Opinion
Case No. CIV-18-600-R
02-04-2019
MIRANDA ROBBEN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Miranda Robben (Plaintiff) brings this action for judicial review of the Defendant Acting Commissioner of Social Security's final decision she was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The matter has been referred 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. 13. Following a careful review of the parties' briefs, the administrative record (AR) and the relevant authority, the undersigned recommends the court reverse and remand the Commissioner's decision for further administrative development.
For the parties' briefs, the undersigned's page citations refer to this Court's CM/ECF pagination. Page citations to the administrative record refer to that record's original pagination.
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 his 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 he can no longer engage in his 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 13-28; 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). Specifically, the ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since her alleged onset date of December 5, 2013;
(2) had the severe impairments of obesity, degenerative disc disease of the lumbar spine, reactive airway disease, borderline intellectual functioning, and major depressive disorder;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a). Plaintiff is limited to lifting or carrying no more than 10 pounds occasionally and less than 10 pounds frequently. Plaintiff can sit for six hours in an eight-hour day. Plaintiff can stand or walk for two hours in an eight-hour day. Plaintiff would need a sit/stand option, but she would be able to remain on task and attentive to duties at all times. Plaintiff cannot climb ladders, ropes, or scaffolds, and she is limited to only occasional climbing of ramps and stairs, stoop, kneel, crouch, and crawl. Work would need to be simple, repetitive, and routine with occasional contact with coworkers and supervisors and cursory, superficial
contact with the general public. Normal level of exposure to gases, fumes, noxious odors, pulmonary irritants, poor ventilation, where normal is defined as the level generally found in an office or commercial setting. Plaintiff would further have a limited ability to read, write, and use numbers;AR 15-28.
(5) could not perform her past relevant work;
(6) could perform sedentary, unskilled jobs that exist in significant numbers in the national economy, such as document preparer, clerical mailer, and touch up screener and therefore;
(7) was not disabled.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 404.1545(a)(1).
2. Appeals Council's findings.
The SSA's Appeals Council denied Plaintiff's request for review on April 25, 2018, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. AR 1-6; 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). In applying that standard, 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) (internal quotation marks omitted).
B. Issue for judicial review.
Plaintiff contends that the ALJ erred by "provid[ing] no specifics to the VE regarding the frequency with which [Plaintiff] would need to alternate sitting and standing and the length of time needed to stand." Doc. 14, at 3-8.
C. ALJ's evaluation of sit/stand option.
Plaintiff argues that the ALJ erred by including an insufficiently specific sit/stand option in the hypothetical posed to the vocational expert and in the RFC. Plaintiff cites Social Security Ruling 96-9p, which provides that administrative factfinders must be "specific as to the frequency of the individual's need to alternate sitting and standing" when determining the RFC for a disability claimant who is limited to performing less than a full range of sedentary work with a sit/stand requirement. 1996 WL 374185, at *7 (July 2, 1996).
When including a sit/stand limitation in an RFC, adjudicators must be "specific" about how often an individual would need to alternate sitting and standing. See, e.g., Vail v. Barnhart, 84 F. App'x 1, 4-5 (10th Cir. 2003) (quoting SSR 96-9p, 1996 WL 374185 at *7); see also Verstraete v. Astrue, 2013 WL 238193, at *3-5 (D. Kan. Jan. 22, 2013) (discussing the application of SSR 96-9p, SSR 83-12, and the relevant case law and noting that the courts "have clearly and consistently indicated since 2000 that the RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing when plaintiff is limited to light or sedentary work.").
This Court has found, for example, that a restriction to "occasional" sitting and standing was insufficiently specific to form the basis for an RFC. See, e.g., Mettler v. Comm'r of Soc. Sec. Admin., 2017 WL 3392785, at *4 (W.D. Okla. Aug. 7, 2017) (noting that "the RFC lacked specificity about the 'frequency of the need to alternate between sitting and standing,' and could not constitute substantial evidence."); Edwards v. Comm'r of Soc. Sec. Admin., 2017 WL 1628978, at *1 (W.D. Okla. May 1, 2017) (rejecting RFC and remanding for "further evaluation of Plaintiff's RFC with respect to the frequency of her required sit/stand option . . . ."); Hardzog v. Berryhill, 2017 WL 42195, at *3 (W.D. Okla. Jan. 31, 2017) (rejecting RFC limitations stating Plaintiff needs to "occasionally sit/stand at the work station" because the RFC was silent regarding the frequency with which Plaintiff would need to alternate positions).
Defendant concedes that an ALJ must be specific as to the frequency of an individual's need to alternate sitting and standing but argues that there is no error if the Court "can discern the specificity from the remainder of the relevant evidence of record." Doc. 19, at 8-9, (citing Cushman v. Berryhill, 2017 WL 1207842, at *1 (W.D. Okla. Mar. 31, 2017) (finding that the ALJ "could perhaps have been more precise," but there was no error as the questioning of the vocational expert made "clear the frequency of plaintiff's need to alternate sitting and standing.")). Defendant also argues that the ALJ's inclusion of a sit/stand option had "no appreciable effect" on Plaintiff's ability to perform the sedentary, unskilled jobs cited by the vocational expert. Doc. 19, at 9. Defendant contends that the Court should be able to "readily discern the limitations" of the ALJ's sit/stand limitation and that there is no indication that the VE did not understand the meaning of the sit/stand restriction included in the ALJ's hypothetical. Id.
