Underwood v. Commissioner of Social Security
Filing
14
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 11/21/2012 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
VICTORIA CARLA UNDERWOOD,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
TIM D. WILBORN
P.O. Box 370578
Las Vegas, NV 89137
(702) 240-0184
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1053
1 - OPINION AND ORDER
3:11-cv-01383-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JOSE R. HERNANDEZ
Special Assistant United States Attorney
Social Security Administration
1301 Young Street
Suite A702
Dallas, TX 75202
(214) 767-3638
Attorneys for Defendant
BROWN, Judge.
Plaintiff Victoria Carla Underwood seeks judicial review of
a final decision of the Commissioner of the Social Security
Administration (SSA) in which he denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court AFFIRMS the
decision of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on November 16, 2007,
alleging a disability onset date of March 2, 2007.
Tr. 141-43.1
The application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on January 8, 2010.
1
Citations to the official transcript of record filed by
the Commissioner on April 25, 2012, are referred to as "Tr."
2 - OPINION AND ORDER
Tr. 34-82.
hearing.
Plaintiff was represented by an attorney at the
Plaintiff, a lay witness, and a vocational expert (VE)
testified at the hearing.
The ALJ issued a decision on February 26, 2010, in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 17-29.
Pursuant to 20 C.F.R. § 404.984(d),
that decision became the final decision of the Commissioner on
September 16, 2011, when the Appeals Council denied Plaintiff's
request for review.
BACKGROUND
Plaintiff was born on January 9, 1973, and was 36 years old
at the time of the hearing.
Tr. 141.
She has a GED.
Tr. 41.
Plaintiff does not have any past relevant work experience.
Tr. 28.
Plaintiff alleges disability due to diabetes, obesity,
carpal-tunnel syndrome, and chronic pain.
Tr. 173.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 22-23, 27.
STANDARDS
The initial burden of proof rests on the claimant to
3 - OPINION AND ORDER
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
4 - OPINION AND ORDER
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.
20 C.F.R. § 416.920.
See also Keyser v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 724
(9th Cir. 2011).
Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 416.920(a)(4)(i).
See also Keyser, 648
F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
5 - OPINION AND ORDER
determines the claimant does not have any medically severe
impairment or combination of impairments.
§ 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 416.920(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
6 - OPINION AND ORDER
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since November 9, 2007.
Tr. 22.
At Step Two, the ALJ found Plaintiff has the severe
impairments of diabetes mellitus, type II, with nueropathy;
degenerative disc disease; obesity; and carpal-tunnel syndrome.
Tr. 22.
The ALJ found Plaintiff's impairments of depression,
post-traumatic stress disorder (PTSD), and history of substance
7 - OPINION AND ORDER
abuse are nonsevere.
Tr. 24.
At Step Three, the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.
Tr. 24.
The ALJ found Plaintiff has the RFC to perform less
than the full range of light work.
Tr. 25.
The ALJ also found
Plaintiff "needs a sit/stand option at least once an hour"; can
occasionally climb ramps and stairs but never climb ladders,
ropes or scaffolds; can occasionally balance, crawl, stoop,
kneel, and crouch; should avoid "concentrated exposure to hazards
such as machinery and heights"; and "can frequently but not
constantly perform handling and grasping with both hands."
Tr. 25.
At Step Four, the ALJ found Plaintiff does not have any past
relevant work experience.
Tr. 28.
At Step Five, the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
Tr. 28.
Accordingly, the ALJ found Plaintiff is not disabled
and, therefore, is not entitled to benefits.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff's testimony, (2) improperly rejected or failed
to address lay-witness testimony; (3) improperly rejected
8 - OPINION AND ORDER
opinions of treating and reviewing physicians; and (4) adopted
improper VE testimony.
I.
The ALJ did not err when he rejected Plaintiff's testimony.
Plaintiff alleges the ALJ erred when he failed to provide
legally sufficient reasons for rejecting Plaintiff's statements
concerning the intensity, persistence, and limiting effects of
her symptoms.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
9 - OPINION AND ORDER
claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
The ALJ found Plaintiff’s "medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms," but Plaintiff's "statements concerning the
intensity, persistence and limiting effects of these symptoms are
generally not credible to the extent they are inconsistent with
the above [RFC]."
Tr. 26.
The ALJ noted in her November 25, 2007, Function Report that
Plaintiff stated she was no longer able to dance at powwows or
walk more than half a block.
Tr. 185.
On October 26, 2007,
however, Plaintiff reported she had "been walking 3-4 x /wk for
20-30 min."
Tr. 775.
Similarly, on December 3, 2007, Plaintiff
reported walking three times a week for 30 minutes for the
previous two weeks.
Tr. 771.
On December 10, 2007, Plaintiff
reported she had not "walked her goal of 30 min three times
weekly formally, but has walked for hours in the mall shopping
this week."
