Porter v. Berryhill
ORDER entered by Judge Nanette K. Laughrey. The Court reverses and remands the decision of the ALJ. Signed on 3/7/18 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
PAMELA S. PORTER,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Plaintiff Pamela Porter appeals the Commissioner of Social Security’s final decision
denying her application for disability insurance benefits under Title II and Title XVI of the
Social Security Act. For the following reasons, the Court reverses and remands the decision of
Porter was born in 1970, and alleges that she became disabled beginning on 2/3/2012.
She filed her initial applications for Titles II and XVI benefits on 6/14/2012. The ALJ held a
hearing on 11/13/2013, and issued a decision denying benefits on 1/31/2014. After the Appeals
Council declined to review the ALJ’s decision, Porter appealed to this Court. On 6/22/2015, the
Court found that the ALJ committed reversible error, and remanded the case for reconsideration.
See Porter v. Colvin, No. 4:14-CV-00813-NKL, 2015 WL 3843268, at *1 (W.D. Mo. June 22,
2015); Tr. 744. On 11/9/2016, the ALJ held a second hearing, and on 11/30/2016 issued another
unfavorable decision. Porter then filed a timely appeal with this Court.
Porter claims disability based primarily on morbid obesity, Chronic Obstructive
Pulmonary Disease (COPD), bilateral knee degenerative arthritis, sleep apnea, depression,
anxiety, carpal tunnel, a right shoulder impairment, hypertension, and GERD.
In August 2009, Porter presented to the ED with a cough, intermittent fevers, and a sore
throat. She was diagnosed with bronchitis with wheezing, and prescribed Bactrim, Prednisone,
and Tessalon Perles. Tr. 347. A week later Porter was admitted to the hospital, and treated with
Cymbalta and a CPAP machine. She spent three days in the hospital, and was discharged with
prescriptions for Xanax, Cymbalta, Lisinopril/HCTZ, Prednisone taper, Advair, and Singulair.
Her diagnoses included asthma exacerbation, tobacco abuse, obesity, hypertension, and
depression. Tr. 339.
In June 2010, Porter visited Dr. Navato, her treating psychiatrist.
Her mood was
depressed, and Dr. Navato prescribed Trazodone for her anxiety. Tr. 384. Porter returned to Dr.
Navato in December 2010, and by January 2011 she reported feeling hopeful and her mood was
stable. Tr. 382. In May 2011, however, Porter reported that she was not sleeping well and felt
the effects of her medication were not lasting as long. She stated that her whole body was
hurting, and the pain was waking her up. Tr. 381. In June 2011, Porter reported that she was
still in pain “all the time.” Tr. 380.
In October 2011, Porter was evaluated in the emergency department. She stated that she
had suffered back and leg pain for the last five days, and that she had fallen out of bed the
previous night. Sciatica was diagnosed, and Ultram, Prednisone, and Soma were prescribed. Tr.
413. Porter returned to the emergency department in December with vomiting and diarrhea.
In January 2012, Porter visited Dr. Navato again. Her mood was euthymic, and she was
still battling depression. She reported sleep disturbance, low motivation, and low mood. She
was diagnosed with major depressive disorder and anxiety disorder, and Abilify was prescribed.
Tr. 378. Several weeks later Porter reported that she was still depressed and could not tolerate
Trazodone and Abilify were discontinued, and Cymbalta, Seroquel, Xanax, and
Lidoderm patches were prescribed. Tr. 377.
In February 2012, Porter returned to the emergency department because she injured her
right shoulder at work trying to lift fifty pound bags of cat litter. She was diagnosed with a right
shoulder strain, and Zanaflex and Vicodin were prescribed. Tr. 417.
Throughout March 2012, Porter visited various physicians complaining of shortness of
breath, intermittent fever, and chills. She refused BiPAP and intermittently took off her oxygen.
During one visit she was found to have pneumonia and admitted to the hospital. Tr. 423. While
in the hospital, one of Porter’s doctors learned that she may not have been getting the amount of
oxygen that she needed. Tr. 431. The doctor diagnosed exacerbation of COPD, pulmonary
infiltrates, hilar and mediastinal adenopathy, oropharyngeal thrush, obesity, and obstructive sleep
apnea. Tr. 432. When Porter was ultimately discharged from the hospital, her medications
included Levaquin, Diflucan, Prednisone, Albuterol nebulizer solution, Vitamin D, Guaifinesin,
Prilosec, Colace, Milk of Magnesia, Dyazide, Lisinopril, Pravastatin, Xanax, Cymbalta,
Tramadol, Tylenol, Skelaxin, Advair, Zanaflex, Iron, low-dose Insulin sliding scale, and Zyrtec.
In April 2012, Porter visited Erich Lingenfelter, M.D., who evaluated her for pain in her
right shoulder. Tr. 1546. She reported that physical therapy had not been helpful. X-rays were
negative, and an MRI did not show any structural damage to the rotator cuff but showed some
degenerative changes. Dr. Lingenfelter stated that Porter’s pain was drastically out of proportion
to any pathology that this mechanism might cause, and noted that Porter was grossly obese, with
extremely poor body habitus, and fibromyalgia. He also observed that Porter was on Cymbalta
and anxiolytic medications, which can cause perceptions of pain to be over the top at times. Tr.
1546. He released Porter to work with limitations in overhead lifting and repetitive outreaching.
Porter visited Dr. Navato again in May 2012. Her mood was dysthymic with a normal
affect. She experienced problems with depression and insomnia, was not working, and had no
income. She was prescribed Trazodone, Cymbalta, Seroquel, Xanax, and Lidoderm patches. Tr.
375. Porter also saw Dr. Lingenfelter again, who released her to full duties with respect to her
right shoulder. Tr. 2310.
In July 2012, Porter visited Rachel Whitfield, a nurse practitioner. Tr. 363. She reported
feeling “okay,” but had upper respiratory infection symptoms, and an examination showed
scattered wheezing. Porter was diagnosed with tobacco use disorder, HTN, lumbago, chronic
airway obstruction, obesity, and esophageal reflux. She also had very elevated cholesterol, and
Fish Oil was prescribed. Cipro was prescribed for chronic airway obstruction, and samples of
Symbicort aerosol and Albuterol nebulizer were given. Tr. 395.
Porter’s mental state was unchanged through August 2012. She visited Dr. Navato in
September 2012, and reported that she enjoyed her summer and spent time reading. However,
by October she reported that she was not journaling because she was afraid someone would find
the journal and use the information against her. Tr. 525.
Dr. Navato examined Porter in January 2013, which revealed a smoker’s cough, normal
gait, mildly depressed mood, good attention and concentration, normal memory, and good
judgment. Tr. 522. In February Porter visited R. Whitfield, NP, and was diagnosed with COPD
exacerbation, morbid obesity, and sleep apnea. Cipro and Prednisone were prescribed, and
Porter was referred to a bariatric surgeon and to sleep medicine. Tr. 612-13. In March, Porter
was examined by Dr. Bhat in the Sleep Clinic. A sleep study showed “very severe obstructive
sleep apnea,” which was corrected during the study.
best sleep quality” and extra energy. Tr. 545.
The following day, Porter reported “the
In April 2013, Porter presented to the emergency department with bilateral foot pain and
An EKG showed sinus tachycardia.
A chest x-ray showed mild multilevel
degenerative disc disease within the spine and mild cardiomegaly. Tr. 557. HCTZ and Ultram
were prescribed. Tr. 560. An echocardiogram later that month revealed normal left ventricular
ejection fraction, tachycardia, and trace mitral regurgitation. She was admitted to the hospital a
week later for pitting edema in both legs, fatty infiltrate of the liver, and acute exacerbation of
COPD and dyspnea. Tr. 587-88.
In May 2013, Porter saw Dr. Bhat and reported 62% compliance with her CPAP. She
was encouraged to increase her compliance, lose weight, and stop smoking. Porter was also
examined by R. Whitfield, NP, and reported experiencing right knee pain, which intensified with
bending and weight bearing. She rated her pain an 8 out of 10. She was diagnosed with
osteoarthritis, allergic rhinitis, hypercholesterolemia, tobacco use disorder, chronic airway
obstruction, and esophageal reflux. Meloxicam and Zyrtec were prescribed. Tr. 607.
In June 2013, Porter presented to the emergency department, where a chest x-ray
revealed chronic interstitial changes and peribronchial cuffing consistent with chronic bronchitis.
Prednisone and breathing treatments were administered, and Porter reported feeling better. Tr.
Dyspnea, COPD exacerbation, and bronchitis were diagnosed, and Prednisone and
Levaquin were prescribed.
Porter was also directed to use home oxygen and breathing
treatments. Tr. 554. Porter continued to visit the emergency department and her doctors
throughout July and August complaining of similar symptoms and receiving similar diagnoses.
In August 2013, Porter was examined by Dr. Conaway, a cardiologist, for pre-op
clearance prior to possible lap band surgery. Tr. 621. Dr. Conaway opined the edema was likely
due to venous stasis secondary to morbid obesity. He opted to re-evaluate Porter again in three
In October 2013, Porter was examined for a cough and upper respiratory infection that
was not responding to her medications. Tr. 984. Examination showed pharyngeal edema and
moderate wheezes, and upper respiratory infection and acute sinusitis were diagnosed. Tr. 986.
Cipro and Guafenesin were prescribed. Tr. 987. Later that month, Porter was examined for a
bad cold with productive cough. She was running low on breathing treatment medication and
had no energy. She reported using her CPAP faithfully. She was diagnosed with allergic
rhinitis, obstructive sleep apnea, morbid obesity, COPD, and acute bronchitis.
prescribed Albuterol nebulizer solution, Symbicort, Albuterol inhaler, Prednisone taper, and
Singulair to help midigate her symptoms.
Porter visited Dr. Navato in February 2014, where she had an elevated/expansive,
activity/psychomotor retardation. She was diagnosed with major depressive disorder for which
Zoloft was to be increase, and she received refills on Trazadone, Xanax, Abilify, and Lyrica. Tr.
