Stamper v. Colvin

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter is remanded for further proceedings. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge John A. Ross on 3/30/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEITH STAMPER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:14-cv-2101-JAR

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Keith Stamper’s (“Stamper”) application for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§
401, et seq.

For the reasons stated herein, the Court will reverse the decision of the

Commissioner.
I.

Background

On December 13, 2011, Stamper protectively filed an application for SSI under Title XVI
of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging disability beginning September 23,
2005.1 (Tr. 147-52.) The Social Security Administration denied Stamper’s claim on March 19,
2012. (Tr. 112.) Stamper filed a timely request for a hearing before an administrative law judge
(“ALJ”). Following a hearing on September 20, 2013, the ALJ issued a written decision on
April 29, 2014, upholding the denial of benefits. (Tr. 17-29.) Stamper then requested review of
1

Stamper had previously filed for benefits in May 2007 (Tr. 95). That application having been
denied, the only claim before the ALJ (and, correspondingly, presently before this Court) was
Stamper’s December 2011 application for SSI.

the ALJ’s decision by the Appeals Council, which request was denied on October 31, 2014. (Tr.
1-6.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v.
Apfel, 530 U.S. 103, 107 (2000).
Stamper filed this appeal on December 23, 2014. (Doc. No. 1.) The Commissioner filed
an Answer. (Doc. No. 9.) Stamper filed a brief in support of his complaint (Doc. No. 11) and the
Commissioner filed a brief in support of the answer. (Doc. No. 16.) Stamper filed a reply. (Doc.
No. 17.)
II.

Decision of the ALJ

The ALJ determined Stamper had not engaged in substantial gainful activity since
December 12, 2011, the alleged onset date. (Tr. 22.) The ALJ found Stamper had the severe
impairments of degenerative disc disease and photophobia, but that no impairment or
combination of impairments met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22-23.)
After considering the entire record, the ALJ determined Stamper had the residual
functional capacity (“RFC”) to perform sedentary work, with the following additional
limitations: Stamper is unable to climb ladders, ropes or scaffolds; he can only occasionally
climb ramps or stairs, or stoop; he requires a sit/stand option every 30 minutes throughout the
workday; he is unable to operate any foot controls; he must avoid concentrated exposure to
extreme vibration and working at unprotected heights; and finally, he is limited to occupations
that do not require work duties to be performed using sunlight or while looking directly into
artificial lighting. (Tr. 23.) Based on written interrogatories submitted to a vocational expert,
the ALJ found there are jobs that exist in significant numbers in the national economy that
Stamper can perform, such as document preparer, order clerk, or stem mounter. (Tr. 28.) Thus,

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the ALJ concluded Stamper has not been under a disability from December 13, 2011, through the
date of the decision. (Tr. 28.) Stamper appeals the ALJ’s decision, arguing that the ALJ’s
evaluation is predicated on vocational expert testimony that conflicts with the Dictionary of
Occupational Titles (“DOT”), which in turn produced an erroneous finding as to the jobs
Stamper is able to perform.
III.

Administrative Record

The following is a summary of the relevant evidence before the ALJ.
A.

Hearing Testimony

The ALJ held a hearing in this matter on September 20, 2013. Stamper testified but was
not represented by counsel. (Tr. 73.)
At the time of the hearing, Stamper was 48 years old and living with his brother and
sister. (Tr. 78.) He is single and does not have children. Id. Stamper completed the twelfth
grade in school and spent three years of his secondary education in special, vocational-focused
classes. Id. at 79. He receives food stamps and is a participant in Missouri Health Net. Id. at
79-80. Although he has a driver license, Stamper estimates that he drives only once a month, or
“once in a blue moon[.]” (Tr. 78.)
Prior to 2005, Stamper worked a plethora of manual labor-intensive jobs, including as a
deckhand on tug boats. This work ceased in 2005 when Stamper sustained a back injury while
on the job, although he never received workers’ compensation benefits. Stamper testified that he
suffers intense pain at the L3, L4, and occasionally L5 levels of his back. He has never been able
to afford an operation for his back pain. The pain occasionally extends to Stamper’s legs and
feet. Stamper’s pain requires him to move from standing to sitting on a regular basis, usually
about every twenty minutes. He experiences muscle spasms if he does not switch from standing

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to sitting on a regular basis. He experiences significant pain when he walks. (Tr. 83.) Stamper
describes the pain as feeling like an electrical shock. (Tr. 85.)
Stamper also received a more recent injury to his eye when he collided with a tree
branch. (Tr. 86.) After being diagnosed with inferior corneal laceration, Stamper received
surgery to remove a sand particle and repair the eye. He is now far-sighted in the eye and,
moreover, is very sensitive to light. Id. Stamper also manifested some suicidal ideations during
the hearing, but has neither received ongoing treatment for mental health issues, nor does he
argue in the instant action that he should be awarded disability benefits based on mental
impairments.
Stamper testified that, due to his pain, he has not slept in a bed in some seven years, but
instead sleeps in a reclining chair. Stamper cannot bend at the waist and therefore wears slip-on
shoes. He can normally dress himself, although Stamper testified that his brother and friends
have occasionally had to help because “sometimes I get real down[.]” (Tr. 84.) Stamper’s
brother and sister prepare his food and do Stamper’s shopping using his food stamp card. (Tr.
89.) Stamper does not perform housework or yardwork. He states that his back “locks up” about
once a month, which causes him to be “down for at least a week.” (Tr. 87.) He testified that he
“live[s] in pain 24 hours a day.” (Tr. 89.)
B.

Interrogatories Submitted to Vocational Expert

In lieu of a vocational expert’s live testimony at the hearing, the ALJ submitted
interrogatories to vocational expert Jenifer Teixeira (“Teixeira”).

(Tr. 234-240.)

interrogatories included the following hypothetical question:
Assume a hypothetical individual who was born on October 1,
1965, has at least a high school education and is able to
communicate in English as defined in 20 CFR 404.1564 and
416.964, and has work experience as described in your response to
4

The

question #6. Assume further that this individual has the residual
functional capacity (RFC) to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except he is unable to climb
ladders, ropes or scaffolds, kneel, crouch or crawl but he can
occasionally climb ramps or stairs and stoop. He requires a
sit/stand option every 30 minutes throughout the eight-hour
workday while remaining on task. He is unable to operate any foot
control operations. He is to avoid concentrated exposure to
extreme vibration and all operation control of moving machinery,
working at unprotected heights, and the use of hazardous
machinery. Lastly, he is limited to occupations that do not require
work duties to be performed using sunlight, or while looking
directly into artificial lighting.
(Tr. 235.) This hypothetical incorporates the limitations described in the ALJ’s determination of
Stamper’s RFC.
Teixeira determined that such a person would be able to perform a job such as document
preparer, Dictionary of Occupational Titles (“DOT”) 249.587-018, SVP of 2, sedentary work.
(Tr. 240.) Teixeira estimated 4,802 such jobs are being performed in the state of Missouri. Id.
In addition, such a person could perform the job of order clerk, DOT 209.567-014, SVP of 2,
sedentary work. Id. There are approximately 4,440 such jobs being performed in the state of
Missouri. Id. Finally, Teixeira answered that such an individual could perform the job of stem
mounter, DOT 725.684-014, SVP of 2, sedentary work, with some 10,540 such jobs being
performed in the state of Missouri. Id.
Notably, Teixeira stated that “there are no conflicts between the occupational evidence
that I have provided in reference to [what jobs are available] and the occupational information
contained in the Dictionary of Occupational Titles and/or the SCO [that is, the Selected
Characteristics of Occupations Defined].” Id.

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C.

Medical Records

The ALJ summarized Stamper’s medical records at Tr. 23-27. Relevant medical records
are discussed as part of the analysis.
IV.

Standards

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 Brantley v. Colvin, 2013 WL 4007441, at * 2 (E.D. Mo. Aug. 2, 2013). 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).
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). “If a claimant
fails to meet the criteria at any step in the evaluation of disability, the process ends and the
claimant is determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). First, the claimant
must not be engaged in “substantial gainful activity.” 20 C.F.R. §§ 416.920(a), 404.1520(a).
Second, the claimant must have a “severe impairment,” defined as “any impairment or
combination of impairments which significantly limits [claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. §§ 416.920(c), 404.1520(c). “The sequential evaluation

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process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on [his or] her ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. Id.
Before considering step four, the ALJ must determine the claimant’s residual functional
capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as “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)). 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 v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, he will not be found to be disabled; if the claimant
cannot, the analysis proceeds to the next step. Id.
At step five, the ALJ considers the claimant’s RFC, age, education, and work experience
to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the
burden remains with the claimant to prove that he is disabled. Brantley, 2013 WL 4007441, at *3
(citation omitted). At step five, the burden shifts to the Commissioner to establish that the

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claimant maintains the RFC to perform a significant number of jobs within the national
economy. Id. “The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Meyerpeter v. Astrue, 902 F. Supp. 2d 1219, 1229 (E.D. Mo. 2012) (citations
omitted).
The Court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564 F.3d 935,
942 (8th Cir. 2009). In determining whether the evidence is substantial, the Court considers
evidence that both supports and detracts from the Commissioner’s decision. Cox v. Astrue, 495
F.3d 614, 617 (8th Cir. 2007). As long as substantial evidence supports the decision, the Court
may not reverse it merely because substantial evidence exists in the record that would support a
contrary outcome or because the court would have decided the case differently. See Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

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V.