Tr. 767.
Similarly, on February 22, 2008, Plaintiff
reported "walking 3-4x weekly with son."
Tr. 743.
On March 17,
2008, Plaintiff advised her treating physician that she was going
to dance at a powwow "this weekend."
Tr. 285.
On December 12,
2008, Plaintiff reported she walked one mile three times a week
and swam two laps once weekly.
Tr. 1033.
The ALJ also noted Plaintiff has not "always adhered to
providers' recommendations for treatment of her diabetes."
10 - OPINION AND ORDER
Tr. 26.
For example, on April 30, 2007, Plaintiff's treating
physician noted Plaintiff "hasn't been taking care of herself
. . . .
The Lantus and strips are waiting to be picked up at the
pharmacy, [Plaintiff] just can't make herself get them.
with paying for meds."
Tr. 837.
No probs
Dr. Bowen reported Plaintiff is
"supposed to be on Dixepin . . . and Celexa, but not taking them"
and is "noncompliant [with diabetes medication] much of the time,
home glucose monitoring are [sic] not being performed."
Tr. 837.
Similarly, Plaintiff's treating internal medicine resident
Douglas Maready reported on May 1, 2008, that Plaintiff "misses
about 1 insulin dose daily."
Tr. 267.
On September 19, 2008,
Plaintiff's treating physician Meena Mital, M.D., reported
Plaintiff's "eating schedule is erratic" and "she misses 3-4
nighttime doses of nighttime NPH per week."
Tr. 254.
Dr. Mital
noted she "suspect[s] [Plaintiff's] foot pain is related to
worsening neuropathy 2/2 very poorly controlled sugars."
Tr. 255.
The ALJ also noted the record "includes evidence" that
Plaintiff has engaged in drug-seeking behavior.
On September 29,
2009, Plaintiff reported to the emergency room with left-leg
pain.
Tr. 1244.
Examining physician Yingda Xie, M.D., noted
Plaintiff was
calmly reading magazine each time we walk into
room. Will start crying when she starts
describing her pain, stating "it hurts so much!"
Will then cease crying suddenly when discussing
11 - OPINION AND ORDER
her insulin and how she missed a dose this AM.
* * *
Talked to staff who have worked with patient in
past - it seems she has been well-identified with
a "dramatic" labile affect in past. There is a
high-suspicion for some component of narcoticseeking behavior to her pain.
Tr. 1246.
On October 9, 2009, Plaintiff reported to the
emergency room with lower-left extremity pain.
Examining
physician Rachel Zubko, M.D., noted
MRI does not explain pain, negative LLE doppler.
Had head CT for weakness in ED, but no obvious
weakness here according to a relatively normal
gait. Very suspicious of drug-seeking behavior as
history not consistent with normal physical exam
or work up as described.
Tr. 1241.
The Court concludes on this record that the ALJ did not err
when she rejected Plaintiff's testimony because the ALJ provided
legally sufficient reasons supported by the record for doing so.
II.
The ALJ did not err when she rejected and failed to address
lay-witness testimony.
Plaintiff contends the ALJ erred when she improperly
rejected the testimony of Plaintiff's mother, Caroline Underwood,
and failed to address statements written by Plaintiff's son and
cousin.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
12 - OPINION AND ORDER
to each witness for doing so."
(9th Cir. 2001).
Lewis v. Apfel, 236 F.3d 503, 511
See also Merrill ex rel. Merrill v. Apfel, 224
F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
A.
Caroline Underwood
Caroline Underwood testified at the January 8, 2010,
hearing that she is at Plaintiff's house almost every day to help
Plaintiff care for her two children.
Tr. 67.
Underwood
testified she bathes Plaintiff's five-year-old and does most of
the housework because Plaintiff has trouble standing up and
walking.
Tr. 67.
Underwood noted Plaintiff "drops everything"
because of problems with her hands.
Tr. 67.
Underwood stated
Plaintiff "can't walk that far anymore and . . . needs help to
get up in the morning."
Tr. 68.
The ALJ "considered"
Underwood's testimony, but the ALJ noted "it is likely influenced
by her desire to help" Plaintiff.
Tr. 27.
The Ninth Circuit has held the relationship between a
witness and a claimant is relevant to weighing the witness's
statement, particularly when the witness may be "influenced by
her desire to help" the claimant.
968, 972 (9th Cir. 2006).
Greger v. Barnhart, 464 F.3d
Accordingly, the Court concludes the
ALJ did not err when she gave Underwood's testimony limited
weight because the ALJ provided a legally sufficient reason for
13 - OPINION AND ORDER
doing so.
B.
Plaintiff's son
On December 8, 2008, Plaintiff's son provided a written
statement in which he notes: "When my mom is sick I help take
care of her see her every day and how sick she is."
