MORGAN v. COLVIN, No. 1:2012cv01326 - Document 17 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 02/12/2015, the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and is bas ed on the proper legal standards. RECOMMENDED that the Commissioner's decision finding no disability by AFFIRMED, the Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be GRANTED, and that this action be DISMISSED with prejudice.(Taylor, Abby)
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MORGAN v. COLVIN Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA RICH.{RD D. MORG,\N, ) ) Plaintiff, ) ) ) ) ) ) ) ) ) ) v C,A.ROLYN I7. COLVIN, ,\cting Commissioner of Social S ecurity dministration, Defendant. Civil .,{.ction No. 1 :'l.2CY "1.326 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Richatd D. Motgan, brought this action pursuant to Section 205(g) of the Social Secudty Act (the ".,\ct"), as amended (42 U.S.C. $ a05(g), to obtain review of a final decision of the Commissionet of Social Security denying his claims for a Period of Disability ("POD") and Disability Insutance Benefits ("DIB") undet Title has befote II of the ct. The Cout it the cetified administrative tecord and ctoss-motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed an application for a POD and DIB on Apdl 13, 2007, alleging disability onset date of ugust 7, 2005. (It. 106-04.¡t The application was denied initially and again upon teconsideration. Qd. at 60-6'1., 64-68, 71,-74.) Plaintiff then requested hearing before an Adminisffative LawJudge 201.0 hearing were a ('ALJ"). Qd. a at75-76.) Present at the May"l.1., Plaintiff and his attorney. (Id. at 39.) The ALJ determined that Plaintiff I Ttanscrþt citations refet to the administrative tecotd which was filed with Defendant's Answer. (Docket Entry 7.) Dockets.Justia.com was not disabled undet the z{.ct. Qd. at 22-34.) Plaintiff requested that the ,{ppeals Council review the Á.LJ's decision. (Id. at 16.) On August 6, 2072, the Appeals Council denied Plaintiffs request fot teview, making the ALJ's determination the Commissionet's fìnal decision fot pu¡poses of review. (Id. ^t3-6.) II. FACTUAL BACKGROUND Plaintiff was 41. years old on the alleged disabil-ity onset date. (Id. at 28.) He has a limited education and is able to communicate in Engtish. (1/.) III. STANDARD FOR REVIEW The Commissioner held that Plaintiff was not tlndet a disability within the meaning of the Act. Under 42U.S.C. $ a05(g), the scope of judicial teview of the Commissionet's fìnal decision is specific and nattow. Snith u. Schweiker,795F.2d343,345 (4th Cfu. 1986). This Coutt's review of that decision is limited to determining whether thete is substantial evidence in the tecotd to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hanter Sulliuan,993F.2d31,,34 (4th Cir. 1992);Hay Substantial evidence adequate u. Sø//iuan,907 tr.2d1453,1456 (4th Cir. 1990). is "such televant evidence as a reasonable mind might to support a conclusion." Hunter,993 F.2d at 34 (citing U.S. 389, 401, (1,971)). It a. accept as Nchardson u. Perales, 402 "consists of more than a mere scintilla" "but may be somewhat less than a pteponderaîce." Id. (quottng l-^aws u. Celebreq7e, 368 tr.2d 640, 642 (4th Cir. 1966)). The Commissioner must make findings of fact and tesolve conflicts in the evidence. Hals, 901 tr.2d at 1.456 (citing King u. Califano, 599 F.2d does not conduct a de novo teview Schweiker, 795 F.2d ^t 597 , 599 (4th Cir. 1979)). The Court of the evidence not of the Commissioner's 345. In reviewing for 2 findings. substantial evidence, the Court does not undetake to re-weigh conflicting evidence, to make credibility determinations, or to substitute its judgment for that of the Commissionet. Craigu. Chater,l6tr.3d 585, 589 (4th Cit. 1,996) (citing Hryq907 F.2d at 1456). "'Where conflicting evidence allows reasonable minds to differ as to whethet a claimant is disabled, the responsibility for that decision falls on the [Commissionet] (or the [Commissionet's] designate, the ALJ)." CrntS76tr.3d t 589 (quoting lYal,ëer u. Bowen,834 tr.2d 635, 640 (7th Cir. 1937). The denial of benefits wilt be reversed only if rìo reasorìable mind determination. See could accept the recotd as adequate to suppott the Ncltardson u. Perales,402 U.S. 389,40"1. (1971). The issue before the Court, thetefote, is not whethet Plaintiff is disabled, but whether the Commissioner's fìnding that Plaintiff is not disabled is supported by substantial evidence and was teached based upon coffect application of the televant law. See a id.; Cofnan a. Bowen,829 tr.2d 51,4, 517 (4th Cir. '1987). IV. THE ALJ'S DISCUSSION The Social Security Regulations define "disability" for the purpose of obtaining disability benefits undet the -Act as the "inability to do any substantial gainful activity by reasorì of any medically detetminable physical or mental impairment2 which can be expected to result in death or which has lasted or c n be expected to last for a continuous pedod of not less than"l,2 months." 20 C.F.R. S 404.1505(a); see also 42 U.S.C. gg a23(d)(1)(a), 1382c(a)(3)(A). To meet this definition, a claimant must have a severe impairment which 2 A "physical or mental impairment" is rì impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonsuable by medically acceptable clinical andlaboratory diagnostic techniques. " 42 U .5.C. S S 423 (d) ( 3), 1, 382c(a)(3XD) J makes it impossible to do ptevious wotk or ^ny other substantial gainful activity3 that exists in the national economy. 20 C.F.R. S 404.1505(a); see also 42 U.S.C. SS 423(d)(2)(Ð, 1382c(a)(3)@). A. The Five-Step Sequential Analysis The Commissionet follows a fìve-step sequential analysis to ascertain whether the clatrnant is disabled, which is set Comm'r of Soe Sec. foth in 20 C.F.R. SS 404.1520,41,6.920. See Albrigltt u. Admin.,174tr.3d 473,475 n.2 (4th Ctt. 1999). The ALJ must determine in sequence: (1) Whethet the claimant is engaged in substanttal gainful activity claimant is wotking). Q) 'Whether If so, the claimant is (2.a., whether the not disabled and the inquiry ends. the claimant has a severe impairment. If not, then the clumant is not disabled and the inquiry ends. (3) Whether the impairment meets ot equals to medical criteria of 20 C.F.R., Part 404, Subpat P, Appendix 1, which sets forth a list of impairments that waffant a fìnding of disability without considering vocational criteita. If so, the claimant zi disabled and the (4) 'SØhether inquiry is halted. the impairmerìt prevents the claimant from performing past relevant work. If not, the claimant is not disabled and the inquþ is halted. ' "substantiat gainfirl acivily" is work that (1) involves performing significant or productive physical or mental dudes, and (2) is done (ot intended) for pay or ptofit. 20 C.F.R. SS 404.1510, 41,6.910. 4 (5) Whether the claimant is able to perfotm any other wotk considedng both her residual functional capacity ("RFC";+ and her vocational abilities. If so, the claimant is not disabled. 20 c.F'.R. SS 404.1520,4',t6.920. Flere, the AIJ completed all five steps of the sequence, and determined that no other jobs existed in significant numbers in the national economy which Plaintiff could perform. (Ir. 28.) The AfJ explained that "the additional limitations from all of the impafuments, including the substance use disotdets, so narrow the range of work the claimant c n petform that a fìnding of 'disabled' is appropnate." (Id.) To teach his conclusion, the ALJ determined, in steps one and two, that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of August 7, 2005 and had the severe impairments hernia, residual effects of chronic obstructive pulmonary disease, asthma, a venrtal of a ffatmatic injury to his knee in JuIy 2009, seizures secondary to alcoholism, deptessive disotder, and alcohol abuse. (Id. at 24-25.) ,\t step thtee, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1,. (Id.) B. Residual Functio nal Capacity Determination Priot to step fout, the AIJ determined Plaintifls RFC "based on all of impairments, including the substance abuse disotders. a . . ." (Id. at 26.) the Based on this "Residual functional capaci|y" is the most a claimant can do in a work setting despite the physical and mental limitations of her impairment and any related symptom (e.g., parn). See 20 C.F.R. SS 404.1545(a)(1),416.945(r)(t); see also Hines u Barnhart,453 tr.3d 559,562 (4th Cit. 2006). The RFC includes both a "physical exertional ot sttength limitation" that assesses the claimant's "ability to do sedentary, light, medium, heavy, or very heary work," as well as "nonexertional limitations (mental, sensory ot skin impafuments)." Ha// u. Harris,658 F.2d 260,265 (4th Cir. 1981). 5 evidence and the temaindet of the entire recotd, the LJ determined that "the claimant has the residual functional capacity to petform far less than the full tange of sedentary work" as defìned in 20 C.tr.R. S 404.1567(a). (Id.) The ALJ explained: flhe claimaint] is unable to, on a sustained basis, work eight hours per day and five days per week secondary to his frequent hospital visits for alcohol withdtawal symptoms. Futther, he should avoid concentrated exposure to tespiratory irdtants and hazards; should never climb ropes, ladders, and scaffolds; and is limited to performing simple, routine repetitive tasks. (Id.) C. Past Relevant Work The ALJ found in step fout that "þ]iven the claimant's tesidual functional capaciry fot less-than-sedentary wotk, he is unable to petforr-:' ^ny of his past relevant work" as a cook ot building maintenance repairer. (Id. at 28.) D. Adiustment to Other Work The claimant beats the initial burden of proving the existence of a disability. 42 U.S.C.S an@)þ);20 C.F'.R. SS 404.1512,41,6.202-03; Snith u. Califano,592tr.2d 1235,1236 (4th Cit. 1979). Once the claimant has established at step four that he cannot do any work he has done in the past because of his severe impairments, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbets in the national economy which the claimant could petform consistent with his RFC, age, education and past work expetience . Hunter u. Sølliuan, 993 F. 2d 31,, 35 (4th C:.r.. 1,992); If,/il¡on u. Calfano, F.2d 1050, 1053 (4th Cir. 1980). The ALJ made the following finding: If of work, considering the claimant's ãge, education, and work the claimant had the tesidual functional capacity to perform the full range sedentary 6 6'1.7 expetience, a fìnding of not disabled would be ditected by Medical-Vocational Rule 201.25. Howevet, the additional limitations from all of the impairments, including the substarlce use disotdets, so narrow the tange of work the claimant can petfotm that a finding of "disabled" is apptoptiate undet the framework of this rule. Qr.28.) E. Disability Where There is Evidence of Alcoholism Where the ALJ fìnds that the claimant is disabled, and there is medical evidence alcoholism, the .,{IJ must then determine whether the alcoholism was factor ^ of m^terial contibuting to the disability determination. 20 C.F.R. S 404.1535(a); see also 42 U.S.C. S 423(d)Q)ç) þroviding that "[a]n individual shall not be considered to be disabled . . . if alcoholism or drug addiction would þut fot this subparagrarph) be a contributìng factor matenal to the Commissionet's determination that the individual is disabled"). The "key factor" in determining whethet alcoholism is a lr:raterial contributing factor is whethet the claimant would still be found disabled if he stopped using alcohol. 20 C.tr.R. S 404.1s35þX1). "In making this determination, [the ALJ evaluates] which of [the claimant's] cuffent physical ar,d mental limitations, upon which the ALJ based determination, would remain determine[s] whether any or Id. S 404J.535þX2). not be disabling if If if all, his current [the claimant] stopped using drugs ot disability alcohol and then of fthe claimant's] remaining limitations would be disablirg." the ALJ determines that the claimant's remaining limitations would he stopped using alcohol, then the ,\LJ will fìnd that alcoholism is a contributing factor material to the determination of disability. Id. S 404.1,535þX2XÐ. If that detetmination is made, the claimant is not considered disabled undet the 7 Act. 42 U.S.C. S 423(d)Q)ç). The