged and examined those considerations . . . ." Lowe, 226 F.3d at 972.
The ALJ conceded that Thompson had a medically determined impairment that could cause pain and functional limitations. AR 15. However, he noted that Thompson's subjective complaints were inconsistent with other record evidence. Id. The ALJ noted that Thompson's work experiences, before the period in question, but after his left arm injury, conflicted with his testimony. AR 16. Thompson worked as a logger from 1982 to 1986 and as a small engine mechanic from 1986 to 1991 despite his left arm impairment. Id. This work required the use of his left upper extremity which undermines his credibility. See Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990) (finding the plaintiff could not claim that his impairments were disabling when he had worked with the impairments over a period of years without worsening his condition). He also worked in a supervisory position at Sears during part of the period in question. AR 38. Working after an alleged onset date weakens a claimant's allegation that he is unable to perform any work. Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). Additionally, he was a full-time student from 1993 to 1995. AR 16, 34. Attending school and carrying a full class load is inconsistent with disabling pain. Tennant v. Apfel, 224 F.3d 869, 871 (8th Cir. 2000).
The ALJ also noted that Thompson's other daily activities were inconsistent with his subjective complaints regarding his functional limitations. AR 16. Thompson indicated that he could cook, load a dishwasher, perform light gardening, drive a manual transmission car, and take his children hunting and fishing. AR 59-64, 200-01. Performance of these substantial daily activities supports the ALJ's credibility determination. See McKinney v. Apfel, 228 F.3d 860, 864 (8th Cir. 2000) (ability to conduct daily activities is a proper factor to consider in credibility analysis). Therefore, the Court finds there is substantial evidence in the record to support the ALJ's credibility determination.
Formulation of RFC
Thompson next argues that the ALJ erred in formulating his RFC. Plaintiff's Memorandum at 32-34. Thompson argues that the RFC was not supported by medical evidence and was based on an improper credibility analysis. Id. Additionally, Thompson argues that the ALJ failed to determine whether he could work on a continuous and regular basis. Id.
The issue of credibility has already been resolved in the favor of the Commissioner as discussed above.
Section 404.1545 of the regulations addresses the determination of the RFC. Paragraph (e) provides:
When you have a severe impairment(s), but your symptoms, signs, and laboratory findings do not meet or equal those of a listed impairment in Appendix 1 of this subpart, we will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity. . . . In assessing the total limiting effects of your impairment(s) and any related symptoms, we will consider all of the medical and nonmedical evidence, including the information described in § 404.1529(c).20 C.F.R. § 404.1545(e). The claimant bears the burden of proof of establishing his RFC. See Young v. Apfel, 221 F.3d 1065, 1069 n. 5 (8th Cir. 2000) (citing 20 C.F.R. § 404.1520 (a), (e), (f); 404.1545-46; 404.1560-61; Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
Thompson's argument that the ALJ's RFC formulation was erroneous because it is not supported by medical evidence is without merit. In 1984, Dr. Kelts found "mild distal weakness in the left hand along with mild decrease in size of the hypothenar and intraosseous muscles, decreased pin sensation along the ulnar aspect of the left hand, and the rest of the examination unremarkable." AR 377. In February, 1986, Dr. Gill examined Thompson and found "a scar at the left elbow with decreased sensation in the ulnar distribution of the hand," but he had "good ulnar motor function." AR 399.
Concerning Thompson's right shoulder, Dr. Gill stated, in April, 1992, that Thompson's work should be restricted to lifting no more than five pounds, with no repetitive overhead activity or pushing or pulling with the right shoulder. AR 232. As Dr. Gill was Thompson's treating physician, his opinion is to be given great weight as long as it is well-supported by medically acceptable techniques and is not inconsistent with other substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
After a second shoulder surgery in November of 1992, it was Dr. Hawkins' opinion that Thompson could perform sedentary work. AR 227. The doctor limited Thompson's lifting to less than ten pounds with the right shoulder. AR 226. Additionally, in November, 1993, Dr. Hawkins stated that Thompson "cannot do a job that involves repetitive use of that arm or lifting maybe even over 5 pounds . . . ." AR 239. As stated before, as Dr. Hawkins was Thompson's treating physician, his opinion is to be given great weight. Prosch, 201 F.3d at 1012-13.
The ALJ acknowledged that Thompson had suffered from depression. AR 12. Although the ALJ considered the opinions of Thompson's counselor, Mr. Hessman, he correctly noted that Mr. Hessman was not an acceptable medical source as defined in 20 C.F.R. § 404.1513. Id. The evidence showed that Thompson was able to attend vocational school classes on a full-time basis which undermines his alleged problems with concentration, persistence, and pace. AR 34-35. The record also indicates that the medication Thompson was taking helped his depression. AR 419. The Eighth Circuit Court of Appeals has held that "[i]mpairments that are controllable or amenable to treatment do not support a finding of total disability." Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (citations omitted). Finally, Thompson testified at the hearing that his level of depression at the time of the hearing (when he was engaged in substantial gainful activity) was about the same as it was during the period in question. AR 12, 66.
