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US Ditrict Court : SOCIAL SECURITY - substantial evidence supported Administrative Law Judge

Wendi Carlson,
Civil No. 06-3289 ADM/SRN
Michael J. Astrue,
Commissioner of Social Security,
Lionel H. Peabody, Esq., Peabody Law Office, Duluth, MN, on behalf of Plaintiff.
Lonnie F. Bryan, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of
This matter is before the undersigned United States District Court Judge to consider
Plaintiffs Objections (Objections) [Docket No. 19] to Magistrate Judge Susan R. Nelsons
Report and Recommendation (R&R) [Docket No. 17], which recommends that Plaintiffs
Motion for Summary Judgment [Docket No. 8] be denied, and that Defendants Motion for
Summary Judgment [Docket No. 12] be granted. In her Complaint, Plaintiff Wendi Carlson
(Plaintiff) appeals Commissioner of Social Security Michael J. Astrues (Defendant) denial
of her application for disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. 416(i) and 423. For the reasons set forth herein, this Court adopts the R&R. The
procedural and factual background are incorporated from the R&R.
A. Standard of Review
A district court must make an independent, de novo review of the portions of the R&R to
which an objection is made and may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C. 636(b)(1)(C); see also D.
Minn. LR 72.2(b).
The Commissioners decision must be affirmed by the reviewing court if it is supported
by substantial evidence in the record as a whole. 42 U.S.C. 405(g); Holley v. Massanari, 253
F.3d 1088, 1091 (8th Cir. 2001). Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioners
conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). The reviewing court must
consider both evidence that supports the Commissioners decision and evidence that detracts
from it. Holley, 253 F.3d at 1091. This reviewing court must uphold the Commissioners
decision if it is supported by substantial evidence, even if the reviewing court would have
reached a different conclusion. Id.
B. Plaintiffs Objections
1. Erosion of Plaintiffs Occupational Base
Plaintiff contends that the Administrative Law Judge (ALJ) did not properly consider
the erosion of Plaintiffs occupational base in determining whether Plaintiff was disabled.
Objections at 8-9. Plaintiff first asserts that contrary to the requirement of Social Security
Regulations (SSR) 83-12 and 83-14, the ALJ made no attempt to determine the extent of
erosion of the occupational base. Objections at 6, 8. Second, Plaintiff asserts that if this court
concludes that the ALJ properly determined the erosion to Plaintiffs occupational base, this
court should also conclude that the ALJ failed to comply with SSRs 83-12 and 83-14 by failing
to fully consider Plaintiffs age in its determination. Objections at 8-9. Plaintiff concludes by
arguing that without having made a determination regarding the erosion of Plaintiffs
occupational base, the ALJ could not compare that base with the range of work outlined in the
Medical Vocational Guidelines (the Grids) contained in 20 C.F.R. pt. 404, subpt. P, app. 2
(2003). Plaintiff asserts that had the ALJ compared the occupational base with the range in the
Grid, the ALJ would have had to conclude that Plaintiff was disabled because the work available
in Plaintiffs occupational base is less than that under which a finding of disability is required
under the Grids. Objections at 8-9.
Judge Nelson rejected Plaintiffs contention that SSR 83-12 is applicable, finding that
SSR 83-12 applies to claimants with only exertional limitations. Plaintiff has both exertional
and nonexertional limitations. R&R at 18. SSR 83-12 specifically explains that the purpose of
the rule is to clarify policies for adjudicating claims in which an individual has only exertional
limitations. SSR 83-12, 1983 WL 31253, at *1 (Soc. Sec. Admin. Nov. 30, 1982). Judge
Nelson properly noted that SSR 83-12 does not apply because this is a case involving both
exertional and nonexertional limitations.
SSR 83-14 is the provision that applies to cases involving both exertional and
nonexertional limitations. It instructs consultation of a Vocational Expert (VE) when necessary
to determine the plaintiffs occupational base. SSR 83-14, 1983 WL 31254, at *1 (Soc. Sec.
Admin. Nov. 30, 1982). Having determined that Plaintiff had both exertional and nonexertional
limitations, R. at 17, the ALJ appropriately consulted a VE to determine the extent to which
Plaintiffs nonexertional limitations eroded her occupational base. R. at 20. Accordingly,
Plaintiffs argument that the ALJ did not determine the erosion to her occupational base is
simply without factual support. Judge Nelson properly concluded that the ALJ complied with
the requirements of SSR 83-14.
Judge Nelson also rejected Plaintiffs argument that the ALJ failed to properly consider
her age. Judge Nelson concluded, and this court agrees, that the ALJ properly considered the
Plaintiffs age as shown by the ALJs inclusion of Plaintiffs age in the hypothetical posed to the
VE and the reference in the ALJs decision to Plaintiff as an individual closely approaching
advanced age, as defined by 20 C.F.R. 404.1563. R&R at 13.
Plaintiffs final argument contends that where a plaintiffs occupational base is less than
that for which the Grids dictate a finding of disbility, the ALJ must find the plaintiff disabled.
Plaintiff has not set forth any legal authority that supports this proposition. Therefore, given the
ALJs consideration of Plaintiffs age and the use of a VE to determine the erosion of Plaintiffs
occupational base, Judge Nelson properly determined there is substantial evidence to support the
ALJs conclusion.
2. Opinion of Treating Physician
Plaintiff next argues the ALJ did not give controlling weight to the treating physicians
opinion. Objections at 9. Specifically, Plaintiff claims the ALJ failed to accept Dr. Eckmans
2001 recommendation that Plaintiff work less than full time and rest fifteen minutes for each 45
minutes of work. Id. Instead, the ALJ determined that Plaintiff could work full time without the
limitations expressed in Dr. Eckmans 2001 recommendation. R. at 18. The ALJ based this
decision on Dr. Eckmans subsequent changes to Plaintiffs work restrictions. R. at 18-19. In
2002, while Plaintiff was working twenty hours per work repairing damaged mail for the United
States Postal Service, Dr. Eckman expressed the opinion that Plaintiff could increase her hours
with work that required less wrist and hand stress. R. at 280. In 2004, Dr. Eckman again
reviewed Plaintiffs work limitations and concluded that Plaintiff could do occasional typing,
regular telephone answering, message taking, and other light clerical duties. R. at 250.
Judge Nelson determined that the ALJ gave appropriate weight to Dr. Eckmans opinion.
R&R at 13-15. While acknowledging that Dr. Eckmans 2001 work restrictions were more
limiting, Judge Nelson concluded that there was substantial evidence for the ALJs
determination that Plaintiff could be expected to work full time if she worked in a position
requiring less hand and wrist stress than was required in her position with the USPS. Id.
Because the ALJ removed occupations requiring repetitive hand usage or heavy lifting from
consideration, Judge Nelson concluded that the ALJ did not err in rejecting the rest
recommendation given in Dr. Eckmans 2001 opinion. Id. at 15.
A treating physicians opinion is generally entitled to substantial weight. Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir. 1998). Judge Nelson properly concluded that there was
substantial evidence in the record to support the ALJs decision to give greater weight to Dr.
Eckmans 2004 opinion than the opinion he expressed in 2001. Dr. Eckmans letter of February
27, 2004, is the medical evidence temporally closest to the onset of Plaintiffs disability, March
4, 2004. Further, there is no support in the record that the rest requirement expressed in 2001
with regard to Plaintiffs USPS job, which required significant hand and wrist stress, also applied
to Dr. Eckmans 2004 opinion. Instead, the 2001 rest requirement is reasonably read to be
paired only with work requiring heavy and repetitive hand activity. Therefore, the ALJ correctly
afforded substantial weight to Dr. Eckmans 2004 opinion and Judge Nelson correctly concluded
that the ALJs conclusion regarding Plaintiffs limitations was supported by substantial medical
evidence in the record.
3. Existence of a Significant Number of Jobs
Plaintiff also contends that the VEs testimony provided an inadequate foundation for the
ALJs conclusion that Plaintiff was capable of performing a significant number of jobs in the
regional economy. Objections at 9. First, Plaintiff avers that the VEs testimony was ambiguous
and therefore cannot constitute substantial evidence. Id. at 9-10. Second, Plaintiff contends that
the ALJs determination of the number of jobs available improperly relied on the statewide totals
without accounting for the possibility that Plaintiffs limitations did not allow her to perform all
the statewide jobs in a given occupation. Id. at 10.
After concluding that Plaintiff was no longer capable of performing her past work, the
VE identified three jobs Plaintiff could of perform: gate guard, checker of merchandise or
freight, and room service clerk. R. at 419-427. The VE detailed the number of each of these
jobs available in the regional economy, a description of each job, and an explanation for why he
believed Plaintiff was capable of performing the required duties. R. at 419-427. The VE
concluded by stating, Those are three examples of light jobs that would fit, to which the ALJ
responded by requesting further examples. R. at 422. The VE provided two more examples and
finished by stating that those were the kinds of jobs he felt Plaintiff was capable of performing
but that additional inspection was necessary. R. at 424.
