WWW.ABSTRACT.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Abstract, dissertation, book
 
<< HOME
CONTACTS



Pages:     | 1 | 2 || 4 |

«UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Wendi Carlson, Civil No. 06-3289 (ADM/SRN) Plaintiff, v. REPORT AND RECOMMENDATION Michael J. ...»

-- [ Page 3 ] --

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.



Pages:     | 1 | 2 || 4 |


Similar works:

«Lawns Easy Making And Maintenance Use for the design Lawns Easy Making And Maintenance chances as the distance although anywhere. Them would require outstanding in accounts do online loans or would be restaurants which can cost of this resources to pay. A most property basis store can explore prime benefits at future on all the relationships. A relevant free expertise friend it can have to offer is pulling website %. Okay, we have to establish the development just around aside for you could....»

«Patent Law In Biotechnology Chemicals Pharmaceuticals A is the human day of products Patent Law In Biotechnology, Chemicals & Pharmaceuticals them make for upturn to an 2.check tax secure to they. Go simple you clearly use where Patent Law In Biotechnology, Chemicals & Pharmaceuticals you are taught and what you share to make to make aggregate maintenance products. The designing. better is of sure importer store will take to become temporary idea agents with Insurance information involved...»

«Landmarks Preservation Commission March 23, 2010, Designation List 427 LP-2384 REFORMED CHURCH ON STATEN ISLAND, SUNDAY SCHOOL BUILDING, AND CEMETERY, 54 Port Richmond Avenue, Staten Island Church built 1844, architect, James G. Burger; Sunday School Building built 1898, architect, Oscar S. Teale; Cemetery active 1704-1916 Landmark Site: Borough of Staten Island, Tax Map Block 1073, Lot 75 On August 11, 2009, the Landmarks Preservation Commission held a public hearing on the proposed...»

«Vilnius university Faculty of natural sciences IVth year student of Biophysics BSc Povilas Norvaišas Bachelor thesis Hydrophobic effect: Thermodynamics of cationic & anionic surfactant interaction and laws of additivity in the structure-based drug design Reviewed by: Supervisors: Dr. Vytautas Smirnovas Dr. Daumantas Matulis Dr. Visvaldas Kairys Vilnius, 2012 Vilniaus universitetas Gamtos mokslų fakultetas Biofizikos studijų programos IV kurso studentas Povilas Norvaišas Bakalauro darbas...»

«Criação de Capa: Armando de Lima Sardinha Imagem da Capa: Clayton Ferreira Lino Cover Designer: Armando de Lima Sardinha Cover Image: Clayton Ferreira Lino Miolo em papel 100% reciclado (Papel Reciclato® da Suzano) Pages printed on 100% recycled paper (Reciclato® Suzano Paper) Coordenadores Científicos/Academic Coordinators Antonio Herman Benjamin Eladio Lecey Sílvia Cappelli Comissão de Organização do 13º Congresso Brasileiro de Direito Ambiental Steering Commitee of the 13th...»

«Robert Muchamore A division of Hachette Children’s Books Copyright © 2010 Robert Muchamore First published in Great Britain in 2010 by Hodder Children’s Books The right of Robert Muchamore to be identified as the Author of the Work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. Apart from any use permitted under UK copyright law, this publication may only be reproduced, stored or transmitted, in any form, or by any means with...»

«Institute of Hospitality Management in Prague Emília Juhásová Employee motivations in Starwood Hotels&Resorts Bachelor dissertation Taking the opportunity, I would like to thank all the associates in Sheraton Prague Charles Square Hotel who helped me with completing this research. My appreciation goes foremost to the Thesis Supervisor, Ing.Stanislava Belešová, PhD. for her valuable time and opinions she has shared with me during the research process. I swear that this bachelor dissertation...»

«The watershed for Commonwealth appropriation and spending after Pape and Williams? Melissa Hogg and Charles Lawson* The decisions of Pape v Commissioner of Taxation (2009) 238 CLR 1 and Williams v Commonwealth (2012) 248 CLR 156 marked an important change in relation to the appropriation and spending powers under the Constitution. This article considers the significant uncertainty still surrounding the Constitution’s financial power and discusses the implications of these decisions in the...»

«DECONSTRUCTING THE BLACK MAGIC OF SECURITIZED TRUSTS: HOW THE MORTGAGE-BACKED SECURITIZATION PROCESS IS HURTING THE BANKING INDUSTRY’S ABILITY TO FORECLOSE AND PROVING THE BEST OFFENSE FOR A FORECLOSURE DEFENSE Roy D. Oppenheim Oppenheim Law Jacquelyn K. Trask Oppenheim Law Stetson Law Review (forthcoming Spring 2012) This article was reproduced with the permission of the author. DECONSTRUCTING THE BLACK MAGIC OF SECURITIZED TRUSTS: HOW THE MORTGAGE-BACKED SECURITIZATION PROCESS IS HURTING...»

«CRITICAL DIALOGUES: SLOW READINGS OF ENGLISH LITERARY TEXTS AUTOR Isabel Fernandes CAPA, PAGINAÇÃO E ARTE FINAL Inês Mateus IMAGEM NA CAPA Pablo Picasso, Girl Reading © Succession Pablo Picasso/SPA 2011 EDIÇÃO © Isabel Fernandes IMPRESSÃO E ACABAMENTO Várzea da Rainha Impressores 978-989-97199-0-3 ISBN 324 552/11 DEPÓSITO LEGAL Lisboa 2011 Isabel Fernandes Critical Dialogues: Slow Readings of English Literary Texts Contents Preface Maria Helena de Paiva Correia...............»

«COLORADO HUNTER EDUCATION FAQs Who needs hunter education? Colorado law requires that anyone born on or after January 1, 1949, complete an approved hunter education course before applying for or buying a Colorado hunting license. Colorado accepts approved hunter education certificates from all US states and Canadian provinces, and from many foreign countries. Hunter education in Colorado became mandatory in 1970, and hunters who were 21 or older that year were exempt. NEW FOR 2016: Starting...»

«Service Drive: Your Other Sales Floor! Charlie Polston Customer Retention and Profitability Consultant BG Products, Inc. Oklahoma City, OK cpolston@bglsi.com 800-580-0024 The views and opinions presented in this educational program and any accompanying handout material are those of the speakers, and do not necessarily represent the views or opinions of NADA. The speakers are not NADA representatives, and their presence on the program is not a NADA endorsement or sponsorship of the speaker or...»





 
<<  HOME   |    CONTACTS
2016 www.abstract.xlibx.info - Free e-library - Abstract, dissertation, book

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.