Opinion
Civil No. 01-279 JRT/AJB
November 9, 2001
Randall J. Fuller, Anoka, Minnesota, on behalf of Plaintiff.
Roylene A. Champeaux, Assistant United States Attorney for the District of Minnesota, on behalf of Defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
This matter is presently before the Court on the parties' Cross-Motions for Summary Judgment. Plaintiff Muriel B. Moser is seeking review of Defendant's decision denying her application for Disability Insurance Benefits. Plaintiff seeks an order reversing the decision and granting benefits. In the alternative, Plaintiff seeks an order remanding for further administrative action. Defendant asks the Court to affirm the decision. Jurisdiction and venue are proper pursuant to 42 U.S.C. § 405 (g). The matter is properly before the undersigned United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1. For reasons discussed below, it is recommended that Defendant's motion be granted and that Plaintiff's motion be denied.
II. PROCEDURAL HISTORY
On May 14, 1998, Plaintiff filed an application for a period of disability and disability insurance benefits, alleging that she became disabled on September 1, 1996 (Tr. 83-85). Plaintiff's claim was denied, both initially and on reconsideration. (Tr. 65-67, 72-74). Plaintiff made a timely request for a hearing before an Administrative Law Judge (ALJ). (Tr. 76). A hearing was held on June 21, 1999, in Minneapolis, Minnesota, before ALJ Diane Townsend-Anderson. (Tr. 40). In a decision dated October 13, 1999, the ALJ denied Plaintiff's claim. (Tr. 23-34). Plaintiff requested a review of the ALJ's decision (Tr. 9-22), and the Social Security Administration Appeals Council denied Plaintiff's request (Tr. 7-8), thereby making the ALJ's decision the final decision of the Defendant. Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996). On December 11, 2000, Plaintiff filed this civil action seeking review.
III. SUMMARY OF FACTS
Plaintiff was born on August 25, 1940 and was aged 58 years at the time of the administrative hearing. (Tr. 83). She has a high-school degree and her past relevant work includes employment as an insurance clerk and as a receptionist. (Tr. 92, 165). Plaintiff claimed to be disabled because of pain in her hip and leg, along with fatigue. (Tr. 88).
Plaintiff disputes that her past relevant work includes employment as an insurance clerk. This argument will be addressed in the text below.
A. REVIEW OF MEDICAL NOTES
On September 20, 1996, Plaintiff was admitted to St. John's Hospital in Maplewood, Minnesota, because of the onset of jaundice, fatigue and thrombocytopenia. (Tr. 167). Her primary attending physician was Dr. William M. Wiencke. (Tr. 166). Plaintiff underwent a gastroenterology consultation conducted by Dr. Ronald J. Pizinger, (Tr. 170-72), and a hematology consultation conducted by Dr. John F. Schwerkoske. (Tr. 168-69). Plaintiff responded to platelet transfusions. (Tr. 243). Upon discharge, on September 22, Dr. Wiencke noted a diagnosis of Hepatitis with thrombocytopenia. (Tr. 167). Plaintiff continued to receive platelet transfusions on an outpatient basis. On September 26, it was reported that Plaintiff, although still jaundiced, felt great. (Tr. 241).
"Jaundice is a condition produced when excess amounts of bilirubin circulating in the blood stream dissolve in the subcutaneous fat (the layer of fat just beneath the skin), causing a yellowish appearance of the skin and the whites of the eyes. With the exception of physiologic jaundice in the newborn (normal newborn jaundice), all other jaundice indicates overload or damage to the liver, or inability to move bilirubin from the liver through the biliary tract to the gut." University of Maryland Medicine, Yellow Skin, jaundice, at http://umm.drkoop.com/ conditions/ency/article.asp?id=003243 (last visited October 30, 2001).
"Platelets are cells in the blood that are essential to blood clotting. Thrombocytopenia includes disorders where there are not enough platelets, and disorders where the platelets do not function properly." University of Maryland Medicine, Thrombocytopenia, at http://umm.drkoop.com/conditions/ency/article/000586 (last visited October 30, 2001).
In October 1996, Dr. Schewerkoske reported that Plaintiff remained thrombocytopenic and he continued the diagnosis of hepatitis. He started her on a prescription of Prednisone. (Tr. 240, 250). In November 1996, it was reported that Plaintiff responded well to the Prednisone. (Tr. 237). Her platelet count was normal. Dr. Schewerkoske noted, however, that Plaintiff had been experiencing some problems with hypertension. (Tr. 248).
Prednisone is a generic name for a type of corticosteroid, which are prescribed for a wide variety of disorders, including blood disorders. THE PILL BOOK 226-27 (6th ed. 1994).
In January 1997, Dr. Schewerkoske reported that Plaintiff's thrombocytopenia was in stable remission, but he continued to report a diagnosis of hepatitis. In addition, he reported that Plaintiff's blood pressure remained high. Plaintiff reported that she fatigued quite easily and that she sometimes experienced pain in her left hip. (Tr. 233-34, 247).
On February 21, 1997, Dr. Pizinger noted that testing confirmed the earlier diagnosis of hepatitis. He further noted that Plaintiff "responded extremely well to treatment" and that Plaintiff offered no complaints other than those regarding the side effects of Prednisone (facial fullness, hypertension and increased abdominal girth). (Tr. 231). On February 26, 1997, it was noted that Plaintiff reported some mild tenderness in the left hip area. (Tr. 230).
In March 1997, Plaintiff again reported some pain in her left hip. (Tr. 292). In April 1997, it was reported that Plaintiff's thrombocytopenia was completely resolved. Plaintiff was no longer jaundiced, reported no aches or pains and had no real complaints. (Tr. 228).
In early June 1997, it was reported that Plaintiff's prescription for Prednisone was cut back to every other day. Although she reported the off days as being "somewhat difficult," it was noted that she was "otherwise doing perfectly well." (Tr. 227). In late June, it was noted that Plaintiff was no longer taking Prednisone. She reported a few episodes of hives, but was "otherwise feeling perfectly well." Her energy was good. (Tr. 226).
In August 1997, it was noted that Plaintiff's hives had completely resolved. Plaintiff only complained of being "somewhat fatigued." (Tr. 225). In late August and in September, there were indications that Plaintiff's condition was declining, (Tr. 244, 224), but in October, it was reported that her condition was improving. Plaintiff reported feeling well, except for some left leg pain. Otherwise, she had no specific complaints. (Tr. 223).
In November 1997, Plaintiff visited a physical therapist regarding the pain in her left hip and leg. After her initial visit, she did not return because of "insurance concerns." (Tr. 182, 187). In December 1997, Plaintiff reported feeling well, except for leg pain. She denied suffering from any other symptoms. (Tr. 222).
In a follow-up visit in February 1998, Plaintiff had no complaints. (Tr. 221). In April 1998, it was reported that an X-ray revealed some loss of joint space and some degenerative changes within the left hip joint. (Tr. 193).
In May 1998, it was noted that Plaintiff was doing well except for some pain in her hip. (Tr. 220). Plaintiff visited Dr. Jack Drogt, an orthopedic specialist. Although Dr. Drogt suspected Avascular necrosis, an MM revealed no evidence of such. The MM revealed osteoarthritic-type degenerative changes. (Tr. 191, 215).
In October 1998, Plaintiff reported no specific complaints, except for the left hip pain. Hip replacement was recommended "when her symptoms really do interfere with her life situation." (Tr. 219). In December 1998, it was noted that hip replacement was still being considered. (Tr. 295).
B. THE ADMINISTRATIVE HEARING
1. Plaintiff's Testimony
When asked why she could not work, Plaintiff said that she could not sit, stand or walk for long periods of time because of pain in her left hip and leg. Plaintiff testified that she could sit for 20-30 minutes, stand for 10-15 minutes and walk less than a city block. (Tr. 45-46). She also said she was having some trouble with headaches, fatigue and hand pain. (Tr. 45, 47-48). Plaintiff testified that Premarin and antenolol were her only prescribed medications. She took Advil for pain. (Tr. 47).
Plaintiff testified that she had to lie down for about 1/2 hour in the morning and 1-1 1/2 hour in the afternoon. (Tr. 51-52). She testified that she did some household chores, such as dish washing, dusting and bed making. According to Plaintiff, however, she could not vacuum, sweep, take a bath or do gardening. (Tr. 49, 51). Her hobbies included watching television, reading books and doing word puzzles. (Tr. 49). Although she could still drive a car, she could no longer drive/ride a snowmobile or a three-wheeler. (Tr. 54). She could bend over to pick up something, but had trouble straightening. (Tr. 50). Plaintiff testified that she did not use a walking aide and never stumbled or fell. (Tr. 53). She had no difficulty sleeping. (Tr. 55).