1292. In April 2014, R. Whitfield, NP, reported that Porter was feeling down, depressed, or
hopeless, and suicidal ideation more than half the days. Tr. 1103-04.
In July 2014, Porter visited Pim Jetanalin, M.D., in the rheumatology clinic. She reported
low back, hip, and knee pain, as well as weakness, decreased activity, nasal congestion, shortness
of air, nausea, and depression. Tr. 1166. She was diagnosed with chronic multiple joint and
back pain, COPD, morbid obesity, and obstructive sleep apnea. Tr. 1167-68.
In August 2014, Porter reported to the emergency room for lower back pain, and
examination showed tenderness in the lumbar spine. Tr. 977. Two weeks later, Porter visited
the rheumatology clinic again, for pain in lower lumbar, hips, and knees. She also reported
fatigue, nausea, and depression. Tr. 1051-1053. A chest x-ray showed chronic interstitial
changes and periobronchial cuffing consistent with chronic bronchitis. Physical therapy and
strengthening exercises were recommended.
Dr. Jetanalin preferred to avoid narcotic pain
medication due to the potential for addictions, tolerance, and overdose. Neurontin was added to
Meloxicam and Cymbalta.
Throughout October 2014, Porter visited neurosurgery and the rheumatology clinic for
back, hip, and knee pain. Tr. 1649-54, 1037. She received diagnoses of low back pain, lumbar
spine spondylosis, mid thoracic pain, morbid obesity, Tr. 1650, osteoarthritis and degenerative
disc disease, and spinal stenosis. Tr. 1042. Physical therapy was recommended, but Porter
stated that she could not afford it. Celebrex, Flexeril, and Ultracet were prescribed, Gabapentin
was continued, and weight loss and smoking cessation were encouraged.
Porter was admitted to the hospital in December 2014. Her discharge diagnoses included
COPD exacerbation, acute bronchitis, acute sinusitis, respiratory distress, morbid obesity, type 2
diabetes, obstructive sleep apnea, hypertension, depression, leukocytosis, dyslipidemia,
hypercapnia, and tobacco abuse. Tr. 1203. Discharge medications included azithromycin,
Proventil, DuoNeb treatments, Norco, Advair, Mucinex, Vantin, Cymbalta, Xanax, Simvastatin,
Tylenol, Flexeril, Prinzide, Potassium, Lasix, Mobic, Zetia, Neurontin, and Oxygen. Tr. 1204.
In January 2015, Porter returned to neurosurgery. She continued to take Ultracet, and
still had lower back pain. Low back pain, lumbar spondylosis, morbid obesity, and hypertension
were diagnosed. Surgery was not recommended. Porter also visited Dr. Navato, who conducted
a psychiatric evaluation. He diagnosed major depressive disorder requiring ongoing therapy and
psychotropics, including Zoloft, Trazadone, Xanax, Abilify, Lyrica, and Lunesta.
In February 2015, a pulmonary function test showed mild obstructive airway disease of
the peripheral airway. Tr. 1300. Porter also visited the emergency department with right knee
pain, was prescribed Norco, and referred to sports medicine.
She returned to
neurosurgery, where she was seen for continued low back pain. Lyrica and Flexeril provided
little relief, and Porter was unable to afford physical therapy. She also reported decreased
activity, depression, and anxiety. Tr. 1831. Home exercise, pain management, Zanaflex, and
Tramadol were prescribed, and Ultracet and Flexeril were discontinued.
Porter visited Dr. Schulz in sports medicine in March 2015. Diagnoses included right
rhomboid strain due to poor posture and severe medical compartment osteoarthritis of the right
knee. Injections with a heel wedge were recommended, as was a knee replacement. Tr. 1955. A
trigger point injection was administered for Porter’s right shoulder, as well as exercises. Two
weeks later, Porter reported that the shoulder injection provided one week of improvement. Tr.
In April 2015, Porter was seen in orthopedics for her right knee pain. Tr. 1978. Dr.
McCormack performed a right knee arthroscopy and partial meniscectomy. Tr. 1996-97. Two
weeks later, Porters symptoms had improved, but Dr. McCormack still indicated that a partial
knee replacement would eventually be necessary. Porter returned to the orthopedic clinic in July,
because her right knee pain was not responding to anti-inflammatories. An injection was given,
and an assistive devise recommended.
In August 2015, Dr. McCormack performed a right knee replacement for Porter. Tr.
1993. In September 2015, five weeks post-op, Porter ambulated with a cane, and reported she
was “pleased with her progress.” Tr. 1964. In November 2015, Porter was discharged from
physical therapy. Tr. 1928.
Plaintiff was hospitalized for a week in April 2016, with acute-on-chronic respiratory
failure, post-viral pneumonia, hypercholesterolemia, GERD, hypertension, and steroid induced
hyperglycemia. Tr. 2132.
