Beringer v. Colvin

Filing 27

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief which Plaintiff seeks in his Complaint and Brief in Support of Plaintiffs Complaint is GRANTED in part and DENIED in part. [Docs. 1 , 15 , 22 .] IT IS FURTHER ORDERED that the Commissio ners decision of March 4, 2014 is REVERSED and REMANDED to re-examine whether the Commissioner has met its burden at step five to show that Beringer maintains the RFC to perform a significant number of jobs in the national economy. The ALJ must obta in vocational expert testimony, either live or in written form, that addresses the reasonable basis for the vocational experts testimony whether based on the DOT or some other source. IT IS FURTHER ORDERED that a Judgment of Reversal and Remand wi ll be filed contemporaneously with this Memorandum and Order remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4. Signed by Magistrate Judge Nannette A. Baker on 9/13/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEAN H. BERINGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:15-CV-1412 NAB

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 Dean Beringer’s application for supplemental security
income under the Social Security Act, 42 U.S.C. § 416 et seq. Beringer alleged disability due to
depression, inability to focus, bulging discs, arthritis in spine, inability to stand more than thirty
minutes, inability to sit more than fifteen minutes, chronic bronchitis, asthma, and chronic pain.
(Tr. 190.) The parties have consented to the exercise of authority by the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 9.] For the reasons set forth
below, the Court will reverse and remand the Commissioner’s final decision.
I.

Background
On June 7, 2011, Beringer applied for supplemental security income, alleging disability

since September 9, 2010. (Tr. 159-67.) The Social Security Administration (“SSA”) denied
Beringer’s claim and he filed a timely request for hearing before an administrative law judge
(“ALJ”).

(Tr. 98-99, 110-112.)

The SSA granted Beringer’s request for review and an

administrative hearing was held on February 25, 2013.

(Tr. 43-70.) Beringer, represented by

counsel, testified at the hearing. (Tr. 49-70.) On March 4, 2014, the ALJ found that Beringer
was not disabled as defined in the Society Security Act. (Tr. 14-36.) Beringer requested a
review of the ALJ’s decision from the Appeals Council. (Tr. 10.) On July 17, 2015, the Appeals
Council of the Social Security Administration denied Beringer’s request for review. (Tr. 1-4.)
The decision of the ALJ thus stands as the final decision of the Commissioner. See Sims v.
Apfel, 530 U.S. 103, 107 (2000).
Beringer filed this appeal on September 14, 2015. [Doc 1.] The Commissioner filed an
Answer and the certified Administrative Transcript on November 16, 2015. [Docs. 11, 12.]
Beringer filed a Brief in Support of the Complaint on January 20, 2016. [Doc. 15.] The
Commissioner filed a Brief in Support of the Answer on April 20, 2016. [Doc. 21.] Beringer
then filed a Reply Brief on May 3, 2016. [Doc. 22.] Beringer filed a Notice of Supplemental
Authority on September 1, 2016. [Doc. 24.]
II.

Standard of Review
The Social Security Act defines disability as an “inability 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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A).
The SSA uses a five-step analysis to determine whether a claimant seeking disability
benefits is in fact disabled. 20 C.F.R. § 416.920(a)(1). First, the claimant must not be engaged
in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). Second, the claimant must establish
that he or she has an impairment or combination of impairments that significantly limits his or
her ability to perform basic work activities and meets the durational requirements of the Act. 20
C.F.R. § 416.920(a)(4)(ii). Third, the claimant must establish that his or her impairment meets

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or equals an impairment listed in the appendix to the applicable regulations.

20 C.F.R.

§ 416.920(a)(4)(iii). If the claimant’s impairments do not meet or equal a listed impairment, the
SSA determines the claimant’s residual functional capacity (RFC) to perform past relevant work.
20 C.F.R. § 416.920(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. § 416.920(a)(iv). If the claimant meets this burden, the analysis
proceeds to step five. At step five, the burden shifts to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs in the national economy.
Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all of the criteria
under the five-step evaluation, the ALJ will find the claimant to be disabled.

20 C.F.R.

§ 416.920(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a contrary
outcome or because the Court would have decided the case differently. Id. If, after reviewing
the record as a whole, the Court finds it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s finding, the Commissioner’s
decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). To

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determine whether the ALJ’s final decision is supported by substantial evidence, the Court is
required to review the administrative record as a whole 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).
III.

Discussion
Beringer presents one issue for review. Beringer asserts that the ALJ erred at step five by

relying upon the VE’s testimony about certain functional limitations that are not addressed in the
Dictionary of Occupational Title 1 (DOT) and the VE offered no reasonable explanation for her
testimony.

Therefore, Beringer contends that the ALJ’s determination of disability is not

supported by substantial evidence. The Commissioner contends that the ALJ’s decision is
supported by substantial evidence in the record as a whole and should be affirmed.

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The Dictionary of Occupational Titles (“DOT”) is a guide from the United States Department of Labor regarding
job ability levels that has been approved for use in Social Security cases. See Fines v. Apfel, 149 F.3d 893, 895 (8th
Cir. 1998) (citing 20 C.F.R. § 404.1566(d)(1)); Porch v. Chater, 115 F.3d 567, 571 (8th Cir.1997)). “The DOT is
the Commissioner’s primary source of reliable job information. The Commissioner uses the DOT to classify
occupations as skilled, semiskilled or unskilled.” Fines, 149 F.3d at 895 (internal citations omitted).

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A.

Vocational Expert Testimony

In this case, the ALJ submitted four sets of written interrogatories to a vocational expert
(VE). In the first two interrogatories, the ALJ asked the VE to identify Beringer’s past relevant
work.

(Tr. 266, 286.)

The VE identified Beringer’s past relevant work as a furniture

mover/delivery and shift manager/sales/delivery. (Tr. 273-74, 286-87.) In the first interrogatory,
the ALJ then asked the VE to assume the following hypothetical:
Assume a hypothetical individual who was born on
September 29, 1970, 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 question #6. Assume further that this
individual has the residual functional capacity (RFC) to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) 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 15 minutes throughout the eight-hour workday
while remaining on task. He is to avoid concentrated
exposure to extreme vibration and all operational control of
moving machinery, working at unprotected heights, and the
use of hazardous machinery. Furthermore, he is limited to
work that involves only simple, routine, and repetitive tasks.
In a low stress job defined as requiring only occasional
decision making and only occasional changes in the work
setting with only occasional interaction with the public with
co-workers. He is limited to occupations where contact with
supervisors concerning work duties (when work duties are
being performed satisfactorily) occurring no more than four
times per workday.
(Tr. 267). The VE opined that the hypothetical individual would not be able to perform any of
Beringer’s past relevant work. (Tr. 274.) The VE also opined that the hypothetical individual
would be unable to work in any other unskilled occupations with jobs that exist in the local and
national economies. (Tr. 268, 274.)

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The ALJ then sent the ALJ a second interrogatory with a hypothetical that stated as
follows:
Assume a hypothetical individual who was born on
September 29, 1970, 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 question #6. Assume further that this
individual has the residual functional capacity (RFC) to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), with the following additional limitations: he can
occasionally stoop and climb ramps or stairs; cannot climb
ropes, ladders, or scaffolds; must avoid concentrated
exposure to extreme vibration and all operational control of
moving machinery, working at unprotected heights, and use
of hazardous machinery; is limited to performing work that
involves only simple, routine, and repetitive tasks in a lowstress job, defined as one requiring only occasional decisionmaking and only occasional changes in the work setting; and
is limited to performing occupations that require no more
than occasional contact with supervisors, coworkers, and the
public.
(Tr. 282.) Again, the VE opined that the hypothetical individual would be unable to perform
Beringer’s past relevant work, but she opined he would be able to perform work as a garment
sorter, electrical assembler, or merchandise marker. (Tr. 287.)
The ALJ then sent the VE a third interrogatory. (Tr. 300-301.) The third interrogatory
asked the VE to assume the facts in the second hypothetical with the additional limitation that the
hypothetical individual would be off task more than 10% of the time with a corresponding
deficiency in productivity of no more than 10%. (Tr. 300-301.) The VE responded that the
hypothetical individual would not be able to perform Beringer’s past relevant work. (Tr. 304.)
The VE responded that the hypothetical individual would be able to work as a garment sorter,
electrical assembler, or merchandise marker being off task more than 10% of the time. (Tr. 304.)

