Pugh v. Social Security Administration

Filing 23

ORDER remanding this case for legal for error. Signed by Magistrate Judge Beth Deere on 6/11/2015. (ks)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JILL L. PUGH V. PLAINTIFF NO. 4:14CV397-BD CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration DEFENDANT ORDER Oral argument hearing was held on June 4, 2015. Following a review of the record and arguments presented by counsel, the Court announced its findings of fact and conclusions of law. This case is remanded to the Commissioner of the Social Security Administration under Sentence four of 42 U.S.C. § 405(g), for further administrative action. This case needs additional vocational evidence to satisfy step five. At step five, the Commissioner determines whether work exists in the national economy that the claimant can do, in spite of his or her impairments. For claimants like Mr. Pugh, who have non-exertional limitations, the ALJ must consult a vocational expert to determine “whether jobs exist for a person with the claimant’s precise disabilities.” Under the Commissioner’s regulation, the ALJ must ask the vocational expert for a reasonable explanation “for any ‘apparent unresolved conflict’ between vocational expert testimony and the Dictionary of Occupational Titles (DOT), before relying on the testimony in determining whether the claimant is disabled.” There are apparent unresolved conflicts in this case. First, the ALJ misspoke, or the transcriber mistyped, with respect to the first hypothetical to the VE: “I would restrict this individual to only overhead reaching.” (SSA 63)(Emphasis added) From the ALJ’s opinion, it is reasonable to assume that the ALJ said, or meant to say, “I would restrict this individual to occasional overhead reaching.” But even assuming that to be a harmless mistake, in this circuit there is a more problematic inconsistency. The second conflict assumes that the ALJ limited Mr. Pugh to only occasional overhead reaching. When the ALJ asked the vocational expert about available work for a person with this (and other) limitations, the vocational expert identified only Fishing Reel Assembler (DOT 732.684-062) and Machine Tending (DOT 690.685-258), both of which are considered sedentary, unskilled work. Identifying Fishing Reel Assembler created an apparent conflict with the DOT, however, because the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO) — a DOT companion publication — lists frequent reaching as a physical requirement for Fishing Reel Assembler. The SCO lists Laminator (Machine Tending) as requiring constant reaching. The SCO defines reaching as “[e]xtending hand(s) and arm(s) in any direction.” The ALJ addressed the possibility of a conflict by asking the vocational expert generally about consistency with the DOT (SSA p. 62), but under Eighth Circuit case law, that is not enough to resolve the conflict. 2 Although the requirements of a particular job may be more or less than the SCO’s listed requirements, the SCO’s reaching requirements served as the basis of two recent Eighth Circuit remands. Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014); Kemp v. Colvin, 743 F.3d 630 (8th Cir. 2014). In both cases, the ALJ limited the claimant’s ability to reach, and the vocational expert identified a job that, according to the SCO, required frequent reaching. In both cases, the ALJ asked the vocational expert about the consistency of his testimony with the DOT, but the court of appeals found it insufficient for the vocational expert to merely confirm that his testimony was consistent with the DOT, even including the companion volumes. In both cases, the Eighth Circuit remanded because the record did not reflect whether the vocational expert or the ALJ recognized an apparent conflict. In another recent case, the Eighth Circuit stated, the ALJ has “an affirmative responsibility to ask about ‘any possible conflict’ between [vocational expert] evidence and the DOT . . ..” Welsh v. Colvin, 765 F.3d 926, 929 (8th Cir. 2014). That is, the record must reflect an explanation about why a person with reaching limitations could do a job that may require frequent reaching. The apparent conflict was not resolved in this case. At the beginning of the vocational expert’s testimony, the ALJ asked the vocational expert to advise whether his testimony was inconsistent with the DOT. The vocational expert answered, “I will.” Under the case law, that response was insufficient to resolve the conflict, because the 3 record does not explain why a person who can reach overhead only occasionally can work as a Fishing Reel Assembler or Machine Tender. There may be an explanation, but the record does not reflect the explanation. The record does not even reflect whether the vocational expert or the ALJ recognized the conflict. This case requires additional vocational evidence to resolve the conflict. This case is remanded for the legal error, i.e., an unresolved conflict between claimant Mr. Pugh’s reaching limitations and the reaching requirements for the two occupations identified by the VE. On remand, the Commissioner’s ALJ should obtain additional vocational evidence and resolve the conflict. The ALJ may obtain vocational evidence by questioning a vocational expert during a hearing or by written interrogatories. After obtaining vocational evidence, the ALJ should consider whether work exists that Mr. Pugh can do. An excerpted transcript of the Court’s findings and conclusions is attached. So ordered, this 11th day of June, 2015. ___________________________________ UNITED STATES MAGISTRATE JUDGE 4

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