Reinhart v. Social Security Administration

Filing 14

ORDER affirming the final determination of the Commissioner & dismissing this action with prejudice. Signed by Judge Susan Webber Wright on 3/12/2012. (jct)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JEFFREY L. REINHART
Plaintiff
VS.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

Defendant

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NO: 3:10CV00236 SWW

ORDER
Plaintiff Jeffrey L. Reinhart appeals the final decision of the Commissioner of the Social
Security Administration denying his claim for disability income benefits. The parties have
submitted briefs, and the case is ready for decision. After careful consideration, and for the
reasons that follow, the decision of the Administrative Law Judge (“ALJ”)1 is affirmed.
I.

Procedural History
Reinhart filed applications for disability benefits and supplemental security income on

September 26, 2007, alleging a disability date of November 19, 2006. The Social Security
Administration denied Reinhart’s claims initially and upon reconsideration, and he received an
administrative hearing before an ALJ on November 17, 2009. Reinhart, represented by counsel,
appeared and testified at the hearing. Also appearing and testifying was Tyra Watts, a vocational
expert (“VE”). In a decision dated January 29, 2010, the ALJ concluded that Reinhart was under
a disability, but a substance abuse disorder was a contributing factor material to the

1

The Honorable John H. Goree, Administrative Law Judge.

determination of his disability. Accordingly, the ALJ found that from the alleged onset date
through the date of his decision, Reinhart was not disabled under the Social Security Act.
Reinhart requested that the Appeals Council review the ALJ’s decision, and his request was
denied.
II.

ALJ’s Decision
At the time of the hearing, Reinhart was 42 years old with a high school education and

past relevant work as a painter, a plater, and a seal handling laborer. In making his decision, the
ALJ followed the required five-step sequence to determine: (1) whether Reinhart was engaged in
substantial gainful activity; (2) if not, whether Reinhart had a severe impairment; (3) if so,
whether the impairment, or combination of impairments, met or equaled a listed impairment; (4)
if not, whether the impairment, or combination of impairments, prevented Reinhart from
performing past relevant work; and (5) if so, whether the impairment, or combination of
impairments, prevented Reinhart from performing any other jobs available in significant
numbers in the national economy. See 20 C.F.R. § 416.920(a)-(g).

Additionally, because

substance abuse is a concern in Reinhart’s case, the ALJ went on to determine whether his
substance abuse disorder is a contributing factor material to the determination of disability. See
Brueggmann v. Barnhart, 348 F.3d 689, 694-95 (8th Cir. 2003).
At step one of the five-step evaluation, the ALJ determined that Reinhart had not
engaged in substantial gainful activity since November 19, 2006, the alleged onset date. At step
two, the ALJ concluded that Reinhart has the following severe impairments: gastritis; hiatal
hernia; grade III-IV esophagitis; gastroesophageal reflux disorder; Chron’s disease; gallbladder
problems; cervical degenerative joint disease; anxiety disorder, not otherwise specified;

2

depressive disorder, not otherwise specified; alcohol dependence/withdrawal; and alcoholinduced mood disorder. At step three, the ALJ determined that Plaintiff’s severe impairments
did not meet or medically equal the requirements of any listed impairments for presumptive
disability under the regulations.

Before reaching step four of the sequential evaluation, the

ALJ concluded that, considering all of Reinhart’s impairments, including his substance abuse
disorder, he has the residual functional capacity (“RFC”) to perform significantly less than a full
range of sedentary work and that due to pain and fatigue, he would not be reliable to complete
the required tasks of an eight-hours-a-day, forty-hours-per-week job.
At step four, the ALJ concluded that Reinhart is unable to perform any past relevant
work. At step five, the ALJ found that considering Reinhart’s age, education, work experience,
and residual functional capacity, based on all of his impairments including a substance abuse
disorder, there are no jobs that exist in significant numbers in the national economy that Reinhart
can perform.
After the ALJ reached the initial disability determination using the standard five-step
sequence, without deductions for the effects of substance abuse disorders, he considered whether
Reinhart’s substance abuse disorder is a contributing factor material to the determination of
disability–that is, whether Reinhart would still be disabled if he stopped substance use.
First, the ALJ determined that if Reinhart stopped the substance use, he would continue
to experience symptoms and/or limitations associated with gastritis, gastroesophageal reflux
disorder, Chron’s disease, gallbladder problems, cervical degenerative joint disease, anxiety
disorder, and depressive disorder. Further, the ALJ concluded that Reinhart’s combination of
medially determinable impairments would be severe.