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The ALJ then sent the VE a fourth interrogatory. (Tr. 316-21.) The fourth interrogatory
asked the VE to assume the facts in the second hypothetical with the additional limitation that the
hypothetical individual would be off task 10% to 25% of the time in addition to regularly
scheduled breaks. (Tr. 316-21.) The VE responded that the hypothetical individual would be
able to work as a garment sorter, electrical assembler, or merchandise marker being off task 10%
or 15% of time. (Tr. 324-25.) The VE opined, however, that if the hypothetical individual was
off task 20% or 25% of the time, the hypothetical individual would not be able to perform in any
unskilled occupations in the local and national economy.

(Tr. 325.)

In each of the four

interrogatory responses, when asked whether there were any conflicts between the occupational
evidence she provided and the DOT and/or SCO, the VE responded, “No, there are no conflicts
between the occupational evidence that I have provided in reference to [the questions] and the
occupational information contained the Dictionary of Occupational Titles and/or SCO.” (Tr.
274, 280, 325.)
The ALJ found that Beringer had the RFC to perform light work with the following
additional limitations: (1) occasionally stoop and climb ramps or stairs; (2) cannot climb ropes,
ladders, or scaffolds; (3) must avoid concentrated exposure to extreme vibration and all
operational control of moving machinery, working at unprotected heights, and use of hazardous
machinery; (4) limited to performing simple, routine, and repetitive tasks in a low-stress job,
defined as one requiring only occasional decision-making and occasional changes in the work
setting; and (5) no more than occasional contact with supervisors, coworkers, and the public.
(Tr. 23.) The ALJ determined that based on the RFC, Beringer would be unable to perform his
past relevant work, but he was able to perform jobs in the local and national economy as a
garment sorter, electrical assembler, and merchandise marker. (Tr. 35.)

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B.

Legal Standard regarding Vocational Testimony

“The testimony of a vocational expert is required when a claimant has satisfied his initial
burden of showing that he is incapable of performing his past relevant work.” Pickney v. Chater,
96 F.3d 294, 296 (8th Cir. 1996). The testimony of a VE should be consistent with the DOT.
See Social Security Ruling (SSR) 00-4p, 2000 WL 1898704 at *2 (December 4, 2000). Evidence
from a VE can include information not listed in the DOT. SSR 00-4p at *2. This is because the
DOT lists “maximum requirements of occupations” and “not the range of requirements” at any
particular job or place. Id. at *3. A VE may be able to provide more specific information about
jobs or occupations than the DOT. SSR 00-40 at *3. The Social Security Administration has
taken administrative notice of the following publications:

the DOT, the County Business

Patterns, Census Reports, Occupational analyses prepared for the Social Security Administration
by various State employment agencies; and the Occupational Outlook Handbook. 20 C.F.R.
§ 416.966(d).
“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 v. Colvin, 769 F.3d
987, 990 (8th Cir. 2014) (citing Welsch v. Colvin, 765 F.3d 926, 930 (8th Cir. 2014)). First, the
ALJ must ask about any possible conflict with the DOT. Id. at 989. If there is an apparent
unresolved conflict between the 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 VE provides a basis for relying on the VE testimony rather than the DOT information. Id. at
989-90 (citing SSR 00-4p at 2-4). “Absent adequate rebuttal, however, the VE testimony that
conflicts with the DOT does not constitute substantial evidence upon which the Commissioner

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may rely to meet the burden of proving the existence of other jobs in the economy a claimant can
perform.” Id. at 990.
C.

