Boyd et al v. Colvin

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits be REVERSED and REMANDED to the Commissioner for further proceedings consistent with this Memorandum and Order. An appropriate Order of Remand shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 3/21/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GA YLON BOYD,
Plaintiff,
v.
NANCY BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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No. 1:16CV252 RLW

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of
Defendant's final decision denying Plaintiffs applications for Disability Insurance Benefits
("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI")
under Title XVI of the Act. For the reasons set forth below, the Court reverses the decision of
the Commissioner and remands for further proceedings.
I. Procedural History

On July 7, 2015, Plaintiff protectively filed applications for DIB and SSI, alleging
disability beginning March 1, 2015 due to stage 4 COPD; asthma; bronchitis; back problems;
frequent urination; carpel tunnel syndrome in both hands; arthritis in shoulders; high blood
pressure; and insomnia. (Tr. 72, 143-59) Plaintiff's claims were denied on December 1, 2015,
and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 4876, 81-82) On June 16, 2016, Plaintiff testified at a hearing before the ALJ. (Tr. 25-47) In a

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this suit. No further actions needs to be
taken to continue this suit by reason of the last sentence of Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).

decision dated July 26, 2016, the ALJ determined that Plaintiff had not been under a disability
from March 1, 2015 through the date of the decision. (Tr. 9-20) On September 9, 2016, the
Appeals Council denied Plaintiff's request for review. (Tr. 1-3) Thus, the decision of the ALJ
stands as the final decision of the Commissioner.
II. Evidence Before the ALJ
At the June 16, 2016 hearing, Plaintiff was represented by counsel, who gave an opening
statement. Counsel stated that no medical source statements were provided in the case; however,
Plaintiff was capable of less than the full range of sedentary work due to chronic obstructive
pulmonary disease and arthritis. Upon questioning by the ALJ, Plaintiff testified that he lived in
a mobile home with his wife, two of his daughters, and his grand-baby. Plaintiff had a tenth
grade education. He previously worked as a construction worker and an assembly line worker.
He testified that his construction jobs mainly involved concrete work, where he lifted 100
pounds. His assembly line jobs required lifting about 25 pounds. (Tr. 31-33)
Plaintiff stated that he was unable to return to his construction or assembly line jobs
because he could not stand for very long. He was unable to lift with or raise his left arm without
pain. In addition, he needed to use the bathroom every 15 to 20 minutes due to prostate
problems. He had trouble breathing in the heat. Plaintiff testified that his disability onset date of
March 1, 2015 coincided with the date he was laid off because of his breathing, back, and
shoulder problems. Plaintiff stated that he was unable to do any work due to his disability and
inability to read or write. He testified that his doctor prescribed inhalers and would not let
Plaintiff return to work. (Tr. 34-35)
Plaintiff stated that he quit smoking two weeks before the hearing. He previously
smoked up to 2 1h packs of cigarettes a day but began to slowly reduce the number of daily

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cigarettes until he quit. Plaintiff testified that he received income from his wife's disability
stemming from back surgery. (Tr. 35-36)
Plaintiffs attorney also questioned Plaintiff about his prior work and his impairments.
Plaintiff stated that he was unable to perform construction work because he could not breathe or
lift. He was unable to perform the work he used to do, and after he was laid off, the companies
never called him back. With regard to his prostate problems, Plaintiff testified that he took two
medications to strengthen his prostate. Plaintiff did not have health insurance or receive
Medicaid. He had a $4 plan for prescriptions. Plaintiffs medications included a muscle
relaxant; Cyclobenzaprine; Flomax; Hydroxyzine; Metoprolol; Naproxen; Norco; and
Prednisone. Plaintiff testified that he did not like taking Prednisone because it made him feel
funny. His inhalers caused him to be jittery, shaky, and lightheaded. They also caused
headaches. (Tr. 36-38)
Plaintiff further testified that he was able to stand for 15-20 minutes before his back and
legs began to hurt, causing him to sit. He was unable to lift his left arm and could not properly
pick up his grand-baby. Plaintiff stated that he could lift a gallon of milk with his left arm with
pain. However, he could not lift the milk over shoulder level. Plaintiff had no problem lifting
with his right arm. Walking caused pain in Plaintiffs back and knees. Walking also caused
shortness of breath. Plaintiff stated that he could walk 100 feet but then needed to stop and catch
his breath. He had difficulty with reading and writing. (Tr. 38-40)
Plaintiff testified that he could do dishes and help with the laundry. He was unable to
push a vacuum because his back hurt. He tried to work in the garden but could only do so for a
few minutes before needing to sit down. Plaintiff stated that gardening caused breathing
difficulties and back pain. During the day, Plaintiff sat on his porch, drank coffee, and walked to

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his garden. Plaintiff stated that he had trouble with frequent urination his whole life. While
working at Briggs and Stratton, Plaintiff walked off the assembly line because he was not
allowed to use the bathroom. Plaintiff testified that he would be unable to perform any jobs in
the national economy because he could not push carts at Walmart due to pain or work in any type
of heat or humidity. The frequent need to use the bathroom also prevented him from working.
(Tr. 40-42)
A vocational expert ("VE") also testified at the hearing. The VE classified Plaintiffs
past relevant work as construction worker, which was semiskilled and heavy work; and
assembler, which was semiskilled and medium work. The ALJ then asked the VE to assume a
hypothetical person the same age, education, and past relevant work as the Plaintiff. The
individual could lift or carry 20 pounds occasionally and 10 pounds frequently; stand or walk for
6 hours in an 8-hour work day; sit for 6 hours in an 8-hour work day; push or pull with the same
weight limits for lifting and carrying; avoid concentrated exposure to inhaled pulmonary
irritants; avoid concentrated exposure to high temperatures and humidity; and understand,
remember, and carry out simple instructions and tasks. In addition, the person was unable to lift
his left arm above shoulder level. The VE testified that this individual could not return to the
past relevant work performed by Plaintiff. However, the hypothetical person could work in
small products assembly I, collator, and small products II bench assembly positions. (Tr. 42-44)
Plaintiffs attorney also questioned the VE and asked the VE to assume the individual
would miss 2 or 3 days of work due to breathing issues and COPD. The VE testified that all jobs
would be eliminated. Further, frequent urination problems would also eliminate all jobs. The
ALJ left the record open for Plaintiff to obtain a medical source statement from the clinic he
visited and concluded the hearing. (Tr. 44-46)

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An October 25, 2015 Function Report-Adult completed by Plaintiffs wife indicated
that Plaintiff had difficulty breathing even while sitting. His inhaler made him feel shaky and
lightheaded. He experienced sharp, burning pain from the middle of his back to his buttocks.
During the day, Plaintiff took pain _!lledication and used his inhaler when he woke up. If he
performed any work he went very slowly because he became short of breath. Prior to his
condition, Plaintiff could pour concrete and walk without losing his breath. Plaintiff coughed
during the night. He had trouble bathing because he was unable to catch his breath in the
shower. Plaintiff was able to prepare simple meals daily. His wife performed the cooking,
however. Plaintiff could do laundry every couple of days. He was unable to perform house or
yard work. Plaintiff went outside every day, and he was able to drive. He did not shop or pay
bills. Plaintiff enjoyed hunting but could not do this often because he was unable to walk
distances due to his breathing problems. He also enjoyed watching TV and eating dinner with
his immediate family. Plaintiff did not participate in any other social activities. Plaintiff stated
that his conditions affected his ability to lift, squat, bend, stand, reach, walk, sit, kneel, stair
climb, complete tasks, and use hands. He explained that these activities caused shortness of
breath and back pain. Plaintiff reported that he could not walk any distance before needing to
rest for 3 to 4 minutes. He could pay attention for only 5 minutes due to pain and lack of breath.
Further, Plaintiff was unable to follow written instructions. However, he could follow spoken
instructions. He was able to get along with authority figures but could not handle stress or
changes in his routine. (Tr. 241-48)
In a Missouri Supplemental Questionnaire dated October 25, 2015, Plaintiff reported that
his driver's license had been suspended. Plaintiffs wife stated that she believed Plaintiff had

