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Wilhelm v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

March 4, 2015

Debra J. Wilhelm, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

OPINION AND ORDER

JOSEPH S. VAN BOKKELEN, District Judge.

Plaintiff Debra Wilhelm seeks judicial review of the final decision of Defendant Carolyn Colvin, Acting Commissioner of Social Security, denying her application for Disability Insurance Benefits. Because her disability coverage expired after December 31, 2010, Wilhelm had to prove that she was disabled before that date. The written decision of the administrative law judge is not flawless, but because Wilhelm is unable to specify how or why the decision would change on remand, the Commissioner's decision is AFFIRMED.

A. Procedural History

Wilhelm applied for Disability Insurance Benefits in July 2011; she claimed her disability began in April 2006. (R. 74.) The Social Security Administration ("SSA") denied benefits, and she requested a hearing before an administrative law judge ("ALJ"). (R. 74, 75, 90-91.) Wilhelm attended a hearing before ALJ Maryann Bright on August 10, 2012, represented by her attorney; Wilhelm, her husband, and vocational expert Robert Barkhaus, Ph.D., testified. (R. 26-73.)

ALJ Bright issued a decision unfavorable to Wilhelm on September 18, 2012. (R. 8-20.) The SSA Appeals Council denied review, and Wilhelm timely filed her request for judicial review. (DE 1.) This Court has jurisdiction pursuant to 42. U.S.C. § 405(g).

B. Facts

(1) Wilhelm's Background and Testimony

Wilhelm was 45 years old on December 31, 2010. (R. 74.) The ALJ told Wilhelm that she had to testify about her limitations as of December 31, 2010, and Wilhelm replied that she understood. (R. 30.) Wilhelm testified that she stopped working in 2006. (R. 37.) She said sweeping or doing the dishes at home is hard because her arthritis causes pain and discomfort. (R. 37.) She has pain in her lower back and hips, but has arthritis in her shoulders, fingertips, knees, and ankles. (R. 38.) To relieve the pain she says she takes "a lot" of over-the-counter pain relievers, stays off her feet, or just suffers through the pain to finish whatever she was doing. (R. 45-46.) When asked what else she does to relieve her pain and arthritis, Wilhelm stated she just takes medication and visits chiropractors. (R. 42.)

Wilhelm testified that she saw her family doctor, Dana Forrest, M.D., any time she felt was necessary for pain or anything else. (R. 39.) She said Dr. Forrest prescribed arthritis medication that she was unable to afford without insurance coverage. (R. 40.) She said that in 2010 she was taking medications for high blood pressure, arthritis, and anxiety. (R. 40.) But she later testified she had no health insurance in 2010, and had stopped taking her arthritis medication because they could not afford it, and there was no generic substitute. (R. 61-62.)

She testified that she can sit for up to thirty minutes and stand for up to thirty minutes at a time, and she said that her back is the biggest source of her pain, and that pain radiates into her hips and shoulders. (R. 46-48.) Reaching does not bother her back, but she could not kneel or crawl since before 2010. (R. 50-51.) She testified that she loves to work in her garden, but has to work from a lawn chair because she can no longer hoe, use a tiller, or kneel down. (R. 56.)

She testified that she suffers from anxiety and depression. (R. 38). When asked if her anxiety medications work, Wilhelm responded that they work if taken regularly. (R. 41, 53.) She said that she experiences no side effects from her medications. (R. 41.) She stated that she was suffering two or three anxiety attacks per day, but did not see any physician other than Dr. Forrest because the medications Dr. Forrest prescribed helped her anxiety. (R. 52-53.) She said she had no problems making decisions or relating to others. (R. 53.)

(2) Medical Evidence

(a) Knee & Back Pain

In May 2006, Wilhelm tore the meniscus in her left knee, and had it surgically repaired. (R. 367-68, 365.) In October 2008 and May 2009, Dr. Forrest prescribed Mobic to treat ear pain. (R. 296.) In September 2009, Wilhelm went to the emergency room with pain in the right side of the lower back; John Wagel, M.D., noted tenderness on the right, but no pain down the spine. (R. 411.) In November 2009, Dr. Forrest diagnosed likely advancing osteoarthritis in her left knee. (R. 317.) A month later, Keith Schreffler, M.D., prescribed Percocet for back pain. (R. 236, 321.)

Wilhelm went to chiropractor Thomas Stevens several times during December 2009 and once in August 2010. (R. 248-50.) He wrote that she had pain in her lower back, right hip and leg, and that her neck was stiff, but his treatment notes are essentially illegible. (R. 250.)

