Sparks v. Social Security Administration

Filing 13

MEMORANDUM AND ORDER reversing the Commissioner's decision and remanding this matter for further proceedings pursuant to "sentence four." Signed by Magistrate Judge Jerome T. Kearney on 08/22/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
TAMMY SPARKS
V.

PLAINTIFF
CASE NO. 1:13CV00035 JTK

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM AND ORDER
Plaintiff Tammy Sparks brings this action for review of a final decision of the
Commissioner of the Social Security Administration (Commissioner) denying her claim for
supplemental security income (SSI). Both parties have submitted appeals briefs, and the case
is ready for decision.1 The only issue before the Court is whether the Commissioner’s
decision is supported by substantial evidence. After reviewing the administrative record and
the arguments of the parties, the Court finds that the Commissioner’s decision is not
supported by substantial evidence.
Procedural History
Plaintiff protectively filed her application for SSI on December 7, 2010, alleging an
onset date of May 1, 2007. She claims disability due to degenerative disc disease and
migraines. Plaintiff’s claims were denied at the initial and reconsideration levels. A hearing
was held on May 8, 2012, before an Administrative Law Judge (ALJ). Following the
hearing, the ALJ issued an unfavorable decision denying Plaintiff’s claims, and the Appeals

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The parties have consented to the jurisdiction of a Magistrate Judge (DE #3).

Council subsequently denied the request for review. It is from this decision that Plaintiff
now brings her appeal.
Administrative Proceedings
Plaintiff was 33 years old at the time of the administrative hearing and had completed
the tenth grade. The ALJ applied the five-step sequential evaluation process2 to Plaintiff’s
claim. Plaintiff satisfied the first step because she was not employed and had not engaged
in substantial gainful activity since her application date. In fact, the ALJ found she had less
than $6,000 in lifetime earnings and no substantial gainful activity in any year. At step two,
the ALJ found that Plaintiff suffered from the severe impairments of degenerative joint
disease of the cervical spine and right shoulder, migraine headaches, a history of asthma, and
obesity. At the third step, the ALJ found Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments
in 20 C.F.R. § 404, Subpt. P, App. 1 (“listing”). Further, the ALJ found that Plaintiff’s
testimony and allegations regarding her limitations were not fully credible and that Plaintiff
retained the residual functional capacity (RFC) to perform limited light work3. At step four,

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The five part test asks whether the claimant: (1) is currently employed; (2)
severely impaired; (3) has an impairment or combination of impairments that meet or
approximate a listed impairment; (4) can perform past relevant work; and if not, (5) can
perform any other kind of work. Through step four of this analysis, the claimant has the
burden of showing that he is disabled. Only after the analysis reaches step five does the
burden shift to the Commissioner to show that there are other jobs in the economy that the
claimant can perform. Steed v. Astrue, 524 F.3d 872, 875 n. 3 (8th Cir. 2008).
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Specifically, the ALJ found Plaintiff could lift up to 20 pounds occasionally, 10
pounds frequently, and stand, walk, or sit up to 6 hours in an 8-hour workday. He also
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the ALJ found Plaintiff had no past past relevant work, but crediting the testimony of a
vocational expert (VE), he found at step five that Plaintiff could perform other work existing
in the national economy, including the jobs of cashier and retail marker. Accordingly, the
ALJ found Plaintiff was not under a disability.
Standard of Review
The Court’s limited function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal error.
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C. § 405(g). Substantial
evidence is “less than a preponderance, but enough that a reasonable mind might accept it
as adequate to support a decision.” Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998)
(citing Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)). The Commissioner’s
decision cannot be reversed merely because substantial evidence would have supported an
opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). However, “[t]he
substantial evidence test employed in reviewing administrative findings is more than a mere
search of the record for evidence supporting the [Commissioner’s] findings.” Gavin v.
Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). “‘Substantial evidence on the record as a
whole’ . . . requires a more scrutinizing analysis.” Id. (quoting Smith v. Heckler, 735 F.2d
312, 315 (8th Cir. 1984)). “In reviewing the administrative decision, ‘[t]he substantiality of

found she could climb, balance, stoop, kneel, crouch, crawl, and reach overhead
occasionally but should avoid concentrated heat, cold, humidity, noise, fumes, odors,
dusts, gases, or poorly ventilated areas. Additionally, the ALJ found Plaintiff should not
be around hazards such as heights, hazardous machinery, motor vehicles, or firearms.
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evidence must take into account whatever in the record fairly detracts from its weight.’”
Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).
Discussion
On appeal, Plaintiff argues the ALJ erred in his credibility determination and at step
five. Because the ALJ erred at step five, the Court orders remand.
1.

Credibility
Plaintiff argues first that the ALJ erred in the credibility determination. The Court

finds no error.
In considering the credibility of a claimant’s subjective complaints, an ALJ must
consider the claimant’s prior work record and observations by third parties and treating and
examining physicians relating to such matters as the following: (1) the claimant’s daily
activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5)
functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
However, the ALJ is not required to discuss each Polaski factor as long as he acknowledges
and considers the factors before discounting a claimant’s subjective complaints. Halverson
v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010) (quoting Moore v. Astrue, 572 F.3d 520, 524
(8th Cir. 2009)). While the ALJ may not disregard subjective pain allegations solely because
they are not fully supported by objective medical evidence, see Chamberlain v. Shalala, 47
F.3d 1489, 1494 (8th Cir. 1995), an ALJ is entitled to make a factual determination that a
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claimant’s subjective complaints are not credible in light of objective medical evidence to
the contrary. See 20 C.F.R. §§ 416.908, 416.929 (requiring that an individual’s subjective
complaints of pain alone shall not be conclusive evidence of disability, but must be
documented by medical evidence which reasonably could be expected to produce the pain
or symptoms alleged). Furthermore, the Court will generally defer to the ALJ’s decision to
discredit the claimant’s complaints if the ALJ gave good reasons for doing so. Halverson,
600 F.3d at 932.
Review of the ALJ’s decision shows that he considered the entire record. The Court
will not substitute its opinion for that of the ALJ, who is in a better position to assess
credibility. Here, the ALJ referred to the Polaski considerations and cited inconsistencies
in the record to support his findings. The Court has carefully reviewed the record and
determined the ALJ’s finding that Plaintiff’s subjective complaints were not fully credible
was adequately explained and supported by the record as a whole.
2.

Step Five
Plaintiff argues next that the ALJ erred at step five. Specifically, Plaintiff contends

that the ALJ failed to resolve an apparent conflict between evidence provided by the
vocational expert (VE) and information contained in the Dictionary of Occupational Titles
(DOT) and its companion publication, the Selected Characteristics of Occupations (SCO).
The Court agrees.
Before an ALJ can rely on VE testimony to support a disability, the ALJ must identify
and obtain a reasonable explanation for any conflict between evidence provided by the VE
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and information contained in the DOT. Jones v. Astrue, 619 F.3d 963, 977-78 (8th Cir.
2010). In the case at bar, the VE testified that Plaintiff could perform the work of a cashier
and retail marker. The parties agree that the DOT indicates that both of these jobs involve
frequent reaching. They also agree that the DOT defines reaching as the extension of the
hands and arms in any direction. Here, however, the ALJ limited Plaintiff to only occasional
overhead reaching.

Plaintiff asserts the ALJ failed to resolve the conflict, and the

Commissioner asserts no conflict exists because “even a job requiring frequent reaching does
not necessarily require more than occasional overhead reaching, if any at all.” Defendant
asserts that nothing in the DOT’s job descriptions for cashier and retail marker indicates that
these jobs require frequent overhead reaching, and in fact, logic dictates that the duties listed
in the DOT for these two jobs do not entail frequently working above the head. The Court
rejects this argument.
In Kemp ex rel. Kemp v. Colvin, 743 F.3d 630 (8th Cir. 2014), the Eighth Circuit
vacated a district court judgment and remanded the case to the Commissioner for further
proceedings when the ALJ failed to resolve the potential conflict between the VE’s testimony
that the claimant could perform a check-weigher job, which required constant reaching, and
the ALJ’s hypothetical, which described a claimant who could reach overhead only
occasionally. The Court held that the Commissioner did not meet her step-five burden of
establishing jobs existing in the national economy that claimant was capable of performing
because the record did not reflect whether the VE or the ALJ even recognized the possible
conflict, the VE did not explain the possible conflict, and the ALJ requested no such
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explanation. The current case involves a similar situation.
Although the ALJ determined, and the VE was aware, that Plaintiff was limited in her
ability to reach overhead, the VE did not offer, nor did the ALJ solicit, testimony to resolve
the possible conflict between the VE’s testimony and the DOT’s listings that required
frequent reaching. The ALJ’s decision must explain how any conflict between the VE’s
testimony and the DOT job description was resolved. See Kemp, 743 F.3d at 633; Hendrick
v. Astrue, Civil No. 12-3006, 2013 WL 216141 (W.D. Ark. Jan. 18, 2013); George v. Astrue,
No. 4:09CV1686 FRB, 2011 WL 976704 (E.D. Mo. March 17, 2011); Social Security Ruling
00-4p. Remand is necessary for further proceedings consistent with this opinion. Jones ex
rel. Morris v. Barnhart, 315 F.3d 974 (8th Cir. 2003).
Conclusion
Accordingly, the Court concludes that the ALJ’s decision is not supported by
substantial evidence. The Commissioner’s decision is reversed and this matter is remanded
for further proceedings pursuant to “sentence four,” within the meaning of 42 U.S.C. §
405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991).
SO ORDERED this 22nd day of August, 2014.

__________________________________
UNITED STATES MAGISTRATE JUDGE

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