Gibbs v. Social Security Administration

Filing 12

ORDER AFFIRMING THE COMMISSIONER. The final decision of the Commissioner is affirmed and Gibbs's complaint is dismissed, with prejudice. Signed by Magistrate Judge J. Thomas Ray on 8/2/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KEVIN GIBBS
v.

PLAINTIFF
No. 3:15-CV-00185-JTR

CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER AFFIRMING THE COMMISSIONER
Kevin Gibbs (“Gibbs”) applied for social security disability benefits with an
alleged disability onset date of January 1, 2005. (R. at 49). After conducting an
evidentiary hearing, the administrative law judge (“ALJ”) denied Gibbs’s
application for benefits, and the Appeals Council declined review. (R. at 1). Gibbs
has requested judicial review of the Commissioner’s final decision.1
For the reasons stated below, this Court affirms the ALJ’s decision.
I.

The Commissioner’s Decision
The ALJ found that Gibbs had the severe impairments of hypertension,

obesity, and seizure disorder. (R. at 11). The ALJ determined that Gibbs had the
residual functional capacity (“RFC”) to: lift and carry twenty pounds occasionally
and ten pounds frequently; stand and/or walk six hours in an eight-hour workday;
sit for six hours in an eight-hour workday, with a sit/stand option consisting of
sitting for two-hour intervals and standing for thirty to forty-five minute intervals;

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 The parties have consented to the jurisdiction of the United States Magistrate Judge. 

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and push and/or pull twenty pounds occasionally and ten pounds frequently; and
avoid all exposure to unprotected heights, climbing ladders/scaffolds, work around
dangerous equipment, or the operation of any vehicle. (R. at 11). While these
impairments and restrictions prevented Gibbs from returning to past relevant work,
the ALJ concluded that there were other jobs Gibbs could perform, including work
as a routine office clerk or a cashier. (R. at 15–16). Accordingly, the ALJ found
that Gibbs was not disabled. (R. at 16).
II.

Discussion

The Court’s function on review is to determine whether the Commissioner’s

decision is supported by substantial evidence on the record as a whole and whether
it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see
also 42 U.S.C. § 405(g). While “substantial evidence” is that which a reasonable
mind might accept as adequate to support a conclusion, “substantial evidence on
the record as a whole” requires a court to engage in a more scrutinizing analysis:
“[O]ur review is more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s
decision; we also take into account whatever in the record fairly
detracts from that decision.” Reversal is not warranted, however,
“merely because substantial evidence would have supported an
opposite decision.”
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).
Gibbs argues that the ALJ erred: (1) in determining his RFC because he
failed to consider all of his impairments; (2) in improperly relying on the medical
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vocational guidelines; (3) in asking the vocational expert (“VE”) an insufficient
hypothetical question; and (4) in failing to recognize that the Dictionary of
Occupational Titles (“DOT”) descriptions of the cashier and routine office clerk
positions do not align with the limitations contained in his RFC. The Court will
address each of Gibbs’s arguments separately.
First, Gibbs contends that the ALJ failed to consider his blackouts in
determining his RFC. The ALJ’s decision, however, includes discussion of Gibbs’s
history of blackouts or seizures. (R. at 13, 15). Additionally, the record does not
establish that Gibbs suffers from such blackouts with any regularity. Records from
February 5, 2013 show that Gibbs had not had a seizure for eighteen months. (R. at
311). Furthermore, he testified to only two blackouts, one in May 2013 and one in
2010. (R. at 29–30). Finally, the RFC restricts Gibbs from heights, climbing,
working with dangerous machinery, and operating a vehicle. These limitations
were based on Gibbs’s limited history of blackouts or seizures. Thus, contrary to
Gibbs’s assertion, the ALJ did not fail to consider all of Gibbs’s impairments.
Second, Gibbs argues that the ALJ erred in relying on medical vocational
guidelines to conclude that Gibbs is not disabled. This argument is directly refuted
by the record. The ALJ solicited VE testimony and relied on that testimony to
determine whether Gibbs was capable of working. (R. at 16).

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Third, Gibbs challenges the sufficiency of the hypothetical question to the
VE. “A hypothetical question must precisely describe a claimant's impairments so
that the vocational expert may accurately assess whether jobs exist for the
claimant.” Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996). The ALJ’s
hypothetical question to the VE included all of the limitations set forth in the RFC.
(R. at 37). As discussed above, the RFC sufficiently allowed for all of Gibbs’s
credible impairments. Accordingly, the ALJ’s hypothetical question to the VE was
sufficient.
Finally, Gibbs maintains that the ALJ erred in finding that he could perform
the jobs of cashier or routine office clerk, as the DOT does not mention a sit-stand
option for either job. When an apparent conflict exists between VE testimony and
the DOT, the VE must explain it. Jones v. Astrue, 619 F.3d 963, 978 (2010). In this
case, the VE identified specific positions, within the description of cashier, that
would provide a sit-stand option. (R. at 38). The ALJ should have explicitly asked
the VE whether his testimony was consistent with the DOT and then solicited an
explanation of the conflict, but the VE provided the necessary information for the
ALJ to conclude that Gibbs could perform the identified positions of cashier and
routine office clerk, as described by the VE. Accordingly, this technical error by
the ALJ did not result in any prejudice to Gibbs.

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III.

Conclusion

It is not the task of this Court to review the evidence and make an independent
decision. Neither is it to reverse the decision of the ALJ because there is evidence
in the record which contradicts his findings. The test is whether there is substantial
evidence in the record as a whole which supports the decision of the ALJ. Miller,
784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the
ALJ's decision, and the transcript of the hearing. The Court concludes that the
record as a whole contains ample evidence that "a reasonable mind might accept as
adequate to support [the] conclusion" of the ALJ in this case. Richardson v.
Perales, 402 U.S. 389, 401 (1971). The Court further concludes that the ALJ's
decision is not based on legal error.
IT IS THEREFORE ORDERED that the final decision of the Commissioner
is affirmed and Gibbs’s complaint is DISMISSED, WITH PREJUDICE.
DATED this 2nd day of August, 2016.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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