United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability (SSD) benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding error in the Commissioner's determination that Plaintiff must alternate between sitting and standing, the court ORDERS that the decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Plaintiff applied for SSD benefits, alleging disability beginning December 31, 2006. (R. 10, 145-51). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in assessing the requirements of her need to alternate sitting and standing and in assessing the credibility of her allegations of symptoms. The Commissioner argues that the ALJ properly evaluated Plaintiff's credibility and properly assessed a sit/stand limitaiton.
The court's review is guided by the Act. Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether she applied the correct legal standard. Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart , 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales , 402 U.S. 389, 401 (1971); Wall , 561 F.3d at 1052; Gossett v. Bowen , 862 F.2d 802, 804 (10th Cir. 1988).
The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue , 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart , 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett , 862 F.2d at 804-05; Ray v. Bowen , 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue , 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen , 844 F.2d 748, 750 (10th Cir. 1988)). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Wilson , 602 F.3d at 1139 (quoting Lax , 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams , 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process- determining at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson , 602 F.3d at 1139 (quoting Lax , 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart , 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter , 245 F.3d 1182, 1184 (10th Cir. 2001); Williams , 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id .; Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ failed to explain whether the need to alternate sitting and standing can be accommodated by scheduled breaks and a lunch period, and did not make a finding regarding the length of the time needed to stand, all as required by Social Security Ruling (SSR) 96-9p. Because the court finds remand is necessary and because review of credibility findings is deferential, the court will not provide an advisory opinion on the ALJ's credibility determination. Plaintiff may make arguments regarding that issue, if desired, to the Commissioner on remand.
II. Alternate Sitting and Standing
Plaintiff argues that the ALJ's alternate sit/stand limitation was arbitrary because there is no foundation for the limitation, because the ALJ did not provide a rationale for her findings or explain how she came to her conclusions, and because the frequency of sit/stand alternation is particularly vital regarding sedentary work in that most sedentary work does not allow a worker to alternate positions. The Commissioner argues that it is Plaintiff's burden to prove her limitations, and that although she suggests she is more limited than the ALJ determined, she points to no record evidence suggesting that she needs to alternate more frequently than determined by the ALJ. The Commissioner argues that although Plaintiff disagrees with the ALJ's findings, she has shown no error in the decision. The court agrees with Plaintiff.
The Commissioner misses the point of Plaintiff's argument. Plaintiff does not argue that she needs to alternate sitting and standing at a different frequency than found by the ALJ, she argues that the ALJ did not apply the correct legal standard to determine frequency of alternation, did not provide a rationale or cite to record evidence supporting her findings, and implied that Plaintiff must stand for two-hour stretches while doing sedentary work. It is true that a plaintiff has the burden to prove her limitations. In this case, however, the ALJ found that Plaintiff has proven the need to alternate sitting and standing. Having made that finding, the ALJ may not merely choose a limitation- "alternate between sitting and standing at least every 2 hours." (R. 13). She must base the limitation assessed on record evidence, and must express that limitation in a particular format. She has not done so in this case. That is error requiring remand.
As Plaintiff suggests, the Social Security Rulings provide the appropriate standard for assessing a need to alternate between sitting and standing. SSR 83-12 provides:
In some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work. (Persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform a defined range of work.) There are some jobs in the national economy-typically professional and managerial ones-in which a person can sit or stand with a degree of choice. If an individual had such a job and is still capable of performing it, or is capable of transferr[i]ng work skills to such jobs, he or she would not be found disabled. However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain ...