Prewitt v. Social Security Administration

Filing 13

ORDER remanding case to the Commissioner. The Court reverses the Commissioner's decision and remands this case for a proper hypothetical question. Signed by Magistrate Judge Beth Deere on 2/12/2013. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
SYLVESTER PREWITT

PLAINTIFF
No. 3:12-CV-00048-BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

ORDER REMANDING TO THE COMMISSIONER
Sylvester Prewitt seeks judicial review of the denial of his applications for
disability insurance benefits and supplemental security income. Mr. Prewitt
based his disability application on arthritis in his right knee and arm, and on
back and hand problems.1
In applying for disability benefits, Mr. Prewitt stated that he had not
worked full-time since 2001.2 He later reported full-time work as a parts
assembler for Hino Motors Manufacturing in 2007.3 The Commissioner’s
earnings worksheets reflected work in 2008.4 When the ALJ asked about work,

1

SSA record at p. 166.

2

Id. at p. 131.

3

Id. at pp. 179-80, 194 & 209.

4

Id. at p. 116, 125 &128.

Mr. Prewitt acknowledged working for Hino in 2008.5 Mr. Prewitt’s reasons for
not working ranged from “being laid off”6 to “because of his medical conditions.”
The Commissioner’s decision. After considering Mr. Prewitt’s
applications, the Commissioner’s ALJ determined that Mr. Prewitt had severe
impairments—degenerative joint disease of the lumbar spine and dysfunction of
the right hand— but that he had the residual functional capacity (“RFC”) to
perform a reduced range of light work.7
Because the vocational expert identified jobs a person with Mr. Prewitt’s
RFC could do,8 the ALJ concluded that Mr. Prewitt was not disabled under the
Social Security Act and denied the application.9 After the Appeals Council
denied Mr. Prewitt’s request for review,10 the ALJ’s decision became a final

5

Id. at p. 23.

6

Id. at pp. 150, 161, 166, 187 & 193.

7

Id. at p. 13 (limiting Mr. Prewitt to: (1) no kneeling or squatting, (2) occasional
grasping with the dominant upper extremity, and (3) avoidance of fingering with the
dominant upper extremity).
8

Id. at p. 35.

9

Id. at p. 18.

10

Id. at p. 1.
2

decision for judicial review.11 Mr. Prewitt filed this case to challenge the ALJ’s
decision.12
Credibility. Mr. Prewitt alleged that he could hardly use his hands; he
had little strength in his hands; and he experienced pain in his back, shoulders,
arms, and knees.13 He maintained his medical conditions prevented him from
prolonged standing, bending over, reaching over his head, lifting, and using his
right hand.14 The ALJ found these allegations to be less than fully credible.15 In
this appeal, Mr. Prewitt challenges the ALJ’s credibility assessment.16
An ALJ has a statutory duty “to assess the credibility of the claimant….”17
A reviewing court “will defer to an ALJ’s credibility finding as long as the ALJ
11

See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the Social
Security Act precludes general federal subject matter jurisdiction until administrative
remedies have been exhausted” and explaining that the Commissioner’s appeal
procedure permits claimants to appeal only final decisions).
12

Docket entry # 2.

13

SSA record at pp. 144, 150-51, 193 & 217.

14

Id. at pp. 25, 190, 193, 220 & 234.

15

Id. at p. 15 (stating, “the claimant’s statements concerning the intensity,
persistence and limiting effects of [his] symptoms are not credible to the extent they are
inconsistent with the…[RFC] assessment”).
16

Docket entry # 11, pp. 15-17.

17

Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).
3

explicitly discredits a claimant’s testimony and gives a good reason for doing
so.”18 To evaluate Mr. Prewitt’s credibility, the ALJ followed the required twostep process19 and considered the required factors.20 Thus, the question before
the court is whether substantial evidence21 supports the ALJ’s credibility
assessment.22
In discounting Mr. Prewitt’s credibility, the ALJ discussed: (1) the absence
of medical evidence substantiating Mr. Prewitt’s allegations; (2) the lack of
evidence showing Mr. Prewitt had sought no-cost or low-cost medical treatment,

18

Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (citation omitted).

