«UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Wendi Carlson, Civil No. 06-3289 (ADM/SRN) Plaintiff, v. REPORT AND RECOMMENDATION Michael J. ...»
C. Whether the ALJ Properly Determined the Extent to Which Plaintiff’s Impairments Eroded the Range of Work at the Light Exertional Level The ALJ decided Plaintiff’s claim at step five of the sequential analysis. After he determined that Plaintiff could not perform her past relevant work, he turned to the question of whether she could do other work existing in significant numbers in the regional or national economy. The answer to this question was complicated by two findings: (1) Plaintiff’s exertional limitations placed her between the sedentary and light exertional levels, and (2) she suffered from both exertional and nonexertional impairments.
Exertional impairments affect “the ability to perform physical labor.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). Nonexertional impairments include “handling, fingering, and feeling.” Social Security Ruling (SSR) 96-9p (Soc. Sec. Admin. July 2, 1996). If a claimant has only exertional impairments, the Commissioner may show that the claimant retained the requisite RFC by relying exclusively on the grids, “which are fact-based generalizations about the availability of jobs for people of varying ages, educational backgrounds, and previous work experience, with differing degrees of exertional impairment.” Beckley, 152 F.3d at 1059 (citation omitted). If a claimant has both exertional and nonexertional impairments, however, “the ALJ cannot rely exclusively on the grids to determine disability but must consider vocational expert testimony.” Id.; see also 20 C.F.R. § 404.1569a(d) CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 16 of 23 (instructing that when a person has a combination of exertional and nonexertional limitations, the grids should not be directly applied but merely considered as a framework to guide the ALJ’s decision); SSR 83-14 (Soc. Sec. Admin. Feb. 26, 1979) (explaining “how to evaluate the vocational effects of nonexertional impairments within the context of the exertionally based table rules where claimants or beneficiaries also have severe exertional impairments that limit them to sedentary, light, or medium work.”). In this case, the ALJ found that Plaintiff had both exertional and nonexertional impairments.
In addition to determining whether a claimant’s impairments are exertional, nonexertional, or both, an ALJ must also determine at step five whether a claimant has the RFC to perform the full range of the appropriate exertional level of work: very heavy, heavy, medium, light, or sedentary. Frankl v.
Shalala, 47 F.3d 935, 937 (8th Cir. 1995). When an individual’s RFC does not correspond with the definition of a certain range, “the occupational base is affected and may or may not represent a significant number of jobs in terms of the rules directing a conclusion as to disability.... Where the extent of erosion of the occupational base is not clear, the adjudicator will need to consult a vocational resource.” SSR 83-12 (Soc. Sec. Admin. Feb. 29, 1979). The ALJ determined in this case that Plaintiff’s exertional limitations placed her between the sedentary and light levels. In particular, Plaintiff could not lift more than ten pounds, which was consistent with the sedentary level, but she could stand and walk, which was consistent with the light level.
Thus, Plaintiff was not able to be categorized under the grids for two reasons: because she had both exertional and nonexertional impairments, and because she was between the sedentary and light exertional ranges. Both reasons required the ALJ to obtain the testimony of a VE, which the ALJ did.
The VE considered Plaintiff’s exertional and nonexertional limitations and found three occupations at CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 17 of 23 the light exertional level in which Plaintiff could work: gate guard, merchandise or freight checker, and room service clerk. The VE testified that significant numbers of these jobs existed in the regional economy. The ALJ accepted the VE’s conclusions and determined that Plaintiff was not disabled.
This process comports with the relevant regulations, case law, and social security rulings.
Plaintiff nevertheless contends that because she could not perform a full range of light work, given the restriction on lifting, that the ALJ was required to find her disabled.3 This is not the standard.
The ALJ included the lifting restriction in his hypothetical to the VE, to which the VE responded that significant numbers of jobs still existed. The ALJ acknowledged in his decision that Plaintiff could not perform a full range of light work; rather, she could perform a range of light work, subject to lifting no more than ten pounds occasionally, that avoids use of vibrating tools with the hands, with no more than about twenty minutes of typing per eight hour day, with no more than occasional repetitive motions of the wrist that requires flexion, extension, pronation, or supination.
