Forest v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 23, 2015. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
RACHAEL FOREST
V.
PLAINTIFF
NO. 14-5082
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Rachael Forest, brings this action pursuant to 42 U.S.C. §405(g), seeking
judicial review of the final decision of the Commissioner of the Social Security
Administration (Commissioner) denying her claims for a period of disability, and disability
insurance benefits (DIB) and supplemental security income (SSI) under the provisions of
Titles II and XVI of the Social Security Act (Act). 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 applications for DIB and SSI on October 3, 2007, alleging disability
since May 25, 2007, due to COPD and back problems (cervical and lumbar radiculopathy).
(Tr. 285-290, 370). On July 19, 2010, the ALJ issued an unfavorable decision. (Tr. 111126). On May 25, 2011, the Appeals Council entered an Order remanding the case to the
ALJ, with certain directions. (Tr. 127-130). An administrative hearing was held before the
ALJ on June 28, 2012, at which Plaintiff appeared with counsel and testified. (Tr. 35-66).
By written decision dated September 7, 2012, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
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degenerative disk disease, cervical radiculopathy, bilateral carpal tunnel syndrome, chronic
obstructive pulmonary disease (COPD), morbid obesity, depression and anxiety. (Tr. 16).
However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the
Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 17). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she
can only occasionally climb, balance, stoop, kneel, crouch and crawl. The claimant
can occasionally do overhead work bilaterally and can only occasionally do rapid and
repetitive flexion and extension of the wrists. She must avoid concentrated exposure
to pulmonary irritants. In addition, the claimant can understand, remember and
carry out simple, routine and repetitive tasks. She can respond to usual work
situations and ordinary work changes as well as to supervision that is simple, direct
and concrete. Furthermore, the claimant can only occasionally interact with
supervisors, coworkers and the public.
(Tr. 10). With the help of a vocational expert (VE), the ALJ determined Plaintiff was not
capable of performing her past relevant work, but that there were other jobs Plaintiff would
be able to perform, such as small product assembler; small production machine operator; and
small product inspector. (Tr. 24-25).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied the request on January 17, 2014. (Tr. 1-6). Subsequently, Plaintiff filed this
action. (Doc. 1). The case is before the undersigned pursuant to the consent of the parties.
(Doc. 7). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.
11-13).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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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 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)(D). A Plaintiff must show that her disability, not simply her
impairment, has lasted for at least twelve consecutive months.
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The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in
substantial gainful activity since filing her claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given her age, education, and experience. See
20 C.F.R. §416.920. Only if the final stage is reached does the fact finder consider the
Plaintiff’s age, education, and work experience in light of his RFC.
See McCoy v.
Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.
Discussion:
For the reasons explained herein, the Court believes the ALJ failed to resolve a
conflict between the VE’s testimony and the Dictionary of Occupational Titles (DOT). The
ALJ’s RFC determination provides, inter alia, that Plaintiff can “occasionally do overhead
work bilaterally and can only occasionally do rapid and repetitive flexion and extension of
the wrists.” (Tr. 19). After presenting the hypothetical question to the VE, which included
this limitation, and asking the VE to identify jobs that Plaintiff would be able to perform, the
VE responded as follows:
A: Yes, sir. Let me make sure I got this right. You said occasional overhead work
and occasional rapid, repetitive flexion of the wrists?
Q: Flexion/extension of the wrists?
A: Flexion/extension. Okay. Occasional and the job descriptions in the DOT
doesn’t talk about flexion of the wrist, but let’s see. Well, you said occasional rapid.
Okay. I’m sorry.
CLMT: I’m just going to stand up for a minute.
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ALJ: Sure. Go ahead.
VE: Okay. I’m sorry. A person could be a small product assembler. An example
DOT number would be 706.685-030. … Could be a small production machine
operator. Example DOT would be 732.587-010. … Individual could be a small
produce inspector. An example would be 739.687-182. …
(Tr. 63-64).
The Court first notes that the first DOT number provided by the VE – DOT 706.685030 - does not exist. The ALJ apparently recognized this, because in his decision, he
identified it as DOT 706.684-030 – Atomizer Assembler. This job, as well as the other two
jobs identified by the VE – golf-ball trimmer and table worker – all require frequent
reaching, according to the Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles (SCO). Consequently, there is a conflict between the DOT
and the VE’s testimony. See Moore v. Colvin, 769 F.3d 987, 989 (8th Cir. 2014)(stating the
ALJ failed to resolve an apparent conflict when a hypothetical limited a person to only
occasional overhead reaching, and the VE identified jobs which the SCO said required
frequent reaching).
When an apparent conflict between the DOT and VE testimony exists, an ALJ has an
affirmative responsibility to address the conflict. Young v. Apfel, 221 F.3d 1065, 1070 (8th
Cir. 2000). If evidence from the VE appears to conflict with the DOT, the ALJ must obtain
“an explanation for any such conflict.” Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007).
An ALJ is not absolved of a duty to investigate any conflict simply because a VE responded
“yes” when asked if his testimony was consistent with the DOT. Kemp v. Colvin, 743 F.3d
630, 632-633 (8th Cir. 2014). In this case, the ALJ did ask the VE to explain if any of his
responses were inconsistent with the DOT, to which the VE responded that he would. (Tr.
63). It is not clear whether the VE recognized the possible conflict between the hypothetical
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and the positions he identified, and no explanation for the conflict was offered at the hearing.
Although in his decision, the ALJ stated that he determined the VE’s testimony was
consistent with the information contained in the DOT (Tr. 25), there is no indication that he
was aware of the conflict or how he made such a determination. The Court therefore
believes this failure to resolve the conflict is reversible error. See e.g., Daniels v. Colvin,
2015 WL 224668 (W.D. Ark., Jan. 15, 2015).
IV.
Conclusion:
Accordingly, the Court concludes the ALJ’s decision is not supported by substantial
evidence, and therefore, the matter should be reversed and remanded to the Commissioner
for further consideration pursuant to sentence four of 42 U.S.C. §405(g).
ORDERED this 23rd day of June, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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