Brewer v. Social Security Administration
ORDER reversing and remanding the final decision of the Commissioner. This remand is a "sentence four" remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge Patricia S. Harris on 8/27/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 3:15CV00049 PSH
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
Bryce Brewer, in his appeal of the final decision of the Commissioner of the Social Security
Administration to deny his claim for Disability Insurance benefits (DIB), contends: (1) the
Administrative Law Judge (ALJ) erred by failing to find any impairment of his upper extremities;
(2) the ALJ erred by relying upon the opinions of nonexamining state agency physicians; (3) the
ALJ’s credibility analysis was flawed; and (4) the ALJ erred in relying upon the vocational expert,
who identified jobs beyond his ability to perform. The parties have ably summarized the medical
records and the testimony given at the administrative hearing conducted on September 11, 2013. (Tr.
25-50). The Court has carefully reviewed the record to determine whether there is substantial
evidence in the administrative record to support the Commissioner’s decision. 42 U.S.C. § 405(g).
Mr. Brewer, forty years old at the administrative hearing, testified that he was a high school
graduate with three years of college and that he held licenses as a real estate appraiser and a real
estate agent. The records showed no earnings after his alleged onset date of February 9, 20111, and
Mr. Brewer cited poor focus and concentration as the primary barrier to his ability to work. He
stated that he takes his medications as prescribed, and the medications are helpful and without side
effects. According to Mr. Brewer, he is able to tend to daily personal hygiene needs. He stated he
lives with his parents, and helps with chores such as taking out the trash and mowing the lawn, using
a riding mower. Mr. Brewer’s two sons, ages four and nine, live nearby, and Mr. Brewer’s daily
activities include driving the older son to school. He further described his activity level:
I’ll spend time with my boys. I’ve got two. . . And I like to take them fishing. I used
to really like to play golf quite a bit, but since my injuries, it’s not as easy as it was
to concentrate and play well. . .
I have many friends, but – I have cousins – you know, that we’ll do things together,
spend time together. Hunt, fish, play golf on occasion. . .
[m]y family doctor told me I could not work in the steel mills because of the dust .
(Tr. 38-39). He also stated that his heart problems cause him to “get tired pretty quick, especially
in the extreme heat, and I have to take breaks, slow down, sit down. . .” (Tr. 40).
Mr. Brewer’s attorney asked if his problems would prevent him from performing
maintenance work, including sweeping and emptying trash and cleaning an office building. Mr.
Brewer responded, “I don’t believe so.” (Tr. 41). Upon further questioning, Mr. Brewer testified
he would need to make lists so that he would remember what to do in such a job setting. Brewer’s
attorney inquired if he could perform work requiring him to use his arms and hands “four or five
hours out of the day, you’re gripping. You’re grasping things. You’re, you know, lifting and
Mr. Brewer’s medical problems stem from a traumatic episode on February 9, 2011. He was
admitted to the hospital with septic shock due to an abscess, and remained in the hospital for roughly
five weeks, during which he had cardiac arrest, acute renal failure and other serious complications.
(Tr. 260, 303-305).
carrying things. . . [d]o you have any difficulties using your arms and hands in that fashion?” (Tr.
42). Brewer replied, “No. I do not.” (Tr. 42). Mr. Brewer did allow that he could not manipulate
objects with his fingers as he did prior to February of 2011, but continued to maintain his hand
problems would not interfere with office maintenance or cleaning.
In his October 11, 2013, decision, the ALJ found Mr. Brewer to have the residual functional
capacity (“RFC”) to perform sedentary work with the following exceptions: avoid exposure to
extreme heat and to concentrated fumes, odors or gasses; no more than occasional changes to the
workplace setting; interpersonal contact limited to no more than incidental to the work performed;
complexity of 1 to 2-step tasks to be learned and performed by rote with few variables and little
judgment; and supervision to be simple, direct and concrete. As part of his analysis of Mr. Brewer’s
mental impairments, the ALJ found he had no more than mild restrictions in daily activities, no
limitations in social functioning, marked difficulties in concentration, persistence, or pace, and no
episodes of decompensation. The ALJ also addressed Mr. Brewer’s credibility, citing Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984), which provides the following guidance on issues of
The absence of an objective medical basis which supports the degree of severity of
subjective complaints alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to subjective complaints,
including the claimant's prior work record, and observations by third parties and
treating and examining physicians relating to such matters as:
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;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints
solely on the basis of personal observations. Subjective complaints may be
discounted if there are inconsistencies in the evidence as a whole.
