Hardzog v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER -- Based on the Court's review of the record and the issues presented, the Court REVERSES the Commissioner's decision and REMANDS the matter for further administrative findings. Signed by Magistrate Judge Shon T. Erwin on 1/31/17. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Case No. CIV-16-597-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
application for disability insurance benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES the
Commissioner’s decision and REMANDS the matter for further administrative findings.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
Plaintiff’s application for disability insurance benefits was denied initially and on
reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an
unfavorable decision. (TR. 25-35). The Appeals Council denied Plaintiff’s request for
review. (TR. 1-4). Thus, the decision of the ALJ became the final decision of the
THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since May 7, 2012, the alleged disability onset date. (TR. 26). At step two,
the ALJ determined Mr. Hardzog had the following severe impairments: mild diastolic
dysfunction with ischemia, obesity, degenerative joint disease of the knees, major
depressive disorder, posttraumatic stress disorder (PTSD), and anxiety disorder. (TR. 26).
At step three, the ALJ found that Plaintiff’s impairments did not meet or medically equal
any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1 (TR. 27).
At step four, the ALJ found that Plaintiff was not capable of performing his past
relevant work. (TR. 33). The ALJ further concluded that Mr. Hardzog had the residual
functional capacity (RFC) to:
[P]erform light work as defined in 20 C.F.R. 404.1567(b) except he needs
to occasionally sit/stand at the workstation without a loss of productivity;
he can occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs;
he should never climb ropes, ladders, or scaffolding; he can frequently
balance; he has no manipulative, visual, or communicative limitations; and
he must not work at unprotected heights or around dangerous moving
machinery or equipment. In addition, the claimant can understand,
remember, comprehend, and carry out simple work related instructions and
tasks; can work with supervisors and co-workers on a superficial work basis;
can adapt to routine changes in the work environment; but cannot work
with the general public.
Based on the finding that Mr. Hardzog could not perform his past relevant work,
the ALJ proceeded to step five. There, he presented several limitations to a vocational
expert (VE) to determine whether there were other jobs in the national economy that
Plaintiff could perform. (TR. 59). Given the limitations, the VE identified three jobs from
the Dictionary of Occupational Titles (DOT). (TR. 59-60). The ALJ adopted the testimony
of the VE and concluded that Mr. Hardzog was not disabled based on his ability to perform
the identified jobs. (TR. 35).
On appeal, Plaintiff alleges that the ALJ erred in not being more specific about the
frequency or amount of time spent in each position for the RFC’s “sit-stand” option.
STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
ERROR IN THE RFC
At the hearing, Mr. Hardzog testified that due to back pain, he could only sit for
approximately 20-30 minutes at one time and due to knee pain, he could only stand for
approximately 30-40 minutes at one time. (TR. 47-49). In the RFC, the ALJ stated that
Mr. Hardzog was limited to performing light work with an added restriction of needing to
“occasionally sit/stand at the workstation” “without a loss of productivity.” (TR. 29). With
the sit-stand limitation, the VE identified three jobs that Plaintiff could perform, and the
ALJ relied on the jobs at step five. (TR. 35, 59-60). Although the RFC allowed for a sitstand option, Plaintiff argues that the ALJ failed to identify, with specificity, the frequency
with which Plaintiff would need to change positions from sitting to standing in order to
not lose productivity on the job. As a result, Mr. Hardzog contends that the hypothetical
was defective and could not provide a basis for the step five findings. Mr. Hardzog is
In asserting this position, Plaintiff relies on SSR 96-9p, which provides:
An individual may need to alternate the required sitting of sedentary work
by standing (and, possibly, walking) periodically. Where this need cannot
be accommodated by scheduled breaks and a lunch period, the
occupational base for a full range of unskilled sedentary work will be
eroded. The extent of the erosion will depend on the facts in the case
record, such as the frequency of the need to alternate sitting and standing
and the length of time needed to stand. The RFC assessment must be
specific as to the frequency of the individual’s need to alternate sitting and
standing. It may be especially useful in these situations to consult a
vocational resource in order to determine whether the individual is able to
make an adjustment to other work.