(Tr. at 21.) Thus, the ALJ limited the range of light work to reflect Plaintiff’s restrictions, which is entirely appropriate when “the evidence shows that the plaintiff can perform some, though not all, or the exertional requirements of a particular range.” Santiago v. Barnhart, 367 F. Supp. 2d 728, 733 (E.D.
Pa. 2005) (citations omitted); see also Talley v. Barnhart, 113 F. App’x 185, 186-87 (8th Cir. 2004) (finding that a claimant is not necessarily disabled merely because he can perform only a limited range of Plaintiff cites Ramey v. Shalala, 26 F.3d 58 (8th Cir. 1994), in support of her position.
However, Ramey is inapplicable to this case for several reasons. First, the issue in Ramey was whether the claimant could perform a full range of sedentary work. Id. at 61. Plaintiff’s argument here, on the other hand, is that she could not perform a full range of light work. In addition, Ramey was decided under SSR 91-3p, which relates to widow’s benefits and thus is not applicable here. Id. Finally, the claimant in Ramey was required to alternate sitting and standing, which was the specific impairment underlying the disability finding. Id. Plaintiff does not have this restriction.
CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 18 of 23 light work). Plaintiff’s inability to perform a full range of light work did not require the ALJ to find her disabled.
Plaintiff also contends that the ALJ’s limitation of the range of light work contravened SSR 83This ruling explains how to use the grids when an individual with only exertional impairments has an RFC that is either less or greater than the RFC of a specifically-defined exertional range of work. See SSR 83-12. The ruling instructs that in such a case, the occupational base may be affected by losing or
gaining a significant number of jobs. Id. The term “occupational base” means:
The number of occupations as represented by RFC, that an individual is capable of performing. These “base” occupations are unskilled in terms of complexity. The regulations take notice of approximately 2,500 medium, light, and sedentary occupations; 1,600 light and sedentary occupations; and 200 sedentary occupations.
Each occupation represents numerous jobs in the national economy. (In individual situations, specific skilled or semi-skilled occupations may be added to the base.) SSR 83-10 (Soc. Sec. Admin. Feb. 26, 1979) (parentheses in original). When the extent of erosion to an occupational base is not clear, the ALJ should consult a vocational resource. SSR 83-12.
SSR 83-12 applies to claimants with only exertional impairments. The stated purpose of the ruling is “[t]o clarify policies applicable in using the numbered tables... for adjudicating claims in which an individual has only exertional limitations....” SSR 83-12. Here, Plaintiff has both exertional and nonexertional impairments, and SSR 83-12 therefore is not directly applicable. To the extent the ruling would provide guidance to the ALJ, SSR 83-12 instructs that an ALJ should consult a vocational resource in order to determine the extent of any erosion to an occupational base. This is precisely what the ALJ did in this case. Indeed, SSR 83-12 does not require the ALJ to determine whether a claimant’s occupational base is more closely related to light or sedentary work capacity. Similarly, the Ruling cannot be CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 19 of 23 interpreted to suggest that a finding of inability to do the full range of light work requires a conclusion that a person is capable only of sedentary work. Instead, it states that a significantly reduced exertional capacity “could indicate little more than the occupational base for the lower rule and could justify a finding of ‘Disabled.’” Gravel v. Barnhart, 360 F. Supp. 2d 442, 447 (N.D.N.Y. 2005) (quoting SSR 83-12) (emphases in Gravel). “Thus, a fair reading of SSR 83-12 indicates that an ALJ can properly find a claimant capable of performing a limited range of work in a given exertional category and then elicit VE testimony to determine whether that claimant is disabled.” Id.
Here, the VE testified, in essence, that the light-work occupational base for Plaintiff was eroded to three occupations: gate guard, merchandise or freight checker, and room service clerk. A finding that a plaintiff can perform only a limited number of light work occupations is fully consistent with SSR 83-12. See Santiago, 367 F. Supp. 2d at 733. Erosion of the occupational base does not automatically mean that a significant number of jobs are no longer available. See SSR 96-9p (The “mere inability to perform substantially all sedentary unskilled occupations does not equate with a finding of disability. There may be... jobs that exist in significant numbers, that an individual may still be able to perform even with a sedentary occupational base that has been eroded.”). Although Plaintiff “had an RFC for less than the full range of light work,  this did not mean she was limited to sedentary work.” See Gravel, 360 F. Supp. 2d at 449. Thus, even though Plaintiff’s occupational base was eroded, it nonetheless represented a significant number of jobs.
In conclusion, the ALJ properly obtained the assistance of a VE, as the grids did not direct a conclusion in this case. The ALJ considered Plaintiff’s RFC, age, education, and work experience, and specifically incorporated these factors into the hypothetical question posed to the VE. Relying on the CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 20 of 23 VE’s testimony, the ALJ properly determined that the range of work available to Plaintiff was not so restricted so as to mandate a finding that she was disabled.
D. Whether the ALJ Improperly Disregarded the VE’s Testimony Plaintiff argues that because she could not perform a full range of light work, she must fall within the unskilled sedentary classification of the grids, which directs a finding of disabled. Plaintiff bases her argument on certain hearing testimony from the VE in response to a question from Plaintiff’s counsel.
Plaintiff’s attorney asked the VE to compare the range of work for the jobs of gate guard, merchandise or freight checker, and room service clerk, with the full range of work available to a person who could do unskilled sedentary employment. The VE testified that the latter range of work was greater. The ALJ characterized the testimony as irrelevant. Plaintiff now alleges that the ALJ erred in not accepting the testimony as proof that she is disabled.
Plaintiff’s argument has been explicitly rejected in similar cases. In Haynes v. Barnhart, 416 F.3d 621 (7th Cir. 2005), the claimant had both exertional and nonexertional impairments, and he also fell between the light and sedentary exertion levels. Id. at 628. The claimant argued on appeal that because he could not perform a full range of light work, he necessarily fell within the sedentary classification of the grids, under which the ALJ should have found him disabled. Id. at 627. The court disagreed, explicitly rejecting the claimant’s “all-or-nothing approach to the grids and the different exertional levels.” Id. The court ultimately upheld the ALJ’s decision to depart from the framework of the grids and rely instead on testimony from a VE. Id. at 629. In Casey v. Barnhart, the claimant’s RFC fell between light and sedentary work. 76 F. App’x 908, 911 (10th Cir. 2003). The ALJ therefore consulted a VE, who determined that “the light-work occupational base would be eroded by CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 21 of 23 98%, but the full range of unskilled work would be available.” Id. Even though the VE testified that only two light-work jobs existed in significant numbers, this was not such an erosion of the occupational base so as to mandate a finding of disabled. Id. (noting that the language of SSR 83-12 is permissive, not mandatory, in such a case); see also SSR 83-12 (explaining that an eroded occupational base “could indicate little more than the occupational base for the lower rule and could justify a finding of ‘Disabled.’”) (emphasis added).
In the present case, the ALJ consulted a VE to assess Plaintiff’s occupational base. The VE testified that Plaintiff could perform substantial, gainful work in three light-work occupations. The ALJ was entitled to rely on this testimony to find that Plaintiff was not disabled. Correspondingly, the ALJ was entitled to reject the VE’s testimony that the range of unskilled sedentary work was greater than the range of work for the jobs of gate guard, checker, and room service clerk.
Plaintiff submits that the VE’s testimony did not establish work existing in significant numbers within her RFC because the VE also testified that there was a greater range of work available to a person capable of doing unskilled sedentary employment. The Court has already rejected this argument. The VE testified that Plaintiff could work in three light-work occupations, for which there are more than 9,000 jobs. The existence of more jobs at the sedentary level does not affect the finding that a significant number of jobs existed for Plaintiff.
Plaintiff also asserts that because she is older than fifty, the range of work available to her is less than the range of work available to a person who could work the full range of unskilled sedentary jobs.