Baillie v. Commissioner of Social Security

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 BRENDA B., CASE NO. 3:23-CV-5052-DWC 11 Plaintiff, ORDER AFFIRMING DEFENDANT’S 12 v. DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

16 Plaintiff filed this action under 42 U.S.C. § 405(g) seeking judicial review of Defendant’s 17 denial of her applications for supplemental security income benefits (“SSI”) and disability 18 insurance benefits (“DIB”).1 After considering the record, the Court concludes the 19 Administrative Law Judge (“ALJ”) did not err in finding that Plaintiff had the residual functional 20 capacity (“RFC”) to perform light work with the option to sit or stand at will. For the reasons set 21 22

23 1 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties 24 have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. 1 forth below, the Court affirms the decision of the Commissioner of Social Security 2 (“Commissioner”) to deny benefits. 3 I. Factual and Procedural History 4 On June 17, 2020, Plaintiff filed applications for DIB and SSI. Dkt. 7, Administrative

5 Record (“AR”) 98, 131, 338–39. She alleged disability beginning April 19, 2019, due to 6 depression, plantar fasciitis, drop foot, back problems, degenerative disc disease, chronic fatigue 7 syndrome, fibromyalgia, asthma, migraines, and vision problems. AR 380, 384. Her claims were 8 denied initially and on reconsideration. AR 96, 129–31, 155, 166–80. Plaintiff requested a 9 hearing before an ALJ, which took place on August 9, 2022. AR 41–71, 181. Plaintiff was 10 represented by counsel at the hearing. AR 41. 11 At the hearing, the ALJ asked a vocational expert (“VE”) whether occupations in the 12 national economy existed that could be performed by a hypothetical individual with Plaintiff’s 13 limitations “who will be provided a sit/stand-at-will option at the workplace.” AR 68. The VE 14 testified that such an individual could work as a merchandise marker, food sorter, or production

15 assembler, all of which are light exertion, SVP22 positions. AR 68–69. The VE stated that her 16 testimony was consistent with the Dictionary of Occupational Titles (“DOT”), but the DOT did 17 not address sitting and standing at will within the light-strength category. AR 69. She stated she 18 based her opinion on this issue on her professional education, training, knowledge, and 19 experience. Id. The ALJ presented the VE with a second hypothetical that was identical to the 20 first, except that the second hypothetical individual did not require a sit/stand option. AR 70. The 21 VE testified that the same positions would be available to this individual. Id. 22

23 2 “SVP” stands for “specific vocational preparation.” SSR 00–4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). 24 An SVP of 2 corresponds with unskilled work. Id. 1 The ALJ issued an unfavorable decision finding Plaintiff not disabled. AR 18–30. He 2 found Plaintiff had the severe impairments of cervical and lumbar degenerative disc disease, 3 right ankle degenerative disc disease, a depressive disorder, an anxiety disorder, and attention 4 deficit hyperactivity disorder. AR 21. Nevertheless, he determined Plaintiff had the RFC to

5 perform light work with certain additional limitations, including a requirement that “[s]he must 6 be able to sit/stand at will.” AR 23–24. The ALJ acknowledged that Plaintiff’s ability to perform 7 all or substantially all the requirements of light work had been impeded by additional limitations, 8 but, based on the testimony of the VE, the ALJ found there were jobs existing in significant 9 numbers in the national economy that Plaintiff could perform. AR 28–29. 10 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 11 final decision of the Commissioner. AR 1–6. Plaintiff appealed to this Court. See Dkts. 1, 5. 12 II. Standard of Review 13 When reviewing the Commissioner’s final decision under 42 U.S.C. § 405(g), this Court 14 may set aside the denial of social security benefits if the ALJ’s findings are based on legal error

15 or are not supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 16 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 17 III. Discussion 18 Plaintiff argues the ALJ erred in concluding she could perform light work while also 19 including a sit/stand option in her RFC. Dkt. 15 at 3. She contends a requirement that a claimant 20 be permitted to sit and stand at will is incompatible with a finding that the claimant is capable of 21 performing light work. Id. at 3–4. 22 23

