Briggs v. Astrue

Filing 23

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is reversed. IT IS FURTHER ORDERED that this matter is remanded to the ALJ for further proceedings in accordance with this Opinion, Memorandum and Order. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 2/27/14. cc: commissioner(CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROY BRIGGS,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:12CV749 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
application for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq. For the reasons set forth below, the Court
will reverse the Commissioner's denial of Plaintiff's application.
Facts and Background
Plaintiff was 41 years old at the time of the hearing. He graduated from
eighth grade, and had not tried to obtain a GED. He attended the St. Louis County
Special Schools. The ALJ found Plaintiff had the impairments of: attention deficit

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action 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).

disorder (ADD), bipolar disorder, substance abuse disorder, antisocial personality
disorder, and idiopathic back pain.
At the February 10, 2011 hearing, Plaintiff testified he had worked in
landscaping and construction. He had previously used illegal drugs, but had not
done so for 11-12 years. He broke his back when he was a teenager and has
experienced back problems ever since. With his prescribed medication, Plaintiff
does not experience the psychological problems he did when he was not
medicated.
A vocational expert also testified. The VE concluded that Plaintiff could
perform work that does not require constant or regular contact with the public or
more than infrequent handling of customer complaints. The VE testified that a
person described as such could perform unskilled light work as a housekeeper/
cleaner. The VE also testified that there exists jobs in the St. Louis metropolitan
area which satisfy these requirements.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq. was denied on June 11, 2010. On
December, 2010, the ALJ issued an unfavorable decision. On March 27, 2012, the
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. Thus,
the decision of the ALJ stands as the final decision of the Commissioner.
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Standard For Determining Disability
The Social Security Act defines as disabled a person who is “unable to
engage in 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 twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an
individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011)
(discussing the five-step process). At Step One, the ALJ determines whether the
claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at
611. At Step Two, the ALJ determines whether the claimant has a severe
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impairment, which is “any impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled.
20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c);
McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant has such an impairment, the Commissioner will
find the claimant disabled; if not, the ALJ proceeds with the rest of the five-step
process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545
(a) (1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by
comparing the claimant's RFC with the physical and mental demands of the
claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can
perform his past relevant work, he is not disabled; if the claimant cannot, the
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analysis proceeds to the next step. Id.. At Step Five, the ALJ considers the
claimant's RFC, age, education, and work experience to determine whether the
claimant can make an adjustment to other work in the national economy; if the
claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at
611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ in this case determined
at Step One that Plaintiff had not engaged in substantial gainful activity from the
period of his alleged onset date of April 25, 2008 through his date of last insured
of December 31, 2009. At Step Two, the ALJ found that Plaintiff had the
following severe impairments: attention deficit disorder (ADD), bipolar disorder,
substance abuse disorder, antisocial personality disorder, and idiopathic back pain.
At Step Three, the ALJ found that Plaintiff does not have an impairment or
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combination of impairments that met or equaled in severity of any impairment
listed in 20 CFR Part 404, Subpart P, Appendix 1.
Prior to Step Four, the ALJ found that Plaintiff had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b), except that he is
limited to jobs that involve being able to understand and carry out at least simple
instructions and nondetailed tasks. He should not have constant or regular contact
with the general public, should not perform work that involves more than
infrequent handling of customer complaints, and should not work in proximity to
alcohol, illicit drugs, prescribed drugs, or controlled substances.
At Step Four, the ALJ determined that Plaintiff could not perform his past
relevant work. At Step Five, the ALJ consider Plaintiff’s RFC, age, education,
and work experience to determine that there are jobs that exist in the national
economy that Plaintiff can perform.
Standard For Judicial Review
The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
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reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports
the Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)). The Court should disturb the administrative decision only if it falls
outside the available “zone of choice” of conclusions that a reasonable fact finder
could have reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006).
Discussion
In his appeal of the Commissioner's decision, Plaintiff makes the following
