Summary
finding that, since the VE only identified one job to which the plaintiff's skills would transfer, the ALJ did not meet her burden to prove that a significant range of occupations existed
Summary of this case from Teresa C. v. SaulOpinion
4:16-cv-28 RP-CFB
08-31-2016
Katharine Elizabeth COLLIS, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.
Karl E. Osterhout, Osterhout Disability Law, LLC, Oakmont, PA, Robert J. Engler, Robberts, Kirkman & Engler, L.L.L.P., Burlington, IA, for Plaintiff. Rachel J. Scherle, United States Attorney's Office, Des Moines, IA, for Defendant.
Karl E. Osterhout, Osterhout Disability Law, LLC, Oakmont, PA, Robert J. Engler, Robberts, Kirkman & Engler, L.L.L.P., Burlington, IA, for Plaintiff.Rachel J. Scherle, United States Attorney's Office, Des Moines, IA, for Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, Judge UNITED STATES DISTRICT COURT
Plaintiff, Katharine Elizabeth Collis, filed a Complaint in this Court on February 2, 2016, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
Plaintiff filed applications for benefits on May 20, 2014. Tr. at 190-97. Plaintiff, whose date of birth is January 25, 1959 (Tr. at 190), was 56 years old at the time of the hearing on August 5, 2015, before Administrative Law Judge Henry Hamilton (ALJ). Tr. at 35-73. The ALJ issued a Notice Of Decision—Unfavorable on August 17, 2015. Tr. at 17-30. The Appeals Council declined to review the ALJ's decision on December 8, 2015. Tr. at 1-4. Thereafter, Plaintiff commenced this action.
At the first step of the sequential evaluation, the ALJ found that Plaintiff has not engaged in substantial gainful activity after July 15, 2013, the alleged disability onset date. At the second step, the ALJ found Plaintiff has the following severe impairments: degenerative disk disease with low back pain, stenosis, and chronic SI joint disarticulation. Tr. at 22. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. At the fourth step, that ALJ found:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) such that she can lift and carry twenty pounds occasionally, ten pounds frequently; stand and walk six hours in an eight hour workday; sit for six hours in an eight hour workday; occasionally climb, balance, stoop, kneel, crouch, and crawl; and occasionally work around heights or moving mechanical parts.
Tr. at 23. The ALJ found that Plaintiff is unable to perform her past relevant work. Tr. at 28. At the fifth step, the ALJ found that Plaintiff had acquired skills from her past relevant work which would allow her to perform other semi skilled work such as personal attendant. Tr. at 29. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 30.
MEDICAL EVIDENCE
On February 24, 2012, x-rays of Plaintiff's back showed blunting or scoliosis at L2-3, early degenerative disc disease at L2-3, and early arthrosis at L5-S1. Tr. at 325. X-rays of Plaintiff's left hip were unremarkable. Tr. at 326.
Degenerative joint changes. Stedman's Medical Dictionary.
On April 29, 2014, Plaintiff saw Paul D. Poncy, D.O., to reestablish medical care after a three year absence. Plaintiff's main concern was high blood pressure. Plaintiff also complained of a low back strain. Plaintiff reported that she had fallen and jarred her low back and tail bone. The doctor told Plaintiff she could take 800 mg of ibuprofen twice a day for 10 to 14 days for the low back pain. Plaintiff complained of dyspepsia which the doctor opined was reflux esophagitis, "maybe aggravated by hiatal hernia." Tr. at 320.
On May 5, 2014, Plaintiff was seen by Nicholas McCullen, OD, for an eye examination. Tr. at 306-11. Plaintiff complained of mild blurring of her distant and near vision. She also complained of suspected cataracts in both of her eyes. Tr. at 306. On examination, Plaintiff's visual acuity was 20/25 right, 20/30 left, and 20/25 both. Tr. at 308. The diagnosis was presbyopia for which Plaintiff was advised to update her corrective lenses. Plaintiff was also diagnosed with nuclear sclerotic cataract —mild in severity. Tr. at 310.
Presbyopia is a vision condition in which the crystalline lense of the eye loses its flexibility, which makes it difficult to focus on close objects. Quick Bear v. Colvin, 128 F.Supp.3d 1163, 1168 fn. 8 (D.S.D.2015).
On July 1, 2014, Plaintiff saw Dr. Poncy. The doctor said that on examination he found Plaintiff's pain to be located at the SI joint rather than her coccyx. Plaintiff and the doctor discussed the possibility of an injection to try to control the chronic low back pain. Tr. at 332.
On July 21, 2014, Plaintiff underwent surgery to excise a mucocele from her lower lip. Tr. at 335.
A cyst. Stedmans Medical Dictionary.
On July 24, 2014, Mary Greenfield, M.D., evaluated the claim for the State Agency. Tr. at 82-93. Dr. Greenfield wrote that Plaintiff was claiming disability due to tail bone injury, high blood pressure, and cataracts. The doctor determined that the impairments did not impose more than minimal functional limitations, and that they were not severe. Tr. at 85.
Plaintiff saw Dr. Poncy on August 18, 2014. The doctor increased the dosage of Plaintiff's high blood pressure medication. Plaintiff also reported low back pain. She told the doctor that she could work three to four hours after which she had increased pain which made it difficult to walk, climb stairs or other physical activity. Tr. at 319.
On September 3, 2014, Plaintiff told Dr. Poncy while working she was required to wear a low back lumbar support brace. Plaintiff said that for about three hours, the brace was comfortable, but thereafter it seemed to exacerbate her pain. Tr. at 331.
On October 7, 2014, Plaintiff was seen by Jack Brindley, M.D., for a disability physical examination. Tr. at 336-41. Plaintiff listed the problems contributing to her limited capacity for work as back pain while standing or sitting, pain in the knees under the knee caps, discomfort in her shoulders—left greater than right, and depression. Plaintiff reported that "a few years ago," she fell and hurt her back. Plaintiff's also reported pain in her knees and in her shoulders. Plaintiff reported that she could stand or sit for one or two hours, and that she could walk five or six blocks. Plaintiff had tried to return to work but after four hours the pain was unbearable. "She only lasted at this trial work for four days." Plaintiff said that walking or using stairs hurt her knees, and her knees feel as though they are going to buckle. Tr. at 339. The doctor made reference to the February 24, 2012 x-ray and to Dr. Poncy's note of April 29, 2014. Tr. at 340. After his examination, Dr. Brindley opined that Plaintiff had spinal stenosis which was causing problems with standing and sitting. The doctor opined that Plaintiff was still able to work, but that she would be limited to "a very sedentary type job." Tr. at 341.
On October 23, 2014, Scott Shafer, Ph.D., a psychologist at the State Agency, wrote that Plaintiff was asked about her comment to Dr. Brindley that depression was one of her problems. Plaintiff had been contacted and she reported that she is not being treated for depression and she does not think depression is the problem interfering with her ability to work. Dr. Shafer, opined that Plaintiff does not have a medically determinable mental impairment. Tr. at 102.
X-rays of Plaintiff's left shoulder taken on October 30, 2014, showed "anatomic alignment with no fracture or dislocation. A type II acromion is present with no os acromiale." Tr. at 343. X-rays of Plaintiff's left knee showed "... anatomic alignment with no fracture or dislocation. The overlying soft tissue planes are unremarkable." Tr. at 344.
On December 3, 2014, Rene Staudacher, D.O., a physician at the State Agency, evaluated Plaintiff's physical impairments at the Reconsideration stage. Tr. at 103-05. Dr. Staudacher opined that the evidence showed that Plaintiff has the residual functional capacity to lift and carry 50 pounds occasionally and 25 pounds frequently. The doctor opined that Plaintiff is able to stand, walk, and sit for about 6 hours of a work day. Tr. at 103. Regarding Dr. Brindley's opinion of Plaintiff's residual functional capacity, Dr. Staudacher wrote:
Dr. Brindley stated that [claimant's] problem sounded like spinal stenosis and that she would have to do a very sedentary type job. This opinion is given little [weight]. Prior [low]-spine x-ray findings were not supportive of this [medically determinable impairment]. Additionally, his opinion appears to primarily be based on [claimant's] allegations, however there are several inconsistencies noted in that regard. While she alleged shoulder and knee pain, current x-rays of the [left] knee and [left] shoulder were unremarkable. [Claimant] had diffuse decreased [range of motion] testing on exam, but no [medically determinable impairment] to account for this. Neuro and strength testing were intact. She also stated to [the State Agency] that her conditions were worse, but there is are (sic) no objective findings to support this allegation. Additionally, her self reported [activities of daily living] were similar at initial and current level. Additionally, there is some discrepancy in her report of function to different sources. She told [the State Agency] (now and at initial level) that she could walk 2 blocks but said to Dr. Brindley that she could walk 6 blocks. Given the many inconsistencies, the credibility of the [claimant's] allegations is eroded. [Claimant] would be capable as outlined. Heavy lifting should be avoided on the basis of her early lumbar deg. changes.
