New v. Social Security Administration, No. 3:2017cv00229 - Document 15 (E.D. Ark. 2018)
Court Description: MEMORANDUM OPINION AND ORDER: The Court finds that there is substantial evidence on the record as a whole to support the ALJ's findings. New's complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 4/23/2018. (ljb)
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New v. Social Security Administration Doc. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION CHARLOTTE NEW PLAINTIFF v. NO. 3:17-cv-00229 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Charlot t e New (“ New” ) began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , she challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon t he findings of an Administ rat ive Law Judge (“ ALJ” ). New maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. 1 New first maint ains t hat her residual funct ional capacit y was erroneously assessed, in part , because t he ALJ improperly rej ect ed t he opinions of Dr. Rolland Hollis, M.D., (“ Hollis” ). New also alleges t he following: “ [t ]he vocat ional expert failed t o address whet her t he j obs he ident ified could be performed wit h a sit -st and opt ion,” and “ [t ]he ALJ[] failed t o include any limit at ion ... t hat account s for New’ s borderline int ellect ual funct ioning,” see Docket Ent ry 13 at CM/ ECF 32. The question for the Court is whether the ALJ’s findings are supported by substantial evidence on the record as a whole. “Substantial evidence means less than a preponderance but enough that a reasonable person would find it adequate to support the decision.” See Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011). 1 Dockets.Justia.com New filed her applicat ion for supplement al securit y income payment s on August 20, 2014. At t he beginning of t he administ rat ive hearing, she amended her onset dat e. The amended onset dat e was August 20, 2014, or t he dat e she filed her applicat ion. The ALJ denied t he applicat ion on April 8, 2016. The relevant period in t his case is t hus from August 20, 2014, t hrough April 8, 2016. Evidence prior t o August 20, 2014, will nevert heless be considered in order t o place her impairment s in an hist orical cont ext . New has ably summarized t he evidence in t he record, and t he Commissioner has not challenged t he summary. It will not be reproduced, except t o not e several mat t ers germane t o t he issues raised in t he part ies’ briefs. The record reflect s t hat prior t o August 20, 2014, New sought medical care for chronic obst ruct ive pulmonary disease (“ COPD” ) and acut e bronchit is. See Transcript at 655-657 (12/ 05/ 2013), 647-648 (02/ 07/ 2014), 506-517 (02/ 12/ 2014), 444-505 (02/ 15/ 2014), 421-443 (02/ 25/ 2014), 407-420 (03/ 04/ 2014), 645-647 (03/ 07/ 2014), 394-406 (03/ 13/ 2014), 375-387 (04/ 22/ 2014), 363-374 (05/ 26/ 2014), 636-637 (08/ 16/ 2014), 337-360 (08/ 17/ 2014). 2 She report ed difficult ies breat hing, short ness of breat h, coughing, and wheezing. A February 12, 2014, chest x-ray showed haziness in her left lung. See Transcript at 510. A May 26, 2014, chest x-ray, t hough, showed t hat her chest was “ st able.” See Transcript at 369. She received supplement al oxygen and breat hing t reat ment s for her sympt oms and was prescribed t reat ment t hat included a Pro-Air inhaler. New rarely sought medical attention for just one impairment during the typical examination; instead, she usually sought medical attention for several impairments during a single examination. There are other instances in which she sought medical attention for her symptoms associated with COPD and/or acute bronchitis. The Court has identified these dates because they appear to be when she primarily complained of symptoms associated with COPD and/or acute bronchitis. The Court will do likewise with her other impairments, i.e., the Court will only note the dates when the impairment appeared to have been the primary complaint. 2 2 New sought medical care for chest pain and/ or heart -relat ed issues prior t o August 20, 2014. See Transcript at 326-327, 568-569 (11/ 04/ 2013); 518-542 (01/ 26/ 2014). She present ed t o an emergency room on November 4, 2013, complaining of chest pain and angina. Following t est ing, she underwent a percut aneous coronary int ervent ion. 3 Upon her discharge, she was diagnosed wit h, int er alia, coronary art ery disease secondary t o at herosclerot is heart disease and prescribed medicat ion. She present ed t o an emergency room on January 26, 2014, complaining of exert ional chest pain. An EKG showed normal sinus rhyt hm, and a t roponin t est was negat ive. A st ress echocardiogram was negat ive for myocardial ischemia and low probabilit y for coronary art ery disease. She was diagnosed wit h, int er alia, coronary art ery disease secondary t o at herosclerot is heart disease and cont inued on her medicat ion. New sought medical care for back and j oint pain prior t o August 20, 2014. See Transcript at 664-665 (09/ 24/ 2013), 662-663 (10/ 02/ 2013), 654-655 (12/ 11/ 2013), 642644 (05/ 05/ 2014), 638-640 (06/ 30/ 2014), 637-638 (07/ 09/ 2014), 331-335 (08/ 07/ 2014). Tenderness was not ed in her back, and she had a reduced range of mot ion in her leg j oint s. She was prescribed medicat ions t hat included Gabapent in. New also sought medical care for depression and anxiet y prior t o August 20, 2014. See Transcript at 661-662 (10/ 28/ 2013), 652-654 (12/ 20/ 2013), 650-652 (01/ 09/ 2014), 649-650 (01/ 17/ 2014), 640-641 (06/ 12/ 2014). She report ed t hat she oft ent imes felt on edge, feared losing cont rol, and had difficult y sleeping. She was prescribed medicat ion t hat included Xanax. New also sought medical attention for pain and bruising in her leg, thigh, and groin near where a stent was placed. See Transcript at 659 661 (11/08/2013), 543 551 (11/09/2013), 657 659 (11/23/2013). Groin and limb pain status post to stent placement was diagnosed, and she was prescribed medication for her pain. 3 3 The record reflect s t hat aft er August 20, 2014, New cont inued t o seek medical care for COPD and acut e bronchit is. See Transcript at 634-636 (08/ 29/ 2014), 741-750 (09/ 17/ 2014), 727-740 (09/ 21/ 2014), 632-634 (10/ 03/ 2014), 702-714 (11/ 16/ 2014), 672-701 (12/ 02/ 2014), 846-857 (03/ 07/ 2015), 817-831 (06/ 15/ 2015), 859-895 (09/ 05/ 2015). She cont inued t o report difficult ies breat hing and short ness of breat h. She report ed on at least one occasion t hat her difficult ies breat hing were not relieved wit h t he use of supplement al oxygen or breat hing t reat ment s. Chest x-rays, t hough, showed not hing acut e and were unremarkable for any significant abnormalit y. A pulmonary funct ion st udy was performed on Oct ober 22, 2014, and it produced unremarkable result s. See Transcript at 617-623. She was cont inued on supplement al oxygen and breat hing t reat ment s and prescribed medicat ions. Beginning on Oct ober 30, 2014, and cont inuing t hrough Sept ember 16, 2015, New saw Hollis on what appears t o have been eight occasions for several complaint s. See Transcript at 761 (10/ 30/ 2014), 760 (11/ 26/ 2014), 759 (12/ 22/ 2014), 757-758 (01/ 26/ 2015), 767 (03/ 17/ 2015), 766 (04/ 21/ 2015), 765 (06/ 22/ 2015), 905 (09/ 16/ 2015). His progress not es reflect s t hat during t he period, her blood pressure was oft ent imes elevat ed, she experienced short ness of breat h and coughing, and she suffered bout s of anxiet y. An x-ray during t he period revealed moderat e degenerat ive changes in her right knee j oint and minimal ost eoart hrit is in her left knee j oint . He repeat edly diagnosed hypert ension; art eriosclerot ic heart disease (“ ASHD” ), st at us post st ent ; COPD; congest ive heart failure; ost eoart hrit is of t he knees; depression; and a generalized anxiet y disorder. He prescribed medicat ion, inj ect ions of Depomedrol, cont inued use of inhalers, and encouraged her t o st op smoking. 4 Aft er August 20, 2014, New cont inued t o seek medical care for pain in her back, chest , abdomen, legs, and knees. See Transcript at 716-717 (11/ 11/ 2014); 846-857 (03/ 07/ 2015); 832-845 (05/ 05/ 2015); 769-777 (05/ 10/ 2015); 780-810 (07/ 13/ 2015); 896-903 (08/ 14/ 2015); 911-913 (12/ 11/ 2015); 46, 48-49 (06/ 27/ 2016, or out side t he relevant period). Medical t est ing on November 11, 2014, showed degenerat ive disc space narrowing and ost eophyt osis of t he lumbar spine at L2-L3 and L3-L4. EKGs and chest x-rays were unremarkable, as was an x-ray of her knee. On June 27, 2016, a MRI of her lumbar spine showed scoliosis wit h mild degenerat ive changes in her lumbar spine, and a CT scan of her chest showed evidence of possible inflammat ion and nodules. She was diagnosed wit h impairment s t hat included chronic low back pain and neuropat hic pain. New sought medical care specifically for depression and anxiet y on what appears t o have been one occasion aft er August 20, 2014, see Transcript at 596-608 (02/ 02/ 2014), alt hough she complained of depressive sympt oms during examinat ions t hat were primarily for ot her impairment s. Her sympt oms appear t o have been brought on by t he deat hs of people close t o her. She report ed, int er alia, a sad mood, loss of int erest , decreased appet it e, insomnia, rest lessness and agit at ion, difficult ies concent rat ing, and panic at t acks. A depressive disorder and anxiet y were diagnosed. Individual t herapy was recommended. On July 12, 2016, or out side t he relevant period, New underwent an int ellect ual assessment performed by Amy Flahert y, LPE-I (“ Flahert y” ). See Transcript at 40-42. Test ing showed t hat New had, int er alia, a full scale IQ score of sevent y-one. Flahert y’ s conclusions were as follows: 5 Result s are not consist ent wit h a diagnosis of Int ellect ual Disabilit y. It seems t hat [New’ s] physical and ment al healt h problems have likely t aken a t oll on her cognit ive abilit y, alt hough it is not severe enough at t his t ime t o warrant an int ellect ual disabilit y diagnosis. Is t he individual’ s educat ion and development al hist ory consist ent wit h a diagnosis of Int ellect ual Disabilit y? NO. Are t he deficit s in adapt ive funct ioning consist ent wit h Int ellect ual Disabilit y? NO. Are t he IQ result s considered valid and reliable? YES. See Transcript at 41. On January 18, 2016, Hollis complet ed a Medical Source St at ement (“ St at ement ” ) on behalf of New. See Transcript at 915-916. In t he st at ement , he ident ified her impairment s as hypert ension, art eriosclerot ic heart disease, COPD, and ost eoart hrit is in her knees. Hollis represent ed t hat New’ s work-relat ed limit at ions include t he following: New can lift and/ or carry less t han t en pounds; can st and and walk for less t han t wo hours in a normal workday; can sit for about six hours in a normal workday; requires frequent , unscheduled breaks or rest periods during a normal workday; requires longer t han normal breaks; must be allowed t o shift from sit t ing t o st anding/ walking; has a decreased abilit y t o concent rat e and would need t o be redirect ed frequent ly; and must avoid all exposure t o irrit ant s such as fumes, odors, dust , gas, solvent s, and chemicals. He opined t hat she would miss more t han t hree days a mont h because of her impairment s and t he t reat ment for t hem. New’ s medical records were reviewed by st at e agency medical professionals. See Transcript at 84-99, 100-118. They appear t o have opined t hat she could perform light , unskilled work. 6 A series of document s were complet ed by New, or complet ed by ot hers on her behalf, in connect ion wit h her applicat ion. See Transcript at 214-216, 217-227, 232242, 245-251, 252-259, 260-267, 268-271, 274-279. In t he document s, it was represent ed t hat she does lit t le during t he day. She represent ed t hat a t ypical day consist s of seeing her children off t o school, t aking her medicat ion, receiving updraft t reat ment s, doing light housework, and caring for her children when t hey ret urn home from school. She can at t end t o her own personal care, prepare meals, drive an aut omobile, and shop for groceries. Her hobbies include wat ching t elevision, reading, and occasionally at t ending her son’ s sport ing event s. New can walk for bet ween fift een t o t hirt y minut es before requiring rest , can sit for about an hour before she begins experiencing pain, somet imes finishes what she st art s, can largely follow writ t en and spoken inst ruct ions, but does not handle st ress and changes in her rout ine well. She uses an inhaler during t he day and uses supplement al oxygen at night . The record cont ains evidence of New’ s work hist ory. See Transcript at 205-206, 219, 252. The hist ory reflect s t hat she has worked as a cashier, cook, general manager of a rest aurant , and caregiver. A summary of her FICA earnings bet ween 1978 and 2013 reflect s t hat she only occasionally had report able earnings. See Transcript at 197. New t est ified during t he administ rat ive hearing. See Transcript at 57-61, 62-76. She was fift y-one years old and living by herself. She at t ended high school t hrough t he nint h or t ent h grade, can read and writ e, and is able t o perform basic mat hemat ics. She acknowledged t hat her work hist ory is poor but at t ribut ed it t o being unable t o st and on her feet . She has been unable t o obt ain her GED because she cannot concent rat e for any significant lengt h of t ime. New uses supplement al oxygen as 7 needed and t est ified t hat it was not for sleep apnea but for COPD. She cont inues t o smoke cigaret t es and, in fact , smoked t wo packs a day for approximat ely one year aft er she began using supplement al oxygen. She t est ified, t hough, t hat she is at t empt ing t o reduce her t obacco use. She can st and for about t went y minut es at a t ime and can sit for about t hirt y minut es at a t ime. She has received ment al healt h t reat ment in t he past but was not receiving t reat ment at t he t ime of t he hearing. A vocat ional expert t est ified during t he administ rat ive hearing. See Transcript at 61, 77-79. The ALJ asked t he vocat ional expert whet her t here were work for a hypot het ical individual wit h New’ s limit at ions, limit at ions t hat included t he abilit y t o, int er alia, walk for six t o eight hours, sit for six t o eight hours, “ one t o t wo hours wit hout int errupt ions.” See Transcript at 77. The vocat ional expert t est ified t hat t he hypot het ical individual could perform work as a cashier, small product assembler, and assembly machine t ender. The ALJ found at st ep t wo of t he sequent ial evaluat ion process t hat New has severe impairment s in t he form of COPD, coronary art ery disease, spinal st rain of t he lumbar spine, an affect ive disorder, an anxiet y disorder, and obesit y. He assessed her residual funct ional capacit y and found t hat she can perform light work albeit wit h t he following limit at ions: ... due t o her mild t o moderat e pain, she could occasionally climb, st oop, crouch, kneel, and crawl. She could lift and carry 20 pounds occasionally and 10 pounds frequent ly. She could sit 6-8 hours and st and/ walk 6-8 hours for 1 t o 2 hours wit hout int errupt ion. She could perform unskilled/ rot e act ivit y. She could underst and, follow, and remember concret e inst ruct ions. She could have superficial cont act wit h supervisors, co-workers, and t he public. For example, she could meet , greet , make change, and give simple inst ruct ions and direct ions. 8 See Transcript at 16. In making t he assessment , t he ALJ assigned lit t le weight t o Hollis’ opinions cont ained in t he St at ement . The ALJ did so for t he following reasons: ... First , Dr. Hollis’ medical source st at ement is not accompanied by any subst ant ive explanat ion for t he basis for his opinion. Furt her, his opinion is inconsist ent wit h t he overall record, which shows fairly minimal findings on diagnost ic and clinical t est ing. For example, t he record shows [New’ s] FVC [i.e., forced vit al capacit y] was 80%and FEV1 [i.e., forced expirat ory volume-one second] was 90% ... On examinat ion, [she] generally exhibit s normal respirat ory rhyt hm and rat e, clear breat h sounds, no wheezing, no rales or rhonchi, and her lungs are clear t o auscult at ion ... Last ly, t he records shows t hat [she] smokes t wo packs of cigaret t es a day, which t end t o suggest t hat her COPD and heart impairment do not cause limit at ions as severe as t hose opined by Dr. Hollis ... See Transcript at 20. The ALJ found at st ep four t hat New cannot perform her past relevant work but found at st ep five t here is ot her work she can perform. New maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. New so maint ains first because t he ALJ rej ect ed Hollis’ opinions cont ained in his St at ement . The ALJ must assess t he claimant ’ s residual funct ional capacit y, which is a det erminat ion of t he most she can do despit e her limit at ions. See Brown v. Barnhart , 390 F.3d 535 (8t h Cir. 2004). It is made using all of t he relevant evidence in t he record and must be support ed by some medical evidence. See Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010). As a part of t he assessment , t he ALJ must consider t he medical opinions in t he record. See Wagner v. Ast rue, 499 F.3d 842 (8t h Cir. 2007). A t reat ing physician’ s medical opinions are given cont rolling weight if t hey are well-support ed by medically accept able clinical and laborat ory diagnost ic t echniques and are not inconsist ent wit h t he ot her subst ant ial evidence. See Choat e v. Barnhart , 457 F.3d 865 (8t h Cir. 2006). 9 The first reason t he ALJ gave for discount ing t he opinions cont ained in Hollis’ St at ement , i.e., t he St at ement is not accompanied by an explanat ion for Hollis’ opinions, is not compelling. Alt hough Hollis offered very lit t le support in t he St at ement for his opinions, t he St at ement is but one part of a larger record. The St at ement should t herefore be read in light of t hat record. The t hird reason t he ALJ gave, i.e., New smokes t wo packs of cigaret t es a day, was undoubt edly t rue at one t ime, but it appears t hat New is at t empt ing t o cut back on her use of t obacco. See Transcript at 65-66. The ALJ can consider a claimant ’ s use of t obacco product s in assessing t he work-relat ed limit at ions caused by her rest rict ions, but it is imperat ive t hat t he amount and frequency of t he claimant ’ s use of t obacco be fairly charact erized. The second reason t he ALJ gave, t hough, i.e., Hollis’ opinions are inconsist ent wit h t he record as a whole, is support ed by subst ant ial evidence on t he record as a whole, and t he ALJ could discount Hollis’ opinions for t hat reason. The Court so finds for t wo reasons. First , Hollis’ opinions in t he St at ement are inconsist ent wit h his own progress not es. Hollis saw New on what appears t o have been eight occasions bet ween Oct ober 30, 2014, and Sept ember 16, 2015, and his progress not es cont ain minimal findings. Save finding t hat her blood pressure was oft ent imes elevat ed, she experienced short ness of breat h and coughing, and she suffered bout s of anxiet y, his not es cont ain lit t le or ot herwise unremarkable findings. It is t rue he repeat edly diagnosed several impairment s and prescribed t reat ment t hat included medicat ions, inj ect ions of Depomedrol, and cont inued use of inhalers. It is not clear, t hough, what evidence caused him t o make t hose diagnoses. It is also not clear how he could have offered t he opinions he did based on such minimal findings. 10 Second, Hollis’ opinions in t he St at ement are inconsist ent wit h t he record as a whole. A January 26, 2014, EKG showed normal sinus rhyt hm, and a t roponin t est was negat ive. A st ress echocardiogram was negat ive for myocardial ischemia and low probabilit y for coronary art ery disease. Chest x-rays t hroughout t he relevant period showed not hing acut e. A pulmonary funct ion st udy was performed on Oct ober 22, 2014, and it produced unremarkable result s. Medical t est ing on November 11, 2014, did, t hough, show degenerat ive disc space narrowing and ost eophyt osis of t he lumbar spine at L2-L3 and L3-L4. On December 12, 2015, New sought emergency room care while in Nashville, Tennessee. Alt hough her lumbar spine was t ender t o palpat ion, her mot or st rengt h was 5/ 5 in her ext remit ies, she had a normal gait , and she was able t o “ heel walk and t oe walk.” See Transcript at 912. A June 27, 2016, MRI of her lumbar spine confirmed t he result s of t he earlier t est ing, specifically, t he MRI showed scoliosis wit h mild degenerat ive changes in her lumbar spine. An x-ray revealed moderat e degenerat ive changes in her right knee j oint and minimal ost eoart hrit is in her left knee j oint . A CT scan of her chest showed evidence of possible inflammat ion and nodules. In short , t he evidence relevant t o her physical impairment s is unremarkable. The evidence relevant t o New’ s ment al impairment s is also unremarkable. She sought ment al healt h t reat ment on only a few occasions and admit t ed during t he administ rat ive hearing t hat she was not t hen seeking such t reat ment . On t he occasions she did seek ment al healt h t reat ment , t he t reat ment was not part icularly rigorous. There also appears t o have been a sit uat ional component t o her depressive sympt oms and anxiet y. She report ed t hat her mood was adversely affect ed by t he deat hs of people close t o her and t he st ress of having her daught er live wit h her. 11 The non-medical