Cessor v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 16, 2016. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MICHELLE A. CESSOR
vs.

PLAINTIFF
Civil No. 6:15-cv-06050

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Michelle A. Cessor (“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 her 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. 7.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff protectively filed her disability application on April 9, 2012. (Tr. 12, 132-135).

Plaintiff alleges being disabled due to post-traumatic stress disorder, manic depression, bipolar
disorder, and anxiety. (Tr. 159). Plaintiff alleges an onset date of April 9, 2012. (Tr. 12, 132). This
application was denied initially and again upon reconsideration. (Tr. 70-71). Thereafter, Plaintiff
requested an administrative hearing on her application, and this hearing request was granted. (Tr.

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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.”

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83-102).
This hearing was held in Hot Springs, Arkansas on June 17, 2013. (Tr. 36-69). Plaintiff was
present at this hearing and was represented by Donna Price. Id. Plaintiff, Vocational Expert (“VE”)
James Wallace, and a witness for Plaintiff testified at the hearing in this matter. Id. During this
hearing, Plaintiff testified she was thirty (30) years old. (Tr. 43). Such an individual is defined as
a “younger person” under 20 C.F.R. § 416.963(c) (2008). As for her education, Plaintiff testified
she only completed the tenth grade in school. (Tr. 43).
On September 24, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 9-30). In this decision, the ALJ found Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since April 9, 2012, her application date. (Tr. 14, Finding 1).
The ALJ determined Plaintiff had the following severe impairments: cannabis dependence (in
reported remission) and personality disorder (not otherwise specified) with borderline and dependent
traits. (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. 14-15, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-28, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
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 a full range of work at all
exertional levels, but with nonexertional limitations. The claimant has a fifth grade
reading and mathematics level however, she has the ability to understand, remember
and carry out simple job instructions learned by short demonstration or by rote. She
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is able to make judgments within simple work situations and to respond appropriately
to co-workers and supervisors with occasional or incidental contact that is not
essential for the performance of required job duties. She is also able to respond
appropriately to minor changes in the usual work routine.
(Tr. 16-28, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW.
(Tr. 28, Finding 5). The ALJ then considered whether Plaintiff would be able to perform other work
existing in significant numbers in the national economy. (Tr. 29, Finding 9). The VE testified at the
administrative hearing regarding this issue. Id. Considering that testimony, the ALJ determined
Plaintiff retained the capacity to perform the following skill-level SVP-22 occupations: (1) cook
helper (medium, SVP-2) with 534,000 such jobs nationally and 4,200 such jobs in Arkansas; (2)
kitchen helper (medium, SVP-2) with 381,700 such jobs nationally and 3,000 such jobs in Arkansas;
and (3) housekeeper (light, SVP-2) with 221,600 such jobs nationally and 1,860 such jobs in
Arkansas. (Tr. 29, Finding 9). 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 April 9, 2012 (application date) through
September 24, 2013 (ALJ’s decision date). (Tr. 29, Finding 10).
Thereafter, on November 26, 2013, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 7). The Appeals Council denied this request for review on March
18, 2015. (Tr. 1-3). On May 19, 2015, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on May 26, 2015. ECF No. 7. Both Parties have filed
appeal briefs. ECF Nos. 12-13. This case is now ready for decision.

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According to the Dictionary of Occupational Titles, an SVP-2 occupation requires the
following training: “Anything beyond short demonstration up to and including 1 month.”

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2.

Applicable Law:
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).
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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).
3.

Discussion:
In her appeal brief, Plaintiff raises the following two arguments for reversal: (1) the ALJ

erred when he assessed Plaintiff’s RFC; and (2) the ALJ failed to sustain his burden at Step Five of
the Analysis. ECF No. 12. Specifically, under Plaintiff’s second argument, Plaintiff claims the
ALJ’s findings were in conflict with the Dictionary of Occupational Titles, and the ALJ’s disability
determination requires reversal for this reason. Id. Upon review, the Court finds Plaintiff is correct
in her 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 three occupations Plaintiff retained the
capacity of performing: (1) cook helper (medium, SVP-2) ; (2) kitchen helper (medium, SVP-2);
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and (3) housekeeper (light, SVP-2). (Tr. 29). All three of these occupations have a skill level of
“SVP-2.” According to the Dictionary of Occupational Titles, an SVP-2 occupation requires the
following amount of training: “Anything beyond short demonstration up to and including 1 month.”
(emphasis added). Based upon the ALJ’s RFC determination, however, Plaintiff only has the “ability
to understand, remember and carry out simple job instructions learned by short demonstration or
by rote.” (emphasis added). Thus, based upon the ALJ’s RFC finding, Plaintiff cannot perform a
job with a training level beyond a short demonstration.
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, although it appears the ALJ requested that
the VE explain any conflict between his testimony and the Dictionary of Occupational Titles3, the
ALJ did not recognize this particular conflict and did not resolve it. (Tr. 67-69). Because the ALJ
erred in this determination, and failed to resolve the inconsistency between the VE’s testimony and
the Dictionary of Occupational Titles, this case must be reversed and remanded.
4.

Conclusion:
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

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The ALJ directed the VE as follows: “I just remind you, that in your testimony today, if you
have an opinion that differs from the information in the Dictionary of Occupational Titles, you need to let
me know and explain why.” (Tr. 40). Despite this directive, the VE did not explain this conflict. (Tr.
67-68).

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judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 16th day of February 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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