Tr. at 104-05. The reconsideration determination was that Plaintiff had the residual functional capacity to perform her past relevant work as it is performed in the national economy. Tr. at 106.
On January 7, 2015, Plaintiff saw Dr. Poncy because of her chronic lumbar disc disease with associated chronic intermittent pain. On examination, the doctor noted mild to moderate paraspinal muscle spasm in the lower thorasic and lumbar area which was quite tender on the left side. The doctor wrote: "She does try to do a little bit of work at times around her house but really finds a lot of distress when she does so. As a result I find it really probably not very likely that she is ever going to be [able] to return to a nursing home in a C.N.A. position." Tr. at 402.
On April 22, 2015, Plaintiff was seen at an emergency department with a five day history of productive cough, and shortness of breath. Plaintiff reported that because of insurance problems, she had not been able to take her blood pressure medication for a week. Tr. at 379. Plaintiff was given prescriptions for medication, and counseled to stop smoking. Tr. at 381. On April 24, 2015, Plaintiff followed up with Dr. Poncy who continued the medication prescribed in the emergency department and added a prescription of Prednisone to reduce the inflammation caused by the upper respiratory infection with mild bronchospasm. Tr. at 400.
Plaintiff saw Dr. Poncy on March 9, 2015 for evaluation of her blood pressure. The doctor adjusted the medication because Plaintiff reported some periods of low pressure. Tr. at 401.
On June 30, 2015, Plaintiff saw Dr. Poncy because she was concerned about a 20 pound loss of weight. During the conversation, however, the doctor learned that Plaintiff's meals were being prepared by her daughter. Also, the doctor noted that Plaintiff had been working so that she was not eating regularly and burning more energy. Tr. at 407.
ADMINISTRATIVE HEARING
Plaintiff testified that she had been working for about a month. She said she was working at an assisted living facility, and that she worked at night which requires less work than the other shifts. She said that if she needed to lift someone, she was able to get help. Tr. at 41. Plaintiff testified that she takes frequent breaks and finds soft chairs in which to sit. She also said that she takes more medication than before she started working. Plaintiff said that she had tried to work in other nursing facilities but was unable to tolerate the lifting and stretching. Tr. at 42. In addition to her back pain, Plaintiff said that her knees give her problems, and that her shoulders hurt some. Tr. at 43.
Plaintiff was asked how far she can walk and she responded two blocks. "I've tried three blocks, and my legs get to hurting, and my back gets tired feeling and starts hurting." Tr. at 44. Plaintiff said she is able to stand for an hour or less, after which she needs to sit in a soft chair or lie down to rest. Tr. at 45.
Plaintiff said that because of her eyes, she needs reading glasses to complete her paper work. Tr. at 46.
Plaintiff said that bending and squatting "if it's for very long time," causes back pain. She also said that sitting puts pressure on her back or tail bone, and causes pain. Tr. at 47.
Plaintiff testified that if she is on her feet too long, or if she eats too much salt, her blood pressure rises and her hands and feet swell. Tr. at 48.
When asked if pain affects her ability to concentrate, Plaintiff said that she sometimes forgets things. Tr. at 50
In response to a question from the ALJ, Plaintiff said she can sit for an hour to an hour and a half before needing to stand up or walk. Tr. at 50.
The ALJ asked Plaintiff to describe the duties of her current job. Plaintiff said that she assists elderly people. Most of the time Plaintiff holds on to the patient so that they don't fall. She said that she also does light house keeping—sweeping and mopping the floor and dusting the furniture. Tr. at 51.
The ALJ asked Plaintiff what prevents her from working more than 30 hours per week in her current job. Plaintiff responded that being on her feet too much, or walking too far, causes her back to hurt. She said that the heaviest thing she lifts at work is a bucket of water that Plaintiff estimated weighs 30 pounds. Tr. at 52.
After Plaintiff testified, the ALJ called Vanessa Mae to testify as a vocational expert. Tr. at 52. The ALJ's first hypothetical question assumed the ability to lift and carry 50 pounds occasionally and 25 pounds frequently as well as the ability to do other exertional activities. Tr. at 56. In response, the vocational expert testified that Plaintiff's past work would be possible, and there would be other medium unskilled work which could be performed. Tr. at 57. Next the ALJ asked:
Okay, for my next hypothetical, please assume an individual with the same limitations as in the first hypothetical. However, this person may lift and carry occasionally 20 pounds, frequently 10 pounds. The person may occasionally find ramps and stairs, ladders and scaffolds, balance, stoop, kneel, crouch, crawl, and occasionally work from unprotected heights and around moving mechanical parts. Can the hypothetical individual perform any of the past jobs you described as actually performed or generally performed in the national economy.
Tr. at 57-58. In response, the vocational expert testified that Plaintiff's past relevant work is not possible, but that she has skills from her nurse's aide work which would transfer to the job of personal attendant. The vocational expert said there were about 4,000 such jobs in the state of Iowa, and 9,000 in the United States. The vocational expert also cited examples of unskilled light jobs. Tr. at 58. In response to a question which assumed the ability to engage in sedentary exertional activity, the vocational expert cited unskilled sedentary jobs which would be possible. Tr. at 59-60. The vocational expert testified that if an individual missed a day of work each month, competitive work would not be possible. The vocational expert testified that Plaintiff's transferable skills are her knowledge of medical care and record keeping. Tr. at 60. The vocational expert testified that the job of personal attendant was the only job she could find to which Plaintiff's skills would transfer. Tr. at 67.
ALJ's DECISION
In his decision, the ALJ wrote that his finding that Plaintiff has the residual functional capacity for light work was supported by the objective medical evidence. The ALJ wrote that treatment notes in the record do not sustain Plaintiff's subjective allegations. The ALJ wrote that Plaintiff's credibility was weakened by evidence of diverse daily activities and inconsistencies between her testimony and the medical records. The ALJ wrote:
The claimant described activities of daily living that are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations. The claimant reported little to no issues with her personal care; she was able to take her dog for a walk; she prepared her own meals on a daily basis; she performed housework such as cleaning and laundry; she shopped in stores for groceries and household items; she had no problem getting along with others; she enjoyed watching television and playing games on the computer; she had no problems following instructions; and she got along with authority figures okay.
Tr. at 28. The ALJ wrote that when the vocational expert was asked if occupations exist which can be performed by an individual with Plaintiff's age, education, past relevant work experience as well as the residual functional capacity found by the ALJ, the vocational expert cited the job of personal attendant as a representative occupation. Tr. at 29.
DISCUSSION
We will affirm the ALJ's decision "[i]f the ALJ's findings are supported by substantial evidence on the record as a whole," an inquiry that requires us to consider evidence in the record that detracts from the ALJ's decision. Wagner v. Astrue , 499 F.3d 842, 848 (8th Cir.2007). "Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the decision."
Reutter ex rel. Reutter v. Barnhart , 372 F.3d 946, 950 (8th Cir.2004).
We will not reverse the ALJ's "denial of benefits so long as the ALJ's decision falls within the ‘available zone of choice.’ " Bradley v. Astrue , 528 F.3d 1113, 1115 (8th Cir.2008) ). The decision of the ALJ "is not outside the ‘zone of choice’ simply because we might have reached a different conclusion had we been the initial finder of fact." Id. (quoting Nicola v. Astrue , 480 F.3d 885, 886 (8th Cir.2007) ). Rather, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff v. Barnhart , 421 F.3d 785, 789 (8th Cir.2005).
Owen v. Astrue , 551 F.3d 792, 798 (8th Cir.2008). In Brand v. Secretary of Dept. of Health, Education and Welfare , 623 F.2d 523, 527 (8th Cir.1980), Chief Judge Lay wrote that Universal Camera Corp. v. NLRB , 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) is "the guideline for the evaluation of the standard of review." In Universal Camera , the Court wrote:
We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.
Id. , 340 U.S. at 490, 71 S.Ct. 456. In reviewing disability decisions from the Social Security Administration, the Court sits in an appellate capacity and is responsible for giving the agency decision a scrutinizing analysis. This requires the Court to determine the substantiality of the evidence by determining if the ultimate decision is supported by substantial evidence on the record as a whole. Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir.1987).
In Jackson v. Bowen , 873 F.2d 1111, 1113 (8th Cir.1989), the Court described its duty as follows:
The district court delineated its standard of review by stating that the Secretary's decision is conclusive if supported by substantial evidence. Such a broad-based search of the record for evidence supporting the Secretary's findings is inappropriate when reviewing an administrative decision. Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir.1987) (citations omitted). Rather the district court's review should be based on whether substantial evidence on the record as a whole supports the Secretary's decision. A notable difference exists between "substantial evidence" and "substantial evidence on the record as a whole":
"Substantial evidence" is merely such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." "Substantial evidence on the record as a whole," however, requires a more scrutinizing analysis. In the review of an administrative decision, "[t]he substantiality
of evidence must take into account whatever in the record fairly detracts from its weight." Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.
Id. (citations omitted).
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel , 143 F.3d 1134, 1136–37 (8th Cir.1998) citing Brinker v. Weinberger , 522 F.2d 13, 16 (8th Cir.1975).
The most important issue in any disability case which proceeds beyond step three of the sequential evaluation is that of residual functional capacity:
Probably the most important issue will be the question of [residual functional capacity]. ... The RFC that must be found ... is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.
McCoy v. Schweiker , 683 F.2d 1138, 1147 (8th Cir.1982) (en banc).
In her brief, Plaintiff argues that the ALJ's finding at step five of the sequential evaluation is not supported by substantial evidence because it fails to apply special rules for transferability of skills for claimants of advanced age. Specifically, Plaintiff argues that the ALJ did not inquire into, and made no findings regarding, whether the job of personal attendant would require very little, if any, adjustment in terms of work settings or industry. Plaintiff also argued that the ALJ erred by failing to adopt the opinion of the consultative physician. The Court has very carefully considered the arguments made by Plaintiff as well as by the Commissioner who argues that the ALJ's decision is supported by substantial evidence on the record as a whole and not affected by errors of law.
In the case at bar, Plaintiff is an individual who, according to the regulatory scheme promulgated by the Commissioner, is a person of advanced age, i.e. older than 55 years old. 20 C.F.R. § 404.1563(e). Plaintiff's education is less than that of a high school graduate, i.e. a "limited education." 20 C.F.R. § 404.1564(b)(3). The vocational expert testified that Plaintiff's past relevant work was semi-skilled. 20 C.F.R. § 404.1568(b). As noted above, the ALJ found that Plaintiff has a residual functional capacity for light work activity. The ALJ found that Plaintiff could not be found disabled because she has transferable skills which can be used within the limits of her residual functional capacity.
One of Plaintiff's arguments is that the ALJ's finding of a light residual functional capacity is not supported by substantial evidence because of the opinion rendered by Dr. Brindley that Plaintiff is limited to "a very sedentary type job." The ALJ considered the objective medical findings, the level of medical care Plaintiff was receiving, Plaintiff's daily activities, and determined that she is limited to light exertional activity. Although Dr. Brindley's opinion is some evidence which detracts from the ALJ's finding, when the record is viewed as a whole, the ALJ's finding falls squarely within the zone of reasonable choice that the Court may not disturb.
At the fourth step of the sequential evaluation, the claimant's residual functional capacity is determined based on medical and other substantial evidence. If it is found that the claimant is unable to return to past relevant work the case proceeds to the fifth step of the sequential evaluation, where it must be determined if other work exists in significant numbers which can be performed within the parameters of the claimant's residual functional capacity. However, other factors are also taken into account to determine if disability should be found. Those factors include age, education, and the nature of the claimant's past relevant work. The Commissioner recognizes that advancing age is an increasingly limiting factor in a person's ability to make adjustment to other types of work. 20 C.F.R. § 404.1563. An education which proceeded beyond the 7th grade through the 11th grade is considered to be a limited education. 20 C.F.R. § 1564(b)(3). The skill requirements of a claimant's past relevant work is also considered. 20. C.F.R. § 404.1568.
The Commissioner developed the Medical Vocational Guidelines found in appendix 2 of 20 C.F.R. These rules reflect the information found in the Dictionary of Occupational Titles concerning the existence of jobs in the national economy. The rules also take into account the other factors noted above. 20 C.F.R. § 404.1569. When a claimant's impairments result in exertional limitations, the rules will be applied to decide if the claimant is disabled or not disabled. 20 C.F.R. § 404.1569a(b). When a claimant has nonexertional limitations, such as pain, mental impairments, or respiratory impairments, the testimony of a vocational expert is usually required. Heckler v. Campbell , 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The Commissioner's regulations state that when a claimant has a combination of exertional and nonexertional impairments, the rules will not be applied "unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations..." 20 C.F.R. § 404.1569a(d).