SSR 96-9p, 1996 WL 374185, at *7 (emphasis provided). As an initial matter, the Court
notes that SSR 96-9p, as written, is specifically applicable to sedentary work and the RFC
in the present case limited Plaintiff to less than a full range of light work. However, the
statutory definition of light work requires “a good deal of walking or standing, or … sitting
most of the time.” 20 C.F.R. § 404.1567(b). As a result, an individual’s ability to sit and
stand is also relevant to “light” work. See Wahpekeche v. Colvin, 640 F. App’x 781, 78485 (10th Cir. 2016) (applying SSR 96-9p in the context of “light” work); Vail v. Barnhart,
84 F. App’x 1, 5 (10th Cir. 2003) (“Precisely how long a claimant can sit without a change
in position is also relevant to assumptions whether he can perform light work.”) (citing
20 C.F.R. § 404.1567(b)). In fact, the SSA has defined an individual’s need to alternate
sitting and standing as a “Special Situation” and devoted an entire section to the issue in
an SSR evaluating exertional limitations within a range of work. See SSR 83-12, 1983 WL
31253 (Jan. 1, 1983). There, the SSA stated:
In some disability claims, the medical facts lead to an assessment of RFC
which is compatible with the performance of either sedentary or light work
except that the person must alternate periods of sitting and standing. The
individual may be able to sit for a time, but must then get up and stand or
walk for awhile before returning to sitting. Such an individual is not
functionally capable of doing either the prolonged sitting contemplated in
the definition of sedentary work (and for the relatively few light jobs which
are performed primarily in a seated position) or the prolonged standing or
walking contemplated for most light work.
Unskilled types of jobs are particularly structured so that a person cannot
ordinarily sit or stand at will. In cases of unusual limitation of ability to sit
or stand, a VS should be consulted to clarify the implications for the
SSR 83-12, 1983 WL 31253, at *4.
Here, the ALJ recognized Mr. Hardzog’s need to alternate sitting and standing, as
evidenced by the RFC which stated that Plaintiff “needs to occasionally sit/stand at the
workstation[.]” (TR. 29). But as noted by Mr. Hardzog, the RFC is silent regarding the
frequency with which he would need to alternate positions. The omission is critical
because with the restriction, the VE stated that Plaintiff could perform only unskilled work,
which the SSA has specifically stated is “particularly structured so that a person cannot
ordinarily sit or stand at will.” SSR 83-12, 1983 WL 31253, at *4.
The Commissioner attempts to salvage the RFC by pointing to the ALJ’s use of the
term “occasionally” which the SSA has defined as “up to one third of the day.” (ECF No.
13:13). But the use of the word “occasionally” in the context of the RFC would still only
translate to a finding that Plaintiff needed to alternate positions for up to one-third of the
workday. What is still unknown, however, is how often Mr. Hardzog would need to
alternate positions within the “one third of the workday” period.
The Commissioner’s reliance on Wahpekeche v. Colvin, 640 F. App’x 781 (10th Cir.
2016) fares no better. There, the plaintiff argued that the ALJ’s RFC assessment was
flawed because it failed to specify the frequency of her need to alternate sitting and
standing. Wahpekeche, 640 F. App’x at 784. The Court disagreed, however, noting that
the ALJ had adequately specified the frequency of the plaintiff’s need to change positions
by stating that she could stand a maximum of 1 hour at a time and sit a maximum of 1
hour at a time and stand/walk 2 hours out of an 8–hour workday, and sit 6 hours out of
an 8–hour workday. Id. at 782, 784-785. Ultimately, the Court stated:
the ALJ’s specification of maximum sitting, standing, and walking times,
together with her adoption of brief hourly breaks, provided sufficient
information to support the RFC assessment concerning Ms. Wahpekeche’s
need to alternate sitting and standing.