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Second, the ALJ determined that if Reinhart stopped the substance use, he would not
have an impairment or combination of impairments that meet or equal listed impairment. Third,
the ALJ determined that if Reinhart stopped the substance use, he would have the RFC to
perform a wide range of light work. Fourth, the ALJ determined that if Reinhart stopped the
substance he would continue to be unable to perform past relevant work. Fifth, based on the
testimony of a VE, the ALJ determined that if Reinhart stopped the substance use, considering
his age, education, work experience and RFC, there would be a significant number of jobs in the
national economy that he could perform. Thus, the ALJ concluded that Reinhart was not
disabled.
III.

Analysis
The Court’s review is limited to determining whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In assessing the substantiality of the
evidence, the Court must consider evidence that detracts from the Commissioner's decision as
well as evidence that supports it; the Court may not, however, reverse the Commissioner's
decision merely because substantial evidence would have supported an opposite decision. See
Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004).
Reinhart raises the following arguments on appeal: (1) the ALJ erred in his determination
that alcohol was a contributing factor material to Reinhart’s disability; (2) the ALJ erred in his
determination regarding Reinhart’s RFC, absent the effects of alcohol abuse; (3) the ALJ erred in
following VE testimony that conflicted with the Dictionary of Occupational Titles (“DOT”); and

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(4) the ALJ erred in posing a hypothetical question that contained vague limitations and did not
include all of Reinhart’s limitations.
1. Effect of Alcohol Abuse
It is undisputed that Reinhart is an alcoholic. Congress has eliminated alcoholism or
drug addiction as a basis for obtaining social security benefits. See Pub. L. No. 104-121, 110
Stat. 852-56 (1996). “An individual shall not be considered disabled for purposes of this title if
alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material
to the Commissioner's determination that the individual is disabled.” 42 U.S.C. 423(d)(2)(C).
Reinhart has the burden to prove that alcoholism or drug addiction is not a contributing factor.
See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002). However, “[i]f the ALJ is unable to
determine whether substance use disorders are a contributing factor material to the claimant's
otherwise-acknowledged disability, the claimant's burden has been met and an award of benefits
must follow.” Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir.2003).
Reinhart argues that the ALJ "did not really consider" evidence that his impairments did
not improve when he abstained from alcohol for a period of time in 2007. According to
Reinhart, the evidence shows that the severity of his condition would continue even if he stopped
drinking.
Considering the record as a whole, the evidence does not support a finding that Reinhart
abstained from alcohol for a significant period of time or that his impairments did not improve
when he ceased alcohol consumption for a brief period in 2007.
On February 9, 2007, Reinhart was admitted to the Arkansas Methodist Hospital
complaining of nausea, vomiting, and neck pain. According to a written report prepared by Dr.