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ruptured discs in his back. He was unable to walk upstairs or walk to the front door due to
COPD. Plaintiff did not have pain medications because they could not afford them. (Tr. 251)
In a Disability Report-Appeal, Plaintiff reported that on July 15, 2015, he experienced
new medical conditions including: Carpal Tunnel in both hands; numbness, tingling, and pinched
nerve in hands and arms; weakness; degenerative disc disease; arthritis in both shoulders;
constant throbbing pain; insomnia; fatigue during the day; memory and concentration problems;
COPD with frequent coughing spells; and possible respiratory failure. (Tr. 296)

III. Medical Evidence
On August 2, 2014, Plaintiff presented to the Poplar Bluff Regional Medical Center
emergency room with a chief complaint of ethyl alcohol abuse. Plaintiff left the ER against
medical advice prior to examination. (Tr. 345-48) Plaintiff returned to the ER on August 4,
2014 for complaints of altered mental state and vomiting. Tests and examination were normal,
and Plaintiff was discharged with a diagnosis of heat exhaustion. (Tr. 328-44)
On December 31, 2014, Plaintiff underwent a left shoulder x-ray which showed
degenerative changes at the left acromioclavicular joint consistent with degenerative arthritis.
(Tr. 325-26) Chest x-rays taken that same date indicated no definitive acute cardiopulmonary
process but hyperexpanded lungs suggesting chronic obstructive pulmonary disease ("COPD").
(Tr. 323-24)
Plaintiff saw Gary Ward, D.O., on January 2, 2015 for follow-up care to discuss sleeping
pills and his chest x-ray. Plaintiff reported shortness of breath, wheezing, coughing up blood,
muscle aches and weakness, arthralgias/joint pain, back pain, and swelling of the extremities. He
reported no chest pain or arm pain on exertion. Dr. Ward assessed acute exacerbation of chronic
obstructive airway disease, osteoarthritis, and insomnia. (Tr. 362-65) Plaintiff returned to Dr.

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Ward on January 19, 2015 for a pain management follow-up. Plaintiff requested different pain
medication. Dr. Ward assessed chronic pain, COPD, osteoarthritis, and insomnia. He prescribed
Norco for pain. (Tr. 359-62)
On April 4, 2015, Plaintiff saw Dr. Ward for a prescription refill. He complained of
lower back pain and bilateral shoulder pain. Plaintiff reported severe COPD and worsening pain
level of 8/10 with or without medication. Dr. Ward increased Plaintiffs Norco dosage. (Tr.
356-59) Plaintiff returned to Dr. Ward on May 20, 2015 and reported that his pain was stable
with Norco and Voltaren. He continued to complain of very limiting COPD with fatigue, cough,
and wheezing. (Tr. 353-56) On June 15, 2015, Plaintiff followed-up with Dr. Ward for a
medication refill. He complained of muscle cramps, arthralgias/joint pain, and back pain, along
with numbness and tingling. Plaintiff reported that his back pain radiated to his bilateral legs,
and he experienced intermittent numbness to his bilateral posterior legs. Dr. Ward noted
tenderness and limited range of motion in Plaintiffs lumbar area. Dr. Ward diagnosed insomnia,
osteoarthritis, chronic pain, hypertensive disorder, and chronic low back pain. (Tr. 350-53)
A bronchospasm evaluation performed on November 6, 2015 revealed mild airway
obstruction. (Tr. 371-76) An x-ray of the lumbar spine on November 30, 2015 showed no acute
abnormality or interval change with mild degenerative change at Ll-L2, unchanged from a
previous lumbar spine x-ray on April 3, 2012. (Tr. 380)
On April 14, 2016, Plaintiff saw Srimannarayana Marella, M.D., for a follow-up visit.
Dr. Marella noted that Plaintiffs asthma and COPD were uncontrolled. While prednisone
decreased coughing spells, Plaintiff complained of wheezing, shortness of breath with exertion,
and chest tightness. Plaintiff reported drinking beer every day and smoking. Dr. Marella
assessed asthma and chronic low back pain. (Tr. 384-87) Plaintiff returned to Dr. Marella on