In April 2011, Dr. Forrest gave Wilhelm a steroid injection in each knee. (R. 325.) In January 2012, Jason Hanna, M.D., noted moderate degenerative changes in two parts of the right knee and significant changes in a third area. (R. 380-83, 426.) Orthopedic surgeon William Berghoff, M.D., diagnosed Wilhelm with severe degenerative arthritis in May 2012. (R. 471.) Dr. Berghoff surgically replaced her right knee in May and left knee in July 2012. (R. 471, 452.)

(b) Sinus Condition

In May 2007, Dr. Wagel diagnosed Wilhelm with sinusitis, and neck pain caused by sinusitis. (R. 206-08.) In December 2007, Wilhelm went to Dr. Forrest for a possible sinus infection. (R. 280-81.) In January 2008, Wilhelm complained of daily headaches and sinus pressure to Dr. Forrest, but Dr. Forrest wrote that the headaches were likely not sinus related and more consistent with daily tension headaches. (R. 283.) These headaches no longer troubled Wilhelm after she began taking medication to lower her blood pressure. (R. 285-86.)

Wilhelm complained of nasal congestion to Dr. Forrest in May and October 2008; January, March, May, and October 2009; and February and May 2010. (R. 290, 294, 296, 299, 302, 307, 314, 319, 321.) Wilhelm saw Dr. Forrest, and other doctors, after May 2010, but did not complain of nasal congestion or sinus pressure.

(c) Anxiety

Wilhelm first received a prescription to treat anxiety in September 2008. (R. 295.) In October 2008, she reported feeling much better on the medication, but occasionally felt anxious. (R. 296.) In November 2009, Wilhelm told Dr. Forrest that she was anxious after a family member survived a traumatic experience, but she did not want to go to counseling. (R. 317.) Wilhelm went to the emergency room following a panic attack in March 2009, April 2011, and February 2012. (R. 307.) In 2012, Dr. Forrest referred her to a neurologist, but Wilhelm did not appear at that appointment. (R. 423, 425, 422.) In June 2012, Wilhelm complained of anxiety to Dr. Forrest and had two prescriptions refilled. (R. 419.)

(3) Mr. Wilhelm's Testimony

Mr. Wilhelm testified that he was between jobs and as a result the Wilhelms were without health insurance in 2010. (R. 63.) He said that some medications are unaffordable. (R. 63.) His brief testimony concluded with a statement that Wilhelm kept a really clean house before her symptoms deteriorated, but that she still tried to keep the house really clean. (R. 64.)

(4) Vocational Expert's Testimony

Dr. Barkhaus testified that he had read the file regarding Wilhelm's work history, and that he had listened to her testimony. (R. 65.) The ALJ posed three hypotheticals to Dr. Barkhaus. For the first one, the ALJ described an individual limited to sedentary work, who "is capable of lifting, carrying, pushing and pulling a total of ten pounds [INAUDIBLE] six hours in an eight hour work day, and standing or walking six hours in an eight hour work day." (R. 67.) The individual could also climb ramps and stairs occasionally; could occasionally balance, stoop, kneel, crawl, and crouch; could never climb ladders, ropes, or scaffolds. (R. 67.)

Dr. Barkhaus testified the individual could not perform any of Wilhelm's prior jobs, but that the individual could perform three sedentary jobs, which were consistent with the Dictionary of Occupational Titles. (R. 67.) An addresser, an order clerk, with 200 positions existing for each in Northeast Indiana, and a charge account clerk with 100 available positions. (R. 67-68.)

For hypothetical two, the ALJ added one further requirement: "they have to alternate between sitting and standing." (R. 68.) Dr. Barkhaus stated that the three jobs would be performed primarily while seated, but that the individual could work while standing for a short time. (R. 68.) Dr. Barkhaus clarified that they could not walk around and would have to remain at the work station while standing. (R. 68-69.)

For the final hypothetical, the ALJ restricted the individual to only occasional interactions with supervisors, co-workers, and the public. (R. 69.) Dr. Barkhaus testified that no sedentary work would be available other than the addresser. (R. 69.)

Wilhelm's attorney examined Dr. Barkhaus and asked if the three positions would be eliminated if the individual from hypothetical one was restricted to never kneeling, crouching, or crawling. (R. 70.) Dr. Barkhaus testified that his answer would not change with the new restrictions, and would not change if the individual could never bend or stoop. (R. 70.)

(5) ALJ's Decision

ALJ Bright found that Wilhelm suffered from the severe impairment of osteoarthritis in both knees as of December 31, 2010 (R. 13.) The ALJ noted that the medical evidence from before 2011 supported Wilhelm's testimony regarding her knee pain but did not support significant functional limitations to account for back or shoulder impairments, and that the evidence in 2011 and after did not corroborate her testimony about the severity of pain throughout her body. (R. 14.) The ALJ found that Wilhelm's anxiety was not severe because it had no more than mild limitation on her functional activities. (R. 15.)

The ALJ found that Wilhelm had the residual functional capacity ("RFC") to do the following:

[L]ift, carry, push, and pull a total of 10 pounds; sit 6 hours in an 8-hour workday; and stand and/or walk 2 hours in an 8-hour workday. The individual can occasionally climb ramps and stairs, and never climb ladders, ropes and scaffolds. The individual is capable of occasional balancing, stooping, kneeling, crouching, and crawling. The individual is allowed to sit or stand alternatively at will provided that this individual remains at the work station.

(R. 16.) The ALJ explained that this RFC accounted for Wilhelm's knee pain, limited range of motion, and obesity. (R. 17-18.) The ALJ found at step five, that on the basis of the VE's testimony, there were a substantial number of jobs available for a person with Wilhelm's RFC as of December 31, 2010. (R. 18-19.)

C. Standard of Review

This Court has the authority to review Social Security Act claim decisions under 42 U.S.C. § 405(g). The Court will uphold an ALJ's decision if it is reached under the correct legal standard and supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). This Court will not reconsider facts, re-weigh the evidence, resolve conflicts in the evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). This Court will, however, ensure that the ALJ built an "accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court, we may access the validity of the agency's ultimate findings and afford a claimant meaningful judicial review." Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).

D. Disability Standard

To qualify for disability benefits, the claimant must establish that she suffers from a disability. A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The SSA established a five-step inquiry to evaluate whether a claimant qualifies for disability benefits. A successful claimant must show:

(1) [s]he is not presently employed; (2) h[er] impairment is severe; (3) h[er] impairment is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) [s]he is not able to perform h[er] past relevant work; and (5) [s]he is unable to perform any other work within the national and local economy.

Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).

An affirmative answer leads either to the next step or, on steps three and five, to a finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any point other than step three stops the inquiry and leads to a finding that the claimant is not disabled. Id. The burden of proof lies with the claimant at every step except the fifth, where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).

E. Analysis

As a threshold issue, the ALJ found, and Plaintiff does not contest, that Plaintiff was insured through December 31, 2010. (R. 11.) Therefore, Plaintiff must have been disabled on or before December 31, 2010, in order to qualify for disability benefits. 42 U.S.C. § 423(c)(1). This means that an impairment or a combination of impairments must have been present and disabling as of December 31, 2010, because it is her date last insured. See Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010) ("[S]he had to prove that she was totally disabled by March 2004, because after that date (the date last insured, ' as it is called) she was no longer eligible for social security disability benefits.").

Plaintiff makes five arguments: (1) that the ALJ ignored evidence of her chronic sinusitis as either a severe or non-severe impairment; (2) the ALJ improperly discounted her testimony; (3) the ALJ did not properly consider obesity's effect on her RFC; (4) the ALJ should have accounted for Plaintiff's anxiety in the RFC; and (5) the decision is not supported by substantial evidence because the hypotheticals posed to the VE do not match the RFC in the decision. Each argument is addressed in turn below.

(1) ALJ erred by not discussing Plaintiff's sinusitis, but error was harmless

Plaintiff argues that remand is required because the ALJ failed to discuss her chronic sinusitis, even as a non-severe impairment. And that her sinusitis precludes her from full-time employment because it would cause excessive absenteeism and it would restrict her from exposure to pulmonary irritants, and temperature extremes. The Commissioner asserts that Plaintiff's failure to identify sinusitis as a medically determinable impairment to the ALJ acts as a quasi-waiver, or that not discussing sinusitis is harmless error because Plaintiff does not point to evidence that her sinusitis affects her ability to work full-time.

The analysis of this claim involves competing principles: a claimant represented by counsel is presumed to have presented her strongest case for benefits to the ALJ, Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007); however, it is the ALJ's duty to consider the combination of all impairments on the claimant's ability to work, and the "failure to fully consider the impact of non-severe impairments requires reversal." Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010); see also 20 C.F.R. § 404.1545(e).

Plaintiff reported sinus problems to Dr. Forrest, her primary care physician, at least thirteen times between December 10, 2007, and May 24, 2010. (R. 280-322.) Given the number of times sinusitis appears in the record, that the ALJ does not mention it once in her decision is a glaring error.[1] The rule from Denton seems to require reversal, but the Commissioner asks the Court to consider this error as harmless.

The harmless error doctrine applies to judicial review of administrative decisions, but only where the agency's decision is "overwhelmingly supported by the record." Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). Therefore, the Court must be able to say with great confidence that the ALJ would not reach a different conclusion on remand were the error corrected. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) ("We have already concluded that the ALJ erred. The question before us is now prospective-can we say with great confidence what the ALJ would do on remand-rather than retrospective.").

Plaintiff asserts that proper consideration of chronic sinusitis would include a limitation for excessive absenteeism. (DE 14, at 19.) This claim is not well-taken: if chronic sinusitis caused Plaintiff to consistently miss more than two or three days of work per month, or more than twelve days in a year, then Plaintiff would be unable to maintain competitive employment, per the VE's testimony. (R. 70-71.) But Plaintiff does not point to evidence demonstrating that her sinusitis would cause such "excessive absenteeism" or case law supporting this claim, and the Court is not convinced by mere conclusory statements. See Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) ("Notably, Skarbek does not specify how his obesity further impaired his ability to work, but speculates merely that his weight makes it more difficult to stand and walk."); Varner v. Colvin, No. 2:12-CV-485-PRC, 2014 WL 1152947, at *8 (N.D. Ind. Mar. 20, 2014) (finding that Plaintiff's absences were not attributable to impairment supported by substantial evidence because the ALJ explained the absences were not accompanied by doctor's notes). And sinusitis does not appear to imply absenteeism as other conditions might. See Johnstone v. Astrue, 843 F.Supp.2d 962, 979 (E.D. Wis. 2012) (ALJ ignored daytime fatigue likely caused by side effects); Shafer v. Colvin, No. 13-C-0929, 2014 WL 1785343 at *11 (E.D. Wis. May 5, 2014) (sleep apnea).

Plaintiff also does not explain how her sinusitis exacerbates her pain or other limitations that would lead to a disabling combination of impairments. A recent Seventh Circuit case illustrates the weakness of Plaintiff's argument. The claimant in Thomas v. Colvin, was assigned an RFC with the capacity to do light work, so long as she avoided concentrated exposure to air impurities. Thomas v. Colvin, 745 F.3d 802, 807 (7th Cir. 2014). The court held that failure to consider the combination of Thomas's non-severe impairments, which included fibromyalgia, sciatica, and left thumb inflammation, was not harmless error because "taking all of Thomas's impairments together would result in a more restricted RFC than the ALJ formulated." Id. And, a more restrictive RFC would preclude her ability to perform a prior job. Id.

In this case, the ALJ assigned an RFC of limited sedentary work. (R. 16.) Plaintiff fails to identify how adding restrictions to avoid exposure to pulmonary irritants would change the utcome on remand. The VE identified three jobs in the Dictionary of Occupational Titles (" D.O.T. ") that the ALJ relied on at step five of the sequential analysis. (R. 19, 67-68.) According to the D.O.T., these jobs do not involve exposure to weather, extreme cold, extreme heat, wet or humid conditions, atmospheric conditions, or any other environmental condition.[2] Plaintiff would still be able to perform the identified jobs, even with added restrictions to avoid pulmonary irritants or temperature extremes. Thus, it is extremely likely that the additional restrictions would not affect the outcome on remand because the VE's testimony the ALJ relied upon would be unchanged.

(2) RFC assessment supported by substantial evidence

(a) Evaluation of Plaintiff's credibility not patently wrong

Plaintiff asserts that the ALJ impermissibly discounted her credibility by using agency boilerplate and making generalized statements. The Commissioner responds that the ALJ supported the boilerplate language with specific findings based on the record, and that Plaintiff has not carried her burden to prove disability.

