Hastings v. Social Security Administration, Commissioner of

Filing 16

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 final decision. Signed by District Judge John W. Lungstrum on 12/6/2013. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Denise Renne Hastings,
Plaintiff,
v.

Case No. 13-1097-JWL

Carolyn W. Colvin,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM & ORDER
Plaintiff Denise Renne Hastings brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of the decision of defendant, the Commissioner of Social Security, to deny her
application for social security disability insurance benefits under Title II of the Social Security
Act. According to plaintiff, defendant’s conclusion that plaintiff retained the residual functional
capacity to perform certain light and sedentary jobs available in the national economy is not
supported by substantial evidence.

As explained in more detail below, the court rejects

plaintiff’s argument and affirms defendant’s decision.

I.

Procedural Background
On March 1, 2010, plaintiff filed an application for disability insurance benefits alleging

disability beginning on September 28, 2007 based on injuries to her left shoulder and left arm.1
The application was denied both initially and upon reconsideration. At plaintiff’s request, an
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Plaintiff alleged numerous other impairments in her application that are not pertinent to the
issues here.

administrative law judge (“ALJ”) held a hearing on November 22, 2011, at which both plaintiff
and her counsel were present. On January 27, 2012, the ALJ rendered a decision in which she
determined that plaintiff was not under a “disability” as defined by the Social Security Act from
September 28, 2007 through the date last insured. Consequently, the ALJ denied all benefits to
plaintiff. After the ALJ’s unfavorable decision, plaintiff requested review by the Appeals
Council.

The Appeals Council denied plaintiff’s request for review, rendering the ALJ’s

decision the final decision of defendant.

II.

Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant’s decision is

supported by substantial evidence in the record as a whole and whether defendant applied the
correct legal standards. See Wells v. Colvin, 727 F.3d 1061, 1067 (10th Cir. 2013) (citing
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)). The Tenth Circuit has defined
“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Wilson, 602 F.3d at 1140). In the course of its review, the
court may not reweigh the evidence or substitute its judgment for that of defendant. Cowan v.
Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008).

III.

Relevant Framework for Analyzing Claim of Disability and the ALJ’s Findings
A “disability” for purposes of the Social Security Act requires both the “inability to

engage in any substantial gainful activity” and “a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
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last for a continuous period of not less than 12 months.” Bussell v. Astrue, 463 Fed. Appx. 779,
781 (10th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Act further
provides that an individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” Wilson, 602 F.3d
at 1140 (quoting Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §
423(d)(2)(A), 1382c(a)(3)(B))).
The Social Security Administration has established a five-step sequential evaluation
process for determining whether a claimant is disabled, see id. at 1139, and the ALJ in this case
followed the five-step process. 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. Id. Step one
requires the claimant to show that he or she is not presently engaged in substantial gainful
activity. Id. Here, the ALJ determined that plaintiff was not engaged in substantial gainful
activity and, thus, properly proceeded to the second step. The second step of the evaluation
process involves a determination of whether “the claimant has a medically severe impairment or
combination of impairments” that significantly limits his or her ability to perform basic work
activities. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citing 20 C.F.R. § 404.1521).
The ALJ in this case concluded that plaintiff had several severe impairments for purposes of the
regulations, including left shoulder and left wrist injuries; bipolar disorder with depressed mood;
and anxiety disorder. Thus, the ALJ proceeded to step three.

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In step three, the ALJ determines whether the impairment “is equivalent to one of a
number of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity.” Best-Willie v. Colvin, 514 Fed. Appx. 728, 733 (10th Cir. 2013).
“If the impairment is listed and thus conclusively presumed to be disabling, the claimant is
entitled to benefits.” Id. If not, the evaluation proceeds to the fourth step, where the claimant
must show that the “impairment or combination of impairments prevents him from performing
his [or her] past work.” Wilson, 602 F.3d at 1139 (quoting Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007)). With respect to the third step of the process in this case, the ALJ determined
that plaintiff’s impairments were not listed or medically equivalent to those listed in the relevant
regulations.
At the fourth step, the ALJ determined that plaintiff retained the residual functional
capacity (RFC) for light work as defined in 20 C.F.R. §§ 404.1567(b) except, as pertinent to
plaintiff’s specific arguments here, that she was limited to “no more than frequent overhead
reaching and handling with the left arm and hand; and should avoid left handed work above the
shoulder level or with the left hand more than 24 inches from the body; [should avoid] activity
requiring forceful and prolonged left handed grip; and [should avoid] repetitive activity with the
left hand and arm.” Based on evidence adduced at the hearing from a vocational expert (VE),
the ALJ concluded that plaintiff, with those limitations, could not perform her past relevant
work.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process–
determining whether the claimant has the residual functional capacity “to perform work in the
national economy, given her age, education, and work experience.” See id. (quoting Lax, 489
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F.3d at 1084). At that point, the ALJ properly shifted the burden of proof to defendant to
establish that plaintiff retains a sufficient capacity to perform an alternative work activity and
that there are sufficient jobs in the national economy for a hypothetical person with the
claimant’s impairments. Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). At this
step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that
plaintiff could perform certain light and sedentary jobs available in the national economy,
including performing work as an electrical assembler; a marker; a polisher; and a document
preparer.

IV.

