Higgins v. Colvin

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on June 9, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN A. HIGGINS,

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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

Case No. 4:16-cv-00885-AGF

MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff John A. Higgins was not disabled,
and, thus, not entitled to disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., or supplemental security income (“SSI”) under Title XVI of
the Act, 42 U.S.C. §§ 1381, et seq. The single issue before the Court is “whether the
[Administrative Law Judge] erred in finding Plaintiff not disabled, in that the ALJ found
Plaintiff able to perform other work that would require employers to provide Americans
With Disabilities Act (‘ADA’) accommodation (a bariatric chair).”2 ECF No. 12 at 2.

1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, she is substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this suit.
2

According to Plaintiff, a “bariatric chair” is a chair designed to support an
individual who weighs more than 300 pounds, whereas commercial-grade chairs “are
tested for safety and durability using weights that do not exceed 300 pounds.” ECF No.
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Plaintiff asks the Court to reverse the Commissioner’s decision and remand for an award of
benefits. For the reasons stated below, the Court will affirm the Commissioner’s decision.
BACKGROUND
The Court adopts Plaintiff’s recitation of the facts set forth in Plaintiff’s Statement
of Uncontroverted Material Facts (ECF No. 12-1), with which Defendant represented she
agrees. This Statement provides a fair description of the record before the Court.
Specific facts will be discussed as needed to address the parties’ arguments.
Plaintiff, who was born on September 22, 1973, protectively filed his application for
disability insurance benefits on October 24, 2012, and his application for SSI on January
21, 2014. Plaintiff alleged that he became disabled on December 19, 2011, due to obesity,
social anxiety, bipolar disorder, diabetes, high blood pressure, high cholesterol, back
injury, and Meniere’s disease. In forms associated with his application, Plaintiff listed his
height as 5’10” and his weight as 410 lbs. On February 28, 2013, Plaintiff’s application
was denied at the initial administrative level, and on March 13, 2013, he requested a
hearing before an ALJ.
A hearing before an ALJ was held on September 23, 2014, at which Plaintiff,
represented by counsel, testified. On October 8, 2014 and February 1, 2015, a vocational
expert (“VE”) submitted answers to interrogatories posed by the ALJ. Tr. 249-58,
267-74. Specifically, the ALJ asked the VE by interrogatory to consider a hypothetical
individual with Plaintiff’s vocational factors and the residual functional capacity (“RFC”)
12-1 at 2.
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to perform light work as defined by the Commissioner’s regulations except that he could
only stand and/or walk for two hours during an eight-hour work day; he was limited to
work not requiring the ability to carry out complex assignments on a consistent, sustained
basis; he could not perform work involving more than occasional interaction with
coworkers or the public; and, while seated, he required a bariatric chair sufficient to
withstand six hours per day of his 425-pound weight. At the request of Plaintiff’s counsel,
the ALJ next asked the VE by interrogatory whether the need for a bariatric chair
represents an “accommodation,” defined as “the acquisition of new equipment not
normally found in the workplace, or the modification of equipment or devices normally
found in the workplace, or more generally the modification or adjustment of a work
environment to enable the individual to function in the job,” and with a citation to the
definitions section of the ADA. Tr. 262, 270.
The VE responded to these interrogatories on February 1, 2015 and stated that a
hypothetical individual with Plaintiff’s vocational factors and the RFC described above,
including the bariatric chair requirement, could perform jobs that existed in significant
numbers locally and nationally, namely, the jobs of table worker, document preparer, and
final assembler. Tr. 269, 274. In response to the second interrogatory, regarding the
bariatric chair, the VE stated: “This would be an accommodation wherein the employer
would need to acquire the bariatric chair. In my experience this is a common
accommodation for an employer to make for an employee.” Tr. 274.
By decision dated March 27, 2015, the ALJ determined that Plaintiff had the RFC
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described above. With regard to the bariatric chair, the ALJ found Plaintiff’s need for
such a chair to be “somewhat dubious” because “the record shows a longitudinal history of
extreme obesity dating back to before [Plaintiff’s] alleged onset date, without any
significant change in weight since that time, yet [Plaintiff’s] primary care provider did not
prescribe the bariatric chair until almost three months after the hearing [on Plaintiff’s
application for benefits].” Tr. 13. Nevertheless, the ALJ “for [Plaintiff’s] benefit,” id.,
included such a limitation to Plaintiff’s RFC. The ALJ then relied on the VE’s
interrogatory responses to find that there are jobs that exist in significant numbers in the
national economy that Plaintiff could perform. Tr. 19, 25.

