Defrain v. Social Security, Commissioner of

Filing 39

OPINION and ORDER Denying Plaintiff's 27 MOTION for Summary Judgment, Granting Defendant's 36 MOTION for Summary Judgment, and Dismissing Action. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNIFER SUE DEFRAIN,
Plaintiff,

CASE NO. 14-10002
HON. DENISE PAGE HOOD

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING ACTION
I.

BACKGROUND/FACTS

A. Procedural History
On January 2, 2014, Plaintiff Jennifer Sue Defrain (“Defrain”) brought this
action pursuant to 42 U.S.C. § 405(g) seeking reversal of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying Defrain’s
applications for Social Security Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under the Social Security Act. Both parties
filed motions for summary judgment. (Doc # 27; Doc # 36)
Defrain filed an application for DIB and SSI in March 2011 alleging
disability beginning on February 12, 2011. (Administrative Transcript “Tr.” 1851

98) Her claims were denied, and she requested a hearing before an administrative
law judge (“ALJ”). (Tr. 121-39, 142-43) On August 14, 2012, the ALJ held a
hearing at which Defrain and a Vocation Expert (“VE”) testified. (Tr. 31-71) The
ALJ issued a decision on August 24, 2012 finding that Defrain was not disabled.
(Tr. 8-29) The ALJ’s decision became the final decision of the Commissioner on
October 28, 2013, when the Appeals Council denied Defrain’s request for review.
(Tr. 1-3)
B. ALJ’s Decision
A “disability” is the “inability 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 expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner determines whether a claimant is disabled by analyzing five
sequential steps. First, if the claimant is “doing substantial gainful activity,” he or
she will be found not disabled. 20 C.F.R. § 416.920(a)(4). Second, if the claimant
has not had a severe impairment 1 or a combination of such impairments for a
continuous period of at least 12 months, he or she will be found not disabled. Id.
Third, if the claimant’s severe impairments meet or equal the criteria of an
impairment set forth in the Commissioner’s Listing of Impairments, he or she will
1

A severe impairment is one that “significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 416.920(c).
2

be found disabled. Id. If the fourth step is reached, the Commissioner considers
its assessment of the claimant’s residual functional capacity (“RFC”), and will find
the claimant is not disabled if he or she can still do relevant work. Id. At the final
and fifth step, the Commissioner reviews the claimant’s RFC, age, education, and
work experience, and determines whether the claimant could adjust to other work.
Id. The claimant bears the burden of proof throughout the first four steps, but the
burden shifts to the Commissioner if the fifth step is reached. Preslar v. Sec’y of
Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). The same standards
apply to both claims for DIB and applications for SSI. See 20 C.F.R. §§ 404.1520,
416.920.
Applying this framework, the ALJ concluded that Defrain was not disabled.
At the first step, he found that Defrain had not engaged in substantial gainful
activity since the alleged onset date. (Tr. 13) At the second step, he found that
Defrain had severe impairments of “fibromyalgia, carpal tunnel syndrome, sleep
apnea, degenerative disc disease, valvular heart disease, peripheral vascular
disease, obesity, temporomandibular joint dysfunction, and migraine headaches.”
(Tr. 14) At the third step, the ALJ concluded that none of Defrain’s impairments,
either alone or in combination, met or medically equaled the severity of the listed
impairments. (Tr. 16)