In assessing Plaintiff's RFC, the ALJ found that Plaintiff would need a sit/stand option, but also found that she would be able to "remain on task and attentive to duties at all times." AR 19. During the administrative hearing, the ALJ included this language in the hypothetical posed to the VE, id. at 54, and the VE testified that Plaintiff could perform the sedentary, unskilled jobs cited in the hearing decision given the restrictions in the RFC. Id. at 54-57. The VE stated the "[s]it-stand option is not addressed by the DOT in those terms, so that testimony was based on professional observation and experience." Id. at 56. The ALJ did not state the frequency with which Plaintiff would need to alternate sitting and standing, and the VE did not ask for any clarification concerning the sit/stand option in the RFC.
"The hypothetical person would need a sit-stand option, but would be able to remain on-task and attune [sic] of the duties at all times." AR 54.
What precisely the VE assumed regarding the frequency of the sit/stand requirement is unclear. Had the ALJ included terms such as "whichever way she wanted to do" and "as needed" in the RFC, that might have sufficed to infer an intention by the ALJ to assess an "at will" sit/stand option. See Jimison v. Colvin, 513 F. App'x 789, 790-92 (10th Cir. 2013) (holding that while the ALJ did not specify that the sit/stand option was "at will", that there could be "no question that this was the ALJ's finding because he did not correct the VE when the VE told [Plaintiff's] attorney that the vocational assessment was based on that assumption."); see generally Garrison v. Colvin, 2013 WL 4082870, at *2 (N.D. Tex. Aug. 13, 2013) (finding the ALJ specified the frequency with which claimant would need to sit and stand during the work day when he limited her to "light work 'with the freedom to alternate positions as needed for comfort,' and he asked the vocational expert to identify jobs that would allow an individual to 'sit or stand at her option.'"); Laurel v. Comm'r of Soc. Sec., 2018 WL 6187530, at *3 (W.D. Okla. Oct. 22, 2018) (affirming where "the meaning of the ALJ's RFC 'on an hourly basis' restriction is clear, and the vocational expert had no difficulty understanding this phrase when evaluating the hypotheticals posed by the ALJ."), report & recommendation adopted, 2018 WL 6186799 (W.D. Okla. Nov. 27, 2018).
The RFC language regarding Plaintiff's ability to "remain on task and attentive to duties at all times" does not indicate how often Plaintiff would need to change positions—it merely suggests that the process of changing positions would not distract Plaintiff from her work tasks.
Defendant's argument that the Court should be able to "readily discern the parameters" of the ALJ's sit/stand limitation is not supported by the substantial evidence or anything in the ALJ's hearing decision. See Maynard v. Astrue, 276 F. App'x 726, 731 (10th Cir. 2007) (reversing where the ALJ's hypothetical "provided no specifics to the VE concerning the frequency of any need [Plaintiff] may have to alternate sitting and standing and the length of time needed to stand."); Newton v. Colvin, 2013 WL 6169298, at *3 (W.D. Okla. Nov. 21, 2013) ("[I]n neither his decision nor his hypothetical question to the VE did the ALJ define how often Plaintiff is able to sit without standing or changing positions. Under such circumstances, both the decision and hypothetical question lack 'key facts' and the VE's testimony cannot provide substantial evidence to support the ALJ's decision.") (internal citation omitted); Mettler, 2017 WL 3392785, at *4 (W.D. Okla. Aug. 7, 2017) (reversing where "the RFC lacked specificity about the 'frequency of the need to alternate between sitting and standing,' and could not constitute substantial evidence.").
Defendant argues that the frequency of Plaintiff's sit/stand limitation would have "no appreciable effect" on Plaintiff's ability to perform the sedentary, unskilled jobs cited by the VE. But SSR 83-12 provides that unskilled jobs, such as those cited by the VE, are often "particularly structured so that a person cannot ordinarily sit or stand at will" and that in cases where an individual has "unusual limitation of ability to sit or stand" a VE should be consulted to clarify the implications for the occupational base. 1983 WL 31253, at *4 (Jan. 1, 1983). The court can only speculate as to whether Plaintiff can actually perform the relevant jobs, and this Court will not imply such a finding. See Newton, 2013 WL 6169298, at *3 ("[E]ven if the Court assumed that Plaintiff can in fact sit for thirty minutes to one hour, the VE was not asked to consider that evidence. Thus . . . the Court can only speculate as to whether Plaintiff can actually perform the relevant jobs. For these reasons, remand is necessary."); Verstraete, 2013 WL 238193, at *5 ("The ALJ's RFC findings failed to specifically indicate the frequency of plaintiff's need to alternate sitting and standing. The court will not imply such a finding by the ALJ, especially given that any specific finding by the ALJ would have to be supported by evidence in the record.").
III. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the entry of judgment reversing and remanding the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by February 25, 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 a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions 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 undersigned in this matter.
ENTERED this 4th day of February, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE