Kirby v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 9/14/2020. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LEE KIRBY,
Plaintiff,
v.

CASE NO. 8:19-cv-1552-T-MCR

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
______________________________/
MEMORANDUM OPINION AND ORDER 1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying his application for a period of disability and disability insurance
benefits (“DIB”). Following an administrative hearing held on June 21, 2018, the
assigned Administrative Law Judge (“ALJ”) issued a decision, finding Plaintiff not
disabled from February 16, 2016, the alleged disability onset date, through
August 30, 2018, the date of the ALJ’s decision. 2 (Tr. 14-26, 69-107, 239.)
In reaching the decision, the ALJ found that Plaintiff had the following
severe impairments: degenerative disc disease of the lumbar and cervical spine,
bilateral shoulder derangement, degenerative joint disease of the right knee with

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 17.)
2

Plaintiff had to establish disability on or before December 31, 2021, his date last
insured, in order to be entitled to a period of disability and DIB. (Tr. 17.)

surgical intervention, diabetes mellitus with neuropathy, and obesity. (Tr. 19-20.)
The ALJ further found that Plaintiff had the residual functional capacity (“RFC”) to
perform a reduced range of light work. 3 (Tr. 21.) Then, after determining that
Plaintiff was unable to perform any past relevant work, at the fifth and final step
of the sequential evaluation process, 4 the ALJ found, based on the testimony of
the Vocational Expert (“VE”) and Plaintiff’s age, education, work experience, and
RFC, that there were jobs existing in significant numbers in the national economy
that Plaintiff could perform. (Tr. 24-25.)
Plaintiff is appealing the Commissioner’s decision that he was not disabled
from February 16, 2016 through August 30, 2018. Plaintiff has exhausted his
available administrative remedies and the case is properly before the Court.
Based on a review of the record, the briefs, and the applicable law, the
Commissioner’s decision is REVERSED and REMANDED.
I.

Standard of Review

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841

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Specifically, the ALJ found that Plaintiff could perform light work, except:
[H]e can never climb ladders, ropes, or scaffolds, but can frequently climb
ramps and stairs, kneel, crouch, and crawl and occasionally stoop. The
claimant can never reach overhead and can frequently handle, finger, and
feel with the bilateral upper extremities. He needs to avoid concentrated
exposure to temperature extremes, vibrations, and hazards. The claimant
uses a cane for ambulation.
(Tr. 21.)
4

The Commissioner employs a five-step process in determining disability. See
20 C.F.R. § 404.1520(a)(4).
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F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial
evidence, the district 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 favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner=s factual findings).
II.