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May 23, 2016 for medication refills. Physical exam showed no localized tenderness in Plaintiffs
back. Plaintiffs benign prostatic hypertrophy ("BPH") had improved with finasteride, but Dr.
Marella advised Plaintiff to also fill and take his Flomax as prescribed. (Tr. 381-84)
Dr. Marella completed a Physical Medical Source Statement ("MSS") on June 16, 2016.
Dr. Marella diagnosed chronic low back pain, BPH, asthma/CO PD, and left shoulder pain.
Plaintiffs prognosis was fair. Plaintiffs symptoms included chronic low back pain radiating to
bilateral lower extremities, shortness of breath and wheezing, and increased urinary frequency.
Dr. Marella opined that Plaintiffs low back pain level was 8/10 and worsened with prolonged
standing, bending, and pushing. Plaintiffs left shoulder pain worsened with movement.
Objective findings included dyspnea, wheezing, decreased breath sounds, left shoulder
tenderness with abduction, and decreased range of motion and tenderness in the lumbar spine.
Emotional factors did not contrioute to the severity of Plaintiffs symptoms. (Tr. 388)
Dr. Marella opined that Plaintiff could walk less than one city block without rest or
severe pain; sit 20 minutes before needing to get up; stand 10 minutes before needing to shift
positions; and sit and stand less than 2 hours in an 8-hour work day. Dr. Marella further stated
that Plaintiff required a job that permitted shifting positions and included walking every 20
minutes for 5 minutes at a time. Plaintiff required unscheduled breaks every hour lasting 10
minutes due to pain, frequent urination, and shortness of breath. Dr. Marella opined that Plaintiff
could lift less than 10 pounds frequently, 10 pounds occasionally, 20 pounds rarely, and 50
pounds never. Plaintiff could rarely twist, stoop, crouch/squat, climb stairs, or climb ladders.
Further, he had significant limitations with reaching, handling, or fingering. Plaintiff was
capable of moderate stress - normal work, but his impairments would likely produce good days
and bad days. Dr. Marella opined that Plaintiff would be absent from work more than four days

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per month. Dr. Marella stated that the signs, clinical findings, and test results pertaining to
Plaintiffs impairments were consistent with the symptoms and functional limitations set forth in
Dr. Marella's evaluation. (Tr. 389-91)

IV. The ALJ's Determination
In a decision dated July 26, 2016, the ALJ found that Plaintiff was insured through
December 31, 2020. He had not engaged in substantial gainful employment since March 1,
2015, his alleged onset date. The ALJ determined that Plaintiff had severe impairments
including asthma/CO PD, degenerative joint disease of the left shoulder, and mild degenerative
disc disease of the lumbar spine. However, he did not have an impairment of combination of
impairments that met or medically equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 9-13)
Upon careful consideration of the record, the ALJ found that Plaintiff had the residual
functional capacity ("RFC") to perform light work reduced by nonexertional limitations. The
ALJ limited Plaintiffs RFC for light work to lifting or carrying 20 pounds occasionally and 10
pounds frequently; standing, walking, or sitting 6 hours in and 8-hour work day; and pushing or
pulling within the lifting limitations. Plaintiff needed to avoid concentrated exposure to inhaled
pulmonary irritants and concentrated exposure to high temperatures and humidity. He could not
lift his left arm above shoulder level. The ALJ further found that Plaintiff was unable to perform
his past relevant work. However, in light of Plaintiffs younger age, limited education, past work
experience, and RFC, the ALJ determined that there were jobs in the national economy which
Plaintiff could perform. These jobs included small products assembler I, collator, and small
products assembly II (bench assembly). Thus, the ALJ concluded that Plaintiff had not been
under a disability from March 1, 2015 through the date of the decision. (Tr. 13-20)

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V. Legal Standards
A claimant for social security disability benefits must demonstrate that he or she suffers
from a physical or mental disability. The Social Security Act defines disability "as the inability
to do any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(a)(4). Those steps require a claimant to show: (1)
that claimant is not engaged in substantial gainful activity; (2) that he has a severe physical or
mental impairment or combination of impairments which meets the duration requirement; or (3)
he has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1; (4) he is unable to return to his past relevant work; and ( 5) his
impairments prevent him from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence.
42 U.S.C. § 405(g). "Substantial evidence means less than a preponderance, but sufficient
evidence that a reasonable person would find adequate to support the decision." Hulsey v.