Id. at 785. (emphasis added). According to the Commissioner:
the claimant’s total two-hour standing/walking ability with a six-hour sitting
ability in Wahkapeche constitutes a far lower exertional RFC than Plaintiff’s
higher total six-hour standing/walking ability with the same six-hour sitting
ability in this case[.]
(ECF No. 13:14). Apparently, the Commissioner believes that because Mr. Hardzog is less
restricted than the plaintiff in Wahkapeche, the Court should conclude that the RFC here
is sufficient. But that reasoning focuses only on the maximum amount of time that either
plaintiff could sit and/or stand, not the frequency with which each individual would need
to alternate positions. In Wahkapeche, the ALJ specifically stated that the plaintiff would
need to change positions every hour. Wahkapeche, 640 F. App’x at 782. Here, the ALJ
stated only that Mr. Hardzog would need to occasionally alternate positions. (TR. 29).
But as stated, this restriction does not indicate how often Plaintiff would need to change
positions, which is particularly crucial in unskilled work.
Under such circumstances, both the decision and hypothetical question lack key
facts and the VE’s testimony cannot provide substantial evidence to support the ALJ’s
decision. Vail, 84 F. App'x at 5 (reversing the ALJ’s decision that the claimant could
perform less than the full range of light work “with brief changes of position” because the
opinion “did not properly define how often [the claimant] would need to change positions”
and the hypothetical question lacked the same detail); see also Maynard v. Astrue, 276
F. App’x 726, 731 (10th Cir. 2007) (reversing because the ALJ’s hypothetical question
“provided no specifics to the VE concerning the frequency of any need [the claimant] may
have to alternate sitting and standing” and was “therefore flawed as it pertains to a sitstand option” and holding that in such circumstances, the VE’s testimony “is not ...
Moreover, the Court finds that the ALJ’s error is not harmless. For example, Plaintiff
testified that he can generally sit for only 20-30 minutes at one time and that he can
stand for only 30-40 minutes at one time. (TR. 47-49). The ALJ noted Mr. Hardzog’s
testimony regarding his limited ability to stand, and discounted Plaintiff’s overall
credibility, but he did so without stating whether he believed Mr. Hardzog’s particular
testimony regarding sitting and standing limitations. See TR. 29-30. Accordingly, the
Court can only speculate as to whether the ALJ adopted or rejected this particular
testimony. And even if the Court assumed the truth of Plaintiff’s testimony, the VE was
not asked to consider that evidence, rendering the step five findings deficient.
Plaintiff also argues that the RFC restriction which stated that he would need to
alternate positions “without a loss of productivity” impermissibly presumes the amount of
productivity an individual with the sit-stand option would have and “usurps the role of
the VE in determining whether jobs exist for the worker.” (ECF No. 12:6). According to
Mr. Hardzog, the ALJ “assumed the fact [of no loss of productivity] with the sit-stand
limitation and that was error.” (ECF No. 12:7). The Court disagrees. The additional
limitation of performing work “without the loss of productivity” was independent from the
“sit-stand limitation” and served as an additional restriction in the hypothetical.
Ultimately, it was up to the VE to define jobs that would allow for a sit-stand option with
no loss of productivity, but the latter restriction was not dependent on the former.
In sum, the Court concludes that the sit-stand limitation in the RFC was not
sufficiently specific as to frequency, which directly impacted Plaintiff’s ability to perform
light, unskilled work. Because the RFC was faulty, the resulting hypothetical to the VE
was also deficient and the findings at step five lack substantial evidence. Thus, reversal
and remand is warranted. On remand, the ALJ shall make specific findings regarding the
frequency with which Mr. Hardzog needs to alternate positions.
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties,
the undersigned magistrate judge REVERSES the Commissioner’s decision and
REMANDS the matter for further administrative findings.
ENTERED on January 31, 2017.
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