Mandera v. Social Security Administration
ORDER finding that the ALJ's decision is not supported by substantial evidence. The ALJ failed to resolve the apparent conflict between the VE's testimony and the DOT with respect to the limitation to occasional overhead reaching. The decision is hereby reversed and the case is remanded with instructions for further review. Signed by Magistrate Judge Jerome T. Kearney on 1/3/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 3:15-CV-00379 JTK
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY
Plaintiff, James Mandera, applied for disability benefits on August 5, 2012, alleging a
disability onset date of November 8, 2011. (Tr. at 14).
After conducting a hearing, the
Administrative Law Judge (“ALJ”) denied his application. (Tr. at 24). The Appeals Council denied
his request for review. (Tr. at 1). The ALJ’s decision now stands as the final decision of the
Commissioner, and Mandera has requested judicial review.
For the reasons stated below, the Court1 reverses the ALJ's decision and remands for further
II. The Commissioner’s Decision:
The ALJ found that Mandera had not engaged in substantial gainful activity since the onset
date of November 8, 2011. (Tr. at 16). The ALJ found at Step Two that Mandera had the following
severe impairments: right shoulder internal derangement post repair, status-post right shoulder
arthroscopy, bipolar disorder, and anxiety disorder. Id. At Step Three, the ALJ determined that
Mandera’s impairments did not meet or equal a listed impairment. Id. Before proceeding to Step
The parties have consented in writing to the jurisdiction of a United States Magistrate
Four, the ALJ determined that Mandera had the residual functional capacity (“RFC”) to perform
light work with the following restrictions: 1) only occasional stooping, crouching, crawling, and
kneeling; 2) only occasional overhead reaching bilaterally; 3) work where interpersonal contact is
limited to little interaction, such as answering simple questions and responding appropriately to
supervisors and co-workers; 4) interaction with the public is infrequent and not considered to be an
essential job duty; 5) complexity of tasks can be learned by demonstration or repetition within 30
days, with few variables and little judgment; and 6) supervision required is simple, direct, and
concrete. (Tr. at 18). Next, the ALJ found that Mandera is not capable of performing past relevant
work. (Tr. at 22). At Step Five, the ALJ relied on the testimony of a Vocational Expert ("VE") to
find that, based on Mandera's age, education, work experience and RFC, jobs existed in significant
numbers in the national economy that he could perform at the light level, specifically, small products
assembler and machine feeder. (Tr. at 23). Based on that Step Five determination, the ALJ held
that Mandera was not disabled. Id.
A. Standard of Review
The Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). “Substantial evidence”
in this context means less than a preponderance but more than a scintilla. Slusser v. Astrue, 557 F.3d
923, 925 (8th Cir. 2009). In other words, it is “enough that a reasonable mind would find it adequate
to support the ALJ’s decision.” Id. (citation omitted). The Court must consider not only evidence
that supports the Commissioner’s decision, but also evidence that supports a contrary outcome. The
Court cannot reverse the decision, however, “merely because substantial evidence exists for the
opposite decision.” Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (quoting Johnson v. Chater,
87 F.3d 1015, 1017 (8th Cir. 1996)).
B. Mandera’s Arguments on Appeal
Mandera argues that substantial evidence does not support the ALJ’s decision to deny
benefits. He contends that: 1) the ALJ failed to resolve in his written decision a possible conflict
between the VE’s testimony and the DOT; and 2) the RFC assessment failed to fully incorporate
Mandera’s mental impairments. For the following reasons, the Court finds that the ALJ’s decision
is not supported by substantial evidence.
Mandera injured his right shoulder on the job at Utility Trailer in early 2011 and sought
treatment consistently thereafter. (Tr. 333-36). He underwent nine physical therapy treatments for
shoulder pain in April and May 2011. (Tr. at 350, 363-74). He treated with Lortab for shoulder pain
after an April 28, 2011 trip to the ER. (Tr. at 297-301). An MRI performed on May 9, 2011 showed
possible intrasubstance tear. (Tr. at 351).
On June 14, 2011, Mandera began seeing Dr. Rob Schechter, M.D., an orthopedist, for
evaluation of his shoulder injury. (Tr. at 333-336). Mandera reported that he had continued to work
at his full duty job in spite of pain, and that he asked for modifications when necessary; however,
his supervisor was not sympathetic to his pain. (Tr. at 333). Dr. Schechter found shoulder pain and
limited ROM which was exacerbated by activity. He diagnosed Mandera with pain in shoulder joint,
rotator cuff syndrome, calcifying tendinitis in the shoulder, and bicipital tenosynovitis. (Tr. at 335).