In the case at bar, because Plaintiff has a combination of exertional and nonexertional impairments, it was the ALJ's duty to first consult the Medical Vocational Guidelines to determine if Plaintiff qualifies for benefits under the medical vocational rules. McCoy v. Schweiker , 683 F.2d 1138, 1148 (8th Cir.1982) (en banc), and 20 C.F.R. Pt. 404, Subpt. P, App 2 § 200.00(e)(2). Ordinarily, a person of Plaintiff's age, education and residual functional capacity, would qualify for disability benefits under Rule 202.02 of the Medical Vocational Guidelines. However, the ALJ determined that this rule does not apply because the vocational expert testified that Plaintiff has skills from her past relevant work which transfer to the job of personal attendant. It is at this point that error arises.
In Lounsburry v. Barnhart , 468 F.3d 1111 (9th Cir.2006), the claimant was found to have a residual functional capacity for light work. Because the claimant had a high school education, the Rules in question were 202.06 (skills not transferable) and 202.07 (skills transferable). Id. at 1117. Rather than consulting the Rules, the ALJ determined that Lounsburry was not disabled because a vocational expert testified that Lounsburry had acquired skills which could be used in a specific job cited by a vocational expert. The Court of Appeals noted that the introductory paragraphs to the Rules for light exertional work state:
However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restrictions to light work warrant a finding of disabled. ...
20 C.F.R. Pt. 404, Subpt. P, App 2 § 202.00(c). The Court of Appeals wrote:
Under Rule 202.00(c), although Lounsburry has some transferable skills, she
will be disabled if those skills "are not readily transferable to a significant range of semi-skilled or skilled work." Thus the specific issue we confront is the meaning of the phrase "significant range of work." The Commissioner takes the position that the term "work" refers to individual jobs , and the phrase "significant range" only requires Lounsburry to adjust to other work existing in significant numbers in the national economy in one or more occupations. However, the term "work" under Rule 202.00(c) means distinct occupations , and "significant numbers" is no substitute for and cannot satisfy the plain language of Rule 202.00(c) requiring a "significant range of ... work" (emphasis added).
Lounsburry v. Barnhart , 468 F.3d at 1117. Relying on Social Security Ruling 83-10, the Court of Appeals held that the phrase "significant range of ... work" requires a significant number of occupations. Id. The Court held that because Lounsburry's skills would transfer to precisely one occupation the Rules required a finding of disability. "One occupation does not constitute a significant range of work. Rule 202.00(c) directs a finding of disability for Lounsburry." Id.
In Byes v. Astrue , 687 F.3d 913, 917 (8th Cir.2012), the Court of Appeals agreed with the District Court that the application of an incorrect Rule was harmless error because even when the correct Rule was applied a finding of not disabled was directed. In the case at bar, on the other hand, when the appropriate Rule is applied, a finding of disabled is directed.
In this case, the ALJ's findings regarding age, education and residual functional capacity are all supported by substantial evidence on the record as a whole. The vocational expert specifically testified that the only job she could find to which Plaintiff's skills would transfer, was that of personal attendant. Thus, the Commissioner has not met the burden to prove that a significant range of occupations exist to which Plaintiff's skills are transferable. Rule 202.02 provides that a person who is limited to light exertion work, who is of advanced age, with a limited or less education, and work history of skilled or semi-skilled—skills not transferable, is found to be disabled. In Parsons v. Heckler , 739 F.2d 1334, 1340 (8th Cir.1984) the Court wrote: "Where further hearings would merely delay receipt of benefits, an order granting benefits is appropriate."
CONCLUSION AND DECISION
The Court has considered the evidence which supports, as well as the evidence which detracts from the decision made by the ALJ. After applying the balancing test noted in Gavin v. Heckler , 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is affected by an error of law which requires reversal. The final decision of the Commissioner is reversed and remanded for an award of benefits.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412 (d)(1)(B) (Equal Access to Justice Act). See also, McDannel v. Apfel , 78 F.Supp.2d 944 (S.D.Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406 B), and LR 54.2(b) . See also, Gisbrecht v. Barnhart , 535 U.S. 789, 122 S.Ct. 1817, 1821, 152 L.Ed.2d 996 (2002) ; Mitchell v. Barnhart , 376 F.Supp.2d 916 (S.D.Iowa July 15, 2005).
N.B. Counsel is reminded that LR 54.2 (b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
--------
IT IS SO ORDERED.