Porter v. Astrue
Filing
20
Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for supplemental security income, be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2012. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICIA A. PORTER,
*
*
*
*
*
*
*
*
*
*
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
CIVIL ACTION 11-00350-B
ORDER
Plaintiff
action
Patricia
seeking
Commissioner
supplemental
A.
judicial
of
review
Social
security
Porter
(“Plaintiff”)
of
Security
income
under
a
final
decision
denying
Title
Security Act, 42 U.S.C. § 1381, et. seq.
brings
her
XVI
of
claim
of
the
this
the
for
Social
On April 24, 2012, the
parties consented to have the undersigned conduct any and all
proceedings in this case.
(Doc. 18).
Thus, the action was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c).
Oral
argument
was
held
on
April
24,
2012.
Upon
careful
consideration of the administrative record and the memoranda of
the
parties,
it
is
hereby
ORDERED
Commissioner be REVERSED and REMANDED.
that
the
decision
of
the
I.
Procedural History
Plaintiff
supplemental
151).
protectively
security
Plaintiff
filed
income
alleges
on
that
an
August
she
has
application
9,
2007.
been
(Tr.
for
83-89,
disabled
since
October 1, 2006, due to cervical degenerative disc disease and
left
carpal
tunnel
syndrome.
(Id.
at
35).
application was denied at the initial stage.
Plaintiff’s
(Id. at 35-41).
She filed a timely Request for Hearing before an Administrative
Law
Judge
(“ALJ”).
Administrative
administrative
Law
(Id.
at
Judge
hearing,
Frederick
by
Plaintiff and her attorney.
45-53).
video,
which
(Id. at 23-34).
On
March
McGrath
was
3,
2010,
held
attended
an
by
On March 31, 2010,
the ALJ issued an unfavorable decision finding that Plaintiff is
not disabled.
(Id. at 5-22).
Plaintiff’s request for review
was denied by the Appeals Council (“AC”) on May 9, 2011.
(Id.
at 1-4, 77-82).
The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. §
405(g) and 1383(c)(3).
II.
Issues on Appeal
A.
Whether the ALJ’s final decision was supported by
substantial evidence?
B.
Whether the ALJ failed to assign proper weight to the
opinion of Plaintiff’s treating psychologist?
2
C.
Whether the ALJ improperly evaluated Plaintiff’s
treating psychologist’s psychological capacity
evaluation in terms of the onset date of Plaintiff’s
pain disorder?
D.
Whether the ALJ erred in finding that Plaintiff’s
complaints of pain are not severe under SSR 96-3p?
E.
Whether the ALJ’s statement of Plaintiff’s subjective
complaints of pain and credibility complied with the
requirements of SSR 96-7p?
F.
Whether the ALJ erred by improperly evaluating the
evidence or by failing to order a consultative
examination?
III. Factual Background
Plaintiff was born on April 12, 1959, and was fifty (50)
years of age at the time of the administrative hearing.
18, 35).
(Tr.
She has a 7th grade education and past relevant work
(“PRW”) as a storm relief worker and fast food cook.
(Id. at
108, 133, 221).
At the administrative hearing,1 Plaintiff testified that she
has pain in her hands, neck, shoulder, back, legs and hips and
that
x-rays
disease.
have
confirmed
(Id. at 32).
that
she
has
degenerative
disk
Plaintiff also testified that she spends
the day reading and watching television, and that she has to
often get up and move around.
(Id. at 33).
1
Interestingly, the transcript from the administrative
hearing reflects that while the ALJ questioned Plaintiff’s
representative extensively, he did not pose a single question to
Plaintiff.
Plaintiff
was,
however,
questioned
by
her
representative.
3
IV.
Analysis
A.
Standard Of Review
In reviewing claims brought under the Act, this Court’s
role
is
a
limited
determining
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).2
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.
1986).
The
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s
findings
of
fact
affirmed if they are based upon substantial evidence.
must
be
Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,
703
F.2d
1233,
1239
(11th
Cir.