739 F.2d at 1322 (emphasis in original).
Finding that Mr. Brewer could not perform his past relevant work, the ALJ relied upon the
testimony of the vocational expert to conclude that he was capable of other jobs, such as document
preparer, file clerk, and escort vehicle driver. As a result, the ALJ found Mr. Brewer was not
disabled. (Tr. 11-20). We find merit in the fourth argument of Mr. Brewer.
The ALJ erred in relying upon the vocational expert, who identified jobs beyond his
ability to perform: The ALJ posed the following hypothetical to the vocational expert:
[A]ssume an individual of the same age, education, same work experience as
what’s presented in Mr. Brewer’s case. Let me ask you to assume also that person
capable of performing sedentary exertional work...with standing and walking
capacity not more than two hours of an eight hour day. I’d like you to limit the
work in these additional regards, also. I’d like the work not to expose the worker
to extreme heat or concentrated fumes, odors, or gases. I’d like the work not to
require more than occasional changes to the work place and for the worker. I’d like
the work limited so that interpersonal contact would be incidental to the work
performed. A complexity of one to two-step tasks would be learned and
performed by rote, with few variables and little judgement. And the
supervision required would be simple, direct, and concrete for the worker. SVP 1
or 2 jobs that can be learned in 30 days. And this model would not support the past
work that you told us about at a skill light level.
(Tr. 46, emphasis added).
In response to the hypothetical question posed by the ALJ, the vocational expert testified Mr.
Brewer could perform the jobs of document preparer, file clerk, and escort vehicle driver. (Tr. 47).
Mr. Brewer contends these jobs require a reasoning level that is beyond his capability as found by
the ALJ. Essentially, Mr. Brewer suggests that the ALJ, in stating “[a] complexity of one to two-step
tasks would be learned and performed by rote,” placed a limit on jobs he could perform to those with
level 1 reasoning development.2 The jobs testified to by the vocational expert require level 2 or 3
reasoning development, levels Mr. Brewer claims are beyond his abilities. The jobs of document
preparer and file clerk are reasoning level 3 jobs, which is defined as the ability to “[a]pply
commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic
form. Deal with problems involving several concrete variables in or from standardized situations.”
Appendix C, DOT. The escort vehicle driver job is a reasoning level 2 job, which is defined as the
ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral
instructions. Deal with problems involving a few concrete variables in or from standardized
Defendant Colvin argues that level 2 reasoning skills are not inconsistent with the ALJ’s
hypothetical posed to the vocational expert. She also asserts that although the jobs cited by the
vocational expert require a reasoning level of 2 or 3, they have an SVP of 2, and therefore are
unskilled and simple.
The Court finds that there exists an inconsistency between the ALJ’s hypothetical description
to the vocational expert, and the vocational expert’s opinions that Mr. Brewer could perform jobs
requiring level 2 and 3 reasoning. The language used by the ALJ in the hypothetical called for jobs
with a “complexity of one to two-step tasks [that] would be learned and performed by rote, with few
Level 1 reasoning development is defined as the ability to “apply commonsense understanding
to carry out simple one- or two-step instructions. Deal with standardized situations with
occasional or no variables in or from these situations encountered on the job.” Appendix C,
variables and little judgement.” This description comports closely to the DOT description of level
1 reasoning development, which references “one- or two-step instructions” and “occasional or no
variables.” Because the vocational expert did not offer testimony regarding available level 1
reasoning jobs, the Court finds that the vocational expert’s testimony exceeded the limitations set
forth in the ALJ’s hypothetical. We therefore remand the case for further administrative action
consistent with this Order.
IT IS THEREFORE ORDERED that the final decision of the Commissioner is reversed and
remanded. This remand 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 27th day of August, 2015.
UNITED STATES MAGISTRATE JUDGE
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