2. Medical Testimony
Dr. Andrew Steiner was present during the administrative hearing and was examined by the ALJ. Dr. Steiner testified that the record documented: (1) hepatitis, with associated depression of blood platelets, (2) left hip pain attributed to osteoarthritis and (3) high blood pressure. He noted that the hepatitis was improved and that the blood-platelet condition was stable. Dr. Steiner did not believe that Plaintiff's conditions met or equaled a listed impairment. He further testified that, because of her hip problems, Plaintiff was limited to sedentary level lifting and standing. Lastly, he testified that Plaintiff's residual functional capacity would need to account for some degree of fatigue. (Tr. 57-58).
3. Vocational Testimony
Norman Mastbaum, a vocational expert, testified at the administrative hearing. The ALJ presented Mr. Mastbaum with two hypothetical persons. The second hypothetical person was a woman:
• aged 58 years;
• with a high-school education and work experience as outlined in Mr. Mastbaum's vocational report;
• suffering from osteoarthritis, high blood pressure, hepatitis, fatigue and some hand pain;
• experiencing pain in the left hip, knee and leg;
• taking minimal medications, without side effects;
• able to lift 10 pounds occasionally and 5 pounds frequently;
• capable of occasional pushing, pulling, climbing stairs and ladders, bending, balancing, stooping, crouching, kneeling and crawling; and limited to a sit/stand option.
Mr. Mastbaum testified that this person could perform past relevant work. (Tr. 58-59).
Mr. Mastbaum then testified that his assessment would not change if the hypothetical person were limited to sitting and standing for less than 30 minutes at a time and needed to change position every 15 minutes. Lastly, Mr. Mastbaum opined that Plaintiff would be precluded from all competitive employment if she were required to lay down for about 1/2 hour in the morning and 1-1 1/2 hour in the afternoon. (Tr. 60-61).
IV. DISCUSSION
A. STANDARD OF REVIEW
Judicial review of Defendant's decision is limited to a determination of whether the decision is supported by substantial evidence on the record as a whole. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). (citations omitted). In reviewing the record for substantial evidence, the Court must consider both evidence that supports and evidence that detracts from Defendant's decision. Newton v. Chater, 92 F.3d 688, 692 (8th Cir. 1996) (citation omitted). The possibility that the Court may have weighed the evidence differently and drawn a different conclusion is not a basis for a reversal. Culbertson, 30 F.3d at 939 (citations omitted).
B. REGULATORY/STATUTORY FRAMEWORK
"The Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability." Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992) (citing 42 U.S.C. § 1382 (a)). "The term `disability' means — 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)(l)(A). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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. § 423 (d)(2)(A).
The Social Security Administration has adopted regulations, which establish a sequential, five-step procedure for determining whether a claimant is disabled within the meaning of the Social Security Act. First, it must be determined whether the claimant is currently engaged in substantial gainful activity. If so, the claimant cannot be found disabled. If not, the analysis proceeds to the second step, where it is determined whether the claimant has an impairment or combination of impairments, which significantly limits their physical or mental ability to perform basic work activities. If not, the claimant is not disabled. If a significant limitation is present, the analysis continues and, at the third step, it is determined whether the claimant has an impairment, which meets or equals an impairment listed in the regulations. If so, the claimant will be found disabled without regard to their age, education, or work experience.
If not, the analysis continues to the fourth step, where the claimant's residual functional capacity (RFC) is determined and compared with the physical and mental demands of past employment. If the claimant can still do past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the analysis proceeds to the fifth step, where the claimant's RFC, along with their age, education and past employment, is considered to determine if they can perform any other work. If not, the claimant is disabled. See 20 C.F.R. § 404.1520 (setting forth the five-step procedure); see also, Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987) (describing the five-step evaluation for determining whether a person is disabled).
C. ANALYSIS
1. The ALJ's Decision
In his decision, the ALJ applied the sequential, five-step analysis. First, the ALJ concluded that Plaintiff had not engaged in the level of gainful activity that precluded a finding of disability. Next, the ALJ concluded that Plaintiff suffered from severe impairments: steroid induced osteoarthritis, high blood pressure and hepatitis. At step three, the ALJ concluded that, while Plaintiff's impairments were severe, they did not reach the degree necessary to warrant a presumption of disability as prescribed by the regulations. (Tr. 32). The ALJ then determined Plaintiff's RFC:
The claimant has the residual functional capacity to perform the requirements of work in the sedentary category, including lift and carry ten pounds frequently and occasionally, sit, stand and walk for a total of six hours per day, at intervals such as to stand for fifteen minutes at a time, sit for thirty minutes, with an option to change position as needed. She may occasionally push and pull, climb stairs and ladders, bend, balance, stoop, crouch, kneel and crawl. She can follow four step instructions.
