PRINKEY v. ASTRUE
Filing
20
MEMORANDUM JUDGMENT ORDER granting 15 Plaintiff's Motion for Summary Judgment and denying 16 Defendant's Motion for Summary Judgment. The Commissioner's decision of 12/18/09 is reversed and this case is remanded to the Commissioner for further proceedings pursuant to sentence 4 of 42 USC Section 405(g). See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 10/1/12. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RAYMOND PRINKEY,
Plaintiff,
v.
Civil Action No. 11-65J
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
/,a{' day
this
of
October,
2012,
upon
due
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner
of
Social
("Commissioner" )
Security
denying
plaintiff's application for supplemental security income ("SS1")
under Title XVI of the Social Security Act ("Act"), IT IS ORDERED
that plaintiff's motion for summary judgment (Document No. 15) be,
and the same hereby is, granted, and the Commissioner's motion for
summary judgment
denied.
(Document No.
16)
be,
and the same hereby is,
The Commissioner's decision of December 18, 2009, will be
reversed and this case will be remanded to the Commissioner for
further
proceedings
consistent
with
this
opinion pursuant
to
sentence 4 of 42 U.S.C. §405(g).
When the
Commissioner determines
that
a
claimant
is
not
"disabled" within the meaning of the Act, the findings leading to
such a
conclusion must
be
based upon
substantial
evidence.
II&AO 72
(Rev. 8/82)
"Substantial
evidence
has
been defined
as
I
more
than a
mere
scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate.
(3d Cir. 1999)
I"
Plummer v. Apfel, 186 F.3d 422, 427
(citation omitted) .
Despite the deference to administrative decisions required by
this
standard,
reviewing
courts
'" retain
a
responsibility to
scrutinize the entire record and to reverse or remand if the
[Commissioner's)
evidence.'"
decision
is
Morales v. Apfel,
not
supported
225 F.3d 310,
by
317
substantial
(3d Cir. 2000)
(quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)}.
evaluating
findings,
whether
substant
"'leniency
evidence
[should)
be
shown
supports
in
an
In
ALJ's
establishing
the
claimant's disability, and ... the [Commissioner's) responsibility
to
rebut
it
[should)
be
,"
strictly construed
Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)
Reef§!r v.
(quoting Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979».
Plaintiff filed his pending application for SSI on February
23, 2006, alleging disability beginning February 1, 2006, due to
osteoarthritis.
Plaintiff's application was denied initially.
At
plaintiff's request an ALJ held a hearing on August 22, 2007, at
which plaintiff appeared and testified.
On August 31, 2007, the
ALJ issued a decision finding that plaintiff is not disabled.
However,
the
Appeals
Council
subsequently
vacated
the
ALJ's
decision and remanded for further consideration.
On October 7,
2009,
plaintiff
another hearing before an ALJ.
appeared and testified at
On December 18,
2009,
the ALJ
issued a decision again finding that plaintiff is not disabled.
'Aon
(Rev. 8/82)
- 2
On February 10, 2011, the Appeals Council denied review making the
ALJ's
December 18,
2009,
decision
the
final
decision of
the
Commissioner.
Plaintiff was 48 years old on the date he applied for SSI,
which is classified as a younger person under the regulations.
C.F.R. §416.963{c).
the ALJ's
However, he was 52 years old at the time of
decision,
approaching
advanced
§416. 963 (d) .
which
is
age
under
Plaintiff
§416.964{b) (3).
20
has
classified as
a
the
a
person closely
regulations.
20
C.F.R.
limited education.
20
C.F.R.
He has past relevant work experience as a sawmill
laborer and equipment operator, but has not engaged in substantial
gainful activity since his alleged onset date.
After
testimony
reviewing
from
plaintiff's
plaintiff
and
a
medical
records
vocational
and
expert,
hearing
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The ALJ found that although the medical evidence establishes
that plaintiff suffers from the severe impairments of history of
right
knee
osteoarthritis,
right
obstructive pulmonary disease,
knee
meniscus
hypertension,
tear,
chronic
hyperlipidemia and
obesity, those impairments, alone or in combination, do not meet
or equal the criteria of any of the impairments listed at 20
C.F.R., Part 404, Subpart P, Appendix 1.
The ALJ further found that although plaintiff's impairments
preclude him from returning to his past relevant work, he retains
the
residual
functional
certain modifications
capacity
recognizing the
'IloA072
(Rev. 8/82)
to
-
3
perform
light
work
with
limiting effects of his
impairments including, inter alia, he is limited to "occasional
standing or walking, no more than two hours out of an eight hour
work daytt as well as no more than occasional postural maneuvers
and no more than occasional pushing and pulling with the lower
extremities to include the operation of foot pedals.
Taking into account these limiting effects,
expert
identified
plaintiff
can
numerous
perform
experience and residual
seller,
categories
based
upon
functional
his
of
capacity,
routing clerk and information clerk.
vocational expert's testimony,
capable
of
making
an
a vocational
light
age,
(R. 19).
jobs
which
education,
including
work
ticket
Relying on the
the ALJ found that plaintiff is
adjustment
to
work
significant numbers in the national economy.
which
exists
in
Accordingly, the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
of at
least
twelve months.
42
U.S.C.
§1382c{a) (3) (A).
The
impairment or impairments must be so severe that the claimant "is
not only unable to do his previous work but cannot, considering
his age, education and work experience, engage in any other kind
of substantial gainful work which exists in the national economy
"
42 U.S.C.
§1382c(a) (3) (B).
The Commissioner has promulgated regulations incorporating a
five-step sequential evaluation process for determining whether a
'IM072
(Rev. 8182)
-
4
claimant is under a disability.l
20 C.F.R.
§416.920i
Newell v.
Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003).
If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further.
.j
see Barnhart v. Thomas,
124 S.Ct. 376 (2003).
Here, plaintiff challenges the ALJ's finding at step 5 of the
sequential evaluation process.
Specifically, plaintiff alleges
that: (1) the restrictions set forth in the ALJ/s residual factual
capacity finding preclude plaintiff from performing any "light
work" as it is defined in the regulations and instead are more
consistent with a maximum sustained work capability for sedentary
work; and
(2)
I
the restriction in the ALJ/s residual functional
capacity finding limiting plaintiff to no more than two hours of
standing
or
walking
in an
8-hour workday precludes
him
from
performing any of the jobs identified by the vocational expert
upon which the ALJ relied in finding him not disabled. 2
1
The ALJ must determine in sequence:
(1) whether the claimant
is currently engaged in substantial gainful activity; (2) if not,
whether he has a severe impairment; (3) if so, whether his impairment
meets or equals the criteria listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1; (4) if not, whether the claimant's impairment prevents him
from performing his past-relevant work; and (5) if so, whether the
claimant can perform any other work which exists in the national
economy I in light of her agel education l work experience, and residual
functional capacity. 20 C.F.R. §416.920. See also Newell, 347 F.3d at
545-46.
2
Plaintiff raises several additional arguments: (1) that the ALJ
improperly
ected the consultative examiner's assessment that
plaintiff is limited to standing and walking "less than an hour"; (2)
that plaintiff/s testimony concerning his inability to stand and walk
for prolonged periods supports the consultative examiner's assessment;
and l (3) the ALJ failed to consider the effects of plaintiff/s obesity
in combination with his other impairments.
The court has considered
these arguments and finds each of them to be without merit. The court
'Aon
(Rev. 8/82)
-
5
Upon consideration of the applicable regulations, rulings and
case law,
the court agrees that the ALJ's residual functional
capacity finding that plaintiff can do a limited range of light
work is not supported by substantial evidence.
At step 5 of the sequential evaluation process the ALJ must
show that there are other jobs existing in significant numbers in
the national economy which the claimant can perform consistent
with
his
medical
experience,
and
§416. 920 (f) .
impairments,
residual
age,
functional
Residual functional
education,
capacity.
past
20
work
C.F.R.
capacity is defined as that
which an individual still is able to do despite the limitations
caused
by
his
or
her
impairments.
20
C.F.R.
§416.94S(a)i
Fargnoli, 247 F.3d at 40.
Here, the ALJ found that:
"[plaintiff] has the residual factual capacity to
perform light work as defined in 20 C.F.R. 416.967(b),
except [he]
is limited to occasional standing or
walking, no more than two hours out of an eight hour
work day, is limited to no more than occasional postural
maneuvers ... is limited to no more than occasional ...
pushing and pulling with the ... lower extremities to
include the operation of ... foot pedals .... "
(R.
19).
Neither plaintiff nor the Commissioner disputes that all of
the restrictions found by the ALJ are supported by substantial
is satisfied that the ALJ adhered to the appropriate standards in
evaluating the medical evidence (20 C.F.R. §416.927 and 416.945; SSR 96
2p and 96-8p) and plaintiff's SUbjective complaints of pain and
limitations (20 C.F.R. §416.929(c); SSR 96-7p) and that his findings
adequately are explained and supported by substantial evidence. (R. 22
23). It also is clear from the ALJ's decision that he complied with SSR
02-1p and considered any additional and cumulative effects of obesity
when assessing plaintiff's residual functional capacity. (R. 23).
~A072
(Rev. 8/82)
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evidence in the record.
Rather, the only issue before this court
is whether the ALJ properly found, with those restrictions, that
plaintiff
has
the
residual
functional
capacity
to
perform a
limited range of light work.
Here,
plaintiff
argues,
and
the
court
agrees,
that
the
limitations set forth in the ALJ's residual functional capacity
finding that plaintiff can stand or walk "no more than two hours"
out of an eight-hour work day and that he can do no more than
occasional "pushing and pulling with the lower extremities" are so
restrictive as to effectively preclude plaintiff from performing
even a
limited range
of
light work
as
it
is
defined
in the
regulations.
First,
under
the
regulations
and
rulings,
standing
and
walking "no more than two hours" is the maximum amount that an
individual limited to sedentary work can do.
Al though a sedentary
job is defined as one which involves sitting,
recognize that
"a certain amount of
the regulations
standing and walking are
required occasionally in carrying out job duties.
§416. 967 (a) .
20 C.F.R.
II
SSR 83-10 explicitly states that "since being on
onels feet is required 'occasionallyl at the sedentary level of
exertion l periods of standing or walking should generally total no
more than about 2 hours of an 8-hour workday.
Likewise, SSR 96
II
9p provides that "the full range of sedentary work requires that
an
individual
be
able
to
stand
and
walk
approximately 2 hours during an 8-hour workday.
~A072
(Rev. 8/82)
- 7
II
for
a
total
of
(emphasis added) .
It is axiomatic that residual functional capacity is not the
least an individual can do despite his limitations but the most.
SSR
96 - 8p i
"maximum
see also
SSR 83 -10
sustained
(RFC
capability
is used
for
to determine
work")
i
20
the
C.F.R.
§416. 945 (a) ("your residual functional capacity is the most you can
still do despite your limitations").
Here, although the ALJ found
that plaintiff can do a reduced range of light work, he also found
that plaintiff can not stand or walk more than 2 hours in an 8
hour workday, the most an individual limited to the full range of
sedentary work can do.
pushing and pulling,
functional
Coupled with the limitation of occasional
the court believes that the ALJ's residual
capacity finding more properly is
characterized as
limiting plaintiff to at most sedentary work.
Moreover,
the restrictions set forth in the ALJ's residual
functional capacity are incompatible with the definition of light
work set forth in the regulations.
20 C.F.R. §416.967(b) defines
"light work" as work which involves lifting no more than 20 pounds
with frequent lifting of up to 10 pounds.
instructs
that
"[e] ven
though
the
The regulation further
weight
lifted may be
very
little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time
with some pushing and pulling of leg and arm controls."
SSR 83-10 expands upon the definition of light work.
Under
that ruling "the full range of light work requires standing or
walking, off and on, for a total of approximately 6 hours of an 8
hour workday."
The ruling notes that "a good deal of walking or
~A072
(Rev. 8/82)
- 8
standing
[is]
light jobs
the primary difference between sedentary and most
(emphasis added).
ll
The ruling also instructs that a
job may be categorized as light when it "involves sitting most of
the time but with some pushing and pulling of arm-hand or leg-foot
controls, which require greater exertion than in sedentary work,
e.g., mattress sewing machine operator, motor-grader operator and
road-roller operator. 1I
Here,
the
ALJ's
restricting plaintiff
effectively
residual
to
eliminates
functional
only occasional
any
light
work
capacity
finding
standing or walking
as
defined
in
the
regulations with the exception of sitting jobs that require
~some
pushing
which
and pulling
of
arm-hand
or
leg- foot
controls,
require greater exertion than in sedentary work.1I
However, the
ALJ also restricted plaintiff to only "occasional pushing and
pulling with
the
upper
and
lower extremities
operation of hand levers and foot pedals."
to
include
(R. 19).
the
Although
neither the regulations nor the specifically define "some pushing
and pulling," the examples set forth in SSR 83-10 suggest that
light sitting jobs generally involve the operation of machinery
such as mattress sewing machines, motor-graders and road-rollers,
which clearly require more than occasional pushing and pulling
with hand levers and/or foot pedals.
Because the restrictions set forth in the ALJ's residual
functional capacity finding preclude plaintiff from performing
"light" work as it is defined in the regulations, and,
in fact,
limit plaintiff to a maximum sustained capability for sedentary
'Aon
(Rev. 8182)
- 9
work, this court finds that the ALJ's residual functional capacity
finding supports the conclusion that plaintiff is limited to no
more than sedentary work, with the other restrictions supported by
the record.
Cir.
See,
2002) (ALJ's
~,
Rush v. Barnhart,
residual
functional
45 Fed.Appx. 191
capacity
finding
(3d
that
plaintiff was limited to light work with restrictions including,
inter alia,
a
sit-stand option and no
prolonged standing or
walking, more properly characterized as sedentary).3
Having concluded that the ALJ's finding that plaintiff has
the residual functional capacity for light work with restrictions
is not supported by substantial evidence,
the court must also
conclude that the ALJ's step 5 finding that plaintiff is ca;pable
of
making an adjustment
numbers
to
work which exists
in significant
in the national economy likewise is not
substantial evidence,
necessitating a
additional
consideration
plaintiff's
age,
functional
restrictions
education,
capacity
is
as
for
capable
to
work
sedentary
of
support~d
by
remand of this case for
whether
an
experience
work
performing
with
work
individual
and
the
a
of
residual
enumerated
existing
in
the
national economy.
3
The Commissioner argues that "there is no support for the
proposition that a finding of a limited range of light work
automatically translates to a finding of an RFC for sedentary work."
The court agrees in principle.
However, where, as here, a claimant's
residual functional capacity is reduced to the point that he is limited
to no more than the maximum sustained walking and standing capability
required for sedentary work, and also to only occasional pushing and
pulling with the lower extremities, it is appropriate to conclude that
plaintiff has the residual functional capacity only for sedentary work
and not merely for "a limited range of light work."
'!!o.Aon
(Rev. 8/82)
- 10
In this regard, plaintiff argues that a finding that he has
a
residual functional capacity limited to sedentary, rather than
light,
work
with
the
enumerated
restrictions:
(1)
compels
a
finding of "disabled" as of the date he turned 50 years old under
the Medical-Vocational Guidelines, or "grids", as set forth in 20
C.F.R.,
Part 404,
Subpart P, Appendix 2; and,
(2)
for the time
period from his onset date to his 50 th birthday, requires a remand
for reconsideration of whether the restriction limiting him to no
more than two hours of standing or walking in an 8-hour workday
precludes him from performing any of the jobs identified by the
vocational expert upon which the ALJ relied in finding him not
disabled.
The court first will address plaintiff's contention that he
is disabled under the Grids as of the date he turned 50. 4
grids
set
out
various
combinations
of
age,
education,
The
work
experience and residual functional capacity and direct a finding
of disabled or not disabled for each combination.
Part 404,
Subpart P,
Appendix 2.
See 20 C.F.R.
When the four factors in a
claimant's case correspond exactly with the four factors set forth
in the grids,
Sykes v.
the ALJ must reach the result the grids reach.
Apfel,
228
F.3d 259,
263
(3d Cir.
2000);
20
C.F.R.
§404.1569; 20 C.F.R., Part 404, Subpart P, Appendix 2, §200 .. 00.
4 Plaintiff was 48 years old on the date he applied for SSI, which
20 C.F.R.
is classified as a younger person under the regulations.
§416. 963 (c) .
On March 20, 2007, however, he turned 50 and became
classified as a person closely approaching advanced age under the
regulations.
20 C.F.R. §416.963(d).
'A072
(Rev. 8182)
- 11
Plaintiff contends that for an individual closely approaching
advanced
age,
with
a
limited
education,
whose
previous
work
experience was skilled and semi-skilled, and who retains a maximum
sustained work capability limited to sedentary work, a finding of
disabled is compelled under Grid Rule 201.10.
However, while Grid Rule 201.10 in fact does compel a finding
of "disabled" for an individual as described by plaintiff ang who
has non-transferable work
skills,
finding of
for the same individual but who has
"not disabled"
===-:::..::::::.:=-==.:::::. work skills.
grid Rule
201.11
directs
a
Here, because the ALJ erroneously found
that plaintiff had a residual functional capacity for light work,
he found that "transferability of skills is not material to the
determination
of
disability
because
framework supports a finding that
using
[plaintiff]
the
[grids]
is 'not
whether or not [he] has transferable job skills."
(R.
as
a
disa~led'
24).
Accordingly, on remand, the ALJ must make a determination as
to
transferability of
job skills
to determine whether or not
plaintiff is disabled under the grids as of March 27,
2007, the
day he turned 50 and became classified as an individual closely
approaching advanced age.
