United States District Court, W.D. Missouri, Western Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
E. LARSEN United States Magistrate Judge.
Emily Hicks seeks review of the final decision of the
Commissioner of Social Security denying plaintiff's
application for disability benefits under Titles II and XVI
of the Social Security Act (“the Act”). Plaintiff
argues that the ALJ erred in (1) failing to consider third
party observations in determining credibility and residual
functional capacity, (2) failing to consider plaintiff's
obesity in assessing plaintiff's residual functional
capacity, (3) relying on plaintiff's exaggerated
appearance during the hearing in determining that her
testimony was not credible, and (4) finding at step five that
plaintiff could perform substantial gainful activity. I find
that the substantial evidence in the record as a whole
supports the ALJ's finding that plaintiff is not
disabled. Therefore, plaintiff's motion for summary
judgment will be denied and the decision of the Commissioner
will be affirmed.
23, 2009, plaintiff applied for disability benefits alleging
that she had been disabled since January 18, 2006.
Plaintiff's disability stems primarily from fibromyalgia
and migraine headaches. Plaintiff's application was
denied on November 10, 2009. On March 16, 2011, a hearing was
held before an Administrative Law Judge. At the conclusion of
that hearing, Administrative Law Judge Gorge Bock decided to
have a rheumatologist review plaintiff's records. A
second hearing was held on September 21, 2011, during which
Dr. Ann Winkler testified. On October 11, 2011, the ALJ found
that plaintiff was not under a “disability” as
defined in the Act. On December 3, 2012, the Appeals Council
denied plaintiff's request for review.
appealed to the Federal District Court, and her case was
remanded on March 10, 2014, for further consideration on the
ground that the ALJ failed to consider the statements of
plaintiff's parents. An administrative hearing was held
on December 11, 2014. On January 15, 2015, the ALJ again
found plaintiff not disabled.
STANDARD FOR JUDICIAL REVIEW
205(g) of the Act, 42 U.S.C. § 405(g), provides for
judicial review of a “final decision” of the
Commissioner. The standard for judicial review by the federal
district court is whether the decision of the Commissioner
was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51
(8th Cir. 2000); Johnson v. Chater, 108 F.3d 178,
179 (8th Cir. 1997); Andler v. Chater, 100 F.3d
1389, 1392 (8th Cir. 1996). The determination of whether the
Commissioner's decision is supported by substantial
evidence requires review of the entire record, considering
the evidence in support of and in opposition to the
Commissioner's decision. Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951); Thomas v.
Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “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.” Wilcutts v. Apfel,
143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v.
Securities & Exchange Commission, 450 U.S. 91, 99
evidence means “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. at 401; Jernigan v. Sullivan,
948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the
substantial evidence standard presupposes a zone of choice
within which the decision makers can go either way, without
interference by the courts. “[A]n administrative
decision is not subject to reversal merely because
substantial evidence would have supported an opposite
decision.” Id.; Clarke v. Bowen, 843
F.2d 271, 272-73 (8th Cir. 1988).
BURDEN OF PROOF AND SEQUENTIAL EVALUATION
individual claiming disability benefits has the burden of
proving he is unable to return to past relevant work by
reason of a medically-determinable physical or mental
impairment which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C.
§ 423(d)(1)(A). If the plaintiff establishes that he is
unable to return to past relevant work because of the
disability, the burden of persuasion shifts to the
Commissioner to establish that there is some other type of
substantial gainful activity in the national economy that the
plaintiff can perform. Nevland v. Apfel, 204 F.3d
853, 857 (8th Cir. 2000); Brock v. Apfel, 118
F.Supp.2d 974 (W.D. Mo. 2000).
Social Security Administration has promulgated detailed
regulations setting out a sequential evaluation process to
determine whether a claimant is disabled. These regulations
are codified at 20 C.F.R. §§ 404.1501, et
seq. The five-step sequential evaluation process used by
the Commissioner is outlined in 20 C.F.R. § 404.1520 and
is summarized as follows:
1. Is the claimant performing substantial gainful activity?
Yes = not disabled. No = go to next step.
2. Does the claimant have a severe impairment or a
combination of impairments which significantly limits his
ability to do basic work activities?
No = not disabled. Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any
Yes = disabled. No = not disabled.
record consists of the testimony of plaintiff, vocational
expert Stella Doering, and medical expert Dr. Ann Winkler, in
addition to documentary evidence admitted at the hearing.
record contains the following administrative reports:
record establishes that plaintiff earned the following
income, shown in both actual and indexed figures, from 1984
$ 1, 224.85
$ 2, 706.16
(Tr. At 228-229, 1321-1330).
Function Report dated August 13, 2009, plaintiff reported
that she normally gets up at 5:00 a.m.; has breakfast; goes
back to sleep; gets up to have lunch; either reads, plays on
the computer, or rides a stationary bike; takes an afternoon
nap; gets up at 6:00 p.m.; tries to “have contact with
the outside world and family;” and then goes to bed
around 10:00 p.m. (Tr. at 283). She does not need special
reminders to take care of personal needs, grooming, or take
medication (Tr. at 285). She prepares her own meals, usually
casseroles. She loves to cook, but she is only able to do it
about every two or three weeks. She is able to do laundry and
clean her bathroom. She cannot reach or bend to clean the
shower, she uses a spray. She has difficulty washing her hair
because of her shoulder pain. She has difficulty fastening
her bra and dressing because of her hands.
is able to drive (Tr. at 286). She tries to get out once a
week for a domestic violence support group. She shops in
stores for medication once every week or two for up to 10
minutes. She gets flustered using cash. She tries to do
reading and writing every day. She socializes on the
computer. She sometimes needs reminders to go places when she
takes a lot of pain medication because it makes her “a
impairments affect her ability to lift, squat, bend, stand,
reach, walk, sit, kneel, climb stairs, remember, complete
tasks, and concentrate (Tr. at 288). Her impairments do not
affect her ability to understand, follow instructions, use
her hands, or get along with others. Unless heavily
medicated, she can pay attention “forever.”
document, also dated August 13, 2009, plaintiff reported that
she can use the computer for a 2- to 3-hour session, but she
needs to shift, move, or get up every 5 to 15 minutes (Tr. at
310). Plaintiff stated that her costochonritis does not flare up too
often, but when it does it takes her breath away. She
described this condition as “manageable.” Her
migraines “ebb and flow.” Sometimes
over-the-counter medication alleviates her migraines, but
other times nothing will help and they go on for 4 days or
more. “One time I had one for 3 months.” She has
problems with insomnia. She also has restless leg syndrome
and sleep apnea but both are controlled (Tr. at 311).
undated Disability Report Appeal, plaintiff noted that her
conditions began worsening in October 2009 -- two months
after she completed the above summarized Function Report and
Missouri Supplemental Questionnaire (Tr. at 314). Beginning
in October 2009, she has been in excruciating pain and she
rarely gets out of bed. She sleeps 20 hours a day, and
sometimes her pain causes her to toss and turn. Her doctor
recently prescribed Lyrica which causes extreme dizziness. Her pain
level is now intolerable. “Sitting in the same position
for more than a minute or two causes pain.” She now
gets spontaneous pain surges.
reported that she saw Dr. Clare Reardon in September 2009 and
began taking prenatal vitamins “to get me ready to try
to have a child, if that's what I decide --and feel able
-- to do some day soon.” (Tr. at 317, 318). Plaintiff
needs help feeding her cat and taking care of him. She is no
longer able to open jars due to hand pain. Standing at the
stove is too difficult for her. Most of the time she misses
meals because she is asleep.
Activities Questionnaire - Third Party
August 31, 2010, plaintiff's father completed a Daily
Activities Questionnaire (Tr. at 337-340). Plaintiff sleeps
most of the time every day. Her mother helps her with hygiene
because plaintiff cannot bathe without great difficulty.
Plaintiff's parents prepare her meals. Plaintiff cannot
fix anything but cereal. Plaintiff can only shop by mail
order. She does no chores. She goes out of the home once or
twice a month and needs someone close by to steady her if
needed. She does very limited driving and does not use public
transportation. She is not able to play games. She does not
listen to the radio or watch television much -- she sleeps
most of the time. She has only read one book all year.
Plaintiff has not attended the domestic violence support
group since April 2010. She has no social activities. When
she takes pain medications, she has trouble concentrating and
remembering. She does not attempt projects.
Activities Questionnaire - Third Party
September 1, 2010, plaintiff's mother completed a daily
activities questionnaire (Tr. at 341-344). Plaintiff
typically spends her days in bed. She takes various
medications to help her sleep. She seldom bathes or washes
her hair; if she puts on a bra she needs help.