Astrue, 622 F.3d 917, 922 (8th Cir. 2010). "We will not disturb the denial of benefits so long as
the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the
zone of choice simply because we might have reached a different conclusion had we been the
initial finder of fact." Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (citations and internal
quotations omitted). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner's decision if it is supported by substantial
evidence. See Young v. Apfel, 221F.3d1065, 1068 (8th Cir. 2000).

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To determine whether the Commissioner's final decision is supported by substantial
evidence, the Court must review the administrative record as a whole and consider: (1) the
credibility findings made by the ALJ; (2) the plaintiffs vocational factors; (3) the medical
evidence from treating and consulting physicians; (4) the plaintiffs subjective complaints
regarding exertional and non-exertional activities and impairments; (5) any corroboration by
third parties of the plaintiffs impairments; and (6) the testimony of vocational experts when
required which is based upon a proper hypothetical question that sets forth the plaintiffs
impairment. Johnson v. Chafer, 108 F.3d 942, 944 (8th Cir. 1997) (citations and internal
quotations omitted).
The ALJ may discount a plaintiffs subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and
set forth the inconsistencies in the record. Marciniak v. Shalala, 49 F.3d 1350, 1354 (8th Cir.
1995). It is not enough that the record contain inconsistencies; the ALJ must specifically
demonstrate that she considered all the evidence. Id.
When a plaintiff claims that the ALJ failed to properly consider subjective complaints,
the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to
plaintiffs complaints under the Polaski2 factors and whether the evidence so contradicts
plaintiffs subjective complaints that the ALJ could discount the testimony as not credible.
Blakeman v. Astrue, 509 F.3d 878, 879 (8th Cir. 2007) (citation omitted). If inconsistencies in

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The Eight Circuit Court of Appeals "has long required an ALJ to consider the following
factors when evaluating a claimant's credibility: '(1) the claimant's daily activities; (2) the
duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant's work history; and (7) the absence of objective medical evidence to support the
claimant's complaints."' Buckner, 646 F.3d at 558 (quoting Moore v. Astrue, 572 F.3d 520, 524
(8th Cir. 2009) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
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the record and a lack of supporting medical evidence support the ALJ' s decision, the Court will
not reverse the decision simply because some evidence may support the opposite conclusion.
Marciniak, 49 F.3d at 1354.

VI. Discussion
In his brief in support of the Complaint, Plaintiff raises two arguments. First Plaintiff
asserts that the ALJ failed to resolve a possible conflict between the VE testimony and the
Dictionary of Occupational Titles (DOT). Plaintiffs second argument is that the ALJ
improperly discounted the opinion of Dr. Marella, Plaintiffs treating doctor. The Defendant
maintains that substantial evidence on the record as a whole supports the Commissioner's
decision that Plaintiff is not disabled.
Plaintiff first argues that the jobs identified by the VE exceeded the limitations contained
in the ALJ's hypothetical, thus creating an unresolved conflict with the DOT. Defendant, on the
other hand, asserts that the job descriptions in the DOT identified by the VE did not conflict with
the RFC determined by the ALJ and the related hypothetical question.
Specifically, Plaintiff contends that the ALJ found Plaintiff was limited to work that
involved no use of his left arm above the shoulder level, which limitation the ALJ included in the
hypothetical question. However, Plaintiff argues that the jobs identified by the VE, small
products assembler I, collator, and small products assembler II (bench assembler) involve
frequent reaching for assembler I and collator, and constant reaching for assembler II. Plaintiff
further states that "reaching" encompasses overhead reaching. Thus, Plaintiff asserts that these
jobs exceed the limitations contained in the ALJ's hypothetical and create an unresolved conflict
with the DOT. Defendant responds that the job descriptions involve only forward reaching and

