Opinion
Case No. CIV-18-1178-D
08-01-2019
CARLA A. NIPPERT, Plaintiff, v. ANDREW M. SAUL, COMMISSION OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Carla A. Nippert (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that she was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 15.
After careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
I. Administrative determination.
A. Disability standard.
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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just h[er] underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that [s]he can no longer engage in h[er] prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 15-27; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:
For the parties' briefs, the undersigned's page citations refer to this Court's CM/EFC pagination. Page citations to the AR refer to that record's original pagination.
(1) had severe degenerative disc disease of the lumbar spine;
(2) had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments;
(3) had the residual functional capacity to perform light work with various work restrictions;
(4) was unable to perform any past relevant work, but could perform jobs existing in the national economy; and thusAR 15-27.
(5) had not been under a disability, as defined in the Social Security Act, at any time from April 1, 2011, the alleged onset date, through September 30, 2016, the date last inured.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 404.1545(a)(1).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the 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 arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b).
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision. Id. at 1-4; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance" and means "only" "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lax, 489 F.3d at 1084; Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal quotation marks and citation omitted). A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issue for judicial review.
Plaintiff argues that the sit/stand option in the ALJ's RFC was "[i]mproper and [u]nsupported by [l]aw." Doc. 17, at 3. Plaintiff maintains the ALJ included terms for a sit/stand option, but "errantly failed to identify the amount of time in each position." Id. (citing AR 20). She also maintains that the ALJ's RFC did not comply with the SSR 96-9p because the RFC "failed to provide specifics to the [vocational expert] regarding the frequency with which Ms. Nippert would need to alternate sitting, standing and walking[.]" Id. at 4 (citing AR 20).
The Commissioner argues Plaintiff's argument is "misplaced" because the ALJ's RFC assessment included no sit/stand option, nor should it have. Doc. 20, at 7. The court agrees.
The ALJ found Plaintiff had the RFC to perform light work with these exceptions: she could lift twenty pounds occasionally and ten pounds frequently; she "can stand and walk alternatively for [two] hours each activity out of [eight] hours per day with sitting occurring intermittently throughout the day." AR 20. She can reach, push and pull with her upper extremities up to eight hours per eight-hour day, and she can climb, stoop, kneel, crouch, crawl and balance up to six hours per eight-hour day. Id. As the Commissioner points out, this RFC "generally tracks the definition of light work provided in SSR 83-10, which states that '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. Sitting may be intermittently during the remaining time.' 1983 WL 31251, at *6." Doc. 20, at 7. The Social Security regulations contemplate situations where an RFC may be somewhere in the middle in terms of the regulatory criteria for exertional ranges of work, and that is what the ALJ assessed. See SSR 83-10; 83-12.
Further, the ALJ's hypothetical to the vocational expert was consistent with the RFC. AR 53-54. The vocational expert identified two sedentary jobs, laminator and bench hand. Id. at 54. And she identified one light job, sewing machine operator. Id. (The vocational expert testifying this job is "[c]lassified light more because of the lifting and repetitiveness, not because of standing."). And the vocational expert stated her testimony was consistent with the Dictionary of Occupational Titles. Id. at 54. Plaintiff takes no issue with the identified jobs, only the "improper" sit/stand option.
As to the opinion evidence, the ALJ gave the opinion of Dr. Jeri Ellis little weight. Id. at 25. Dr. Ellis restricted Plaintiff to needing to change positions more than once every two hours; standing or sitting for fifteen minutes at a time; no bending or stooping; and to only occasionally lifting of up to five pounds. Id. The ALJ noted Dr. Ellis based this on Plaintiff's never having undergone an MRI, despite being consistently advised to do so. Id. at 25, 24. Plaintiff does not challenge the weight the ALJ gave Dr. Ellis's opinion, nor that the ALJ found it inconsistent with the record as a whole and unsupported by relevant evidence. Id. at 25.
The ALJ gave the opinion of the reconsideration-level State Agency medical consultant, Dr. David M. Bailey, great weight. Id. at 24-25, 75-79. Dr. Bailey opined Plaintiff could perform light work, a conclusion Plaintiff does not contest. Though the ALJ gave this opinion great weight, the RFC assessment imposed greater restrictions upon Plaintiff. And Plaintiff does not challenge the ALJ's treatment of this opinion.
Plaintiff also does not challenge the ALJ's discounting of Plaintiff's complaints of subjective pain. Id. at 21. The ALJ also considered Plaintiff's activities of daily living, noting they were inconsistent with her complaints of disabling symptoms and limitations. Id. at 25. And the ALJ noted Plaintiff's receiving "extremely conservative medical treatment," and no recommendation of anything but conservative medical treatment. Id. The ALJ also noted Plaintiff's inconsistent maintenance of her pain-medication regimen. Id.
The ALJ committed no legal error in the RFC, and substantial evidence supports the ALJ's decision.
III. Recommendation.
The undersigned recommends the court AFFIRM the Commissioner's decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 22nd day of August, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
ENTERED this 1st day of August, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE