Simpson v. Social Security Administration

Filing 15

ORDER REMANDING TO THE COMMISSIONER. The ALJ's decision is not supported by substantial evidence. On remand, the ALJ is instructed to reevaluate Simpson's credibility and obtain a consultative evaluation regarding Simpson's exertional limitations. The ALJ is further instructed to fully consider Simpson's mental limitations in determining his RFC and to fully resolve any conflicts between VE testimony and the DOT. Signed by Magistrate Judge J. Thomas Ray on 7/22/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JERRY SIMPSON
v.

PLAINTIFF
No. 3:15-CV-00257-JTR

CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER REMANDING TO THE COMMISSIONER
Jerry Simpson (“Simpson”) applied for social security disability benefits,
alleging a disability onset date of July 6, 2012. (R. at 126). Simpson requested a
hearing before the administrative law judge (“ALJ”), and the ALJ denied benefits.
(R. at 11, 20). The Appeals Council declined review. (R. at 1). Simpson then
requested judicial review.
For the reasons discussed below, this Court reverses and remands the
Commissioner’s decision.
I.

The Commissioner’s Decision
The ALJ found Simpson to have the severe impairments of diabetic

neuropathy, morbid obesity, diabetes mellitus, anxiety, and cellulitis of the left
hand (postoperative). (R. at 13). The ALJ then found that Simpson had the residual
functional capacity (“RFC”) to perform light work with additional limitations. (R.
at 14). The RFC provided that: Simpson could not climb ladders or be around

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unprotected heights due to obesity; he could occasionally handle items with his left
upper extremity (the non-dominant hand) and could use his left hand as an assistive
device only; he was limited to work where interpersonal contact would be no more
than incidental to the work performed, and the complexity of the work was limited
to one or two step tasks that could be learned and performed by rote with few
variables and little judgment; he required simple, direct, and concrete supervision;
and he was limited to work that could be learned within 30 days. (R. at 14). After
hearing testimony from a vocational expert (“VE”), the ALJ found that Simpson
could return to his prior work as a molder press operator. (R. at 19). The ALJ also
found that Simpson could perform other jobs such as light line packer or marking
clerk. (R. at 20). Thus, the ALJ concluded that Simpson was not disabled.
II.

Discussion
Simpson maintains that the ALJ erred: (1) in his RFC assessment, which is

not supported by the record; (2) in failing to include impairments in his
hypothetical questions to the VE; and (3) in failing to require the VE to resolve an
apparent conflict between Simpson’s RFC and the physical demands of the
representative occupations.
This Court will uphold the Commissioner’s decision if it is not based on
legal error and is supported by substantial evidence on the record as a whole. Long
v. Chater, 108 F.3d 185, 187 (8th Cir. 1997). “Substantial evidence” is “less than a
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preponderance, but enough that a reasonable mind would find it adequate to
support the ALJ’s decision.” Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009).
A.

The ALJ’s RFC Determination

Simpson contends that he cannot stand and/or walk for six hours in an eighthour workday as required to perform at the light exertional level. He further argues
that the ALJ failed to include non-exertional limitations in determining his RFC
and that, in arriving at his RFC determination, the ALJ relied on Simpson’s
activities of daily living, which do not support his alleged capacity to perform light
work.
Simpson testified that he had pain in his feet. (R. at 34). He also testified that
he probably could not manage a job that required him to stand for thirty minutes at
a time. (R. at 42–43). He and his wife both reported that he loses his balance
easily, gets dizzy, and can walk around the block before needing to rest. (R. at
190–207). The Commissioner argues that Simpson did not complain of these
difficulties to his physicians.
The majority of the evidence supporting Simpson’s contention that he cannot
be on his feet for six to eight hours per day comes from Simpson and his wife’s
testimony and reports. Simpson reported leg pain to one doctor, but none of his
treating physicians opined about his exertional level. One treating physician stated
the opinion that Simpson was not disabled but stated in the same report that
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Simpson could not yet return to work. (R. at 466–67). Simpson’s physician
observed that he could walk without assistance, but that is the extent of the medical
findings concerning his ability to stand or walk. (R. at 467). The ALJ’s findings
rely most heavily on his evaluation of Simpson’s credibility.
“[T]he ALJ may disbelieve subjective complaints if there are inconsistencies
in the evidence as a whole.” Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005).
When determining the credibility of a claimant's subjective allegations of pain, the
ALJ must examine: (1) the claimant's daily activities; (2) the duration and intensity
of the pain; (3) the precipitating and aggravating factors; (4) dosage, effectiveness,
and side effects of medication; and (5) functional restrictions. Miller v. Sullivan,
953 F.2d 417, 420 (8th Cir. 1992) (citing Polaski v. Heckler, 739 F.2d 1320, 1322
(1984)). The ALJ may not discount subjective complaints simply because they lack
support in the medical record. Id. “When rejecting a claimant's complaints of pain,
the ALJ must make an express credibility determination, must detail reasons for
discrediting the testimony, must set forth the inconsistencies, and must discuss the
Polaski factors.” Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998). The Court
defers to the ALJ’s credibility determination if it is supported by good reasons and
substantial evidence. Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014).
However, “an ALJ may not circumvent the rule that objective evidence is not

