Opinion
CIV-21-251-J
01-07-2022
CARLOUS TOINTIGH, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ____). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be REVERSED AND REMANDED.
I. PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 20-33). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.
II. THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 23, 2016, the application date. (TR. 22). At step two, the ALJ determined Mr. Tointigh suffered from the following severe impairments: degenerative disc disease (disorder of back-discogenic and degenerative) and depressive, bipolar and related disorders. (TR. 22). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 22).
At step four, the ALJ concluded that Mr. Tointigh retained the residual functional capacity (RFC) to:
[P]erform light work as defined in 20 CFR 416.967(b) except the individual can lift/carry/push/pull no more than 10-20 pounds occasionally, can sit in increments not to exceed a total of 6 hours in an 8-hour workday, walk/stand in increments not to exceed a total of 4 hours in an 8-hour workday. He utilizes a prescribed cane for ambulation. The individual can perform[] some simple and complex instructions, can relate to others on a superficial work basis and can tolerate incidental public contact.
(TR. 24-25).
With this RFC, the ALJ concluded that Mr. Tointigh could not perform his past relevant work. (TR. 32). Thus, the ALJ presented the RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 61-62). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 62). At step five, the ALJ adopted the VE's testimony and concluded that Mr. Tointigh was not disabled based on his ability to perform the identified jobs. (TR. 33).
III. ISSUES PRESENTED
On appeal, Plaintiff alleges error in the RFC. (ECF No. 18:3-7).
IV. STANDARD OF REVIEW
This Court reviews the Commissioner's final decision “to determin[e] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence . . . is more than a mere scintilla . . . and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V. ERROR IN THE RFC
At the hearing, Mr. Tointigh testified that due to pain, he could only sit for approximately 15-30 minutes at one time whereupon he would have to walk in an attempt to alleviate pain. (TR. 54). As part of the RFC, the ALJ stated that Mr. Tointigh was limited to performing light work, with the ability to sit “in increments” not to exceed a total of 6 hours in an 8-hour workday. With this RFC, the VE identified three jobs that Plaintiff could perform, and the ALJ relied on the jobs at step five. (TR. 33, 62).
According to Plaintiff, the ALJ erred by stating that Plaintiff could sit in “increments” without identifying, with specificity, the actual frequency of said increments-i.e.-how often Plaintiff would need to change positions from sitting to standing. As a result, Mr. Tointigh contends that the RFC was defective and could not provide a basis for the step five findings. The Court should conclude that Mr. Tointigh is correct.
As stated, at the hearing, Mr. Tointigh testified that due to pain, he could only sit for approximately 15-30 minutes at one time before needing to change positions. (TR. 54). After the VE identified three jobs that an individual with Mr. Tointigh's RFC could perform, Plaintiff's attorney specifically asked the VE: “How long do these jobs require people to sit at one time?” The VE stated that the jobs required sitting for at least one hour at a time without taking a break, and that if an individual could not do so, all employment would be precluded. (TR. 62-63).
Plaintiff asserts that the RFC which allowed for sitting “in increments” to not exceed a total of 6 hours during an 8-hour workday was equivalent to the ALJ prescribing a “sit-stand” option for which he had a duty to define the parameters-i.e.-the frequency of the “increments” in which Plaintiff could sit. (ECF No. 18:3-7). According to Mr. Tointigh, the ALJ's failure to define the sitting “increments” was especially harmful in light of the fact that Plaintiff stated he could only sit for 15-30 minutes at one time and the VE testified that the jobs relied on at step five required sitting for at least one hour before taking a break. (ECF No. 18:3-7).
In asserting this position, Plaintiff relies on SSR 96-9p, which provides:
An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.SSR 96-9p, 1996 WL 374185, at *7 (emphasis provided). Additionally, the SSA has defined an individual's need to alternate sitting and standing as a “Special Situation” and devoted an entire section to the issue in an SSR evaluating exertional limitations within a range of work. See SSR 83-12, 1983 WL 31253 (Jan. 1, 1983). There, the SSA stated:
In some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work.
Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a VS should be consulted to clarify the implications for the occupational base.SSR 83-12, 1983 WL 31253, at *4.