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At the fourth step, the ALJ found that Defrain had the RFC to perform
sedentary work with several exertional and non-exertional limitations:
she would require the ability to alternate between sitting
and standing at will, provided she is not off task more
than 10 percent of the work period. She must avoid
repetitive rotation, extension, and flexion of her
neck.
The claimant can occasionally perform overhead
reaching activities with her bilateral upper extremities.
She can only occasionally climb ramps and stairs but can
never climb ladders, ropes, or scaffolds. The claimant
can occasionally balance, stoop, kneel, and crouch. She
can have no exposure to vibration and must work in a
quiet work environment. She can occasionally use foot
controls with her bilateral lower extremities. The
claimant can have no exposure to unprotected heights
and exposure to moving machinery.
Giving the
claimant the benefit of the doubt, she is limited to simple
tasks. She would be unable to perform at a production
rate pace, such as assembly line work, but she could
perform goal-oriented work. The claimant can have
occasional interaction with supervisors, coworkers, and
the public. She is limited to one and two-step tasks. The
claimant is limited to low stress jobs, defined as having
only occasional decision making, occasional changes in
work setting, and the occasional use of judgment.
(Tr. 17) Due to these limitations, the ALJ found that Defrain could not perform
any past relevant work as a nurse aid, cashier, or assistant store manager due to the
skill levels and exertional demands of those positions. (Tr. 23)
After considering Defrain’s age (30 years old at the alleged onset date),
education (eighth grade education and some vocational training), work experience,
RFC, and testimony from the VE, the ALJ found at the fifth step that Defrain could
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perform a significant number of other jobs in the regional and national economy,
including inspector (1,000 jobs in Michigan), general office clerk (3,000 jobs in
Michigan), and account clerk (1,000 jobs in Michigan). (Tr. 23-24) The ALJ
concluded that Defrain was not disabled. (Tr. 24)
Defrain seeks reversal of the final decision of the Commissioner on two
grounds arguing that: (1) the ALJ erred at the fourth step by not giving controlling
weight to the opinion of her treating physician in determining her RFC, and by not
providing good reasons for failing to do so; and (2) the ALJ erred at the fifth step
by failing to resolve conflicts between the VE’s testimony and the Dictionary of
Occupational Titles (“DOT”), and by not specifying the frequency of the sit-stand
option.
II. ANALYSIS
A. Standard of Review
Judicial review of the Commissioner’s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
The credibility findings of an ALJ must not be discarded lightly and should be
accorded great deference. Hardaway v. Sec’y of Health & Human Servs., 823 F.2d
922, 928 (6th Cir. 1987). A district court’s review of an ALJ’s decision is not a de
novo review. The district court may not resolve conflicts in the evidence nor
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decide questions of credibility. Garner, 745 F.2d at 387. The decision of the
Commissioner must be upheld if supported by substantial evidence, even if the
record might support a contrary decision or if the district court arrives at a different
conclusion. Smith v. Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Substantial evidence
is “more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm’r of Soc. Sec., 484 F.3d 234, 241 (6th Cir. 2007)
(internal quotation marks and citation omitted).
The significant deference accorded the Commissioner’s decision is
conditioned on the ALJ’s adherence to governing standards. “Chief among these is
the rule that the ALJ must consider all evidence in the record when making a
determination, including all objective medical evidence, medical signs, and
laboratory findings.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir.
2014); see also, Rogers, 486 F.3d at 249. In other words, substantial evidence
cannot be based upon fragments of the evidence, and “must take into account
whatever in the record fairly detracts from its weight.” Garner, 745 F.2d at 388
(internal quotation marks and citation omitted).
The Commissioner must also adhere to its own procedure, but failure to do
so constitutes only harmless error unless the claimant has been prejudiced or
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deprived of substantial rights. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654
(6th Cir. 2009). On the other hand, substantial errors like ignoring evidence in the
record or failing to follow the treating physician rule are not harmless. Id.; Cole v.
Astrue, 661 F.3d 931, 940 (6th Cir. 2011); Gentry, 741 F.3d at 729.
B. Weight Accorded to Treating Physician’s Opinion
Defrain first argues that the ALJ erred by failing to give controlling weight
to the opinion of her treating neurologist, Dr. Gavin I. Awerbuch (“Dr.
Awerbuch”), in determining her RFC, and by not providing good reasons for
failing to do so. Defrain asserts that the ALJ “never specified which parts of the
opinions . . . he accorded ‘some weight’ [to], nor which parts he found to be
consistent or inconsistent with the medical evidence or the longitudinal treatment
record, nor what those consistencies or inconsistencies included, nor any basis in
the evidence to support finding any inconsistency.”
The Commissioner responds that the ALJ sufficiently set forth his rationale
for the weight that he gave to each portion of Dr. Awerbuch’s opinion, which is
evident upon review of the ALJ’s discussion of the evidence.
The “treating physician rule” requires an ALJ to give controlling weight to a
treating physician’s opinions regarding the nature and severity of a claimant’s
condition when those opinions are well-supported by medically acceptable clinical
and diagnostic evidence, and not inconsistent with other substantial evidence.
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Gentry, 741 F.3d at 727-29; Rogers, 486 F.3d at 242-43. If an ALJ gives less than
controlling weight to a treating source’s opinion, he must provide “good reasons”
for doing so that are “supported by the evidence in the case record, and . . .
sufficiently specific to make clear to any subsequent reviewer the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013)
(quoting 20 C.F.R. § 404.1527(c)(2); Social Security Ruling (“SSR”) 96-2p, 1996
WL 374188, at *5 (July 2, 1996)). Courts will not hesitate to remand when the
ALJ failed to articulate “good reasons” for not fully crediting the treating
physician’s opinion. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir.
2004).

