Blair v. Astrue(CONSENT)

Filing 20

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 7/20/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
SHARON BLAIR,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 3:11cv520-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Sharon Blair, applied for disability insurance benefits under Title II of

the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq. Her application was denied
at the initial administrative level. Plaintiff then requested and received a hearing before
an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision
in which he found Plaintiff not disabled at any time through the date of his decision. Tr.
33. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s decision. Tr.
1-6. The ALJ’s decision consequently became the final decision of the Commissioner of
Social Security (“Commissioner”). 1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
1986). The case is now before the court for review under 42 U.S.C. § 405(g). Pursuant
1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L.
No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with
respect to Social Security matters were transferred to the Commissioner of Social Security.

to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and
entry of a final judgment by the undersigned United States Magistrate Judge. Pl.’s
Consent to Jurisdiction (Doc. #7); Def.’s Consent to Jurisdiction (Doc. #6). Based on the
court’s review of the record and the briefs of the parties, the court REVERSES the
decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when

the person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A). 2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.
2

answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). 3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
In order to perform the fourth and fifth steps, the ALJ must first determine the
claimant’s Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the
claimant is still able to do despite his impairments and is based on all relevant medical
and other evidence. Id. It also can contain both exertional and nonexertional limitations.
Id. at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education,
and work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines 4 (“grids”) or call a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II
are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d
408 (5th Cir. 1981).

to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.
4

III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was forty-nine years old at the time of the hearing before the ALJ. Tr. 40.

Plaintiff obtained a GED. Tr. 40, 139. Plaintiff’s past relevant work experience was as a
retail salesperson, housekeeper, and veterinary technician. Tr. 52-53. Following the
administrative hearing, and employing the five-step process, the ALJ found Plaintiff had
“not engaged in substantial gainful activity since December 10, 2007, the alleged onset
date.” (Step 1) Tr. 18. At Step 2, the ALJ found that Plaintiff suffers from the following
severe impairments:
minimal degenerative disc disease of the cervical spine, major depression
disorder, osteoarthritis of the knees and right hip, and is status post right
shoulder rotator cuff repair (20 CFR 404.1520(c)). The claimant’s history
of asthma, chest pain (noncardiac), mitral valve prolapse syndrome, non
obstructive coronary artery disease, and history of gastroesophageal reflux
disease and irritable bowel syndrome are non severe impairments as they
are not shown by the medical evidence to have severe limitations to the
claimant’s ability to perform work activity.
Id. The ALJ then found that “[Plaintiff] does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” (Step 3) Tr.
19. Next, the ALJ found that Plaintiff:
has the residual functional capacity to perform nearly a full range of light
work . . . in that the claimant can sit for a total of 6 hours out of 8 hours,
and for 1 hour without interruption; stand and/or walk for a total of from 4
to 6 hours out of 8 hours, and stand and/or walk a total of 30 minutes
without interruption; lift, carry, push and pull frequently up to 10 pounds,
and occasionally up to 20 pounds; frequently perform simple grasping and
fine manipulation with the right and left hand; occasionally use her right
foot, left foot, and both feet for repetitive movements such as operating foot
controls or pushing or pulling; occasionally bend, stoop, crawl, climb,
crouch, kneel, balance; never climb ladders, ropes or scaffolds, be exposed

to unprotected heights, or be around moving and hazardous machinery, or
do driving of commercial motorized vehicles; never be exposed to
concentrated or excessive amounts of dust, odors, fumes, or extremes in
temperature and humidity; the claimant can only occasionally use the right
upper extremity for reaching above shoulder level.
The claimant
occasionally has mild to moderate pain, which occasionally interferes with
her concentration, persistence and pace in a work setting, but which does
not prevent the performance of work. Additionally, the claimant is limited
to simple, unskilled, repetitive and routine work of a low stress nature, to
jobs that require little independent judgment and which have only routine
changes, with no multiple or rapid changes. She should be able to
remember/understand and carry out simple instructions. Her contact with
the public should remain casual and criticism should be nonconfrontational.
Changes in work settings should be introduced gradually.
Tr. 21. The ALJ then found that Plaintiff is unable to perform her past relevant work.
(Step 4) Tr. 31. At Step 5, the ALJ found that, “[c]onsidering the claimant’s age,
education, work experience, and residual functional capacity,” and after consulting with a
VE, “there are jobs that exist in significant numbers in the national economy that the
claimant can perform.”
examples:

Tr. 32.

