Salih v. Astrue
Filing
42
MEMORANDUM AND ORDER denying 37 Plaintiff's Motion to Amend or Alter Judgment. Having evaluated the issues as requested by the plaintiff, the court continues to find that the ALJ's decision is supported by substantial evidence on the record as a whole. The courts prior judgment will not be altered or amended. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FADIL SALIM SALIH,
Plaintiff,
4:11CV3218
vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration;
Defendant.
The plaintiff has moved to amend the court’s prior judgment pursuant to Rule 59
of the Federal Rules of Criminal Procedure.
(Filing No. 37).
The plaintiff seeks
clarification or a ruling on two issues:
Whether the hypothetical question posed to the Vocational Expert (“VE”) omitted
uncontrovertered impairments documented of record, thereby rendering the VE’s
testimony insufficient to support denial of Plaintiff’s claim; and
Whether the jobs cited by the ALJ to deny plaintiff’s claim at step five lie beyond
Plaintiff's Residual Functional Capacity (“RFC”) as found by the ALJ.
(Filing No. 37). The defendant opposes Plaintiff’s motion, asserting the court’s prior
Memorandum and Order sufficiently addresses the issues raised. (Filing No. 40).
To assure that all matters are addressed sufficiently for Plaintiff’s anticipated
appeal, the court will clarify its memorandum and order on the RFC issue, and it will
discuss Step 5 of Plaintiff’s disability claim.1
1
To be clear, the ALJ’s discussion regarding Step 5, totaling no more than three paragraphs of
his opinion, was not incorporated into his ruling. The ALJ concluded the plaintiff remains able
to perform the requirements of his past relevant work and therefore “has not been under a
disability, as defined in the Social Security Act, from December 12, 2007 through the date of this
decision. . . .” (TR 28). The ALJ’s listed findings and conclusions do not address Step 5; that is,
ANALYSIS
1)
Sufficiency of hypothetical question—unmentioned limitations.
The ALJ’s hypothetical question posed to the VE asked whether a person could
perform the plaintiff's past relevant work in a job with normal mid-morning and midafternoon breaks assuming that person was the plaintiff's age and had his education and
work history, and should avoid exposure to constant cold and wetness, but is able to lift
up to 20 pounds occasionally and 10 pounds frequently; can sit or stand for six hours in
an eight-hour day; has unlimited use of his extremities; can occasionally bend, stoop, and
kneel; can walk on a frequent basis, and can reach above the head and climb stairs
without difficulty. (TR 64-65).
The plaintiff claims this hypothetical question was incomplete.
Specifically,
plaintiff argues the ALJ failed to include the plaintiff’s uncontroverted need for “breaktiming,” “standing tolerance restrictions,” and to move at a slow gait in the question
posed to the VE, and his decision does not explain the omission of these restrictions in
the hypothetical question. (Filing No. 41, at at CM/ECF p. 7). The plaintiff argues:
[T]he record contains uncontradicted evidence of a standing tolerance
limited to less than six hours by an assessment (Tr. 415, 414) to which the
ALJ gave "considerable weight" (Tr. 25); it also contains such evidence of
slowness of gait observed by several doctors during examination, evidence
which the ALJ did not discredit.
(Filing No. 41, at at CM/ECF pp. 6-7).
whether other work exists in significant numbers in the national economy that the plaintiff
remains able to perform, given his RFC, age, education, and work experience. (TR 21).
Since the ALJ made no ruling as to Step 5, and did not rely on the evidence supporting
Step 5 in denying Plaintiff’s claim, the court questions whether it is required (or even should)
comment on whether the ALJ’s Step 5 discussion was sufficiently supported by the record.
Neither party has addressed this issue in the post-judgment briefing.
2
As explained in the court’s initial opinion, the ALJ’s opinion provides a thorough
explanation of why he considered the plaintiff’s subjective complaints to be not fully
credible. The opinion also includes an analysis of the treating physician’s records, with
an explanation of the extent of reliance placed on each provider’s findings. The ALJ’s
specific references to medical provider opinions and claims processing information were
correct, and his ultimate conclusion that the plaintiff’s subjective complaints were not
fully credible was substantially supported by the record as a whole.
Plaintiff argues that the ALJ’s hypothetical question posed to the VE was
incomplete because it did not mention every limitation raised by the plaintiff’s testimony
and medical records. Plaintiff claims each of his subjective complaints must be included
in the ALJ’s hypothetical question to the VE unless the ALJ’s opinion specifically
addresses the alleged limitation and explains why was omitted from the RFC findings.
