Young v. Commissioner of Social Security
Filing
17
OPINION AND ORDER affirming Commissioner's final decision as to disability; directing Clerk to enter judgment accordingly and thereafter close the file. Signed by Magistrate Judge James R. Klindt on 7/31/2015. (EFH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HATTIE JO YOUNG,
Plaintiff,
vs.
Case No. 3:14-cv-888-J-JRK
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER1
I. Status
Hattie Jo Young (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying her claim for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”).
Her alleged inability to work is the result of
“[h]ypertensive [c]ardiovascular [d]isease/[h]ypertension[; c]ervical [s]pine [i]mpairment[;
l]umbar [s]pine [i]mpairment[; s]evere back pain[; h]eadaches [i]mpairment[; a]nxiety[;
d]epression[; c]arpal [t]unnel [s]yndrome[; b]ulging [d]isc [i]njury[; d]egenerative [d]isc
[d]isease[; h]igh [c]holesterol[; and m]ultiple [j]oint [a]rthritis.” Transcript of Administrative
Proceedings (Doc. No. 10; “Tr.” or “administrative transcript”), filed September 29, 2014, at
249. On December 20, 2010,2 Plaintiff filed an application for SSI, and on December 21,
1
The parties consented to the exercise of jurisdiction by a United States Magistrate Judge,
see Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 9), and the Reference
Order was entered on September 30, 2014 (Doc. No. 11).
2
While the application for SSI is dated April 11, 2011, see Tr. at 215-21, the protective
filing date is listed elsewhere in the administrative transcript as December 20, 2010, and both parties and
the ALJ refer to this earlier date as well, see Tr. at 29, 102, 104; Memorandum in Support of Complaint
(continued...)
2010, Plaintiff filed an application for DIB, alleging an onset date of August 25, 2010. Tr. at
213-14 (DIB), 215-17 (SSI). Plaintiff’s applications were denied initially, see Tr. at 101, 15456 (DIB), 102, 160-61 (SSI), and were denied upon reconsideration, see Tr. at 103, 168-69
(DIB), Tr. at 104, 170-71 (SSI).3 On June 21, 2012, an Administrative Law Judge (“ALJ”)
held a hearing during which the ALJ heard testimony from Plaintiff, who was represented by
counsel, and a vocational expert (“VE”). Tr. at 48-100. At the time of the hearing, Plaintiff
was forty-eight (48) years old. Tr. at 59. On September 11, 2012, the ALJ issued a decision
(“Decision”), finding Plaintiff not disabled through the date of the Decision. Tr. at 29-42. On
June 20, 2014, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
Decision the final decision of the Commissioner. Tr. at 1-4. On July 28, 2014, Plaintiff
commenced this action under 42 U.S.C. § 405(g) and § 1383(c)(3), by timely filing a
Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision.
Plaintiff specifically raises a single issue on appeal: whether the ALJ erred by not
clarifying Plaintiff’s limitations in the hypothetical to the VE. See Memorandum in Support
of Complaint (Doc. No. 14; “Pl.’s Mem.”), filed October 10, 2014, at 6-9. It is apparent that
Plaintiff is also raising an issue regarding the plausibility of the aspect of the hypothetical
related to standing and walking. See Pl.’s Mem. at 8-9. Defendant filed a Memorandum in
Support of the Commissioner’s Decision (Doc. No. 16) on January 30, 2015. After a
2
(...continued)
(Doc. No. 14) at 1; Memorandum in Support of the Commissioner’s Decision (Doc. No. 16) at 1. The
undersigned notes that the exact filing date is of no import here.
3
The administrative transcript reveals that Plaintiff had previously filed applications for
DIB and SSI; these applications were denied by an ALJ on August 24, 2010, see Tr. at 108-18, and that
decision is not being challenged.
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thorough review of the entire record and the parties’ respective memoranda, the undersigned
finds that the Commissioner’s final decision is due to be affirmed for the reasons stated
herein.
II. The ALJ’s Decision
When determining whether an individual is disabled,4 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of persuasion through step four, and at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 31-41. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since August
25, 2010, the alleged onset date.” Tr. at 31 (emphasis and citations omitted). At step two,
the ALJ found that Plaintiff “has the following severe impairments: post-surgical changes
resulting in degenerative disc disease in L5-S2 with paracentral disc extrusion, with
effacement on the thecal sac but only possibly touching the nerve root, headaches, obesity
4
“Disability” is defined in the Social Security Act as the “inability 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), 1382c(a)(3)(A).
