                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0319n.06

                                            No. 19-2180

                           UNITED STATES COURT OF APPEALS                               FILED
                                FOR THE SIXTH CIRCUIT                             Jun 03, 2020
                                                                              DEBORAH S. HUNT, Clerk
 DONNIE JONES,                                            )
                                                          )
         Plaintiff-Appellant,                             )
                                                          )         ON APPEAL FROM THE
 v.                                                       )         UNITED STATES COURT
                                                          )         FOR THE WESTERN
 COMMISSIONER OF SOCIAL SECURITY,                         )         DISTRICT OF MICHIGAN
                                                          )
         Defendant-Appellee.                              )

BEFORE: DAUGHTREY, GIBBONS, and MURPHY, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Donnie Jones challenges the Commissioner of

Social Security’s (“Commissioner”) determination that he is not disabled and therefore not entitled

to disability insurance under Title II of the Social Security Act. Jones contends the Administrative

Law Judge (“ALJ”) who heard his case made two errors. First, Jones argues the ALJ failed to

consider his use of a cane, an oversight that Jones contends produced multiple reversible errors.

Second, Jones insists that the ALJ improperly classified Jones’s past relevant work. Because Jones

did not produce evidence that he required a cane and because the ALJ properly classified Jones’s

past relevant work, we affirm the district court’s decision declining to disturb the Commissioner’s

determination that Jones is not entitled to disability insurance.

                                                  I.

       In the spring of 2014, Jones injured his back working on a car engine at his home. In July

of that year, still suffering from back pain resulting from the accident, Jones visited Bridgman

Family & Internal Medicine (“Bridgman”). There, he reported having lower back pain “radiat[ing]
Case No. 19-2180, Jones v. Comm’r of Soc. Sec.


to [his] left thigh,” that is “aggravated by bending, position and standing.” DE 9-7, Medical R.,

Page ID 405, 408. When Jones returned to Bridgman later that month, he “exhibit[ed] decreased

range of motion, tenderness, bony tenderness[,] and pain” in his lumbar back. Id. at 417.

Bridgman recommended that Jones begin physical therapy.

       The following month, Jones visited a physical therapist, Simi Jain. Jain noted that Jones

had normal posture, that his gait was at a “[s]low pace,” that he experienced pain when bending

and rotating, and that he arrived using a cane. Id. at 297. Jain recommended Jones have weekly

or even bi-weekly physical therapy visits, but at his physical therapy appointment three days later,

Jones told Jain that he wanted to undergo more tests before beginning physical therapy.

       Jones returned to Bridgman a few days later complaining that physical therapy had

increased his pain. Jones still had normal strength and gait, but his range of motion had decreased

since physical therapy.     Bridgman ordered an MRI of Jones’s spine and prescribed a

transcutaneous electrical nerve stimulation (“TENS”) unit. Jones declined to continue physical

therapy until he received the results of the MRI.

       The MRI found “spondylotic changes at L4-L5 and L5-S1 with mild posterior disc bulging

and herniation . . .[,] mild relative L4-L5 spinal stenosis[, and] mild right-sided L5-S1

neuroforaminal impingement.”       Id. at 459.      Based on the results, Jones was referred to a

neurosurgical consult and advised to undergo physical therapy and use the TENS unit. Yet, a week

later, Jones again declined physical therapy.           During his neurosurgical consultation, Jones

exhibited “no neurological deficits” and was advised to pursue “conservative treatment measures,”

including physical therapy and muscle exercises. Id. at 352–53. Doctors still observed that Jones

had a normal gait and normal range of motion.




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Case No. 19-2180, Jones v. Comm’r of Soc. Sec.


        Another MRI in January 2015 revealed multiple central disc protrusions and other diffusely

bulging discs, in addition to the issues identified in the earlier MRI. At the time, doctors observed

he had a normal gait. In March 2016, Jones again sought treatment for pain in his hands, lower

back, and neck at Michigan Spine, Sports & Occupational Rehab. Jones attempted physical

therapy, received a medial branch block and a steroid injection. Jones continued therapy there

throughout 2016; as late as September and October 2016, doctors observed normal gait and no

need for any assistive devices.

        At his hearing before an ALJ in January 2017, Jones testified that he had neck pain and

numbness in his right hand, difficulty looking over either shoulder, and persistent pain in his lower

back that sometimes radiated to his legs. Jones added that he could not stand for more than twenty

minutes, could only walk for about one city block without needing a break, and had difficulty

lifting objects.

        Jones also testified about his employment history. He was a security guard for the Benton

Harbor Area Schools from 1995 to 2012. Jones testified that, in that role, he spent about half the

time sitting and the other half walking around the school and would sometimes have to lift

teenagers off one another to break up fights. A vocational expert testified that this work was “light

and semiskilled” but “at times, performed at heavy.” DE 9-2, Hr’g Tr., Page ID 122.

        Jones worked as a security guard for Armor Knight Security from August 2013 to January

2014. There, he earned $4712.00 in 2013 and $1168.00 in January 2014. Jones testified that, at

Armor Knight Security, he would mostly sit at his post but would occasionally patrol the building

by foot. He did not drive or perform any lifting while working for Armor Knight Security. The




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vocational expert testified that this job was “performed at sedentary.” Id. at 122. Jones is currently

unemployed.

       On April 24, 2017, the ALJ issued a decision concluding that Jones was not eligible for

disability benefits. Although Jones had several “severe impairments,” including “multilevel

cervical and lumbar degenerative disc disease[] and obesity,” DE 9-2, ALJ Decision, Page ID 48,

the ALJ concluded that Jones’s impairments did not “meet[] or medically equal[] the severity of

one of the listed impairments.” Id. at 49. The ALJ specifically concluded that Jones’s degenerative

disc disease did not medically equal Listing 1.04, which specifies the symptoms of a spinal- or

lumbar-disability.

       Given Jones’s impairments, the ALJ concluded that Jones remained capable of performing

sedentary work, provided he did not “climb ladders, ropes, or scaffolds[;] kneel, crouch, or crawl,”

and only “occasionally climb[ed] ramps and stairs, balance[d], and/or stoop[ed].” Id. at 49. The

ALJ chose not to credit Jones’s testimony about the severity of his impairments because it was

inconsistent with medical records that revealed no abnormal gait, no strength loss, no medical

restrictions on his activities, and no “clinical observations that [Jones] had difficulty ambulating,”

id. at 52, and noted that Jones had repeatedly declined physical therapy. Indeed, the ALJ reached

the conclusion that Jones was capable only of performing sedentary work only by affording Jones

“an extreme benefit of the doubt.” Id. at 53.

       Turning to Jones’s past prior work, the ALJ found that Jones’s only past relevant work was

as a security guard. Based on the Dictionary of Occupational Titles and the vocational expert’s




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testimony that some of the work was performed at the sedentary level, the ALJ concluded that

Jones’s residual capacity allowed him to continue his prior work as a security guard.

       Jones sought review of the decision before the United States District Court for the Western

District of Michigan. The district court affirmed the ALJ’s decision. Jones timely appealed.

                                                 II.

       The Social Security Administration (“SSA”) provides disability insurance benefits to

people under retirement age who become disabled. 42 U.S.C. § 423(a). A claimant must file an

application for disability, demonstrating to the SSA that, as the result of a “medically determinable

physical or mental impairment” that “has lasted or can be expected to last for a continuous period

of not less than 12 months,” he is “unable to do his previous work” and also “cannot, considering

his age, education, and work experience, engage in any other kind of substantial gainful work.”

Id. § 423(d)(1)(A), (d)(2)(A). We have previously described the five-step process employed by

the SSA as follows:

       A “five-step sequential evaluation process” guides efforts to implement these two
       requirements. 20 C.F.R. § 404.1520 (authorized by 42 U.S.C. § 405(a)); 20 C.F.R.
       § 416.920(a) (authorized by 42 U.S.C. § 1383(d)(1)); see Barnhart v. Thomas,
       540 U.S. 20, 24 (2003). The Administration checks (1) if the person is not engaged
       in gainful activity, (2) if she has a severe, medically verifiable physical or mental
       impairment, and (3) if she has a qualifying impairment that leads to a disability
       finding by default. 20 C.F.R. § 404.1520(a)(4). If this does not resolve her
       application, the Administration calculates her residual functional capacity, id.,
       which reflects what sorts of work she can do despite her
       impairment, id. § 404.1545(a)(1). If (4) she has held a job that someone with her
       residual functional capacity can still do or if (5) someone of her age,
       education, work experience, and residual functional capacity can adjust to
       other work available in the national economy, then she is not disabled. Id.
       §§ 404.1520(a)(4), 416.920(a)(4).

Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 931–32 (6th Cir. 2018). The claimant carries the

burden of persuasion at all but Step Five. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir.



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Case No. 19-2180, Jones v. Comm’r of Soc. Sec.


1999). A claimant denied disability benefits may request a hearing before an ALJ and later a

federal district court to reconsider the SSA’s decision. 42 U.S.C. §§ 405(b)(1), 405(g).

       A claimant can appeal the district court’s decision to this court. Id. § 405(g). Though we

review de novo the district court’s Social Security benefits decision, Livingston v. Comm’r of Soc.

Sec., 776 F. App’x 897, 898 (6th Cir. 2019) (citing Miller v. Comm’r of Soc. Sec., 811 F.3d 825,

833 (6th Cir. 2016)), we affirm the Commissioner’s decision so long as it was reached in

accordance with agency rules and regulations, made applying the correct legal standards, and

supported by substantial evidence. Miller, 811 F.3d at 833. “‘Substantial evidence’ is more than

a scintilla but less than a preponderance.” Tweedle v. Comm’r of Soc. Sec., 731 F. App’x 506, 507

(6th Cir. 2018) (per curiam) (quoting Miller, 811 F.3d at 833). We defer to the ALJ’s credibility

determinations where those determinations are supported by substantial evidence. Id.

                                                  III.

       Jones argues that the ALJ committed “multiple violations” at Step Three and Step Four of

the sequential evaluation process. In his reply brief, Jones clarifies that each of these errors relates

to the “ALJ’s failure to consider whether [] Jones required an assistive device,” specifically, a

cane. CA6 R. 13, Reply Br., at 17. This argument is unavailing. At Step Three, a finding that

Jones required a cane would not have affected the ALJ’s conclusion that Jones’s impairments

failed to meet Listing 1.04(C) for lumbar spinal stenosis. A finding that Jones required a cane

would have affected the Step Four analysis, but the record contains minimal evidence that Jones

requires a cane.

                                                  A.

       Jones argues that the ALJ’s finding at Step Three that Jones’s cervical and lumbar

degenerative disease did not equal Listing 1.04(C) “failed to provide any sort of discussion


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Case No. 19-2180, Jones v. Comm’r of Soc. Sec.


supporting the conclusion.” CA6 R. 8, Appellant Br., at 43. Jones adds that the ALJ’s explanation

for why he failed to meet Listing 1.04(C) failed to account for how his use of a cane might render

him unable to ambulate.

       To satisfy Listing 1.04(C), Jones must demonstrate “[l]umbar spinal stenosis resulting in

pseudoclaudication,” with “findings on appropriate medically acceptable imaging, manifested by

chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively.”

20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04 (emphasis added). “Inability to ambulate effectively,”

means “having insufficient lower extremity functioning . . . to permit independent ambulation

without the use of a hand-held assistive device(s) that limits the functioning of both upper

extremities.” Id. § 1.00(B)(2)(b)(1) (emphasis added).

       In Forrest v. Commissioner of Social Security, we held that an ALJ’s discussion of a Listing

at Step Three was sufficient even where the ALJ did not discuss the claimant’s alleged inability to

ambulate as evidenced by possible use of a cane. 591 F. App’x 359, 366 (6th Cir. 2014). We held

that even if the ALJ failed to sufficiently set out an explanation of her decision at Step Three,

where the Listing required an “inability to ambulate” and the claimant “used one cane at most,”

any error was harmless because the claimant could not show that his impairment met or medically

equaled the listing. Id. Forrest is directly on point. Even assuming a cane was medically

necessary for Jones to ambulate, it is insufficient to demonstrate an inability to ambulate. As

Forrest recognized, a cane cannot demonstrate an inability to ambulate because a claimant must

need “hand-held assistive device(s)” in both hands to satisfy the definition.           20 C.F.R.

§ 1.00(B)(2)(b)(1); Forrest, 591 F. App’x at 366.




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          Moreover, there was plenty of evidence to support the conclusion that Jones was able to

ambulate. Multiple doctors found that his gait was not significantly affected by his lower back

injury.

          Jones’s use of a cane would not render him unable to ambulate under the regulations, and

the record supports the ALJ’s conclusion that Jones was not unable to ambulate. Accordingly, the

ALJ made no error in failing to discuss Jones’s use of a cane and finding that Jones did not meet

Listing 1.04 at Step Three.

                                                 B.

          Jones next argues that the ALJ incorrectly determined his residual functional capacity at

Step Four. Jones identifies two errors. First, Jones asserts that the ALJ’s determination of his

residual functional capacity is overbroad because the ALJ failed to consider whether Jones

required an assistive device. Second, Jones insists that the ALJ did not properly account for his

medical impairments when making the residual functional capacity. Neither contention has merit.

          Jones contends that the ALJ should have considered whether he needed a cane. Jones faults

the ALJ for failing to discuss Social Security Ruling 96-9p, which guides an ALJ’s analysis of

when an assistive device is necessary. Social Security Ruling 96-9p explains that an ALJ should

“find that a hand-held assistive device is medically required,” only where there is “medical

documentation establishing the need for a hand-held assistive device to aid in walking or standing,

and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or

only in certain situations; distance and terrain; and any other relevant information).” 1996 WL

374185, at *7 (July 2, 1996).

          Jones fails to produce any medical documentation establishing a need for a cane. His best

evidence is an observation from his physical therapist, Simi Jain, that Jones came to the


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appointment using a cane. But Jain merely noted that Jones was using a cane, she did not determine

that a cane was medically necessary or suggest Jones use one to meet his treatment goals. Even if

the single mention of the cane was “medical documentation establishing the need for a hand-held

assistive device,” a single notation of “cane” cannot possibly provide “the circumstances for which

[the assistive device] is needed.” Social Security Ruling 96-9p, 1996 WL 374185, at *7 (July 2,

1996). The ALJ was not required to discuss such minimal evidence, especially given that no other

evidence in the record supports a finding that a cane was medically necessary, and Jones never

mentioned the need for a cane in his testimony. See Kornecky v. Comm’r Soc. Sec., 167 F. App’x

496, 508 (6th Cir. 2006) (per curiam) (explaining that an ALJ need not consider every piece of

evidence).

       Moreover, the ALJ explained in detail his residual functional capacity finding for Jones.

At Step Four, the ALJ found that “there were no clinical observations that the claimant had

difficulty ambulating.” DE 9-2, ALJ Decision, Page ID 52. The ALJ pointed out that multiple

doctors found that Jones’s gait was not significantly affected by his lower back injury.

       Jones also contends that “[t]he ALJ’s residual functional capacity [findings] failed to

properly account for a number of [] Jones’[s] medical impairments,” including that Jones has

difficulty standing for long periods of time because his lower back pain radiates into his legs. CA6

R. 8, Appellant Br., at 46. This argument also fails. Jones’s evidence of his difficulty standing

and radiating pain is largely drawn from his own testimony. The ALJ explained that, to the extent

his residual functional capacity finding was inconsistent with Jones’s testimony about the

“intensity, persistence and limiting effects of these symptoms,” it was because he was crediting

“the medical evidence and other evidence in the record” over Jones’s testimony. DE 9-2, ALJ

Decision, Page ID 50. We defer to an ALJ’s credibility determination so long as it is supported


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by substantial evidence. Tweedle, 731 F. App’x at 507. Medical records revealing that multiple

physicians, over a period of two years, found that Jones had a normal gait, provide substantial

evidence to support this credibility determination.

        Because the ALJ sufficiently explained his residual functional capacity finding and Jones

failed to produce evidence demonstrating a medical need for a cane, the ALJ did not err in failing

to explicitly consider whether Jones needed a cane.

                                                IV.

        Jones next argues that the ALJ incorrectly concluded that he could still perform his past

work as a security guard. Jones contends that the ALJ impermissibly “lumped all of [his] past

security job positions into one” when considering his past relevant work. CA6 R. 13, Reply Br.,

at 15. In the alternative, Jones argues that, if the ALJ did separate his work for Benton Harbor

Area Schools from his work for Armor Knight Security, his work for Armor Knight Security

cannot be past relevant work because he did not earn enough for the job to be classified as

substantial gainful activity.

        A claimant is “not disabled” unless “his physical or mental impairment or impairments are

of such severity that he is . . . unable to do his previous work.” 42 U.S.C. § 423(d)(2)(A). Prior

employment constitutes past relevant work when it was “done within the past 15 years,” was

“substantial gainful activity,” and the claimant did the work “long enough . . . to learn to do it.”

20 C.F.R. § 404.1560(b)(1). In 2013, if an individual received $1040 per month from employment,

the employment counted as substantial gainful activity. DI 10501.015 Tables of SGA Earnings

Guidelines, Table 2, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015.

In 2014, employment that paid $1070 per month was substantial gainful employment. Id. When

a claimant “work[s] over a period of time during which the substantial gainful activity earnings


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Case No. 19-2180, Jones v. Comm’r of Soc. Sec.


levels change,” the ALJ must “average [the claimant’s] earnings separately for each period in

which a different substantial gainful activity earnings level applies.” 20 C.F.R. § 404.1574a(b).

       Jones contends the ALJ combined his work as a security guard for Benton Harbor Area

Schools with his work for Armor Knight Security. The ALJ described Jones’s prior work as

follows:

       The vocational expert reviewed the claimant’s work history and determined he has
       past work as stated above (Hearing Testimony). The undersigned reviewed the
       claimant’s work history and notes that this work was performed within 15 years of
       this adjudication, and at the applicable substantial gainful activity levels for those
       years (Exhibits 4D). Although this was semi-skilled work, the record reflects that
       the claimant performed it for several years, and therefore he performed it long
       enough to learn it. Therefore, this work meets the criteria for past relevant work.

DE 9-2, ALJ Decision, Page ID 53. The ALJ then referenced the vocational expert’s testimony

that “the hypothetical individual would be able to perform the past relevant work mentioned above,

despite the additional limitations noted,” because Jones “performed [his work] at times at the

sedentary exertional level.” Id.

       Those passages alone may be vague, but the hearing transcript and exhibits referenced in

them make clear that when the ALJ determined that Jones could return to his prior work, he meant

Jones could return to his prior work at Armor Knight Security. Jones testified that he had worked

seventeen years as a security guard for Benton Harbor Area Schools and six months for Armor

Knight Security. The vocational expert testified that only Jones’s work at Armor Knight Security

was performed at the sedentary exertional level. Thus, at least where Jones’s residual functional

capacity was concerned, the ALJ appeared to contrast, not combine, his work for Benton Harbor

Area Schools and Armor Knight Security.

       Jones contends that, even if the ALJ did consider his work for Armor Knight Security

separately, the ALJ nevertheless erred because his work at Armor Knight Security could not


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constitute past relevant work. But Jones’s employment with Armor Knight Security easily satisfies

both the timing and experience requirements. Jones worked at Armor Knight Security within the

past fifteen years. 20 C.F.R. § 404.1560(b)(1). Additionally, the vocational expert testified that

it would take only one to three months to learn the job, and Jones worked there for six months.

And Jones earned enough at Armor Knight Security for his work there to count as substantial

gainful activity. He made $1168 working for Armor Knight Security in January 2014, nearly $100

above the substantial gainful activity threshold of $1070.

       None of Jones’s arguments to the contrary are availing.         First, he argues that the

Commissioner had not previously raised this argument and thus waived it. But the Commissioner

raised the very same argument to the district court. And the district court adopted that reasoning

when affirming the ALJ decision.

       Second, Jones contends that his job at Armor Knight Security did not constitute substantial

gainful activity because he earned an average of $980 per month during the six months he worked

there. But when a claimant “work[s] over a period of time during which the substantial gainful

activity earnings levels change,” the ALJ must “average [the claimant’s] earnings separately for

each period in which a different substantial gainful activity earnings level applies.” 20 C.F.R.

§ 404.1574a(b). The substantial earnings threshold increased from $1040 in 2013, when Jones

began working for Armor Knight Security, to $1070 in 2014 when Jones finished his tenure.

DI 10501.015     Tables    of    SGA      Earnings    Guidelines,    Table    2,   available    at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015.       The ALJ was required to average

Jones’s earnings from Armor Knight Security in 2013 and then separately average his earning from

2014. And, in 2014, Jones exceeded the substantial gainful activity threshold.




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       Finally, Jones claims his work for Armor Knight Security was an unsuccessful work

attempt. But an unsuccessful work attempt occurs when a claimant who worked “for a period of

6 months or less,” is “forced to stop or to reduce below the substantial gainful activity level after

a short time because of [her] impairment.” 20 C.F.R. § 404.1574(a)(1), (c)(1). Jones’s impairment

did not cause him to leave Armor Knight Security; the accident creating his impairment happened

after he left Armor Knight Security.

       The ALJ correctly determined that Jones’s work with Armor Knight Security was past

relevant work. The vocational expert’s testimony that Jones performed his work at Armor Knight

Security at the sedentary level, combined with the ALJ’s conclusion that Jones can still perform

sedentary work, provide substantial evidence to support the ALJ’s conclusion that Jones is capable

of performing past relevant work. Because Jones can perform his past relevant work, the ALJ was

not required to proceed to Step Five.

                                                 V.

       Substantial evidence supports the Commissioner’s determination that Jones is not entitled

to disability insurance. Accordingly, we affirm the district court’s decision declining to disturb

the Commissioner’s determination.




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