Gann v. Colvin

Filing 24

ORDER AND OPINION REVERSING COMMISSIONER'S FINAL DECISION DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS. Signed on 9/18/15 by District Judge Nanette K. Laughrey. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MICHAEL H. GANN,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 14-00757-CV-W-ODS-SSA

ORDER AND OPINION REVERSING COMMISSIONER’S FINAL DECISION
DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Pending is Plaintiff’s appeal of the Commissioner of Social Security’s final
decision denying his application for disability insurance benefits. The Commissioner’s
decision is reversed and the case is remanded for further proceedings.
1.

A conflict exists between the ALJ’s residual functional capacity (“RFC”)

determination, which was the basis of the hypotheticals he posed to the vocational
expert (“VE”), and the jobs that the VE opined Plaintiff could perform. More specifically,
the ALJ found, among other things, that Plaintiff “should never be expected to
understand, remember, or carry out detailed instructions.” R. at 30. The ALJ included
that limitation in his hypotheticals to the VE. R. at 75-77.
Although she was given this mental limitation, the VE opined that Plaintiff could
perform the jobs of retail marker, inserting machine operator, and electronic subassembler. R. at 76-66. These jobs, however, carry a reasoning level of two. See
DOT Codes 208.685-018, 209.587-034, and 729.684-054. A reasoning level of two
requires the ability to “[a]pply commonsense understanding to carry out detailed but
uninvolved written or oral instructions. Deal with problems involving a few concrete
variables in or from standardized situations.” Dictionary of Occupational Titles,
Appendix C (4th Ed., Rev. 1991); see also Hulsey v. Astrue, 622 F.3d 917, 923 (8th Cir.
2010).

Given that the ALJ specifically determined that Plaintiff should never be expected
to understand, remember, or carry out detailed instructions, the ALJ’s determination
conflicts with the VE’s opinion that Plaintiff could perform jobs requiring the ability to
understand and carry out detailed but uninvolved instructions. This conflict is
problematic because the ALJ, based upon the VE’s testimony, determined that Plaintiff
was not disabled and could perform work as a retail marker, inserting machine operator,
and electronic sub-assembler. R. at 36-37. Upon remand, the ALJ must address and
resolve this conflict.
2.

The ALJ must also obtain a consultative examination to determine the

extent of Plaintiff’s limitations stemming from hepatitis C and cirrhosis of the liver, which
the ALJ found to be severe impairments. To the extent limitations associated with
hepatitis C and cirrhosis of the liver are supported by substantial evidence in the record,
the ALJ shall incorporate those limitations in the RFC and elicit testimony from the VE
about whether Plaintiff can perform work and what jobs he could perform.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: September 18, 2015

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