Miller v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: The decision of the Commissioner of Social Security is REVERSED and this case is REMANDED for proceedings consistent with this Opinion pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Judge Rudy Lozano on 2/4/14. (cer)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CATHY S. MILLER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

No. 3:13-CV-00018

OPINION AND ORDER
This

matter

is

before

the

Court

for

review

of the

Commissioner of Social Security’s decision denying Disability
Insurance Benefits (“DIB”) to Plaintiff, Cathy S. Miller. For the
reasons set forth below, the Commissioner of Social Security’s
final

decision

is

REVERSED

and

this

case

is

REMANDED

for

proceedings consistent with this opinion pursuant to sentence
four of 42 U.S.C. section 405(g).

BACKGROUND
On August 21, 2009, Plaintiff, Cathy S. Miller (“claimant”),
applied for Social Security Disability Benefits under Title II of
the Social Security Act, 42 U.S.C. § 401 et seq.

The claimant’s

alleged onset of her disability was on July 10, 2009.

The Social

Security

Administration

denied

the

claimant’s

initial

application, and also denied her claim on reconsideration. On
April

18,

2011,

the

claimant

appeared

with

counsel

at

an

administrative hearing before Administrative Law Judge (“ALJ”)
Warnecke Miller in Fort Wayne, Indiana.

The claimant testified

at the hearing, as did Sharon D. Ringenberg, a vocational expert
(“VE”). On May 27, 2011, ALJ Miller issued a decision finding the
claimant not disabled.
The claimant requested that the Appeals Council review the
ALJ’s decision, and this request was denied.

As a result of the

denial, ALJ Miller’s decision became the Commissioner’s final
decision.
initiated

See 20
the

C.F.R.

instant

§

422.210(a).

action

for

The

judicial

claimant

review

of

has
the

Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION
The claimant was born on June 11, 1974, and was 35 years old
on the alleged disability onset date and 38 at the time of the
ALJ’s decision. (Tr. 162). The claimant has a high school diploma
and approximately a semester worth of college credits. (Tr. 45).
The claimant is single and has three children.

(Tr. 53-54).

Her

past relevant work includes work as an automobile assembler,

2

sewing machine operator, and dispatcher.

The claimant’s last job

was as a sewing machine operator. Id. The claimant alleges the
following impairments: fibromyalgia, asthma, and depression.
The medical evidence can be summarized as follows:
The claimant saw her primary care physician, Dr. Elizabeth
Gingrich, M.D., in February of 2008, for fibromyalgia, asthma,
and depression.

At an exam in July of 2009, Dr. Gingrich noted

that The claimant had “trigger point tenderness which is quite
marked in hip and shoulder girdle region.”

(Tr. 261).

In

December of 2010, after conducting a physical examination, Dr.
Gingrich found that the claimant stood and moved stiffly, but
could bend to 90 degrees.

(Tr. 372-373).

Dr. Gingrich diagnosed

the claimant with fibromyalgia, joint pain, and depression. (Tr.
373).
Dr.

Bruce

Lockwitz,

M.D.,

performed

a

rheumatology

evaluation on the claimant and found her symptoms to be most
consistent with Dr. Gingrich’s diagnosis of fibromyalgia.
296).

(Tr.

Dr. Lockwitz reviewed X-rays of the claimant’s feet,

knees, and hands, which he found to be unremarkable. (Tr. 303).
He later ordered X-rays of her knees, pelvis, hips, and lumbar
spine, which were also normal. (Tr. 350).

Dr. Lockwitz referred

the claimant to Dr. Gene Grove, M.D. for pain management.

3

(Tr.

402).

Dr.

Grove

found

her

symptoms

to

be

consistent

fibromyalgia and referred her to physical therapy.
405).

with

(Tr. 402-

The physical therapist reported that the claimant had a

slow gait with the use of a cane, decreased lumbar flexion and
extension,

lumbar

weakness,

and

tenderness

of

the

sacroiliac

joints. (Tr. 400-401).
Dr.

Gingrich,

the

claimant’s

primary

care

physician,

indicated that the claimant could stand 30 minutes at a time and
up to two-hours in an eight-hour work day.

Dr. Gingrich also

indicated that the claimant could sit for 30 minutes at a time up
to four hours in an eight-hour work day.

Dr. Gingrich also

estimated that the claimant could lift ten pounds occasionally
and

five

pounds

frequently;

and

that

the

claimant

could

occasionally bend, stoop, and reach overhead with either arm.
(Tr. 399).
In November of 2009, Dr. Joe Banks, D.O., a state agency
medical consultant, examined the claimant.

Dr. Banks found that

the claimant had tender points along her back and shoulder,
possibly consistent with fibromyalgia, but that the examination
was otherwise unremarkable. (Tr. 287).
With regard to the claimant’s psychological impairments, Dr.
Gingrich

indicated

that

the

claimant

4

exhibited

signs

of

anhedonia, sleep disturbance, decreased energy, feelings of guilt
or worthlessness, and difficulty concentrating or thinking. (Tr.
398).
In May of 2010, Dr. Sharon DeVinney, Ph.D., a state agency
psychiatric consultant, examined the claimant.

(Tr. 314-19).

Dr. DeVinney indicated that the claimant had some difficulty with
attention and concentration, and significant difficulty retaining
information, but no evidence of a global cognitive impairment.
(Tr. 318).

Dr. DeVinney concluded that the claimant’s memory

loss issues may significantly impair her ability to function, but
symptoms of depression, anxiety and obsessive-compulsive disorder
did not appear to impair her functioning significantly.

(Tr.

318).

Review of the Commissioner’s Decision
This

Court

has

authority

to

review

decision to deny social security benefits.

the

Commissioner’s

42 U.S.C. § 405(g).

“The findings of the Commissioner of Social Security as to any
fact,

if

supported

conclusive...”.

Id.

by

substantial

Substantial

evidence

evidence,
is

defined

shall
as

be

“such

relevant evidence as a reasonable mind might find adequate to
support a decision.” Richardson v. Perales, 402 U.S. 389, 401

5

(1971).

In determining whether substantial evidence exits, the

Court shall examine the record in its entirety, but shall not
substitute its own opinion for the ALJ’s by reconsidering the
facts or re-weighing evidence. Jens v. Barnhart, 347 F.3d 209,
212 (7th Cir. 2003). With that in mind, however, this Court
reviews the ALJ’s findings of law de novo and if the ALJ makes an
error of law, the Court may reverse without regard to the volume
of evidence in support of the factual findings.

White v. Apfel,

167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
under the Social Security Act, the claimant must establish that
she is disabled.

To qualify as such, the claimant must be unable

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 has lasted or can be expected to
last for a continuous period of not less than twelve months.”
U.S.C. §§ 423(d)(1)(A) and 1382(a)(1).
claimant

has

satisfied

this

statutory

42

To determine whether a
definition,

the

ALJ

performs a five-step evaluation:
Step 1:

Is the claimant performing substantial gainful
activity? If yes, the claim is disallowed, if no,
the inquiry proceeds to step 2.

Step 2:

Is the claimant’s impairment or combination of
impairments “severe” and expected to last at least
twelve months? If not, the claim is disallowed; if
6

yes, the inquiry proceeds to step 3.
Step 3:

Does the claimant have an impairment or combination
of impairments that meets or equals the severity of
an impairment in the SSA’s Listing of Impairments,
as described in 20 C.F.R. § 404, Subpt. P, App. 1?
If yes, then the claimant is automatically disabled;
if not, then the inquiry proceeds to step 4.

Step 4:

Is the claimant able to perform his past relevant
work? If yes, the claim is denied; if no, the
inquiry proceeds to step 5, where the burden of
proof shifts to the Commissioner.

Step 5:

Is the claimant able to perform any other work
within his residual functional capacity in the
national economy? If yes, the claim is denied; if
no, the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that the claimant suffered from
severe impairments of fibromyalgia, asthma, and depression, which
significantly affected her ability to work. The ALJ further found
that the claimant did not meet or medically equal one of the
listed impairments and could not perform her past relevant work,
but nonetheless retained the residual functional capacity (“RFC”)
to:
lift and/or carry five pounds frequently and
ten pounds occasionally, stand and walk for
two hours in an eight-hour work day, and sit
for six hours in an eight-hour work day,
defined
as
sedentary
work
in
20
CFR
404.1567(a); however, she must alternate
between
sitting
and
standing,
but
the
positional change would not render her off
7