He gave Mandera a steroid injection, and limited him to light duty work. (Tr. at 336).
On June 15, 2011, Mandera saw Dr. Jackie White, M.D., his PCP, for headache and
vomiting, which he linked to the steroid injection. (Tr. at 393). She prescribed Phenergan. Id.
On June 28, 2011, Mandera had a follow-up appointment with Dr. Schecter. He reported that
treatment was not working: he was no better after the previous steroid injection, physical therapy,
and pain medication. (Tr. at 329-332). Dr. Schechter noted the poor response to treatment and
suggested shoulder surgery.
On June 29, 2011, Dr. Schechter performed
arthroscopic surgery with tendon release, debridement, and subacromial decompression. (Tr. 342349).
Follow-up x-rays of the right shoulder were normal, with no acute displaced fracture or
dislocation. (Tr. at 321).
On July 7, 2011, Mandera saw Dr. Schechter and seemed to be doing fine. (Tr. at 386). He
ordered physical therapy and strength training at eight weeks out. Id. Mandera underwent physical
therapy from July 12, 2011 through September 7, 2011. During the therapy, he complained of pain
and decreased ROM. (Tr. at 303-320).
On August 11, 2011, Mandera returned to Dr. Schechter earlier than expected, because he
had been put back on full duty work in spite of the light restriction, which included no use of his
right arm. (Tr. at 387-389). He was having radiating pain and heard popping sounds in his shoulder
as a result or the full duty work. (Tr. at 387). Dr. Schechter said that he should not have returned
to full duty work, but Mandera said when he voiced concerns about this to employer he was sent
home from work. (Tr. at 388). Dr. Schechter noted that the employer was seriously complicating
Mandera’s recovery, and that if Mandera could not work within the restrictions at his job, he needed
to be off work for six weeks. Id.
On September 8, 2011, Mandera saw Dr. Schechter and reported that he was “doing terrible,”
with pain worse than before physical therapy, even with less motion. (Tr. at 390-391). Dr.
Schechter noted palpable popping sensations in his shoulder. Id. Dr. Schechter told Mandera that
he could do nothing further short of a second surgery, and that Mandera should see a shoulder
specialist. Dr. Schechter prescribed more pain medication. (Tr. at 390).
On October 18, 2011, Mandera followed Dr. Schechter’s advice and saw Dr. Charles Pearce,
M.D., at Arkansas Specialty Orthopedics. (Tr. at 421-423). Dr. Pearce noted limited ROM and pain
in the right shoulder, and he diagnosed right shoulder pain with ongoing labral pathology. (Tr. at
421). He restricted Mandera to left arm only duty, ordered an MRI arthrogram, and prescribed
Mandera returned on November 29, 2011. The MRI arthrogram showed no significant soft
tissue pathology. (Tr. at 424) Dr. Pearce continued the restriction to left arm only duty and ordered
a functional capacity evaluation. Id.
On December 28, 2011, Mandera was seen by Nathan Haralson, a certified disability analyst,
for a functional capacity evaluation. (Tr. at 402-420). The evaluation revealed that Mandera can
occasionally lift 60 pounds with his left arm, can lift up to 15 pounds with his right, can perform
intermediate reaching frequently, and cannot perform overhead reaching or reaching with more than
5 pounds. (Tr. at 403). He had limited ROM in the shoulder and complained of pain during the 4hour test. (TR. at 420).
On January 5, 2012, Dr. Pearce indicated that Mandera had reached maximum medical
improvement and assigned a 6% permanent partial impairment rating to the right upper extremity
and a 4% impairment rating to the whole person. (Tr. at 426). Dr. Pearce returned Mandera to
medium work. Id.
At the hearing on December 18, 2013, Mandera testified to shoulder pain, and said that he
tried to help his wife out around the house but was limited due to his shoulder impairment. (Tr. at
36-38). He said he could no longer hunt or fish because he cannot lift his right arm up “hardly at
all.” (Tr. at 45). He said he could lift no more than 5 pounds. (Tr. at 38). He was not taking pain
medication at the time. (Tr. at 37).
The first argument Mandera makes hinges on the limitation by the ALJ to only occasional
overhead reaching bilaterally in the hypothetical posed to the VE at the hearing. When asked if
there were jobs in the national economy that a person of Mandera’s age, education, work experience,
and residual functional capacity could perform, the VE named the jobs of small products assembler
(DOT 739.687-030) and machine feeder (DOT 692.686-010). See Dictionary of Occupational Titles
(“DOT”), U.S. Dept. of Labor (4th ed. 1991); (Tr. at 51). According to the DOT, the small products
assembler job requires constant reaching, and the machine feeder job requires frequent reaching.