In June 2016, Porter visited the sleep clinic, and was noted to be using her CPAP 93% of
the time. Diagnoses included severe obstructive sleep apnea—intolerant of CPAP and nocturnal
hypoxemia. Tr. 1796.
Michael Navato, M.D., Porter’s treating psychiatrist, completed several reports regarding
Porter’s functional capacity. Dr. Navato’s 2013 report revealed greater restrictions than a 2012
In August 2013, Dr. Navato completed a Mental Residual Functional Capacity
Assessment form, in which he opined that Porter suffered from mild limitations in her ability to
remember locations and work procedures; understand, remember, and carry out very short and
simple instructions, sustain an ordinary routine without special supervision, interact
appropriately with the general public, ask simple questions or request assistance, maintain
socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and be
aware of normal hazards and take appropriate precautions. Tr. 569. He opined that Porter was
moderately limited in her ability to travel in unfamiliar places or use public transportation. Tr.
570. Dr. Navato stated that Porter had marked limitation in her ability to maintain attention and
concentration for extended periods, work in coordination with or proximity to others without
being distracted by them, make simple work-like decisions, get along with co-workers and peers
without distracting them or exhibiting behavioral extremes, respond appropriately to changes in
the work setting, and set realistic goals or make plans independently of others. Tr. 569-70. Dr.
Navato stated that Porter was extremely limited in her ability to complete a normal workday or
work week without interruptions from psychologically based symptoms, perform at a consistent
pace without an unreasonable number or length of rest periods, and get along with coworkers and
peers without distracting them or exhibiting behavioral extremes.
In October 2016, Dr. Navato updated his opinions and confirmed that Porter had been
treated with outpatient individual psychotherapy, group therapy, and medication trials but that
her problem areas prevented her from returning to full time work. He also completed another
Mental Residual Functional Capacity Assessment. Tr. 2199. Dr. Navato opined that Porter had
marked limitations in the ability to understand, remember, and carry out detailed instructions,
maintain attention and concentration for extended periods, perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances, complete a normal
workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods, accept
instructions and respond appropriately to criticism from supervisors, get along with co-workers
and peers without distracting them or exhibiting behavioral extremes. Tr. 2200. Dr. Navato also
opined that Porter had marked limitations in the ability to work in coordination with or proximity
to others without being distracted by them. He also opined that Porter had moderate limitations
in her ability to respond appropriately to change in the work setting, and set realistic goals or
make plans independently of others. Tr. 2200. The ALJ considered Dr. Navato’s statements that
Porter is markedly limited secondary to emotional/mental impairment, but afforded them little
weight. The ALJ considered Dr. Navato’s statements with regard to Porter’s ability to return to
competitive employment, but afforded them no weight. Tr. 646-47.
Charles W. Watson, Psy. D., a State Agency reviewing physician, offered an opinion in
September 2012. Tr. 122. Dr. Watson stated that Porter had mild restrictions of activities of
daily living, mild difficulties maintaining social functioning, and moderate difficulties
maintaining concentration, persistence, or pace due to medically determinable affective and
anxiety disorders. Tr. 121. He opined that Porter appeared to have the ability to acquire and
retain at least simple instructions and to sustain concentration and persistence with simple
repetitive tasks and had no significant impairment with social interaction. Dr. Watson opined
that Porter was moderately limited in her ability to understand, remember, and carry out detailed
instructions, to maintain attention and concentration for extended periods, work in coordination
with or proximity to others without being distracted by them, and interact appropriately with the
general public. Tr. 126. The ALJ gave Dr. Watson’s opinions some weight. Tr. 647.
Mel Moore, M.D., a State Agency reviewing physician, provided a statement in October
2012. Dr. Moore opined that Porter could lift and/or carry 20 pounds occasionally, 10 pounds
frequently, stand or walk for six hours per day, and sit for six hours per day. Tr. 124. He opined
that she was able to climb ramps and stairs frequently; climb ladders, ropes, and scaffolds
occasionally; and frequently balance, stoop, kneel, crouch, and crawl. Tr. 124. He opined that
she should avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation, and
hazards. Tr. 125. The ALJ gave Dr. Moore’s opinions some weight.
P. Brent Koprivica, M.D., a consultative examiner, provided a statement in April 2013.
He indicated that Porter should avoid repetitive reaching tasks with the right upper extremity;
that she should avoid repetitive pushing or pulling tasks with the right upper extremity; that she
should avoid repetitive or sustained activities above the shoulder girdle level on the right; and
that she would be limited from overhead lifting using the right arm at the shoulder. Tr. 1576. In
June 2016, Dr. Koprivica reviewed additional medical records and amended his opinion.
Although he stated that his opinions would not materially change, he indicated that Porter is
permanently disabled. Tr. 2171. The ALJ gave Dr. Koprivica’s April 2013 statement limited
weight, but his June 2016 amendment no weight. Tr. 646.
A licensed psychologist, John Keough, MA, examined Porter in December 2015. Tr.
1315. The examination showed mild-to-moderate depression and hostility. Mr. Keough opined
that Porter’s ability to understand and remember instructions was unimpaired. That she had the
ability to sustain concentration, persistence, or pace necessary for full-time employment with
simple tasks. Tr. 1317. He also opined that Porter had mild-to-moderate impairments of getting
along with others due to depression and anxiety. Tr. 1317. Mr. Keough completed a checkbox
medical source statement, which indicated no limitations in the ability to understand, remember,
and carry out instructions, mild limitations interacting with the public or co-workers, and
moderate limitations in interacting with supervisors and responding to changes in a routine work
setting. Tr. 1321-22. The ALJ gave Mr. Keough’s opinion’s some weight. Tr. 647.
Martin Isenberg, Ph.D., a state agency psychological consultant, reviewed Porter’s
records in February 2015. He opined that she had mild restriction of activities of daily living,
moderate difficulties maintaining social functioning, and moderate difficulties maintaining
concentration, persistence, or pace. Tr. 717. Dr. Isenberg opined that Porter was moderately
limited in the ability to accept instructions and respond appropriately to criticism from
supervisors. Tr. 722. The ALJ did not identify the weight given to Dr. Isenberg’s opinions.
Nancy Ceaser, MD, a non-examining, non-treating state agency physician, completed a
Residual Functional Capacity form on February 10, 2015. Tr. 718-720. She opined that Porter
could lift and/or carry 10 pounds; stand and/or walk 2 hours; sit 6 hours; never climb ladders,
ropes, scaffolds; occasionally climb ramps, stairs, balance, stoop, kneel, crouch, crawl; should
avoid concentrated exposure to extreme heat, extreme cold, wetness, humidity, vibration; and
avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation; hazards such as
machinery and heights. Tr. 718-20. The ALJ did not identify the weight given to Dr. Ceaser’s
Kala Danushkodi, MD examined Porter in December 2015. Tr. 1326. She opined that
Porter could occasionally lift and/or carry up to 20 pounds; frequently lift and/or carry up to 10
pounds; sit 4 hours at a time for up to 8 hours; stand and/or walk 2 hours at a time for up to 4
hours; requires a cane to ambulate on uneven surfaces; frequently reach, handle, finger, feel,
push and/or pull with the hands; occasionally operate foot controls; occasionally climb ramps
and stairs; never climb ladders, ropes, or scaffolds; never balance, stoop, kneel, crouch, or crawl;
never be exposed to unprotected heights, extreme cold, extreme heat; occasionally be exposed to
moving mechanical parts, operating a motor vehicle, humidity and wetness, dust, odors, fumes,
pulmonary irritants, and vibration. Tr. 1328-32. The ALJ gave Dr. Danushkodi’s opinion some
weight. Tr. 645.
On December 23, 2015, vocational expert Dr. Michael Dreiling conducted a vocational
assessment. Dr. Dreiling interviewed Porter, reviewed her vocational history, and reviewed her
medical records. Tr. 2580. He opined that she was unable to compete in the open job market,
and that she would not be capable of performing substantial gainful employment at any type of
job in the labor market. Tr. 2591. The ALJ afforded Dr. Dreiling’s opinion no weight.
The Hearing before the ALJ
On 11/9/2016, Porter testified at her hearing that she was 46 years old, has a GED, and
has not worked since her alleged onset date of 2/3/2012. Tr. 666. She stated that she had a
cosmetology license in the past, and that cosmetology work was her only previous full time job.
Porter testified that in the time since her first hearing she had knee replacement surgery in
one leg, and was scheduled for a second knee replacement. Tr. 668. She testified that her knees
cause significant pain, and limit her ability to stand and to walk. She also testified about lower
back pain, which affects her ability to sit. Tr. 669. Porter testified that her right shoulder is also
constantly in pain. Tr. 670. She testified that she has pain in her feet and ankles caused by
osteoarthritis. Tr. 670. She stated that fibromyalgia caused “flu-like” symptoms three or four
times a week. Tr. 671. Porter also testified that “feeling of worthlessness,” crying, and extreme
lows prevent her from working, that she is bipolar, has manic episodes, and anxiety. Tr. 672.
She stated that she is on a lot of medication to manage her depression, but that it helps
considerably. Tr. 672. Porter also testified to her pulmonary and breathing problems.
Porter stated that she could not go up or down stairs, that she always takes someone
shopping with her, and that she cannot carry her bags when she shops. She stated that she does
the dishes, though she must do them in increments, and that she does not do the laundry because
it is located in the basement, however she helps fold clothes. Porter stated that she smokes two
packs of cigarettes a day.