task. She can never climb ladders, ropes, or
scaffolds, crouch or crawl, and she can
occasionally climb ramps or stairs, balance,
stoop, kneel, and reach overhead with either
arm. She must use a cane, but only when
walking. She must avoid concentrated exposure
to pulmonary irritants such as fumes, odors,
dust, gases, chemicals, or poorly ventilated
areas. Moreover, as the claimant has moderate
difficulties maintaining concentration and
pace, she cannot understand, remember or
carry out detailed instructions, and her pace
is limited to goal-oriented standards rather
than production paced or fast paced work.
Additionally, she requires a job that allows
a written list of duties to be kept at the
workstation.
(Tr. 23).
After

considering

the

claimant’s

age,

education,

work

experience and RFC, the ALJ relied upon the testimony of the VE
and concluded that the claimant was not disabled and not entitled
to DIB because she retained the capacity to perform a significant
number of jobs despite her functional limitations.

Thus, the

claimant’s claim failed at step 5 of the evaluation process. The
claimant argues that the ALJ committed several errors requiring
reversal.
The claimant believes that the ALJ’s decision regarding her
RFC was not supported by substantial evidence because the ALJ did
not

specify

alternate

the

sitting

frequency
and

with

standing.

8

which
The

the

claimant

claimant

needs

believes

to
the

hypothetical questions the ALJ posed to the VE were flawed for
the same reason.

The claimant also believes the ALJ erred in

finding that the claimant’s pace is limited to goal oriented
standards rather than production paced or fast paced work, when
the hypothetical question posed to the VE included a slightly
different phrasing of the limitation.

And, lastly, the claimant

challenges the ALJ’s credibility determination.

The ALJ’s Residual Functional Capacity Finding
ALJ Miller’s RFC states, in part, that the claimant “must
alternate between sitting and standing, but the positional change
would not render her off task.”

(Tr. 23).

The claimant argues

that the RFC lacks the necessary specificity in that it fails to
state

the

frequency

with

which

between sitting and standing.

the

claimant

(DE #25, at 6).

must

alternate

The claimant

alleges that the lack of an “at will” option or clear stipulation
of the frequency of alternating, i.e. every 30 minutes, violates
the requirements of SSR 96p-9.
In contrast, the Commissioner argues that the language of
the RFC is sufficient because an “at will” option should be
inferred from the use of the phrase “would not render her off
task.” (DE #28, at 9).

The Commissioner further assumes that the

9

VE heard the claimant testify to the frequency with which she
needs to alternate between sitting and standing and that the VE
would account for this testimony in answering the hypotheticals.
Social Security regulations require that an ALJ be clear and
specific

about

the

required

frequency

of

alternating

between

standing and sitting in an RFC. SSR 96-9p provides the following
with regard to alternating sitting and standing:
An individual may need to alternate the
required
sitting
of
sedentary
work
by
standing
(and,
possibly,
walking)
periodically.
Where this need cannot be
accommodated by scheduled breaks and a lunch
period, the occupational base for a full
range of unskilled sedentary work will be
eroded.
The extent of the erosion will
depend on the facts in the case record, such
as the frequency of the need to alternate
sitting and standing and the length of time
needed to stand. The RFC assessment must be
specific
as
to
the
frequency
of
the
individual’s need to alternate sitting and
standing.
It may be especially useful in
these situations to consult a vocational
resource in order to determine whether the
individual is able to make an adjustment to
other work.
96-9p, 1996 WL 374186 (July 2, 1996).

The Seventh Circuit has

interpreted this language rather literally.

In Arnett v. Astrue,

the ALJ’s RFC included a requirement that Arnett must “alternate
between sitting and standing throughout the day.”

10

676 F.3d 586,

590 (7th Cir. 2012).

Arnett argued that this was insufficient

under 96-9p and the Seventh Circuit agreed:
[W]e agree with Arnett that the ALJ failed to
formulate
an
RFC
that
is
sufficiently
specific as to how often she must be able to
sit and stand. . . . An RFC must be specific
about the required frequency of standing and
sitting. SSR 96-9p, 1996 WL 374185, at *6-7,
1996 SSR LEXIS 6, at *18-19 (July 2, 1996).
Arnett’s RFC provides that she must be able
to alternate between sitting and standing
“throughout the work-day.”
This does not
specify a particular frequency, and does not
require that Arnett be able to choose to sit
or stand when she feels it is necessary.
Id.