Discussion

In his action for judicial review of the Commissioner’s decision, Stamper raises a single
issue. Stamper alleges the ALJ erred by relying on vocational expert testimony that was in
conflict with the DOT and SCO, without explanation or justification from the vocational expert.
The vocational expert opined that Stamper could perform the jobs of document preparer, order
clerk, or stem mounter, and asserted that her testimony was not in conflict with the DOT
definitions for those occupations. However, the ALJ assigned limitations not mentioned or
addressed in the DOT definitions for the occupations proposed by the vocational expert, namely
those regarding ladders, ropes, ramps, stairs, foot controls, exposure to sunlight or artificial light,
and a sit/stand option every 30 minutes throughout the eight-hour workday. Stamper cites to
Moore v. Colvin, 769 F.3d 987, 990 (8th Cir. 2014), a relatively recent Eighth Circuit case, for
the proposition that a vocational expert’s failure to explain inconsistencies between the DOT
and/or the SCO and the vocational expert’s proffered testimony is reversible error.
The Commissioner argues in response that “the DOT has its limits,” (Doc. No. 16 at 7)
and that the additional RFC limitations stipulated by the ALJ do not create a conflict between the
vocational expert’s testimony and the actual DOT definitions of the proposed-available jobs.
The Commissioner explains that “generic DOT descriptions may not address each and every
aspect of a particular job.” Id. Finally, the Commissioner cites to Garrison v. Colvin, No. 4:13
CV 1203 DDN, 2014 WL 2452954 (E.D. Mo. June 2, 2014), and Harris v. Colvin, No. 4:14-CV00031-NKL, 2014 WL 5781205, at *8 (W.D. Mo. Nov. 6, 2014), which the Commissioner
asserts are analogous and which held that a vocational expert’s failure to incorporate some
hypothetical limitations did not amount to conflict with the DOT. Upon review, the Court finds
that here, the ALJ’s failure to identify and accommodate (or resolve) the conflict between the

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hypothetical posed to the vocational expert (and the vocational expert’s resultant testimony) and
the DOT constitutes error.
In step five of the ALJ’s analysis, the ALJ may rely on the testimony of a vocational
expert. 20 C.F.R. § 404.1566(e). Vocational expert testimony should generally be consistent
with the Dictionary of Occupational Titles (DOT). See Policy Interpretation Ruling: Titles II &
XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable
Occupational Information in Disability Decisions, SSR 00–4P (S.S.A Dec. 4, 2000). When
conflicts arise, an ALJ must resolve conflicts between the testimony and the DOT “by
determining if the explanation given by the [vocational expert] is reasonable and provides a basis
for relying on the [vocational expert] testimony rather than on the DOT information.” Id. In
Moore, the Eighth Circuit explained:
A [vocational expert] must offer an explanation for any
inconsistencies between her testimony and the DOT, which the
ALJ may accept as reasonable after evaluation. See Welsh v.
Colvin, 765 F.3d 926, 930 (8th Cir. 2014) (concluding that the ALJ
had complied with SSR 00–4p because, in response to extensive
questioning by the ALJ regarding inconsistencies, the VE offered
evidence of her personal observations of the requirements of the
proposed jobs and cited to a professional journal to support her
recommendation). Absent adequate rebuttal, however,
[vocational expert] 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.” . . . 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 990 (emphasis added) (citing Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir.
2014) (reversing and remanding because “the record does not reflect whether the [vocational
expert] or the ALJ even recognized the possible conflict between the hypothetical” and jobs
suggested)). In Moore, the vocational expert failed to address the claimant’s limitations on
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reaching when she recommended the job of “cafeteria attendant,” which job is defined in the
SCO as involving frequent reaching. The Eighth Circuit concluded that the vocational expert’s
affirmative response to whether her testimony was consistent with the DOT did not adequately
explain the inconsistency, and remanded the case. Id. As the Kemp Court explained, “the ALJ
has an affirmative responsibility to ask about any possible conflict between [vocational expert]
evidence and the DOT [ ] and . . . SCO[ ] on the requirements of a job or occupation before
relying on [vocational expert] evidence to support a determination of not disabled.” Kemp, 743
F.3d at 633. See also Rouse v. Colvin, No. 4:15-CV-466-CEJ, 2016 WL 866087 (E.D. Mo. Mar.
7, 2016) (reversing an ALJ’s decision because “the ALJ did not elicit any testimony from the
vocational expert to resolve the apparent conflict . . . [thus,] the vocational expert’s testimony
was not substantial evidence that jobs existed in the national economy during plaintiff’s coverage
window that she could have performed”).
While Kemp and Moore were cases that involved a limitation in direct conflict with the
job requirements expressed in the DOT, the instant case involves limitations included in the
claimant’s RFC that are simply not mentioned by DOT and SCO descriptions. Therefore, it is
less clear that there is an actual “conflict” between the vocational expert’s testimony and the
DOT/SCO. Here, the DOT and SCO descriptions for the occupations stated by the vocational
expert are generally silent as to ladders, ropes, ramps, stairs, foot controls, exposure to sunlight
or artificial light, and a sit/stand option every 30 minutes throughout the eight-hour workday.
The DOT’s silence on a given limitation does not normally create a conflict between a vocational
expert’s testimony and the DOT, and with regard to the ALJ’s limitations regarding ladders,
ropes, ramps, stairs, foot controls, and exposure to sunlight or artificial light, the Court is
satisfied that the limitations, even if not explicitly mentioned in the DOT definitions of the