Dr. Veltrano testified as a vocational expert at the hearing. Tr. 677. The ALJ posed to
Dr. Veltrano a hypothetical question, involving an individual of Porter’s age, education, and past
work experience. Tr. 678. The hypothetical individual could perform sedentary work, lift ten
pounds occasionally; stand and walk for about two hours and sit up to six hours in an eight hour
work day. The individual is capable of frequent pushing and pulling with the upper extremities,
and occasional foot control operations. The individual could not climb, kneel, crouch, or crawl,
walk on uneven surfaces, or reach overhead. The individual could occasionally stoop, and is
capable of frequent handling and fingering, and reaching in all directions except overhead. The
individual could not be exposed to extreme heat or cold, or any pulmonary irritants such as
fumes, odors, dust, gases, or poorly ventilated areas. The individual could not work around
unprotected heights or hazardous machinery, but could have occasional exposure to vibration,
wetness, and humidity, and could occasionally drive a motor vehicle. The individual could
perform simple, routine, repetitive tasks requiring occasional interaction with the public and
coworkers. The VE testified that such an individual could perform the work of document
preparer, printed circuit board inspector, and lens inserter. Tr. 679. All three jobs are SVP 2.
The ALJ asked the VE whether the testimony was consistent with the Dictionary of
The VE testified that it was, however, he also stated that it was
supplemented by his knowledge and experience “as it relates to no overhead reaching.” Tr. 680.
The ALJ determined that Porter suffered the following severe impairments: degenerative
disc disease, right shoulder arthritis and tendinopathy, bilateral hip osteoarthritis, bilateral knee
arthritis, fibromyalgia, chronic obstructive pulmonary disease, sleep apnea, obesity, anxiety, and
depression. The ALJ found that Porter has the residual functional capacity:
to lift and/or carry 10 pounds occasionally and frequently; sit (with usual breaks)
for about 6 hours in an 8 hour workday; and stand and/or walk (with usual breaks)
for about 2 hours in an 8-hour workday. The claimant is able to frequently push
and/or pull with the upper extremities. The claimant is able to occasionally
operate foot controls. The claimant is unable to climb, kneel, crouch or crawl.
The claimant is unable to walk on uneven surfaces. The claimant cannot perform
no overhead reaching, but is frequently able to reach in all other directions. The
claimant is occasionally able to stoop. The claimant is frequently able to handle
and finger. The claimant should have no exposure to extremes of heat or cold,
fumes, odors, dusts, gases, or poorly ventilated area. The claimant is unable to
work around dangers such as unprotected heights and hazardous machinery. The
claimant is occasionally able to tolerate exposure to vibration. The claimant is
occasionally able to operate a motor vehicle. The claimant is occasionally able o
work around wetness and humidity. The claimant can perform simple, routine
and repetitive tasks requiring only occasionally [sic] contact with the public and
Tr. 638. Relying on vocational expert testimony, the ALJ concluded that Porter’s impairments
would not preclude her from performing work that exists in significant numbers in the national
economy. Tr. 648.
The Court’s review of the Commissioner’s decision is limited to a determination of
whether the decision is supported by substantial evidence on the record as a whole. Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Substantial evidence is less than a preponderance but
enough that a reasonable mind might accept as adequate to support the Commissioner’s
conclusion. Id. The Court must consider evidence that both supports and detracts from the
Commissioner’s decision, but cannot reverse the decision because substantial evidence also
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). If the
Court finds that the evidence supports two inconsistent positions and one of those positions
represents the Commissioner’s findings, then the Commissioner’s decision must be affirmed.
Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015).
Porter argues that the Commissioner’s decision must be reversed because the ALJ failed
to consider and identify the weight given to all of the opinions of record, because the ALJ
violated the Court’s previous remand Order, because the ALJ’s RFC is unsupported by
substantial evidence, and because the Commissioner failed to sustain her burden at Step Five.
Under 20 C.F.R. § 404.1527(c), ALJs are required to consider all medical opinions, and
decide how much weight that each should be afforded. Porter argues that the ALJ committed
reversible error by failing to consider Dr. Ceaser and Dr. Isenberg’s medical opinions, or to
identify the weight that was given to them. The Commissioner concedes that the ALJ failed to
acknowledge either opinion, and that she was indeed required to. However, the Commissioner
maintains that the error was harmless. The Court disagrees.
There is some debate as to whether Dr. Ceaser’s opinion contains any restrictions that
were not adopted in the ALJ’s RFC.1
Dr. Isenberg’s opinion, however, contains several
limitations that the ALJ failed to include. Dr. Isenberg opined that Porter had mild restriction of
activities of daily living, moderate difficulties maintaining social functioning, and moderate
difficulties maintaining concentration, persistence, or pace. Tr. 717. He also opined that Porter
Porter argues that the ALJ omitted Dr. Ceaser’s limitations on climbing ladders, ropes, scaffolds,
ramps, and stairs, as well as balancing. The ALJ’s RFC found that Porter is unable to climb, which
presumably applies to everything. However, it is unclear how limitations on balancing relate to the ALJ’s
was moderately limited in her ability to accept instructions and respond appropriately to criticism
from supervisors. Tr. 722. Conversely, the only mental limitations found in the ALJ’s RFC are
that Porter “can perform simple, routine and repetitive tasks requiring only occasionally [sic]
contact with the public and coworkers.” Tr. 638.