The Seventh Circuit has found references to the need to

stand “as needed” or at the claimant’s “own option” sufficient to
uphold

an

RFC

that

does

not

contain

a

specific

statement

regarding the frequency at which a claimant needs to alternate
between standing and sitting. See Ketelboeter, 550 F.3d 620, 626
(7th Cir. 2008) (concluding that an RFC specifying that the
claimant could sit or stand “as needed” was sufficient because it
“would necessarily encompass frequent sitting and standing”);
Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (claimant’s
argument that the ALJ erred by failing to specify the frequency
with

which

she

would

need

to

alternate

between

sitting

and

standing unavailing where the ALJ specified that she needed work
that would allow her to sit or stand at her “own option.”).

11

In the instant case, neither the hypothetical nor the RFC
specifies that the sit stand option is “at will,” “as needed,” or
at her “own option.”

The hypothetical and RFC also fails to

specify the frequency with which the claimant must alternate
between

sitting

and

standing

in

any

other

manner.

The

Commissioner’s argument that one can infer an “at will option”
from the ALJ’s use of the phrase “would not render her off task”
is unpersuasive. Like Arnett, an additional phrase unrelated to
frequency does not allow an inference that the ALJ intended to
allow the claimant to alternate between sitting and standing as
often

as

she

desires.

SSR

96-9p

requires

clear

language

designating frequency of the need to alternate, and the ALJ’s RFC
contains no reference to either a frequency or an “at will”
option.

Like in Arnett, remand is required.1

Furthermore, the Commissioner’s argument that the VE was
present during the hearing and would have taken the claimant’s
testimony regarding the frequency with which she must alternate
between sitting and standing into account, is also unpersuasive.
The Commissioner relies on Simila v. Astrue, 573 F.3d 503 (7th
Cir. 2009), to support its position. This case, however, directly
contradicts the Commissioners argument.

1

It is noted that the Commissioner neither cited Arnett nor made any attempt
to distinguish the Court’s holding in Arnett.

12

As the Court explained in Simila, generally, an ALJ must
include all limitations supported by the medical evidence in a
hypothetical,

but

an

exception

may

exist

when

the

record

indicates that the VE “independently learned of the limitations
(through other questioning at the hearing or outside review of
the medical records, for example) and presumably accounted for
them.”

Id. at 520-21 (citing Steele v. Barnhart, 290 F.3d 936,

942 (7th Cir. 2002)).
hypothetical

However, when an ALJ poses a “series of

questions

with

increasingly

debilitating

limitations” and nothing in the record indicates that the VE
relied on anything but the hypotheticals, then one cannot assume
“that

the

VE

hypotheticals.”

based
Simila,

his
573

testimony
F.3d

at

on

anything

but

the

521

(citing

Young

v.

Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004)(emphasis added));
see also O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.
2010)(indicating this exception is inapplicable where an “ALJ
poses a series of increasingly restrictive hypotheticals to the
VE, because we infer that the VE’s attention is focused on the
hypotheticals and not on the record.”).
Here, the VE testified to reviewing the record prior to the
hearing,

and

she

was

present

during

the

testimony

of

the

witnesses; she was not told to disregard the testimony prior to

13

testifying. However, like in Simila, the ALJ gave increasingly
restrictive

hypotheticals

to

the

VE,

at

the

end

of

each

hypothetical the ALJ prefaced his question with “given this set
of hypothetical limitations,” and the VE never made reference to
the record or any prior testimony when she gave her answers.
There is nothing in the record to indicate that the VE based her
answers

to

the

hypotheticals

on

anything

but

the

facts

and

limitations laid out in the hypotheticals.
Thus, the Commissioner’s argument fails.

This Court cannot

assume that the VE took the claimant’s testimony of the frequency
with which she needed to alternate sitting and standing into
consideration when giving her answers. The ALJ erred when he
failed to specify the frequency of sitting and standing in both
his hypothetical questions and his RFC.

The case must therefore

be remanded.
Because

remand

is

required,

the

claimant’s

remaining

argument need not be addressed by the Court.

CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED
for proceedings consistent with this opinion pursuant to sentence
four of 42 U.S.C. § 405(g).
DATED: February 4, 2014

/s/ RUDY LOZANO, Judge
United States District Court

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