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not overhead reaching such that no conflict exists between Plaintiffs RFC and the identified job
titles.
The Court agrees with Plaintiff and finds that substantial evidence does not support the
ALJ' s determination. The Court notes that the ALJ asked and the VE testified that the
vocational testimony was consistent with the DOT, indicating no conflict. See Jones v. Astrue,
619 F.3d 963, 977-98 (8th Cir. 2010) (noting that the ALJ is required to ask whether there is a
conflict between the VE evidence and information provided in the DOT). "However, the
responsibilities of the ALJ do not end there." Moore v. Colvin, 769 F.3d 987, 989 (8th Cir.
2014). In Moore, the Eighth Circuit Court of Appeals stated:
If there is an "apparent unresolved conflict" between VE testimony and the DOT,
the ALJ must "elicit a reasonable explanation for the conflict" and "resolve the
conflict by determining if the explanation given [by the expert] provides a basis
for relying on the [VE] testimony rather than on the DOT information." SSR 004p, 2000 WL 1898704, at *2--4 (Dec. 4, 2000). The ALJ is not absolved of this
duty merely because the VE responds "yes" when asked if her testimony is
consistent with the DOT.
Moore, 769 F.3d at 989-90. The Moore court also found an apparent unresolved conflict existed

where the ALJ limited the plaintiff to occasional reaching bilaterally yet the DOT and SC0 3
listed the jobs recommended by the VE as requiring reaching. Id. at 989. The Moore court
noted that neither the DTO nor the SCO specified the direction of reaching for those jobs. Id.;
see also Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014) ("While the ALJ gave

specific directions to the VE before he testified, the record does not reflect whether the VE or the
ALJ even recognized the possible conflict between the hypothetical describing a claimant who
could reach overhead only occasionally, and DOT job listing# 737.687-026 indicating that a
check-weigher job involved constant reaching.").

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The Selected Characteristics of Occupations Defined ("SCO") is a companion volume to the
DTO.
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Here, Defendant acknowledges that the jobs offered by the VE involve reaching.
However, Defendant contends that these jobs require only forward reaching and not overhead
reaching. (Def.' s Brief p. 12, ECF No. 18) The Defendant offers no support for the proposition
that no conflict exists because the identified jobs do not involve overhead reaching. As found by
the Eighth Circuit in Moore, "[a] VE must offer an explanation for any inconsistencies between
her testimony and the DOT, which the ALJ may accept as reasonable after evaluation." Moore,
769 F.3d at 990 (citation omitted). "Absent adequate rebuttal, however, VE testimony that
conflicts with the DOT 'does not constitute substantial evidence upon which the Commissioner
may rely to meet the burden of proving the existence of other jobs in the economy a claimant can
perform."' Id. (quoting Kemp, 743 F.3d at 632).
In this case, the ALJ limited Plaintiff to no lifting of his left arm above shoulder level.
(Tr. 43) According to the SCO, the positions of assembler, small products I (DOT 706.684-022)
and collator operator (DOT 208.685-010) require frequent reaching, 4 and the job of assembler,
small products II requires constant reaching. 5 As found by the Moore court, the DOT and SCO
do not specify the direction ofreaching. Id. at p 989. Thus, the positions identified by the VE
may require reaching overhead, and the ALJ did not elicit testimony from the VE to resolve the
apparent conflict between those positions, as defined by the DOT and the SCO, and the
Plaintiff's RFC as determined by the ALJ. See Moore, 769 F.3d at 990; Kemp, 743 F.3d at 633.
Because the ALJ failed to resolve this conflict, the VE's testimony "does not constitute
substantial evidence upon which the Commissioner may rely to meet the burden of proving the

4

U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles 127, 277 (1993).
5
Id. at 278.
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existence of other jobs in the economy a claimant can perform." Kemp, 743 F.3d at 632.
Therefore, the Court must reverse the decision and remand the case to the Commissioner for
further proceedings to determine at step five of the sequential evaluation process whether jobs
exist in the national economy that Plaintiff is capable of performing. Id. at 633; see also Rouse
v. Colvin, No. 4:15-CV-466-CEJ, 2016 WL 866087 (E.D.Mo. Mar. 7, 2016) (reversing and

remanding the ALJ's decision because the ALJ did not elicit testimony from the VE to resolve
the conflict between the identified jobs and plaintiffs RFC, thus failing to meet the
Commissioner's burden of showing jobs in the economy which plaintiff could perform).
Accordingly,

IT IS HEREBY ORDERED that the final decision of the Commissioner denying social
security benefits be REVERSED and REMANDED to the Commissioner for further
proceedings consistent with this Memorandum and Order. An appropriate Order of Remand
shall accompany this Memorandum and Order.
Dated this 21st day of March, 2018.

~~L~

RiNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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