The Commissioner argues that the ALJ’s error is harmless because simple, routine, and
repetitive work does not require more than occasional interactions with a supervisor. Yet, SSR
85-15 provides that, “[t]he basic mental demands of competitive, remunerative, unskilled work
include the abilities (on a sustained basis) . . . to respond appropriately to supervision, coworkers,
and usual work situations . . . .” See also SSR 96-9p (“These mental activities are generally
required by competitive, remunerative, unskilled work: . . . responding appropriately to
supervision, co-workers and usual work situations.”). Moreover, the Social Security Rulings
suggest that a “substantial loss of ability to meet any of these basic work-related activities would
severely limit the potential occupational base.” SSR 85-15. Therefore, the Commissioner’s post
hoc rationalization of the ALJ’s decision is unsupported by the Social Security Rulings.
The Commissioner also cites two cases in support of her argument, Hepp v. Astrue, 511
F.3d 798 (8th Cir. 2008), and Brueggemann v. Barnhart, 348 F.3d 689 (8th Cir. 2003). Neither
case, however, involved an ALJ’s failure to consider and weigh a medical opinion. In Hepp, the
ALJ found that a claimant could perform his past relevant work in one paragraph, but then stated
in another paragraph that the claimant could not. Hepp, 511 F.3d at 803. The Eighth Circuit
held that the error was harmless because in reading the opinion as a whole, it remained clear that
the ALJ found the claimant could perform his past work. Id. at 806. In Brueggemann, the
Eighth Circuit declined to apply the harmless error doctrine where an ALJ failed to follow
procedures that outlined how to account for substance abuse disorders. 348 F.3d at 695. There,
the Eighth Circuit noted that the ALJ’s “abbreviated decision-making” deprived it of a solid
record on which to decide. Brueggemann, 348 F.3d at 689. Indeed, this Court faces a similar
issue. The ALJ’s silence regarding Dr. Isenberg’s opinion hinders its ability to find that the error
Dr. Isenberg opined that Porter had limitations significantly impacting her ability to
perform work on a sustained basis. The ALJ failed to identify the weight afforded to the
opinion, and, moreover, there is nothing to suggest that the opinion was even considered. See
e.g., Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (finding that “given the ALJ’s
specific references to findings set forth in [the doctor’s] notes,” it is “highly unlikely that the
ALJ did not consider and reject [them]”). The Court cannot find such an error harmless, because
it is uncertain whether the ALJ would have reached the same decision had she considered the
opinion. It is possible, because the ALJ was permitted to discount Dr. Isenberg’s opinion.
However, the error is not that the ALJ discounted Dr. Isenberg’s opinion. The error is that it is
unclear whether the ALJ did discount the opinion, and why. See McCadney v. Astrue, 519 F.3d
764, 767 (8th Cir. 2008) (“The problem with the ALJ's opinion is that it is unclear whether the
ALJ did discount [the doctor’s] opinion, and, if it did so, why.”).
Accordingly, the Court orders remand.
This Court’s Previous Remand Order
Porter argues that the ALJ committed reversible error in violating the Court’s previous
remand Order. “Deviation from the court’s remand order in the subsequent administrative
proceeding is itself legal error, subject to reversal on further judicial review.” Sullivan v.
Hudson, 490 U.S. 877, 886 (1989). The doctrine of the law of the case and the mandate rule
“require[s] the administrative agency to conform its further proceedings in the case to the
principles set forth in the judicial decision, unless there is a compelling reason to depart.”
Grigsby v. Barnhart, 294 F.3d 1215, 1218 (10th Cir. 2002) (quoting Wilder v. Apfel, 153 F.3d
799, 803 (7th Cir. 1998)).
In the ALJ’s first decision, she afforded Dr. Navato’s opinion “little weight.” Upon
review, the Court found that decision not to be supported by substantial evidence. Tr. 754. In
the Court’s remand order, it directed the ALJ to afford increased weight to Dr. Navato’s opinion
“based on its degree of consistency with Porter’s medical records and his longstanding treatment
relationship with her.” Tr. 759. The ALJ subsequently afforded Dr. Navato’s opinion “little
weight” again, and offers no compelling reason for the ALJ’s departure.
The Commissioner argues that the ALJ’s failure to afford Dr. Navato’s opinion increased
weight, as she was ordered to, is supported by new evidence that has been added to the record in
the time since this case was initially remanded. While it is true that the record has grown by over
2,000 pages, and there are several new opinions, it does not appear from the ALJ’s decision that
it is the cause for her deviance. In explaining her decision to once again afford Dr. Navato’s
opinion little weight, the ALJ does not cite to any of the copious new evidence on the record.
Furthermore, the ALJ’s second decision fails to address the Court’s remand order at all, let alone
explain why she chose not to obey it. Indeed, the ALJ does not even attempt to distinguish her
second decision to afford Dr. Navato’s opinion little weight from her first.
This case has already been remanded on one occasion, in part because the ALJ erred in
her treatment of Dr. Navato’s opinion. The ALJ’s failure to obey the Court’s previous remand
order, or even attempt to offer a compelling reason for deviating, constitutes legal error, which
requires a second remand.
