Brasfield v. Commissioner of Social Security
Filing
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FINAL OPINION AND ORDER re: 1 Complaint. The Commissioner's decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g) as set forth herein. The Clerk is directed to enter judgment consistent with this ruling and close the file. Signed by Magistrate Judge Thomas E. Morris on 9/7/2012. (NTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETTY BRASFIELD,
Plaintiff,
vs.
CASE NO. 8:11-cv-1733-T-TEM
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
____________________________
ORDER AND OPINION
This case is before the Court on Plaintiff’s complaint (Doc. #1), seeking review of the
final decision of the Commissioner of the Social Security Administration (“the
Commissioner”) denying Plaintiff’s claim for a period of disability and disability insurance
benefits (“DIB”). Both parties have consented to the exercise of jurisdiction by a magistrate
judge, and the case has been referred to the undersigned (Docs. #11 & #21). The
Commissioner has filed a transcript of the underlying administrative proceedings and
evidentiary record (hereinafter referred to as “Tr.” followed by the appropriate page
number). For the reasons set out herein, the Commissioner’s decision is AFFIRMED.
I. Procedural History
Plaintiff filed applications for a period of disability and disability insurance benefits,
alleging disability beginning January 1, 2002 (Tr. 127-28). Plaintiff’s applications were
denied initially and upon reconsideration (Tr. 44-45, 50-55).
Plaintiff requested an
administrative hearing, which was held on June 9, 2010 (Tr. 22-43). The administrative law
judge (“ALJ”) issued a decision denying Plaintiff’s applications on August 19, 2010 (Tr. 71
17). Plaintiff filed a request for review, which the Appeals Council denied on June 24, 2011
(Tr. 1-5). Plaintiff filed the instant action in federal court on August 3, 2011 (Doc. #1).
II. Summary of the ALJ’s Decision
A plaintiff may be entitled to disability benefits under the Social Security Act if she
is unable to engage in substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected either to result in death or last for a
continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner has established a five-step sequential evaluation process for determining
whether a plaintiff is disabled and therefore entitled to benefits.1
See 20 C.F.R.
§ 404.15202; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
In the instant case, the ALJ found that Plaintiff met the Social Security Act’s insured
status requirements through December 31, 2005 (Tr. 12). At step one of the sequential
evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since January 1, 2002, the alleged onset date, through her date last insured of
December 31, 2005. Id. At step two, the ALJ found Plaintiff suffered from the severe
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First, if a claimant is engaging in substantial gainful activity, she is not disabled.
20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
combination of impairments that significantly limits her physical or mental ability to do basic
work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R.
§ 404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth,
if a claimant’s impairments do not prevent her from performing her past relevant work, she
is not disabled. 20 C.F.R. § 404.1520(f). Fifth, if a claimant’s impairments (considering her
residual functional capacity, age, education, and past work) prevent her from doing other
work that exists in the national economy, then she is disabled. 20 C.F.R. § 404.1520(g).
A plaintiff bears the burden of persuasion through step four, but the burden shifts to the
Commissioner at step five. Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
2
Unless otherwise specified, all references to 20 C.F.R. will be to the 2012 edition.
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impairments of hip disorder, knee pain, and obesity. Id. At step three, the ALJ determined
Plaintiff did not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13).
At step four, the ALJ found Plaintiff had the residual functional capacity (“RFC”)
to perform medium work as defined in 20 CFR 404.1567(c). Specifically, the
claimant is able to lift and/or carry 50 pounds occasionally and 25 pounds
frequently, walk and stand for 6 hours total in an 8-hour workday, and sit for
2 hours total out of an 8-hour workday; and she can occasionally bend,
stoop, crouch, and crawl.
Id. Considering this RFC, the ALJ found that Plaintiff was capable of performing her past
relevant work as a claims examiner (Tr. 15). Continuing to step five, the ALJ found, in the
alternative, that there were other jobs existing in significant numbers in the national
economy that Plaintiff could perform including: linen room attendant, dining room attendant,
hospital cleaner, cashier parking, information clerk, and counter clerk (Tr. 16). Therefore,
the ALJ found that Plaintiff was not under a disability at any time from January 1, 2002, the
alleged onset date, through December 31, 2005, the date last insured (Tr. 17).
III. Standard of Review
The scope of this Court’s review is generally limited to determining whether the ALJ
applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial evidence.
See also
Richardson v. Perales, 402 U.S. 389, 390 (1971).
The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). “Substantial evidence is defined as more than a scintilla,
i.e., evidence that must do more than create a suspicion of the existence of the fact to be
established . . . and such relevant evidence as a reasonable person would accept as
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adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995)
(citation omitted).
Where the Commissioner’s decision is supported by substantial evidence, the Court
will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that the evidence preponderates against the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence that is favorable as well as unfavorable to the decision. Foote,
67 F.3d at 1560.
The Commissioner must apply the correct law and demonstrate that he has done
so. Although the Court reviews the Commissioner’s decision with deference to the factual
findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d
1143, 1145 (11th Cir. 1991)). Therefore, in determining whether the Commissioner’s
decision is supported by substantial evidence, the reviewing court must not re-weigh the
evidence, but must determine whether the record, as a whole, contains sufficient evidence
to permit a reasonable mind to conclude that the plaintiff is not disabled. Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
In all Social Security disability cases, the plaintiff bears the ultimate burden of
proving disability and is responsible for furnishing or identifying medical and other evidence
regarding the claimed impairments. Bowen, 482 U.S. at 146 n.5; Carnes v. Sullivan, 936
F.2d 1215, 1218 (11th Cir. 1991); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987);
42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability
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unless he furnishes such medical and other evidence of the existence thereof as the
Commissioner of Social Security may require.”). It is the plaintiff’s burden to provide the
relevant medical and other evidence establishing disabling physical or mental functional
limitations. 20 C.F.R. § 404.704.
IV. Whether the ALJ framed an appropriate hypothetical to the vocational expert
Plaintiff raises one argument on appeal. Plaintiff argues the hypothetical presented
by the ALJ to the vocational expert (“VE”) was inconsistent with the residual functional
capacity findings in the ALJ’s decision.
In the instant case, the ALJ submitted written interrogatories to the VE, which
included two hypothetical questions (Tr. 183-85). The first hypothetical asked the VE to
assume a person who could perform light work with a sit/stand option and was limited to
occasional bending, stooping, crouching, and crawling. Id. In response to the first
hypothetical, the VE identified several light unskilled jobs a person with that RFC could
perform, including parking cashier, information clerk, and counter clerk. Id. The second
hypothetical asked the VE to assume a person who could perform medium work and was
limited to occasional bending, stooping, crouching, and crawling. Id. In response to the
second hypothetical, the VE identified several medium unskilled jobs a person with that
RFC could perform, including linen room attendant, dining room attendant, and hospital
cleaner. Id. The VE indicated the information provided conformed with the information
contained in the Dictionary of Occupational Titles (“DOT”). Id.3
3
Immediately following the two hypothetical questions was a question asking, “In
your opinion, could this person do the claimant’s past relevant work?” (Tr. 184). The VE
responded “yes.” Although it is unclear, it appears the VE intended this response to
(continued...)
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In his decision, the ALJ found Plaintiff had the residual functional capacity (“RFC”)
to perform medium work as defined in 20 CFR 404.1567(c). Specifically, the
claimant is able to lift and/or carry 50 pounds occasionally and 25 pounds
frequently, walk and stand for 6 hours total in an 8-hour workday, and sit for
2 hours total out of an 8-hour workday; and she can occasionally bend,
stoop, crouch, and crawl.
(Tr. 13).
Plaintiff argues the ALJ found Plaintiff was limited to walking and standing for six
hours total in an eight-hour workday, and to sitting for two hours total in an eight-hour
workday, but failed to include any walking, standing or sitting limitations in the second
hypothetical to the VE. Thus, Plaintiff argues the second hypothetical presented to the VE
was inconsistent with the residual functional capacity findings in the ALJ’s decision, and the
ALJ’s decision is not supported by substantial evidence.
Plaintiff is correct that, when a vocational expert is utilized at the fifth step in the
sequential evaluation process, the hypothetical questions posed must include all
impairments of the particular claimant. Pendley v. Heckler, 767 F.2d 1561, 1562 (11th Cir.
1985); Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). When the ALJ relies on the
testimony of a VE, “the key inquiry shifts to the adequacy of the RFC description contained
in the hypothetical posed to the VE” rather than the RFC simply cited in the ALJ’s decision.
Corbitt v. Astrue, No. 3:07-cv-518-J-HTS, 2008 WL 1776574, at *3 (M.D. Fla. Apr. 17,
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(...continued)
encompass both hypothetical questions because she thereafter denoted which hypothetical
she was responding to when she provided other occupations that such a person could
perform. The VE also responded “yes” to the question, “Are there transferable skills?” Id.
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2008)4 (citing Dowell v. Barnhart, NO. 06-1023-WEB, 2006 WL 4046164, at *3 (D. Kan.
Oct. 31, 2006)). Therefore, the Court must determine whether the ALJ failed to include any
limitations resulting from Plaintiff’s severe impairments in the hypothetical question that
formed the basis of the VE’s testimony, and if so, whether such failure constitutes grounds
for reversal.
Defendant argues the ALJ did not actually intend in her RFC assessment to limit
Plaintiff to standing/walking only six hours in a day and to sitting only two hours in a day,
but was merely stating that Plaintiff’s abilities conformed to the definition of medium work.5
4
Unpublished opinions may be cited as persuasive authority pursuant to the
Eleventh Circuit Rules. 11th Cir. R. 36-2.
5
Medium work is defined as:
lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds. A full range of medium work requires
standing or walking, off and on, for a total of approximately 6 hours in an 8hour workday in order to meet the requirements of frequent lifting or carrying
objects weighing up to 25 pounds. As in light work, sitting may occur
intermittently during the remaining time. Use of the arms and hands is
necessary to grasp, hold, and turn objects, as opposed to the finer activities
in much sedentary work, which require precision use of the fingers as well as
use of the hands and arms.
The considerable lifting required for the full range of medium work usually
requires frequent bending-stooping (Stooping is a type of bending in which
a person bends his or her body downward and forward by bending the spine
at the waist.) Flexibility of the knees as well as the torso is important for this
activity. (Crouching is bending both the legs and spine in order to bend the
body downward and forward.) However, there are a relatively few
occupations in the national economy which require exertion in terms of
weights that must be lifted at times (or involve equivalent exertion in pushing
or pulling), but are performed primarily in a sitting position, e.g., taxi driver,
bus driver, and tank-truck driver (semiskilled jobs). In most medium jobs,
being on one's feet for most of the workday is critical. Being able to do
frequent lifting or carrying of objects weighing up to 25 pounds is often more
(continued...)
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Therefore, Defendant argues, the second hypothetical is not inconsistent with the RFC.
However, the Regulations define medium work as requiring standing or walking for
“approximately” six hours in a workday. Thus, the Court finds the ALJ’s language is
ambiguous at best.
The RFC is an assessment, based upon all of the relevant evidence, of a claimant’s
remaining ability to do work despite the claimant’s impairments. 20 C.F.R. § 404.1545.
The RFC is defined in the regulations as “the most [an individual] can still do despite [his
or her] limitations.” Id. (emphasis added). Here, the ALJ found Plaintiff was able to “walk
and stand for 6 hours total in an 8-hour workday, and sit for 2 hours total out of an 8-hour
workday” (Tr. 13) (emphasis added). It would appear from the language used by the ALJ
that this represented the maximum amount of standing/walking and sitting Plaintiff could
do in a workday, not the minimum. As indicated above, “[a] full range of medium work
requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour
workday.”
SSR 83-10 (emphasis added).
As Plaintiff notes, the use of the word
“approximately” means it is possible that some medium jobs require standing or walking
for more than six hours in a workday, just as some medium jobs may require less standing
or walking. Thus, merely limiting Plaintiff to medium work did not adequately capture
Plaintiff’s standing/walking and sitting limitations, because the ALJ found Plaintiff was only
capable of standing and walking for a total of six hours and no more. Because the ALJ
found Plaintiff had specific limitations in standing/walking and sitting, she was required to
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(...continued)
critical than being able to lift up to 50 pounds at a time.
SSR 83-10, 1983 WL 31251 (S.S.A. 1983) (emphasis added).
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include these limitations in the hypothetical offered to the VE. The ALJ failed to do so.
Because the second hypothetical failed to include all of Plaintiff’s limitations resulting from
her severe impairments, the ALJ could not rely on the VE’s response. See Winschel v.
Comm'r of Soc. Sec., 631 F.3d 1176, 1181 (11th Cir. 2011) (VE’s testimony is not
substantial evidence where ALJ’s hypothetical failed to include or otherwise implicitly
account for all of plaintiff’s impairments). Therefore, the ALJ’s finding that Plaintiff could
perform the medium unskilled jobs of linen room attendant, dining room attendant, and
hospital cleaner is not supported by substantial evidence.
However, the ALJ’s failure to include the standing/walking and sitting limitations in
the second hypothetical is harmless error, because the ALJ’s overall disability
determination is still supported by substantial evidence. Harmless errors are those which
do not prejudice the plaintiff and would not change the disability determination. Battle v.
Astrue, 243 Fed. Appx. 514, 522 (11th Cir. 2007) (citing Diorio v. Heckler, 721 F.2d 726, 728
(11th Cir. 1983)); see also Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981)6 (remand
would be a “wasteful corrective exercise” when “no further findings could be made that
would alter the ALJ’s determination” given the record as a whole). Here, the ALJ’s first
hypothetical asked the VE to consider a person limited to light work with a sit/stand option
and limited to occasional bending, stooping, crouching, and crawling (Tr. 184). This
hypothetical accounted for Plaintiff’s standing/walking and sitting limitations,7 but was even
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the
Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.
7
Including the sit/stand option encompasses Plaintiff’s standing, walking, and sitting
(continued...)
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more restrictive because it limited Plaintiff to light work instead of medium work.8 The VE
responded that such a person could perform the light jobs of parking cashier, information
clerk, and counter clerk. Id. Thus, even with restrictions greater than those found in the
RFC, the VE still identified jobs Plaintiff was capable of performing. Accordingly, the ALJ’s
omission in the second hypothetical amounts to no more than harmless error, because the
ALJ’s ultimate determination is still supported by substantial evidence. See Ramos v.
Astrue, No. 8:11-cv-1942-T-MCR, 2012 WL 3670397, at *8 (M.D. Fla. Aug. 27, 2012) (“[A]n
ALJ’s failure to include certain limitations in a hypothetical posed to the VE amounted to
no more than harmless error where the VE provided testimony that those limitations would
not affect the plaintiff’s occupational base.”); Ooley v. Astrue, No. 8:10-cv-2292-T-TGW,
2011 WL 5358923, at *3 (M.D. Fla. Oct. 28, 2011) (ALJ’s failure to include limitation to only
frequent reaching in RFC or his hypothetical question was harmless error where VE
identified jobs plaintiff could perform in response to counsel’s hypothetical that included
more restrictive limitation of occasional reaching); Luna v. Astrue, No. CIV-07-0481-F, 2008
WL 867748, at *4 (W.D. Okla. Mar. 27, 2008) (ALJ’s decision supported by substantial
evidence where VE identified jobs plaintiff was capable of performing in response to
hypothetical that contained greater restrictions that those found in RFC); McLain v. Astrue,
No. 8:06-cv-2156-T-TBM, 2008 WL 616094, at *7 (M.D. Fla. Mar. 3, 2008) (ALJ’s
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(...continued)
limitations because “[t]he ‘reasonable implication’ of imposing a sit/stand option is that
Plaintiff would be able to change her position at her own volition.” Riley v. Astrue, No. 6:11cv-1437-Orl-JRK, 2012 WL 3522640, at *7 (M.D. Fla. 2012) (citing Williams v. Barnhart,
140 Fed. Appx. 932, 936-37 (11th Cir. 2005)).
8
“If someone can do medium work, we determine that he or she can also do
sedentary and light work.” 20 C.F.R. § 404.1567(c).
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erroneous finding that plaintiff could perform job of cashier was harmless error where VE
identified three other jobs plaintiff could perform in response to hypothetical question);
Walker v. Astrue, No. 8:06-cv-23360-T-TGW, 2008 WL 516563, at *3 (M.D. Fla. Feb. 22,
2008) (failure to include restriction to simple repetitive tasks in the hypothetical question
was harmless error where job identified by VE did not demand a mental capacity beyond
that possessed by the plaintiff).
V. Conclusion
Upon due consideration, the undersigned finds the decision of the Commissioner
was decided according to proper legal standards and is supported by substantial evidence.
As neither reversal nor remand is warranted in this case, the decision of the ALJ is hereby
AFFIRMED pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of the Court is
directed to enter judgment consistent with this ruling and, thereafter, to close the file. Each
party shall bear its own fees and costs.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of September, 2012.
Copies to: All counsel of record
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