Newton v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 5/24/2019. The final decision of the Commissioner is AFFIRMED. Judgment is GRANTED for the Commissioner. cc: Counsel (CDF)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:18-CV-00076-HBB
PARRISH L. NEWTON
PLAINTIFF
VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Parrish L. Newton seeking judicial review of
the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both Newton (DN 16)
and Defendant (DN 17) have filed a Fact and Law Summary. For the reasons that follow, the
final decision of the Commissioner is AFFIRMED, and judgment is GRANTED for the
Commissioner.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 10). By Order entered August
31, 2018 (DN 11), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.
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FINDINGS OF FACT
Plaintiff filed an application for a period of disability and disability insurance benefits on
August 14, 2014 (Tr. 286-310). Plaintiff alleged that she became disabled on November 23, 2010
as a result of high blood pressure, depression, and back problems (Tr. 329). Administrative Law
Judge John R. Price (AALJ@) conducted a hearing on April 10, 2017 via video conference. Newton
appeared in Bowling Green, KY and the ALJ presided from Louisville, KY. Newton was present
and represented by Charles Burchett. Also present and testifying was Tina Stambaugh, an
impartial vocational expert.
In a decision dated June 7, 2017, the ALJ evaluated this adult disability claim pursuant to
the five-step sequential evaluation process promulgated by the Commissioner (Tr. 15-31). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since February 26,
2013, the alleged onset date (Tr. 17). At the second step, the ALJ determined that Plaintiff=s
borderline intellectual functioning, depression, degenerative disc disease with herniation
status/post discectomy, degenerative joint disease knees and ankles, carpel tunnel/de Quervain’s
status/post surgeries of left wrist with tendonitis vs. arthritis, injury to right elbow, and obesity
status/post lap band are Asevere@ impairments within the meaning of the regulations (Tr. 17).
Notably, at the second step, the ALJ also determined that Plaintiff=s history of UTI’s, gallstones,
and the removal of her gallbladder are Anon-severe@ impairments within the meaning of the
regulations (Tr. 18).
At the third step, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 (Tr. 18).
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At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of sedentary work (Tr. 21). More specifically, the ALJ found that Plaintiff
requires 30 minute sit stand intervals taking a minute or two to change position; no ladders, ropes,
or scaffolds; only occasional ramps and stairs; occasional kneeling, stooping, crouching, and
crawling; she is capable of simple routine work where there are no fast-paced production-rate
demands; occasional (superficial) interaction with coworkers and supervisors and avoiding the
general public (Tr. 21). Relying on testimony from the vocational expert, the ALJ found that
Plaintiff is unable to perform any of her past relevant work (Tr. 29).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 29). The ALJ found that Plaintiff is capable of performing a significant number of jobs that
exist in the national economy (Tr. 29). Therefore, the ALJ concluded that Plaintiff has not been
under a Adisability,@ as defined in the Social Security Act, from February 26, 2013 through the date
of the decision (Tr. 30).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
282-83). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 13).
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
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680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists when
a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-3). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
of the Commissioner’s decision). Thus, the Court will be reviewing the decision of the ALJ, not
the Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[I]nability 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 which has lasted or can be
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expected to last for a continuous period of not less than twelve (12)
months.
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)
Is the claimant engaged in substantial gainful activity?
2)
Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?
3)
Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?
4)
Does the claimant have the residual functional capacity to
return to his or her past relevant work?
5)
Does the claimant’s residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?
Here, the ALJ denied Plaintiff=s claim at the fifth step.
Newton challenges the ALJ’s finding with a single claim, arguing that the ALJ “committed
reversible error by failing to elicit vocational expert testimony consistent with the findings of the
adjudged Residual Functional Capacity (RFC).” Specifically, Newton contends that the ALJ’s
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hypothetical questions to the impartial vocational expert at the administrative hearing allows for a
greater capacity for standing, walking, and lifting than the ALJ’s RFC finding indicates.
The following exchange between the ALJ and vocational expert occurred at the
administrative hearing:
ALJ: Please assume an individual aged 36 to 42, with let’s assume
a limited education, and past work as described to you, and let’s
assume the individual can perform a limited range of sedentary
work, lifting no more than 10 pounds maximum occasionally, five
pounds frequently, with standing and walking two hours in an eight
hour day, sitting six hours in an eight hour day, with an option to sit
and stand at 30 minute intervals, taking a minute or two to change
position, with no ladders, ropes, and scaffolds, only occasional
ramps and stairs, and occasional stooping, kneeling, crouching,
crawling, capable of simple, routine work where there are no fastpaced production related demands, maybe occasional superficial
interaction with coworkers and supervisors, and let’s just assume
she should avoid the general public. With these limitations would
such an individual be able to perform the past work this individual
performed?