Tr. 221.
An ALJ is only required to "explain why [s]he chooses
to discount significant, probative evidence" and "is not required
to discuss all the evidence presented in a case."
Houghton v.
Comm'r Soc. Sec. Admin., No. 11–35623, 2012 WL 3298201, at *1
(9th Cir. Aug. 14, 2012)(quotation omitted).
Here Plaintiff's
son does not provide any specific information regarding
Plaintiff's condition or her ability to work.
The statement of
Plaintiff's son, therefore, is not significant, probative
evidence that Plaintiff's medical conditions "had some functional
impact on [Plaintiff's ability to work."
Id.
Accordingly, the
Court concludes the ALJ did not err when she failed to address
the statement of Plaintiff's son.
C.
Tippy Cress
On December 8, 2008, Plaintiff's cousin Tippy Cress
provided a written statement in which she stated Plaintiff "is
very sick it is hard for her to do basic everyday task's [sic]."
Tr. 221.
Cress also noted Plaintiff is in "constant pain
everyday."
Tr. 222.
Cress, however, does not provide any
specific information about Plaintiff's condition or specific
14 - OPINION AND ORDER
impairments that make it difficult for her to do basic everyday
tasks.
Cress's statement, therefore, is not significant
probative evidence that Plaintiff's medical conditions "had some
functional impact on [Plaintiff's ability to work."
2012 WL 3298201, at *1.
Houghton,
Accordingly, the Court concludes the ALJ
did not err when she failed to address Cress's statement.
III. The ALJ did not err when she gave "some weight" to the
opinion of Plaintiff's treating physician and rejected in
part the opinion of a nonexamining physician.
Plaintiff contends the ALJ erred when she rejected the
opinion of Kathryn Glassberg, M.D., treating physician, and
Martin Kehrli, M.D., consultative physician.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes findings setting forth "specific and
legitimate reasons [for doing so] that are supported by
substantial evidence."
Chaudhry v. Astrue, 688 F.3d 661, 671
(9th Cir. 2012)(quotation omitted).
When the medical opinion of
an examining or treating physician is uncontroverted, however,
the ALJ must give "clear and convincing reasons" for rejecting
it.
Hill v. Astrue, No. 10–35879, 2012 WL 5278388, at *5 (9th
Cir. Oct. 26, 2012)(citation omitted).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
"The opinion of a
nonexamining physician cannot by itself constitute substantial
15 - OPINION AND ORDER
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
Id. at 831.
When
a nonexamining physician's opinion contradicts an examining
physician's opinion and the ALJ gives greater weight to the
nonexamining physician's opinion, the ALJ must articulate his
reasons for doing so.
See, e.g., Morgan v. Comm'r of Soc. Sec.
Admin, 169 F.3d 595, 600-01 (9th Cir. 1999).
A nonexamining
physician's opinion can constitute substantial evidence if it is
supported by other evidence in the record.
Israel v. Astrue,
No. 11–35794, 2012 WL 4845578, at *1 (9th Cir. Oct. 12, 2012)
(citing Morgan, 169 F.3d at 600).
A.
Dr. Glassberg
In a September 21, 2007, statement, Dr. Glassberg
stated:
The above patient is under my care for Type 2
Diabetes Mellitus and related complications that
compromise her ability to function. In
particular, the numbness in her feet (peripheral
neuropathy) limits her ability to stand, lift,
move, and participate in a 40-hour work week. I
recommend she undergo an assessment for
disability.
Tr. 993.
The ALJ gave Dr. Glassberg's opinion "some weight," but
the ALJ noted Dr. Glassberg "did not provide any specific
limitations and only recommended an assessment."
Tr. 27.
The
ALJ incorporated the limitation in Plaintiff's ability to stand
in Plaintiff's RFC by requiring Plaintiff have a "sit/stand
option at least once an hour."
16 - OPINION AND ORDER
Tr. 25.
Plaintiff contends the ALJ should have fully credited
Dr. Glassberg's opinion and found Plaintiff to be disabled.
Dr. Glassberg opined Plaintiff's diabetes limited her ability to
participate in a 40-hour work week and recommended an assessment.
Dr. Glassberg, however, did not opine Plaintiff was completely
unable to work.
On this record the Court concludes the ALJ did not err
when she only gave Dr. Glassberg's opinion "some weight" because
the ALJ provided legally sufficient reasons supported by the
record for doing so.
B.
Dr. Kehrli
On October 16, 2008, Disability Determination Services
(DDS)2 consultative physician Dr. Kehrli opined, among other
things, that Plaintiff is "limited" in her "handling (gross
manipulation)" abilities, but unlimited in her "fingering (fine
manipulation) abilities."
Tr. 998.