evidence relevant t o New’ s impairment s is not part icularly compelling. She can at t end t o her own personal care, prepare meals, drive an aut omobile, and shop for groceries. Her hobbies include wat ching t elevision, reading, and occasionally at t ending her son’ s sport ing event s. During a t ypical day, she does light housework and cares for her children before t hey leave for school and aft er t hey ret urn. She can follow writ t en and spoken inst ruct ions, alt hough she somet imes has difficult y doing so. It is also wort h observing, as t he ALJ could and did, t hat New cont inues t o use t obacco product s despit e suffering from COPD, acut e bronchit is, chest pain and/ or heart -relat ed issues. New offers ot her reasons why her residual funct ional capacit y was erroneously assessed. She maint ains t hat she requires updraft t reat ment s during t he day and a port able oxygen machine at night . It is New’ s first cont ent ion t hat t he ALJ conceded New’ s COPD was a severe impairment but “ f ailed t o place any rest rict ions on her regarding her obvious need t o avoid dust , fumes, or ot her pulmonary irrit ant s” in t he assessment and in t he hypot het ical quest ion t he ALJ posed t o t he vocat ional expert . See Docket Ent ry 13 at CM/ ECF 30. The Commissioner maint ains, and t he Court agrees, t hat t he only evidence support ing New’ s assert ion is found in Hollis’ St at ement . In it , Hollis represent ed t hat New must avoid all exposure t o irrit ant s. There is no ot her evidence t o support Hollis’ opinion; his own progress not es do not support t he opinion. Because t he ALJ could and did properly discount Hollis’ opinions cont ained in t he St at ement , t he ALJ did not err in failing t o place rest rict ions on New regarding her need t o avoid irrit ant s and did not err in formulat ing t he hypot het ical quest ion t o t he vocat ional expert . 12 New next maint ains t hat t he ALJ also failed t o consider whet her New’ s use of a nebulizer would “ int erfere wit h her abilit y t o sust ain employment .” See Docket Ent ry 12 at CM/ ECF 30. New maint ains t hat t he omission is not harmless error because t wo of t he j obs ident ified by t he vocat ional expert — small product s assembler and assembly machine t ender— are “ shift -work j obs and likely would not accommodat e unscheduled breaks for a breat hing t reat ment .” See Docket Ent ry 12 at CM/ ECF 30. There is no merit t o New’ s assert ion. It is undisput ed t hat she somet imes uses a nebulizer during t he day. The ALJ could and did quest ion her need for one, t hough, given her cont inued use of t obacco product s. In any event , she appears t o use a nebulizer on only an as-need basis, and it is not clear how long she must allot t o using it . In short , she has failed t o show t hat her use of a nebulizer during t he day would int erfere wit h her abilit y t o sust ain employment . New last maint ains t hat t he requirement s of t he cashier II j ob ident ified by t he vocat ional expert exceed New’ s residual funct ional capacit y. New represent s t hat t he j ob requires more t han j ust making change, as t he vocat ional expert t est ified, and t he ALJ limit ed New t o “ [s]uperficial cont act wit h t he public and coworkers, [m]eet , greet , maint ains, [and] give[] simple inst ruct ions and direct ions,” see Transcript at 77. There is no merit t o New’ s assert ion. Assuming wit hout deciding t hat t he requirement s of t he cashier II j ob exceed New’ s residual funct ional capacit y, t he vocat ional expert ident ified t wo ot her j obs, i.e., small product s assembler and assembly machine t ender. The requirement s of t hose j obs do not exceed New’ s residual funct ional capacit y. 13 New offers anot her reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. New maint ains t hat t he vocat ional expert failed t o address whet her t he j obs he ident ified could be performed wit h a sit -st and opt ion. New support s her assert ion by cit ing t o Social Securit y Ruling 83-12, which provides, in part , t he following: “ Unskilled t ypes of j obs are part icularly st ruct ured so t hat a person cannot ordinarily sit or st and at will. In cases of unusual limit at ion of abilit y t o sit or st and, a VS should be consult ed t o clarify t he implicat ions for t he occupat ional base.” 4 There is no merit t o New’ s assert ion. The ALJ found t hat New ret ains sufficient residual funct ional capacit y t o perform light , unskilled j obs. The ALJ consult ed a vocat ional expert t o det ermine whet her t here were any light , unskilled j obs allowing for a sit -st and opt ion t hat someone wit h New’ s limit at ions could perform. See Transcript at 77-78. The vocat ional expert t est ified t hat t here were such j obs. Alt hough it is t rue t hat his t est imony was not ext ensive, t here is not hing t o suggest t hat he did not t ake int o account New’ s need t o alt ernat e posit ions when assessing t he j obs she could perform. See Carlson v. Chat er, 74 F.3d 869 (8t h Cir.1996) (Social Securit y Ruling 83–12 sat isfied when vocat ional expert t akes int o account claimant 's need t o alt ernat e posit ions when assessing what j obs she can perform). See also Conyer v. Ast rue, 2009 WL 2524553 (E.D.Ark. 2009) (Deere, M.J.); Armost er v. Ast rue, 2008 WL 5424137 (E.D.Ark. 2008) (Miller, J.). Thus, t he vocat ional expert ’ s t est imony support ed t he ALJ's finding t hat t here are light , unskilled j obs New can perform. “A VS is a vocational specialist, a term which describes all vocational resource personnel, including vocational consultants, vocational evaluation workshops, and vocational experts.” See Hollimon v. Astrue, 2010 WL 4919537, 4 (E.D. Ark. Nov. 9, 2010) (Deere, M.J.), report and recommendation adopted, 2010 WL 4922193 (E.D. Ark. Nov. 29, 2010) (Holmes, J.). 4 14 New offers anot her reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. New maint ains t hat t he ALJ’ s assessment of New’ s residual funct ional capacit y did not t ake int o account her borderline int ellect ual funct ioning. New support s her assert ion by maint aining t he following: New t est ified t hat she t ried t o get her GEC, but could not comprehend t he class mat erial. She had difficult y in school, repeat ed t he first and sevent h grades, and was placed in resource classes in reading, science, and social st udies from j unior high forward. She can read a newspaper, but cannot keep her mind on it [for long]. She has never read a book. ... New underwent an int ellect ual assessment in July 2016 performed by ... Flahert y ... WAIS-IV t est ing showed t hat New has a full scale IQ score of 71. All her scores, except t he working memory, were in t he borderline range of int ellect ual funct ioning. The examiner indicat ed t hat t he scores were considered valid and reliable. ... See Docket Ent ry 13 at CM/ ECF 32. There is no merit t o New’ s assert ion. The Appeals Council found, and t he Court agrees, t hat Flahert y’ s int ellect ual assessment “ does not relat e t o t he period at issue.” See Transcript at 2. To t he ext ent t he assessment relat es t o t he period at issue, it is inconclusive. Alt hough Flahert y found t hat New had, int er alia, a full scale IQ score of sevent y-one, Flahert y opined t hat t he t est result s were not consist ent wit h a diagnosis of an int ellect ual disabilit y. Moreover, Flahert y opined t hat New’ s deficit s in adapt ive funct ioning were not consist ent wit h an int ellect ual disabilit y. Flahert y observed t hat New’ s physical and ment al healt h problems appear t o have t aken a t oll on her cognit ive abilit y. Clearly, New experienced difficult ies in school and has difficult y remembering and/ or concent rat ing. The ALJ account ed for t hose limit at ions in assessing New’ s residual funct ional capacit y as t he ALJ limit ed New t o unskilled/ rot e work involving superficial cont act wit h supervisors, co-workers, and t he public. 15 The governing st andard, i.e., subst ant ial evidence on t he record as a whole, allows for t he possibilit y of drawing t wo inconsist ent conclusions. See Culbert son v. Shalala, 30 F.3d 934 (8t h Cir. 1994). The ALJ craft ed an assessment of New’ s residual funct ional capacit y t hat limit ed her t o light , unskilled work, and New has not shown how t he ALJ erred in doing so. In short , t he ALJ could find as he did. On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. New’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 23rd day of April, 2018. ________________________________________ UNITED STATES MAGISTRATE JUDGE 16
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