United States District Court, W.D. Oklahoma
HEATON CHIEF U.S. DISTRICT JUDGE.
Michael Wallace brought this action for judicial review of
the Social Security Administration's decision denying him
disability insurance benefits. The matter was referred to
U.S. Magistrate Judge Charles Goodwin for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3), and
Goodwin has submitted a Report and Recommendation
recommending that the Commissioner's decision be reversed
and the case remanded. The Commissioner has filed an
objection to the Report, which triggers de novo
review of the issues to which objection is made.
applied for disability benefits in 2013. He sought benefits
for the period from August 6, 2001, the alleged onset date of
his disability, through December 31, 2005, the last date on
which he met the insured status requirement under the Social
Security Act. The Commissioner denied the application and
plaintiff then requested a hearing before an Administrative
Law Judge (“ALJ”). Plaintiff testified at the
hearing, as did a vocational expert.
employed the customary five step sequential analysis. 20
C.F.R. § 416.920. He concluded at steps two and three
that, during the pertinent period, plaintiff had severe
impairments of dysfunction of major joints, including
osteoarthrosis and related disorders, but that they were not
severe enough to meet the listings for presumptive
disability. He then proceeded to make the step four
determination of residual functional capacity
(“RFC”), concluding that plaintiff had the
capacity to perform light work but subject to the further
limitations that “plaintiff should not lift below 18
inches from the floor, perform kneeling, squatting, crawling
or ladder climbing.” Administrative Record
(“Record”) at 14. The ALJ than concluded, at step
five, that there was a significant number of jobs in the
national economy that someone with plaintiff's background
and RFC could perform, and that he therefore did not qualify
as disabled during the pertinent time period.
sought review here. Among other things, he argued that the
ALJ erred by failing to include a one-hour walking limitation
in the RFC determination as suggested by the opinion of Dr.
Williams. The ALJ had noted Dr. Williams' opinion but did
not explain why he failed to include that particular
Magistrate Judge concluded the failure to address Dr.
Williams' suggested limitation was error, and that it was
not harmless. Accordingly, the Report recommended that the
Commissioner's decision be reversed and remanded for
further proceedings. The Commissioner has objected in part to
the Report, arguing that any error was harmless in the
concept of harmless error applies in social security
disability cases. Allen v. Barnhart, 357 F.3d 1140,
1145 (10th Cir. 2004). An ALJ's error may be viewed as
harmless “where, based on material the ALJ did at least
consider (just not properly), we could confidently say that
no reasonable administrative factfinder, following the
correct analysis, could have resolved the factual matter in
any other way.” Id. In making that
determination, a reviewing court must exercise common sense
but need not insist on technical perfection. Id.
it is clear that the ALJ was aware of Dr. Williams'
suggested limitation and mentioned it in his order, but did
not include in the order any discussion of why the particular
limitation was not adopted. Essentially, the Commissioner
argues the omission did not matter, and was harmless, because
the record clearly shows there was a significant number of
jobs available in the economy even if the RFC had included
the walking limitation.
addressed various hypothetical questions to the vocational
expert based on plaintiff's condition and history. One
hypothetical addressed an RFC for light work which did not
require plaintiff to lift below 18 inches from the floor or
kneel, squat, crawl or climb ladders. The vocational expert
identified the job of ticket seller as one meeting that
assumed RFC and testified there were 348, 000 such positions
in the national economy at the pertinent time. A different
hypothetical involved light work but was limited to an
individual who could stand or walk only one hour per day. As
to that question, the vocational expert again identified the
ticket seller job as one meeting the assumed RFC and further
testified that at least half of the available jobs identified
in the first hypothetical would still be available even with
the additional limiting factor. The result is that although
neither hypothetical, by itself, embraced all the limitations
arguably applicable (i.e. the RFC explicitly identified in
the Order plus Dr. Williams' walking limitation), the
evidence at the hearing did do so. There appears to be no
dispute, based on the VE's testimony, that even
with the additional limitation of walking there were
at least 174, 000 ticket seller jobs available in the
national economy. So the question becomes whether that number
of jobs is significant enough to warrant a conclusion of
harmless error here.
relevant test at step five in a disability case is whether a
significant number of jobs exist in the regional or national
economy. Raymond v. Astrue, 621 F.3d 1269, 1274 n. 2
(10th Cir. 2009). There is no bright line rule for
determining what constitutes a significant number.
Allen, 357 F.3d at 1145. However, in somewhat
similar circumstances to those involved here, the Tenth
Circuit concluded that 11, 000 regional and 152, 000 national
jobs qualified as significant in number and were a sufficient
basis for a conclusion of harmless error. Stokes v.
Astrue, 274 Fed.Appx. 675, 684 (10th Cir. 2008). The
evidence here indicated that the number of national jobs
available was higher than that.The court concludes that the
undisputed evidence before the ALJ established that
significant jobs were available in the economy even employing
a more limited RFC definition incorporating Dr. Williams'
additional limitation, and that a reasonable factfinder would
not conclude otherwise.
true, as the Report correctly observed, that no single
hypothetical posed to the VE by the ALJ fully embraced all
the limitations that are pertinent here. And the court is
mindful of the need to avoid making factual or other
determinations that should have been explicitly made, in the
first instance, by the ALJ. However, in the circumstances
existing here, where it is clear the ALJ was aware of and
considered Dr. Williams' opinion, the ALJ posed questions
and received testimony embracing that opinion and the proper
RFC determination, and the record plainly supports the
conclusion that significant jobs were available in the
economy under the even more ...