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Roland Hollis, when Reinhart entered the hospital, he had not consumed alcohol for 24 hours, he
was jaundiced and had markedly elevated liver enzymes, and he received treatment for alcohol
withdrawal. (Tr. 330) Dr. Hollis consulted Dr. Adel Hassan, a surgeon. (Tr. 326, 330) After
reviewing test results, Dr. Hassan concluded that Reinhart had gallstones and liver damage. Dr.
Hassan's report states: "[T]he patient needs to be treated medically and stop drinking before any
attempt is made to remove his gallbladder surgically. Discussed with the patient. He seemed to
understand he would need to stop drinking immediately and allow his liver to recover. Will take
several months because he would have to have enough recovery to make him a reasonable
surgical risk." (Tr. 326).
During Reinhart’s hospital stay, he received IV antibiotics, his condition gradually
improved, and he began tolerating food. (Tr. 330) A discharge record dated February 17, 2007
records that Reinhart was diagnosed with acute alcoholic hepatitis, gallstones, urinary tract
infection, low potassium, alcohol withdrawal, and chronic alcoholism, and he was sent home
with medications and instructions to cease drinking. (Tr. 330)
On February 20, 2009, Reinhart met a follow-up appointment with Dr. Hollis. Reinhart
reported to Dr. Hollis that he no longer consumed a six-pack of beer every day because it made
him sick and that he had not started any of the medications prescribed upon his discharge from
the hospital because he was waiting to receive a check. (Tr. 272) Dr. Hollis referred Reinhart to
Dr. Robert Alleman, a surgeon, for a second opinion regarding his gallbladder problems. (Tr.
272) On March 13, 2007, Reinhart told Dr. Alleman that he had not been drinking for five
weeks, and Dr. Alleman arranged for him to undergo an endoscopic retrograde
cholangiopancreatogram (“ERCP”) on March 29, 2007. Tr. 250). However, Reinhart failed to

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show up for the ERCP, and the record contains no evidence that Reinhart ever returned to Dr.
Alleman.
Reinhart argues that “during this period of alcohol abstention,” he continued to have
severe problems, which supports a finding that he would continue to have severe symptoms even
if he stopped using alcohol. However, the record shows that during Reinhart's hospital stay in
February 2007, when he was not drinking and received treatment for alcohol withdrawal, he
gradually improved.
Furthermore, the record is void of objective evidence that Reinhart continued to abstain
from alcohol after his discharge from the hospital, and the record supports a finding that
Reinhart's own reports regarding his alcohol consumption are not credible. During the
November 17, 2009 hearing, Reinhart testified that he lacked money to buy alcohol and he was
"lucky to get a 6-pack to a 12-pack in a week." (Tr. 51) According to Reinhart, it had been "a
good couple of years" since he had "been into alcohol like [he] used to be." (Tr. 51)

However,

on July 28, 2009, Reinhart was admitted to Twin Rivers Medical Center for alcohol abuse, and
he reported that he had been drinking a liter of vodka and a pint every day. (Tr. 583)
Additionally, in September 2008, Reinhart was hospitalized and reported drinking 19 to 24 beers
per day (Tr. 701), and in August 2008, he was hospitalized after drinking 12 beers and using two
lines of crystal methamphetamine (Tr. 600) Furthermore, the ALJ noted that in August 2008,
Reinhart told a counselor that he drank alcohol to cope, he did not want to stop drinking, and he
would probably stop drinking only when his liver finally failed. (Tr. 849)
Evidence shows that when Reinhart has no access to alcohol, his physical and mental
conditions improve. In 2001, after a week of medication and alcohol detoxification at the St.

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Vincent Health System for alcohol dependence, Reinhart integrated well and resolved suicidal
ideation. (Tr. 219) In February 2007, Plaintiff was hospitalized for six days, he gradually
improved, and he was discharged home with instructions not to drink. (Tr. 330) In August
2008, Plaintiff was admitted to the hospital after he overdosed on pain medication. (Tr. 593)
Upon admission, Reinhart was agitated with memory deficits and tremors due to alcohol
withdrawal, and he had a Global Assessment of Functioning (“GAF”)2 score of 25. (Tr. 594596) During his hospitalization, Reinhart became cognizant about the effects of
alcohol and his need to avoid the use of habit forming substances. (Tr. 596) Upon his discharge,
Reinhart did not exhibit any signs suggestive of withdrawal; he reported greatly improved mood,
sleep, and appetite; and his GAF score was 60. (Tr. 596)
On September 6, 2008, Reinhart was admitted to St. Bernard’s Medical Center for
alcohol dependence and withdrawal and reported that he stabbed himself in the leg
because he was shaking so badly from withdrawal tremors. (Tr. 701) During his
hospitalization, Reinhart responded to medication for anxiety, and physicians restarted
medication for Chron’s disease. (Tr. 702). Reinhart’s GAF improved from 28 at his admission
to 58 at discharge. (Tr. 701)

