NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0788n.06 No. 11-6199 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT REBECCA MOEL L ER, Plaintiff-Appellant,

v. COMMI SSI ONER OF SOCI AL SECURI TY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF KE NTUCKY

BEF ORE: SUTTON and GRI FF I N, Circuit J udg es; DOWD, District J udg e. *

PER CURI AM. Rebec ca Moeller appea ls the district court’s judgme nt aff irming the denial of her applications for

disability insurance benef

its and supplemental sec urity income bene fits. I n 2005, Moeller filed a

p p li c a ti o n s f o r d is a b il it y in suranc e benef

its and supplemental secur ity income benef

its, alleg ing t h at she was disabled due to a back condition, chronic obstructive pulmonary disease, emphy sema, bronchia l asthma, shortness of brea th, a n d h ig h b lo od pressure . The Social Security Administration de nied the applications and Moeller’ s reque st f or re consideration. Moeller subsequently

filed a w ritten reque st for a hear ing. Following a hear ing, an administrative law judge (“A L J ”) deter

mined that Moeller’ s residual functional capa city included the ability to sit for six hours a day , stand for two hour s a day , and walk for two hours a day

. Ba sed in pa rt on that finding and the testimony of a vocational expert, the AL J denied Moeller’ s applications, concluding

The Honora

ble David D. Dow d, J r., United States District Judge f or the Norther

n District * of Ohio, sitting by

desig nation.No. 11-6199

Moeller v . Comm’r of Soc. Se c. that she was capa

ble of perf

orming both sedenta

ry and light jobs that exis ted in signific ant numbers in the national ec onomy . The Appe als Council declined to re view Moeller ’s ca se. Moeller soug ht revie w in the district co u rt

. The court conclude d that there was not substantial evidence in the rec ord to support the AL J ’s finding that Moeller could sit for six hours

a day

. The court found the err or to be harm l es s , h o weve r, and denied Moeller relief beca use, assuming a sitti ng restric tion that was consistent with the evidenc e in the rec ord, Moeller would be capa ble of pe rfor

ming lig ht jobs that ex isted in significa nt numbers in the national ec onomy . On appea l, Moe ller arg ues that the AL J ’s finding conce rning her a bility to sit for six hours a day was not supported by

substantial evidence and that the e rrone ous finding w as not harmless. “Our revie w of the AL J ’s decision is limit ed to whether the AL J applied the corr ect leg al standards and whether the finding s of the AL J are supported by substantial evidenc e.” Blakley v. Comm’r of Soc. Sec. , 581 F.3d 3 9 9, 405 (6th Cir. 2009). “The substantial-evidenc e standard is met if a

rea sonable mind might acc ept the rele vant evidenc e as adequate to support a conclusion.” Id. at 406 (interna l quotation marks omitted). “We g ive de novo revie w to the district court’s conclusions on

eac h issue.” Id. T h er e i s not substantial evidenc e in the rec ord to support the AL J ’s finding conce rnin g Moeller’ s ability to sit for six hours a day

. Dr. Martin Fr itz hand, who perf ormed a consultative examination of Moeller, deter mined that she was limit ed to a mild amount of sit t i n g, standing , ambulating , pushing, pulling, and lifting. The AL J expli citly rec og nized the limit ations set forth in Dr. Fr itz hand’s o p in io n , g a v e the opinion “sig nificant probative weig ht,” and conclude d that Moeller was li mited to two hours of standing and two hours of walking eac h day

. The AL J further found, howeve r, that “[a]bsent any restric tions on the claimant’s ability to sit, the undersig ned finds she is
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Moeller v . Comm’r of Soc. Se c. able to sit for six hours a day .” The AL J failed to either set forth a rea son for discounting the sitti ng limit ation rec ommended by Dr. Fr itz hand or identify other evidenc e in the rec ord that demonstrated Moeller could sit for six hours a day

. T h us, the AL J err ed in deter mining Moeller’ s residual functional c apac ity

. I n addition, despite the g overnme nt’s arg uments to the contrar y , the AL J ’s er

ror c annot be considere d harmless. I n deter mining whether there wer e a signific ant number of jobs in the national economy that Moeller could perf orm, the AL J asked a vocational expert to assume that Moeller could sit for six hours a day and stand and walk for two hours a day eac h

. T h e vocational expert identified two sedenta

ry jobs that Moeller could perf orm and one light job that allowed alterna ting betwee n sitti ng and standing

. Be cause there is not substantial evidenc e in the rec ord to support the AL J ’s fi n ding that Moeller could sit for six hours a day , the sedenta ry jobs should not have been considere d. See S.S.R

. 96-9P, 1996 WL 374185, at *3; Connors v. C onn. Gen. Li fe Ins. C o. , 272 F.3d 127, 136 n.5 (2d Cir. 2001). Fur ther, g iven Moeller’ s restric tions on standing and walking and the AL J ’s failure to include an appropr iate sitti ng restric tion during his questioning of the vocational expert, the AL J could not proper ly rely on the expert’s conclusion that Moeller could perf orm light work. See S.S.R

. 83-10, 1983 WL 31251, at *5-6; 20 C.F.R. §§ 404.1567(b), 416.967(b). Remand is there fore nece ssary for a proper deter mination of Moeller’ s residual fu n ct ional capa city and additional finding s conce rning whether ther e are a signific ant number of jobs in the national economy that Moeller c ould perfor m. Acc ording ly , we vacat e the district court’s judgme nt and rema nd the case for further administrative proc eeding s consistent with this opi nion.

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