Edge v. Social Security Administration Commissioner
Filing
18
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on April 23, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ANGELA L. EDGE
PLAINTIFF
V.
NO. 14-5120
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Angela L. Edge, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a 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 current applications for DIB and SSI on February 5, 2010, alleging an
inability to work since December 24, 2008, due to neck injury surgical fusion of C5, C6, and C7;
nerve impingement down left arm; shoulder injury/laparoscopic surgery to left shoulder; carpal
tunnel; disc degeneration; osteoarthritis; severe depression; hip pain; pain in left foot;
insomnia/fatigue; and shoulder and neck injury. (Tr. 135-140, 172, 176). An administrative
hearing was held on May 16, 2012, at which Plaintiff appeared with counsel, and she and her
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partner testified. (Tr. 33-80).
By written decision dated February 28, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - major
depressive disorder, dependent personality disorder, degenerative disc disease of the cervical
spine status/post surgery, and disorder of the left shoulder. (Tr. 15). 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. 16). 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 is
limited to no overhead reaching bilaterally. The claimant is able to perform work
involving simple, routine, and repetitive tasks; involving only simple, work-related
decisions with few, if any, workplace changes; and no more than incidental contact with
co-workers, supervisors, and the general public.
(Tr. 17). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would not be able to perform her past relevant work, but that there
were other jobs Plaintiff would be able to perform, such as production worker - e.g. patcher;
inspector, tester, sorter, weigher - e.g. touch up screener; and interviewer - e.g. charge account
clerk. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 7, 2014. (Tr. 1-5). Subsequently, Plaintiff filed this action.
(Doc. 1). This 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. 15, 17).
The Court has reviewed the entire transcript. The complete set of facts and arguments
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are presented in the parties’ briefs, 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. Barnard, 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. Barnard, 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
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at least twelve consecutive months.
The Commissioner’s regulations require her 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 her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.
Discussion:
Plaintiff raises the following issues in this matter: 1) The ALJ erred in failing to consider
all of Plaintiff’s impairments in combination; 2) The ALJ erred in his credibility analysis; and
3) The ALJ erred in his RFC determination. (Doc. 15).
Although the Court believes there is substantial evidence to support the fact that the ALJ
considered all of Plaintiff’s impairments in combination, as well as the ALJ’s credibility and
RFC determination, the Court also believes the ALJ failed to resolve a conflict between the VE’s
testimony and the DOT. The ALJ’s RFC determination states that Plaintiff is limited to “no
overhead reaching bilaterally,” and the jobs the VE indicated Plaintiff could perform 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
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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, 632633 (8th Cir. 2014). In this case, the ALJ did not even ask the VE whether his testimony was
consistent with the information found in the DOT. It is therefore not clear whether the VE
recognized the possible conflict between the hypothetical 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. 26), 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).
Based upon the foregoing, the Court concludes the ALJ did not resolve a conflict
between the VE’s testimony and the DOT and therefore, the VE’s testimony did not constitute
substantial evidence. On remand, the ALJ is instructed to identify and obtain a reasonable
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explanation for any conflict between the VE’s testimony and the DOT.1
IV.
Conclusion:
Having carefully reviewed the record, the undersigned finds there is not substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and therefore, the case
should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
IT IS SO ORDERED this 23rd day of April, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
1
In Kemp v. Colvin, 743 F.3d 630, 633 n.3 (8th Cir. 2014), the Eighth Circuit noted that the necessary resolution
of the identified issue may be accomplished by written interrogatories posed to the VE, and thus another
administrative hearing may not be required.
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