Finally, in July 2009, Reinhart was hospitalized for three days for

alcohol detoxification. (Tr. 583). He tolerated medication, interacted appropriately with peers
and staff, and was discharged as clinically stable. (Tr. 584-585). Additionally, Reinhart’s GAF

2

A GAF score is a method of “reporting the clinician’s judgment of the individual’s
overall level of functioning.” American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, at pp. 30-32 (4th ed.) (DSMIV). The scores range from 0 to 100,
and the lower the score, the lower the level of functioning. A GAF score of 41-50 indicates
serious symptoms, DSMIV, 34, and GAF score of 51-60 indicates moderate symptoms. See
DSMIV, 34.
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improved from 35 at intake to 50 at discharge. (Tr. 583)
The evidence demonstrates that Reinhart is an alcoholic, that his physical and mental
impairments improve when he abstains from alcohol and complies with medical treatment, that
he has failed to comply with prescribed treatment, and that alcohol abuse stands in the way of his
normal functioning. The Court finds that substantial evidence on the record as a whole supports
the ALJ’s conclusion that alcohol was a contributing factor material to the determination of
Reinhart’s disability.
2. RFC, Absent Effects of Alcohol Abuse
A claimant’s RFC, what a claimant can still do despite his limitations, is a function-byfunction assessment of the claimant’s ability to do work-related activities based on all of the
relevant evidence. See Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). Here, the ALJ
concluded that absent substance abuse, Reinhart would have the RFC to perform a wide range of
light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), including the ability to lift 20
pounds occasionally and 10 pounds frequently; sit six to eight hours in an eight-hour work day;
stand and walk for six to eight hours in an eight hour work day; and stand and walk one to two
hours without interruption. The ALJ further concluded that because of mild to moderate fatigue
and neck pain, Reinhart would only occasionally be able to climb, stoop, crouch, kneel, and
crawl, and he would never be able to balance, perform tasks involving overhead reaching, or be
around unprotected heights. The ALJ found that Reinhart would require an indoor work
environment with regular breaks and no temperature extremes. As for mental abilities, the ALJ
limited Reinhart to unskilled, rote activities, including the ability to understand, follow, and
remember concrete instructions and maintain superficial contact with supervisors, coworkers,

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and the public.
Reinhart contends that the ALJ failed to consider all of his limitations and restrictions in
determining his RFC. In support of his argument, Reinhart cites his own testimony, an attending
physician statement by Dr. Hollis, dated December 3, 2009 (Tr. 1040-1043), and portions of a
mental status and adaptive functioning report by Dr. Suzanne Gibbard, a consultive examiner
(Tr. 422-426).
The Court finds that the ALJ properly concluded that Reinhart’s testimony regarding the
intensity, persistence, and limiting effects of his symptoms are not credible to the extent that they
are inconsistent with the RFC assessment. When analyzing a claimant's subjective complaints
of pain and limitations, the ALJ must examine: (1) the claimant's daily activities, (2) the
duration, frequency and intensity of the pain, (3) precipitating and aggravating factors, (4) the
dosage, effectiveness and side effects of any medication, and (5) functional restrictions. See
Teague v. Astrue 638 F.3d 611, 615 (8th Cir. 2011)(citing Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir.1984)). The ALJ need not explicitly discuss each of the foregoing factors, and may
properly discount the claimant's testimony where it is inconsistent with the record. Id.
Reinhart testified that he suffers sever headaches and neck pain and that, when he sleeps
in his van, his neck is so stiff that he has to turn his shoulders in order to look behind him.
Reinhart also testified that due to gastrointestinal problems, he would need several unscheduled
bathroom breaks each day.
Regarding his neck problems, an MRI of Reinhart's cervical spine in June 2008 revealed
only a mild left lateral disc bulge at the C4-05 level and a left lateral disc budge at the C5-C6
level. Although the 2008 findings were more prominent than an earlier MRI in 2006, the ALJ