1983)
(holding
substantial evidence is defined as “more than a scintilla but
less
than
a
preponderance”
and
consists
of
“such
relevant
evidence as a reasonable person would accept as adequate to
support
a
conclusion.”).
In
determining
whether
substantial
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.
Chester v. Bowen, 792 F. 2d 129, 131
2
This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
4
(11th Cir. 1986); Short v. Apfel, 1999 U.S.
Dist. LEXIS 10163
(S.D. Ala. 1999).
B.
Discussion
An individual who applies for Social Security disability
benefits
must
416.912.
substantial
prove
his
disability.
20
C.F.R.
§
404.1512,
Disability is defined as the “inability to do any
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 twelve months.”
42 U.S.C. § 423(d)(1)(A), 404.1505(a), 416.905(a).
The Social
Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven her disability.
20 C.F.R. § 404.1520, 416.920.3
3
The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments.
If, at the third
step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant’s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
(Continued)
5
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity and that she has
the severe impairments of cervical degenerative disc disease,
myalgia
and
myositis,
cervical
radiculitis,
polyarthralgia,
carpal tunnel syndrome, hypertension, arthritis, pain disorder,
and
personality
Plaintiff
does
disorder.
not
have
(Tr.
an
10).
The
impairment
or
ALJ
found
that
combination
of
impairments that meets or medically equals any of the listings
contained in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations
No. 4.
(Id.).
The
ALJ
functional
light
concluded
capacity
work,
that
that
Plaintiff
(hereinafter
Plaintiff
“RFC”)
cannot
climb
retains
to
the
perform
ladders,
residual
unskilled
ropes,
and
scaffolds, that Plaintiff can perform occasional crouching and
crawling,
that
Plaintiff
is
limited
to
occasional
gross
manipulation with the left hand and that Plaintiff can perform
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
6
no
work
with
Plaintiff
the
cannot
general
perform
dangerous machinery.
public.
work
around
The
ALJ
also
that
heights
unprotected
found
and
(Id. at 12).
The ALJ next determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not credible.
(Id. at 16).
The ALJ concluded that Plaintiff’s
RFC precludes her from performing any of her past work and that
considering Plaintiff’s RFC and vocational factors, such as age,
education
other
and
jobs
economy.
work
experience,
existing
(Id.
at
in
significant
17-18).
Plaintiff is not disabled.
Plaintiff
Thus,
is
numbers
the
ALJ
able
in
to
the
perform
national
concluded
that
(Id. at 18-19).
The relevant evidence of record shows that Plaintiff was
treated
at
Tri-County
Medical
June 1997 through July 2006.4
Center
Castleberry
(Id. at 177-201).
Clinic
from
On July 12,
2006, Plaintiff reported back pain and pain when urinating.
was prescribed gentamycin, cipro, and urogesic blue.
She
(Id. at
178).
4
While the undersigned has examined all of the medical
evidence contained in the record, including that which was
generated before Plaintiff’s alleged onset date of October 1,
2006, only those records relevant to the issues before the Court
are highlighted.
7
Plaintiff
was
treated
by
Dr.
Stanley
Barnes
at
Barnes
Family Medical Associates from October 1997 through February 16,
2009.
(Id.
at
215-220,
247-52).
During
a
February
19,
2007
visit, Plaintiff presented with a history of neck and back pain.
The notes indicated that Plaintiff had previously been treated
by Dr. Fleet.5
Plaintiff’s chief complaint was numbness in her
shoulders and arms, especially on the right side.
Dr. Barnes
opined that Plaintiff’s complaints did not sound like carpal
tunnel, and after examining Plaintiff, he provided her a sample
of Lyrica.
(Id. at 215).
Plaintiff was seen by Dr. Barnes on August 7, 2007. The
treatment
notes
reflect
that
Plaintiff
reported
that
she
previously performed relief work following Hurricane Katrina,
but had to stop because of neck and back pain.
