Tewksbury v. Commissioner of Social Security

Filing 13

OPINION; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTINE ANN TEWKSBURY,
Plaintiff,
v.

Case No. 1:13-cv-440
Hon. Hugh W. Brenneman, Jr.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) denying

her claim for disability insurance benefits (DIB).
Plaintiff was born on November 29, 1958 (AR 198).1 She alleged a disability onset
date of December 27, 2007 (AR 198). Plaintiff graduated from high school and had previous

employment as a receptionist, sales clerk and office clerk (AR 49, 202). Plaintiff identified her
disabling conditions as depression, anxiety, chronic pain, arthritis, backaches, headaches and mental
illness (AR 201). The administrative law judge (ALJ) reviewed plaintiff’s claim de novo and entered
a written decision denying benefits on November 30, 2012 (AR 39-51). This decision, which was
later approved by the Appeals Council, has become the final decision of the Commissioner and is
now before the Court for review.

1

Citations to the administrative record will be referenced as (AR “page #”).

I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “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.” Cutlip v. Secretary of Health & Human Services,
25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based
upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146
(6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in 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 twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923 (6th
Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:

2

The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
initially found that plaintiff had not engaged in substantial gainful activity since the alleged onset
date of December 27, 2007 and that she met the insured status requirements of the Social Security
Act through December 31, 2012 (AR 41). At the second step, the ALJ found that plaintiff had the
following severe impairments: degenerative joint disease of the bilateral knees and shoulders;

3

fibromyalgia; major depressive disorder; and generalized anxiety disorder (AR 41). At the third step,
the ALJ found that plaintiff did not have an impairment or combination of impairments that met or
equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (AR
42). Specifically, plaintiff did not meet the requirements of Listings 1.02 (major dysfunction of a
joint), 1.04 (disorders of the spine), 12.04 (affective disorders), 12.06 (anxiety related disorders), or
12.07 (somatoform disorders) (AR 42-44).
The ALJ decided at the fourth step that plaintiff:
. . . has the residual functional capacity to perform light work, which is unskilled as
defined in 20 CFR 404.1567(b) except she can only occasionally stoop, kneel,
crouch, or crawl. She can never climb ladders/ropes/scaffolds and can only
occasionally climb ramps or stairs. She should sit or stand at will, provided she not
be off task more than 10% of the work period. She should avoid exposure to
hazardous conditions. She can frequently handle with the upper extremities.
(AR 44). The ALJ also found that plaintiff was unable to perform any of her past relevant work (AR
49).

At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled, light jobs in the regional economy (defined as the State of Michigan) (AR 50).
Specifically, plaintiff could perform the following: assembly of small products (1,000 jobs locally
and 100,000 jobs nationally); garment sorter (900 jobs locally and 80,000 jobs nationally); and
delivery routing clerk (1,100 jobs locally and 100,000 jobs nationally) (AR 50). Accordingly, the
ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act,
from December 27, 2007 (the alleged onset date) through November 30, 2012 (the date of the
decision) (AR 50-51).

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III. ANALYSIS
Plaintiff raised three issues on appeal:
A.

The ALJ erred in evaluating
impairment of fibromyalgia.

plaintiff’s

Plaintiff contends that the ALJ “never evaluates [p]laintiff’s fibromyalgia and simply
states that her limitations are ‘reflected in the residual functional capacity determination.’”
Plaintiff’s Brief at p. 12 (citing AR 45). Plaintiff’s contention is without merit. As an initial matter,
neither plaintiff’s disability report nor her function report identified fibromyalgia as a disabling
condition (AR 200-08). Nevertheless, the ALJ determined that plaintiff had a severe impairment
of fibromyalgia (AR 41). In evaluating this impairment, the ALJ found that plaintiff’s “longitudinal
medical history is not necessarily consistent with her allegations of disability due to fibromyalgia
and degenerative joint disease (Ex. B1F-B3F)” (AR 45). The ALJ also observed that consultative
examiner, S. Tsekhanov, D.O., did not find objective support for the severity of plaintiff’s reported
symptoms (AR 45). Rather, Dr. Tsekhanov concluded that since plaintiff’s medications controlled
her physical symptoms, and she exhibited only minor to mild dysfunction in performing everyday
activities, plaintiff could work an 8-hour day with changing of positions every 10 to 20 minutes (AR
45, 339-42). The ALJ concluded that, “[t]hese findings are wholly consistent with the residual
functional capacity determination” and that the “[l]imitations imposed by fibromyalgia and
degenerative joint disease, moreover, are reflected in the residual functional capacity determination”
(AR 45).