If the ALJ finds that
plaintiff'~
job
skills from his previous skilled or semi-skilled work experience
are not transferable, a finding of disabled as of age 50 will be
compelled by the grids and plaintiff will be entitled to benefits
as of that date. s
5
plaintiff
If plaintiff's skills are found to be transferable because
has additional non-exertional restrictions limiting his
I
II!&A072
(Rev, 8/82)
- 12
The court also believes that additional consideration is
necessary on remand as to whether plaintiff was disabled as a
younger individual prior to reaching age 50.
At step 5, the ALJ
relied upon the testimony of a vocational expert who identified
numerous categories of light jobs which plaintiff could perform
based upon his age,
education,
work experience and a
functional capacity for light work with restrictions,
re~idual
including
ticket seller, routing clerk mail sorter and information clerk.
(R.24).
Plaintiff argues, however
I
that the restriction limiting him
,
to no more than two hours of standing or walking in an 8'-hour
workday precludes him from performing any of the jobs identified
by the vocational expert upon which the ALJ relied in finding him
not disabled.
Because there is an apparent conflict between the
testimony of the vocational expert as to the jobs that
pla~ntiff
can perform and the description of those jobs in the Dictionary of
occupational
Titles
( "DOT
II
)
I
the
court
cannot
find
that
substantial evidence supports the ALJ/s finding that work exists
in the national economy that plaintiff can perform notwithstanding
the ALJ's erroneous residual functional capacity finding.
ability to perform the full range of sedentary work, a finding of "not
disabled ll is not compelled by Rule 201.11, rather, the ALJ must use the
grids as a framework at step 5.
Sykes 228 F.3d at 263; AR 01~1(3);
Appendix 2, §200.00{e) (2) ("where an individual has an impairm~nt or
combination of impairments resulting in both strength limitatio~s and
non-exertional limitations ... the rule(s) reflecting the individual's
maximum residual strength capabilities l
agel
education and work
experience provide a framework for consideration of how much the
individual/s work capability is further diminished in terms of any types
of
jobs which would be contraindicated by the non-exertional
limitations.")
l
'Aon
(Rev. 8182)
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SSR 00-4p requires an ALJ to identify and obtain a reasonable
explanation for conflicts between occupational evidence proyided
by a vocational expert and information in the DOT and to explain
in his decision how any conflict that has been identified was
resolved.
Here,
all three of the
jobs identified by the vocational
expert, ticket seller (DOT 211.467-030), routing clerk mail sorter
(DOT 222.687-022),
classified
as
and information clerk
light
in
the
DOT.
(DOT 237.367-018)
However,
based
on
are
the
descriptions of those jobs in the DOT, it appears as though all of
them are classified as light because they require "a good deal of
walking or standing - the primary difference between sedenta~ and
most light jobs."
SSR 83-10.
Here, none of the DOT descriptions
suggest that these jobs require "more than occasional pushing and
pulling with hand levers and/or foot pedals," the only
typ~s
of
sitting jobs that fall within the definition of light work.
Significantly, SSR 83-10 explicitly notes that "[r]elatively
few unskilled light jobs are performed in a seated position."
Here, however, the vocational expert managed to identify 3 broad
categories of light jobs that plaintiff purportedly can petform
while seated 6 hours per workday,
but none of which appear to
require any sort of pushing or pulling with hand levers and/or
foot pedals at an exertional level beyond that typically required
of sedentary work.
Thus,
at a minimum,
there is an apparent
conflict between the DOT's description of the jobs identified by
the vocational expert and the vocational expert's testimony that
~A072
(Rev. 8/82)
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an individual limited to standing or walking no more than 2 hours
out of an 8-hour workday can perform those jobs.
Accordingly, on remand the ALJ must reconsider his step'S and
either obtain additional vocational testimony identifying other
jobs that an individual limited to less than the full range of
sedentary work can perform and/or explain his resolution of the
apparent conflict between the vocational expert's testimonY that
plaintiff, even if he is limited to less than the full range of
sedentary
work,
nevertheless
can
perform
the
light
jobs
he
previously identified and the descriptions of those jobs as set
forth in the DOT.
For the foregoing reasons,
plaintiff's motion for summary
judgment will be granted, the Commissioner's motion for summary
judgment will be denied,
and this case will be remanded to the
Commissioner for further proceedings consistent with this opinion.
~~
Gustave D~amond
,
United States District Judge
cc:
David M. Axinn, Esq.
P.O. Box 597
Hollidaysburg, PA 16648
Stephanie L. Haines
Assistant U.S. Attorney
319 Washington Street
Room 224, Penn Traffic Building
Johnstown, PA 15901
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