Pollander v. Commissioner of the Social Security Administration

Filing 33

ORDER adopting in part 26 Report and Recommendation and affirming the Commissioner's decision. Signed by Honorable David C. Norton on 3/12/2014. (gcle, 3/12/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
FREIDA POLLANDER,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

No. 4:12-cv-01971-DCN

ORDER

This matter is before the court on United States Magistrate Judge Thomas E.
Rogers, III’s Report and Recommendation (“R&R”) that the court reverse the
Commissioner’s decision denying claimant Freida Pollander’s (“Pollander”) application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The
Commissioner has filed objections to the R&R. For the reasons set forth below, the court
adopts the R&R in part and affirms the Commissioner’s decision.
I. BACKGROUND
Unless otherwise noted, the background of this case is taken from the R&R.
A. Procedural History
Pollander filed an application for DIB and SSI on June 1, 2005, alleging that she
became unable to work on March 24, 2004. Tr. 17. The Social Security Administration
(“the Agency”) denied her application initially and on reconsideration. After a hearing
held on September 26, 2008, an administrative law judge (“ALJ”) determined that
Pollander was not disabled. The ALJ’s finding became the final decision of the
Commissioner when the Appeals Council denied further review. Pollander appealed to

1

this court and the Hon. Joseph F. Anderson, Jr. reversed the Commissioner’s decision and
remanded the case for further proceedings on March 22, 2011. Tr. 699.
On remand, ALJ Gregory M. Wilson held a hearing on January 31, 2012. Tr.
1115. Pollander testified at the hearing, as did vocational expert (“VE”) Carroll
Crawford. Id. In an opinion issued on February 10, 2012, the ALJ again determined that
Pollander was not disabled. The ALJ’s opinion became the final decision of the
Commissioner when the Appeals Council denied review on May 17, 2012. It is this
decision that is the subject of Pollander’s present lawsuit.
Pollander filed this action for judicial review on July 16, 2012. On February 21,
2013, she filed a brief seeking remand for further proceedings. The Commissioner
responded to Pollander’s brief on April 22, 2013.
On February 6, 2014, the magistrate judge issued the R&R, recommending that
the Commissioner’s decision be overturned and the case be remanded pursuant to
sentence four of 42 U.S.C. § 405(g). R&R 10. The Commissioner objected to the R&R
on February 24, 2014. Pollander neither objected to the R&R nor responded to the
Commissioner’s objections. This matter has been fully briefed and is now ripe for the
court’s review.
B. Pollander’s Medical History
Because a recitation of Pollander’s medical history is not particularly helpful to
the disposition of this case, the court here recites only a few relevant facts. Pollander was
born on January 27, 1964 and was forty years old on her alleged disability onset date. Tr.
24. She has a limited education and past relevant work as a house cleaner, a packer, an
inspector, and an auto parts delivery person. Id.

2

C. ALJ’s Findings
The Social Security Act defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 20 C.F.R. § 404.1505. The Social Security regulations establish a fivestep sequential evaluation process to determine whether a claimant is disabled. See 20
C.F.R. §§ 404.1520, 416.920. Under this process, the ALJ must determine whether the
claimant: (1) is currently engaged in substantial gainful activity; (2) has a severe
impairment; (3) has an impairment which equals an illness contained in 20 C.F.R. § 404,
Subpt. P, App’x 1, which warrants a finding of disability without considering vocational
factors; (4) if not, whether the claimant has an impairment which prevents her from
performing past relevant work; and (5) if so, whether the claimant is able to perform
other work considering both her remaining physical and mental capacities (defined by her
residual functional capacity) and her vocational capabilities (age, education, and past
work experience) to adjust to a new job. See 20 C.F.R. § 404.1520; Hall v. Harris, 658
F.2d 260, 264-65 (4th Cir. 1981). The applicant bears the burden of proof during the first
four steps of the inquiry, while the burden shifts to the Commissioner for the final step.
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d
31, 35 (4th Cir. 1992)).
To determine whether Pollander was disabled from March 24, 2004, through the
date of his decision, the ALJ employed the statutorily-required five-step sequential
evaluation process. At step one, the ALJ found that Pollander did not engage in

3

substantial gainful activity during the period at issue. Tr. 629. At step two, the ALJ
found that Pollander suffered from the following severe impairments: carpal tunnel
syndrome, chronic obstructive pulmonary disease, obstructive sleep apnea, degenerative
disc disease, arthritis of the knees, and obesity. Tr. 630. At step three, the ALJ found
that Pollander’s impairments or combination thereof did not meet or medically equal one
of the impairments listed in the Agency’s Listing of Impairments. Tr. 636. Before
reaching the fourth step, the ALJ determined that Pollander retained the residual
functional capacity (“RFC”) to perform medium work. Tr. 638. Specifically, the ALJ
found that Pollander could lift and carry up to fifty pounds occasionally and up to twentyfive pounds frequently; stand and walk for a total of six hours during an eight-hour
workday; sit for six hours in an eight-hour work day; frequently climb, balance, stoop,
kneel, crouch, or crawl; and occasionally climb ropes, ladders, and scaffolds. Id. The
ALJ also limited Pollander “to frequent handling and fingering in the upper extremities
bilaterally” and stated that she must avoid concentrated exposure to fumes and hazards.
Id. At step four, the ALJ found that Pollander was capable of performing her past
relevant work as a packer. Tr. 652. The ALJ also specifically found that Pollander was
capable of performing the requirements of the following medium, unskilled
representative occupations: order filler, sandwich maker, and kitchen helper. Tr. 653.
Finally, at the fifth step, the ALJ found that Pollander could perform jobs existing in
significant numbers in the national economy and concluded that she was not disabled
during the period at issue. Id.

4

II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). This court is not required to review the factual findings and legal conclusions
of the magistrate judge to which the parties have not objected. See id. The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination remains with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t is not within the province of a reviewing court to determine the weight of
the evidence, nor is it the court’s function to substitute its judgment for that of the
[Commissioner] if [her] decision is supported by substantial evidence.” Id.
III. DISCUSSION
The magistrate judge found that the ALJ committed two errors: (i) the ALJ failed
to elicit an explanation for the conflicts between the VE’s testimony and the Dictionary
of Occupational Titles (“DOT”); and (ii) the ALJ failed to perform the function-byfunction analysis required by SSR 96-8p by failing to address whether Pollander has any
limitations on her ability to reach. The Commissioner objects to the magistrate judge’s

5

second finding only, explaining that if the ALJ did, in fact, properly assess Pollander’s
ability to reach, then any other error by the ALJ would have been harmless.
Neither party objects to the magistrate judge’s first finding. The court has
reviewed both the R&R and the record and finds no clear error. As a result, the court
adopts the magistrate judge’s recommendation that the ALJ erred by failing to elicit an
explanation the conflict between the VE’s testimony and the DOT. What remains to be
considered is whether the ALJ’s failure to specifically discuss Pollander’s ability to reach
amounts to a failure to conduct the function-by-function analysis required by SSR 96-8p.
SSR 96-8p states that:
When there is no allegation of a physical or mental limitation or restriction
of a specific functional capacity, and no information in the case record that
there is such a limitation or restriction, the adjudicator must consider the
individual to have no limitation or restriction with respect to that
functional capacity.
[ ] The RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs (b), (c),
and (d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary, light,
medium, heavy, and very heavy.
SSR 96-8P, 1996 WL 374184, at *1 (July 2, 1996). 20 C.F.R. § 404.1545(b) includes
“reaching” as one of the physical demands of work activity that the Agency considers
when assessing a claimant’s physical RFC.
The Commissioner agrees with the magistrate judge that the ALJ’s decision does
not discuss any limitations on Pollander’s ability to reach. However, the Commissioner
argues that “by not identifying any limitation in Plaintiff’s ability to reach, the ALJ made
the implicit finding that Plaintiff had no such limitation.” Comm’r’s Objections 3. In
support of her argument, the Commissioner cites to Hines v. Barnhart, 453 F.3d 559, 563
6