Plaintiff's mother prepares plaintiff's meals.
Plaintiff does no cooking, no shopping, no chores. She goes
out of the home once or twice a month and needs no assistance
when she does; she drives a car. Plaintiff seldom watches
television but seems to remember what she watches. She seldom
reads, but can remember what she reads. She has no social
functions. Sometimes plaintiff's medications cause her to
have problems concentrating or remembering. Plaintiff has
hardly been out of bed since moving in with her parents in
SUMMARY OF TESTIMONY
have been four administrative hearings in this case.
the March 16, 2011, hearing, plaintiff testified as follows:
time of this hearing, plaintiff was 42 years of age and is
currently 48 (Tr. at 45-46, 412). She was 5'8” tall
and weighed 250 pounds (Tr. at 49). Plaintiff receives $650
per month in spousal support (Tr. at 56). She has a masters
degree in Sociology (Tr. at 46). She works 15 minutes or less
per day (Tr. at 46). She does not get paid; her compensation
is a free apartment that would normally rent for $600 per
month (Tr. at 46). It is a senior-living tax-credit building
(Tr. at 46). She “makes rounds” one time each
evening between 10:00 p.m. and midnight (Tr. at 47). It is a
secure building and her responsibility is to make sure the
proper doors are locked and the proper lights are on (Tr. at
47). She had been doing this job for about the past 5 months
(Tr. at 47).
getting this “job, ” plaintiff had not worked
since January 2006 (Tr. at 49). She had to stop working due
to lower back pain (Tr. at 49). Plaintiff's last job was
a part-time pharmacy technician (Tr. at 49).
most of plaintiff's day, she sleeps (Tr. at 47, 49). She
is either sleeping or trying to sleep about 20 hours out of
each day -- whether she is sleeping or not, she is in bed
about 20 hours every day (Tr. at 49, 50). Part of the reason
is pain; part is because she has insomnia which is
exacerbated by her medications (Tr. at 50). Some of her
medications cause her to be drowsy and “they work at
cross purposes and sometimes [she's] awake all night and
sometimes [she's] asleep all day and asleep all night and
they do both.” (Tr. at 50). Savella for fibromyalgia
keeps her awake (Tr. at 50). She takes Tamazepam at night to
help her sleep, but it does not always work (Tr. at 50). Even
when she cannot sleep, she is trying to sleep (Tr. at 50).
has fibromyalgia which causes constant pain in her lower back
and hips (Tr. at 50). She also has knee pain and foot pain,
and she recently developed wrist and hand pain (Tr. at 50).
She has TMJ
which is exacerbated by fibromyalgia, and she has neck pain
(Tr. at 50-51). Plaintiff was diagnosed with fibromyalgia in
2001 or 2002 by Larry Rittle at the KU Pain Clinic (Tr. at
51). She now sees her primary care physician, Thomas Chapman,
and a neurologist, Sarah Hon, for fibromyalgia (Tr. at 51).
She has never seen a rheumatologist -- no one has ever
referred her to one (Tr. at 51). “[U]ntil three months
ago I understood that I was being treated by physicians who
knew what they were doing and I still believe that they know
what they're doing. I'm on the most current
medication that the high-powered medication that treats
fibromyalgia. I've been to pain clinics. I've --
I'm doing what fibromyalgia patients do. I just have a
really severe case.” (Tr. at 51). Plaintiff is not
taking narcotic pain medications (Tr. at 51-52).
saw a neuropsychologist who told her she was having trouble
taking in information, which is why she is having trouble
with remembering -- the information is “not there to
forget” (Tr. at 52). She is missing a lot of things
because she is not able to pay attention (Tr. at 52).
began experiencing nausea and vomiting a few months before
the hearing (Tr. at 48). She had been having a lot of tests
done -- colonoscopies, EEGs, x-rays, MRIs and CT scans (Tr.
at 48). Plaintiff suffers from nausea and vomiting daily (Tr.
at 52-53). She vomits once a day, but she feels nauseated
most of the day (Tr. at 53). Sometimes just moving makes her
nausea worse (Tr. at 53). That is another reason why she
spends so much time lying down (Tr. at 53).
takes 17 pills a day (Tr. at 57). She has been taking almost
all of them for the past five years (Tr. at 57). She takes
(about 9 pills every 24 days) (Tr. at 57).
is able to drive, but does so infrequently (Tr. at 47). She
does her own shopping sometimes (Tr. at 47). She goes to the
doctor and to therapy (Tr. at 47-48). Plaintiff lives alone,
but her parents help her do chores, cook, clean, and do
laundry (Tr. at 53). Plaintiff only showers about once a
week, sometimes less (Tr. at 54). It is difficult for her to
stand long enough to shower (Tr. at 54). She can stand for
about 10 minutes (Tr. at 54). She fidgets a lot when she sits
for extended periods due to her hips and back (Tr. at 54).
