KIRTAN KHALSA, Magistrate Judge.
Claimant Patrick Feary ("Mr. Feary") alleges that he became disabled on February 3, 2011, at the age of thirty-three because of severe rheumatoid arthritis and obesity. (Tr. 95-96, 97-102, 142.
On May 26, 2011, Mr. Feary protectively filed an application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq. (Tr. 95-96, 138.) On June 22, 2011, Mr. Feary filed for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 97-102.) Mr. Feary's applications were initially denied on August 19, 2011. (Tr. 53, 54, 60-63.) They were denied again at reconsideration on October 11, 2011. (Tr. 55, 56, 67, 68.) On October 21, 2011, Mr. Feary requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 69-70.) ALJ Daniel Dadabo conducted a hearing on October 11, 2012. (Tr. 20-52.) Mr. Feary appeared in person at the hearing and was represented by Attorney Stephen McCarty.
On June 26, 2014, Mr. Feary timely filed a Complaint seeking judicial review of the Commissioner's final decision. (USDC Civ. No. 14-301 CG, Doc. 1.) The parties fully briefed the issues raised for judicial review. (Id., Docs. 15, 17, 18.) On February 23, 2015, Magistrate Judge Carmen Garza, presiding by consent, entered an Order Granting Plaintiff's Motion to Reverse and Remand. (Id., Doc. 20, Tr. 523-37.) Judge Garza held that the ALJ erred in failing to expressly address Dr. Lucio Martinez's opinion. (Tr. 536.)
On January 20, 2016, ALJ D'Lisa Simmons conducted a second hearing pursuant to the Appeals Council's order remanding the case.
The Court reviews the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10
The ALJ made her decision that Mr. Feary was not disabled at step five of the sequential evaluation. She found that Mr. Feary had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except
(Tr. 451.) Based on the RFC and the testimony of the VE, the ALJ concluded that considering Mr. Feary's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that he could perform and that he was therefore not disabled. (Tr. 461.)
Mr. Feary asserts three arguments in support of his Motion as follows: (1) the ALJ improperly rejected Dr. Lucio Martinez's medical opinion; (2) the ALJ's RFC findings were internally inconsistent; and (3) the ALJ failed to resolve the conflict between the DOT and the VE's testimony regarding Mr. Feary's need to alternate between sitting and standing for short periods of time. (Doc. 17 at 15-24.) For the reasons discussed below, the Court finds that the ALJ applied the correct legal standards in determining that Mr. Feary is not disabled and that her determination is supported by substantial evidence.
Mr. Feary saw Dr. Lucio Martinez eight times over thirteen months from January 7, 2010, through February 24, 2011. (Tr. 890, 892, 895, 898, 900, 904-05, 913, 918.) Mr. Feary's chief complaints at those appointments were hypertension and diverticulitis, although he also complained at some visits of increased arthritic pain in his hands, knees and left ankle for which Dr. Martinez referred him to rheumatologist Dr. Rovinder Singh Saini. (Id.) Dr. Martinez performed brief physical exams at each of the eight visits and noted for each exam, inter alia, that Mr. Feary had no extremity cyanosis, clubbing or edema.
The ALJ accorded "partial weight" to Dr. Martinez's clinical findings, "significant weight" to his treating records, and "little weight" to his medical source statement. (Tr. 452.) Mr. Feary argues that the ALJ erred in rejecting Dr. Martinez's opinion because she failed to perform the requisite two-step analysis for weighing treating doctor opinions. (Doc. 17 at 16-20.) Mr. Feary further argues that the reasons the ALJ provided for rejecting Dr. Martinez's opinion are illegitimate and unsupported. (Id.) Mr. Feary explains that the ALJ overlooked the clinical signs that supported Dr. Martinez's assessment, misapprehended the nature of rheumatoid arthritis, and relied on certain clinical findings from other providers while rejecting others. (Id.) The Commissioner contends, and the Court agrees, that it is clear in the ALJ's decision the weight she accorded Dr. Martinez's opinion, and the ALJ provided good reasons supported by substantial evidence for the weight she accorded. (Doc. 19 at 5-8.)