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Plaintiff contends that the ALJ failed to properly evaluate her claim under Social
Security Ruling (SSR) 12-2p entitled “Titles II and XVI: Evaluation of Fibromyalgia”.2 However,
her claim is without substance. Plaintiff neither addresses the requirements of SSR 12-2p, nor how
the ALJ failed to meet those requirements. On the contrary, the ALJ followed SSR 12-2p at § VI.D.,
which states that when considering the RFC for a person with fibromyalgia (“FM”), “ we will
consider a longitudinal record whenever possible because the symptoms of FM can wax and wane
so that a person may have ‘bad days and good days.’” Although plaintiff has presented no evidence
of a diagnosis of fibromyalgia, the ALJ noted that an unidentified doctor maintained that plaintiff
had more than 11 out of 18 trigger points of pain that favored fibromyalgia (AR 47).3 In addition,
Dr. Tsekhanov observed that plaintiff “could get on and off the examination table without difficulty,
walk with a normal gait, and ambulate without an assistive device (Ex. B7F; B8F/5).” (AR 47, 340,
349). The ALJ also found that plaintiff’s refusal to have imaging studies performed to address her
pain complaints “suggested that her pain complaints were less severe than alleged (Ex. B 10F)” and
that “there are no medical records demonstrating an inability to ambulate effectively, or that her
conditions interfere seriously with her ability to independently initiate, sustain, or complete
activities” (AR 47).
2

SSR’s “are binding on all components of the Social Security Administration” and “represent
precedent final opinions and orders and statements of policy and interpretations” adopted by the agency. 20
C.F.R. § 402.35(b)(1). While SSR’s do not have the force of law, they are an agency’s interpretation of its
own regulations and “entitled to substantial deference and will be upheld unless plainly erroneous or
inconsistent with the regulation.” Kornecky v. Commissioner of Social Security, 167 Fed.Appx. 496, 498 (6th
Cir. 2006). See SSR 12-2p, 2012 WL 3104869.
3

The ALJ does not cite any record to support the finding of fibromyalgia. At the administrative
hearing, plaintiff’s counsel directed the ALJ to Exhibits 6F and 8F at p. 6 as evidence of fibromyalgia (AR
67). Neither of these exhibits include a diagnosis of fibromyalgia. Exhibit 6F is a “psychiatric/psychological
medical report” in which plaintiff reported to a psychologist that she was being treated for fibromyalgia (AR
332). Exhibit 8F reflects that plaintiff identified an “active case of fibromylagia” in her medical history (AR
348, 350).

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In addition, the ALJ addressed plaintiff’s credibility, which is particularly relevant
in fibromyalgia claims, in which there is an absence of sufficient objective medical evidence to
support the claim. See Blair v. Commissioner of Social Security, 430 Fed. Appx. 426, 430 (6th Cir.
2011). See, generally, Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (“[t]here are no laboratory
tests for the presence or severity of fibromyalgia”). An ALJ may discount a claimant’s credibility