She cannot sit more than 10 minutes at a time (Tr. at 54). It
takes her about 10 or 15 minutes to walk the four floors of
the apartment building each evening, and then she has to sit
in the office and do a report (Tr. at 54). She rides the
elevator up to the fourth floor, and then she walks the rest
of the way including down the stairs (Tr. at 55). Plaintiff
can carry a gallon of milk but nothing heavier (Tr. at 55).
asked to identify her worst problem, plaintiff said it was
her inability to get out of bed every day and function
normally (Tr. at 55). Her pain, confusion, and memory
problems all cause that (Tr. at 55).
conclusion of this hearing, the ALJ indicated he would have a
rheumatologist review plaintiff's records, and then he
would set another hearing.
the July 25, 2011, hearing, Ann Winkler, M.D., Ph.D., a
rheumatologist, was to testify as a medical expert, but she
had not been provided with all of plaintiff's medical
records (Tr. at 62-63).
her last testimony plaintiff had been to the hospital four
times -- three emergency room visits and one over-night stay
which resulted from one of the emergency room visits (Tr. at
69, 70). She was having muscle spasms in her chest, shortness
of breath, and increased heart rate (Tr. at 69). North Kansas
City Hospital performed a full cardiac workup and said her
heart was OK -- they thought the problem was musculoskeletal
(Tr. at 69). She saw her doctor the day before the hearing
and learned that it was a costochondritis flare, which is
inflammation of the cartilage in her ribs and sternum (Tr. at
69-70). Plaintiff went to the emergency room on June 21 or 22
after she fell in her apartment and injured her leg and ankle
(Tr. at 70). They put her in an air cast and told her to use
a walker, which she did for five days (Tr. at 70). She went
to the emergency room a week and a half ago for her right
hand -- it was swollen and she was in a lot of pain (Tr. at
70-71). She was told it was probably some kind of deep tissue
bruise (Tr. at 71). Plaintiff has recovered from her fall,
but she continues to have trouble grabbing something or
opening bottles of water (Tr. at 71). She also has trouble
typing (Tr. at 71). The trouble with her hand has actually
been going on for almost a year -- she has wrist splints that
are supposed to help with that but they don't (Tr. at
was still working as the night manager of the senior
apartment building (Tr. at 72). Her job is to be on call in
the evenings and on weekends, and once each evening she walks
the building to check the lights and doors (Tr. at 72-73). It
takes her about 20 minutes to do that (Tr. at 73). She was
also receiving food stamps and was on Medicaid (Tr. at 72).
worked off and on as a pharmacy technician for several years
(Tr. at 73). She was on her feet most of the day (Tr. at 73).
She worked as a middle school math teacher, and was also on
her feet all day performing that job (Tr. at 73). Up to 2001
she was a deputy juvenile officer and domestic relations
specialist for Jackson County (Tr. at 74). A domestic
relations specialist manages the divorce education
curriculum, and she was a conflict resolution manager -- a
mediation specialist (Tr. at 74). She worked as a custody
evaluator in Kansas for five or six months, going into homes
to assess situations, check on children's progress in
school, and make recommendations to the court (Tr. at 74-75).
Winkler is a rheumatologist. She testified that
plaintiff's diagnosis of fibromyalgia is accurate;
however, she noted that “on several occasions, she also
was tender all over, which usually suggests that there are
significant psychological issues that are impacting someone
in terms of their pain perception.” (Tr. at 77).
plaintiff's fibromyalgia and other physical impairments,
plaintiff should be capable of performing at least light-duty
work -- lifting and carrying 20 pounds occasionally and 10
pounds frequently, standing or walking 6 hours per day, and
sitting without limitation (Tr. at 78). She should be able to
climb stairs occasionally but could never climb ladders,
ropes or scaffolds (Tr. at 78). She should frequently be able
to balance (Tr. at 78). She should occasionally be able to
kneel, crouch, stoop, or bend (Tr. at 78). She has no
manipulative limitations and no visual or communicative
limitations (Tr. at 78). She should avoid concentrated
exposure to cold, wetness, humidity, dust, fumes, odors, and
gases, and should avoid unprotected heights (Tr. at 78). The
evidence established that she improved with physical therapy
but was not compliant (Tr. at 78). Until her psychological
problems are under better control, she will likely be
impacted in terms of her ability to function on a regular
basis (Tr. at 78). “[S]he has had what seems like
pretty severe psychological issues, [which] probably are
attacking her perception of her limits and her pain.”
