Burton v. Colvin

Filing 17

FINAL JUDGMENT in favor of Antonio Eugene Burton against Social Security Administration Commissioner c/o General Counsel. The case is REMANDED for further proceedings. CASE CLOSED. Signed by Jane M Virden on 9/10/13. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

ANTONIO EUGENE BURTON

PLAINTIFF

V.

NO. 4:13CV00054-JMV

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

FINAL JUDGMENT
This cause is before the court on the Plaintiff’s complaint for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration denying
his claims for a period of disability and disability insurance benefits and for supplemental
security income. The parties have consented to entry of final judgment by the United States
Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of
Appeals for the Fifth Circuit. The court, having reviewed the administrative record, the briefs of
the parties, and the applicable law and having heard oral argument, finds as follows, to-wit:
Consistent with the court’s ruling from the bench following the parties’ oral argument,
the court finds that the Commissioner’s decision is not supported by substantial evidence in the
record. Specifically, at step five of the sequential evaluation process, the ALJ relied upon
vocational expert testimony that the claimant could perform other work in the national economy,
considering his RFC for sedentary work, except that he required “a sit/stand option” and had
certain nonexertional limitations. Interestingly, in her opinion, the ALJ further qualified the
claimant’s RFC to include “an alternating sit/stand at will option.” Nevertheless, because the
ALJ failed to specify the frequency for the claimant’s need to alternate positions–as directed in

SSR 96-9p–and because the court could find no evidence directly contradicting the claimant’s
testimony that the needed frequency was near constant, the decision must be reversed. On
remand, the ALJ will determine the frequency of the claimant’s need to alternate between sitting
and standing and the length of time needed to stand. If necessary, the ALJ will obtain additional
medical opinion evidence. Ultimately, the ALJ will obtain additional vocational expert
testimony on the question of whether there are a significant number of other jobs in the national
economy the claimant can perform considering his modified RFC (which must specify the
frequency of the need to alternate positions as set out above) and other relevant factors.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this case is REVERSED
and REMANDED for further proceedings.
This, the 10th day of September, 2013.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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