arguments: (1) the finding of residual functional capacity are not supported by
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“some” medical evidence and therefore fail under the standards contained in Singh
and Lauer; (2) the vocational expert testimony is in conflict with the dictionary of
occupational titles (DOT) and thus under Social Security Ruling 00-4p,
reconciliation is required.
RFC and Medical Evidence
A claimant's RFC is the most an individual can do despite the combined
effects of all of his or her credible limitations. See 20 C.F.R. § 404.1545. An
ALJ's RFC finding is based on all of the record evidence, including the claimant's
testimony regarding symptoms and limitations, the claimant's medical treatment
records, and the medical opinion evidence. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir.2010); see also 20 C.F.R. § 404.1545; Social Security Ruling (SSR)
96–8p. An ALJ may discredit a claimant's subjective allegations of disabling
symptoms to the extent they are inconsistent with the overall record as a whole,
including: the objective medical evidence and medical opinion evidence; the
claimant's daily activities; the duration, frequency, and intensity of pain; dosage,
effectiveness, and side effects of medications and medical treatment; and the
claimant's self-imposed restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir.1984); 20 C.F.R. § 404.1529; SSR 96–7p.
Plaintiff argues that the RFC finds no support in the medical evidence.
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According to Plaintiff, the decision fails to cite any medical evidence to support its
conclusions regarding Plaintiff’s ability to handle this RFC. Also, Plaintiff claims
the decision gave greater weight to a non-examining physician than an examining
one, and failed to provide a legally sufficient rationale for doing so.
The ALJ noted that Plaintiff’s medical records did not support a finding that
Plaintiff experienced a significant decline in health at the time he stopped
working. Dr. Enkvetchakul notes symptom magnification. Dr. Kleusner
occasionally observed some superficial muscular tenderness, but there was no
evidence of a pinched nerve or other disorder. Plaintiff’s back inspections, motor
skills, and reflexes were consistently normal throughout his medical record.
Plaintiff had full range of motion in his lumbar spine and his stride was normal.
Although Plaintiff argues that the ALJ gave more weight to the consulting
doctor, than to Plaintiff’s treating doctor, Dr. Long, the ALJ noted that Dr. Long’s
assessment and opinions appeared to based on Plaintiff’s description of his
limitations, which the ALJ determined, after discussing his reasons why, to be
somewhat exaggerated and not entirely credible.
The ALJ’s RFC finding is clearly based upon the record as a whole. The
ALJ summarized Plaintiff’s testimony regarding his limitations, the treatment
notes regarding his impairments, the medical opinions in the record, and the ALJ’s
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credibility findings. The ALJ applied the proper standard to the facts before him
and his determination of Plaintiff’s RFC is supported by the record as a whole.
Conflict with Dictionary of Occupational Titles
Under the standards for using VE evidence and other reliable
occupational information in disability decisions, see Social Security
Ruling (SSR) 00–4p, 2000 WL 1898704, at ––––2–4 (Dec. 4, 2000),
the ALJ has an affirmative responsibility to ask about “any possible
conflict” between VE evidence and the DOT, and its companion
publication (the SCO), on the requirements of a job or occupation
before relying on VE evidence to support a determination of not
disabled. See Jones, 619 F.3d at 977–78 (SSR 00–4p mandates that
ALJ ask VE whether there is conflict, and to obtain explanation for
any such conflict). 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. Further, the VE did not explain the
possible conflict and the ALJ sought no such explanation. See
Montgomery v. Chater, 69 F.3d 273, 275–77 (8th Cir.1995) (none of
three DOT job listings VE identified were compatible with claimant's
abilities as set forth in ALJ's hypothetical, and while VE's task is to
determine whether jobs exist for someone with claimant's precise
disabilities, VE did not testify that traits of identified jobs varied from
way DOT described them). Thus, the Commissioner did not meet her
burden, at step five of the sequential evaluation process, of
establishing that jobs existed in the economy that [Plaintiff] was
capable of performing. See id. at 277.
Kemp ex rel. Kemp v. Colvin, --- F.3d ----, 2014 WL 700781 (8th Cir February 25,
2014). (footnote omitted).
Plaintiff argues that the jobs of small parts assembler and housekeeper are
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inconsistent with the determination that Plaintiff can only perform simple tasks.
Although the ALJ did ask the VE if these jobs were consistent with the DOT and
Selected Characteristics of Occupations, and the VE responded in the affirmative,
neither recognized the potential inconsistency raised by Plaintiff vis a vis the skill
level assessed and the definitions of small products assembler. As such, the
ALJ’s decision must be reversed for such determination. Id.
Conclusion
Based upon the foregoing, the Court must reverse and remand this matter to
the ALJ for a determination of whether the vocational expert testimony is in
conflict with the DOT and thus whether under Social Security Ruling 00-4p the
ALJ must reconcile the two.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is reversed
IT IS FURTHER ORDERED that this matter is remanded to the ALJ for
further proceedings in accordance with this Opinion, Memorandum and Order .
A separate judgment in accordance with this Opinion, Memorandum and

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Order is entered this same date.
Dated this 27th day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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