where the ALJ “finds contradictions among the medical records, claimant’s testimony, and other
evidence.” Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997). “It [i]s
for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the
witnesses and weigh and evaluate their testimony.” Heston, 245 F.3d at 536, quoting Myers v.
Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972). The court “may not disturb” an ALJ’s credibility
determination “absent [a] compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
The threshold for overturning an ALJ’s credibility determination on appeal is so high, that in recent
years, the Sixth Circuit has expressed the opinion that “[t]he ALJ’s credibility findings are
unchallengeable,” Payne v. Commissioner of Social Security, 402 Fed. Appx. 109, 113 (6th Cir.
2010), and that “[o]n appeal, we will not disturb a credibility determination made by the ALJ, the
finder of fact . . . [w]e will not try the case anew, resolve conflicts in the evidence, or decide
questions of credibility.” Sullenger v. Commissioner of Social Security, 255 Fed. Appx. 988, 995
(6th Cir. 2007). Nevertheless, an ALJ’s credibility determinations regarding subjective complaints
must be reasonable and supported by substantial evidence. Rogers v. Commissioner of Social
Security, 486 F.3d 234, 249 (6th Cir. 2007).
Here, the ALJ evaluated plaintiff’s credibility in pertinent part as follows:
In assessing the claimant’s credibility, the claimant’s life style is not
consistent with that of a person who is totally disabled. As far as her activities of
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daily living, the claimant reported she could perform household chores, care for her
sick mother, prepare simple meals, shop for groceries, drive a car, and participate in
online college classes. Further, she reported that she enjoyed watching television,
gardening, and walking her dogs. Although she alleged difficulty concentrating and
remembering, she could use a computer and talk on the telephone. These facts raise
questions regarding the overall severity of the conditions as well as the claimant’s
subjective nature of her allegations. Finally, there is evidence that the claimant
stopped working for reasons not related to the allegedly disabling impairment(s).
(AR 48). In addition, the ALJ noted that plaintiff made inconsistent statements with respect to her
work history (i.e., while plaintiff maintained that she stopped working in December 2007 due to her
disabling condition, plaintiff testified that she was actually laid off by her employer “due to lack of
work”) and that given her long term receipt of unemployment benefits, plaintiff was less than fully
credible with either the Social Security Administration or the State of Michigan (i.e., “if the claimant
were truly unable to work at any job, she would then no longer be eligible for unemployment
benefits”) (AR 48, 62). Based on this record, there is no compelling reason to disturb the ALJ’s
credibility determination. Smith, 307 F.3d at 379. This claim of error will be denied.
B.

The substantial evidence on the record
demonstrates that controlling weight was not given
to the plaintiff’s treating sources.

Plaintiff contends that the ALJ did not point to evidence in the record to dispute the
opinions of her treating psychologist, Barbara Kennison, Ph.D., who “determined that [p]laintiff
suffers from serious complications [sic] depression including marked limitations and extreme
inability to function” Plaintiff’s Brief at p. 14 (citing AR 360-65). A treating physician’s medical
opinions and diagnoses are entitled to great weight in evaluating plaintiff's alleged disability.
Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). “In general, the opinions of treating physicians
are accorded greater weight than those of physicians who examine claimants only once.” Walters,
127 F.3d at 529-30. “The treating physician doctrine is based on the assumption that a medical
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professional who has dealt with a claimant and his maladies over a long period of time will have a
deeper insight into the medical condition of the claimant than will a person who has examined a
claimant but once, or who has only seen the claimant’s medical records.” Barker v. Shalala, 40 F.3d
789, 794 (6th Cir. 1994). See 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations”).

Under the regulations, a treating source’s opinion on the nature and severity of a
claimant’s impairment must be given controlling weight if the Commissioner finds that: (1) the
opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and
(2) the opinion is not inconsistent with the other substantial evidence in the case record.

See

Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. §
404.1527(c)(2). Finally, the ALJ must articulate good reasons for not crediting the opinion of a
treating source. See Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004);
20 C.F.R. § 404.1527(c)(2) (“[w]e will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion”).
Dr. Kennison’s opinion is set forth in a form entitled “Medical statement concerning
depression for Social Security disability claim” which the doctor completed on May 8, 2012 (AR
360-65). In this form, Dr. Kennison indicated that due to her depression, plaintiff had “marked
limitations” in two areas: “[r]estrictions of activities of daily living;” and “[d]ifficulty in maintaining
social functioning” [sic]” (AR 360, 362). Dr. Kennison also circled two limitations as “present”:
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“ deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks
in a timely manner (in work place settings or elsewhere)”; and “[r]epeated [e]pisodes of
deterioration or decompensation in work or work-like settings which cause the patient to withdraw
from the situation or experience exacerbation of signs or symptoms (which may include
deterioration of adaptive functioning)” (AR 360, 362-63). With respect to the latter limitation, Dr.
Kennison noted that plaintiff was “unable to hold a job and has great difficulty @ home” (AR 363).
The doctor checked boxes on the form indicating that plaintiff was “extremely impaired” in a
number of work-related activities such as the ability: to perform activities within a schedule,
maintain regular attendance, be punctual within customary tolerances; to work in coordination with
and in proximity to others without being distracted by them; to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; to respond appropriately
to changes in the work setting; and, to set realistic goals or make plans independently of others (AR
363-64).4 In her comments, Dr. Kennison stated that plaintiff “not employed at this time and given
limitations checked it is uncertain when she could work outside the home” (AR 364).
The ALJ addressed plaintiff’s mental impairments by reviewing a consultative
examination performed in September 2011 by David Cashbaugh, M.A., a limited licensed
psychologist (AR 46).5 The examination arose from plaintiff’s complaints of depression, suicidal
thoughts, and whole body pain (AR 46). Mr. Cashbaugh made the following observations:

4

The Court notes that the form in which Dr. Kennison circled and checked responses did not define
terms such as “marked limitations” or “extremely impaired.”
5

The ALJ erroneously referred to the examiner as “D. Cashbaugh, Ph.D.” and “Dr. Cashbaugh” (AR

46, 337).

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plaintiff’s speech was clear and understandable; she denied hallucinations or delusions; she did not
appear to be physically uncomfortable; she was oriented times three; and she could repeat five
numbers forwards and four numbers backwards (AR 46). The examiner observed that plaintiff
seemed very “mellow dramatic” [sic] (AR 46). He offered the claimant a guarded-fair prognosis and
felt that she could manage her own benefit funds without difficulty (AR 46, 332-38).
The ALJ traced plaintiff’s subsequent medical history as follows:
In January of 2012, the claimant sought in voluntary [sic] inpatient treatment
secondary to suicide attempt by prescription overdose, which appeared exacerbated
by her mother’s cancer and family issues, mood instability, medication
non-compliance, and cannabis dependence (Ex. 8F/l/2). In a discharge summary, R.
Mahabir, D.O. diagnosed the claimant with major depressive disorder, recurrent,
severe without psychotic features; generalized anxiety disorder, post-traumatic stress
disorder (PTSD), cannabis dependence, nicotine dependence, and issued a GAF
score of 50 (Ex. B8F/13). However, her symptoms improved at discharge. In fact,
she denied suicidal ideation or sleep issues. She denied feeling anxious or depressed.
Her doctor reported that her behavior as [sic] stable and uneventful with medication
compliance. She reported no medication side effects. Her affect was appropriate,
full range, and congruent with mood. Her thinking was logical and thought content
appropriate. Her short-term memory was intact and she appeared fully oriented. Her
cognitive functioning was normal and her judgment fair. She appeared alert and her
gait was good. Her doctor recommended supportive therapy and medication
compliance. She treated with prescription Cymbalta, Tegretol, and Ambien, which
was relatively effective in controlling her symptoms (Ex. B8F/14).
The claimant sought follow-up with B. Kennison, Ph.D. status-post suicide
attempt. On March 20, 2012, Dr. Kennison reported improvement in the level of her
anxiety and depression with treatment compliance. She recommended continued
supportive therapy, good self-care practices, and healthy eating, exercise and regular
sleep (Ex. B 11F/20). In April of 2012, the claimant reported feeling “better”
emotionally with prescription Effexor and her therapist maintained that her
emotional status was improving (Ex. B11F/16). Her mood appeared more stable in
May of 2012 (Ex. B11F/10). However, in September of 2012, she reported a high
level of anxiety and sadness, largely due to family issues and financial problems (Ex.
B11F/1). Her therapist recommended treatment compliance, and keeping busy with
exercise, walking her dogs, reading, or doing creative projects.
(AR 46).

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The ALJ also observed that plaintiff’s mental health care providers’ examination
findings “have generally been unremarkable” (AR 47).
Although her mood sometimes appeared depressed and anxious, her providers often
found that it was stable, better, or improved with medication compliance. Further,
her affect was often appropriate and her short-term memory intact. Her cognitive
functioning was normal and her judgment fair. Her doctor often found that family
and money issues exacerbated her symptoms (Ex. B8F/14; B 11F/16/20).
(AR 48).
After reviewing the medical record, the ALJ gave limited weight to Dr. Kennison’s
opinion that plaintiff suffered from marked limitations and extreme impairments and that plaintiff
was unemployable, stating that Dr. Kennison’s opinion “is based on a limited treating history, and
her findings are not consistent with the medical evidence of record” (AR 49). Based on the medical
record and the ALJ’s review of that record, the Court concludes that the ALJ gave good reasons for
allowing only limited weight to Dr. Kennison’s opinion that plaintiff suffered from extreme,
disabling impairments. According, plaintiff’s claim of error will be denied.
C.

