Opinion
No. 02-2365.
January 29, 2004
EXPLANATION AND ORDER
Plaintiff Daniel H. Adams brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying plaintiff's claim for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The parties filed cross-motions for summary judgment, and the case was sent to United States Magistrate Judge Arnold C. Rapoport for a Report and Recommendation ("RR"). Judge Rapoport ("MJ") recommended that summary judgment be granted in favor of the Commissioner. Plaintiff has filed four objections to Judge Rapaport's RR.
I review the administrative law judge's ("ALJ") decision to determine whether there is substantial evidence on the record to support the ALJ's decision. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000). Contradictory evidence may be found in the record, but it is not cause for reversing the Commissioner's decision if substantial support exists for the decision within the record. Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Upon consideration of the administrative record, the ALJ's decision, the RR and the plaintiff's objections thereto, I find that there is substantial support for the ALJ's decision.
The facts and procedural history of this case are sufficiently recounted in the RR and I will not repeat them here.
Objection #1
Plaintiff's first objection is that the ALJ failed to properly assess plaintiff's residual functional capacity ("RFC"). The "RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." SSR 96-8p.
SSR 96-8p lays out the requirements for the RFC assessment: "[it] must first identify the individual's functional limitations and restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c) and (d) of 20 C.F.R. § 404.1545 and 416.945."
The paragraphs referred to above are:
(b) Physical abilities. When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis. A limited ability to perform certain physical demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first assess the nature and extent of your mental limitations and restrictions and then determine your residual functional capacity for work activity on a regular and continuing basis. A limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting, may reduce your ability to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically determinable impairment(s), such as skin impairment(s), epilepsy, impairment(s) of vision, hearing or other senses, and impairment(s) which impose environmental restrictions, may cause limitations and restrictions which affect other work-related abilities. If you have this type of impairment(s), we consider any resulting limitations and restrictions which may reduce your ability to do past work and other work in deciding your residual functional capacity."20 C.F.R. § 404.1545.
Failure to individually analyze each work-related activity and the claimant's impairments is not reversible error. Bencivengo v. Apfel, 2000 U.S. Dist. LEXIS 9039, at *7 (E.D.Pa. June 12, 2000). However, "[i]n performing the RFC assessment, the ALJ must explain how he considered and resolved any material inconsistencies and ambiguities evident in the record, as well as the reasons for rejecting medical opinions in conflict with the ultimate RFC determination." Butler v. Barnhart, 2004 U.S. App. LEXIS 352, at *21-22 (D.C. Cir. Jan. 13, 2004) (quotations omitted).
The ALJ in this case discussed plaintiff's RFC in his findings. He wrote that "the claimant can do less than the full range of medium work" and that "his mental health impairments are non-severe." The ALJ concluded that, after consideration of all the evidence, "the claimant retained the residual functional capacity to perform the exertional demands of a reduced range of sedentary work, or work which is generally performed while sitting and never requires lifting in excess of ten pounds. He also needs to alternate standing and sitting at 30 minute intervals. In addition, he needs a low stress work environment, and work that requires no extended concentration, and only limited contact with the public and coworkers."
Plaintiff inexplicably calls attention to the ALJ's hypothetical posed to the vocational expert as indicative of the weakness of the RFC. There is nothing in the Social Security rulings or case law to suggest that the hypothetical is to be examined in assessing the adequacy of the RFC. However, I note that the hypothetical did encompass the plaintiff's restrictions. The ALJ posed the following question to the vocational expert:
"Assume that we're dealing with a younger individual, in the mid-40's, who has an 11th grade plus education, who has a need for the following restrictions. First, requires the opportunity to alternate between sitting and standing at half hour intervals. Secondly, requires a low stress work environment. Thirdly, that involves limited contact only with the public and coworkers. And finally, that does not require extended concentration. Got all that?"
This description accurately reflects the evidence presented by the plaintiff at the hearing about his mental and physical abilities. Thus, the ALJ discussed plaintiff's mental and physical abilities as required by the regulation, and appropriately assessed plaintiff's RFC.
Objection #2
Plaintiff's second objection is that the ALJ failed to appropriately consider all the medical evidence. Plaintiff complains that the ALJ failed to give appropriate value to the opinion of Dr. Nelson (plaintiff's treating physician). As the MJ discussed in the RR on pages 15-17, the ALJ considered Dr. Nelson's opinion but gave it little weight because the only report Dr. Nelson submitted was a check box form, and the doctor's assessment that plaintiff was unable to work contradicted his own finding that plaintiff had no restrictions on his ability to sit, stand, or walk. Thus, the MJ properly found that the ALJ properly considered the medical evidence.
Objection #3
Plaintiff's third objection is that the ALJ relied on incompetent vocational expert ("VE") testimony. Plaintiff alleges that the VE's testimony was incompetent because the VE testified that plaintiff had the ability to do "sedentary" jobs. Plaintiff contends that he is incapable of performing sedentary jobs because he is only capable of sitting or standing for half hour intervals, and that the Commissioner's Rulings' definition of sedentary jobs does not include those which permit alternate sitting and standing.
SSR 83-12 contemplates the situation of a claimant requiring alternate sitting and standing. The ruling does not demand that unskilled claimants who require alternate sitting and standing be deemed incapable of sedentary work. In the most extreme situation, it provides that: "[i]n cases of unusual limitation of ability to sit or stand, a VS [vocational specialist] should be consulted to clarify the implications for the occupational base." This is precisely what was done in this case. The VE testified that:
SSR 83-12 reads, in its entirety:
"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. (Persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform a defined range of work.)
There are some jobs in the national economy — typically professional and managerial ones — in which a person can sit or stand with a degree of choice. If an individual had such a job and is still capable of performing it, or is capable of transferring work skills to such jobs, he or she would not be found disabled. However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. 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."
"I feel somebody such as this could do a, basically a bench assembler type of position at the sedentary level. That type of job would, you know, would allow someone to sit or stand every half hour as needed. There would be about 1,300 of those types of jobs in the region. Nationally, there would be somewhere around 90,000 and I'm talking about unskilled types of assembly positions. Another type of job that should allow for someone to sit, you know, sit or stand every half hour would also be that of a surveillance system monitor. Again, that would be sedentary and there would be about 200 of those jobs in the region and about 10,000 nationally. Another type of job that such an individual could do would be, let's say, a production checker or examiner and, again, I think a sedentary job would very easily accommodate the need to sit or stand at the intervals, and there's about 190 of those types of jobs in the region and, nationally, somewhere around 130 — I'm sorry — about 13,000"
R 246-47.
Plaintiff's attorney pressed the VE on this point, questioning her on the issue of whether sedentary jobs truly allowed for sitting and standing at intervals. The most that the VE would concede was that:
I still don't think that someone, if they wanted to stand for the next half hour after sitting for half an hour, couldn't necessarily do that. I don't think — I agree that I don't think that the work, table or work bench is necessarily set up for it to be done, you know, it may be more comfortable to do it from a seated position but I do think it can be done from a standing position as well.
R. 260.
The VE adequately defended her opinion that some sedentary jobs available in the workforce could be performed with plaintiff's limitations. The ALJ did not rely on incompetent vocational expert testimony.
Objection #4
Plaintiff's fourth objection is that the ALJ improperly ruled on plaintiff's objection pursuant to 20 C.F.R. § 404.1519j. The MJ discussed plaintiff's objection on pages 21-23 of the RR, and I concur with his conclusion that the ALJ properly ruled on plaintiff's objection.