Opinion
Civil No. 00-6211-FR
August 15, 2001
Ralph Wilborn Etta L. Wilborn, P.C., for Plaintiff.
Michael W. Mosman, United States Attorney, William W. Youngman, Assistant United States Attorney, Amy M. Gilbrough, Special Assistant United States Attorney, for Defendant.
O P I N I O N
The plaintiff, Barbara J. Davis, brings this action pursuant to section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying Davis' claims for Social Security Disability (SSD) and Supplemental Security Income disability benefits (SSI).
BACKGROUND
Barbara Davis filed an application on July 15, 1997 with the Social Security Administration for SSD and SSI benefits. The application was denied initially and upon reconsideration. Upon a timely request, Davis received a hearing before Administrative Law Judge Stephen P. Kramer (the ALJ) on February 26, 1999. The ALJ issued a decision denying Davis' application for SSD and SSI benefits. On May 17, 2000, the Appeals Council declined to grant Davis' timely request for review. This resulted in the ALJ's decision of February 26, 1999 becoming the final order of the Commissioner. Davis now seeks judicial review of the final decision of the Commissioner.
CONTENTIONS OF THE PARTIES
Davis raises the following objections to the final decision of the Commissioner: 1) the ALJ breached his duty to fully and fairly develop the record; 2) the ALJ failed to comply with Social Security Ruling 96-6p; 3) the ALJ applied the incorrect legal standards in rejecting the opinions of Dr. Serkownek and Nurse Practitioner Myers; 4) the vocational hypothetical question posed by the ALJ was legally inadequate; 5) the ALJ's finding that Davis can perform jobs which exist in the national economy is based on the application of incorrect legals standards; and 6) the ALJ failed to comply with Social Security Ruling 83-15.
The Commissioner contends that there is substantial evidence in the record to support the decision of the Commissioner; that the Commissioner applied the proper standards for evaluation of the evidence, and that the decision of the Commissioner should be affirmed.
FACTS
Barbara Davis was born on January 12, 1947. She was fifty-two years old at the time of the hearing before the ALJ. Davis has a ninth-grade education and has previously worked as an unskilled laborer on the plywood layup-line in a lumber mill.
1. Medical Evidence
On September 2, 1997, Catherine Betts-Doughty, Ph.D., examined Davis at the request of the Commissioner. Dr. Betts-Doughty diagnosed Davis as having Bipolar Disorder, with the most recent episode being depressive. Dr. Betts-Doughty did not assess Davis' mental residual functional capacity. AR 248.
Also at the request of the Commissioner, Michael Villanueva, Psy.D., examined Davis on May 23, 1998. Dr. Villanueva diagnosed Davis with Bipolar Disorder but did not assess Davis' mental residual functional capacity. AR 331.
A psychiatric mental health nurse practitioner, Allyson Myers, is counselor to Davis and manages her medication under the supervision of Ken Serkownek, Ph.D. On January 7, 1999, Nurse Practitioner Myers and Dr. Serkownek concluded that Davis is markedly limited in her ability "to understand and remember detailed instructions;" "to carry out detailed instructions;" "to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances;" "to sustain an ordinary routine without special supervision;" "to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods;" "to accept instructions and to respond appropriately to criticism from supervisors;" and "to respond appropriately to changes in the work setting." AR 345. Nurse Practitioner Myers and Dr. Serkownek also noted that Davis does not comply with her medication regime when she starts to feel better, not realizing that the medication helps maintain a balance. Nurse Practitioner Myers and Dr. Serkownek also found that her manic episodes cause her to be a danger to herself and others; small frustrations can cause her to react in a violent manner; and she does not think of the consequences of such actions. AR 346-47.
On February 3, 1998, a state agency non-examining psychologist, Peter LeBray, Ph.D. reviewed the record in consideration of Davis' request for reconsideration. Dr. LeBray assessed Davis' mental residual functional capacity as moderately limited in her ability "to understand and remember detailed instructions;" "to carry out detailed instructions;" "to maintain attention and concentration for extended periods;" and "to interact appropriately with the general public." AR 299-300. Dr. LeBray also elaborated on the above conclusions, finding that Davis should be precluded from fast paced, complex routines; should not often deal with the public, although her behavior is normal in casual social situations; and that predictable, nonhazardous routines are needed, with some vocational guidance in setting realistic plans. AR 301.