24 1 A. Waiver 2 As a threshold matter, Defendant argues Plaintiff has waived her argument because she 3 failed to raise it during her administrative hearing. Dkt. 21 at 1–3. Plaintiff responds that the 4 general waiver principles are inapplicable because she “is raising a pure question of law,”

5 namely, whether there is an apparent conflict within an RFC that restricts an individual to light 6 work and includes a sit/stand option. Dkt. 22 at 3. 7 The Ninth Circuit has held that, “at least when claimants are represented by counsel, they 8 must raise all issues and evidence at their administrative hearings in order to preserve them on 9 appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). However, even after deciding 10 Meanel, the Ninth Circuit elected to consider an issue raised for the first time on appeal when the 11 issue was “a pure question of law and the Commissioner will not be unfairly prejudiced by 12 [Plaintiff’s] failure to raise the issue below.” Silveira v. Apfel, 204 F.3d 1257, 1260 n.8 (9th Cir. 13 2000). The Ninth Circuit noted that, unlike in Meanel, the claimant was not “rest[ing] her 14 arguments on additional evidence presented for the first time on appeal, thus depriving the

15 Commissioner of an opportunity to weigh and evaluate that evidence, which the ‘ALJ, rather 16 than this Court, [is] in the optimal position’ to do.” Id. (quoting Meanel, 172 F.3d at 1115). 17 Similarly, this case presents a discrete legal issue and does not involve any additional 18 evidence raised for the first time on appeal. There is no indication that the Commissioner will be 19 unfairly prejudiced by Plaintiff’s failure to argue the issue before the ALJ. Accordingly, the 20 Court will consider Plaintiff’s argument. 21 B. Light Work with Sit/Stand Option 22 Plaintiff argues that her RFC is internally inconsistent because she contends a sit/stand 23 option is not compatible with a finding that a claimant can perform light work. Dkt. 15 at 3.

24 1 Light work typically “requires a good deal of walking or standing” or “involves sitting 2 most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567, 3 416.967(b). The Social Security Administration elaborated in Social Security Ruling (“SSR”)3 4 83-10 that “the full range of light work requires standing or walking, off and on, for a total of

5 approximately 6 hours of an 8-hour workday.” 1983 WL 31251, at *6 (Jan. 1, 1983). However, 6 the Administration has also recognized that, “[i]n some instances, an individual can do a little 7 more or less than the exertion specified for a particular range of work,” and issued additional 8 guidance for situations in which “an individual's exertional RFC does not coincide with the 9 exertional criteria of any one of the external ranges[.]” SSR 83-12, 1983 WL 31253, at *1 (Jan. 10 1, 1983). 11 One of the situations expressly addressed by SSR 83-12 is an individual’s need to 12 alternate between sitting and standing: 13 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 14 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 15 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 16 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 17 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.) 18 Id. at *4. The ruling goes on to provide guidance to ALJs regarding how and whether to 19 incorporate a sit/stand option in an RFC: 20 There are some jobs in the national economy—typically professional and 21 managerial ones—in which a person can sit or stand with a degree of choice. . . .

22 3 “Social Security Rulings do not carry the ‘force of law,’ but they are binding on ALJs nonetheless. They 23 reflect the official interpretation of the Social Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 24 2017) (cleaned up). 1 However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a 2 certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit 3 or stand, a [vocational specialist] should be consulted to clarify the implications for the occupational base. 4 Id. 5 In SSR 83-12, the Administration recognizes that a sit/stand limitation of some kind may 6 be necessary even when a person is otherwise capable of light work. This ruling acknowledges 7 that unskilled jobs that are not professional or managerial in nature are less likely to allow an 8 individual to sit or stand at will. But the ruling does not foreclose the applicability of a sit/stand 9 option to these types of jobs; rather, it advises ALJs to consult VEs to clarify the effect of the 10 limitation on the occupational base. The Ninth Circuit has approved this interpretation, stating: 11 “SSR 83-12 directs that when a claimant falls between two [exertional levels], consultation with 12 a VE is appropriate.” Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000). 13 Here, the ALJ found Plaintiff capable of performing light work with additional 14 limitations, including the sit/stand option. Under SSR 83-12 as interpreted by Moore, the ALJ 15 should then consult a VE to clarify the effect of the limitation on the occupational base. The ALJ 16 did so, and the VE identified three jobs that would be achievable for a person with Plaintiff’s 17 RFC, including the requirement that she be able to sit and stand at will. Thus, the ALJ complied 18 with the requirements of SSR 83-12, as explained in Moore. 19 Plaintiff disagrees that SSR 83-12 provides sufficient guidance for ALJs to find an RFC 20 permitting light work with a sit/stand option. She chiefly relies on three cases in support of her 21 argument that a sit/stand option is incompatible with light work. See Dkt. 15 at 4–6; Dkt. 22 at 22 4–5. As explained below, these cases do not conflict with the Court’s stated understating of SSR 23 83-12. 24 1 First, Plaintiff cites to Perez v. Astrue, in which “[t]he ALJ found that Perez required ‘the 2 option to alternate sitting and standing at will to relieve discomfort,’ but also found that Perez 3 was ‘able to stand and/or walk six hours in an eight-hour workday [and] able to sit six hours in 4 an eight hour workday.’” 250 F. App'x 774, 776 (9th Cir. 2007). The Ninth Circuit determined

5 that these findings were “internally inconsistent” because “[t]he need to sit and stand at will is 6 incompatible with the ability to either sit or stand for six hours in an eight-hour workday.” Id. 7 Also, both VEs “testified that the need to alternate between sitting and standing at will for 8 anything more than a momentary reprieve would preclude all work or all sedentary work that 9 exists in significant numbers in the national economy.” Id. 10 Here, unlike in Perez, the ALJ made no explicit finding that Plaintiff was able to stand, 11 walk, or sit for six hours in an eight-hour workday. Plaintiff argues the ALJ implicitly adopted 12 this finding “by finding the non-examining state agency medical consultant Dr. Norman Staley’s 13 exertional findings persuasive.” Dkt. 15 at 4. Indeed, when opining on Plaintiff’s physical RFC, 14 Dr. Staley indicated that Plaintiff could “stand and/or walk (with normal breaks)” for “about 6

15 hours in an 8 hour workday” and could “sit (with normal breaks)” for the same amount of time. 16 AR 148–49. However, the ALJ specified in his decision which portions of Dr. Staley’s opinion 17 he found persuasive: “The State agency medical consultants’ opinions that the claimant could 18 work at the light exertional level with no climbing ladders, ropes or scaffolds, occasional 19 climbing ramps and stairs, stooping, kneeling, crouching and crawling, with avoiding 20 concentrated exposure to temperature extremes, wetness, vibration, pulmonary irritants and 21 hazards is persuasive.” AR 26. The ALJ did not include in this list Dr. Staley’s opinion that 22 Plaintiff could stand, walk, or sit for six hours per workday. Because the ALJ’s decision does not 23 include this finding, it does not present the same internal inconsistency found in Perez.

24 1 Plaintiff also argues that this case is analogous to Silveira v. Commissioner of Social 2 Security, No. 2:19-CV-933-KJN, 2020 WL 6582271 (E.D. Cal. Nov. 10, 2020). In Silveira, the 3 ALJ formulated an RFC permitting light work with certain limitations, including a sit/stand 4 option, based on the opinions of two state-agency reviewing physicians and Silveira’s podiatrist.