Plaintiff also
reported that an orthopedist had prescribed Tramadol for her,
and that it helped to some extent.
5
On examination, Plaintiff’s
Dr. Fleet ordered an MRI of Plaintiff’s cervical and
lumbar spine on March 4, 2004. The imaging results of the
cervical spine showed moderate broad based central disc
protrusion which impinges on the cord but does not appear to
flatten it at C4-5. Moderate central disc protrusion impinging
on the cord and possibly producing slight flattening of the cord
was seen at C5-6. No foraminal stenosis and no intrinsic
abnormality were seen within the cord. (Id. at 218). Imaging
results of Plaintiff’s lumbar spine revealed some dessication of
the disc, moderate broad based disc bulge at L3-4 and L4-5,
producing mild spinal stenosis but with adequate space for the
cauda equina. Moderate degenerative changes involving the facet
joints at L3-4 and L4-5 were also noted. (Id. at 219).
8
chest was clear, and her heart had regular rate and rhythm.
Plaintiff’s
extremities
arthritis.
showed
evidence
of
generalized
Dr. Barnes prescribed Ultram 60 mg and provided her
with more samples of Lyrica 75 mg.
(Id. at 216).
Dr. Barnes’ January 23, 2008 treatment notes reflect that
Plaintiff was being seen following her trip to the emergency
room due to back pain and urinary tract infection.
Plaintiff
reported that while in the emergency room, she was given a shot
of mepergen, phenergen, and Demerol.
She also received Medrol
dosepak and Tylenol #4, which helped some.
that
Plaintiff’s
x-rays
showed
some
Dr. Barnes noted
degenerative
changes
and
opined that they were probably just “old wear and tear more than
anything.”
He also noted that Plaintiff reported that she was
not
her
taking
blood
pressure
medications
because
when
checks it at home, her blood pressure is acceptable.
she
(Id. at
247).
During
reported
Plaintiff’s
chest
wall
pain
March
31,
whenever
tiredness, and lack of energy.
should stop smoking.
occasionally
heart
showed
had
rhonchi
regular
myalgias
and
2008
she
office
takes
a
visit,
deep
she
breath,
Dr. Barnes noted that Plaintiff
On exam, Plaintiff’s chest was clear but
appreciated
rate
and
in
the
rhythm.
arthralgias.
Dr.
posterior
Plaintiff’s
Barnes’
basis.
Her
extremities
treatment
notes
dated February 16, 2009 reflect that Plaintiff reported a cough
9
and congestion, that Plaintiff was still smoking, that Plaintiff
was only taking 1/2 of her blood pressure medication, and that
she reported that she was working at a local casino.
(Id. at
252).
The record also contains medical records from the Alabama
Orthopaedic Clinic for April and May 2007.
April
11,
2007,
Plaintiff
was
seen
by
(Id. at 206-14).
Dr.
Tim
Revels
On
with
complaints of neck pain and pain in both upper extremities, that
was lasting for months and was increasing in severity.
Plaintiff
had
extremities.
normal
Numbness,
motor
intact
tingling,
On exam,
function
and
in
both
upper
burning
in
both
upper
extremities and hands was found, more in the left hand than the
right.
Plaintiff
distribution.
disease,
had
notable
radiculopathy
in
the
C5
Dr. Revels diagnosed cervical degenerative disc
cervical
radiculopathy,
peripheral compression neuropathy.
neck
pain,
and
possible
(Id. at 207).
Dr. Revels referred Plaintiff to Dr. Charles Hall for nerve
studies.
On May 3, 2007, Plaintiff underwent the nerve studies.
The electrodiagnostic impression of the studies was: abnormal
study, with mild median focal neuropathy at the left wrist, no
evidence
evidence
of
of
medial
ulnar
focal
neuropathy
neuropathy
at
bilaterally
abnormalities in the left upper extremity.