The residual functional capacity (RFC)
determination by the ALJ did not accurately
portray plaintiff’s physical and mental
impairments and nonexertional limitations.

Plaintiff contends that the ALJ erred because (1) the ALJ “never accounts for any
nonexertional limitations consistent with his severe impairment findings or his finding that plaintiff
has moderate limitations in concentration persistence, or pace,” and (2) “the ALJ does not account
for exertional limitations claimant suffers from her degenerative disc disease of the bilateral knees
and shoulders as well as her severe pain from the fibromyalgia.” Plaintiff’s Brief at p. 15. This
contention is not persuasive.

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RFC is a medical assessment of what an individual can do in a work setting in spite
of functional limitations and environmental restrictions imposed by all of his medically determinable
impairments. 20 C.F.R. § 404.1545. RFC is defined as “the maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs” on a regular and continuing basis. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c); see
Cohen v. Secretary of Department of Health and Human Services, 964 F.2d 524, 530 (6th Cir.
1992).
The ALJ accounted for plaintiff’s nonexertional limitations due to her mental
impairments by restricting her to unskilled work (AR 44).6

By definition, unskilled work

incorporates some non-exertional components, consisting of “work which needs little or no
judgment to do simple duties that can be learned on the job in a short period of time.” 20 C.F.R. §
404.1568(a). Such work involves simple and routine tasks. Allison v. Apfel, No. 99-4090, 2000 WL
1276950 at *4 (6th Cir. Aug. 30, 2000). See generally, Smith v. Halter, 307 F.3d 377, 378-79 (6th
Cir. 2001) (where ALJ found that claimant “often” suffered problems with concentration, limiting
claimant to jobs that are routine and low stress and which do not involve intense interpersonal
confrontations appropriately addressed that impairment). The ALJ accounted for the balance of
plaintiff’s nonexertional limitations by restricting her work which: involved only occasional
stooping, kneeling, crouching, or crawling; never involved climbing ladders/ropes/scaffolds and only
occasionally involved climbing ramps or stairs; avoided exposure to hazardous conditions; and

6

Nonexertional limitations imposed by impairments and related symptoms, such as pain, include:
“difficulty functioning because you are nervous, anxious, or depressed;” “difficulty maintaining attention or
concentrating;” and “difficulty understanding or remembering detailed instructions.” 20 C.F.R. §
404.1569a(c)(i)-(iii).

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involved only frequent handling with the upper extremities.”

7

Finally, the ALJ accounted for

plaintiff’s exertional limitations and her combined exertional and nonexertional limitations (such
as pain) by restricting her to light work (i.e., lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds, 20 C.F.R. § 404.1568(b)), and to jobs which
allowed her to sit or stand at will, provided she not be off task more than 10% of the work period

(AR 44).8 The vocational expert (VE) identified 3,000 unskilled, local jobs which could be
performed by a person with plaintiff’s RFC (AR 93-95). Accordingly, this claim of error will be
denied.
IV. CONCLUSION
The ALJ’s determination is supported by substantial evidence. The Commissioner’s
decision will be AFFIRMED pursuant to 42 U.S.C. § 405(g). A judgment consistent with this
opinion will be issued forthwith.

Dated: September 15, 2014

/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge

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Nonexertional limitations also include: environmental limitations, i.e., “difficulty tolerating some
physical feature(s) of certain work settings” such as the inability to tolerate dust or fumes; and “difficulty
performing the manipulative or postural functions of some work such as reaching, handling, stooping,
climbing, crawling, or crouching.” 20 C.F.R. § 404.1569a(c)(v)-(vi).
8

Under the regulations, exertional limitations imposed by impairments and symptoms such as pain
“affect only your ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying,
pushing, and pulling).” 20 C.F.R. § 404.1569a(b). Finally, combined exertional and nonexertional
limitations “affect your ability to meet both the strength and demands of jobs other than strength demands.”
Id. at § 404.1569a(d)

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