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needed to support subjective complaints of pain under the guise of a credibility
finding.” Penn v. Sullivan, 896 F.2d 313, 316 (8th Cir. 1990).
The ALJ did not properly determine Simpson’s credibility. The ALJ stated
that Simpson’s daily activities “are certainly not indicative of an individual who is
completely unable to work.” (R. at 15). Simpson’s daily activities, which created
the alleged inconsistencies with his testimony, were: watching television; playing
with and walking two puppies; visiting with his mother; maintaining personal care;
taking out trash; riding in a car; shopping with his wife; counting change;
performing some household chores without help or encouragement; spending time
with others; finishing tasks; getting along with others; and following written and
spoken instructions.
The Eighth Circuit has held that light housework and other such activities
alone do not support a finding that a claimant can perform full time competitive
work. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996). The Commissioner
cites to Wagner v. Astrue, 499 F.3d 842 (8th Cir. 2007), to support the contention
that the ALJ properly discounted Simpson’s credibility. However, the activities of
daily living reported in Wagner were considerably different from those reported by
Simpson. For example, in Wagner, the claimant reported that:
[H]e “regularly” does the laundry, dishes, changes sheets, takes out
the trash, and does home repairs. He acknowledged at the hearing
before the ALJ that “[d]ay to day chores are not a real problem” for
him. . . . [H]e noted in the questionnaire that he (1) “almost daily”
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prepares meals at the home; (2) does the grocery shopping and other
household shopping without assistance; (3) goes to the bank and to
medical appointments without assistance; (4) drives two to three times
per week; (5) enjoys working on the computer, watching TV, and
reading a variety of magazines and newspapers; (6) visits friends at
their residences or at public meeting areas a couple of times per week;
and (7) gets involved socially on a weekly basis.
Id. at 852. These activities far exceed the more limited activities reported by
Simpson and his wife. Simpson’s activities of daily living do not support the RFC
for light work, and there is insufficient medical evidence to show that he is capable
of standing and/or walking for six to eight hours per day.
Simpson also maintains that the ALJ did not account for non-exertional
limits identified during a consultative psychological evaluation. The consultative
examiner noted that Simpson’s “memory functioning and reported physical
problems would interfere significantly with [his] ability to complete assigned tasks
without ongoing supervision.” (R. at 432). The ALJ summarized these findings,
but did not specifically assign weight to the consultative examination. (R. at 18).
The ALJ limited Simpson to unskilled work, but Simpson contends that this does
not sufficiently account for his memory difficulties.
While no treating physician reported memory difficulties and Simpson did
not originally claim memory problems, the ALJ was still required to consider the
medical findings of the consultative examiner, which are consistent with: (1)
Simpson’s hearing testimony that his wife kept up with his medications for him (R.
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at 39); and (2) his and his wife’s numerous reports, in the disability paperwork,
that Simpson had memory problems and needed his wife’s help in remembering to
take his medications (R. at 166, 173, 176, 178, 192, 195, 204). While none of
Simpson’s treating physicians reported any memory difficulties, they are not
mental health providers, and there is no evidence they ever considered or evaluated
his memory problems. The ALJ’s RFC does not make sufficient allowance for
Simpson’s memory difficulties, which are supported by the record.
Thus, the Court concludes that substantial evidence does not support the
ALJ’s RFC determinations that: (1) Simpson has the ability to stand and/or walk
for six to eight hours per day, and (2) Simpson’s memory issues, as identified and
described by the consultative examiner, did not rise to the level of a significant
limitation that should have been included in his RFC.
B.

The ALJ’s Hypotheticals to the Vocational Expert

Simpson contends that the hypothetical questions posed to the VE failed to
capture the consequences of his impairments. Because the ALJ’s RFC
determination was deficient, the hypotheticals are also deficient.
C.

Conflict Between the Vocational Expert Testimony and the DOT

Finally, Simpson argues that the ALJ should have addressed with the VE the
apparent conflict between his testimony and the Dictionary of Occupational Titles
(“DOT”).
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The VE testified that Simpson could work as: a molder press operator (DOT
No. 556.685-022); a packing-line worker (DOT No. 753.687-038); or a marking
clerk (DOT No. 209.587-034). Each of these positions requires at least frequent
reaching, handling, and fingering according to the Selected Characteristics of
Occupations Defined (“SCO”), a companion volume to the DOT.
The ALJ limited Simpson to using his left hand as an assistive device. The
VE stated that a worker could perform these jobs as long as the worker had full use
of the dominant extremity. (R. at 50–51). This statement conflicts with the physical
demands listed in the SCO.
When expert testimony conflicts with the DOT, the DOT controls. Jones v.
Astrue, 619 F.3d 963, 978 (8th Cir. 2010). The DOT can be rebutted with VE
testimony that shows that a particular job can be performed by the claimant. Id.
The DOT description for packing-line worker states that a worker “[o]pens or
closes buckles, snaps fasteners together, inserts laces in eyelets, and ties loops
(frogs) around buttons.” The description for molder press operator states that the
worker will clean a machine using hand tools. A marking clerk “[t]ies, glues, sews,
or staples price ticket[s]” onto various articles. The VE did not adequately explain
how such tasks can be performed without full use of both upper extremities. The
ALJ should have elicited further testimony from the VE to explain this

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inconsistency and how Simpson could perform such work, even though he was
only able to use his left hand as an assistive device.
III.

Conclusion
For the foregoing reasons, the Court finds that the ALJ’s decision is not

supported by substantial evidence. On remand, the ALJ is instructed to reevaluate
Simpson’s credibility and obtain a consultative evaluation regarding Simpson’s
exertional limitations. The ALJ is further instructed to fully consider Simpson’s
mental limitations in determining his RFC and to fully resolve any conflicts
between VE testimony and the DOT.
It is so ordered this 22nd day of July, 2016.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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