CAROL MIRANDO, Magistrate Judge.
Plaintiff, Juli Niesen, is appealing the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for a period of disability and Disability Insurance Benefits ("DIB"). For the reasons set forth herein, the Court recommends that the Commissioner's decision be
There is one issue on appeal: whether the ALJ improperly relied on vocational expert ("VE") testimony to identify the representative jobs that Plaintiff can perform. Specifically, after determining that Plaintiff could perform sedentary work, alternating between sitting and standing at will, and communicating that limitation to the VE through the hypothetical, the ALJ relied on the VE's testimony and found that Plaintiff could perform the requirements of representative occupations such as ticket seller, order clerk, and charge-account clerk. Plaintiff contends that the VE later inconsistently testified that the occupations he identified require alternating between sitting and standing no more frequently than every 20 minutes, of which Plaintiff is not capable. Thus, Plaintiff argues the ALJ's decision is not supported by substantial evidence because it is not clear if there are any jobs in the national economy that Plaintiff could perform with the sitting/standing at will limitation.
On September 21, 2009, Plaintiff applied for disability and DIB, alleging that she had been disabled and incapable of working since November 20, 2009. Tr. 27, 138, 158. The Social Security Administration ("SSA") denied Plaintiff's claim initially on June 16, 2010 (Tr. 77-79), and upon reconsideration on October 14, 2010. Tr. 83-84. Challenging the decision, Plaintiff requested and received a video hearing before an ALJ, held on November 7, 2011, during which she was represented by an attorney. Tr. 27, 41-74. Plaintiff testified at the hearing. Tr. 46-65. A VE was called and also testified. Tr. 66-73.
On December 13, 2011, the ALJ issued a decision finding Plaintiff not disabled from November 20, 2009, through the date of the decision. Tr. 27-35. Following the ALJ's decision, Plaintiff filed a Request for Review by the Appeals Council, which was denied. Tr. 1-6. Accordingly, the ALJ's December 13, 2011 decision is the final decision of the Commissioner.
On May 15, 2013, Plaintiff timely filed her Complaint with this Court under 42 U.S.C. §§ 405(g), 1383(c)(3), arguing that the ALJ's decision is not supported by substantial evidence. Doc. 1. Plaintiff argues that the matter should be reversed and remanded to the Commissioner for payment of benefits because the ALJ improperly relied on VE testimony in finding that there were jobs existing in the national economy that Plaintiff could perform given her limitations. The parties have briefed the issue and the matter is ripe for review.
The ALJ first determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2013. Tr. 27. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since November 20, 2009, the alleged onset date. Tr. 29. At step two, the ALJ determined that Plaintiff has the following severe impairments: degenerative joint and disc disease. Tr. 29. At step three, the ALJ concluded that Plaintiff "did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1."
The ALJ then determined that Plaintiff had the RFC to perform work that does not require exertion above the sedentary level;
A claimant is entitled to disability benefits when she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. § 404.1520. The claimant bears the burden of persuasion through step four, and, at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The district court must consider the entire record, including new evidence submitted to the Appeals Council for the first time, in determining whether the Commissioner's final decision is supported by substantial evidence. Ingram v. Astrue, 496 F.3d 1253, 1265 (11th Cir. 2007). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, and such relevant evidence as a reasonable person would accept as adequate to support the conclusion." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) ("Substantial evidence is something `more than a mere scintilla, but less than a preponderance.'").
Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the preponderance of the evidence is against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). "The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision." Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings).
Plaintiff was forty-seven years old at the time of the ALJ's decision. Tr. 47. She obtained a GED and previously worked as a postal carrier for 18 years. Tr. 47, 48, 55. She testified that she suffers from chronic pain in her back, neck, right shoulder, right hip, and right knee, which causes her great discomfort. Tr. 51-53. She testified that she cannot stand or sit for too long, or she will be in pain. Tr. 53. She frequently has to change positions and stand up to find comfort. Tr. 53. When at home, she stated that she can sit for a 30-minute period and stand for 15 minutes at a time before she has to sit down. Tr. 53-54. She stated that the pain and the limitations from her impairments would not allow overhead work. Tr. 56-57. She further stated that her doctor has recommended a knee replacement, and she suffers from hip dysplasia. Tr. 59-61. She had surgery on her right shoulder but no treatment since, due to lack of insurance. Tr. 63-64.
At the hearing, the ALJ provided the VE with the following hypothetical:
Tr. 67. In response, the VE testified:
Tr. 67. Upon questioning by Plaintiff's counsel, the VE testified that sitting and standing at will can interfere with a job, depending on how often a person must sit or stand. Tr. 68. The VE stated that the occupations cited could be performed with the alternating of sitting and standing, but no more frequently than every 20 minutes. Tr. 70. The VE further testified that if the Plaintiff had to alternate positions every 30 minutes, it would interfere with some, but not all of the jobs. Tr. 69.