(Tr. At 78).
time of this hearing, plaintiff was 46 years of age (Tr. at
1196). Plaintiff was no longer working as the night manager
of the apartment building (Tr. at 1197). She worked there for
one year, from October of 2010, to October 2011, and received
a free apartment in lieu of a paycheck (Tr. at 1197).
is unable to work due to pain and, more recently, cognitive
issues (Tr. at 1198). She has pain primarily in her back,
hips, knees and feet (Tr. at 1199). She has difficulty
remembering things; she has a lot of trouble doing things
that she has done for years (Tr. at 1199).
can stand in one place, if she is also moving, maybe up to 15
minutes (Tr. at 1199). She is afraid of falling; steadiness
is an issue (Tr. at 1199). She can sit for 15 minutes at a
time, but she does a lot of fidgeting (Tr. at 1199).
Plaintiff can walk through a grocery store, if leaning on a
cart, for about 30 minutes (Tr. at 1200). Her parents help
her a lot with grocery shopping and laundry (Tr. at 1200).
Often she is in so much pain that she doesn't leave her
house, or she is so fuzzy-headed that there is no way she can
drive (Tr. at 1200). Plaintiff can pick up her cat, who
weighs 15 pounds (Tr. at 1200). She can cradle him and walk
around with him for about 3 or 4 minutes (Tr. at 1200). If
she had to lift something more than 3 or 4 times per hour,
she would be limited to 5 pounds (Tr. at 1200-1201).
Fibromyalgia causes muscle fatigue -- even when she holds her
cat for 3 or 4 minutes, it feels like she has been doing arm
exercises for 2 hours (Tr. at 1201).
had carpal tunnel release surgery on both hands in the summer
of 2012 which alleviated some of the tingling and other
issues (Tr. at 1201). But she was told her muscles are dead
so she will never have the strength back (Tr. at 1201). She
used to play the piano and the clarinet, but she cannot do
those things anymore (Tr. at 1201). She is capable of using a
keyboard, but not for more than 5 or 10 minutes at a time
(Tr. at 1201).
continues to have migraines (Tr. at 1201). She started BOTOX
treatment for migraines the last day of June 2014 (Tr. at
1202). She was eligible for that because her migraines were
considered chronic -- more than 16 a month (Tr. at 1202).
Plaintiff was having closer to 25 or 30 migraines per month
(Tr. at 1202). She has only had 2 BOTOX treatments so far
(Tr. at 1202). She continues to have auras every day (Tr. at
1202). She treats her migraines with sleep -- she has been
taking Sumatriptan for 10 or 15 years, and she also takes
Tizanidine, a muscle relaxer (Tr. at 1202). She will take
Zofran with those medications and lie down for an hour or two
(Tr. at 1203). Imitrex causes nausea (Tr. at 1202).
plaintiff was diagnosed with gastroparesis -- her stomach
does not empty like it should (Tr. at 1203). That caused the
chronic nausea, vomiting and diarrhea (Tr. at 1203).
Plaintiff took a medication that was not approved in the
United States -- her doctor recommended it and told her how
to get it (Tr. at 1203). She took it for a year and a half,
but it was cost-prohibitive so she stopped (Tr. at 1203). She
tried several other medications, Erythromycin (antibiotic)
and Reglan (treats gastroesophageal reflux disease
(“GERD”)), but those did not work (Tr. at 1203).
Plaintiff's symptoms caused her to use the restroom
frequently (Tr. at 1203). Recently she only has diarrhea
issues once every couple of weeks -- now she has constipation
mostly (Tr. at 1203). Vomiting is no longer an issue (Tr. at
1204). She had lap band surgery in February 2012 which helped
with some of those issues but caused new problems (Tr. at
continues to have difficulty sleeping (Tr. at 1204). She
feels fuzzy-headed and muddled, and she has difficulty with
even simple tasks (Tr. at 1204). She gave up driving three
years ago because she was so sleep-deprived that she was
going to the grocery store without being aware that she had
gone (Tr. at 1204). Her parents have provided transportation
to doctor appointments and the grocery store -- the only two
places plaintiff goes (Tr. at 1204-1205). A year ago a sleep
doctor put her on Modafinil which is to keep her awake and
focused during the day (Tr. at 1205). Although that
medication was working well for her, a month earlier it was
suspected that she may be narcoleptic and she is scheduled
for testing in January (Tr. at 1205). Modafinil helped her
not be asleep -- “I'm still groggy, I”m still
sleepy, but I'm not asleep, which is what I think I
probably was before. I mean I think that I was, was just not
-- I couldn't function because I was so sleepy. I
wasn't aware of what I was doing. The Modafinil improved
that dramatically in that if I think I'm going to go to
the grocery store, and I have somebody to go to the grocery
store with, then I can actually get there and get some things
purchased and get home. Prior to that, I may have come home
with things I didn't use.” (Tr. at 1205-1206).
Plaintiff takes naps every day for 1 to 3 hours (Tr. at
gets too warm, plaintiff's asthma causes her to cough
(Tr. at 1206). Cold, damp weather is difficult for her
because of the fibromyalgia (Tr. at 1206). Any change in
temperature causes a migraine (Tr. at 1206).
can do household chores and take care of her home, but her
parents help her (Tr. at 1207). She does dishes once a week
(Tr. at 1207).
Imitrex (Sumatriptan) for migraines causes nausea (Tr. at
1207). Most of the medications she takes except Provigil
cause drowsiness (Tr. at 1207). She sees a doctor on average
once a week (Tr. at 1208). Plaintiff has trouble finding
doctors that treat Medicaid patients in Clay County where she
lives (Tr. at 1208-1209). Plaintiff lost her spousal support
in May 2013 which has caused money problems with medications
and treatments (Tr. at 1209).
expert Stella Doering testified at the request of the
Administrative Law Judge. Plaintiff's past work consists
of child welfare case worker, SVP 7, light; community and
family support officer, SVP 8, sedentary; middle school
teacher, SVP 7, light; pharmacy technician, SVP 3, light (Tr.
first hypothetical involved a person who could lift and carry
20 pounds occasionally and 10 pounds frequently; stand and
walk a total of 6 hours per day; sit for 6 to 8 hours per
day; cannot work under extremes of temperature; cannot work
under conditions where there are concentrated airborne
irritants; cannot work under conditions where there is
excessive wetness and humidity; cannot work above shoulder
level; cannot limb ladders, ropes or scaffolds; cannot crawl,
work at unprotected heights, or forcefully grasp or twist;
can perform ordinary manipulation with both hands without
limitation; is limited to repetitive work which is simple and
unskilled, no higher than an SVP of 2 (Tr. at 1211). The
vocational expert testified that such a person could not
perform any of plaintiff's past relevant work (Tr. at
1211). Such a person could work as a router, DOT 222.587-038,
light, SVP 2, with 1, 000 jobs in Missouri and 42, 000 in the
country; a collator operator, DOT 208.685-010, light, SVP 2,
with 800 in Missouri and 52, 000 in the country; or folding
machine operator, DOT 208.685-014, light, SVP 2, with 1, 100
in Missouri and 43, 000 in the country (Tr. at 1211).
second hypothetical was the same as the first except the
person would be unfocused and off task 10 to 15 percent of
the time (Tr. at 1212). The vocational expert responded,
“Well, the Department of Labor considers an 85 percent
productivity rate to be normative, and 10 to 15 percent is
within that. So, while it might reduce the numbers slightly,
it would not preclude full time, competitive work.”
(Tr. at 1212). If a person were off task 20 percent of the
time, she could not work (Tr. at 1212).
third hypothetical was the same as the first except the
person, due to debilitating pain, would need to take breaks
15 minutes out of every hour (Tr. At 1212). Such a person
could not work (Tr. at 1212).
person were to miss work 3 or more times a month, the person
could not work (Tr. at 1213). If the person in the first
hypothetical needed to shift positions from sitting to
standing every 15 minutes, the person could still perform
sedentary jobs (Tr. at 1213). If the person would need to
leave the work station every 5 or 10 minutes such that it
interfered with productivity, it would become problematic
(Tr. at 1213).
SUMMARY OF ...