5 Id. at *3. Although the state-agency doctors opined Silveira could stand and walk for “about 6 6 hours in an 8-hour workday,” the podiatrist’s later report stated that the plaintiff’s condition 7 would worsen with prolonged standing and walking, which could lead to limb loss. Id. The Court 8 found that, “[u]nder the facts of plaintiff’s case, an exertional restriction of ‘sit/stand at will’ is 9 akin to ‘sedentary’ work under [SSR 83-10]—and certainly nowhere near being able to be on 10 one’s feet for 6 hours of a workday.” Id. at *4. 11 The Silveira Court addressed the Commissioner’s argument that the ALJ had 12 appropriately resolved any conflict within the RFC by consulting a VE about available jobs 13 accommodating light work and a sit/stand option. Id. The Court noted that it “does not dispute 14 that if this were a case of ‘light-minus,’ the ALJ’s approach would be appropriate under Moore[,

15 216 F.3d 864.]” Id. at *5. However, the Court found that the “light-minus” label was not 16 applicable because of the podiatrist’s recommendation that the “plaintiff be off his feet as much 17 as possible or risk possible amputation[.]” Id. (emphasis in original). Given the severity of the 18 potential consequences and corresponding erosion of the occupational base, the Court found “it 19 was error to deem plaintiff’s RFC as anything other than sedentary” and stated that “[t]he ALJ 20 cannot be allowed to dodge a finding of disabled at sedentary by misclassifying plaintiff's RFC 21 as light.” Id. 22 Here, there is no indication that Plaintiff would suffer such serious consequences from 23 time spent on her feet; rather, the ALJ included the sit/stand option to allow Plaintiff to “alleviate

24 1 pain or discomfort.” AR 25. This case is more comparable to the “light-minus” situation that the 2 Silveira Court used to describe Moore—where “the plaintiff's exertional limitations put him 3 somewhere between light and sedentary, and so the Ninth Circuit held the VE's expertise was 4 required, given the likely erosion in jobs for someone able to do less than a full complement of

5 light work.” Silveira, 2020 WL 6582271, at *5 (citing Moore, 216 F.3d at 870–71). 6 Finally, Plaintiff cites to a decision from the Third Circuit in support of her position, 7 Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003). In Boone, the ALJ found that the plaintiff 8 “retain[ed] the capacity to perform ‘a range of light level work’” and could “stand, walk, and sit 9 for six hours out of an eight-hour day.” Id. at 204–05. The ALJ also determined that any 10 employment must “permit her to sit and stand at will every thirty minutes.” Id. at 205. Although 11 a VE identified three jobs that an individual with Boone’s RFC could perform, the Third Circuit 12 found that, “according to the DOT, Boone cannot perform any of the occupations identified by 13 the VE.” Id. at 206–08. Given the unexplained conflict between the VE’s testimony and the 14 DOT, as well as the VE’s numerous statements of hesitancy while testifying, the Court

15 concluded “the VE's testimony does not by itself provide substantial evidence of a significant 16 number of jobs in the economy that Boone can perform.” Id. at 209. 17 The Third Circuit then turned to whether “the record otherwise contains such evidence” 18 supporting the ALJ’s determination. Id. The Court noted the language of SSR 83-12 “suggests 19 that Boone cannot perform most sedentary or light jobs (because of her need to have the option 20 to sit or stand at will and her ability to perform only unskilled work)[.]” Id. at 211. In the absence 21 of any useful VE testimony to “provide a more individualized analysis as to what jobs the 22 claimant can and cannot perform[,]” the Third Circuit found the record did not contain 23

24 1 substantial evidence that Boone could perform a significant number of jobs in the economy. Id. 2 at 210–11. 3 As detailed above, the VE in this case identified three jobs that a person with Plaintiff’s 4 RFC, including the requirement that she be able to sit and stand at will, could perform. Plaintiff

5 has not challenged the VE’s testimony. This testimony provided the “more individualized 6 analysis” that was missing in Boone, and thus Boone is inapplicable. 7 Plaintiff has not shown that the ALJ erred by including both a finding that she was 8 capable of light work and a sit/stand option in her RFC. 9 IV. Conclusion 10 Based on the foregoing reasons, the Court hereby finds the ALJ did not err in determining 11 that Plaintiff is not disabled, and therefore affirms the ALJ’s decision to deny benefits. 12 Dated this 30th day of January, 2024. 13 A 14 David W. Christel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24