On appeal, Plaintiff argues that the ALJ improperly relied on the VE's testimony because the VE testified in response to the ALJ's hypothetical as to the number of jobs Plaintiff could perform sitting and standing at will. Tr. 69. Yet, the VE later testified that sitting and standing at will can interfere with a job, and, in fact, if an individual such as Plaintiff needs to alternate sitting and standing more frequently than every 20 minutes, the occupations identified by the VE could not be performed. Tr. 70. In response, the Government argues that the hypothetical question posed to the VE adequately portrayed Plaintiff's credible limitations of record, and Plaintiff has offered no medical evidence of record that she needs to alternate sitting and standing at any fixed interval. For the reasons that follow, I find that the decision of the Commissioner should be affirmed.
"[I]n order for a [vocational expert's] testimony to constitute substantial evidence, the ALJ must pose a hypothetical question to the vocational expert which comprises all of the claimant's impairments." Phillips v. Barnhart, 357 F.3d 1232, 1240 n.7 (11th Cir. 2004) (quotation marks omitted). "The hypothetical need only include the claimant's impairments, not each and every symptom of the claimant." Ingram, 496 F.3d at 1270 (citation and quotation marks omitted).
In this case, the ALJ found that Plaintiff had the RFC to perform work that does not require exertion above the sedentary level or overhead work, and that allows the alternating of sitting and standing at will. Tr. 20. After finding that Plaintiff could not return to her past relevant work as a postal carrier (which requires medium exertion), the burden of proof then shifted to the Commissioner to show there is other work Plaintiff could perform given her age, education, prior work experience, and RFC. Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). To fulfill this burden, the ALJ used Rule 201.21 of the Medical-Vocational Guidelines as a framework for decision-making, in conjunction with the VE's testimony, to find if Plaintiff could perform other work. Tr. 33-34. 20 C.F.R. § 404.1520(a)(4)(v); 20 C.F.R., Part 404, Subpart P, Appendix 2, rule 201.21.
The ALJ asked the VE a hypothetical that included the impairments in Plaintiff's RFC. Based upon that hypothetical, the VE concluded that, although Plaintiff would not be able to perform any of her past occupations, there were still a significant number of jobs in the national economy that she could do. Tr. 67. In response to questioning regarding whether the frequency of sitting and standing would erode the jobs Plaintiff could perform, the VE testified that changing positions every 20 minutes or more would reduce the number of available jobs identified and every 15 minutes would be "a problem." Tr. 69-70. Plaintiff argues that the VE failed to adequately explain how he reduced the number of jobs to account for Plaintiff's need to alternate sitting and standing at will. This argument is without merit.
The VE testified that the occupations he identified could be performed with the alternating of sitting and standing, but no more frequently than every 20 minutes. Tr. 70. The relevant sections of the Dictionary of Occupational Titles ("DOT") do not specify whether a ticker seller, order clerk food and beverage, or charge account clerk may sit or stand at will. See Department of Labor, Dictionary of Occupational Titles §§ 211.467-030,
Plaintiff has not cited any medical evidence showing that she needs to alternate sitting and standing at any fixed interval, let alone more frequently than every 20 minutes, such that this is a credible limitation that would erode the number of sedentary jobs that Plaintiff could perform. In fact, Dr. Patricia Poling, Plaintiff's treating physician, opined in July 2010 and October 2011 that Plaintiff was able to stand and sit without interruption one-half hour at a time, and could stand/walk for 2 hours in an 8-hour work day, consistent with sedentary work. Tr. 362-63, 498-500. Further, Plaintiff testified that she could stand for under 15 minutes at a time and sit for 30 minutes at a time. Tr. 53-54. In fact, Plaintiff testified that she did not necessarily have to stand at any fixed interval, but that she would have to change positions to find comfort. Tr. 53. See Williams v. Barnhart, 140 F. App'x 932, 937 (11th Cir. 2005) (noting that it is plaintiff's burden to establish that he cannot perform the jobs identified by the VE and plaintiff failed to offer any evidence that he could not perform the unskilled jobs identified by the VE based on his ability to sit or stand for any period of time). Although Plaintiff testified that she could stand no more than 15 minutes at a time (Tr. 53), the ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms to be not credible to the extent they were inconsistent with her RFC. Tr. 33. This is supported by substantial evidence, given that Plaintiff has pointed the Court to no medical evidence in the record that would support her assertion that she can stand for no more than 15 minutes at a time. While an ALJ's hypothetical question must take into account all of a claimant's impairments, Wilson, 284 F.3d at 1227, the question need not include impairments that the ALJ has properly determined to be unsupported by the evidence in the record. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Contrary to Plaintiff's argument, the ALJ properly considered the evidence in the record; and Plaintiff has not provided any evidence to contradict the VE's testimony that Plaintiff can perform the three jobs identified by the VE after considering the ALJ's hypothetical. Consistent with the Regulations, the ALJ noted in his decision pursuant to SSR 00-4p that "the [VE's] testimony is consistent with the information contained in the [DOT]." Tr. 34. Assuming there were an identifiable inconsistency between the VE's testimony and the DOT, the VE's expert testimony "trumps" the DOT. The VE's testimony is supported by substantial evidence, and the ALJ committed no error in relying on that testimony.
Accordingly, for the reasons stated in this Report and Recommendation, it is hereby respectfully