claimant bears the burden to prove that he would be disabled if stopped using alcohol. See McCra1 u. Coluin, x14 (D.S.C. July 31, 201,4) (citing Pan'a u. u. C/ No. 1:13-1,73-SVH, 201,4 he WL 3798835, at Astrue,481 F.3d 742,748 (9th Cir. 2007); Mittlesndt ApfeL204 F.3d 847,852 (8th Cir. 2000); Dooght u. Apfel,245 F.3d 1274, 1280 (1,1th Cir. 2011)). Because the disability finding hete included Plaintiffls alcohol use, the AIJ consideted whethet PlaintifPs temaining limitations would have caused mote than minimal impact on his ability to perfotm basic wotk activities during the pedod at issue if Plaintiff stopped using alcohol. The ALJ fìrst determined which limitations would remain independent Plaintiffs alcoholism: "the claimant's chronic obstructive pulmonary hetnia, and the tesidual effects of his knee injury would continue." of disease, asthma, venffal (t 29.) Flowever, "[the claimant] would cease having withdtawal symptoms, including seizures, if he were to permanently stop abusing alcohol. Futther, his deptessive disotder would no longet be severe a impaitment." (Id.) Next, the ,A,LJ applied the fìve-step sequential evaluation ptocess to determine whethet the temaining mental and physical impairments would be disabling. Qd. ^t29-33.) Under steps two and thtee of the process, PlaintifPs physical impairments remained "severe" independent of his alcoholism. Qd. at 29.) However, the ,{LJ "rate[d] the severity of mental impaitments at steps 2 and 3 of the sequential evaluation processfl" as "nonsevere" if Plaintiff stopped abusing alcohol.s (Id. at 29-30.) In steps three and four the AIJ 5 assessed "In detetmining the extent to which any mental limitations would remain if the substance use was stopped, the [ALJ] has considered the fout btoad functional areas set out in the disability regulations for evaluating mental disotders and in section 1,2.00C of the Listing of Impafuments." Qt 29 (citìng 8 both physical and mental limitations caused by the impairments that would remain independent of alcohol. (d. at30-32.) As to opinion evidence, the AIJ considered the State agency mental which included reports of two psychological assessments, consultants who teviewed the tecotd and "opined that the claimant's substance abuse disotdets were nonsevere impairments." Qd.) The ALJ specifically found that these assessmerìts were "generally consistent with the evidence of recotd." (Id.) The ALJ concluded that without Plaintiffs alcohol dependence, "the claimant would have the residual functional capacity to petform sedentary work . . . except he would have to continue to avoid concentrated exposure to hazatds and tespiratory irritants in the workplace and would remain unable to climb ropes, laddets, ot scaffold"." (Id. at30.) Based on this residual functional capacity, the ALJ found that "the clair,rrant would not be disabled if he stopped the substance tse." (Id. (citations omitted).) Accotdingly, the ALJ detetmined that PlaintifPs substance use disorder was a contributing factor rrrateital to the detetmination of disability and that Plaintiff was not disabled within the meaning of the Act at any time between August 7,2005 (alleged date of onset) and May 21,201,0 (date of the ALJ decision) (Id.) V. DISCUSSION Plaintiff challenges the ALJ's decision on two gtounds: (1) that substantial evidence does not support the -dLJ's finding that the claimant was not disabled based on the finding that alcohol was a contributing factot to his impairments; and Q) that the ALJ ered in not 20 C.F'.R. S 404, app.1).) 9 obtaining testimony from a vocational expert concerning the degree of etosion of the sedentary job base in light of the finding that the claimant can sit "frequently". @1.'s Br. at 2, Docket Enty 1,2.) A. The ALJ's Materiality Finding is Supported by Substantial Plaintiffs argument as Evidence to the ALJ's matenaltty finding is diffìcult to undetstand. In its entirety, the argument reads: It is undisputed that fPlaintif{ has had alcohol dependence. This does not automaically disqualify him fot Social Security benefits, however. To be disqualified, it must be shown that alcohol abuse is a conttibuting factor in his disability. fPlaintiffl testified that he began ddnking about 3 months before he and his wife separated. As stated, he drank heavily and often. ,{fter a lot of misery, howevet, fPlaintiffl stopped ddnking. His last drink was orì ^ppaLtent November 28, 2009; this was about the time he began a 90-day ^t Health in High Point, Notth Catohna. detoxification program at Bddge Way Motgan was released from Bddge 'V7ay on Match 1, 201.0. He has been steadily attending Alcoholics ,{nonymous 3 to 4 times pet week since then. s of the time of the headng on May 11,2010, it had been about 6 months since Motgan's last drink. 'l7ithout discussing the fotegoing evidence, the ALJ found that fPlaintiffl was unable to sustain a full-time job because of ftequent hospitalizations for alcohol withdrawal symptoms. The AIJ's finding is not suppotted by substantial evidence. Thete is evidence that fPlaintiffl had a drink after Novembet 28, 2009. He remembers that day because it was then, or soon aftet, that he began a 90-day detoxification program. People generally do not put themselves thtough such treatment unless they are committed to ending his substance abuse. Nor did people attend r{ meetings 3 to 4 times a week unless they are committed to ending theit abuse of alcohol. The AIJ's finding that fPlaintiffl would continue to have withdrawal symptoms is pure surmise. If fPlaintifPs] claim is to be denied, then fPlaintiffj respectfully utges that it be on some defensible gtound, some gtound othet than that stated by the ALJ. no (?1.'s Br. at 4-5, Docket Ent y 12) (rnternal citations to administtative record omitted) 10 merit. Plaintiff atgues that PlaintifPs argument is vague, conclusory, and without because he is now sobet, his alcohol abuse may FIowever, not be the basis of a dental of benefìts. if this Court were to fìnd that the ALJ had no basis for fìnding that Plaintiffs alcohol withdrawal symptoms, including seizutes, would prevent him ftom working fulltime, the ALJ's decision would still stand because he ptoperþ found what Plaintiffs RFC would be if he stopped drinking. (fr. 30.) Plaintiff makes no argument that the ALJ ered by finding him capable of performing a sedentary wotk with limitations. In othet words, the AfJ did not deny Plaintiffs claim because of his alcoholism. Rathet, the ,ALJ found that Plaintiff would not be disabled if he wete not drinking. (Id. ^t 30-33.) If Plaintiff is sobet, thetefote, the second, unchallenged RFC finding applies to him and he is not disabled. If Plaintiffs argument is that the ALJ's mateitahty fìnding is not supported by substantial evidence, this atgument is without medt. The AIJ found that PlaintifPs ftequent treatment for alcohol withdrawal symptoms would prevent him from engaging in full-time work. (Id. at 26.) The record is replete with teferences to Plaintiffs many hospitalizations for withdrawal symptoms and his frequent reports of seizutes which wete caused by alcohol withdrawal. (d. at 233,249,274,294-95,297-300,326-32, 481,, 601,-02, 607-'1.2, 61,5-1.6, 626-28, 632, 642.) The 428, 433, 438-39, 46"1., 472-13, AIJ found that Plaintiff could not perform his past relevant work and that there were no jobs that existed numbers in the national economy that he could that if Plaintiff petfotm. Qd. in significant at 28.) While the LJ found stopped his alcohol use he would continue to have severe impafuments,6 the o The LJ found that Plaintiff would still have the following severe impairments: chronic obstructive pulmonary disease, asthma, venttal hernia and the tesidual effects of his knee injury. (It. 2e.) 1.1 ALJ further found that without the alcohol use Plaintiff would have the tesidual functional capacrtt¡ to petfotm sedentary work with cetain limitations and that he could continue to perfotm a signifìcant number of jobs in the national economy. fter a careful review of the tecord in this case, the Cout concludes that the ALJ's decision is supported by substantial evidence. The tecord in this matter cleady establishes that Plaintiff suffered from severe and longstanding alcoholism. In fìnding that Plaintiffs substance abuse was material to his disability, the AtJ noted that the opinions of the t'u¡o non-examining State agency psychological consultants of tecotd substantiated this finding. (See id. ^t 279-292,358-371..) Both consultants found Plaintiffs alcohol abuse matenal to his disability. (Id. at 291;370.) Moreover, as descdbed above, the evidence demonstrates that Plaintiffs alcohol abuse resulted in several hospitalizations and requited ftequent treatment for withdrawal symptoms. Notably, thete is no evidence from tteating physicians duting Plaintifls pedod of sobdety.T Substantial evidence suppotts the ALJ's findings. Plaintiff is therefore not entitled to relief on this issue. B. The ALJ Propedy Relied Upon the Grids in Determining that There Would be a Significant Number of Jobs in the National Economy that Plaintiff Could Petform Plaintiff also contends that the ALJ impropedy used the Medical-Vocational Guidelines, 20 C.F.R . Part 404, Subpart P, ppendtx 2 (the "gdds") to direct a conclusion not disabled. This argument lacks merit. At step five of the sequennal of analysis, the government must prove in one of nvo ways that a claimant is able to petform othet jobs in 7 During the relevant time pedod, the medical tecotds in the tecotd consistently relate to a pedod of time when Plaintiff was drinking or struggling with alcohol abuse. There are no records from his tepotted 6-month period of sobdety. 1.2 the community. !7here a plaintiff suffers from purely exertional limitations,8 the 1'J-J rnay apply the gdds, to estabüsh the claimant's vocational ability. F See McClain u. Schweiker,7'1.5 .2d 866,870 n.1 (4th Cir. 1983). In other words, íf z plainttff can petfotm the full tange wotk within one of the exertional categoties defined by 20 C.F.R. S 404.1567, of the Foutth Circuit has held that the grids are sufficient to detetmine a plaintiffs ability to petfotm basic work activities. See Hammond u. Heckler,765 tr.2d 424, 425-26 (4th Cit. 1985). Howevet, the claimant suffets ftom significant nonexettional limitations,e the gdds ate determinative and the ,,LJ must consider testimony if not ftom a vocatfonal expett ('1/E"). McClain,71,5 F.2d at870 n.1.. The Fourth Cfucuit has emphasized that the "gtid tables ate not conclusive but may only serve as guidelines." lf,/alker Heckhr,743 tr.2d 21,8 (4th Cir. u. Bowen,889 F'.2d 1984). 47, 48 (4th Cir. 1989) (citing lf,/ilson u. The proper inquiry is whethet the nonexettional condition affects an individual's tesidual functional capacrty to petfotm work of which he is exettionally capable. Id. If so, the Commissioner must produce a VE to testiSr that the particulat claimant retains the ability to perform specific jobs which exist in the national economy. Grant u. Scbweiker, 699 F.2d 1,89, 1,92 (4th Cit. 1983) (citing Ta/or u. ll/einberger, 51.2 F.2d 664 (4th Cir. 1975)). The ALJ may rely exclusively on the gdds, howevet, whete the ALJ has ptopedy decided, as an issue of fact, that PlaintifPs non-exertional condition does not affect his capacity for work. Stratton u. U.S. Dept. of Health dv Haman I Seras., No. 88-1614, Exertional limitations "affect only [a claimant's] abitity to meet the strength demands of jobs (sitting, standing, walking,Iifting, carrying, pushing and pulling)." 20 C.F.R. $ a04.1569aþ). ' Non.".rtional limitations affect a claimant's ability to meet the other demands of a job and include mental limitations, pain limitations and physical limitations not included in the seven strength demands. 20 C.F'.R. $ 404.1569a(c). 13 1989 WL 100814, atx3 (4th Cir. July 24,1,989) (unpublished opinion); at 725 ('lWhether a given nonexertional condition affects capacity to engage 1,:1,0CY289, 201.1, a, see also Srzith,71,9 p^tlj;cvla;t claknant's tesidual in cetain job activities is a question of fact."); Phillrps WL 5039779, omitted) (concluding that "the A{ ptoperly decided, as of ^n issue u. Astrae, No- x3 (À4.D.N.C. Oct. 24, 201,1) (unpublished) may dy F.2d exclusively on the Grids whete the (citation ,\LJ has fact, that Plaintiffs non-exettional condition does not significandy affect" his ability to wotk). Plaintiffs RFC, as found by the N,J, cleatþ contains both exettional and nonexettional limitations beyond those of purely "sedentary" work: fn sum, the above residual functional capacity assessment is supported by the fact that the claimant has a ventral hernia which limits him to lifting a maximum of ten pounds. In addition, the claimant's knee injury, though not as limiting as the claimant has alleged, could teasonably limit him to only occasionally standing and walking during an eight-hour day and to nevet climbing ropes, laddets, and scaffolds. Furthermote, the claimant can sit ftequendy. Therefote, a limitation to sedentary work not requiring him to climb ropes, laddets, or scaffolds is justified by the evidence of tecord. Finally, the claimant's balance problems and respiratory ptoblems tendet concentrated exposure to workplace hazards and tespitatory irritants inadvisable. Çr.32-33.) Sedentary v/ork involves "lifting no more than L0 pounds at a tirr'e." 20 C.F.R. $ a0a.1567(a). ",\lthough a sedentary job is defined as one which involves sitting, a cettaLiî amount of walking and standing is often necessalT . . . . Jobs ate sedent^ry rf walking and standing ate tequired occasionally." Id. Plaintiff argues that the use of the descriptot "frequendy" testticts Plaintiff to sitting fewer than six hours in an eight-hout wotkday. (Pl.'s Br. at 2-3, Docket Etttty 12.) contends that the term "frequently" limits the range 14 of avatlal¡le sedentary Plaintff wotk and thetefore the testimony of a VE was tequired to determine the degtee to which Plaintiffs sedentary job base may be eroded. Qd. at "frequently" as 3.) Defendant it is commonly understood, not as a argues that the ALJ used the term limitation undet the SSA Rulings (Def.'s Br. at 7, Docket Entry 15.) The ALJ did not identiS' any speciûc problems related to Plaintiff sitting. The AIJ concluded that "the additional limitations that would remain lafter stopping substance abuse] have little or no effect on the occupational base of unskilled sedentary work." (Id. at 33.) Fot example, the ALJ explained that "[4.- of topes, ladders, or scaffolds or conceritrated exposure to resptra;tory irdtants andf jobs at the sedentary level tequire the climbing and workplace hazards." (Id.) Therefore the ALJ found that "the sedentary occupational basis is not significantly etoded by these additional limitations." Qd.) Ginng SSR 96-9p, 37 41.85 Çuly "1.996 WL 2, 1,996)). The context of the A{'s RFC assessment makes it clear that fìnding "the claimant c^n sit frequently" was not a limitation. The ALJ listed Plaintiffs limitations and circumscribed the occupational base of sedentary work according to those limitations; sitting was not listed as a limitation. Furthermore, the -AIJ specifìcally found that Plaintiffs abitity to petform sedentary wotk was not teduced by his nonexertional impairments. Substanttal evidence supports the ALJ's fìnding. Therefore the ALJ corectly applied the grids as a framework to find that there are a significant number of jobs in the national economy that Plaintiff could petfotm. See Rogers u. Bamhart, 204 F. S.rpp. 2d 885, 896 CW.D.N.C. 2002) (deeming appropdate the ALJ's use of the grids as a framewotk for his decision because the 15 claimant's abiJity to petform sedentary wotk was not reduced by het nonexettional limitations). VI. CONCLUSION Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial evidence in the tecotd as a whole and is based on the proper legal standards. IT IS THEREFORE RECOMMENDED that the Commissionet's decision finding no disability by AFFIRMED, the Plaintiffs Motion forJudgment on the Pleadings pocket E.ttry 11) be DENIED, that Defendant's Motion forJudgment on the Pleadings (Docket E.rtty 14) be GRÄNTED, and that this action be DISMISSED with prejudice. L Vebster 5rs¡¿s February 12,201.5 Durham, Noth Carohna 16 l\llgisrnte Jutlge
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