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noted that Reinhart was treated only with pain medication, and nothing in the record indicates
that he sought or received treatment from a specialist for his neck pain. Additionally, Reinhart’s
own testimony indicates that neck stiffness he was experiencing at the time of the hearing
resulted from sleeping in a van.
As for Reinhart’s testimony regarding the limiting effects of his gastrointestinal
symptoms, the ALJ properly found that his failure to follow prescribed treatment detracted from
the credibility of his testimony. See Guilliams v. Barnhar, 393 F.3d 798, 802 (8th Cir. 2005)
(“A failure to follow a recommended course of treatment also weighs against a claimant's
credibility.”). As noted in the ALJ’s decision, in August 2007, Reinhart saw Dr. Kenneth
Rogers, a gastroenterologist, and he underwent multiple tests showing that he had gastritis,
gastroesophageal reflux disease, hiatal hernia, esophagitis, and Chron’s disease. In a progress
report dated September 25, 2007, Dr. Rogers noted that Reinhart was taking Nexium and
Pentasa, had no indigestion, abdominal pain or dyspahgia, and had five to six bowel movements
a day, without any blood. Reinhart returned to Dr. Rodgers in October, 2008 with complaints of
diarrhea and up to eight bowel movements a day. Dr. Rodgers noted that Reinhart failed to
comply with his prescribed treatment and that he was drinking. Dr. Rogers assessed Reinhart as
a noncompliant, alcoholic patient. (Tr. 866-67). The evidence shows that Reinhart failed to
follow treatment directives and continued abusing alcohol against medical advice.
In his attending physician’s statement, Dr. Hollis wrote that due to chronic pain and
abdominal symptoms, Reinhart would be unable to maintain gainful employment. The ALJ
found that Dr. Hollis’s statement relied heavily on Reinhart’s subjective reports of his symptoms
and limitations and did not have substantial support from other evidence relating to the severity

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of Reinhart’s physical complaints, compliance with treatment, and substance abuse.
Dr. Hollis represented that objective tests support his opinion regarding Reinhart’s
limitations because an “endoscopy shows proof of chronic ulceration” and an “MRI spine shows
bulging disc.” (Tr. 1040) However, an MRI from June 2008 revealed only a mild left lateral
disc bulge at the C4-05 level and a left lateral disc budge at the C5-C6 level, no spinal stenosis,
and only mild narrowing of the neural foramen.
Dr. Hollis’s own treatment records conflict with his December 2009 statement regarding
Reinhart’s limitations. In November 2008, Reinhart presented to Dr. Hollis complaining of pain
in his right shoulder. (Tr. 897) Dr. Hollis performed a physical examination and recorded that
all bodily systems were within normal limits, and that the intensity of Reinhart’s shoulder pain
improved with medication. Similarly, in September 2009, Reinhart complained of neck pain,
and Dr. Hollis performed a physical examination. Dr. Hollis’s report shows that the neck pain
was markedly reduced with medication and that Reinhart had a full range of motion for all
extremities. (Tr. 542-543)
As noted by the ALJ, Dr. Hollis’s statement makes no reference to Reinhart’s failure to
comply with treatment prescribed by his doctors. See Wildman v. Astrue, 596 F.3d 959, 964 (8th
Cir. 2010)(quoting Owen v. Astrue, 551 F.3d 792, 800 (8th Cir.2008)(“‘A claimant's
noncompliance can constitute evidence that is inconsistent with a treating physician's medical
opinion and, therefore, can be considered in determining whether to give that opinion controlling
weight.’”). Nor does Dr. Hollis’s statement contain any reference to Reinhart’s alcohol abuse,
even though Dr. Hollis’s treatment notes record that Reinhart suffers from chronic alcoholism.
(Tr. 330)