2. Vocational Expert Testimony
Kathleen O'Gieblyn (the VE) testified as a vocational expert at Davis' administrative hearing. The ALJ asked the VE to "assume the claimant can do medium work. And I would also ask you to assume the moderate MRFC limitations described by the medical expert." AR 73. In response, the VE testified that Davis could perform her past work as an unskilled laborer in a lumber mill. AR 73-74.
The VE also testified in the alternative that Davis could perform the following occupations: garment sorter, an unskilled occupation with at least 10,000 jobs nationally; dishwasher/kitchen helper, an unskilled occupation with 40,573 jobs nationally; and house- keeper/maid, an unskilled occupation with 208,265 jobs nationally. AR 76-77. On cross-examination by Davis' counsel, the VE testified that if Davis was precluded from performing "fast paced, complex routines," then Davis could not perform her past work as an unskilled laborer in a lumber mill. AR 79-80. The VE also testified that if Davis was limited as assessed by Nurse Practitioner Myers and Dr. Serkownek, then Davis could not perform any competitive work. AR 80-81.
3. The ALJ's Findings
The ALJ found that Davis is not disabled within the meaning of the Social Security Act. The ALJ also made the following formal findings:
1. The claimant has not engaged in substantial gainful activity since the alleged onset date.
2. The claimant has one or more medically determinable severe impairments as established by substantial evidence. However, the claimant does not have an impairment, or combination of impairments, listed in, or medically equal to one listed in, Appendix 1, Subpart P, of Regulations No. 4.
3. The claimant is not fully credible.
4. The claimant has the residual functional capacity to perform the physical exertional and nonexertional requirements of medium work except for the limitations outlined in the rationale and my hypothetical to the vocational expert.
5. The claimant is able to perform her past relevant work as a laborer in a plywood mill.
6. The claimant is 52 years old.
7. The claimant has a 9th grade education.
8. The claimant has no transferable skills.
9. In the alternative, based on an exertional capacity for medium work, and the claimant's age, education, and work experience, Medical-Vocational Rules 203.18 and 202.21, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."
10. The claimant's capacity for the full range of medium work has not been significantly compromised by any nonexertional limitations, including pain, side-effects from medication, and MRFC limitations. Using the above- cited rule as a framework for decision making, there are still a significant number of jobs in the national economy which the claimant could perform. Examples of such jobs were identified by a vocational expert at the hearing.
11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision.
AR 23-24.
STANDARD OF REVIEW
The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). The claimant bears the burden of proof in establishing the existing disability. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996). To meet his burden, the claimant must demonstrate an inability to engage in substantial gainful activity because of a medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). An individual is disabled only if his physical or mental impairments are of such severity that he is unable to do his previous work and 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 Commissioner has developed a five-step sequential evaluation process for determining if a person is eligible for benefits due to a disability. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is found not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(c), 416.920(c). If not, the claimant is found not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges is so severe as to preclude substantial gainful activity." Id.; see 20 C.F.R. § 404.1520(e), 416.920(e). If so, the claimant is presumed to be disabled; if not, then the claimant is not disabled.
In step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled; if not, then the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform work other than his past relevant work. Yuckert, 482 U.S. at 142; see 20 C.F.R. § 404.1520(e) (f), 416.920(e) (f). If the claimant is able to perform work other than his past relevant work which exists in the national economy, the claimant is not disabled. 20 C.F.R. § 404.1566, 416.966.
DISCUSSION
In this instance, steps one, two and three of the sequential evaluation are not at issue. Davis disputes the ALJ's findings regarding her mental residual functional capacity (MRFC) at step four and the ALJ's findings at step five regarding her ability to perform work other than her past relevant work which exists in the national economy.
1. Full and Fair Development of the Record
Davis contends that the ALJ breached his duty to fully and fairly develop the record by failing to request the medical source statement of her examining physicians, Dr. Betts-Doughty and Dr. Villanueva. Davis contends that a statement such as that from her examining physicians would have provided evidence of her abilities despite her impairments. Davis argues that the failure of the ALJ to request the medical source statement despite its absence from the record violates the regulations and the ALJ's duty to fully and fairly develop the record. 20 C.F.R. § 404.1513(b)(6) states that the medical report for administrative hearings in social security cases should include:
(6) A statement about what you can still do despite your impairment(s) based on the medical source's findings on the factors under paragraphs (b)(1) through (b)(5) of this section (except in statutory blindness claims). Although we will request a medical source statement about what you can still do despite your impairment(s), the lack of the medical source statement will not make the report incomplete. . . .
The Commissioner contends that the language of 20 C.F.R. § 404.1513(b)(6) does not necessarily make the record incomplete when a medical source statement is absent. The Commissioner argues that in addressing this issue, the District of Oregon has chosen a moderate approach. If no medical source statement was requested or provided, the court's inquiry must focus on whether the decision of the ALJ is supported by substantial evidence in the record. See Purvis v. Apfel, 57 F. Supp.2d 1088 (D.Or. 1999).
Davis is correct in contending that the ALJ has a duty to fully and fairly develop the record. One aspect of the ALJ's duty is the obligation to request that all acceptable medical sources provide a statement about what a claimant can still do despite his or her impairment(s). DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). This court is once again faced with the opportunity to adopt a bright line rule regarding the ALJ's failure to request medical source statements as reversible error. This court declined to adopt a bright line rule in Loftis v. Shalala, No. 94-6065-FR (Oct. 24, 1994), aff'd 86 F.3d 1162 (9th Cir. 1996); instead adopting the moderate approach set forth in the Purvis decision above. This approach also finds support in decisions by other judges in this district. See Heddinghaus v. Chater, No. 96-6106-MA (Nov. 21, 1996); McGee v. Commissioner, No. 97-6036-JO (Dec. 12, 1997). The United States Court of Appeals for the Ninth Circuit affirmed this court's decision in Loftis on this issue, stating:
We reject the claimant's contention that the ALJ failed to develop the record concerning his mental residual functional capacity to perform other work. Although the ALJ should request a medical source statement, the record in this case otherwise indicates what claimant is capable of performing despite his mental impairments.
Loftis v. Chater, 1996 WL 289982 (9th Cir. (Or.)).
The court adopts the moderate approach in this case as well. Therefore, the court finds that the ALJ has not breached his duty to fully and fairly develop the record. The court's review is whether the ALJ's decision is supported by substantial evidence in the existing record.
2. Failure to Comply with SSR 96-6p
SSR 96-6p addresses the ALJ's duty to explain the weight attributed to the opinions of state agency physicians:
1. Findings of fact made by State agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual's impairment(s) must be treated as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals Council levels of administrative review.
2. Administrative law judges and the Appeals Council may not ignore these opinions and must explain the weight given to these opinions in their decisions.
SSR 96-6p.
Davis contends that the ALJ failed to include the mental limitations assessed by state agency physician Dr. LeBray and did not explain the weight given to his opinions in the ALJ's decision. Davis argues that the Social Security Rulings and Acquiescence Rulings are "binding on all components of the Social Security Administration." 20 C.F.R. § 402.35(b)(1) (2).
The Commissioner contends that, in general, the findings of Dr. LeBray are consistent with the ALJ's, but that in some instances the ALJ found that Davis was more limited. Here, the ALJ found Davis more limited in the following areas: the ability to sustain ordinary routine without ordinary supervision; working in coordination with others without distracting them; and responding appropriately to criticism from supervisors. Dr. LeBray concluded that Davis was not significantly limited in these areas, whereas the medical expert, Peter Moulton, Ph.D, and the ALJ found Davis moderately limited in each of these areas.
The Commissioner does not dispute Davis' contention that the ALJ did not find that Davis was precluded from fast paced, complex routines as Dr. LeBray assessed in his consultation with Davis. However, the Commissioner asserts that the VE testified that even if Davis was precluded from fast paced, complex routines, she could still perform work that exists in significant numbers in the national economy. The Commissioner contends that, therefore, even if the discussion of this aspect of Dr. LeBray's opinion is in error, the ALJ's decision may still be affirmed.
SSR 96-6p requires that an explanation of the weight given to the opinions of state agency consultants such as Dr. LeBray be included in the ALJ's final decision. In this instance, the ALJ failed to explain what weight, if any, was given to Dr. LeBray's opinion, or portions thereof, and has not otherwise included Davis' limitations assessed by Dr. LeBray in the hypothetical question posed to the VE. Therefore, the ALJ's finding at step four that Davis is capable of returning to her past work is not supported by substantial evidence. There remains the issue of the ALJ's alternate finding that Davis is capable of making an adjustment to work existing in significant numbers in the national economy.
3. Rejecting the Opinions of Dr. Serkownek and Nurse Practitioner Myers
The ALJ rejected the opinion of treating physician Dr. Serkownek and the opinion of Davis' medication manager and counselor, Nurse Practitioner Myers. The ALJ's rejection was based on his finding that the MRFC opinion from Nurse Practitioner Myers, although countersigned by psychologist Dr. Serkownek, showed no indication that Dr. Serkownek had ever seen Davis. AR 18-19. The ALJ concluded that, therefore, Nurse Practitioner Myers' opinion would not be treated as the opinion of a treating or examining physician. Id. The ALJ found that without evidence that Dr. Serkownek had examined Davis, the ALJ also could not consider him to be a treating or examining physician. The ALJ made the finding that Dr. Serkownek and Nurse Practitioner Myers had "agreed to become advocates for the claimant and assist in presenting a meaningful petition for social security benefits," and the opinion was therefore entitled to less weight. Id. The ALJ also found that the opinion was not consistent with the weight of the evidence.
A. Acceptable Medical Sources
Davis asserts that the United States Court of Appeals for the Ninth Circuit has held that "a nurse practitioner working in conjunction with a physician constitutes an acceptable medical source, while a nurse practitioner working on his or her own does not." Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996). Davis contends that Nurse Practitioner Myers was working in conjunction with the psychologist, Dr. Serkownek. Davis contends that it was an error for the ALJ to reject the opinions of Dr. Serkownek and Nurse Practitioner Myers as to the mental residual functional capacity of Davis on the above stated grounds.
The Commissioner also cites Gomez as allowing interdisciplinary team opinions as medical source opinions provided that there are a signature and evaluation of an acceptable medical source contained within. Id. at 970. The Commissioner contends that Gomez is distinguishable from the case at hand. The Commissioner argues that in Gomez, the nurse practitioner was working closely under the supervision of a physician, and that the chart notes indicate that the nurse had consulted with the physician numerous times in the course of the plaintiff's treatment. Id. at 970-71. The Commissioner also argues that under Gomez, the cosigning of a form is not enough to constitute an interdisciplinary team. The Commissioner contends that there is no indication that Dr. Serkownek ever saw Davis, and that his signature on the opinion is not enough to constitute a medical source opinion.
There is no evidence in the record that Dr. Serkownek ever had any contact with Davis beyond his signature on the documentation completed by Nurse Practitioner Myers. Therefore, Dr. Serkownek and Nurse Practitioner Myers cannot be seen as an interdisciplinary team, and Nurse Practitioner Myers' opinion is not given the weight of an examining or treating physician. The ALJ's rejection of Nurse Practitioner Myers' MRFC was proper in this instance.
B. Advocating for Davis
The ALJ also rejected Nurse Practitioner Myers' opinion because he concluded that both Dr. Serkownek and Nurse Practitioner Myers had chosen to become advocates for Davis. The United States Court of Appeals for the Ninth Circuit has found that:
the mere fact that a medical report is provided at the request of counsel or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis for evaluating the reliability of the report. Evidence of the circumstances under which the report was obtained and its consistency with other records, reports, or findings could, however, form a legitimate basis for evaluating the reliability of the report.
. . . .
We clarify here that, in the absence of other evidence to undermine the credibility of a medical report, the purpose for which the report was obtained does not provide a legitimate basis for rejecting it.
Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). Davis contends that she had already presented her petition for Social Security benefits when the MRFC opinion was completed by Dr. Serkownek and Nurse Practitioner Myers, and there is no evidence which supports the ALJ's conclusion otherwise.
Davis contends that because the ALJ's rejection of the examining physicians' opinions is improper, and the ALJ has only relied upon nonexamining physicians for his findings, there is no substantial evidence to support the ALJ's decision. Based upon the ALJ's improper rejection, Davis contends that Dr. Serkownek and Nurse Practitioner Myers' opinions are accepted as a matter of law as true. Lester v. Chater, 81 F.3d 821 (9th Cir. 1995). Davis contends that as a matter of law, the opinions of Dr. Serkownek and Nurse Practitioner Myers establish that Davis is disabled. Davis argues that this is consistent with the testimony of the VE when considering the vocational implications of Dr. Serkownek and Nurse Practitioner Myers' opinions — Davis could not perform any competitive employment.
The Commissioner contends that the ALJ found the Serkownek-Myers' opinion reflected an advocacy of Davis and was inconsistent with the weight of the evidence based on the assessment of the testifying medical expert, Dr. Moulton.
Dr. Moulton testified that he did not see a justification for Nurse Practitioner Myers' MRFC, which gave "marked" ratings in the ability to understand and remember detailed instructions; carry out detailed instructions; perform activities within a schedule, maintain regular attendance, and be punctual; sustain an ordinary routine without special supervision; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. AR 19. Dr. Moulton found that these findings were inconsistent with Davis' current activities of daily living, which included independent travel to care for her mother.
The court has already found that the ALJ's rejection of Nurse Practitioner Myers' opinion was proper, therefore it is unnecessary to determine whether the ALJ's finding that Nurse Practitioner Myers acted as an advocate was proper.
C. Inconsistency with the Weight of the Evidence
The ALJ's last finding was that Nurse Practitioner Myers' opinion was not consistent with the weight of the evidence. Davis contends that this finding is also in error because the ALJ did not identify with what evidence this opinion conflicted, and the ALJ is required to do more than offer his conclusion. Davis contends that the ALJ failed to ask the opinion of the only other examining mental health doctors, Dr. Betts-Doughty and Dr. Villanueva.
While the court agrees that the evidence does not show that the ALJ requested an MRFC from either Dr. Betts-Doughty or Dr. Villanueva, it is clear that the opinions of both examining mental health doctors are in conflict with Nurse Practitioner Myers' opinion. Medical expert Dr. Moulton testified that Nurse Practitioner Myers' findings are inconsistent with the findings of Dr. Villanueva and Dr. Betts-Doughty who found Davis to have attention and concentration within normal limits and GAF ratings of 60 and 55 respectively. AR 19. While there are differing opinions among the several mental health doctors and physicians who consulted with Davis, the court finds that the ALJ's rejection of Nurse Practitioner Myers' opinion is not inconsistent with the weight of her earlier findings and other evidence in the record. Therefore, the rejection of Nurse Practitioner Myers' MRFC by the ALJ is both proper and supported by substantial evidence in the record.
Global Assessment of Functioning (GAF) describes an individual's psychological, social and occupational functioning, using a single measure.
1. Vocational Hypothetical Question
Davis contends that the ALJ erred in finding that based upon the testimony of the VE, Davis could return to her past work because the hypothetical question posed to the VE was deficient in the following respects: 1) it failed to incorporate the ALJ's own finding that Davis experiences deficiencies in concentration, persistence or pace, often resulting in failure to complete tasks in a timely manner; 2) it failed to consider Dr. LeBray's, Dr. Serkownek's, and Nurse Practitioner Myers' opinions regarding Davis' limitations; and 3) it failed to incorporate Davis' alleged limitations, which the ALJ did not appropriately discount under the required standards.
Davis asserts that the failure of the ALJ to include his own findings in a hypothetical question has been addressed in Newton v. Chater, 92 F.3d 688 (8th Cir. 1996). The Eighth Circuit remanded Newton to the Commissioner with instructions that any vocational hypothetical question on remand "should include Newton's deficiencies of concentration, persistence, or pace so that the vocational expert might accurately determine his ability to work." Id. at 695.
Davis further argues that the ALJ's failure to include the other limitations, as set forth by Dr. LeBray, Dr. Serkownek, and Nurse Practitioner Myers, and limitations alleged by Davis that were not properly discounted also leaves the expert testimony without evidentiary value to support a finding that Davis can perform jobs in the national economy. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988); DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991).
The limitation noted by Dr. LeBray that was included in the hypothetical question pertained to the ALJ's finding at step four and is not dispositive of the ALJ's findings at step five that Davis is capable of making an adjustment to work other than her past relevant work. The VE testified that Dr. LeBray's limitation prohibiting Davis from performing fast paced, complex routines would negate the possibility of Davis returning to her past relevant work. The court has already found that the ALJ erred in failing to include what weight, if any, was given to Dr. LeBray's findings, and that the ALJ's finding at step four is not supported by substantial evidence.
This district has wrestled with the seemingly common occurrence of an ALJ concluding that a claimant has deficiencies "often" in concentration, persistence or pace. This district's decisions have found in certain instances that an absence of these deficiencies in the hypothetical question posed to the VE constitute a reversible error. Abrego v. Commissioner, 2000 WL 682671 (D.Or.). This district's decisions have also found that the specific words used in the Psychiatric Review Technique Form need not be used in the hypothetical question as long as it includes limitations that "satisfy" the limitations findings from the Psychiatric Review Technique Form. Williams v. Apfel, 2001 WL 204811 (D.Or.); Swenson v. Commissioner, 2000 WL 486753 (D.Or.).
The issue before this court is whether the hypothetical question accurately captured the ALJ's findings as to Davis' deficiencies in concentration, persistence or pace. The ALJ posed a hypothetical question, including moderate limitations in nearly all mental activities requiring sustained concentration and persistence; including maintaining attention and concentration for extended periods; understanding, remembering and carrying out detailed instructions; and sustaining an ordinary routine without special supervision. The court finds that the hypothetical question posed by the ALJ satisfies the findings made by the ALJ in the Psychiatric Review Technique Form, and the VE's testimony is given proper evidentiary value to support a finding that Davis can perform jobs in the national economy.
Moderately is used as an impairment which seriously limits but does not preclude an individual's ability to function in a designated area. AR 68.
2. The ALJ's Failure to Comply with SSR 85-15
The ALJ made an alternate finding that Davis can perform work which exists in significant numbers in the national economy. The ALJ based this finding on the jobs identified by the VE at the hearing and on the use of the Medical-Vocational Rules 203.18 and 202.21, Appendix 2 as a framework for his decision.
Davis contends that the ALJ's alternate finding is in error because it does not properly apply the medical-vocational rules as a framework. Davis contends that after obtaining the VE's testimony, the ALJ failed to assess the erosion of Davis' occupational base. Davis contends that out of the 2500 unskilled medium, light and sedentary occupations of which the grids take administrative notice, the ALJ found only three occupations which Davis is capable of performing, and that accordingly the medium and light occupational bases are significantly eroded. Davis argues that based on equity, this erosion does not permit using the medium or light grid rules as a framework, and that Rule 201.09 is the correct grid to apply as a framework. Thus, Davis contends that the ALJ's findings apply incorrect legal standards and are not based upon substantial evidence in the record.
The Commissioner counters that in this instance, the Rulings provide that the ALJ must consult a vocational resource to determine the impact of the individual's residual functional capacity on the occupational base. SSR 83-12 at 2-3. The Commissioner also contends that the ALJ's finding that Davis could perform only three occupations complies with the Social Security regulations. The Commissioner asserts that the ALJ asked a vocational expert to identify jobs someone with Davis' limitations could perform, and that because the VE was able to identify one or more jobs existing in significant numbers, the ALJ correctly found that Davis is not disabled.
The regulations provide, in relevant part: "How we determine the existence of work. Work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications. . . ." 20 C.F.R. § 404.1566(b). SSR 85-15 provides explanations for the use of the medical-vocational guidelines as a framework. The Ruling requires that the ALJ address two issues: 1) how much the persons' occupational base is reduced by the effects of the nonexertional impairment(s); and 2) whether the person can be expected to make a vocational adjustment considering the interaction of his/her remaining occupational base with his/her age, education, and work experience. SSR 85-15. SSR 83-14 applies to the scenario where an individual's exertional limitations are somewhere in the middle or the effect on the occupational base is less obvious.
The Rulings require that the ALJ consult a vocational resource, identify jobs that the claimant can perform, and provide a statement of the numbers of such jobs in the national economy. SSR 83-14 at 6. In this instance, the effect of Davis' residual functional capacity eroded her occupational base; the ALJ properly consulted the vocational expert; and the ALJ subsequently identified and provided a statement of incidence of three jobs existing in significant numbers in the national economy. The ALJ has complied with the regulations, and his decision is therefore supported by substantial evidence in the record.
CONCLUSION
The court finds that the decision of the Commissioner is supported by substantial evidence in the record on the grounds that Davis is able to make an adjustment to work which exists in significant numbers in the national economy. The decision of the Commissioner is affirmed.
J U D G M E N T
Based on the record,
The decision of the Commissioner is hereby AFFIRMED.
O R D E R
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.