(4th Cir. 2006), in which the Fourth Circuit explained that, in light of SSR 96-8p, an
ALJ’s decision that a claimant could perform “a wide range of sedentary work”
“implicitly contained a finding that [the claimant] physically is able to work an eight hour
day.” The Commissioner also cites to Depover v. Barnhart, 349 F.3d 563, 568 (8th Cir.
2003), in which the Eighth Circuit found that an ALJ had implicitly found that a plaintiff
was not limited in his ability to sit, stand, or walk. The Depover court’s decision rested
on a variety of factors. First, the RFC in question addressed only areas in which the
plaintiff had limitations, not areas in which he had no limitations. 349 F.3d at 567.
Second, at the hearing, the ALJ had posed a hypothetical to the VE that included the
limitations in sitting, standing, and walking to which the plaintiff had testified. Id. Third,
the ALJ’s decision noted that the plaintiff had testified that he could not stand for long
periods of time. Id. For all these reasons, the Eighth Circuit found that the ALJ had
implicitly found that the plaintiff was not limited in the areas of sitting, standing, or
walking.
In the present case, Pollander testified that her cervical disc disease caused her
arms and hands “to go numb,” and that she has difficulty dressing herself because she
“can’t hardly lift my arms or anything.” Tr. 1125, 1130. In his decision, the ALJ found
that Pollander’s statements regarding the intensity, persistence and limiting effects of her
symptoms were not credible, a finding to which Pollander has not objected. Tr. 640. The
ALJ also extensively discussed the medical evidence relating to Pollander’s neck and arm
pain, noting the many medical examinations that found normal muscle strength, range of
motion, and nerve responses in her arms. See, e.g., Tr. 631-33. After a discussion of the
medical evidence relating to Pollander’s arm pain, the ALJ found that “the objective

7

medical evidence does not support the imposition of additional limitations” other than
those that he had included in his RFC.1 Tr. 648.
While the ALJ did not specifically discuss whether Pollander is limited in her
ability to reach, he did explain that additional limitations based upon her carpal tunnel
syndrome and arm pain were unwarranted. Tr. 647-48. These findings are undoubtedly
supported by substantial evidence, as the ALJ discussed a wide variety of medical records
that supported his determination. Though Depover is not binding on this court, the court
finds its reasoning persuasive in this case. The ALJ’s decision in this case demonstrates
that he thoroughly assessed Pollander’s physical limitations with respect to her arms and
hands. His statement that additional limitations need not be included in Pollander’s RFC
indicates that the ALJ considered whether any reaching restrictions were warranted and
decided that they were not. Additionally, the ALJ’s analysis complies with SSR 96-8p
because Pollander never alleged an inability to reach and the medical record does not
support such a finding. The ALJ did not run afoul of SSR 96-8p by failing to discuss
Pollander’s ability to reach. Remand is not warranted on this ground.
In summary, the ALJ failed to resolve the conflicts between the DOT and the
VE’s testimony regarding Pollander’s ability to perform her past relevant work as a
packer and other medium unskilled work such as sandwich maker or kitchen helper.
However, this error is harmless because the ALJ properly found that Pollander could
perform medium unskilled work as an order filler. Though the position of order filler
requires frequent reaching, the ALJ’s extensive opinion shows that he considered – and
rejected – the need for any limitations on Pollander’s ability to reach.
1

While Pollander repeatedly sought medical treatment for leg, arm, and shoulder pain, the ALJ
determined that this pattern may have been a part of her drug-seeking behavior. Tr. 647.

8

IV. CONCLUSION
For the reasons set forth above, the court ADOPTS IN PART the magistrate
judge’s Report & Recommendation, and AFFIRMS the Commissioner’s decision.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 12, 2014
Charleston, South Carolina

9