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vocational expert’s proffered occupations, do not create a conflict between the testimony and the
DOT.
The sit/stand limitation asserted by the ALJ requires further analysis, however, because
the jobs recommended by the vocational expert are explicitly sedentary in nature. A sedentary
job:
is defined as one that involves sitting, [although] a certain amount
of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met. “Occasionally”
means occurring from very little up to one-third of the time, and
would generally total no more than about 2 hours of an 8-hour
workday. Sitting would generally total about 6 hours of an 8-hour
workday.
Titles II & XVI: Determining Capability to Do Other Work-Implications of A Residual
Functional Capacity for Less Than A Full Range of Sedentary Work, SSR 96-9P (S.S.A. July 2,
1996).

Thus, a sit/stand requirement is almost certainly in conflict with the presumed

requirement in a sedentary job that the laborer will be sitting for the vast majority of the
workday, and may not have the option to sit or stand at leisure.
A few post-Moore cases in this district have addressed conflicts between a vocational
expert’s testimony and the DOT related to a sit/stand option, and have found that a sit/stand
requirement not addressed in the DOT does not create a conflict with vocational expert testimony
as a matter of course. But those cases are distinguishable from the matter at bar; they either did
not involve sedentary positions that presume sitting throughout the day, or they involved a
vocational expert’s offering an explanation that the sit/stand requirement does not conflict with
DOT definitions. See Heilig v. Colvin, No. 4:14-CV-2102 NAB, 2016 WL 559220, at *3-4
(E.D. Mo. Feb. 12, 2016) (affirming ALJ’s decision that a sit/stand requirement for light work
did not conflict with DOT where vocational expert’s “testimony provided a reasonable
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explanation for the conflict”); Albright v. Colvin, No. 2:14-CV-97 HEA, 2016 WL 98169 (E.D.
Mo. Jan. 8, 2016) (finding that if there was a conflict between the sit/stand requirement and light
work, it was properly resolved by the ALJ); McFarland v. Colvin, No. 2:14-CV-42 TCM, 2015
WL 2383461 (E.D. Mo. May 19, 2015) (vocational expert’s testimony about sit/stand option
provided a sufficient reasonable explanation regarding potential conflict between DOT and
testimony based on the vocational expert’s experience).
The instant matter is distinguishable from each of these cases in at least two very
important ways. First, as already mentioned, the jobs at issue here are sedentary in nature,
meaning that as a default assumption, the person performing the job will be expected to sit for
the duration, or near-duration, of the workday. This creates a de facto conflict between the
ALJ’s testimony and the DOT descriptions for these jobs.
Second, and perhaps even more importantly, the vocational expert did not testify live at
the hearing; the ALJ here relied solely on interrogatories submitted to the vocational expert. In
such a procedure, there is no opportunity for follow-up questions or discussion about the
vocational expert’s testimony. And despite being asked a follow-up interrogatory about whether
her testimony differed from the DOT, the vocational expert failed to explain her opinion or any
conflict with the DOT. In McFarland, by contrast, the vocational expert testified “that her
experience as a rehabilitation counselor for twenty years informed her testimony that two of the
three cited jobs, laundry worker and collator, allow for sitting and standing at will and the third,
an office helper, allows for a worker to move about more freely.”