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Citing the ALJ’s finding that Dr. Hollis’s statement fails to address compliance with
treatment and substance abuse, Reinhart contends that remand is required to obtain a medical
opinion regarding the effect of alcohol. However, the Court finds that other medical records,
including those prepared by Dr. Hollis, and the observations of other treating physicians, support
the ALJ’s assessment that Reinhart would have the RFC to perform a wide range of light work if
he stopped the substance abuse.
An ALJ is not required to adopt the opinion of a physician on the ultimate issue of a
claimant's ability to engage in substantial gainful employment. See Qualls v. Apfel, 158 F.3d
425, 428 (8th Cir.1998). “‘It is well established that an ALJ may grant less weight to a treating
physician's opinion when that opinion conflicts with other substantial medical evidence
contained within the record.’” Id. (quoting Prosch v. Apfel, 201 F.3d 1010, 1013–14 (8th
Cir.2000)). In this case, the Court finds that the ALJ properly concluded that Dr. Hollis’s
opinion was without substantial support from other evidence in the record, which rendered it less
persuasive.
Reinhart underwent a Mental Status and Evaluation of Adaptive Functioning with Dr.
Suzanne Gibbard, a licensed psychologist, on December 5, 2007. Reinhart argues that the ALJ
failed to consider Dr. Gibbard’s opinion that he “may have problems with the capacity to sustain
completion of tasks and complete them within a timely fashion.” (Tr. 426). However, Dr.
Gibbard’s report states that Reinhart would have the capacity to cope with mental cognitive work
demands, and her report indicates that her comment that Reinhart “may have problems”
completing tasks was based on Reinhart’s report that “he becomes distracted but is able to finish
things.” (Tr. 426) Dr. Gibbard noted that Reinhart also reported that his anxiety interfered with

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his concentration, but she noted, “No problems were noted during the evalution.” (Tr. 426)
Additionally, Dr. Gibbard’s report reveals that Reinhart was able to recall name, number and
color after a five minute interval, and he could concentrate adequately enough to count backward
from 20 to 1 and to subtract 3 from 100, until he reached 73. Dr. Gibbard also reported that
Reinhart told her that he was depressed, but he did not believe that he “was bad enough
mentally” to prevent him from working. (Tr. 422)
Dr. Gibbard assessed Reinhart’s Global Assessment of Functioning (“GAF”) score at 50,
and Reinhart asserts that the ALJ erred by failing to follow this assessment. However, other
evidence in the record shows that when Reinhart abstains from alcohol, his GAF score improves.
The Court finds that based on substantial evidence in the record as a whole, the ALJ was not
compelled to give controlling weight to Dr. Gibbard’s GAF assessment.
3. Vocational Expert Testimony
The ALJ asked the VE whether jobs existed in the national economy for an individual
with Reinhart’s age, education, work experience and RFC. In response, the VE testified that
such an individual would be able to perform the requirements of representative occupations such
as assembler of small products (DOT 739.687-030) or floor worker (DOT 739.687-098).
Additionally, the ALJ asked a hypothetical question limiting Plaintiff to sedentary work with a
sit/stand option. In response, the vocational expert testified that Plaintiff could perform the jobs
of a document preparer (DOT 249.587-018) and an order clerk (DOT 209.567-014).
Reinhart attacks the VE’s testimony on several grounds. First, he argues that the VE’s

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testimony conflicts with the DOT 3 because the position of a small products assembler carries a
reasoning level of 2, and based on limitations imposed by the ALJ, he should be limited to jobs
with a reasoning level of 1. However, a reasoning level of 2, which requires a worker to apply
commonsense understanding to carry out detailed but uninvolved written or oral instructions and
to deal with problems involving a few concrete variables in or from standardized situations, is
not inconsistent with Reinhart’s RFC, which limited him to unskilled and rote activities,
understanding, following, and remembering concrete instructions, and superficial contact with
others (e.g., meet, greet, make change, and give simple instructions and directions). See Renfrow
v. Astrue, 496 F.3d 918, 927 (8th Cir. 2007)(finding that job requiring level three reasoning was
not inconsistent with claimant’s ability to follow only simply, concrete instructions); Terry v.
Astrue, 580 F.3d 471, 478 (7th Cir.2009) (RFC for simple work not inconsistent with jobs listed
in DOT at reasoning level 3).

Furthermore, DOT definitions “are simply generic job

descriptions that offer the approximate maximum requirements for each position, rather than
their range.” Hillier v. Social Sec. Admin. 486 F.3d 359, 366 -367 (8th Cir. 2007)(quoting
Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000). “[N]ot all of the jobs in every category have
requirements identical to or as rigorous as those listed in the [DOT].” Id.
Second, Reinhart asserts that the job of floor worker requires constant work around
moving equipment including conveyor lines and tow motors, making it incompatible with the
ALJ’s RFC restriction that he would not be able to balance.

