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Bilger v. Astrue

United States District Court, Third Circuit

December 4, 2013

DONNA L. BILGER, Plaintiff,
v.
MICHAEL J. ASTRUE, COMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. ยง 401-433. (Doc. 1.) The Administrative Law Judge ("ALJ") who originally evaluated the claim found that Plaintiff had the residual functional capacity ("RFC") to perform light work with certain limitations and denied Plaintiff's claim for benefits. (R. 13, 17.) With this action, Plaintiff argues that the ALJ's determination is error for two reasons: 1) the RFC is not based on substantial evidence (Doc. 6 at 7); and 2) the Vocational Expert's testimony did not constitute substantial evidence because the ALJ's hypothetical did not adequately portray the full extent of Plaintiff's limitations ( id. at 14). For the reasons discussed below, we conclude Plaintiff's claimed errors are without merit and, therefore, we deny her appeal of the Commissioner's decision.

I. Background

Plaintiff protectively filed for DIB on June 3, 2008. (R. 122.) Plaintiff's date of birth is May 2, 1953. (R. 126.) She is married with no minor children. ( Id. ) She claimed disability beginning on August 1, 2006 ( id. ), alleging an inability to work based on arthritis, diabetes and nerve damage (R. 138). She added that she could not stand and could not sit for long, she was in constant pain and was unable to clean her house or go up and down stairs. ( Id. ) Plaintiff had past work as a coffee hostess and box packer. (R. 139.) She has a ninth grade education. (R. 29.) Plaintiff's "date last insured" is September 30, 2006. (R. 10.)

The Social Security Administration denied Plaintiff's application by decision dated August 1, 2008. (R. 69-73.) On August 6, 2009, Plaintiff filed a timely Request for Hearing before an Administrative Law Judge. (R. 74.) On May 11, 2010, ALJ Donna M. Graffius held a hearing at which Plaintiff and a vocational expert ("VE") testified. (R. 22-54.)

In response to the question of whether she was able to work as a box packer or coffee hostess in 2007 after her surgeon released her, Plaintiff responded that she could not because she "couldn't stand that long." (R. 37.) Plaintiff also stated she could not have performed any kind of work activity at that time because she never knew from day to day how she was going to feel. (R. 37-38.) She reported that she could do laundry and dishes on a good day but otherwise needed help with housework. (R. 38.) Plaintiff stated that she could do her own laundry and grocery, and visit with friends and relatives back in August of 2007. (R. 38-39.) When asked by her attorney about the period of time when her doctor had released her post surgery and whether she had increased her activities, Plaintiff responded that she felt better for a period of time, she did not run the sweeper, and her standing and walking remained limited. (R. 40.) She confirmed that she returned to her doctor due to increasing pain. (R. 41.) Plaintiff added that in the summer of 2007 she could be on her feet for ten to fifteen minutes and then pain would shoot down her left leg and her sleep was interrupted due to pain. (R. 41-42.) Plaintiff also testified that during the summer 2007 time period her sugar level was elevated due to diabetes, that she was tired all the time, was nauseated, had headaches, and experienced a loss of feeling in her feet and numbness in her fingertips. (R. 45-46.)

Following Plaintiff's testimony, the ALJ asked the VE questions assuming a hypothetical claimant with the same age, education and work experience as Plaintiff who would be limited to light work activity with additional limitations. (R. 49.) The VE stated there were light duty jobs in the region such a claimant could perform, jobs which could be performed sitting or standing depending on how the claimant felt. (R. 49-50.)

Finally, the ALJ asked what would be typically expected of employees in terms of absences, work breaks and time on task expectations. (R. 51.) The VE testified there would be five eight-hour days with ten minute rest periods in the morning and afternoon, a lunch period of thirty to sixty minutes, and an employer would tolerate five unexcused absences per year apart from medical leave and vacation time. (R. 51.) The VE added that exceeding the customary limits would eliminate the jobs he had cited for the hypothetical claimant. (R. 51.)

Plaintiff's attorney followed up with a question regarding whether the jobs he had identified were classified as light based on the amount of weight lifted on the job. (R. 51.) The VE responded in the affirmative. (R. 51-52.)

Plaintiff's attorney then noted that, although there was a release from the doctor in the middle of the time period, shortly after the release Plaintiff again experienced back pain which eventually led to a second surgery-a situation indicating a continuation of problems from the date last insured. (R. 52.)

By decision of May 19, 2010, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. (R. 17.) He made the following findings of fact and conclusions of law:

1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2006.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 1, 2006 through her date last insured of September 30, 2006 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: lumbar stenosis at L4-5, status post laminectomies and bilateral foraminotomies at L4-5, status post right shoulder arthroscopy with subacromial decompression, and diabetes mellitus (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, September 30, 2006, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she was limited to occasional walking and standing, and postural maneuvers, such as stooping, kneeling, crouching, crawling, and climbing ramps and stairs. Further, the claimant needed the option to sit and stand during the work day, every 15-20 minutes. Finally, the claimant had to avoid overhead reaching with the right upper extremity.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on May 2, 1953 and was 53 years old, which is defined as an individual closely approaching advanced age, on the ...

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