The ALJ identified the following occupations as

“ticket seller,” “mail clerk,” and “sales attendant/greeter.”

Tr. 32.

Accordingly, the ALJ determined that Plaintiff “has not been under a disability . . . from
December 10, 2007 through the date of [the] decision.” Tr. 33.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents one main challenge for this court’s consideration in review of the

ALJ’s decision: whether the ALJ erred at Step 5 of the sequential process in finding that
she could perform a number of jobs in the national economy. In support, Plaintiff raises
three separate issues: 1) the ALJ’s RFC assessment does not match the hypothetical
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posed to the VE and thus, “the [VE’s] testimony does not constitute substantial
evidence”; 2) the demands of the “ticket seller” job exceed the limitations in the ALJ’s
RFC finding; and 3) the demands of the jobs identified at Step 5 exceed Plaintiff’s mental
RFC. Pl.’s Br. (Doc. #14) at 1-2. Because the court finds that remand is necessary on the
first issue, the court declines to address the other issues raised by Plaintiff.
V.

DISCUSSION
Plaintiff challenges the ALJ’s Step Five finding that Plaintiff is capable of

performing work that exists in significant numbers in the national economy. Plaintiff
argues:
[t]he ALJ’s RFC assessment limited Ms. Blair to occasional use of her right
upper extremity to reach above shoulder level. The hypothetical never
mentions the function of reaching. The hypothetical’s only reference to the
right upper extremity is in limiting lifting above the height of shoulder level
to an occasional basis. . . . Reaching is distinct from lifting. The ALJ’s
RFC assessment plainly places limits on both the type and frequency of
reaching. The hypothetical placed no limits on reaching. It follows that the
ALJ’s RFC assessment is more limiting in functional ability than the
hypothetical.
Pl.’s Br. (Doc. #14) at 10 (footnotes omitted). Essentially, Plaintiff argues that the ALJ
could not rely upon the VE’s testimony because the ALJ failed to include all of Plaintiff’s
RFC restrictions in the hypothetical he posed to the VE. Pl.’s Br. (Doc. #14) at 11; Pl.’s
Reply (Doc. #19) at 1.
In response, Defendant argues “there is no evidence that a restriction to no more
than occasional over the shoulder reaching with the right arm would preclude the

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reaching required by the cited jobs, so as to show even a potential conflict between the
vocational expert’s testimony and the DOT, much less an actual conflict.” Def.’s Br.
(Doc. #15) at 6-7. Plaintiff’s Reply asserts that “the Commissioner did not respond to
[her] argument [as to this issue].” Pl.’s Reply (Doc. #19) at 1. Indeed, while Defendant
addresses whether there was a conflict between the VE’s testimony and the DOT,
Defendant fails to address whether the ALJ’s hypothetical to the VE included all of
Plaintiff’s limitations.
Because the ALJ found that Plaintiff is unable to perform her past relevant work
(Step 4), the burden shifted to the Commissioner “to show the existence of other jobs in
the national economy which, given [Plaintiff’s] impairments, [Plaintiff] can perform.”
Jones v. Apfel, 190 F.3d 1224, 1228-29 (11th Cir. 1999). In reaching this determination,
the ALJ may either apply the Medical Vocational Guidelines or obtain testimony from a
VE. Phillips, 357 F.3d at 1239-40. “In order for a [VE’s] testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)
(per curiam); Jones, 190 F.3d at 1229.
Here, the ALJ’s hypothetical asked the VE to assume that “Plaintiff could only
occasionally use her right shoulder to lift anything above shoulder level, right arm
shoulder.” Tr. 54. However, the ALJ’s RFC assessment includes a limitation that
Plaintiff “can only occasionally use the right upper extremity for reaching above the
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shoulder level.” Tr. 21. Plaintiff argues that, as a result, “[t]here is no match between the
ALJ’s [RFC] assessment and the hypothetical to the [VE]” and points out that “[r]eaching
is distinct from lifting.” Pl.’s Br. (Doc. #14) at 9-10. The court agrees that reaching and
lifting are distinct limitations as lifting is an exertional limitation while reaching is
considered nonexertional. 5
Because the VE testified based on an incomplete hypothetical that failed to
properly incorporate all of Plaintiff’s limitations as found in the ALJ’s RFC, the ALJ
could not have relied on the VE’s testimony in reaching his Step Five determination as
the VE’s testimony was not supported by substantial evidence. See, e.g., Dial v. Comm’r
of Soc. Sec., 403 F. App’x 420, (11th Cir. 2010) (finding “it is undisputed that the ALJ
failed to include all of Dial’s employment limitations in the hypothetical questions posed
to the VE. Thus, the VE’s testimony did not constitute substantial evidence upon which
the ALJ could rely.” (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) and
Pendley v. Heckler, 767 F.2d 1561, 1562-63 (11th Cir. 1985)); Baines v. Astrue, 781 F.
Supp. 2d 228, 238 (D. Del. 2011) (holding that the ALJ’s hypothetical question to the VE
failed to properly reflect claimant’s limitations, where ALJ’s RFC found that claimant

5

Exertional limitations are defined as those restrictions affecting a person’s ability to meet what
the Social Security Administration considers the seven strength demands of a job: sitting,
standing, walking, lifting, carrying, pushing, and pulling. Social Security Ruling 96-9P, 1996
WL 374185 at *5 (July 2, 1996). Nonexertional limitations, on the other hand, relate to
limitations that affect capacities such as mental abilities, vision, hearing, speech, climbing,
balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, and feeling.
Environmental restrictions are also considered to be nonexertional. Id.
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could do only “occasional pushing, pulling, reaching, handling, fingering, and feeling
maneuvers with her left upper extremity,” but the hypothetical to the VE only stated that
claimant had to “avoid overhead reaching,” and ALJ told VE to generally look for jobs
that “can be performed with one arm with minimal assist from the other.”).
Defendant’s argument that the error in the hypothetical question is cured by the
absence of any conflict between the VE’s testimony and the DOT is without support.
Defendant’s reliance on Segovia v. Astrue, 226 F. App’x 801 (10th Cir. 2007), is
misplaced. The court there specifically found that there was no conflict between the
VE’s testimony and the DOT because “[t]he VE was aware of Ms. Segovia’s limitations
on overhead reaching, and he testified both that she could perform the jobs he identified
and that his opinion of the jobs open to her was consistent with the DOT’s
specifications.” Id. at 804.

In the present case, Dr. Anderson opined, just prior to the

VE’s testimony, that Plaintiff is limited to the “overhead use of the right upper
extremities [] only occasionally.” Tr. 53. There was no specification in his testimony as
to whether these were reaching or lifting limitations. Then the ALJ, when posing the
hypothetical, specified lifting with the right shoulder to above shoulder lever. Tr. 54.
Thus, the information before the VE regarding what type of limitations Plaintiff might
suffer were specifically related to lifting, not reaching. Reviewing the ALJ’s reliance on
the VE’s answer to an incomplete hypothetical leaves this court speculating as to whether

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mail clerks and sales attendants 6 engage in frequent overhead reaching with either a
dominant or non-dominant arm, or even both arms, something within the purview of the
DOT descriptions for those positions. This type of speculation is avoided when the ALJ
relies on the testimony of a VE who has answered a complete hypothetical.
Based on the foregoing, the court finds that this case is due to be remanded on the
basis that the VE’s testimony did not comprise substantial evidence, as it did not
incorporate all of Plaintiff’s limitations. Wilson, 284 F.3d at 1227. On remand, the ALJ
should reevaluate the Step Five determination, ensuring that all of Plaintiff’s limitations
are accurately incorporated in the hypothetical to the VE.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is REVERSED and this
case is REMANDED to the Commissioner for proceedings consistent with this decision.
A separate judgment will issue.
Done this 20th day of July, 2012.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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Defendant “concedes that the constant handling and fingering requirements [of the job of ticket
seller (211.467-030)] exceeds Plaintiff’s residual functional capacity.” Def.’s Br. (Doc. #15) at 8.
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