Vocational Expert: No, your honor. That will eliminate the past
work both as actually and generally performed.
ALJ: Okay, will there be other work in the national economy such
an individual could perform?
Vocational Expert: Yes, your honor in my opinion it would be a
limited range of other work at the sedentary exertional level. That
would be unskilled.
(Tr. 70). The vocational expert went on to name several jobs a person with the proposed
hypothetical limitations could perform including, factory helper (35,000 jobs nationally), hand
packers (22,000 jobs nationally), inspectors and sorters (14,000 jobs nationally). Newton takes
issue with this question because it inquires about an individual able to stand and walk two hours
in an eight-hour day, sit six hours a day, with an option to sit and stand at 30-minute intervals.
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Newton argues the question is inconsistent with the ALJ’s finding that she is capable of sitting for
at least four hours a day during the majority of the work day (DN 16 PageID # 1209).
A full range of sedentary work includes lifting no more than 10 pounds at a time,
occasionally lifting items commonly found in work environments such as docket files, ledgers,
and small tools. 20 C.F.R. §§ 404.1567(a); 416.967(a). Occasional standing and walking is also
required. Id. In this context, occasional means occurring up to one-third of the time, or two
hours in an eight-hour workday. Social Security Ruling 96-9p. Here, the ALJ’s RFC finding
indicates Newton can perform sedentary work that allowed Newton to stand for up to 30-minute
intervals before sitting down again (Tr. 21). As stated by the Commissioner, this does not require
Newton to alternate sitting and standing every 30 minutes, it merely gives her the option to do so
as needed.1 Thus, the ALJ’s RFC finding, his hypothetical posed to the vocational expert, and his
reliance on the vocational expert’s testimony are not inconsistent.
Newton also challenges the ALJ’s hypothetical question regarding lifting requirements.
As can be seen in the above block quotation, the hypothetical question allowed for lifting “no more
than 10 pounds maximum occasionally, five pounds frequently” (Tr. 70).
This is a more
strenuous lifting requirement than allowed by the regulations. Sedentary work may only involve
lifting “no more than 10 pounds at a time and occasionally lifting articles like docket files, ledgers,
and small tools.” 20 C.F.R. § 404.1567. The ALJ found that Newton was capable of completing
sedentary work, as defined in the regulations, based on the vocational expert’s responses to his
1 The ALJ appears to have inadvertently omitted the word “option” from his opinion (Tr. 21). However, both
parties agree that the word should appear. See DN 16 PageID # 1309, fn 1 (Plaintiff); DN 17 PageID # 1317, fn 3
(Defendant).
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hypothetical questions. However, Newton argues because the vocational expert responded to the
ALJ’s erroneous question with overly strenuous lifting requirements, there is no evidentiary basis
for the ALJ to conclude that Newton can perform sedentary work (DN 16 PageID # 1310).
While the undersigned agrees that the ALJ’s hypothetical question was erroneous, any error
committed was harmless. Despite the ALJ’s flawed question, it is clear the vocational expert
testified that Newton is capable of performing sedentary work. The vocational expert identified
three jobs (factory helper, hand packer, and inspectors and sorters) that Newton could perform.
The vocational expert went on to explicitly describe these occupations as “rated sedentary in the
Dictionary of Occupations Titles. These are all unskilled jobs with SVP’s of 2.” He reiterated
that each job is classified as sedentary when describing them individually later in his testimony.
(Tr. 70-71). An error is harmless if the record is fully developed as to all factual issues essential
to the decision and there is no substantial doubt that the agency would have made the same ultimate
finding with the erroneous, subsidiary finding removed. Pechatsko v. Comm’r of Soc. Sec., 369
F. Supp. 2d 909 (N.D. Ohio 2004).
Despite the flawed premise of his question, the ALJ
appropriately based his RFC finding on the vocational expert’s testimony that Newton is capable
of completing sedentary work. The error does not require remand.
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ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgment is GRANTED for the Commissioner.
May 24, 2019
Copies: Counsel
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