Wright v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioners decision below. Signed by District Judge John W. Lungstrum on 12/16/2013. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under
sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment
shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the
Commissioner’s decision below.
On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
Plaintiff applied for SSI, alleging disability beginning August 2, 2003. (R. 11,
101-03). At the Administrative Law Judge (ALJ) hearing, Plaintiff amended her alleged
onset date of disability to March 9, 2009. (R. 11, 27-28). In due course, Plaintiff
exhausted proceedings before the Commissioner, and now seeks judicial review of the
final decision denying benefits. Plaintiff makes only one allegation of error in the
decision below. She claims the ALJ erred in his hypothetical questioning of the
vocational expert by merely instructing the expert that Plaintiff’s physical capabilities are
reflected in Exhibit 10F rather than orally instructing the expert as to each physical
limitation contained in that exhibit. She argues that therefore, there is no way to verify
that the vocational expert properly considered the postural limitations regarding
crouching and stooping, and that remand is necessary for proper consideration of specific
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds no error in the ALJ’s decision.
Plaintiff asserts only that it was error for the ALJ to instruct the vocational expert
that Plaintiff’s physical capabilities and limitations are as presented in Exhibit 10F, rather
than to orally instruct the expert as to each physical limitation contained in the exhibit.
She points out that the ALJ instructed the vocational expert that Plaintiff’s mental
limitations are as presented in Exhibit 7F and that Plaintiff’s physical limitations are as
presented in Exhibit 10F, but that the ALJ went on to orally state to the expert each
mental limitation contained in Exhibit 7F whereas he did not orally state the physical
limitations contained in Exhibit 10F. She argues that consequently “[t]here is no way to
verify or validate that the postural restrictions [(regarding stooping and crouching)] have
been properly considered.” (Pl. Br. 15). Plaintiff asserts that the ALJ’s failure to orally
state the physical limitations to the vocational expert was prejudicial to Plaintiff because
“there is no independent verification that Plaintiff’s postural restrictions . . . had been
considered at all!” Id. at 16. Plaintiff cites Social Security Ruling (SSR) 96-8p for the
proposition that all relevant record evidence must be considered, and “argues that not all
of the evidence has been considered” in this case, because the ALJ did not orally inform
the vocational expert of each physical limitation contained in Exhibit 10F.
At the hearing, the ALJ had the following colloquy with the vocational expert
regarding the mental and physical limitations of the hypothetical individual:
For my first hypothetical question, I want you to assume you’re
dealing with an individual who is currently fortyfive years old who
has an eighth grade education, same past work experience as the
claimant. I want to you to assume further I find this individual has
the exertional and non-exertional limitations that are [set] forth in the
exhibit marked C-7F, excuse me, that’s-
Yeah, 10F of the physical RFC and C-7F is the mental RFC, are you
familiar with those documents?
The 7F had marked limitations in the ability to understand and
remember detailed instructions, carry out detailed instructions, to
work in coordination in proximity to others without being distracted
by them, ability to interact appropriately with the general public and
also the ability to set realistic goals to make plans independent of
others, should be able to work at a simple job, unskilled job defined
as being an SVP of 1 or 2 job, that does not require extensive
independent planning or dealing with the public on more than
(R. 39). From this exchange, it is clear that the vocational expert was aware of the
physical limitations presented in Exhibit 10F. The expert specifically stated that he was
familiar with that exhibit. Moreover, when the ALJ paused to verify the second exhibit
that he wanted to include in his hypothetical question, it was the expert who suggested
that 10F was the exhibit for which the ALJ was searching. Although it is also clear that
the ALJ restated the mental limitations contained in exhibit 7F and did not restate the
physical limitations contained in exhibit 10F, Plaintiff points to no authority for the
proposition that an ALJ may not rely on a vocational expert who states that he is familiar
with the contents of a particular exhibit. Moreover, the court is aware of no such
authority. In fact, the court is aware that it is a frequent occurrence in adjudicative
hearings that a testifying expert will be asked for an opinion based upon familiarity with a
particular exhibit without the examiner or the court stating the contents of the exhibit
upon which the testimony is based. Plaintiff has shown no error in the ALJ’s failure to
state the physical limitations expressed in exhibit 10F.
Plaintiff’s argument that there is no independent verification that Plaintiff’s
postural restrictions had been considered, is belied by two factors present in this case.
First, as Plaintiff admits, exhibit 10F indicates that Plaintiff is able to frequently balance,
kneel, crouch, and crawl, but only occasionally to climb or to stoop (R. 329), and the
vocational expert stated that he was familiar with that exhibit before he responded to the
ALJ’s hypothetical question based upon it. Second, and perhaps more importantly,
Plaintiff was represented by legal counsel at the hearing (R. 24, 26), and counsel could
have confirmed on cross-examination that the expert was aware of the postural limitations
contained in exhibit 10F and had included those limitations in his response to the
hypothetical question, but counsel specifically declined to question the expert after his
testimony in response to the ALJ’s hypothetical question. (R. 41). Plaintiff has shown no
error in the decision or in the proceedings below.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s decision below.
Dated this 16th day of December 2013, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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