Harmon v. Apfel
| Decision Date | 19 February 1999 |
| Docket Number | No. 98-5412,98-5412 |
| Parties | , Unempl.Ins.Rep. (CCH) P 16121B Shirley HARMON, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Julie A. Atkins (briefed), Harlan, KY, for Plaintiff-Appellant.
John S. Osborn, III, Asst. U.S. Attorney, Lexington, KY, Robert K. Gaskins (briefed), Dennis R. Williams (briefed), Mary Ann Sloan (briefed), Social Security Administration, Office of General Counsel, Region IV, Atlanta, GA, for Defendant-Appellee.
Before: MERRITT and MOORE, Circuit Judges; DUGGAN, District Judge. *
Plaintiff appeals the judgment of the district court affirming the denial of supplemental security benefits. Claimant is not requesting review of the factual findings relating to her vocational profile or her residual functional capacity. Instead, the question presented is whether there are a significant number of jobs that the claimant can be expected to perform given the claimant's limitations and the distance she would be required to travel to find work. Because we find that the denial is supported by substantial evidence on the record as a whole, we affirm.
Plaintiff Shirley Harmon lives in Cumberland, Kentucky, a rural area. She applied for benefits in June 1994. Her primary complaint was debilitating back pain that necessitated that she sit or lie down most of the time. The ALJ found, and plaintiff does not dispute in this appeal, that plaintiff has the residual functional capacity to perform light work that allows her to alternate between sitting and standing every thirty minutes. Jobs such as retail receiving clerk, gasket inspector, shoe packer, gate tender, hardware assembler and switchbox assembler would be suitable with plaintiff's limitations. ALJ Decision of Sept. 20, 1995, at 7-8. The vocational expert testified at plaintiff's hearing that there are about 900,000 jobs of this kind nationwide, id. at 6, 1 and about 700 similar jobs within a 75-mile radius of plaintiff's home.
The Appeals Council denied plaintiff's request for review of the ALJ decision. Decision of October 2, 1996. Plaintiff appealed to the district court, which held that substantial evidence supports the ALJ's decision. Memorandum Op. dated Feb. 11, 1998. Plaintiff appealed to this Court.
To be entitled to disability benefits, claimant must establish a physical or mental impairment, lasting at least twelve months, that prevents her from engaging in any gainful activity. 42 U.S.C. § 423(d)(3). Plaintiff has the burden to establish an entitlement to benefits by proving the existence of a disability as defined in the Act. Id. A claimant establishes a prima facie case by showing that she is unable to perform her former work. The burden then shifts to the Secretary to show that claimant, considering her age, education, and work experience, can perform other work existing in significant numbers in the national economy. Born v. Secretary of Health and Human Servs., 923 F.2d 1168, 1173 (6th Cir.1990). We must affirm the Commissioner's determination if it is supported by substantial evidence on the record as a whole.
On appeal, plaintiff contends that the district court erred in finding that substantial evidence supported the determination that she was not entitled to benefits because the ALJ erred in finding that there are a significant number of jobs in the local area that she could perform. Based on the vocational expert's testimony, the ALJ determined that there were about 700 jobs within a 75-mile radius of plaintiff's home that plaintiff would be able to perform. Plaintiff does not dispute this number but contends that her disability prevents her from traveling to most of those jobs and that inability to travel is a factor in determining whether plaintiff is disabled within the meaning of the Social Security Act. Plaintiff contends that the vast majority of the 700 jobs identified by the vocational expert were in the Kingsport, Tennessee tri-city area, about 70 miles from plaintiff's home. The commute to these jobs would take plaintiff about an hour and one-half each way by car over hilly mountain roads. Plaintiff contends that because the restrictions used by the ALJ in the hypothetical recognized that she can stand or sit for only thirty minutes at a time, that restriction precludes her from driving to jobs in the tri-city area. In essence, plaintiff contends that when jobs in the tri-city area are eliminated from the "pool" of jobs that she could perform, there is not the requisite "significant number of jobs" that plaintiff could perform and she should therefore be eligible for benefits.
Plaintiff's argument suffers from two fatal flaws. First, the number of jobs that contributes to the "significant number of jobs" standard looks to the national economy--not just a local area. Second, while plaintiff is correct when she contends that travel to and from work is a factor to be considered, it refers to intrinsic factors concerning plaintiff's condition, not extrinsic factors such as where plaintiff has chosen to live in relation to any identified regional jobs.
The ALJ determined that 700,000 jobs constitutes a significant number in the national economy. The Social Security Act, as amended, provides that "work which exists in the national economy means work which exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A) (emphasis added). The Commissioner is not required to show that job opportunities exist within the local area. Dressel v. Califano, 558 F.2d 504, 508-09 (8th Cir.1977).
The regulations implementing the Social Security Act clarify this point: "It does not matter whether ... [w]ork exists in the immediate area in which you live...." 20 C.F.R. § 416.966(a)(1)(1997). However, the...
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Lawson v. Astrue
...plaintiff can perform other substantial gainful employment and that such employment exists in the national economy. Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.1999); Born, 923 F.2d at 1173; Allen v. Califano, 613 F.2d 139 (6th Cir.1980). To rebut a prima facie case, the Commissioner must c......
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...work, the remaining two jobs represent a significant number of jobs in the national economy. See 20 C.F.R. § 404.1566; Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999); Hall v. Bowen, 837 F.2d 272, 274-275 (6th Cir. 1988); see also Stewart v. Sullivan, No. 89-6242, 1990 WL 75248, at *4 (6......
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...the claimant can perform other substantial gainful employment, and that such employment exists in the national economy. Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.1999). To rebut a prima facie case, the Commissioner must come forward with particularized proof of the claimant's individual c......
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Terry v. Astrue
...§ 404.1566(a)(1). Rather, "the test is whether work exists in the national economy, not in plaintiff's neighborhood." Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999). In the instant case, the VE found that there existed at least 4, 700 jobs that Plaintiff could perform in the state of Te......
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Case survey
...“has the burden to establish an entitlement to benefits by proving the existence of a disability as defined in the Act.” Harmon v. Apfel , 168 F.3d 289, 291 (6th Cir. 1999), citing 42 U.S.C. § 423(d)(3). “A claimant establishes a prima facie case by showing that she is unable to perform her......
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Issue Topics
...does not indicate she lacks the ability to perform work which exists in significant numbers in the national economy. Harmon v. Apfel , 168 F.3d 289, 292 (6th Cir. 1999). To reconcile the statutory provisions referencing work in the region a claimant lives or several regions of the country b......
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Issue topics
...does not indicate she lacks the ability to perform work which exists in significant numbers in the national economy. Harmon v. Apfel , 168 F.3d 289, 292 (6th Cir. 1999). To reconcile the statutory provisions referencing work in the region a claimant lives or several regions of the country b......
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Issue topics
...does not indicate she lacks the ability to perform work which exists in significant numbers in the national economy. Harmon v. Apfel , 168 F.3d 289, 292 (6 th Cir. 1999). To reconcile the statutory provisions referencing work in the region a claimant lives or several regions of the country ......