Analysis

Beringer contends that the VE’s testimony cannot be relied upon, because the VE
responded to a hypothetical question regarding functional limitations involving stress level,
frequency of decision-making, frequency of changes in work setting, and frequency of contact
with supervisors. Because those aspects of the jobs are not described by the DOT, The Selected
Characteristics of Occupations (SCO) 2, or the other publications of which the Commissioner has
taken administrative notice and the VE did not reveal the source of her opinion regarding those
limitations, her testimony cannot constitute substantial evidence. The Commissioner responds
that there is no actual or apparent conflict between the VE’s testimony and the relevant DOT job
descriptions. The Commissioner states that Beringer has only identified information that is
outside the scope of the DOT.
Based on the foregoing, the Court finds that this action should be reversed and remanded
to the Commissioner for further proceedings. The ALJ’s finding that the Commissioner met its
burden at step five to prove that there were jobs that Beringer could perform in the national
economy is not supported by substantial evidence.

The Commissioner is correct that the

functional limitations highlighted by Beringer are outside the scope of the DOT. Therefore, if
the VE identifies jobs that the hypothetical individual can perform including the limitations not
addressed by the DOT, then the VE must state the basis for his or her knowledge that the jobs
identified could be performed by the hypothetical individual.

In situations where some

functional limitations are not addressed by the DOT or SCO, the VE will support her opinion
based on her education and vocational experience. For example, VEs regularly testify regarding
2

The Selected Characteristics of Occupations is a companion volume to the DOT.

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the number of breaks acceptable in the workplace and the number of absences allowed in
competitive employment. That information is not included in the DOT or SCO. If the VE
testifies that a particular job can be performed with the limitations identified by the ALJ, then
those limitations must be addressed in the DOT or supported by other evidence from the VE. In
this case, the VE did not testify live and the ALJ relied solely on the VE’s written interrogatory
responses. When written interrogatories are used, there is no opportunity for follow-up or
discussion about the vocational expert’s testimony. Therefore, the case must be remanded to reexamine whether the Commissioner has met her burden at step five to show that Beringer
maintains the RFC to perform a significant number of jobs in the national economy. The ALJ
must obtain vocational expert testimony either live or in written form that addresses the
reasonable basis for the vocational expert’s testimony whether based on the DOT or some other
source.
The Court is aware that upon remand, the ALJ’s decision as to non-disability may not
change after addressing the deficiencies noted herein, but the determination is one the
Commissioner must make in the first instance. See Buckner v. Apfel, 213 F.3d 1006, 1011 (8th
Cir. 2000) (when a claimant appeals from the Commissioner’s denial of benefits and the denial is
improper, out of an abundant deference to the ALJ, the Court remands the case for further
administrative proceedings). Because Beringer first applied for benefits in 2011 and it is now
2016, the Commissioner is urged to begin proceedings without delay and resolve this case as
soon as possible.
Accordingly,

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IT IS HEREBY ORDERED that the relief which Plaintiff seeks in his Complaint and
Brief in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs.
1, 15, 22.]
IT IS FURTHER ORDERED that the Commissioner’s decision of March 4, 2014 is
REVERSED and REMANDED to re-examine whether the Commissioner has met its burden at
step five to show that Beringer maintains the RFC to perform a significant number of jobs in the
national economy. The ALJ must obtain vocational expert testimony, either live or in written
form, that addresses the reasonable basis for the vocational expert’s testimony whether based on
the DOT or some other source.
IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed
contemporaneously with this Memorandum and Order remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.

Dated this 13th day of September, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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