Lee, Karyn v. Colvin, Carolyn

Filing 20

ORDER affirming Commissioner decision regarding Social Security benefits RE: 10 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 3/25/14. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - KARYN ANN LEE,
OPINION AND ORDER
Plaintiff,
13-cv-189-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an appeal of an administrative decision denying plaintiff Karyn Ann Lee’s
claim under the Social Security Act, 42 U.S.C. § 405(g), for disability benefits and
supplemental security income. The administrative law judge found that plaintiff suffered
from a severe impairment in the form of “degenerative spinal changes” but that she was not
disabled because she retained the ability to perform past jobs she had as a “dispatcher/gate
tender/security monitor” and “shelter coordinator.”
Plaintiff argues that the administrative law judge erred by finding that “the Claimant
could perform sedentary work” and that “his decision was supported by the vocational
expert’s testimony.” Plt.’s Br., dkt. #11, at 1. Because these are plaintiff’s only arguments
and they rely on a misunderstanding of the administrative law judge’s findings and the
vocational expert’s testimony, I am affirming the decision.

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OPINION
A. Residual Functional Capacity Assessment
Plaintiff says that the administrative law judge found that she “could perform the full
range of sedentary work,” which she says is inconsistent with the opinion of her treating
physician, Marc Durette, as well as radiological evidence and her own testimony. Plt.’s Br.,
dkt. #11, at 3.

The first problem with this argument is that it mischaracterizes the

administrative law judge’s finding. The administrative law judge stated that plaintiff could
perform sedentary work “that would allow for changes in position (sit/stand) as needed.”
AR 27. Plaintiff simply ignores that qualifier in the administrative law judge’s decision and
has not shown that the administrative law judge’s actual assessment is incorrect.
With respect to the treating physician’s opinion, Dr. Durette found that plaintiff
could lift ten pounds occasionally, sit for 15 minutes at a time, stand for 10 minutes at a
time and walk one block but could not bend repeatedly, AR 555, which is consistent with
the administrative law judge’s decision. Under the regulations and agency rulings, sedentary
work “involves lifting no more than 10 pounds at a time,” 20 C.F.R. § 404.1567(a), and no
more than occasional walking or bending. SSR 83-14. Although the regulations do not say
how long a person doing sedentary work should be able to walk, the commissioner cites
Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir. 1989), in which the court held that a person
who could “walk a block or two” could do sedentary work.

Although the full range of

sedentary work would require plaintiff to sit more than 15 minutes at a time, the
administrative law judge’s additional limitation of allowing plaintiff to alternate between

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sitting and standing as needed would accommodate that part of Durette’s opinion.
With respect to the radiological findings, plaintiff lists the results of her lumbar
myelogram, a CT of her lumbar spine and two MRIs, but she does not explain how any of
these results are inconsistent with the administrative law judge’s finding, so she has forfeited
that argument. Finally, with respect to her own testimony, plaintiff points to statements
that she cannot lift more than ten pounds, that she can stand for about 10 minutes and that
she can sit for about 20 to 30 minutes, AR 80-82, but, again, she does not even attempt to
explain how her testimony is inconsistent with the administrative law judge’s decision.
Accordingly, I conclude that plaintiff has failed to show that the administrative law judge’s
residual functional capacity assessment is not supported by substantial evidence. 42 U.S.C.
§ 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971).

B. Vocational Expert
At the end of her brief, plaintiff says that the “vocational expert never testified that
the Claimant could perform her past relevant work.” Plt.’s Br., dkt. #11, at 7. Again, that
is inaccurate.

The vocational expert testified that plaintiff’s past jobs as a shelter

coordinator, dispatcher and gate tender are classified by the Dictionary of Occupational
Titles as sedentary work. AR 90. In addition, she said that each of the jobs would permit
a person to alternate between sitting and standing as needed. AR 91. Because plaintiff does
not challenge that testimony and it is consistent with the administrative law judge’s residual
functional capacity assessment, the administrative law judge was entitled to rely on the

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testimony to find that plaintiff could perform her past relevant work.

ORDER
IT IS ORDERED that plaintiff Karyn Ann Lee’s motion for summary judgment is
DENIED and the decision of defendant Carolyn W. Colvin, Acting Commissioner of Social
Security, is AFFIRMED. The clerk of court is directed to enter judgment in favor of
defendant and close this case.
Entered this 25th day of March, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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