Hendrick v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 18, 2013. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
GRETCHEN C. HENDRICK

PLAINTIFF

v.

Civil No. 12-3006

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Teresa Huff, brings this action under 42 U.S.C. § 405(g), seeking judicial review of
a decision of the Commissioner of Social Security Administration (Commissioner) denying her claims
for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security
Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court
must determine whether there is substantial evidence in the administrative record to support the
Commissioner’s decision. See 42 U.S.C. § 405(g).
I.

Procedural Background:
Plaintiff filed her application for DIB on September 4, 2009, alleging an onset date of May 13,

20091, due to degenerative disk disease (“DDD”) of her cervical spine and anxiety. Tr. 114-123, 147,
168, 174. The Commissioner denied Plaintiff’s application initially and on reconsideration. Tr. 61-62,
65-71. An administrative hearing was held on July 13, 2010. Tr. 16-60. Plaintiff was present and
represented by counsel.
At the time of the hearing, Plaintiff was 46 years old and possessed a limited education. Tr. 2021. She did, however, complete certified nurse aide training in the early 1980's. Tr. 21. Plaintiff had
past relevant work (“PRW”) experience as a fast food worker, home health aide, production assembler,
and casting inspector. Tr. 21-27, 148, 154-155.

1

Plaintiff initially alleged an onset date of January 24, 2005, but this was date was amended at the administrative
hearing. Tr. 8, 3, 19, 147, 210.

AO72A
(Rev. 8/82)

On November 30, 2010, the ALJ found Plaintiff’s DDD was severe, but did not meet or
medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 10-11.
After partially discrediting plaintiff’s subjective complaints, the ALJ determined that Plaintiff retained
the residual functional capacity (“RFC”) to perform light work that does not involve overhead work.
Tr. 11-14. The ALJ then found Plaintiff could perform her PRW as a fast food worker, production
assembler, and casting inspector. Tr. 14-15.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on December 6, 2011. Tr. 1-4. Subsequently, Plaintiff filed this action. ECF No. 1. This case is before
the undersigned by consent of the parties. Both parties have filed appeal briefs, and the case is now
ready for decision. ECF Nos. 7, 8.
The court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ appeal briefs and the ALJ’s decision and are repeated here only to the extent
necessary.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002).
Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it
adequate to support the Commissioner's decision. The ALJ's decision must be affirmed if the record
contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome, or because the court would have decided the case differently. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the findings

2

AO72A
(Rev. 8/82)

of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving her disability by establishing a physical or mental disability that has lasted at least one year and
that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
“physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply their impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation process
to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity
since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or
combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings;
(4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the
claimant is able to perform other work in the national economy given his age, education, and experience.
See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if the final stage is reached does the fact finder consider
the plaintiff’s age, education, and work experience in light of his or her residual functional capacity. See
McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III.

Discussion:
In the present case, the ALJ, with the assistance of a vocational expert, determined that Plaintiff

could return to her PRW as a fast food worker, production assembler, and casting inspector. However,
he also concluded that Plaintiff could not perform overhead work. A review of the Dictionary of
Occupational Titles (DOT) description for the aforementioned positions reveals that they require either

3

AO72A
(Rev. 8/82)

constant or frequent reaching. DOT §§ 311.472-010, 514.687-010, 706.687-010, www.westlaw.com
(Last accessed January 18, 2013). Because the term reach includes reaching overhead as well as
reaching in front of or behind, the requirement of frequent to constant reaching creates a conflict between
the DOT and the vocational expert’s testimony. And, the vocational expert testified that his testimony
was in no way in conflict with the DOT.
“[A]n ALJ cannot rely on expert testimony that conflicts with the job classifications in the DOT
unless there is evidence in the record to rebut those classifications....” Jones ex rel. Morris v. Barnhart,
315 F.3d 974, 979 (8th Cir. 2003). The ALJ’s decision must explain how any conflict between the VE's
testimony and the DOT job description was resolved. SSR 00–4p (“Explaining the Resolution”).
Because the vocational expert denied any such conflict, and the ALJ made no findings with regard to the
conflict, remand is necessary to allow the ALJ to reassess whether Plaintiff remains capable of
performing other work that exists in significant numbers in the national economy.
V.

Conclusion:
Accordingly, we conclude that the ALJ’s decision is not supported by substantial evidence and

should be reversed and remanded to the Commissioner for further consideration pursuant to sentence
four of 42 U.S.C. § 405(g).
DATED this 18th day of January 2013.

/s/J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

4

AO72A
(Rev. 8/82)