Discussion

Plaintiff contends that the VE’s testimony does not constitute substantial
evidence supporting the ALJ’s decision because the hypothetical question to the
VE was incomplete or vague for two reasons. First, in the hypothetical question,
the ALJ asked the VE to assume that Plaintiff could “[s]tand and walk 6 hours out
of an 8-hour workday.” (Tr. 101.) Plaintiff asserts the question was unclear as to
whether he could: (a) stand and/or walk for a combined total of six hours in an
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eight-hour workday, or (b) stand for six hours and walk for six hours in a given
workday. Second, Plaintiff points out that while in the hypothetical question, the
ALJ asked the VE to assume that Plaintiff “may at times use a cane to ambulate”
(Tr. 103), the ALJ’s RFC assessment only provided that Plaintiff “uses a cane for
ambulation” (Tr. 21). In addition to the discrepancy in the language used in the
hypothetical question and the RFC, Plaintiff points out that the phrase “may at
times” is extremely vague. Therefore, Plaintiff asks the Court to remand the case
so the ALJ could present a clear and complete hypothetical question to the VE
with respect to Plaintiff’s use of a cane and standing/walking limitation.
Defendant responds that the VE’s testimony constitutes substantial
evidence supporting the ALJ’s decision because the hypothetical question
incorporated all of the limitations in the ALJ’s RFC assessment. According to
Defendant, “[t]he minor deviations in wording [that] Plaintiff identifies fail to
establish any harmful error in the ALJ’s ultimate finding.” (Doc. 27 at 1.)
Defendant explains that a “reasonable reading” of the VE’s testimony indicates
that the VE “assumed a need to use a cane when ambulating (versus while
merely standing or balancing), as similarly understood by the ALJ and Plaintiff’s
counsel, and the omission of the words ‘at times’ from the RFC finding in the
decision was at most a harmless clerical error.” (Id. at 7.) Defendant adds that
the restriction for standing and walking for six hours in the hypothetical question
is consistent with the general characteristics of light work, which requires
“standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
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workday.” SSR 83-10.
The Court agrees with Plaintiff that the hypothetical question to the VE was
vague, incomplete, and did not match the ALJ’s RFC assessment; as such, the
VE’s testimony cannot constitute substantial evidence to support the ALJ’s
decision. Where a hypothetical question does not include all of a claimant’s
limitations, as assessed by the ALJ, a remand is required. See Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam); see also Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007) (“In order for
a vocational expert’s testimony to constitute substantial evidence, the ALJ must
pose a hypothetical question which comprises all of the claimant’s
impairments.”).
Here, in the hypothetical question, the VE was asked to assume that
Plaintiff “may at times use a cane to ambulate.” (Tr. 103.) As Plaintiff points out,
the phrase “at times” is vague as it does not quantify the amount or length of time
that Plaintiff may need to use a cane to ambulate. Also, there is a difference in
meaning between the phrase used in the RFC that Plaintiff “uses a cane for
ambulation” (Tr. 21), which implies that Plaintiff regularly or always uses a cane
for ambulation, and the phrase used in the hypothetical question that Plaintiff
“may at times use a cane to ambulate” (Tr. 103), which implies the sporadic need
to use a cane for ambulation only “at times.” Although Defendant points out that
the VE sought clarification at the hearing that the cane would be used solely for
ambulation and not for standing or balancing (see Tr. 104), the clarification
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obtained at the hearing does not remove the ambiguity identified above, whether
or not the cane is used only for ambulation. The fact remains that the
hypothetical question included a vague phrase that was completely omitted from
the RFC assessment, which states that Plaintiff “uses” rather than “may . . . use”
a cane, thereby adding another layer of uncertainty as to what the ALJ intended
to include as part of Plaintiff’s limitations. 5 (Tr. 21 (stating, in relevant part, that
Plaintiff “uses a cane for ambulation”).) The Court cannot assume that the ALJ
“intended” to incorporate the limitations included in the hypothetical question and
that the ALJ’s omission was “at most a harmless scrivener’s error,” as Defendant
contends. (Doc. 27 at 6.)
The Court also notes that the hypothetical question was vague as it asked
the VE to assume that Plaintiff could “[s]tand and walk 6 hours out of an 8-hour
workday.” (Tr. 101.) In light of the uncertainty and discrepancies identified
above, the VE’s testimony does not constitute substantial evidence to support the
ALJ’s decision. Therefore, this case will be remanded for further proceedings.
Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (per curiam) (citations
omitted); Lance v. Colvin, No: 6:15-cv-1411-Orl-DNF, 2017 WL 677664, *7 (M.D.
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The undersigned notes that the medical record is replete with references to
severe neuropathy confirmed by EMG/NCS testing and causing sensory loss and
balance problems; slow/irregular gait; abnormal tiptoe and heel walk; decreased
sensation in both feet; muscle weakness, cramps, and joint pain; lower extremity
numbness; moderate to severe pain in the spine, shoulders, neck, knees, legs, and feet;
and decreased range of motion in the spine. (See, e.g., Tr. 33-43, 54-65, 393-96, 398400, 403, 407, 411-13, 452-58, 462-69, 471-73, 475-77, 489-90, 499-509, 519-42, 552,
560, 562-63, 595-604, 625-28, 634-38, 641-49, 654-56, 669, 755, 761-76, 771-72, 77980, 796-98, 802-08, 818-20.)
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Fla. Feb. 21, 2017) (rejecting Defendant’s typographical error argument and
remanding the case for further proceedings where the ALJ’s RFC finding
included greater limitations than those included in the hypothetical question).
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ to:
(a) submit a complete and accurate hypothetical question to the VE, which
includes all of Plaintiff’s impairments; (b) consider all of Plaintiff’s impairments in
assessing the RFC; (c) determine what types of work, if any, Plaintiff can
perform; and (d) conduct any further proceedings deemed appropriate.
2.

The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.
3.

In the event that benefits are awarded on remand, any § 406(b) or §

1383(d)(2) fee application shall be filed within the parameters set forth by the
Order entered in In re: Procedures for Applying for Attorney’s Fees Under 42
U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov.
13, 2012). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on September 14, 2020.

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Copies to:
Counsel of Record

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