This argument has been previously raised by Plaintiff’s counsel and rejected by the
Eighth Circuit. Courts must “review the record to ensure that an ALJ does not disregard
evidence or ignore potential limitations, but we do not require an ALJ to mechanically
list and reject every possible limitation.” McCoy v. Astrue, 648 F.3d 605, 614-615 (8th
Cir. 2011).
Plaintiff argues the ALJ erred by affording “considerable weight” to Dr. Green’s
opinions, but not including every limitation identified by Dr. Green into the hypothetical
opinion. The ALJ must consider the record as a whole; he is not required to adopt, in
totality, the opinions of any medical provider—even those he considers worthy of
“considerable weight.” And provided the ALJ’s opinion indicates (as it does in this case)
that he reviewed and considered the medical record, the ALJ is not required to list each
limitation identified by a specific medical provider and explain why is was not
incorporated into the RFC findings. “[A]n ALJ is not required to discuss all the evidence
submitted, and an ALJ's failure to cite specific evidence does not indicate that it was not
considered.” Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (quoting Black v.
3
Apfel, 143 F.3d 383, 386 (8th Cir.1998)).
Given the ALJ’s specific reliance and
reference to findings set forth in Dr. Green’s records, the court finds it “highly unlikely
that the ALJ did not consider and reject” other limitations also referenced in those
records. Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010). See also Craig v. Apfel,
212 F.3d 433, 436 (8th Cir. 2000) (claimant's argument that the ALJ selectively ignored
portions of the offered medical opinions was rejected where the record also contained the
opinions of consulting physicians whose observations did not support claimant's
allegation of complete disability); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)
(holding the ALJ did not error by incorporating some of a medical provider’s findings
into his decision, while not specifically discrediting other portions).
As to the specific limitations which were allegedly uncontroverted but nonetheless
omitted from the hypothetical question, the court finds the record, considered as a whole,
substantially supports the hypothetical question as posed. Plaintiff cites three alleged
omissions; the plaintiff’s need for “break-timing,” his “standing tolerance restrictions,”
and his “slow gait.”
Plaintiff claimed he must have breaks to lie down every two hours. The ALJ’s
opinion specifically acknowledged and rejected this subjective complaint. The ALJ
referenced plaintiff’s testimony that any job must afford him “the opportunity to lie down
every two hours.”
(TR 23).
But after reviewing the record as a whole, the ALJ
concluded and specifically stated that this subjective symptom was only partially
credible. The opinion states:
The claimant specifically testified that he must lie down after every two
hours (for an unspecified time) in order to experience relief from his back
and/or hip pain, and while the opinion of Dr. Green indicated that he would
require breaks every two hours (which is customary for most employment)
from exertional activities, there exists no evidence to support his allegation
that he must lie down to experience appreciable relief, or that his
disabilities otherwise preclude his ability to perform work.
(TR 25). The ALJ’s assessment of the evidence is supported by the record as a whole.
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Moreover, the ALJ’s hypothetical question did incorporate the plaintiff’s need for
“normal breaks, you know, a mid morning break, an afternoon break, lunch break.” (TR
65). When considering the 8-hour workday contextual framework for this question, the
ALJ’s hypothetical question posed to the VE did include a requirement that Plaintiff be
afforded breaks every two hours as fully supported by Dr. Green’s records. Contrary to
the plaintiff’s argument, to the extent the ALJ found it credible, Plaintiff’s need for
“break-timing” was raised in the hypothetical question.
Plaintiff claims his uncontroverted “standing tolerance restrictions” were not
included in the hypothetical question. The plaintiff’s standing limitations, if any, were
based on his subjective complaints of pain. The ALJ’s opinion specifically mentioned
the plaintiff’s testimony that “he can only stand . . . for one to two hours . . . before his
back causes too much pain.” (TR 23).
The ALJ’s hypothetical question asked the VE to assume the plaintiff can stand
for six hours in an eight-hour day. In response to SSA interrogatories, the plaintiff had
previously stated he could stand for four hours in an eight-hour day. (TR 216). The
Physical RFC evaluation completed by Dr. Reed stated the plaintiff was able to stand
(with normal breaks) about 6 hours in an 8-hour workday if afforded breaks every two
hours, (TR 306); an assessment later reviewed and affirmed by Dr. Knosp, (TR 343). Dr.
