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Higgins v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

June 9, 2017

JOHN A. HIGGINS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff John A. Higgins was not disabled, and, thus, not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., or supplemental security income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. The single issue before the Court is “whether the [Administrative Law Judge] erred in finding Plaintiff not disabled, in that the ALJ found Plaintiff able to perform other work that would require employers to provide Americans With Disabilities Act (‘ADA') accommodation (a bariatric chair).”[2]ECF No. 12 at 2. Plaintiff asks the Court to reverse the Commissioner's decision and remand for an award of benefits. For the reasons stated below, the Court will affirm the Commissioner's decision.


         The Court adopts Plaintiff's recitation of the facts set forth in Plaintiff's Statement of Uncontroverted Material Facts (ECF No. 12-1), with which Defendant represented she agrees. This Statement provides a fair description of the record before the Court. Specific facts will be discussed as needed to address the parties' arguments.

         Plaintiff, who was born on September 22, 1973, protectively filed his application for disability insurance benefits on October 24, 2012, and his application for SSI on January 21, 2014. Plaintiff alleged that he became disabled on December 19, 2011, due to obesity, social anxiety, bipolar disorder, diabetes, high blood pressure, high cholesterol, back injury, and Meniere's disease. In forms associated with his application, Plaintiff listed his height as 5'10” and his weight as 410 lbs. On February 28, 2013, Plaintiff's application was denied at the initial administrative level, and on March 13, 2013, he requested a hearing before an ALJ.

         A hearing before an ALJ was held on September 23, 2014, at which Plaintiff, represented by counsel, testified. On October 8, 2014 and February 1, 2015, a vocational expert (“VE”) submitted answers to interrogatories posed by the ALJ. Tr. 249-58, 267-74. Specifically, the ALJ asked the VE by interrogatory to consider a hypothetical individual with Plaintiff's vocational factors and the residual functional capacity (“RFC”) to perform light work as defined by the Commissioner's regulations except that he could only stand and/or walk for two hours during an eight-hour work day; he was limited to work not requiring the ability to carry out complex assignments on a consistent, sustained basis; he could not perform work involving more than occasional interaction with coworkers or the public; and, while seated, he required a bariatric chair sufficient to withstand six hours per day of his 425-pound weight. At the request of Plaintiff's counsel, the ALJ next asked the VE by interrogatory whether the need for a bariatric chair represents an “accommodation, ” defined as “the acquisition of new equipment not normally found in the workplace, or the modification of equipment or devices normally found in the workplace, or more generally the modification or adjustment of a work environment to enable the individual to function in the job, ” and with a citation to the definitions section of the ADA. Tr. 262, 270.

         The VE responded to these interrogatories on February 1, 2015 and stated that a hypothetical individual with Plaintiff's vocational factors and the RFC described above, including the bariatric chair requirement, could perform jobs that existed in significant numbers locally and nationally, namely, the jobs of table worker, document preparer, and final assembler. Tr. 269, 274. In response to the second interrogatory, regarding the bariatric chair, the VE stated: “This would be an accommodation wherein the employer would need to acquire the bariatric chair. In my experience this is a common accommodation for an employer to make for an employee.” Tr. 274.

         By decision dated March 27, 2015, the ALJ determined that Plaintiff had the RFC described above. With regard to the bariatric chair, the ALJ found Plaintiff's need for such a chair to be “somewhat dubious” because “the record shows a longitudinal history of extreme obesity dating back to before [Plaintiff's] alleged onset date, without any significant change in weight since that time, yet [Plaintiff's] primary care provider did not prescribe the bariatric chair until almost three months after the hearing [on Plaintiff's application for benefits].” Tr. 13. Nevertheless, the ALJ “for [Plaintiff's] benefit, ” id., included such a limitation to Plaintiff's RFC. The ALJ then relied on the VE's interrogatory responses to find that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. Tr. 19, 25. Accordingly, the ALJ found that Plaintiff was not disabled under the Social Security Act.

         Plaintiff's request for review by the Appeals Council of the Social Security Administration was denied on May 10, 2016. Plaintiff has thus exhausted all administrative remedies, and the ALJ's decision stands as the final agency action now under review.


         Standard of Review and Statutory Framework

         In reviewing the denial of Social Security disability benefits, a court must review the entire administrative record to determine whether the ALJ's findings are supported by substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011). The court “may not reverse . . . merely because substantial evidence would support a contrary outcome. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Id. (citations omitted). A reviewing court “must consider evidence that both supports and detracts from the ALJ's decision. If, after review, [the court finds] it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the decision of the Commissioner.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016). Put another way, a court should “disturb the ALJ's decision only if it falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (citation omitted). A decision does not fall outside that zone simply because the reviewing court might have reached a different conclusion had it been the finder of fact in the first instance. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).

         To be entitled to benefits, a claimant must demonstrate an inability to engage in substantial gainful activity which exists in the national economy, by reason of a medically determinable impairment which has lasted or can be expected to last for not less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to determine disability. The Commissioner begins by deciding whether the claimant is engaged in substantial gainful activity. If not, the Commissioner decides whether the claimant has a severe impairment or combination of impairments. If the impairment or combination of impairments is severe and meets the duration requirement, the Commissioner determines at step three whether the claimant's impairment meets or is equal to one of the deemed-disabling impairments listed in the Commissioner's regulations. If not, the Commissioner asks at step four whether the claimant has the RFC to perform his past relevant work.

         If the claimant cannot perform his past relevant work, the burden of proof shifts at step five to the Commissioner to demonstrate that the claimant retains the RFC to perform other work that is available in the national economy and that is consistent with the claimant's vocational factors - age, education, and work experience. Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). When a claimant cannot perform the full range of work in a particular category of work (medium, light, and sedentary) listed in the regulations, the ALJ ...

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