Hooks v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 16, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Civil No. 6:12-cv-06126
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Everett Hooks (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his application for
Supplemental Security Income (“SSI”) under Title XVI of the Act. The Parties have consented to
the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including
conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment
proceedings. ECF No. 6.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
Plaintiff protectively filed his disability application on June 3, 2010. (Tr. 12, 95-98).
Plaintiff alleges being disabled due to a heart attack, degenerative joint disease, a brain hemorrhage,
numbness on left side of his body, and high blood pressure. (Tr. 110). Plaintiff alleges an onset date
of June 1, 2003. (Tr. 12, 95). This application was denied initially and again upon reconsideration.
(Tr. 40-41). Thereafter, Plaintiff requested an administrative hearing on his application, and this
The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
hearing request was granted. (Tr. 53-54, 22-39).
This hearing was held on September 23, 2011 in Jonesboro, Arkansas. (Tr. 22-39). Plaintiff
was present at this hearing and was represented by Mike Sherman. Id. Plaintiff and Vocational
Expert (“VE”) Elizabeth Clam testified at the hearing in this matter. Id. During this hearing,
Plaintiff testified he was forty-nine (49) years old. (Tr. 25). Such an individual is defined as a
“younger person” under 20 C.F.R. § 416.963(c) (2008). Plaintiff also testified he had only
completed the sixth grade in school. (Tr. 26).
On November 21, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 9-18). In this decision, the ALJ found Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since June 3, 2010, his application date. (Tr. 14, Finding 1).
The ALJ determined Plaintiff had the following severe impairments: heart attack, degenerative joint
disease, brain hemorrhage, left sided numbness, and hypertension. (Tr. 14, Finding 2). The ALJ also
determined, however, that Plaintiff’s impairments did not meet or medically equal the requirements
of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”).
(Tr. 14, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-17, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the following RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except the claimant can only occasionally reach with his nondominant upper extremity. The claimant cannot be exposed to extreme heat.
Id. “Light work” is defined as follows:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b) (2010).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff
was unable to perform his PRW as a farm worker. (Tr. 17, Finding 5). The ALJ then considered
whether Plaintiff would be able to perform other work existing in significant numbers in the national
economy. (Tr. 17-18, Finding 9). The VE testified at the administrative hearing regarding this issue.
(Tr. 18, 32-39).
Considering a hypothetical individual with Plaintiff’s RFC, age, work experience, and other
limitations, the VE testified that person could perform the requirements of representative occupations
such as janitorial worker with 8,000 such jobs in Arkansas and 800,000 such jobs in the United
States and machine operator with 4,900 such jobs in Arkansas and 350,000 such jobs in the United
States. (Tr. 18). Based upon this testimony, the ALJ determined Plaintiff retained the capacity to
perform other work existing in significant numbers in the national economy, and Plaintiff had not
been under a disability as defined in the Act from June 3, 2010 (application date) through November
21, 2011 (ALJ’s decision date). (Tr. 18, Finding 10).
Thereafter, on November 23, 2011, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 7). The Appeals Council denied this request for review on October
25, 2012. (Tr. 1-3). On November 19, 2012, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on November 29, 2012. ECF No. 6. Both Parties
have filed appeal briefs. ECF Nos. 10-11. This case is now ready for decision.
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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 his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
In his appeal brief, Plaintiff raises the following three arguments for reversal: (1) the ALJ
improperly assessed the credibility of his subjective complaints; (2) the ALJ did not properly develop
the record when he assessed Plaintiff’s RFC; and (3) the ALJ improperly found his Step Five
determination was supported by the Dictionary of Occupational Titles. ECF No. 10 at 1-15. Upon
review, the Court finds Plaintiff is correct in his argument that the VE’s testimony conflicts with the
Dictionary of Occupational Titles. Thus, only this issue will be addressed.
At Step Five of the Analysis, the VE identified two occupations Plaintiff retained the capacity
of performing: (1) janitorial worker (D.O.T. 323.687-014) and (2) machine operator (D.O.T.
920.665-010). (Tr. 18). Based upon the job descriptions of these occupations in the Dictionary of
Occupational Titles and its supplement, Selected Characteristics of Occupations, the occupation of
janitorial worker requires “frequent” reaching while the occupation of machine operator requires
“constant” reaching. According the ALJ’s RFC determination, Plaintiff can only ”occasionally reach
with his non-dominant upper extremity.” (Tr. 14, Finding 4). Thus, Plaintiff can neither perform
“frequent” reaching nor “constant” reaching.
According to Social Security Ruling 00-4p, the ALJ has the responsibility of determining
whether the VE’s testimony is consistent with the Dictionary of Occupational Titles and Selected
Characteristics of Occupations. If that testimony is not consistent with those publications, the ALJ
then has a duty to resolve that conflict. SSR 00-4p (“our adjudicators must: [i]dentify and obtain a
reasonable explanation for any conflicts . . . [e]xplain in the determination or decision how any
conflict that has been identified was resolved”). Here, the ALJ did not recognize this conflict and
did not resolve it. Instead, the ALJ stated the following: “Pursuant to SSR 00-4p, the undersigned
has determined that the vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.” (Tr. 18). Because the ALJ erred in this determination,
and improperly found the VE’s testimony was consistent with the Dictionary of Occupational Titles
and its companion publication, this case must be reversed and remanded.
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is not supported by substantial evidence. Thus, this case is reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 16th day of January 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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