Here, the ALJ recognized Mr. Tointigh's need to alternate sitting and standing, as evidenced by the RFC which allowed for sitting and standing “in increments.” (TR. 24-25). The Commissioner, however, argues that the ALJ's use of the term “increments” “in no way suggested, as Plaintiff argues, that the ALJ found that Plaintiff required a sit-stand option at work.” (ECF No. 22:5). According to Defendant, the ALJ's statement that Plaintiff could sit in “increments” merely clarified that Plaintiff would not be required to sit for 6 hours at one time-essentially that he would be allowed to change positions “at will.” (ECF No. 22:6). But the problem with this theory is that Plaintiff testified that he could only sit for 15-30 minutes at a time and the VE stated that the jobs required sitting at one time for at least one hour-which would not allow Plaintiff to shift positions “at will.” Based on the VE's testimony, Plaintiff would need to be able to sit for at least “one-hour increments” in order to be able to perform the jobs identified at step five. But this fact is not altogether clear in light of Plaintiff's testimony that he could only sit for 15-30 minutes at one time and the ALJ's statement that Plaintiff could sit in “increments” for an unspecified amount of time. The omission is critical because with the restriction, the VE stated that Plaintiff could perform only unskilled work, which the SSA has specifically stated is “particularly structured so that a person cannot ordinarily sit or stand at will.” SSR 83-12, 1983 WL 31253, at *4.
See TR. 61-62.
Ms. Kijakazi also attempts to salvage the RFC by pointing to a statement in SSR 96-9p, which states that “In order to perform a full range of sedentary work, an individual must be able to remain in a seated position for approximately 6 hours of an 8-hour workday, with . . . [breaks] at approximately 2-hour intervals.” (ECF No. 22:6). According to Defendant, this definition/reference to “intervals” “in no way suggests the need for any particular sit-stand option [and] the ALJ's use of the term ‘increments' does nothing more than to distinguish from sitting and standing at one time.” (ECF No. 22:6). Defendant's theory is plausible, but the decision is not altogether clear in this regard, in light of: (1) Plaintiff's testimony that he could only sit for 15-30 minutes at one time and (2) the ALJ's failure to specifically discount this part of Plaintiff's testimony. Furthermore, the fact that the ALJ specifically used the term “increments” instead of just stating that Plaintiff could sit for 6 out of 8 hours during the workday (which would presumably default to the definition in SSR 96-9p allowing for breaks every two hours) suggests that the ALJ was giving some credence to the Plaintiff's testimony regarding his limited ability to sit.
See infra.
Under such circumstances, the ambiguity should lead the Court to conclude that the VE's testimony cannot provide substantial evidence to support the ALJ's decision. Vail v. Barnhart, 84 Fed.Appx. 1, 5 (10th Cir. 2003) (reversing the ALJ's decision that the claimant could perform less than the full range of light work “with brief changes of position” because the opinion “did not properly define how often [the claimant] would need to change positions” and the hypothetical question lacked the same detail); see also Maynard v. Astrue, 276 Fed.Appx. 726, 731 (10th Cir. 2007) (reversing because the ALJ's hypothetical question “provided no specifics to the VE concerning the frequency of any need [the claimant] may have to alternate sitting and standing” and was “therefore flawed as it pertains to a sit-stand option” and holding that in such circumstances, the VE's testimony “is not . . . reliable”).
Moreover, the Court finds that the ALJ's error is not harmless. As stated, Plaintiff testified that he can generally sit for only 15-30 minutes at one time. The ALJ noted Mr. Tointigh's testimony regarding his limited ability to sit, and discounted Plaintiff's overall credibility, but he did so without stating whether he believed Mr. Tointigh's particular testimony regarding sitting limitations. See TR. 26-29. Accordingly, the Court can only speculate as to whether the ALJ adopted or rejected this particular testimony. And even if the Court assumed the truth of Plaintiff's testimony, the VE was not asked to consider that evidence, rendering the step five findings deficient.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge finds that the decision of the Commissioner should be REVERSED AND REMANDED.
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by January 24, 2022. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.