However, the regulations do not require the ALJ to engage in “an

exhaustive factor-by-factor analysis” of each of the factors listed in 20 C.F.R. §
404.1527 (the length, frequency, nature, and extent of the treatment relationship;
the supportability and consistency of the physician’s conclusions; and the
specialization of the physician). Francis v. Comm’r of Soc. Sec., 414 F. App’x
802, 804 (6th Cir. 2011); Brock v. Comm’r of Soc. Sec., 368 F. App’x 622, 625
(6th Cir. 2010).
The opinion specifically at issue here is an undated, one-page Medical
Source Statement completed by Dr. Awerbuch. (Tr. 442) Dr. Awerbuch listed
Defrain’s diagnoses as fibromyalgia, carpel tunnel syndrome, cervical facet
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syndrome, chronic migraines, excessive daytime somnolence, depression, and
adjustment disorder. Dr. Awerbuch opined that Defrain’s impairments resulted in
limitations to lifting less than 10 pounds, standing and walking for a total of 2
hours in an 8-hour workday, sitting less than 6 hours in an 8-hour workday with
the need to alternate, moderate limitation in upper and lower extremities, and “no
keyboarding, bright lights, noises, or fumes.” Dr. Awerbuch also opined that the
limitations had been present since 2009 and would likely disrupt a regular job
schedule with low physical demands “˃40 hrs” out of the 160 working hours in a
month.
At the hearing, the ALJ asked the VE to assume a hypothetical individual of
Defrain’s age, education, with her past jobs, and with the following limitations:
assume that the hypothetical individual is limited to less
than a full range of sedentary with the further limitations
of the individual would require a sit/stand option which
would allow a person to sit or stand alternately at will
provided that the person is not off task more than 10% of
the work period; the individual would avoid repetitive
rotation, flexion, or extension of the neck; the individual .
. . would only be able to occasionally reach bilaterally
overhead; the individual would only occasionally be
able to climb ramps and stairs; never climb ladders or
scaffolds; occasionally balance, stoop, kneel, crouch; the
individual would be limited to a workplace that has no
vibration and the noise level would be quiet; the
individual would be limited to simple tasks; . . . the
individual would not be able to perform at a production
rate pace such as assembly line work, but could perform
goal oriented work; the individual would interact
occasionally with supervisors, coworkers, and the public.
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. . . [T]he individual would have foot control operation . .
. at occasional; the individual would avoid all
unprotected heights and exposure to moving machinery;
again the work would be limited to one- or two-step
tasks; . . . the work would be considered a low-stress job
defined as . . . having just occasional decision making
instances, occasional use of judgment.
(Tr. 66-67) The VE testified that the individual with all of the aforementioned
limitations would be able to perform the sedentary, unskilled work of inspector,
general office clerk, or account clerk. (Tr. 67-68) During cross-examination,
Defrain’s attorney asked the VE what percentage of the time a person could be offtask on a continuing basis before it became work preclusive. The VE replied,
“Generally 20%.” (Tr. 69) Defrain’s attorney then asked how many days per
month could a person be absent on a continuing basis before it became work
preclusive. The VE replied, “One day per month if it’s unpredictable.” Id.
In his decision, the ALJ accorded “little weight to Dr. Awerbuch’s opinion
that the claimant can only work less than 40 hours a week, as it is an issue reserved
for the commissioner and inconsistent with the claimant’s longitudinal treatment
record.” (Tr. 22) The ALJ accorded “some weight to the functional limitations
provided by Dr. Awerbuch to the extent they are consistent with the medical
evidence of record.” Id. The Court finds that the ALJ’s decision to reject parts of
Dr. Awerbuch’s opinion was supported by substantial evidence in the record, and

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that the ALJ provided “good reasons” in his decision sufficient to inform Defrain
of why aspects of Dr. Awerbuch’s opinions were not being credited.
The Court finds it significant that the ALJ did not “reject wholesale” the
conclusions of Dr. Awerbuch and incorporated many of them throughout his
decision. See Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391-92 (6th Cir.
2004).

Dr. Awerbuch diagnosed Defrain with fibromyalgia, carpel tunnel

syndrome, cervical facet syndrome, chronic migraines, excessive daytime
somnolence, depression, and adjustment disorder. In turn, the ALJ found that
Defrain had fibromyalgia, carpal tunnel syndrome, degenerative disc disease,
migraine headaches, and sleep apnea—as well as additional findings of valvular
heart disease, peripheral vascular disease, obesity, and temporomandibular joint
dysfunction. The ALJ further gave Defrain the benefit of the doubt on issues
related to depression and adjustment disorder, limiting Defrain to simple one- or
two-step tasks, low-stress jobs with only occasional decision making and use of
judgment, and only occasional interaction with others. In accordance with Dr.
Awerbuch’s opinion that Defrain could lift less than 10 pounds, and could stand
and walk for a total of 2 hours in an 8-hour workday, the ALJ limited Defrain to
less than a full range of sedentary2 work. In accordance with Dr. Awerbuch’s

2

The regulations provide that sedentary work includes lifting no more than 10 pounds at a time,
and standing and walking no more than approximately 2 hours in an 8-hour workday. 20 C.F.R.
§§ 404.1567(a), 416.967(a); Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5.
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opinion that Defrain needed to alternate between sitting and standing, the ALJ
provided that Defrain would require the option to sit or stand alternately at will.3
In accordance with Dr. Awerbuch’s opinion that Defrain had moderate limitations
in her upper extremities, the ALJ limited Defrain to only occasional bilaterally
overhead reaching. In accordance with Dr. Awerbuch’s opinion that Defrain had
moderate limitations in her lower extremities, the ALJ limited Defrain to only
occasional foot control operation and occasional climbing of ramps and stairs, as
well as no climbing of ladders or scaffolds. In accordance with Dr. Awerbuch’s
opinion that Defrain could not be exposed to bright lights, noises or fumes, the
ALJ limited Defrain to no exposure to vibration or moving machinery, no
assembly line work, and to a quiet work environment. 4
Defrain asserts that the ALJ ignored documented medical signs and
laboratory findings, specifically her limitation of cervical and lumbar motion,
lower extremity weakness with diminished sensation and reflexes and positive
straight leg raising, palpable muscle spasms, positive trigger points, EMG
3

Sedentary work includes approximately 6 hours of sitting in an 8-hour workday. See id. Dr.
Awerbuch opined that Defrain was limited to sitting less than 6 hours in an 8-hour workday.
However, the ALJ included the option to sit or stand at will, so that Defrain would have the
option of sitting for less than 6 hours in an 8-hour workday.
4

The Court further notes that, at the hearing, the VE testified that a person could be off-task on a
continuing basis for 20% of the time before it became work preclusive (20% of 160 working
hours in a month is 32 working hours). The VE further testified that a person could be absent for
one day (8 working hours) per month before it became work preclusive. That adds up to 40
working hours per month disrupted before becoming work preclusive, which is close to Dr.
Awerbuch’s estimate that Defrain’s limitations would likely disrupt “˃40 hrs” out of the 160
working hours in a month.
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performed by Dr. Awerbuch, and lumbar and cervical spine MRIs ordered by Dr.
Awerbuch. However, the ALJ expressly considered all of these in his decision.
The ALJ acknowledged evidence of limited range of cervical and lumbar motion,
lower extremity weakness with diminished sensation and reflexes, positive straight
leg raising, palpable muscle spasms, and positive trigger points. (Tr. 19-20) The
ALJ discussed the EMG findings, which showed bilateral L5 radiculopathy and
peripheral neuropathy. (Tr. 21, 439) The ALJ discussed the lumbar and cervical
spine MRIs, which showed mild and minimal findings respectively. (Tr. 20, 441,
360) The Court concludes that Defrain has failed to identify any evidence that the
ALJ did not discuss and/or that would have indicated a need for greater or different
limitations than those the ALJ adopted as discussed above.
Next, Defrain contends that the ALJ misrepresented Dr. Awerbuch’s opinion
because Dr. Awerbuch only opined that Defrain’s limitations would likely disrupt
a regular job schedule with low physical demands “˃40 hrs” out of the 160
working hours in a month—not that Defrain could only work less than 40 hours a
week. However, the Commissioner notes, and the Court agrees, that the ALJ
nevertheless captured the essence of Dr. Awerbuch’s opinion in describing this
limitation as an ability to work less than 40 hours per week, which is inferable
from Dr. Awerbuch’s statement that Defrain’s limitations would likely disrupt the
demands of work for more than 40 hours out of 160 hours.
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The ALJ was not required to defer to Dr. Awerbuch’s opinion that Defrain’s
limitations would likely disrupt a regular job schedule with low physical demands
“˃40 hrs” out of the 160 working hours in a month. This portion of the opinion is
more an “opinion of disability” (not entitled to deference and reserved for the
Commissioner under the regulations) than it is a medical opinion (an opinion
reflecting judgments about the nature or severity of Defrain’s impairments; her
symptoms, diagnoses, or prognoses; or her specific restrictions or abilities). See 20
C.F.R. § 416.927(c), (d)(1); Gayheart, 710 F.3d at 375.
There is substantial evidence supporting the ALJ’s determination that this
portion of Dr. Awerbuch’s opinion was not consistent with the record as a whole.
The ALJ noted that in May 2011, Defrain reported to Dr. Awerbuch that she had
started an exercise routine and was seeing a trainer every day of the week, using an
elliptical machine, using a treadmill, and lifting weights. (Tr. 20, 437) The ALJ
noted that in September 2011, Defrain complained of becoming tired easily but
reported that she continued to exercise and that her medication was working okay.
(Tr. 20, 436) The ALJ noted that a CT of Defrain’s brain, dated September 4,
2011, was normal. (Tr. 20, 423) The ALJ noted that Defrain reported adequate
pain relief with her medications and improved activity levels without adverse
effects during a visit with Dr. Awerbuch on December 5, 2011, despite reports that
she had increased her activity and her pain had worsened. (Tr. 20-21, 434-35) The
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ALJ noted that in March 2012, Defrain reported good results from cervical facet
injections, which had been beneficial in decreasing the severity of her symptoms.
(Tr. 21, 429, 431) The ALJ found that Defrain’s medications had been relatively
effective in controlling her symptoms. (Tr. 22)
The ALJ also considered Defrain’s testimony at the hearing and found that
she was not fully credible as to the extent of her impairments in light of the
objective medical evidence in the record. (Tr. 22) The ALJ discussed his reliance
on Defrain’s ability to take care of her four young children as a single mother
without any particular assistance. Id. The ALJ also noted that Defrain’s daily
activities were not limited to the extent one would expect. Id. These daily
activities included preparing her children for school, preparing simple meals,
cleaning, folding laundry, driving a car, grocery shopping, reading, watching
television, carrying out a daily exercise routine, using an elliptical machine and a
treadmill, lifting weights, and increasing her activity level in December 2011. (Tr.
22, 59-60, 62-64, 250-57, 434, 436-37)
Because Dr. Awerbuch’s opinion is inconsistent with other substantial
evidence in the case record, and his conclusion regarding the number of hours
Defrain would be able to work addresses an issue reserved to the Commissioner,
the Court concludes that the ALJ did not err and acted within his discretion in
refusing to defer to some portions of Dr. Awerbuch’s opinion as discussed above.
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The Court further concludes that the ALJ provided “good reasons” in his decision,
apparent upon reading his detailed discussion of the evidence in the record, and
sufficient to inform Defrain of why aspects of Dr. Awerbuch’s opinions were not
being credited.
C. ALJ’s Step 5 Determination
Defrain next argues that the ALJ erred at the fifth step by failing to resolve
conflicts between the VE’s testimony and the DOT, and by not specifying the
frequency of the sit-stand option. Defrain asserts that the ALJ’s failure to request
and the VE’s failure to provide specific citations to the DOT make it impossible to
support the VE’s testimony as required by SSR 00-4p.
The Commissioner responds that the ALJ was not obligated to obtain DOT
citations, or to even rely on DOT information. The Commissioner argues that
Defrain’s argument is meritless where her attorney made no effort at the hearing to
identify any inconsistency between the VE’s testimony and the DOT.
Social Security regulations do not oblige the ALJ or the VE to rely on the
DOT. Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003). The fact that a VE
may use different terminology than the one found in the DOT to describe
employment positions does not establish a conflict between the two sources of
evidence. Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009). The
regulations do not require the ALJ to conduct his own investigation into the VE’s
16

testimony to determine its accuracy, especially when the claimant or her
representative fail to bring any conflict to the attention of the ALJ. Ledford v.
Astrue, 311 F. App’x 746, 757 (6th Cir. 2008) (“Furthermore, neither the testimony
of a vocational expert nor the occupational descriptions in the Dictionary of
Occupational Titles necessarily trumps the other.”); see also, Sims v. Comm’r of
Soc. Sec., 406 F. App’x 977, 982 (6th Cir. 2011) (“Yes, the vocational expert’s
testimony could have been further refined; but as the district court pointed out,
plaintiff’s counsel had the opportunity to cross-examine, but asked only one
question and did not probe the deficiency now identified on appeal.”)
In this case, after considering the hypotheticals and limitations discussed
above, the VE testified that the hypothetical individual could perform the
sedentary, unskilled work of inspector, general office clerk, and account clerk.
The ALJ asked the VE whether her testimony was consistent with the DOT, and
the VE replied, “Yes.” (Tr. 67) Defrain’s attorney had the opportunity to crossexamine the VE and asked her three questions, none of them regarding any conflict
with the DOT. (Tr. 69)
The Court finds that the ALJ satisfied his obligation under SSR 00-4p by
asking the VE whether her testimony was consistent with the DOT. The VE
credibly testified that it was consistent, and Defrain was afforded a full opportunity
to cross-examine the VE. The ALJ had no duty to interrogate the VE further. The
17

Court concludes that Defrain has failed to show that the ALJ erred in evaluating
the testimony of the VE, and failed to show any apparent or actual conflict between
the VE’s testimony and the DOT at the hearing or now.
Defrain’s last argument is that the ALJ’s failure to specify the frequency of
Defrain’s need to alternate between sitting and standing as required by SSR 96-9p
shows that his ultimate finding at the fifth step was not supported by substantial
evidence. The Commissioner responds that the ALJ was specific as to the sit-stand
frequency in determining that Defrain would need to alternate sitting and standing
“at will.”

Courts in this district have found that the ALJ need not specify

increments of sitting and standing when, as here, the ALJ specifically finds that the
claimant must be able to alternate sitting and standing “at will.” See Kepke v.
Comm'r of Soc. Sec., No. 13-13944, 2015 WL 348747, at *13 (E.D. Mich. Jan. 23,
2015), aff'd, 636 F. App'x 625 (6th Cir. 2016) (with the Sixth Circuit adding that
“[b]ecause Kepke failed to probe this alleged deficiency at the ALJ hearing, she
forfeited this argument.”). Defrain’s attorney did not probe for more specifics on
the frequency of the sit-stand option at the hearing. The Court finds that the ALJ
satisfied his obligation under the regulations by specifying that Defrain would need
to alternate between sitting and standing at will.
The Court concludes that the VE’s testimony constitutes substantial
evidence supporting the ALJ's finding at the fifth step of the disability analysis.
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III. CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiff Defrain’s Motion for Summary
Judgment (Doc # 27) is DENIED.
IT IS FURTHER ORDERED that Defendant Commissioner’s Motion for
Summary Judgment (Doc # 36) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.

Dated: March 22, 2017

s/Denise Page Hood
Chief, U.S. District Court

I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 22, 2017, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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