At step four in his analysis, the ALJ concluded that Plaintiff possessed the RFC to perform her past relevant work and therefore, concluded that Plaintiff was not disabled. (Tr. 33).
Plaintiff now challenges the ALJ's decision. In support of her Motion for Summary Judgment, Plaintiff presents a host of arguments, several of which are somewhat duplicitous. Essentially, Plaintiff argues that the ALJ: (I) improperly considered the record physician opinions, (2) improperly discounted Plaintiff's subjective complaints, and (3) relied on inaccurate vocational evidence.
2. Medical Opinions
In June 1999, Dr. Kenneth M. Koch completed an RFC assessment questionnaire. (Tr. 272-77). Dr. Koch opined that Plaintiff would not be able to perform any competitive work; not even part-time work. (Tr. 273). In her decision, the ALJ acknowledged Dr. Koch's opinion, but proceeded to discount it. (Tr. 30-31). Plaintiff argues that the ALJ erred in this regard. The Court disagrees.
The Court has scoured the medical records and has found no indication whatsoever that Dr. Koch was involved in Plaintiff's treatment. Indeed, in a disability report dated April 1998, Plaintiff did not list Dr. Koch as a treating physician. (Tr. 88-93). Lastly, there is no indication as to the extent that Dr. Koch reviewed Plaintiff's records before offering his opinion. The Court concludes that Dr. Koch's opinion was not entitled to any deference.
The record indicates that Dr. Koch was involved with treating Plaintiff for some condition back in 1994. (Tr. 212-13, 217-18). The record also indicates that Dr. Koch treated Plaintiff for sinusitis in October 1997. (Tr. 294).
Dr. Drogt also completed an RFC assessment questionnaire in June 1999. (Tr. 278-83). In her decision, the ALJ did not specifically address Dr. Drogt' s assessment. Plaintiff argues that the ALJ erred in this regard. The Court acknowledges that "[a]n ALJ's failure to consider or discuss a treating physicians opinion that a claimant is disabled constitutes error where . . . the record contains no contradictory medical opinion." Prince v. Bowen, 894 F.2d 283, 285-86 (8th Cir. 1990). However, the Court is not constrained by these dictates because (1) Dr. Drogt's assessment is not a treating physician's opinion and (2) the record contains contradictory medical opinions. The Court concludes that the ALJ's failure to address Dr. Drogt's opinion was not reversible error. Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) ("[A]n ALJ is not required to discuss every piece of evidence submitted."). In addition, for the reasons just discussed, the ALJ did not err in rejecting all or part of Dr. Drogt's opinion.
The record indicates that Dr. Drogt examined Plaintiff only twice, once on May 11, 1998, and again on May 21, 1998. (Tr. 191, 215). In addition, Dr. Drogt issued his assessment nearly 13 months after he examined Plaintiff. Therefore, Dr. Drogt's assessment is not a treating physician's opinion.
In June 1998 Dr. Thomas Chisholm, a state-agency physician, reviewed Plaintiff's file and issued an RFC assessment which supports the ALJ's RFC determination. (Tr. 264-71). In December 1998 Dr. Francis Pecoraro, a stale-agency physician, reviewed Plaintiff's file and concurred with Dr. Chisholm's opinion. (Tr. 271). Plaintiff argues that, to the extent she relied on these opinions, the ALJ erred. In making this argument, Plaintiff suggests that a state-agency physician's opinion cannot constitute substantial evidence. This misrepresents the law. A state-agency physician's opinion "cannot be considered substantial evidence in the face of the conflicting assessment of a treating physician." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (emphasis added). Here, Plaintiff has presented no conflicting assessment of a treating physician.
Lastly, Plaintiff argues that the ALJ mishandled the testimony of Dr. Steiner. Plaintiff first points out that, although Dr. Steiner opined Plaintiff was limited to sedentary lifting and standing, the ALJ concluded Plaintiff could sit, stand and walk for six hours per day. The ALJ, however, was not bound to adopt Dr. Steiner's opinion on a wholesale basis. Pierce v. Apfel, 173 F.3d 704, 707 (8th Cir. 1999) ("The ALJ may reject the conclusions of any medical expert, whether hired by the claimant or the government, if they are inconsistent with the record as a whole.").