19

See Policy Interpretation Ruling Titles II & XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements, SSR 96-7p (July 2, 1996).
20

In considering the credibility a claimant’s subjective complaints, an ALJ must
consider: (1) the claimant’s prior work record; (2) observations by third parties and
treating and examining physicians relating to such matters as: (a) the claimant’s daily
activities; (b) the duration, frequency and intensity of the pain; (c) precipitating and
aggravating factors; (d) dosage, effectiveness and side effects of medication; and (e)
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). See SSR 967p, Policy Interpretation Ruling Titles II & XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements.
21

See Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990) (“Substantial evidence
‘means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’”) (internal citation omitted).
22

See Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (stating that the court must
determine whether the ALJ’s decision is supported by substantial evidence in the record
as a whole).
4

(3) Mr. Prewitt’s testimony that he was doing okay mentally despite depression,
and (4) Mr. Prewitt’s activities of daily living. These reasons were good reasons
for discounting Mr. Prewitt’s credibility.
The ALJ’s reasons were supported by substantial evidence. For example,
there was little medical evidence to substantiate the alleged level of
severity—treatment notes for five emergency room visits between July 2005 and
April 2009,23 two agency-ordered consultative examinations,24 and agencyordered xrays of the right knee and lumbar spine.25
The xray of the right knee showed a normal knee, and thus contradicted
the allegation of limitation flowing from the right knee. The xray of the lumbar
spine showed “mild” arthritic changes with “small” bony outgrowths anteriorly

23

SSA record at p. 251 (on July 16, 2005 for contusion to right knee); p. 248 (on
May 9, 2007 for complaints about tingling in right fingers and trouble gripping items;
Mr. Prewitt left without being seen); p. 299 (on May 1, 2008 for numbness in both hands
and decreased hand strength); p. 291 (Nov. 4, 2008 after motor vehicle accident); p. 283
(on Apr. 9, 2009 one week after motor vehicle accident).
24

Id. at pp. 267 & 281.

25

Id. at p. 272.
5

at discs L2-L4.26 The adjectives “mild” and “small” contradicted Mr. Prewitt’s
allegation of disabling back impairment.
The most recent physical exam reported moderate limitations in
manipulating with the right hand, and moderate limitations in bending, lifting,
kneeling, crouching,27 but no problems with the shoulders, arms, knees, or grip
strength. The examination contradicted allegations of limitation in shoulders,
arms, knees, and hand strength. Although Mr. Prewitt alleged he could not raise
his arms over his head,28 the Commissioner’s field agent observed Mr. Prewitt
raise his arms over his head.29 A reasonable mind would accept the foregoing
evidence as adequate to show Mr. Prewitt overstated his limitations, and thus,
substantial evidence supported the ALJ’s credibility assessment.
Hypothetical question. Mr. Prewitt also complains about the ALJ’s
hypothetical question. He maintains that the question did not include all of his

26

Id. at p. 273.

27

Id. at p. 271.

28

Id. at p. 220.

29

Id. at p. 190.
6

impairments; specifically, he complains about the omission of back pain, the
inability to bend, and the need to lift with his non-dominant, left hand.30
“A hypothetical is sufficient if it sets forth impairments supported by
substantial evidence in the record and accepted as true by the ALJ.”31 In posing a
hypothetical question to a vocational expert, the ALJ may omit alleged
impairments properly rejected as untrue or unsubstantiated.32
The ALJ implicitly rejected Mr. Prewitt’s allegations of back pain and the
inability to bend or lift by omitting those limitations from the hypothetical
question.33 Because vocational expert testimony constitutes substantial evidence
only if the hypothetical question accounted for all of the claimant’s proven
impairments, the court must determine whether a reasonable mind would accept
the evidence as adequate to show that Mr. Prewitt was limited by back pain and

30

Docket entry # 11, pp. 17-18.