The ALJ must follow a specific procedure when weighing a treating physician's opinion. Krauser v. Astrue, 638 F.3d 1324, 1330 (10
The ALJ satisfied both parts of the two-part inquiry Krauser requires. 638 F.3d at 1330. First, although the ALJ did not explicitly state that Dr. Martinez's opinion was not entitled to controlling weight, the weight the ALJ accorded Dr. Martinez's opinion was sufficiently specific. Here, the ALJ stated she accorded "partial weight" to Dr. Martinez's clinical findings, "significant weight" to his treating records, and "little weight" to his medical source statement. (Tr. 452.) As such, the ALJ made clear to subsequent reviewers the weight she was according to Dr. Martinez's opinion as she was required to do. See Tarpley v. Colvin, 601 F. App'x 641, 643-44 (10
Second, although the ALJ did not expressly apply the regulatory factors, her decision considered them, and she provided specific and legitimate reasons for the weight she accorded Dr. Martinez's opinion that are supported by substantial evidence. In her decision, the ALJ noted (1) that Dr. Martinez was a family practice physician; (2) that his physical examinations of Mr. Feary, albeit "quite scant," consistently noted no extremity cyanosis, clubbing, or edema; (3) that Dr. Martinez had cautioned Mr. Feary regarding applying for disability benefits because of the potential health consequences related to inactivity; and (4) that Dr. Martinez's Arthritic Report was internally inconsistent because he indicated on the one hand that Mr. Feary required no assistive device and had normal ambulation and gait, but on the other hand assessed that he could only walk for about 20 minutes. (Tr. 452.) Mr. Feary addressed two of these findings and argues that Dr. Martinez was not discouraging him from obtaining disability benefits, but was "simply advising [him] to stay active" even if he did obtain disability benefits. (Doc. 17 at 18.) Mr. Feary further argues that Dr. Martinez's assessment was not internally inconsistent because, contrary to the ALJ's finding, Dr. Martinez opined that Mr. Feary only had limitations with standing, but had "no ambulatory issues."
The ALJ further explained that Dr. Martinez's assessment was inconsistent with the record as a whole. The ALJ noted that on August 9, 2011, approximately two weeks before Dr. Martinez's completion of the Arthritic Report, Mr. Feary's treating neurologist, Dr. Farouk Y. Khan, M.D., Ph.D. examined him. (Tr. 458.) The ALJ explained that Dr. Khan found on physical exam that Mr. Feary's motor strength was 5/5 through all four extremities and muscle groups, that his sensory examination was normal, and that Mr. Feary successfully withstood postural challenges. (Id.) The ALJ further explained that on October 18, 2011, approximately eight weeks after Dr. Martinez's completion of the Arthritic Report, Mr. Feary's treating rheumatologist, Dr. Rovinder Singh Saini, examined him. (Tr. 406-08.) The ALJ explained that Dr. Singh found on physical exam that Mr. Feary had good grip in his hands with good range of motion, no active synovitis in his elbows, shoulders, or lower extremities, and no lower extremity edema. (Tr. 458.) Dr. Singh also found that Mr. Feary had some tenderness over the lateral, collateral ligament of the left knee, but that his range of motion was good and there was no crepitus. (Id.) Finally, Dr. Singh noted at that visit that Mr. Feary reported feeling "90 percent better" on Enbrel, although he had experienced some increased arthritic symptoms with the weather change. (Id.)
Mr. Feary argues that the ALJ improperly relied on certain clinical findings from these providers while rejecting other findings. (Doc. 17 at 18-20.) For example, Mr. Feary argues that on physical exam on August 17, 2011, Dr. Khan noted that no postural challenges were done "due to safety concerns."
For the foregoing reasons, the Court finds that the ALJ applied the correct legal standard in evaluating Dr. Martinez's opinion and provided legitimate reasons that are supported by substantial evidence for the weight she accorded his opinion. There is no reversible error on this point.
Mr. Feary argues that the ALJ's RFC is internally inconsistent because she determined that Mr. Feary could sit, stand or walk a total of 6 hours each, intermittently, throughout the 8-hour workday, but also determined that Mr. Feary should alternate between sitting and standing every 30 to 35 minutes. (Doc. 17 at 20-21.) In so doing, Mr. Feary argues that the ALJ effectively restricted Mr. Feary to sitting and standing/walking for a total of 4 hours each in an 8-hour workday. (Id.) Mr. Feary further argues that in light of this inconsistency, the ALJ's hypothetical to the VE was imprecise and the ALJ improperly relied on the VE's testimony as substantial evidence. (Id.) The Commissioner contends that Mr. Feary's need to alternate between sitting and standing every 30 to 35 minutes did not imply that he needed to sit for 30 minutes and then stand for 30 minutes throughout the workday, but instead, as clarified by the VE, meant that Mr. Feary would need to change positions for short periods of time throughout the day. (Doc. 19 at 8-9.) The Court agrees.