Dr. Kehrli also opined
Plaintiff was limited in her upper extremities in her ability to
push and/or to pull, but she could occasionally "handle"
bilaterally with her upper extremities.
Tr. 996.
The ALJ gave
Dr. Kehrli's opinion "significant weight," but she found
Plaintiff "has the ability to perform frequent handling and
2
DDS is a federally funded state agency that makes
eligibility determinations on behalf and under the supervision of
the Social Security Administration pursuant to 42 U.S.C.
§ 421(a).
17 - OPINION AND ORDER
grasping with both hands."
Tr. 27.
Plaintiff contends the ALJ erred when she found
Plaintiff has the ability to perform frequent handling despite
giving significant weight to Dr. Kehrli's opinion that Plaintiff
could perform only occasional handling.
The ALJ, however,
pointed out that DDS consultative physician Mary Ann Westfall,
M.D., opined on January 24, 2008, that Plaintiff was limited to
"freq[uent] (no constant)" fingering and handling.
Tr. 711.
The ALJ ultimately gave Dr. Westfall's opinion significant weight
and resolved the conflicting consultative physician opinions in
favor of Dr. Westfall's opinion.
Tr. 28.
The ALJ noted the
medical record in addition to the fact that Plaintiff reported
activities such as cooking and doing beadwork on her son's
costume for a powwow did not support Dr. Kehrli's opinion
regarding Plaintiff's ability to perform handling and fingering.
Tr. 27-28.
When "'the record contains conflicting medical
evidence, the ALJ is charged with determining credibility and
resolving the conflict.'"
Chaudhry, 688 F.3d at 671 (quoting
Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003)).
On this record the Court concludes the ALJ did not err
when she rejected Dr. Kehrli's opinion that Plaintiff could only
occasionally handle bilaterally with her upper extremities
because the ALJ provided legally sufficient reasons supported by
the record for doing so.
18 - OPINION AND ORDER
IV.
The ALJ did not err at Step Five.
Plaintiff contends the ALJ erred at Step Five when she
(1) failed to include all of the limitations set out by
Plaintiff, the lay witnesses, and Drs. Glassberg and Kehrli in
her hypothetical to the VE and (2) relied on the VE's finding as
to the work in the national economy that someone with Plaintiff's
limitations could perform.
A.
The ALJ did not err
the limitations set
witnesses, and Drs.
hypothetical to the
when she failed to include all of
out by Plaintiff, the lay
Glassberg and Kehrli in her
VE.
Because the Court has found the ALJ properly rejected
Plaintiff's testimony, lay-witness testimony, and the portion of
Dr. Kehrli's testimony related to Plaintiff's ability to perform
handling and fingering and also properly assigned some weight to
Dr. Glassberg's opinion, the Court concludes the ALJ did not err
at Step Five when she failed to include some of the limitations
indicated in that testimony and those opinions in her assessment
of Plaintiff's ability to do other jobs existing in the national
economy.
B.
The ALJ did not err when she relied on the VE's finding
as to the work in the national economy that someone
with Plaintiff's limitations could perform.
Plaintiff contends the ALJ erred when she relied on the
VE's finding as to the work in the national economy that someone
with Plaintiff's limitations could perform because the jobs
19 - OPINION AND ORDER
identified by the VE did not adequately account for the sit/stand
limitations in Plaintiff's RFC.
The VE identified two jobs at Step Five:
hand-packager.
assembler and
Plaintiff contends the VE did not properly
address Plaintiff's sit/stand limitations in opining a person
with Plaintiff's limitations could perform these jobs because
these are both "unskilled, production-paced types of jobs, which
usually do not allow for a sit/stand option."
Plaintiff points
out that the Commissioner has 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.
* * *
There are some jobs in the national
economy--typically professional and managerial
ones--in which a person can sit or stand with a
degree of choice. . . . However, most jobs have
ongoing work processes which demand that a worker
be in a certain place or posture for at least a
certain length of time to accomplish a certain
task. 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
occupational base.
SSR 83-12, at *4.
Here the ALJ consulted with the VE at the hearing and
specifically included Plaintiff's limitations in her
hypotheticals as to Plaintiff's ability to sit and to stand as
20 - OPINION AND ORDER
set out in the RFC.
The VE opined even with those limitations
Plaintiff could perform the jobs of assembler and hand-packager.
There is not any indication in the record that the ALJ failed to
include Plaintiff's sit/stand options in her hypotheticals to the
VE or that the VE failed to consider them in his recommendation.
Accordingly, on this record the Court concludes the ALJ
did not err when she relied on the VE's finding as to the work in
the national economy that someone with Plaintiff's limitations
could perform because the jobs identified by the VE included
consideration of Plaintiff's sit/stand limitations as set out in
the RFC.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 21st day of November, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
21 - OPINION AND ORDER
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