10
the
right
and
wrist,
no
no
EMG
No EMG of the right
upper extremity was performed at Plaintiff’s request.
(Id. at
208-12).
Dr. Revel’s treatment notes dated May 9, 2007 reflect that
the nerve studies showed mild left carpal tunnel syndrome, not
on the right, and that no other nerve deformity was found.
Dr.
Revels noted that he examined an MRI from three years prior,
which showed some 5-6 cord intrusion next to the spinal cord,
which was more than at 4-5.
found
evidence
of
lower
His physical exam of Plaintiff
extremity
hyperreflexia.
The
upper
extremities did not show hyperreflexia but were positive for
Hoffman sign in both hands.6
Lyrica.
Plaintiff was provided a trial of
(Id. at 206).
The record reflects that on November 5, 2007, Plaintiff was
examined by Dr. Stephen M. West, at the request of the Agency.
(Id. at 221-23).
Plaintiff reported constant severe pain in her
neck, arms, back, hips, knees and both hands.
her muscles hurt all the time.
continues to smoke.
She also reported
Dr. West noted that Plaintiff
On exam, Plaintiff’s blood pressure was
6
Hoffman’s sign is a neurological sign in the hand which is
an indicator of problems in the spinal cord.
It is associated
with a loss of grip. The test for Hoffman’s sign involves
tapping the nail on the third or forth finger. A positive
Hoffman’s is the involuntary flexing of the end of the thumb and
index finger.
Normally, there should be no reflex response.
See http://www.mult-sclerosis.org/Hoffmanssign.html(last visited
September 28, 2012).
11
160/100, cranial nerves 2-12 were grossly intact without focal,
motor, or sensory deficit.
bilaterally.
were 5/5.
Plaintiff’s grip strength was 5/5
Flexion and extension of both wrists and elbows
Flexion, extension, abduction, and adduction of both
shoulders
and
hips
were
dorsflexion
bilaterally
raise
was
test
noted
were
negative.
as
5/5.
5/5.
Plantar
flexion
straight
Plaintiff’s
Plaintiff
was
able
and
leg
to
reach
her
ankles, and heel toe walk, and do a full squat while holding
onto the exam table.
Plaintiff had full flexion and extension
of her cervical spine with lateral rotation left and right to 70
degrees and full range of motion of all her joints.
Dr. West
assessed
cervical
myalgia
radiculitis.
and
myositis,
polyarthralgia,
and
He noted that Plaintiff had a normal exam, and
opined that he did not see “any disabling factors or anything
that would prevent her from working.”
Agency
physical
medical
RFC
consultant
assessment
on
(Id. at 222).
Patricia
November
20,
Easley
2007,
completed
wherein
a
she
indicated that Plaintiff has cervical degenerative disc disease,
cervical radiculopathy, and left carpal tunnel.
She opined that
Plaintiff could occasionally lift 20 pounds, frequently lift 10
pounds, stand and/or walk about 6 hours in an 8-hour workday,
sit about 6 hours in an 8-hour workday, and push and/or pull for
a limited amount of time in her upper extremities.
determined
that
Plaintiff
could
12
occasionally
Ms. Easley
climb
ladders,
ropes, and scaffolds, crouch, and crawl, and frequently climb
ramps and stairs, balance, stoop, and kneel.
She also found
that Plaintiff could occasionally handle with her left hand, but
otherwise, Plaintiff’s manipulative limitations were unlimited,
and
that
hazards.
Plaintiff
should
avoid
concentrated
exposure
to
No communicative or visual limitations were noted.
(Id. at 224-31).
Plaintiff
Medical
presented
Center
on
to
the
December
abdominal, back and leg pain.
emergency
28,
2007,
room
with
at
Evergreen
complaints
of
An MRI of Plaintiff’s lumbosacral
spine showed mild narrowing of the L3-4 and 4-5 disc spaces.
Plaintiff’s vertebrae were otherwise normally aligned, and the
padicles were intact.
disc disease.
She was diagnosed with mild degenerative
(Id. at 254-55).
Plaintiff
was
treated
at
Rigdorf
Chiropractic
Center
at
least fourteen times between October 23, 2008 and November 26,
2008.
(Id. at 233-44).
Plaintiff reported numbness in her
hands and fingertips, tightness in her left hand, pain in her
back, neck, shoulders, and arms, lack of sleep, shortness of
breath,
Plaintiff
bending.
and
high
has
blood
difficulty
pressure.
sitting,
The
notes
standing,
reflect
that
walking,
and
(Id. at 234-37).
Plaintiff underwent a psychological evaluation on February
25, 2010 by Robert DeFrancisco, PhD. (Id. at 258-62).
13
Plaintiff
reported
headaches,
numbness
in
her
hands,
tightness
shoulders and neck, and lower and upper back pain.
in
her
Plaintiff
further reported that when she is able, she cooks her meals and
does household chores.
(Id. at 258-9).
Plaintiff was administered the Brief Pain Inventory Short
Form
and
(“MMPI”).
the
Minnesota
Multiphasic
Personality
Inventory
On the Pain Inventory, Plaintiff reported her pain
within the last twenty-four hours as an eight on a scale of one
to ten, and indicated that her pain affects her ability to move
around and her interaction with other people.
Dr. DeFrancisco
noted that Plaintiff reported that she cannot sleep or enjoy
life
because
of
her
pain,
he
Plaintiff
observed
that
experienced
the
Pain
chronic
pain
Inventory
suggested
syndrome.
On the MMPI, Plaintiff’s Fk ratio and other validity
scores were normal.
that
and
Dr. DeFrancisco opined that she has no
coping skills, and that she appears in significant distress with
depression, as well as added concerns and dramatization.
noted Plaintiff has concentration and focusing issues.
He
(Id. at
259).
Dr.
DeFrancisco
diagnosed
pain
disorder
associated
with
psychological factors and personality disorder with histrionic
and passive aggressive tendencies.
pain seems bonafide and genuine.
He opined that Plaintiff’s
(Id. at 260).
He further
opined that Plaintiff has marked restrictions in activities of
14
daily
living,
in
maintaining
social
functioning,
in
understanding, carrying out, and remembering instructions in a
work setting, and in responding appropriately to supervision in
a
work
frequent
setting.
He
deficiencies
also
of
opined
that
Plaintiff
concentration,
would
persistence
or
have
pace
resulting in frequent failure to complete tasks in a timely
manner,
and
she
would
experience
marked
episodes
deterioration or decompensation in work like settings.
of
(Id. at
261).
1.
In
her
Whether the ALJ’s final decision
supported by substantial evidence?
brief,
Plaintiff
alleges
that
the
is
ALJ’s
final
decision is not supported by substantial evidence, and then, in
a
less
than
organized
fashion,
she
makes
various
regarding alleged shortcomings in the ALJ’s decision.
arguments
Because
the undersigned finds that the ALJ’s step five analysis was
flawed and not supported by substantial evidence, the Court will
not address the various other arguments in Plaintiff’s brief.7
7
Because the Court determines that the decision of the
Commissioner should be reversed and remanded for further
proceedings based on Plaintiff’s first claim, there is no need
for the Court to address Plaintiff’s other claims. See Robinson
v. Massanari, 176 F. Supp. 2d 1278, 1280 and n.2 (S.D. Ala.
2001); Pendley v. Heckler, 767 F.2d 1561, 1563 (llth Cir.
1985)(“Because the ‘misuse of the expert testimony alone
warrants reversal’ we do not consider the appellant’s other
claims.”) (citations omitted).
(Continued)
15
As
noted
supra,
at
step
four
of
the
sequential
evaluation
process, the ALJ determined that Plaintiff cannot return to her
past relevant work.
He then moved on to step five.
At this
step, the burden shifted to the ALJ to show that there are a
significant
number
of
jobs
in
the
national
economy
that
Plaintiff can perform.
In undertaking the fifth step analysis, the ALJ may use the
grids to determine whether other jobs exist in the national
economy that a claimant is able to perform.
In using the grids,
the ALJ inputs the claimant’s exertion level, skill level, age,
education
and
experience
into
a
whether the claimant is disabled.
F.3d 1232, 1240 (llth Cir. 2004).
formula,
which
establishes
Phillips v. Barnhart, 357
The Eleventh Circuit has made
clear however that “[e]xclusive reliance on the grids is not
appropriate either when the claimant is unable to perform a full
range of work at a given residual functional level or when a
claimant has non-exertional impairments that significantly limit
basis
work
skills.”
Id.
at
1242
(emphasis
in
original,
citations omitted).
In those instances, the preferred method of
demonstrating
the
that
claimant
through the testimony of a VE.
can
perform
other
jobs
is
Perry v. Astrue, 280 Fed. Appx.
16
887, 895, 2008 U.S. Appx. LEXIS 12285 (llth Cir. 2008); Jones v.
Apfel, 190 F. 3d 1224, 1229 (llth Cir. 1999).
In D’Anna v. Comm’r of Soc. Sec., 2009 U.S. Dist. LEXIS
121243 (M.D. Fla. Dec. 29, 2009), the plaintiff argued that the
ALJ erred in relying on the grids because he found that the
plaintiff was limited to simple, routine work, and that the
plaintiff should not have close proximity to coworkers or the
general public.
The Court held that because it was implicit in
the ALJ’s finding that the claimant had difficulty interacting
with people, the ALJ was required to retain a VE to offer an
opinion about the vocational effect of the limitation.
See also
England v. Astrue, 2008 U.S. Dist. LEXIS 27531 (M.D. Fla. March
28, 2008)(where the ALJ concluded that plaintiff could not have
significant contact with other people or perform high stress
work, court held that exclusive reliance on the grids was not
proper.).
In the case sub judice, the ALJ found that Plaintiff has
the RFC to perform light unskilled work, and that she is limited
to occasional gross manipulation with the left hand, and no work
with the general public.
(Id. at 12).
The ALJ went on to find
that if Plaintiff had the RFC to perform the full range of light
work, considering her age, education and work experience, Rules
202.11 and 202.18 of the grids would direct a finding of “not
disabled”.
(Id.
at
18).
The
17
ALJ
further
found
that
the
“additional
limitations
have
little
or
no
effect
on
the
occupational base of unskilled light work”; and that the grids
directed a finding of “ not disabled.”
The
undersigned
finds
that
(Id.).
the
ALJ’s
finding
that
Plaintiff’s nonexertional limitation has “little or no effect”
on her occupational base for unskilled work is not supported by
substantial evidence.
should
have
“no
acknowledgement
Implicit in his finding that Plaintiff
contact
that
the
with
the
claimant
general
has
public”
difficulty
is
an
interacting
with people and that it has more than a minimal effect on the
vocational base of light work.
the
ALJ
erred
in
not
Thus, the undersigned finds that
obtaining
the
testimony
of
a
VE.
On
remand, the Commissioner should obtain VE testimony to determine
whether there has been an erosion of the occupational base, and
whether there are jobs in significant numbers in the national
economy
that
limitations.
Plaintiff
can
perform
given
her
functional
See Phillips, 357 F.3d at 1241-42 (providing that
exclusive reliance on the grids is inappropriate when claimant
has non-exertional impairments that significantly limit basic
work skills).
V.
Conclusion
For the reasons set forth, and upon consideration of the
administrative record and memoranda of the parties, it is hereby
ORDERED
that
the
decision
of
18
the
Commissioner
of
Social
Security, denying Plaintiff’s claim for supplemental security
income, be REVERSED and REMANDED.
DONE this 28th day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
19
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