The ALJ's RFC did not restrict Mr. Feary to sitting and standing/walking for a total of 4 hours each in an 8-hour workday. A full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday, or sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls. SSR 83-10, 1983 WL 31251, at *5-6; see also 20 C.F.R. §§ 404.1567(b), 416.967(b) (defining that a job is in the light category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls). In other words, a claimant capable of performing a full range of light work must be able to do all of these activities throughout an eight-hour workday, or any one of them for up to six hours if necessary. Id. Here, the ALJ determined that Mr. Feary could sit, stand or walk in any combination intermittently throughout the day, or for up to six hours as to one activity if necessary, but that he would need to alternate between sitting and standing every 30 to 35 minutes to the extent he remained in one position. (Tr. 451.) When the ALJ provided the hypothetical to the VE, the VE requested clarification regarding the amount of time the alternate position must be assumed and specifically asked whether "it would just be sitting for a short period and standing for a short period," to which the ALJ responded affirmatively. (Tr. 496.) The ALJ therefore related with precision to the VE Mr. Feary's need to alternate between sitting and standing as she was required to do. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10
Moreover, the rulings contemplate special situations in which the medical facts lead to an assessment of RFC which is compatible with the performance of light work except that the person must alternate periods of sitting and standing. SSR 83-12, 1983 WL 31253, at *4. In those special situations, a VE should be consulted to clarify the implication for the occupational base. Id. The ALJ did so here.
For these reasons, the Court finds that the ALJ's RFC determination is not internally inconsistent. The Court further finds that the VE's testimony elicited by the ALJ's hypothetical question related precisely to Mr. Feary's need to alternate between sitting and standing for short periods of time and that the ALJ appropriately relied on the VE's testimony as substantial evidence. There is no reversible error on this point.
Mr. Feary's final argument rests on his assertion that there was a recognized conflict between the VE's testimony and the DOT related to his limitation to alternate between sitting and standing for short periods of time that the ALJ failed to resolve. (Doc. 17 at 23-24.) Mr. Feary relies on the same argument that because the ALJ's RFC effectively restricted him to sitting and standing/walking for a total of 4 hours each in an 8-hour workday the VE's testimony was in conflict with the DOT. (Id.) The Court has already rejected Mr. Feary's argument that the ALJ's RFC was internally inconsistent and does not find it persuasive here. See Section III.B., supra. Moreover, the Court is not persuaded there was an apparent conflict to resolve.
The ALJ has an affirmative duty to question a vocational expert about the source of her opinion and any deviations from the DOT. Haddock, 196 F.3d at 1091; SSR 00-4p, 2000 WL 1898704, at *4. Further, the absence of a limitation in the DOT does not necessarily eliminate an ALJ's duty of inquiry.
Here, the ALJ's hypothetical specifically included, inter alia, that "the hypothetical person should alternate between sitting and standing every 30 to 35 minutes." (Tr. 495.) When the ALJ asked the VE if there would be any job she could identify at the light level that a person with Mr. Feary's restrictions could do, the VE answered,
(Tr. 495-96.) (Emphasis added.) The VE then identified certain light level jobs that Mr. Feary could perform based on the ALJ's hypothetical RFC. (Tr. 496-97.) Additionally, when questioned later by Mr. Feary's attorney, the VE testified again that the jobs she identified had accounted for Mr. Feary's need to alternate between sitting and standing every 30 to 35 minutes for a short period of time. Specifically, Mr. Feary's attorney asked, "Just for the record, the jobs that you mentioned, do they take into account the 30 to 35 minute, sit, stand option that the judge limited?" (Tr. 498.) The VE responded, "Yes, as long as the individual is able to still do the job." (Id.) Thus, it is clear from the record that the ALJ and Mr. Feary's counsel directly addressed whether the VE considered Mr. Feary's need to alternate between sitting and standing for short periods of time in the jobs she identified. As such, there was no unresolved discrepancy between the VE's testimony and the DOT for the ALJ to resolve. Newburn, 62 F. App'x at 304.
For the foregoing reasons, the Court finds that the VE's testimony regarding certain jobs from the DOT that were silent concerning the sit/stand option did not create an apparent conflict that had to be resolved. Wahpekeche, 640 F. App'x at 786. There is no reversible error as to this issue.
For the reasons stated above, Mr. Feary's Motion to Reverse and Remand for Rehearing (Doc. 17) is