West v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 8/27/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TINA NICOLE WEST,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 12-0004-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 11).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
18).

Oral argument was waived in this action (Doc. 21).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
1

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, West was thirtyfive years old, had completed an eighth-grade special education
curriculum (Tr. 35), and had previous work experience as a
cashier, assistant store manager, and a maid (Tr. 37-38).

In

claiming benefits, Plaintiff alleges disability due to
degenerative disc disease of the thoracic lumbar spine (Doc. 11
Fact Sheet).
The Plaintiff filed a protective application for SSI on
March 5, 2009 (Tr. 119-26; see also Tr. 16).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although West could not return to her past
relevant work, there were specific light work jobs which she
could perform (Tr. 16-24).

Plaintiff requested review of the
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hearing decision (Tr. 11-12) by the Appeals Council, but it was
denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, West alleges

that the ALJ did not pose a proper hypothetical to the
Vocational Expert (hereinafter VE) (Doc. 11).

Defendant has

responded to—and denies—this claim (Doc. 15).

The Court finds

it unnecessary to review all of the evidence of record, so will
proceed to West’s claim.
Plaintiff has asserted that the ALJ did not pose a complete
hypothetical to the VE at the evidentiary hearing.

More

specifically, West asserts that the ALJ failed to include, in
her question, the frequency that the hypothetical individual
would have to switch from sitting to standing, and vice-versa
(Doc. 11, pp. 3-4).

Plaintiff also asserts that the ALJ’s

determination that unskilled light work exists with a sit/stand
option is incorrect.

The court notes that the Eleventh Circuit

Court of Appeals has held that an ALJ's failure to include
severe impairments suffered by a claimant in a hypothetical
question to a VE to be reversible error where the ALJ relied on
that expert's testimony in reaching a disability decision.
Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985).
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In her decision, the ALJ determined that West had the
residual functional capacity (hereinafter RFC) to perform less
than a full range of light work.1

She specifically found that

Plaintiff
is limited to work which will only require
the claimant to: lift/carry 20 pounds
occasionally; lift/carry 10 pounds
frequently; perform no overhead reaching;
never climb ladders/scaffolds/ropes; not work
around unprotected heights or dangerous
equipment; rarely operate foot controls;
rarely climb stairs/ramps; and rarely bend,
stoop, kneel, crouch or crawl. The claimant
is also limited to work which will allow her
to alternate between the sitting and standing
position, but she would not need to leave her
work station. The claimant is further
limited to work which will not require her to
understand, remember or carry out complex
instructions (i.e., the claimant is limited
to work which will require her to understand,
remember and carry out no more than simple,
routine repetitive tasks).
(Tr. 18-19).

At the evidentiary hearing, the ALJ first asked

1

“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 416.967(b)
(2012).

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the VE to discuss and classify West’s past jobs (Tr. 50-53).
After the answer was received, the ALJ posed a hypothetical
question that included all of the limitations set out in the
ALJ’s RFC findings for Plaintiff (Tr. 53-54; cf. Tr. 18-19).
The VE indicated that West would not be able to perform any of
her past relevant work because of the sit/stand option and the
requirement for performing simple repetitive tasks (Tr. 54).
When the ALJ asked if there were any jobs available within the
parameters of the hypothetical question, the VE answered yes
with the following jobs:

information clerk, mail clerk, parking

lot attendant, and companion or sitter (Tr. 54-55).

The VE went

on to testify, after further questioning, that his conclusions
were based on his thirty years of experience in job placement
activities and that his conclusions were consistent with the
Dictionary of Occupational Titles (hereinafter DOT) (Tr. 55-56).
Following this testimony, Plaintiff’s attorney posed the
following questions of the VE:
Q
The descriptions of the jobs identified
in hypothetical number one are based on the
DOT descriptions, correct?
A

That’s correct.

Q
Okay, so, if we perform the job of say
sitter, in your experience and in your
opinion, it would allow for the opportunity
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to alternate sitting or standing without
leaving, what the court referred to as, the
work station or work position?
A
What is important is how frequently
they have to change position and that was not
a part of the hypothetical question one.
(Tr. 56-57).

The Court notes that the questions posed by West’s

attorney are the basis for her claim in this action that the ALJ
posed an incomplete hypothetical to the VE.
The Court will first address Plaintiff’s assertion that
the ALJ’s determination that unskilled light work exists with a
sit/stand option is incorrect (Doc. 11, p. 4).

West directs the

Court’s attention to Social Security Ruling 83-12 as support for
the claim.
The Court has reviewed SSR 83-12 and finds that Plaintiff’s
assertion is wrong.

The Ruling does not state that there are no

such jobs, but that the work place is not generally structured
so that there are many of those jobs available.

The Ruling went

on to state, though, that a VE should be called to “clarify the
implications for the occupational base.”

SSR 83-12, *4.

That

is exactly what the ALJ in this action did.
Of course, the Court understands that the real point of
Plaintiff’s argument is that the ALJ failed to include, in her
question to the VE, the frequency that the hypothetical
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individual would have to switch from sitting to standing, and
vice-versa.
The Court finds no merit in this argument.

West has

pointed to no medical evidence suggesting that she is unable to
sit or stand for any particular length of time; her own
testimony of limitation was discredited, a finding not
challenged in this action.

The ALJ made a determination as to

Plaintiff’s RFC, which is solely within the province of the ALJ.
20 C.F.R. § 404.1546 (2012).
finding.

West has not challenged the RFC

The ALJ then questioned a VE as to whether there were

jobs available for a person with that RFC; the VE said that
there were.

The Court finds that the ALJ’s determinations that

Plaintiff is capable of performing the jobs of information
clerk, mail clerk, parking lot attendant, and companion or
sitter and that she is not disabled are supported by substantial
evidence.
Plaintiff has raised a single claim in this action.
without merit.

It is

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

Therefore, it is ORDERED that the Secretary's decision

be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th
7

Cir. 1980), and that this action be DISMISSED.

Judgment will be

entered by separate Order
DONE this 27th day of August, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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