Next, Plaintiff argues that Dr. Steiner's testimony was incomplete with respect to Plaintiff's alleged fatigue. Plaintiff refers to the following colloquy between the ALJ and Dr. Steiner:
Q What if any limitations or restrictions would you place on the claimant for sustained work activity?
A It would be because of the hip, a residual ability in the sedentary range as far as time on feet and lifting. Would be some additional limitations from fatigue as a result of the hepatitis.
Q Such as what? What limitations?
A There would be some fatigue.
(Tr. 58). Plaintiff argues that Dr. Steiner's opinion was incomplete, in that Dr. Steiner did not set forth "additional limitations." It is true that Dr. Steiner initially mentions "additional limitations," leading one to believe that Dr. Steiner had in mind specific limitations, such as extra or extended work breaks. But then, Dr. Steiner made clear that he was merely saying that the RFC would generally need to account for some degree of fatigue. Contrary to Plaintiff's argument, this is not incomplete testimony, and to the extent she relied upon it, the ALJ did not err.
3. Subjective Complaints
Determination of RFC requires consideration of the evidence taken as a whole, including not only objective medical evidence, but also the subjective complaints expressed by the claimant. Polaski v. Heckler, 739 F.2d 1320, 1321-1322 (8th Cir. 1984). Plaintiff argues that the ALJ improperly discounted her subjective complaints. The Court disagrees.
When considering subjective complaints, an ALJ must consider thePolaski factors. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). If, however, the ALJ discredits subjective complaints and gives a good reason for doing so, the Court will defer to the ALJ's judgment even if every Polaski factor is not discussed in depth. Id. (citing Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996)).
An ALJ must fully consider "all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and . . . physicians relating to such mailers as 1) the claimant's daily activities; 2) the duration, frequency and intensity of the pain; 3) precipitating and aggravating factors; 4) dosage, effectiveness and side effects of medication; [and] 5) functional restrictions." Polaski v. Heckler, 739 F.2d 1320, 132 1-1322 (8th Cir. 1984).
Here, the ALJ recited the Polaski factors and detailed the relevant evidence. The ALJ noted that Plaintiff took Advil for pain. (Tr. 29). This is inconsistent with a finding of disability. Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996) ("[U]se only of over-the-counter pain relievers, such as aspirin, suggests that the severity of her pain is not so great as to preclude light exertional type work.").
The ALJ also noted that the medical records do not indicate a person experiencing disabling pain. (Tr. 31). A review of the record confirms this assessment. Recall, Plaintiff alleged that she became disabled on September 1, 1996. (Tr. 83-85). Yet, on September 26, 1996, it was reported that Plaintiff, although still jaundiced, felt great. (Tr. 241). In November 1996, it was reported that Plaintiff's thrombocytopenia responded well to the Prednisone. (Tr. 237). On February 21, 1997, Dr. Pizinger noted that Plaintiff responded "extremely well to treatment" and that Plaintiff offered no complaints other than those regarding the side effects of Prednisone (facial fullness, hypertension and increased abdominal girth). (Tr. 231). On February 26, 1997, it was noted that Plaintiff reported some mild tenderness in the left hip area. (Tr. 230). In April 1997, it was reported that Plaintiff's thrombocytopenia was completely resolved. Plaintiff was no longer jaundiced, reported no aches or pains and had no real complaints. (Tr. 228). In early June 1997, it was reported that Plaintiff's prescription for Prednisone was cut back to every other day. Although she reported the off days as being "somewhat difficult," it was noted that she was "otherwise doing perfectly well." (Tr. 227). In late June, it was noted that Plaintiff was no longer taking Prednisone. She reported a few episodes of hives, but was "otherwise feeling perfectly well." Her energy was good. (Tr. 226). In August 1997, Plaintiff only complained of being "somewhat fatigued." (Tr. 225). In December 1997, Plaintiff reported feeling well, except for leg pain. She denied suffering from any other symptoms. (Tr. 222). In February 1998, Plaintiff had no complaints. (Tr. 221). In May 1998, it was noted that Plaintiff was doing well except for some pain in her hip. (Tr. 220). In October 1998, a mere eight months before the administrative hearing, Plaintiff reported no specific complaints, except for the left hip pain. Hip replacement was recommended "when her symptoms really do interfere with her life situation." (Tr. 219).
A review of the record demonstrates that, during the time when Plaintiff was allegedly disabled, she was not reporting disabling symptoms to her care providers. The Court concludes that the ALJ appropriately discounted Plaintiff's subjective complaints.
