Martin v. Social Security Administration
MEMORANDUM OPINION AND ORDER reversing and remanding the case to the Commissioner. This is a "sentence four" remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan. Signed by Magistrate Judge Joe J. Volpe on 10/28/2014. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
MEMORANDUM OPINION AND ORDER
Plaintiff, Patti Martin, appeals the final decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying her claims for disability insurance benefits (“DIB”)
under Title II of the Social Security Act (the “Act”) and for supplemental security income (“SSI”)
benefits under Title XVI of the Act.
On October 28, 2014, the Court held oral argument at Plaintiff’s request. Mr. Greg Wallace,
Esq., appeared by telephone for Ms. Martin. Special Assistant United States Attorney Uma
McGeehan appeared by telephone for the Commissioner. The attorneys are commended for their
diligence in this matter. For reasons set out below, the decision of the Commissioner is REVERSED
On January 12, 2012, Ms. Martin protectively filed for DIB and SSI benefits due to tendinitis
in both elbows, carpal tunnel syndrome, swelling in the hands, feet, and legs, chest muscle strain,
hypertension, uterine fibroid tumors, and rectal bleeding. (Tr. 176) Ms. Martin’s claims were denied
initially and upon reconsideration. At Ms. Martin’s request, an Administrative Law Judge (“ALJ”)
held a hearing on May 28, 2013, where Ms. Martin appeared with her lawyer. At the hearing, the
ALJ heard testimony from Ms. Martin and a vocational expert (“VE”). (Tr. 26-45)
The ALJ issued a decision on July 3, 2013, finding that Ms. Martin was not disabled under
the Act. (Tr. 11-19) The Appeals Council denied Ms. Martin’s request for review, making the
ALJ’s decision the Commissioner’s final decision. (Tr. 1-4)
Ms. Martin, who was fifty-four years old at the time of the hearing, has a high school
education and past relevant work as a welder and certified nursing assistant. (Tr. 30-31, 42)
DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ found that Ms. Martin had not engaged in substantial gainful activity since
October 16, 2010, and she had the following severe impairments: osteoarthritis and obesity. (Tr. 13)
However, the ALJ found that Ms. Martin did not have an impairment or combination of impairments
meeting or equaling an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.2 (Tr. 15)
According to the ALJ, Ms. Martin has the residual functional capacity (“RFC”) to perform
medium, semi-skilled work. She can perform work where interpersonal contact is routine but
superficial, the complexity of the tasks is learned by experience, involves several variable, uses
judgment within limits, and the supervision required is little for routine and detailed for non-routine
tasks. She is limited to no frequent overhead reaching. (Tr. 15) The VE testified that Ms. Martin
could perform her past relevant work as a certified nursing assistant and other jobs available with
The ALJ followed the required sequential analysis to determine: (1) whether the claimant
was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment;
(3) if so, whether the impairment (or combination of impairments) met or equaled a listed
impairment; and (4) if not, whether the impairment (or combination of impairments) prevented the
claimant from performing past relevant work; and (5) if so, whether the impairment (or combination
of impairments) prevented the claimant from performing any other jobs available in significant
numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) and 404.1520(a)-(g).
420 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.
these limitations were tube assembler and color buffer. (Tr. 43) Accordingly, the ALJ determined
that Ms. Martin could perform her past work and a significant number of jobs existing in the national
economy, and found that she was not disabled.
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether there is
substantial evidence in the record as a whole to support the decision.3 Substantial evidence is “less
than a preponderance, but sufficient for reasonable minds to find it adequate to support the
In reviewing the record as a whole, the Court must consider both evidence that detracts from
the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be
reversed “simply because some evidence may support the opposite conclusion.”5
Ms. Martin’s Argument for Reversal
Ms. Martin asserts that the Commissioner’s decision should be reversed because it is not
supported by substantial evidence. Specifically, she contends that the ALJ (1) erred in the credibility
analysis, and (2) failed to compare her specific residual functional capacity with the demands of her
past work. (Doc. No. 11)
Residual Functional Capacity
Ms. Martin’s case is very similar to recent Eighth Circuit Court of Appeals decisions that
have found error with the ALJ not resolving the possible conflict between VE testimony and the jobs
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g).
Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
identified that Plaintiff could perform, despite her impairments. See Moore v. Colvin, No. 13-3774,
2014 WL 5293396 (8th Cir. Oct. 17, 2014); Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014.)
Here, the ALJ concluded Plaintiff was limited to jobs requiring no frequent overhead reaching. (Tr.
15, 42.) Yet, her past relevant work as nurse assistant indicates that frequent reaching is required creating a reversible conflict between Plaintiff’s RFC and the job the ALJ identified Plaintiff could
perform. (See Dictionary of Occupational Titles #355.674-014 and Selected Characteristics of
Occupations Defined (SCO).)
While the Commissioner argues that Martin’s case is distinguishable because her case was
primarily resolved at Step 4 of the evaluation, the serious conflict remains. And although he was not
required to utilize the services of a vocational expert at Step 4, the ALJ clearly relied on the evidence
from the expert when he concluded:
The claimant has testified that she has worked [as a certified nurse’s assistant] since
she stopped welding. The vocational expert testified that this work is considered past
relevant work. In comparing the claimant’s residual functional capacity with the
physical and mental demands of this work, the undersigned finds that the claimant
is able to perform it as generally performed. The vocational expert testified that the
claimant could perform the job of certified nurse’s assistant as generally performed
relying on the Dictionary of Occupational Titles in accordance with our regulations.
The evidence relied upon by the ALJ when concluding Plaintiff could perform her past
relevant work was the vocational expert testimony and the Dictionary of Occupational Titles. And
regardless of whether the case was resolved at Step 4 or 5, Moore and Kemp ultimately turn on
whether or not the ALJ’s decisions is supported by substantial evidence. Here, the ALJ’s decision
is not supported by substantial evidence because the ALJ’s evidence is faulty. The evidence fails
to resolve the conflict between Plaintiff’s inability to frequently reach overhead and how this
limitation would affect the ability to perform the job of certified nurse’s assistant - as generally
For these same reasons, the ALJ’s fallback Step 5 conclusions fail. The jobs identified at
Step 5 also potentially require overhead reaching as defined by the DOT and SCO. Without
resolving this conflict, just as was the exact case in Moore and Kemp, the vocational expert
testimony fails to constitute substantial evidence.
Ms. Martin argues that the ALJ’s credibility analysis is flawed. On remand, the ALJ should
address these concerns raised by Ms. Martin, especially the deference she has earned through a
strong work history.
A reasonable mind would not accept the evidence as adequate to support the ALJ’s decision
because the decision does not resolve the conflict between Plaintiff’s residual functional capacity
and requirements of her past work or other jobs in the national economy. Therefore, the Court
REVERSES the decision and REMANDS the case to the Commissioner for resolution of this
conflict in accordance with the Eighth Circuit decisions in Moore and Kemp.
This is a “Sentence Four” remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan
v. Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED this 28th day of October, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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