Thompson testified as to his ability to stand, walk, and sit. He testified that while working an eight-hour shift at Sears as a supervisor during the period in question, he would spend about fifty percent of his time sitting and fifty percent standing and/or walking. AR 38-39. He also stated that he spent one-third to one-fourth of his time writing. Id.
The ALJ determined the following RFC for Thompson:
The claimant retains the functional capacity for a wide range of tasks at the sedentary and light exertional levels in which he avoids exposure to extremes in temperature and vibration; can sit for two to four hours at a time, stand two to three hours at a time, and walk up to two hours, and can perform these activities for up to two thirds of the day each. Manipulatively, the claimant should avoid any above the shoulder activities, can lift and carry up to10 pounds frequently and 20 pounds occasionally using both arms, and can lift no more than five pounds using his dominate right upper extremity. He cannot perform more than occasional unsupported forward reaching with his right upper extremity, can perform frequent, but not constant and repetitive, handling and fingering with his right upper extremity, and has diminished feeling in his left fourth and fifth fingers but retains good grip strength in his left hand.
AR 19. The ALJ's RFC determination does not conflict or contradict with the opinions of Drs. Kelts, Gill and Hawkins or the evidence concerning Thompson's psychological impairments.
Thompson's argument that the ALJ failed to consider whether he could work on a continuous and regular basis is also unpersuasive. Social Security Ruling 96-8p states as follows:
RFC is an assessment of an individual's ability to do 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.
SSR 96-8p (emphasis added). Hence, the ALJ's finding that Thompson could perform work at the sedentary and light levels was a finding, based on the definition of residual functional capacity, that he had the ability to work eight hours per day, five days per week, on a regular and continuous basis. Id. The Court finds that the ALJ's RFC determination is supported by substantial evidence.
The Step Five Determination
Thompson argues that the ALJ's step five determination was not supported by substantial evidence. Plaintiff's Memorandum at 34-36. Specifically, Thompson argues that the Dictionary of Occupational Titles (DOT) does not list any accountants or bookkeepers as unskilled. Id. at 35. Additionally, Thompson states that the DOT listing of food and beverage order clerk requires frequent reaching. Id.
If expert vocational testimony conflicts with the DOT, the DOT controls. Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995) (citations omitted). Furthermore, Social Security Ruling 00-4p states:
Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.
SSR 00-4p. The ALJ failed to inquire as to any inconsistency. Although the VE stated that unskilled bookkeepers and accountants were listed in the census code which is an acceptable source, see 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b), he did not inform the ALJ that the job positions were not listed in the DOT. Therefore, the ALJ did not meet the requirements of step five as to these positions. The Court finds, however, that such failure to inquire does not detract from the ALJ's ultimate decision which is supported by substantial evidence.
Plaintiff's argument concerning the food and beverage order clerk, however, is unpersuasive. While it is true that the DOT states that the position requires frequent reaching, it is also true that the ALJ's RFC determination did not limit Thompson's reaching with his left upper extremity. AR 19. Consequently, the ALJ did not err in determining that Thompson could work as a food and beverage order clerk during the period in question. Even without the addition of the unskilled accountant and bookkeeper positions, the VE testified that 363 jobs locally and 137,000 jobs nationally exist which Thompson could perform. AR 18, 78. The Court finds that these numbers amount to a significant number of jobs available.
Applicability of Trial Work Period
Thompson next argues that the ALJ erred in not finding that Thompson's supervisory position at Sears was a trial work period. Plaintiff's Memorandum at 37. According to 20 C.F.R. § 404.1592(a), a trial work period is "a period during which you may test your ability to work and still be considered disabled . . . ." 20 C.F.R. § 404.1592(a) (emphasis added). As the Court has found that the ALJ did not err in finding Thompson not disabled, the work in question cannot be considered a trial work period by definition. See id.
Application of 42 U.S.C. § 425(b)
Thompson argues the ALJ abused his discretion in not considering whether he was entitled to continued disability payments during his rehabilitation program pursuant to 42 U.S.C. § 425(b). Plaintiff's Memorandum at 38-40. The section provides:
Notwithstanding any other provision of this subchapter, payment to an individual of benefits based on disability . . . shall not be terminated or suspended because the physical or mental impairment, on which the individual's entitlement to such benefits is based, has or may have ceased, if —
(1) such individual is participating in a program consisting of the Ticket to Work and Self-Sufficiency Program under section 1320b-19 of this title or another program of vocational rehabilitation services, employment services, or other support services, approved by the Commissioner of Social Security, and
(2) the Commissioner of Social Security determines that the completion of such program, or its continuation for a specified period of time, will increase the likelihood that such individual may (following his participation in such program) be permanently removed from the disability benefit rolls.42 U.S.C. § 425(b). However, in order for there to be continued disability payments during a rehabilitation program, the claimant must have previously received benefits due to a disability. In this case, Thompson did not receive disability benefits prior to entering the program. Thus, the issue was not ripe for review until a disability determination was made. As the ALJ found that Thompson was not disabled, 42 U.S.C. § 425(b) is not applicable.
VI. CONCLUSION
Based on the foregoing discussion, it is hereby
ORDERED that plaintiff's motion (Docket #17) is denied. Judgment will be entered for the Commissioner and against plaintiff.