Green, Plaintiff’s treating chiropractor, wanted the plaintiff to undergo a Functional
Capacity Evaluation (FCE) before he (Dr. Green) rendered an opinion regarding
Plaintiff’s work limitations. (TR 412). Unfortunately, the plaintiff’s FCE was deemed
invalid because “[n]umerous subjective and objective inconsistencies were seen
throughout the assessment.” (TR 400). Even in light of these inconsistencies, the FCE
evaluator concluded the plaintiff remains able to stand either frequently (up to two-thirds
of the day) or constantly (the entire day) if afforded normal breaks, (TR 405), while
explaining that “[d]ue to the invalid nature of today's FCE, this data cannot be used
confidently for vocational planning.” (TR 404). After receiving this report, Dr. Green
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concluded the plaintiff can stand frequently—up to two-thirds of the day, with breaks
every two hours. (TR 414-15).
Given the discrepancies between Plaintiff’s subjective complaints and the
objective findings, the fact that the source of plaintiff’s subjective pain complaints was
not located or fully understood by his medical providers, Dr. Green’s own hesitation with
assessing Plaintiff’s functional limitations without an FCE, the lack of a valid and reliable
FCE, and the ALJ’s assessment and explanation (set forth in his written opinion) that the
plaintiff was only partially credible, the ALJ had a substantial basis for concluding the
plaintiff’s ability to stand was not limited to “frequently;” that is, up to two-thirds of the
day. The ALJ did not error by posing a hypothetical question which asked the VE to
assume the plaintiff could stand six to eight hours in an eight-hour day.
Finally, the plaintiff claims the ALJ failed to reference the plaintiff’s “slow gait”
in the hypothetical question. He claims that absent knowledge of this limitation, the VE
could not realistically evaluate and accurately opine regarding the plaintiff’s continued
ability to perform his past relevant work.
Upon review of the medical records, the plaintiff’s gait varied from one
appointment to another. It was considered “normal” on December 13, 26, and 28, 2007,
and on January 8 and 30, 2008, (TR 250, 259, 261, 269, 281); stiff on March 14, 2008
(TR 290); somewhat antalgic on June 2, 2008 (TR 385); normal again on September 11,
2008, (TR 321); slowed on October 21, 2008 (TR 347); very guarded on November 7,
2008
(TR 356); and antalgic on January 21, 2009.
(TR 390).
During the
musculoskeletal evaluation portion of his FCE on March 24, 2009, “[g]ait analysis
reveal[ed] a slow, deliberate pace with decreased thoracolumbar rotation.” (TR 401) But
when the FCE evaluation was focused on nonmaterial handling activities, “Fadil was able
to complete 8 minutes and 46 seconds of continuous walking before requesting to stop
due to central low back pain, with pain radiating into the right hip and sacroiliac region,”
and the evaluator “did not note any significant breakdown in gait or significant antalgia at
6
that time.” (TR 403). This same FCE was considered invalid because of Plaintiff’s
subjective and objective inconsistencies.
The ALJ was required to include in his hypothetical question only those
limitations he found to be credible.
Based on the medical record, the plaintiff’s
subjective “slow gait” was certainly suspect. The ALJ concluded the plaintiff was not
fully credible, and he apparently concluded Plaintiff’s gait was not impaired.
The
hypothetical question was not erroneous for failing to include Plaintiff’s slow gait.
The ALJs’ hypothetical question, and the limitations described therein, was
substantially supported by the record as a whole.
2.
Evaluation at Step 5.
Relying on the VE’s opinion, the ALJ’s decision noted a person of plaintiff’s
residual ability, age, education, and work experience could perform the job of a hand
packager (with 14,448 such jobs regionally, and 319,964 jobs nationally); and a
housekeeping cleaner (with 17,783 such jobs regionally, and 376,362 jobs nationally).
The ALJ disregarded the hand packager job identified during the VE’s testimony,
explaining that based on the Dictionary of Occupational Titles, the job requires an
exertional level which exceeds the plaintiff’s RFC. But the ALJ nonetheless concluded
the plaintiff could perform the occupation of housekeeping cleaner; a job which, as
described in the Dictionary of Occupational Titles, did not exceed the claimant's RFC.
(TR 28).
The description of a Cleaner, Housekeeping, (DOT 323.687-014) in the Dictionary
of Occupational Titles is consistent with the ALJ’s RFC determination as included in the
hypothetical question posed to the VE. The VE testified there are 17,783 of those jobs in
the light, unskilled category in the Iowa, Nebraska, Missouri, and Kansas the four-state
region, and 376,362 such jobs nationally. Had the ALJ concluded the Plaintiff was unable
to return to his past relevant work, the Plaintiff was nonetheless not disabled at Step 5
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because Plaintiff remained able to perform work existing in significant numbers in the
regional and national economy.
Having evaluated the issues as requested by the plaintiff, the court continues to
find that the ALJ’s decision is supported by substantial evidence on the record as a
whole. The court’s prior judgment will not be altered or amended. Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Amend or Alter, (Filing No. 37), is
denied.
April 8, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
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