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and depression due to pain.” Tr. at 32 (emphasis and citations omitted). At step three, the
ALJ ascertained that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.” Tr. at 33 (emphasis and citations omitted).
The ALJ determined Plaintiff’s residual function capacity (“RFC”) as follows:
[Plaintiff can] perform less than the full range of light work as defined in 20 CFR
404.1567(b) and 416.967(b). Specifically, [Plaintiff] is capable of: lifting or
carrying 20 pounds on an occasional basis and 10 pounds on a frequent basis;
standing and/or sitting for a total of six hours throughout a standard workday,
[Plaintiff] is limited to work that allows her to alternate between sitting and
standing as frequently as every hour. She can walk for a total of two hours
throughout a standard workday; occasionally climbing stairs and ramps, and
balancing; frequently handling, fingering, feeling, and gripping. [Plaintiff] is
capable of extending her arms forward and overhead. [Plaintiff] can never
perform tasks requiring crouching, crawling, stooping, squatting, kneeling,
bending or the use of ropes, ladders, and scaffolds. [Plaintiff] must avoid
exposure to vibrations, dangerous machines and heights. [Plaintiff] is capable
of hearing, listening, and speaking without limitations. Lastly, [Plaintiff] is
limited to simple, routine, 1-2 step jobs with no production or assembly line
demands.
Tr. at 35 (emphasis omitted). At step four, the ALJ found that Plaintiff is “unable to perform
any past relevant work.” Tr. at 40 (emphasis and citations omitted). At step five, after
“[c]onsidering [Plaintiff’s] age (46 years old on the alleged disability onset date), education
(at least a high school education and she is able to communicate in English), work
experience (Plaintiff’s past relevant work is unskilled), and [RFC],” the ALJ found that “there
are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform,”
Tr. at 40 (emphasis and citations omitted), including surveillance system monitor, order clerk,
and ticket taker, Tr. at 41. The ALJ concluded that Plaintiff “has not been under a disability
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. . . from August 25, 2010, through the date of th[e D]ecision.” Tr. at 41 (emphasis and
citations omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but
less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire
record is reviewed to determine whether “the decision reached is reasonable and supported
by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)
(internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080
(11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached
by the Commissioner must be affirmed if it is supported by substantial evidence–even if the
evidence preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
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As mentioned above, Plaintiff raises the issue of whether the ALJ erred by not
clarifying Plaintiff’s limitations in the hypothetical to the VE. Pl.’s Mem. at 6-9. Plaintiff
specifically argues the ALJ “failed to ask [the VE] whether or not his testimony [was]
inconsistent with the Dictionary of Occupational Titles [(“DOT”)] regarding Plaintiff’s complete
inability to stoop.” Id. at 7. According to Plaintiff, this constituted error “because in the
hypothetical that was presented [Plaintiff] was to perform no stooping which, under SSR 969p,[5] significantly reduces the unskilled sedentary job base.” Id. Plaintiff also appears to
challenge the aspect of the hypothetical relating to standing and walking. Id. at 8.
In the fifth step of the sequential evaluation process, an ALJ may pose a hypothetical
question to a VE as part of his determination of whether the claimant can obtain work in the
national economy. See 20 C.F.R. § 416.920(a)-(f). “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)
(citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)); see also Loveless v. Massanari,
136 F. Supp. 2d 1245, 1250 (M.D. Ala. 2001). While the hypothetical question must include
all of a claimant’s impairments, it need not include impairments properly rejected by the ALJ.
See McSwain v. Bowen, 814 F.2d 620 n.1 (11th Cir. 1987) (per curiam).
If an ALJ chooses to rely on a VE’s testimony, the ALJ is required “to ask the VE
whether there is a conflict [between the VE’s testimony and the DOT,] and if the VE identifies
a conflict the ALJ is required then–and only then–to address the conflict.” Garskof v. Astrue,
5
The purpose of SSR 96-9p is “[t]o explain the Social Security Administration’s policies
regarding the impact of [an RFC] assessment for less than a full range of sedentary work on an
individual’s ability to do other work.” SSR 96-9p, 1996 WL 374185, at *1 (July 2, 1996).