McFarland, 2015 WL

2383461 at *24. In Heilig, the vocational expert explained with regard to the positions she
suggested that “there would likely be the ability to sit and stand in all three of those last positions
I gave . . .” Heilig, 2016 WL 559220 at *4. And in Albright, the ALJ “gave great time and

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detail in the exploration of any possible conflict” with the DOT. Albright, 2016 WL 98169 at
*7-8.

See also Reynolds v. Barnhart, 36 Fed. Appx. 575, 576 (8th Cir. June 14, 2002)

(unpublished) (affirming the ALJ’s decision where the claimant had a sit/stand requirement
because “the vocational expert provided additional information about certain jobs listed in the
DOT, namely, whether those jobs allowed workers to alternate between sitting and standing. The
vocational expert’s testimony did not contradict any information in the DOT; rather, it served as
a supplement to that information.”).
No such explanation was present here. Thus, Moore appears to control. A sit/stand
option every 30 minutes throughout the workday is a significant limitation that conflicts with
DOT definitions for sedentary positions not mentioning such an accommodation or possibility.
As Moore and Kemp make clear, an ALJ fails to comply with step five of the disability analysis
if he relies on vocational expert testimony that conflicts with the DOT without asking the
vocational expert for explanation. Such unsupported testimony cannot constitute substantial
evidence of the existence of other available jobs in the economy. Here, the ALJ relied on
testimony from the vocational expert that was in conflict with the DOT, and the vocational
expert’s cursory attestation that her testimony was not in conflict is no amelioration. Thus, the
ALJ lacked substantial evidence for his finding at step five of the analysis.
The Court also rejects the Commissioner’s citation to Garrison and Harris. Garrison was
decided before the Eighth Circuit’s decision in Moore.

And in any case, Garrison is

distinguishable. There, the vocational expert testified live at the hearing, and the ALJ asked
specifically whether the testimony was consistent with the DOT “other than the sit, stand
option.” Garrison, 2014 WL 2452954 at *7. As such, the vocational expert was aware of the
conflict between her testimony and the DOT, and it was fair to presume that the vocational

14

expert accounted for it in rendering her professional opinion regarding the jobs that the claimant
could perform. Here, where the vocational expert only answered interrogatories, there is no
indication that she considered the inconsistency of the sit/stand requirement with the DOT, and
the conflict is neither accounted for nor explained.
Harris was decided after Moore, but is nonetheless highly distinguishable. In that case,
the claimant argued that her assigned RFC failed to encapsulate all of her impairments, and that
the hypothetical posed to the vocational expert was therefore inadequate. The court found
instead that “the restrictions . . . that were not incorporated in the RFC . . . were not credible.”
Harris, 2014 WL 5781205, at *8. In the instant matter, the question is not whether the additional
restrictions, such as the sit/stand limitation, were credible; indeed, the ALJ chose to include them
in Stamper’s RFC. (Tr. 23.) Instead, the question is whether the vocational expert offered
erroneous testimony because the testimony did not comply with the DOT, and the vocational
expert failed to explain any deviation. Harris is inapposite to the case at bar.
At step five of the sequential evaluation process, the Commissioner has the burden of
establishing that jobs exist in the economy that the claimant is capable of performing. See, e.g.,
Kemp, 743 F.3d at 633. Here, in attempting to meet that burden, the ALJ relied on testimony
that conflicts with the DOT, and the vocational expert offered no explanation for the conflicting
testimony. Thus, the burden was not met. See Montgomery v. Chater, 69 F.3d 273, 275–77 (8th
Cir. 1995) (reversing based on conflict between the vocational expert’s testimony and the DOT,
and explaining that “[t]he [vocational expert’s] task is to determine whether jobs exist for
someone with the claimant’s precise disabilities”) (citation and internal quotation marks
omitted). Accordingly, the case will be remanded for additional determination of whether jobs
exist in the economy that Stamper is capable of performing.

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VI.

Conclusion

For the reasons discussed above, the Court finds that the Commissioner’s decision is not
supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the
matter is remanded for further proceedings.

A separate Judgment in accordance with this

Memorandum and Order will be entered this same date.

____________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 30th day of March, 2016.

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