Accordingly, the ALJ found

that Plaintiff was not disabled under the Social Security Act.
Plaintiff’s request for review by the Appeals Council of the Social Security
Administration was denied on May 10, 2016. Plaintiff has thus exhausted all
administrative remedies, and the ALJ’s decision stands as the final agency action now
under review.
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by
substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011). The court “may not reverse . . . merely because substantial evidence would
support a contrary outcome. Substantial evidence is that which a reasonable mind might
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accept as adequate to support a conclusion.” Id. (citations omitted). A reviewing court
“must consider evidence that both supports and detracts from the ALJ’s decision. If, after
review, [the court finds] it possible to draw two inconsistent positions from the evidence
and one of those positions represents the Commissioner’s findings, [the court] must affirm
the decision of the Commissioner.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016).
Put another way, a court should “disturb the ALJ’s decision only if it falls outside the
available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (citation
omitted). A decision does not fall outside that zone simply because the reviewing court
might have reached a different conclusion had it been the finder of fact in the first instance.
McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a medically
determinable impairment which has lasted or can be expected to last for not less than 12
months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations,
found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to
determine disability. The Commissioner begins by deciding whether the claimant is
engaged in substantial gainful activity. If not, the Commissioner decides whether the
claimant has a severe impairment or combination of impairments. If the impairment or
combination of impairments is severe and meets the duration requirement, the
Commissioner determines at step three whether the claimant’s impairment meets or is
equal to one of the deemed-disabling impairments listed in the Commissioner’s
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regulations. If not, the Commissioner asks at step four whether the claimant has the RFC
to perform his past relevant work.
If the claimant cannot perform his past relevant work, the burden of proof shifts at
step five to the Commissioner to demonstrate that the claimant retains the RFC to perform
other work that is available in the national economy and that is consistent with the
claimant’s vocational factors – age, education, and work experience. Halverson v. Astrue,
600 F.3d 922, 929 (8th Cir. 2010). When a claimant cannot perform the full range of work
in a particular category of work (medium, light, and sedentary) listed in the regulations, the
ALJ must produce testimony by a VE (or other similar evidence) to meet the step five
burden. Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006).
Consideration of an Accommodation at Step Five
As noted above, Plaintiff argues that the ALJ erred in finding that Plaintiff was able
to perform other work because he could only perform that work with an ADA
accommodation in the form of a bariatric chair.
“[T]he ADA and the disability provisions of the Social Security Act have different
purposes and have no direct relationship to each other.” Eback v. Chater, 94 F.3d 410,
412 (8th Cir. 1996). In Eback, the primary case relied upon by Plaintiff, although it was
undisputed that the claimant required daily use of a nebulizer four times a day for asthma,
the ALJ found that the claimant was not disabled because she could perform sedentary to
light work in places where environmental irritants were not present. In arriving at this
conclusion, the ALJ relied on the testimony of a VE, who when testifying about a
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hypothetical worker “assumed that an employer would allow the necessary nebulizer use
on the job” because the he believed that the nebulizer “would be a reasonable
accommodation that an employer could or should make, particularly considering the
ADA.” Id. The VE explicitly testified that his opinion as to the claimant’s employability
would change if an employer were not willing to make this accommodation. Id.
The Eighth Circuit found this rationale “faulty for numerous reasons, the most
significant of which [was] that a determination of relevant jobs existing in the national
economy in significant numbers [was] based on an assumption that the employer would be
willing to make accommodations under the ADA.” Id. As the Eighth Circuit put it:
The inquiry into other available jobs [under the Social Security Act] is based
on the functional demands and duties of jobs as ordinarily required by
employers throughout the national economy, and not on what may be
isolated variations in job demands (regardless of whether such variations are
due to compliance with anti-discrimination statutes or other factors).
Whether or how an employer might be willing (or required) to alter job
duties to suit the limitations of a specific individual would not be relevant
because our assessment must be based on broad vocational patterns rather
than on any individual employer’s practices. To support a finding that an
individual can perform “other work,” the evidence would have to show that a
job, which is within the individual’s capacity because of employer
modifications, is representative of a significant number of other such jobs in
the national economy.
Id. (internal alterations and citation omitted). Further noting that the jobs cited by the ALJ
in that case were shift jobs, and that the VE in that case “never testified that the cited jobs
routinely offer employees breaks . . . as would be necessary for [the claimant's]
condition,” the appellate court found the ALJ’s decision was not supported by substantial
evidence and remanded for an award of benefits. Id. at 412–13.
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Applying the Eighth Circuit’s reasoning, the Fifth Circuit in Jones v. Apfel, 174
F.3d 692, 693 (5th Cir. 1999), agreed that “a vocational expert should not base his
determination of the availability of jobs on the assumption that the ADA requires an
employer to accommodate an individual’s disability.” However, the appellate court
distinguished between vocational inquiries focused on whether a specific employer might
accommodate an impaired worker (improper), and those focused on whether positions with
necessary accommodations are sufficiently available in the national economy (proper).
The focus in Jones was the latter. Id.
The VE in Jones “explained, prior to mentioning the ADA, that a significant
number of jobs that existed that would permit [the claimant] to work” notwithstanding his
need to alternate between sitting and standing. Id. The VE only mentioned the ADA in
response to further questioning specifically regarding assembler jobs, stating that workers
in such jobs have the “option, you know, just sitting and standing at will” and indicating
that in light of the ADA, “most employers today, will accommodate workers along that
line.” Id. at 694 n.1.
The court held that the ALJ’s reliance on such testimony was proper because “the
expert’s reference to the ADA suggests not that he assumed that assembler jobs required
accommodation, but that allowing for an employee to alter between sitting and standing is
a prevalent accommodation in the workplace.” Id. at 694 (citing caselaw for the
proposition that an assessment of jobs available to a claimant must be based on broad
vocational patterns); see also Cantrell v. Colvin, No. 2:12-CV-01504-GMN, 2013 WL
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5947808, at *8–9 (D. Nev. Nov. 5, 2013) (affirming an ALJ’s denial of benefits where the
ALJ relied on testimony from a VE that, based on her experience, someone with the
claimant’s limitations, including the need for a sit/stand option, could perform the
claimant’s past work, and that the sit/stand option could be accomplished with an
adjustable desk).
This case is more like Jones than Eback. Upon review of the VE’s interrogatory
responses and the ALJ’s decision, the Court concludes that the vocational assessment in
this case was based on broad vocational patterns rather than on any specific employer’s
practices. As in Jones, the VE properly focused on whether positions with the necessary
accommodations were sufficiently available in the national economy, and stated that,
based on her experience and expertise, they were and that the availability of a bariatric
chair is a prevalent accommodation in the workplace. The ALJ did not err in relying on
this statement.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated on this 9th day of June, 2017.
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