An ALJ's evaluation of a claimant's testimony is entitled to special, but not unlimited, deference. Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012). The Seventh Circuit discounts ALJ decisions that place boilerplate language before the analysis of the claimant's credibility. See Moore v. Colvin, 743 F.3d 1118, 1122 (7th Cir. 2014). The "meaningless boilerplate" makes it appear that the ALJ assesses the RFC before evaluating the claimant's testimony, and does not allow a reviewing court to determine the weight the ALJ attributed to the testimony. Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012). But merely using boilerplate is not fatal to the decision if the ALJ adequately supports the conclusion with other evidence from the record. Pepper v. Colvin, 712 F.3d 351, 368 (7th Cir. 2013). This other evidence should include a number of factors, "such as the objective medical evidence, the claimant's daily activities, allegations of pain, aggravating factors, types of treatment received and medication taken, and functional limitations." Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009).

In this case, the ALJ recounted Plaintiff's testimony about her symptoms, and then opened the credibility evaluation with the boilerplate conclusion: "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms prior to her date last insured are not fully credible." (R. 17.) However, this boilerplate must be read in the context of the ALJ's decision.

Like the ALJ in Simila, the ALJ found that medical evidence did not support Plaintiff's testimony regarding pain caused by arthritis throughout her body, but in this case the ALJ made the finding at the second step of the sequential evaluation. This earlier finding supports the ALJ's credibility conclusion and is supported by the record. The ALJ specifically notes that Plaintiff went to the emergency room for back, neck, and leg pain in 2005, 2007, and 2009. (R. 14.) Plaintiff saw one chiropractor in December 2009, and a different chiropractor in August 2010. (R. 14.) And despite x-rays revealing degenerative changes in the shoulder, there is no mention of shoulder complaints or treatment in the record, prior to the date last insured. (R. 14.) At most, the ALJ found, the record supported a finding of mild degenerative changes in the thoracic spine. But, the ALJ stated that the restrictive RFC accommodated any back or shoulder pain problems.

An ALJ should consider the types of treatment and the medications taken. But an ALJ cannot draw a negative inference from a claimant's lack of treatment without considering the claimant's explanations or any other evidence that may explain the failure to seek treatment. See SSR 96-7P, 1996 WL 374186 at *7 (Jul. 2, 1996). Plaintiff contends there are legitimate reasons for the delay in applying for benefits, but the ALJ did not discount Plaintiff's credibility solely because of the delay. The ALJ discounted her claim of totally disabling pain. The ALJ drew an inference against Plaintiff from the lack of evidence that Plaintiff was unable to afford an unidentified medicine to relieve her totally disabling pain, and did not otherwise attempt to acquire that medicine.[3] (R. 17.) The ALJ's determination that Plaintiff was not credible regarding her claim of totally disabling pain is supported by substantial evidence and, therefore, not patently wrong.

(b) ALJ properly considered Plaintiff's obesity in relation to other impairments

Plaintiff argues the ALJ failed to explain obesity's effect on her ability to work. The Commissioner responds that the ALJ adequately addressed the effect of obesity at step two of the sequential analysis, and that Plaintiff failed to show that obesity was more limiting than the ALJ found.

Obesity must be considered by an ALJ when evaluating a claimant's impairments and RFC; failure to do so likely requires remand. SSR 02-1P, 2002 WL 34686281, at *4-6 (Sept. 12, 2002); Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011) ("The [ALJ]... did not consider [extreme obesity's] significance in relation to Rider's knee. It is one thing to have a bad knee; it is another thing to have a bad knee supporting a body mass index in excess of 40.").

Unlike the second consolidated case in Martinez, cited by Plaintiff, the ALJ did more than merely mention Plaintiff's obesity in passing. Rather, the ALJ considered the impact obesity had on Plaintiff's arthritic knees. The ALJ found at step two that Plaintiff's body mass index of 51.8 in 2010 likely affected her knee pain, and in the RFC assessment the ALJ wrote that Plaintiff's obesity, "undoubtedly exacerbated the knee pain." (R. 13, 17.) The ALJ restricted Plaintiff to a limited range of sedentary work because of the combination of her osteoarthritic knee pain and obesity. (R. 18.) Therefore, the ALJ adequately accounted for Plaintiff's obesity in the sequential evaluation, and drew a logical bridge from the evidence to her conclusion. Again, Plaintiff does not articulate how the ALJ should have considered obesity or how that consideration would change the outcome.

(c) ALJ properly considered Plaintiff's anxiety

Plaintiff argues that the ALJ should have included limitations related to her anxiety in the RFC, and that failure to do so requires remand. The Commissioner asserts that the ALJ adequately addressed Plaintiff's anxiety at step two of the sequential analysis, and that Plaintiff waived this issue by not attacking the ALJ's reasoning for finding the anxiety to be non-severe.