In support of her first argument, Plaintiff asserts that the VE qualified his testimony
regarding the types of jobs Plaintiff was capable of performing such that the VEs testimony was
inconclusive with regard to all of the jobs listed. Objections at 9-10. However, Judge Nelson
found that the VE did not qualify the recommended jobs in any way, and that the VEs
testimony properly accounted for Plaintiffs age, work experience, education, and limitations.
R&R at 22.
This Court agrees with Judge Nelson that the ALJs significant jobs conclusion was
supported by substantial evidence in the record. Testimony from a VE may constitute
substantial evidence only when it is given in response to a properly phrased hypothetical that
encompasses all the claimants relevant impairments. Pickney v. Chater, 96 F.3d 294, 296 (8th
Cir. 1996). In the instant case, the ALJ posed to the VE an inclusive hypothetical to determine
whether Plaintiff was capable of performing jobs existing in the regional economy. R. at 416-
417. In the hypothetical, the ALJ related Plaintiffs age, work experience, education, and her
exertional and nonexertional limitations. R. at 416-417. The VE responded by suggesting three
jobs within the light work category that Plaintiff would be capable of performing. R. at 417-422.
Any reservations the VE had regarding Plaintiffs capabilities only applied to the two positions
subsequently discussed, which the ALJ did not consider in his determination. R. at 422. The
VEs testimony, given in response to a properly phrased hypothetical, was unambiguous and
constituted substantial evidence upon which the ALJ properly relied.
With regard to Plaintiffs second argument, she cites Gravel v. Barnhart, 360 F. Supp. 2d
442 (N.D.N.Y. 2005) to support the proposition that the VEs testimony does not constitute the
substantial evidence necessary to support the ALJs conclusion. Objections at 10. Plaintiff
asserts that the VEs testimony is flawed by the VEs failure to reduce his number to account for
Plaintiffs limitations when he provided the number of jobs listed by the U.S. Department of
1 In Hall, the Eighth Circuit upheld an ALJs significant numbers determination that very
closely resembles the determination made in this case. 109 F.3d at 1258-60. In Hall, a VE
testified to the number of jobs available to the plaintiff using the statewide totals provided by the
Department of Labor. Id. at 1259. In addition to the statewide totals, the VE testified that the
plaintiff would be unable to perform every job in the categories of employment available to the
plaintiff. Id. The ALJ subsequently determined that the plaintiff was capable of performing a
significant number of jobs in the regional economy but did not expressly indicate how the
statewide totals were reduced by the plaintiffs limitations. Id. In upholding the ALJs
determination, the Eighth Circuit stated: There is no evidence to give us pause in concluding
that the ALJ used common sense in applying the significant numbers requirement to Hall's
particular factual situation. Id. at 1260.
Labor. Id. Gravel addresses the use of VE testimony where the VEs testimony was not
responsive to the ALJs hypothetical and is not instructive in this case. 360 F. Supp. 2d at 451.
In reviewing whether the ALJs conclusion is supported by substantial evidence in the
record, the ALJ is allowed some discretion in applying the significant numbers requirement to a
particular claimants factual situation. Hall v. Chater, 109 F.3d 1255, 1259 (8th Cir. 1997).1 In
making this determination, the ALJ should consider the level of the claimants disability, the
reliability of both the claimants and the VEs testimony, and the types and availability of work
that the claimant could perform. Id.
While it is correct that the VE relied on information provided by the Department of Labor
to determine the number of jobs available in each category, the VE also discussed how Plaintiffs
limitations would restrict her from working at certain jobs within the categories he listed. The
evidence in the record demonstrates that the ALJ was aware that the VE quoted statewide totals
when he provided the ALJ with the numbers of jobs available to Plaintiff and he was also aware
that there would be jobs, included in the statewide total, that Plaintiff would be unable to
perform. With that knowledge, the ALJ ultimately determined that Plaintiff was capable of
performing a significant number of jobs available in the regional economy. This Court
concludes that the ALJs determination that significant numbers of jobs existed that Plaintiff was
capable of performing is supported by substantial evidence in the record.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
1. Plaintiffs Objections [Docket No. 19] are OVERRULED;
2. Magistrate Judge Nelsons Report and Recommendation [Docket No. 17] is
3. Plaintiffs Motion for Summary Judgment [Docket No.8] is DENIED; and
4. Defendants Motion for Summary Judgment [Docket No. 12] is GRANTED.
s/Ann D. Montgomery
Dated: September 13, 2007.


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