Rebecca Moeller v. Comm of Social Security
Per Curiam OPINION filed : the district court's judgment is VACATED and the case is REMANDED for further administrative proceedings consistent with this opinion. Decision not for publication pursuant to local rule 206. Jeffrey S. Sutton, Circuit Judge; Richard Allen Griffin, Circuit Judge and David D. Dowd , Jr., U.S. District Judge, NDOH.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0788n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
COMMISSIONER OF SOCIAL SECURITY,
Jul 20, 2012
LEONARD GREEN, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: SUTTON and GRIFFIN, Circuit Judges; DOWD, District Judge.*
PER CURIAM. Rebecca Moeller appeals the district court’s judgment affirming the denial
of her applications for disability insurance benefits and supplemental security income benefits.
In 2005, Moeller filed applications for disability insurance benefits and supplemental security
income benefits, alleging that she was disabled due to a back condition, chronic obstructive
pulmonary disease, emphysema, bronchial asthma, shortness of breath, and high blood pressure. The
Social Security Administration denied the applications and Moeller’s request for reconsideration.
Moeller subsequently filed a written request for a hearing. Following a hearing, an administrative
law judge (“ALJ”) determined that Moeller’s residual functional capacity included the ability to sit
for six hours a day, stand for two hours a day, and walk for two hours a day. Based in part on that
finding and the testimony of a vocational expert, the ALJ denied Moeller’s applications, concluding
The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
Moeller v. Comm’r of Soc. Sec.
that she was capable of performing both sedentary and light jobs that existed in significant numbers
in the national economy. The Appeals Council declined to review Moeller’s case.
Moeller sought review in the district court. The court concluded that there was not
substantial evidence in the record to support the ALJ’s finding that Moeller could sit for six hours
a day. The court found the error to be harmless, however, and denied Moeller relief because,
assuming a sitting restriction that was consistent with the evidence in the record, Moeller would be
capable of performing light jobs that existed in significant numbers in the national economy.
On appeal, Moeller argues that the ALJ’s finding concerning her ability to sit for six hours
a day was not supported by substantial evidence and that the erroneous finding was not harmless.
“Our review of the ALJ’s decision is limited to whether the ALJ applied the correct legal standards
and whether the findings of the ALJ are supported by substantial evidence.” Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). “The substantial-evidence standard is met if a
reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Id. at 406
(internal quotation marks omitted). “We give de novo review to the district court’s conclusions on
each issue.” Id.
There is not substantial evidence in the record to support the ALJ’s finding concerning
Moeller’s ability to sit for six hours a day. Dr. Martin Fritzhand, who performed a consultative
examination of Moeller, determined that she was limited to a mild amount of sitting, standing,
ambulating, pushing, pulling, and lifting. The ALJ explicitly recognized the limitations set forth in
Dr. Fritzhand’s opinion, gave the opinion “significant probative weight,” and concluded that Moeller
was limited to two hours of standing and two hours of walking each day. The ALJ further found,
however, that “[a]bsent any restrictions on the claimant’s ability to sit, the undersigned finds she is
Moeller v. Comm’r of Soc. Sec.
able to sit for six hours a day.” The ALJ failed to either set forth a reason for discounting the sitting
limitation recommended by Dr. Fritzhand or identify other evidence in the record that demonstrated
Moeller could sit for six hours a day. Thus, the ALJ erred in determining Moeller’s residual
In addition, despite the government’s arguments to the contrary, the ALJ’s error cannot be
considered harmless. In determining whether there were a significant number of jobs in the national
economy that Moeller could perform, the ALJ asked a vocational expert to assume that Moeller
could sit for six hours a day and stand and walk for two hours a day each. The vocational expert
identified two sedentary jobs that Moeller could perform and one light job that allowed alternating
between sitting and standing. Because there is not substantial evidence in the record to support the
ALJ’s finding that Moeller could sit for six hours a day, the sedentary jobs should not have been
considered. See S.S.R. 96-9P, 1996 WL 374185, at *3; Connors v. Conn. Gen. Life Ins. Co., 272
F.3d 127, 136 n.5 (2d Cir. 2001). Further, given Moeller’s restrictions on standing and walking and
the ALJ’s failure to include an appropriate sitting restriction during his questioning of the vocational
expert, the ALJ could not properly rely on the expert’s conclusion that Moeller could perform light
work. See S.S.R. 83-10, 1983 WL 31251, at *5-6; 20 C.F.R. §§ 404.1567(b), 416.967(b). Remand
is therefore necessary for a proper determination of Moeller’s residual functional capacity and
additional findings concerning whether there are a significant number of jobs in the national
economy that Moeller could perform.
Accordingly, we vacate the district court’s judgment and remand the case for further
administrative proceedings consistent with this opinion.
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