The ALJ did not ignore evidence regarding Plaintiff's anxiety. She recounted Plaintiff's emergency room visits, prescriptions of anti-anxiety medication, and Plaintiff's testimony about her anxiety. (R. 14-15.) The ALJ discussed that the evidence did not establish frequent treatment for anxiety symptoms, and Plaintiff does not contest this finding. Plaintiff only claims that she had "stress levels above which she could not exceed, " but the examples of her anxiety-triggers cited in the brief are not work-related, they are related to specific traumatic events.[4] Further, the ALJ relied on Plaintiff's testimony that her anxiety medication is effective and does not cause side effects, and Plaintiff does not object to this characterization of her testimony.

The ALJ performed the "special technique" for evaluating mental impairments, and found that Plaintiff suffers only mild impairments, at most, in the three functional areas, without any anxiety-caused episodes of decompensation. See 20 C.F.R. § 404.1520a. These findings attributed most of Plaintiff's functional impairments to her physical limitations and pain, and are uncontested. Therefore, the ALJ addressed Plaintiff's anxiety, and the decision not to include any additional limitations in the RFC to account for anxiety is supported by substantial evidence.

(3) ALJ carried the agency's burden at step five of sequential analysis

Plaintiff claims that the ALJ could not rely on VE's testimony when the hypothetical questions posed to the VE were less restrictive than the ALJ's RFC assessment. Plaintiff takes issue with two hypotheticals: (1) hypothetical one provided that the individual could stand or walk six hours in an eight hour work day, but the RFC provided that Plaintiff could only stand and/or walk for two hours in an eight hour workday; (2) hypothetical two provided that the individual needed to alternate between sitting and standing without specifying how often, but the RFC provided that the change could be "at will."

The Court finds that it was error for the ALJ to ask about an individual capable of "standing and or walking six hours in an eight hour work day, " but to restrict Plaintiff's RFC to standing or walking for only two hours in an eight hour workday. This error was harmless because the Court is confident that the result would be the same if this case was remanded to the agency. See McKinzey, 641 F.3d at 892. The VE's testimony shows that the three identified positions would all be performed primarily while sitting. (R. 68-69.) Therefore, a hypothetical restricting the individual to standing or walking for only two hours in an eight hour day would not have changed the VE's testimony.

Plaintiff also challenges the reliance on the VE's testimony at step five because the ALJ did not specify in the hypothetical how often the individual would need to change positions from sitting to standing or vice-versa.

This claim is a closer call. The ALJ's RFC is more restrictive than the hypothetical in that it permits Plaintiff to stand up and to sit back down at will. A sit-stand option that is more frequent than regular breaks "erodes" the full range of sedentary work. SSR 96-9P, 1996 WL 374185, at *7 (July 2, 1996). And when the full-range of sedentary work is eroded, a VE's testimony may be especially useful to the RFC determination (but not required). Id. However, the RFC meets the requirements of SSR 96-9P to specify the frequency of the need to alternate between sitting and standing. Id . See Arnett v. Astrue, 676 F.3d 586, 593-94 (7th Cir. 2012) ("RFC provides that she must be able to alternate between sitting and standing throughout the workday.' This does not specify a particular frequency, and does not require that Arnett be able to choose to sit or stand when she feels it is necessary."). See also Hannah-Walker v. Colvin, No. 2:12-CV-61-PRC, 2013 WL 5320664, at *13 (Sept. 23, 2013) (implying that "sit/stand option" included "at will"); Tjelle v. Astrue, No. 11 C 4907, 2012 WL 1339637, at *8 (Apr. 18, 2012) (holding that an at-will sit/stand option was reasonably implied in a hypothetical containing only the words "sit/stand option").

The VE testified that an individual could perform the identified jobs standing, for a short period of time, as long as they remained at their station. (R. 68.) The VE also testified that the jobs could not be performed by a person who needed to walk around. (R. 68-69.) The RFC only allows Plaintiff to alternate between sitting or standing at will, and not to alternate between sitting, standing, or walking, at will. The VE's testimony does not appear to conflict with the RFC provided by the ALJ. Therefore, the finding at step five is supported by substantial evidence, and the ALJ has carried the agency's burden.

F. Conclusion

For the forgoing reasons, Plaintiff's request for remand in DENIED, and the Commissioner's decision is AFFIRMED.

SO ORDERED.


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