Analysis of Plaintiff’s Specific Argument
In her motion, plaintiff contends that defendant’s conclusion that plaintiff retained the

residual functional capacity to perform certain light and sedentary jobs available in the national
economy is not supported by substantial evidence. Specifically, plaintiff argues that the ALJ, in
determining plaintiff’s RFC, improperly accepted the VE’s definitions of certain terms utilized
in the medical records and further erred by not posing hypothetical questions to the VE which
fully accounted for her limitations. As will be explained, the court rejects both arguments.
The ALJ’s first hypothetical to the VE assumed that plaintiff had the residual functional
capacity described in Exhibit 8F including a limitation on plaintiff’s “reaching all directions
(including overhead)” and “handling (gross manipulation)” with her left arm and hand.
Specifically, Exhibit 8F noted that plaintiff’s performance of these activities was “limited to
frequently.” The term “frequently” as defined in Exhibit 8F means “occurring one-third to twothirds of an 8-hour workday (cumulative, not continuous).” The VE testified that a person with
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plaintiff’s age, education, work experience and physical limitations could perform jobs that
existed in the national economy.
The ALJ then posed a second hypothetical question to the VE, asking whether the VE’s
answer to the first hypothetical question would change at all if, in addition to the limitations set
forth in the first hypothetical, the VE considered the further limitations noted after an
independent medical examination conducted by Dr. Paul Stein and reflected in Exhibit 5F,
including permanent work restrictions as follows:
1. Avoid left handed work above shoulder level or with the left hand more than 24
inches from the body. 2. Avoid activity requiring forceful and prolonged left
handed grip. 3. Avoid repetitive activity with the left hand and arm.
Exhibit 5F at p. 7. The VE testified that the first restriction reflected in Exhibit 5F was different
than the restriction in Exhibit 8F (in terms of overheard level versus shoulder level) but that the
difference “doesn’t make a lot of difference.” With respect to the second and third restrictions
in Exhibit 5F, the VE testified that without clarification from Dr. Stein on what he meant by
“forceful,” “prolonged” and “repetitive,” he would assume that “forceful” meant “more than 80
kilograms;” that “prolonged” meant “more than two hours at one time;” and that “repetitive”
meant “less than constant.” When asked by the ALJ if the job based was further reduced based
on Dr. Stein’s restrictions, the VE testified that “it would be about the same, but I really would
need to know more of a clarification from Dr. Stein on ‘forceful’ and ‘prolonged.’” The VE
further testified that although the DOT does not define the terms “repetitive,” “prolonged” or
“forceful,” he defined those terms based on his 20-plus years of experience in job placement,
ergonomics and other on-the-job services.

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Plaintiff contends that the ALJ, in determining plaintiff’s RFC, improperly allowed the
VE to make his own assumptions about what Dr. Stein meant when he used the terms
“repetitive,” “forceful,” and “prolonged” and that the definitions utilized by the VE are not
accurate definitions of those terms. Plaintiff does not offer any support for her argument that the
VE’s definitions were inaccurate in any respect. Moreover, it is entirely appropriate for the VE
to define the terms utilized by Dr. Stein. See Summerall v. Astrue, 2011 WL 1259705, at *11-13
(M.D. Fla. 2011) (rejecting plaintiff’s argument that it is “not the role of the VE to interpret
what a doctor meant in opining that a claimant cannot repetitively use his or her hands”;
vocational definition provided by VE was appropriate); see also Gallegos v. Barnhart, 99 Fed.
Appx. 222, 224 (10th Cir. June 2, 2004) (VE properly construed the term “repetitive” as used in
opinion of examining doctor).
Plaintiff next argues that the ALJ erred by not posing hypothetical questions to the VE
which fully accounted for her limitations, including a purported restriction on “frequent bilateral
use of the hands.” By way of background, plaintiff’s counsel at the administrative hearing asked
the VE whether the jobs identified by him that plaintiff could perform would require frequent
bilateral use of the hands. The VE testified that the jobs would likely require frequent bilateral
use of the hands. Plaintiff’s counsel then asked, in light of Dr. Stein’s restriction on “repetitive”
use of the left hand and arm, whether the jobs would be precluded if Dr. Stein defined
“repetitive” as “frequent.” The VE testified that, in such circumstance, the jobs would be
precluded. There is no evidence, of course, that Dr. Stein considered “repetitive” the same as
“frequent” and, for purposes of the Social Security Act, the terms are not synonymous.
Gallegos, 99 Fed. Appx. at 224, 226 (“frequent” and “repetitive” have distinct legal definitions;
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an activity that is performed “frequently” is performed only one-third to two-thirds of the time;
an activity that is “repetitive” is performed two-thirds to 100 percent of the time). Thus,
plaintiff’s inability to perform repetitive bilateral hand motions would not preclude a job that
required frequent bilateral use of the hands and the ALJ did not err by failing to include that
restriction in the RFC.
In sum, having carefully reviewed the record in this case and having considered
plaintiff’s arguments in light of the record, the court concludes that substantial evidence
supports defendant’s decision to deny Ms. Hastings’ application for disability benefits and that
no deviation from established legal standards occurred.

IT IS THEREFORE ORDERED BY THE COURT THAT judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) affirming the Commissioner’s final
decision.

IT IS SO ORDERED.

Dated this 6th day of December, 2013, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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