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Basse v. Astrue

June 21, 2010


The opinion of the court was delivered by: Philip M. Frazier United States Magistrate Judge


FRAZIER, Magistrate Judge

Plaintiff, Eugene Basse, seeks judicial review of a final decision of the Commissioner of Social Security denying his October, 2005, application for disability benefits. An Administrative Law Judge (ALJ) denied Basse's application after finding that Basse was not disabled. That decision became final when the Appeals Council declined to review the ALJ's decision. Judicial review of the Commissioner's final decision is authorized by 42 U.S.C. § 405(g).

To receive disability benefits, a claimant must be "disabled." A disabled person is one whose physical or mental impairments result from anatomical, physiological, or psychological abnormalities which can be demonstrated by medically acceptable clinical and laboratory diagnostic techniques and which prevent the person from performing previous work and any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A).

The Social Security regulations provide for a five-step sequential inquiry that must be followed in determining whether a claimant is disabled. 20 C.F.R. § 404.1520. The Commissioner must determine in sequence: (1) whether the claimant is currently employed; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals one listed by the Commissioner; (4) whether the claimant can perform his or her past work; and (5) whether the claimant is capable of performing any work in the national economy. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). If the claimant does not have a listed impairment but cannot perform his or her past work, the burden shifts to the Commissioner at Step 5 to show that the claimant can perform some other job. Id.

Roberts worked as a truck driver and mechanic until he suffered a work-related injury. He has a ninth grade education with some special education classes, and is able to read and write. As noted above, he applied for benefits in October, 2005, claiming that he became disabled on January 17, 2005.

The ALJ evaluated Basse's application through Step 5 of the sequential analysis. He concluded that plaintiff had physical impairments (degenerative disc disease, hypertension, and gastroesophageal reflux disease) and mental impairments (borderline intellectual functioning and a history of a mild adjustment disorder), but that these conditions did not meet or equal one of the impairments listed in the Social Security regulations. The ALJ found that Basse was limited by his ailments but retained the ability to perform a limited range of light-sedentary work and could perform a number of election clerk and assembler jobs (R. 15-23). At the time of the ALJ's final decision, plaintiff was 40 years old.

Under the Social Security Act, a court must sustain the Commissioner's findings if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla" of proof. The standard is satisfied by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Because the Commissioner of Social Security is responsible for weighing the evidence, resolving conflicts in the evidence, and making independent findings of fact, this Court may not decide the facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Id. However, the Court does not defer to conclusions of law, and if the Commissioner makes an error of law or serious mistakes, reversal is required unless the Court is satisfied that no reasonable trier of fact could have come to a different conclusion. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996).

I. Deficiencies in the Briefs

Pursuant to this Court's local rules, plaintiff's obligation is to "state with particularity which findings of the Commissioner are contrary to law." The defense is to specifically respond to plaintiff's assertions and arguments. SDIL-LR 9.1(b). On July 15, 2009, the parties were directed to include in their briefs a statement of relevant facts, with citation to the administrative record, and a discussion of the applicable law, with citation to relevant authority. This order directs the parties to point to the relevant portions of the administrative record and present a coherent legal framework for analysis (Doc. No. 12).

Some of plaintiff's arguments are not supported by references to the relevant portions of the administrative record, a discussion of applicable law, or citation to legal authority. The brief filed in response misconstrues some of the arguments and misrepresents one aspect of the administrative record. The deficiencies in the briefs have multiplied the Court's time. Options, including striking the briefs or deeming arguments waived, have been considered. The Court elects to address the issues on the merits to the extent that a legal framework for those issues can be ascertained.

II. Questions Posed to Vocational Expert

Basse argues that the ALJ made errors at the evidentiary hearing by posing improper questions to the vocational expert (VE). Specifically, he claims that the ALJ omitted questions that would have allowed the expert to consider the frequency with which the person described in a hypothetical question needed to alternate between a seated position and a standing position. He also argues that the ALJ should have specifically identified the length of time the hypothetical person needed to stand. The Commissioner responds that the vocational testimony reflects the limitations identified by the ALJ. He also notes that the ALJ decided that Basse could shift positions at will while seated.

Hypothetical questions posed to a VE must include "all limitations supported by evidence in the record." Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). When a person needs a sit/stand option, specific information may help the ALJ determine what occupations the claimant is able or unable to do. SSR 96-9p. In particular:

Alternate sitting and standing: An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.

SSR 96-9p.

The ALJ decided that Basse could perform a full range of "light-sedentary" work, reduced by specific limitations: no standing or walking for more than 2 hours of an 8-hour day; no lifting or carrying of objects weighing more than 10 pounds; no climbing of ropes, ladders, or scaffolds; and no more than occasional climbing of ramps or stairs, stooping, kneeling, crouching, or crawling. Also, Basse was limited to simple, repetitive tasks (R. 22).

The ALJ consulted a VE, who was asked at the hearing to identify jobs that could be performed by a hypothetical person who was restricted to sedentary work, with these specific limitations: lifting, carrying, pushing, and pulling items weighing 10 pounds occasionally, and less than 10 pounds frequently; sitting for 6 out of 8 hours in a workday with the option to sit or stand and the ability to shift positions while seated; standing or walking 2 hours out of an 8-hour workday, with occasional climbing, stooping, crouching, kneeling, and crawling and no exposure to ladders, ropes or scaffolds (R. 61). The VE identified the jobs of ...

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