The DOT does not specifically

address whether the job of floor worker requires constant work around moving equipment, but it

3

The ALJ specifically instructed the VE to provide testimony consistent with the DOT
and to explain any deviations.
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does specify, “Balancing: Not Present - Activity or condition does not exist.” DOT,
739.687-098 FLOOR WORKER . The Court finds no inconsistency between the VE’s
testimony and the DOT.
Reinhart argues that the DOT’s description for the job of floor worker is outdated and
that the Occupational Information Network (“O-net”) classifies the job under the heading
“helpers-production workers,” which calls for “frequent keeping or regaining balance.” The
DOT appears on the list of publications from which an ALJ can take administrative notice of
reliable job information, and O-net does not appear on that list. See 20 C.F.R.
§ 404.1566(d)(1)-(5). Furthermore, the Court is precluded from considering anything outside
the certified transcript in determining whether the ALJ’s decision is supported by substantial
evidence. See Delrosa v. Sullivan, 922 F.2d 480, 483–84 (8th Cir.1991) (“The Social Security
Act generally precludes consideration on review of evidence outside the record before the
Secretary,” unless the new evidence is material and the claimant demonstrates good cause for not
submitting it at the administrative level) (internal citations omitted).
Third, Reinhart takes issue with the VE’s testimony that under the ALJ’s second
hypothetical, he would be able to perform the job of document preparer. Reinhart argues that
modern technology has rendered the job obsolete, and he reports that the O-net classifies the
position as “document management specialist,” which requires computer and typing skills. For
reasons previously stated, the Court finds no merit to Reinhart’s argument that the VE’s
testimony conflicts with O-net job classifications and descriptions.
Fourth, Reinhart asserts that the job of order clerk carries a reasoning level of 3, “which
conflicts with the hypothetical limitations which correspond to reasoning level 1 job situations.”

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Even assuming that a reasoning level of 3 is inconsistent with Reinhart’s ability to understand,
remember, and follow concrete instructions and have contact with others including meeting,
greeting, making change, and giving simple instructions and directions, the VE also testified
that, under the second hypothetical, Reinhart could perform the duties of a document preparer.
(Tr. 57) The VE further testified that there were 1,008 document preparer jobs in Arkansas and
250,000 in the national economy. See Clay v. Barnhart, 417 F.3d 922, 927, 931 (8th Cir.2005)
(disregarding jobs that claimant might not have ability to perform, vocational expert still
identified 2,000 other jobs statewide, 161,000 nationally, and 500 locally). The Court finds that
Reinhart’s argument does not warrant reversal.
4. Hypothetical Posed to Vocational Expert
Next, Reinhart argues that the hypothetical questions posed to the vocational expert
(“VE”) were flawed. In his hypothetical questions, the ALJ ruled out any job requiring the
ability to balance, stating: “No job requiring balance because of the issues of fatigue and neck
pain.” (Tr. 55) Reinhart asserts that the inability-to-balance limitation was too vague and that
such a limitation “would also restrict a claimant from being around moving machinery or other
hazards.” Plf.’s Brief at 16.

However, as previously noted, the DOT indicates that the job of

floor worker does not require balancing. Reinhart also argues that the ALJ’s hypothetical was
insufficient because he failed to include a limitation for the inability to turn his head due to neck
pain and stiffness. However, the only evidence regarding Reinhart’s stiff neck was his testimony
that, when he sleeps in his van, his neck is so stiff that he has to turn his shoulders in order to
look behind him. Even assuming that the ALJ credited Reinhart’s subjective complaint, a
temporary stiff neck does not amount to a limitation that was required to be included in the

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ALJ’s hypothetical question.
IV.

Conclusion
After careful review, and for the reasons stated, the Court finds sufficient evidence in the

record to support the Commissioner’s determination. IT IS THEREFORE ORDERED that the
final determination of the Commissioner is AFFIRMED. Consistent with the judgment entered
together with this order, this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED THIS 12TH DAY OF MARCH, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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