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No. 5:07-cv-288-Oc-GRJ, 2008 WL 4405050, at *6 (M.D. Fla. Sept. 26, 2008) (unpublished);
see SSR 00-4p, 2000 WL 1898704, at *2 (noting that “[w]hen there is an apparent unresolved
conflict between VE . . . evidence and the DOT, the [ALJ] must elicit a reasonable
explanation for the conflict before relying on the VE”). If no conflict is identified, “the ALJ
does not violate [Social Security Ruling (“SSR”)] 00-4p by relying upon the opinion of the
VE–so long as the ALJ asked the VE to identify any conflicts–and the ALJ is not required
independently to identify whether there is any inconsistency.” Garskof, 2008 WL 4405050,
at *6. Even if a conflict is identified, a “VE’s testimony trumps the DOT.” Jones v. Comm’r
of Soc. Sec., 423 F. App’x 936, 938 (11th Cir. 2011) (unpublished) (citing Jones v. Apfel, 190
F.3d 1224, 1230 (11th Cir. 1999)); see also Hurtado v. Comm’r of Soc. Sec., 425 F. App’x
793, 795-96 (11th Cir. 2011) (unpublished) (citations omitted) (noting that a “VE is an expert
on the kinds of jobs a person can perform, while the DOT simply provides generalized
overviews of jobs and not the specific requirements of a job”); Jones v. Charter, 72 F.3d 81
(8th Cir. 1995) (noting that “[t]he DOT gives the approximate maximum requirement for each
position, rather than their range”).
Here, the following question was posed by the ALJ to Mr. Capps, the VE who testified
at Plaintiff’s hearing:
[ALJ]: For the second hypothetical, please consider the following limitations:
[Plaintiff] can lift 20 pounds occasionally/10 pounds frequently; she can stand
and sit for six hours in an eight-hour day with a sit/stand option every hour; she
can walk only for two hours in an eight-hour day; she can occasionally climb
stairs and ramps; she can occasionally balance; she should never climb ropes,
ladders, and scaffolds and she cannot crouch, crawl, stoop, squat, kneel, or
bend; she can handle, finger, feel, grip frequently; she can extend her arms
both forward and overhead in all ways; she can hear, listen, and speak with no
limitations; she should avoid vibrations, dangerous machines and heights; and
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the job should be a simple, routine, one/two-step job with no production
assembly line demands.
With those restrictions, can she go back to the two jobs described as her
past work?
Tr. at 92-93. After the VE responded that he did not think Plaintiff could return to her past
work, the ALJ asked whether there would be jobs available in the State of Florida that she
could perform. Tr. at 93. The VE responded as follows:
[VE]: Yes, ma’am. With these restrictions and then looking at the DOT, there
are some options listed. The first one is the title, surveillance system monitor
and the DOT number is 379.367-010; it’s listed sedentary . . . [a]nother listing
is titled order clerk, food and beverage; that’s code 209.567-014; it’s listed
sedentary . . . [o]ne other one is titled ticket taker and that code is 344.667-101;
light . . . .
Tr. at 94. Finally, the ALJ asked the VE whether the jobs he identified were consistent
with the DOT, and the VE responded that they were. Tr. at 95.
Plaintiff’s central argument is that in light of SSR 96-9p, it was not enough for the ALJ
to simply ask the VE whether his testimony was consistent with the DOT; rather, Plaintiff
contends the ALJ should have asked the VE whether “his testimony is inconsistent with the
DOT regarding Plaintiff’s complete inability to stoop.” Pl.’s Mem. at 7 (emphasis in original).
Plaintiff further suggests that if SSR 96-9p is applied, the two sedentary positions found by
the VE (surveillance system monitor and order clerk) would likely be eliminated based on
Plaintiff’s complete inability to stoop. Id. at 7.
Plaintiff’s reliance on SSR 96-9p is misplaced for a number of reasons. SSR 96-9p
states, in relevant part, that:
A complete inability to stoop would significantly erode the unskilled sedentary
occupational base and a finding that the individual is disabled would usually
apply, but restriction to occasional stooping should, by itself, only minimally
erode the unskilled occupational base of sedentary work. Consultation with a
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vocational resource may be particularly useful for cases where the individual
is limited to less than occasional stooping.
SSR 96-9p, 1996 WL 374185, at *8 (emphasis omitted from the original and added
elsewhere). The ruling, therefore, neither implies that an inability to stoop would completely
erode the unskilled sedentary occupational base nor mandates a finding of disability. In any
event, SSR 96-9p may not even be applicable here. The purpose of SSR 96-9p is to
“explain the Social Security Administration’s policies regarding the impact of a[n RFC]
assessment for less than a full range of sedentary work,” see 1996 WL 374185, at *1, and
here, the ALJ found Plaintiff has “the [RFC] to perform less than the full range of light work,”
see Tr. at 35 (emphasis added). Moreover, Social Security Rulings are not binding on this
Court. Jones, 423 F. App’x at n.4.
Nevertheless, the undersigned addresses Plaintiff’s argument the ALJ should have
asked the VE whether his testimony is consistent with the DOT regarding Plaintiff’s complete
inability to stoop. See Pl.’s Mem. at 7. The ALJ specifically included Plaintiff’s complete
inability to stoop in the RFC and in the hypothetical posed to the VE. Tr. at 35, 93. The VE
then identified two sedentary jobs (surveillance system monitor, DOT number 379.367-010
and clerk, food and beverage, DOT number 209.567-014) and one job involving light work
(ticket taker, DOT number 344.667-010) that, according to the Selected Characteristics of
Occupations (“SCO”), require no stooping. Tr. at 94; see Selected Characteristics of
Occupations
Defined
in
the
Revised
Dictionary
of
Occupational
Titles,
http://www.nosscr.org/sco/sco.pdf. The ALJ asked the VE whether the jobs the VE listed
were consistent with the DOT, and the VE responded that they were. Tr. at 95. Nowhere
does SSR 00-4p require an ALJ to ask a VE whether the job(s) he lists are consistent with
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the DOT regarding a specific limitation, and the ALJ is not required to independently identify
any inconsistencies between the VE’s testimony and the DOT. Garskof, 2008 WL 4405050,
at *6.
Plaintiff also suggests that the hypothetical posed to the VE “seems to be implausible
in that the Plaintiff could stand for six hours but could only walk for two hours.” Pl.’s Mem.
at 8. According to Plaintiff, “[i]t is unclear how [Plaintiff] could perform any work with a
limitation to not move most of the day (an inability to walk) but yet remain in place while
standing.” Id. at 9. Plaintiff, however, misconstrues the content of the ALJ’s hypothetical.
In the hypothetical, the ALJ never postulated that Plaintiff could stand continuously for six
hours; rather, she represented that Plaintiff “can stand and sit for six hours in an eight-hour
day with a sit/stand option every hour.” Tr. at 92 (emphasis added). The distinction is
significant, because it implies that Plaintiff would be permitted to alternate between standing
and sitting for the six hours in question, and Plaintiff would never be required to stand or sit
continuously for more than an hour at a time. This is not inconsistent with Plaintiff’s inability
to walk for more than two hours in an eight-hour workday.
The undersigned notes that SSR 96-8p, dealing with assessing RFC, explains that
“[e]ach function (sitting, standing, walking, lifting, carrying, pushing, and pulling) must be
considered separately,” see 1996 WL 374184, at *5. So even if Plaintiff had correctly
construed the hypothetical, the ALJ would not have erred by considering standing and
walking separately.
V. Conclusion
Plaintiff’s arguments ultimately fail because she misconstrues the content of the
hypothetical posed by the ALJ to the VE; moreover, her reliance on SSR 96-9p is misplaced.
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Here, the ALJ properly accounted for Plaintiff’s complete inability to stoop by including it in
both the RFC and the hypothetical posed to the VE. The VE identified two sedentary jobs
and one job involving light work that did not require any stooping, and the ALJ asked the VE
whether the jobs the VE listed were consistent with the DOT. Accordingly, the undersigned
finds that the VE’s testimony is supported by substantial evidence and the ALJ committed no
error in relying on that testimony. The Commissioner’s final decision, therefore, is supported
by substantial evidence. After due consideration, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g), and pursuant to section 1383(c)(3), AFFIRMING the Commissioner’s
final decision.
2.
The Clerk of Court is further directed to close the file.
DONE AND ORDERED at Jacksonville, Florida on July 31, 2015.
efh
Copies to:
Counsel of record
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