Both jobs appear to have functional requirements that exceed the RFC limitation to only occasional
overhead reaching. Mandera argues that the ALJ failed to resolve this conflict.
The VE testified that based on his job analysis, overhead reaching is not part of the small
product assembler job. (Tr. at 51). He did not comment in any way on the machine feeder job
requirements with respect to overhead reaching. The VE did not expand on his analysis of the
overhead reaching component of the product assembler job, or offer specific reasons, examples, or
secondary source support for his determination that it did not require overhead reaching. The ALJ
did not question the VE about his analysis, ask if the VE’s testimony was consistent with the DOT,
or discuss in his written decision the apparent conflict.
Under Social Security Ruling 00-4p (2000), the ALJ has an affirmative duty to “identify and
obtain a reasonable explanation for any conflicts between [VE] evidence and information in the
DOT, including its companion publication, the Selected Characteristics of Occupations Defined in
the Revised Dictionary of Occupations Titles (“SCO”).” SSR 00-4p, 2000 SSR LEXIS 8, *1 (Dec.
4, 2000). SSR 00-4p continues:
Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between VE or VS
evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE or VS
evidence to support a determination or decision about whether the
claimant is disabled. At the hearings level, as part of the
adjudicator's duty to fully develop the record, the adjudicator will
inquire, on the record, as to whether or not there is such
Neither the DOT nor the VE or VS evidence automatically
"trumps" when there is a conflict. The adjudicator must resolve the
conflict by determining if the explanation given by the VE or VS
is reasonable and provides a basis for relying on the VE or VS
testimony rather than on the DOT information.
SSR 00-4p, *4.
Where there is an unresolved conflict between the VE’s testimony and the DOT, as in this
case, the ALJ is required to investigate and resolve that conflict. In an Eighth Circuit case where
the RFC limited the claimant to occasional overhead reaching bilaterally, and the VE identified jobs
that required frequent reaching according to the DOT, the ALJ erred by not resolving that conflict.
Moore v. Colvin, 769 F.3d, 987, 989-90 (8th Cir. 2014). The ALJ in Moore did ask if the VE’s
testimony was consistent with the DOT and the VE answered “yes.” Id.
investigation by the ALJ in Moore, that inquiry alone did not meet the SSR 00-4p requirement. Id.
In this case, the ALJ did not even make the inquiry on the record about any apparent conflict.
When the VE said that based upon his job analysis the small products assembler job did not require
overhead reaching, the ALJ failed to question the VE further. Moreover, neither the VE nor the ALJ
commented about the reaching requirement in the machine feeder job. The Eighth Circuit recently
held that in the face of an apparent conflict, an ALJ who “posed a hypothetical that accurately
reflects his RFC finding, questioned the VE about any apparent inconsistencies with the relevant
DOT job descriptions, and explained his decision to credit the VE's testimony,” the ALJ had
complied with SSR-04p. Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir. 2014). Welsh outlines the
duty required of the ALJ, which is consistent with SSR 00-4p: “the adjudicator will explain in the
determination or decision how he or she resolved [a] conflict. The adjudicator must explain the
resolution of the conflict irrespective of how the conflict was identified.” SSR 00-4p, *9. Here,
Mandera points out that the ALJ did not discuss the apparent conflict in his written opinion. That
omission compounds the ALJ’s failure to investigate the conflict at the hearing. As a result, the
ALJ’s decision is not supported by substantial evidence.
The medical evidence here suggests that Mandera also suffers from significant mental
limitations associated with bipolar disorder, anxiety, and depression. Mandera contends that the
ALJ did not fully incorporate the scope of mental limitations in the RFC, and that the ALJ erred in
his conclusion that Mandera could control his mental conditions if he remained compliant with
treatment. The Court need not reach these issues as remand is required on the grounds set forth in
Mandera’s DOT argument above.
For the reasons stated above, the Court finds that the ALJ's decision is not supported by
substantial evidence. The ALJ failed to resolve the apparent conflict between the VE’s testimony
and the DOT with respect to the limitation to occasional overhead reaching. The decision is hereby
reversed and the case remanded with instructions for further review.
IT IS SO ORDERED this 3rd day of January, 2017.
UNITED STATES MAGISTRATE JUDGE
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