31

Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).

32

See Perkins v. Astrue, 648 F.3d 892, 901-02 (8th Cir. 2011).

33

See SSA record at p. 34 (asking about a person limited to light work, reduced by
no squatting or handling, occasional grasping with dominant hand, and no fingering or
fine manipulation with dominant hand).
7

the inability to bend or lift. If substantial evidence supported those allegations,
the ALJ erred by omitting the limitations from the hypothetical question.
The agency-ordered physical examinations were highly probative of Mr.
Prewitt’s limitations because the ALJ gave them “great weight.”34 The first
physical examination—in November 2007—reported mild limitations in bending
and lifting.35 The second physical examination—in February 2010—reported
moderate limitations in bending and lifting.36 Both reports diagnosed Mr.
Prewitt with chronic back pain. A reasonable mind would accept this evidence
as adequate to support limitations flowing from back pain, bending, and lifting.
Thus, the ALJ erred by omitting those limitations from the hypothetical question.
The next issue is whether the error was harmful.
To show harmful error, Mr. Prewitt “must provide some indication that the
ALJ would have decided differently if the error had not occurred.”37 Mr. Prewitt

34

Id. at p. 16 (giving “great weight” to opinions of state agency medical
consultants knowledgeable in the assessment of functionality under the disability
provisions of the Social Security Act).
35

Id. at p. 265.

36

Id. at p. 271.

37

Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012).
8

relied on the vocational expert’s answer to show harm, albeit for a different
reason.38 The vocational expert’s testimony is nevertheless probative of Mr.
Prewitt’s claim because the vocational expert identified “cafeteria attendant” as
available work.39
The job duties of a cafeteria attendant suggest the need to bend and lift
because a cafeteria attendant : “Carries trays from food counters to tables for
cafeteria patrons. Carries dirty dishes to kitchen. Wipes tables and seats with
dampened cloth.…”40 Depending on a claimant’s height and the height of food
counters, tables, and chairs, the required duties could require bending to lift trays
from food counters, remove dishes from tables, and wipe tables and chairs.
Logically, the required duties could also require lifting in order to pick up food
trays and dirty dishes for carrying.
The vocational expert did not consider limitations in bending or lifting
because those limitations were omitted from the hypothetical question. Had the

38

Docket entry # 11, p. 18 (arguing that a conflict existed between the job
requirements of a cafeteria attendant and avoidance of fingering with the dominant
upper extremity).
39

SSA record at p. 35.

40

Dictionary of Occupational Titles, code 377-010.
9

ALJ included those limitations, the vocational expert might have answered
differently. And if the vocational expert had answered differently, the ALJ might
have decided the case differently. As a result, the omissions were not harmless.
Conclusion and remand order. The ALJ erred by omitting some of Mr.
Prewitt’s impairments from the hypothetical question posed to the vocational
expert. The error was harmful because the vocational expert might have testified
differently had the question included all of Mr. Prewitt’s impairments. For this
reason, the court reverses the Commissioner’s decision and remands this case for
a proper hypothetical question.
On remand, the ALJ should pose a hypothetical question capturing the
concrete consequences of all of Mr. Prewitt’s impairments, to include back pain
and limitations in bending and lifting, and then re-question the vocational
expert.41 The ALJ may accomplish the remand order through written
interrogatories. After the vocational expert considers all of Mr. Prewitt’s
limitations and responds with available work, the ALJ should consider whether
work exists that Mr. Prewitt can do. In the light of the remand, the court need

41

Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010) (citations omitted).
10

not address Mr. Prewitt’s argument about conflicts with the Dictionary of
Occupational Titles.42
It is so ordered this 12th day of February, 2013.

____________________________________
UNITED STATES MAGISTRATE JUDGE

42

Docket entry # 12, pp. 9-10 (arguing that a cafeteria attendant’s job requires
frequent reaching, lifting, handling, and occasional fingering).
11