As a final matter regarding her subjective complaints, Plaintiff argues that the ALJ erred by not addressing the corroborating lay opinions. Although this approach is not preferred by reviewing courts, it is not necessarily reversible error. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) ("Although specific articulation of credibility findings is preferable, we consider the lack thereof to constitute a deficiency in opinion-writing that does not require reversal because the ultimate finding is supported by substantial evidence."). The Court has reviewed the lay opinions and concludes that they may be discounted using the same evidence used to discount Plaintiff's subjective complaints. Therefore, although somewhat disappointing, the ALJ's failure to address the submitted lay opinions does not arise to reversible error.
Plaintiff submitted three pain questionnaires, which were completed by laymen. (Tr. 126-31).
4. Vocational Evidence
As noted above, the ALJ concluded that Plaintiff could perform past relevant work. According to the vocational expert's report, Plaintiff's past relevant work includes employment as an insurance clerk and a receptionist. (Tr. 165) Plaintiff now argues that the vocational expert should not have classified one of Plaintiff's past jobs as an insurance clerk, but should have classified it as a mail clerk. It is interesting to note that, at oral argument, there was no indication that Plaintiff disagreed with the vocational analysis. Indeed, Plaintiff made no objections to the hearing exhibits. (Tr. 42). In addition, in her brief to the ALJ and to the appeals council, Plaintiff did not highlight this alleged error. In any event, the Court accepts arguendo that the vocational expert made a mistake. This does not, however, arise to reversible error because Plaintiff does not deny that her past relevant work includes employment as a receptionist.
Next, Plaintiff points out that her past relevant work was performed at the light exertional level, but that the ALJ's RFC determination was below the light exertional level. This argument lacks merit. "[A] claimant will be found to be `not disabled' when it is determined that he or she retains the RFC to perform . . . [t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy." SSR 82-61. Receptionist positions are performed at the sedentary level. See Dictionary of Occupational Titles No. 237.367-038.
Plaintiff also argues that the vocational expert based his testimony upon limitations that were less restrictive than the ALJ's RFC determination. The Court disagrees. The ALJ's second hypothetical person could lift ten pounds occasionally. The ALJ concluded Plaintiff could lift ten pounds frequently. The hypothetical person could occasionally push, pull, climb stairs and ladders, bend, balance, stoop, crouch, kneel and crawl. So could Plaintiff, according to the ALJ's RFC determination. The second hypothetical person was limited to a sit/stand option. According to the ALJ, Plaintiff could sit, stand and walk for six hours per day.
It is true that the hypothetical person was not limited to four-step instructions, whereas the RFC included this limitation. This did not produce flawed vocational evidence because a receptionist is a three-step position. See Dictionary of Occupational Titles No. 237.367-038. It is also true that the hypothetical person was not limited to fifteen minutes of standing, thirty minutes of sitting, with an option to change position as needed, whereas the RFC included these limitations. These limitations, however, were clearly covered during the cross-examination of the vocational expert:
Q Mr. Mastbaum, would there be any change in the sedentary hypothetical if you were to limit sitting and standing to less than 30 minutes at a time and change of position every 15 minutes?
A I don't believe so. I, I believe that the work could be performed under those circumstances.
(Tr. 60). The Court concludes that the vocational expert based his testimony upon the same (or slightly more restrictive) limitations than those in the ALJ's RFC determination.
Finally, Plaintiff argues that the vocational evidence was flawed because the ALJ failed to consider several limitations. Specifically, Plaintiff contends that the ALJ failed to consider that (1) Plaintiff would likely miss four or more days of work per month, (2) Plaintiff would require abnormal breaks or rest periods and (3) Plaintiff could work only four hours per day. The Court notes, however, that the opinions of Drs. Koch and Drogt are used to support Plaintiff's argument. Because the ALJ did not err in rejecting those opinions, the Court concludes that the ALJ did not err in failing to present the above-mentioned limitations to the vocational expert. Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) ("[A] hypothetical need only include impairments that are supported by the record and which the ALJ accepts as valid.").
Koch opined that Plaintiff would miss four or more days of work per month. (Tr. 274). Dr. Drogt opined that Plaintiff could work only four hours per day and would require abnormal breaks or rest periods. (Tr. 279-80).
V. RECOMMENDATION
The Court concludes that the ALJ's decision was supported by substantial evidence in the record as a whole. Therefore, it is hereby recommended that:
1. Plaintiff's motion for summary judgment be denied; and
2. Defendant's motion for summary judgment be granted.