Support for the RFC
Residual functional capacity refers to what a claimant can still do despite physical or
mental limitations. 20 C.F.R. § 404.1545(a); Masters v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004). An ALJ must formulate the RFC based on all of the relevant, credible evidence in the
record. See Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012) (“Even though the RFC
assessment draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner.”) (quoting Cox v. Astrue, 495 F.3d 614, 619 (8th
Cir. 2007)). The RFC determination must be supported by substantial evidence, including at
least some medical evidence. Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000). Evidence
relevant to the RFC determination includes medical records, observations of treating physicians
and others, and a claimant’s own description of his limitations. McKinney v. Apfel, 228 F.3d
860, 863 (8th Cir. 2000) (citation omitted). The claimant has the burden to prove his or her RFC.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
Porter maintains that the ALJ’s RFC is not supported by substantial evidence because she
failed to explain why certain limitations were not adopted from various opinions, despite
affording the opinions some weight, and because the ALJ improperly weighed an opinion.
Porter argues that the ALJ erred in failing to explain why she did not include Dr.
Danushkodi’s limitations on stooping, rest, and balancing, despite affording the opinion “some
weight.” Under SSR 96-8p, “[i]f the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not adopted.” However, an ALJ is not
required to rely entirely on a particular physician's opinion . . . .” Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011). Rather, “[i]t is the function of the ALJ to weigh conflicting evidence
and to resolve disagreements among physicians.” Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir.
2014) (quoting Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007)); see also Peterson v. Colvin,
No. 13-0329-CV-W-ODS, 2013 WL 6237868, at *4 (W.D. Mo. Dec. 3, 2013) (“Plaintiff
overstates the law by contending there must be medical evidence that precisely supports each
component of the RFC.”). Here, the ALJ explained her reasoning in rejecting Dr. Danushkodi’s
stooping limitation, as was required, and she incorporated limitations on rest and balancing into
The ALJ explained that she rejected Dr. Danushkodi’s limitation on stooping because
such a restriction “tends to be incongruous with clinical evidence for full and/or near full
strength to the lower extremities,” and “with the claimant’s daily activities which include the
ability to do some household chores and care for children.” Tr. 645. Porter maintains that the
explanation is erroneous because stooping does not involve lower extremities, but rather
“bending the body downward and forward by bending the spine at the waist.”
Operations Manual System (“POMS”) DI 25001.001(79). She also argues that the children are
gone during the day and cared for by others, and that her chores, such as dishes and folding
laundry, do not generally require stooping.
That the use of lower extremities is not contained in the definition of stooping does not
mean it is unreasonable for the ALJ to consider. Additionally, there is evidence in the record of
Porter’s daily activities, including some household chores and care for children. Tr. 875-82. “It
is not the role of the court to reweigh the evidence presented to the ALJ.” Hensley v. Colvin, 829
F.3d 926, 934 (8th Cir. 2016) (quoting Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 20017)).
Additionally, the ALJ addressed Porter’s spinal disorders and lower back pain elsewhere in the
order, and identified substantial evidence to support her decision that Porter is capable of
The ALJ noted Porter “routinely has been shown by examinations
conducted to be with a full and/or normal musculoskeletal range of motion.” Tr. 639 (citing Tr.
977, 1040, 1074, 1166, 1326). The ALJ also specifically acknowledged Dr. Danushkodi’s
December 2015 exam that showed “positive results to straight leg raise testing,” Tr. 640, but
observed that a similar such finding is not longitudinally documented, and to the contrary,
routine examinations have consistently found negative results. Tr. 640 (citing Tr. 396, 1166,
1651, 1654, 1657, 1833, and 1837).
Porter next argues that the ALJ’s RFC with regard to rest breaks is erroneous. Dr.
Danushkodi opined that Porter would require “periodic” rest breaks when standing and walking
for a total of four hours. Tr. 1337. The ALJ’s RFC limits Porter to “stand and/or walk (with
usual breaks) for about 2 hours in an 8-hour workday.” Tr. 638. Porter maintains that the ALJ
did not account for rest breaks in the RFC because “periodic” breaks and “usual” breaks are
different. She contends that “usual” breaks refers to fifteen minutes in the morning, a lunch
break, and fifteen minutes in the afternoon, and that if Dr. Danushkodi intended to indicate
“usual” breaks, he would have said so. However, Porter does not cite any case, law, regulation,
or ruling to support such a contention.
The ALJ was not required to adopt Dr. Danushkodi’s opinion verbatim. See Martise 641
F.3d at 927. Moreover, the Court is unconvinced that “usual breaks” when standing or walking
for two hours is materially different than “periodic” rest breaks when standing and walking for
four hours. Even if there is a material difference, Porter does not offer any explanation as to how
the ALJ’s final decision would differ, and therefore any potential error is harmless. See Byes v.
Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (“To show an error was not harmless, [the claimant]
must provide some indication that the ALJ would have decided differently if the error had not
occurred.”); Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (“An arguable deficiency in
opinion writing that had no practical effect on the decision . . . is not a sufficient reason to set
aside the ALJ's decision.”).
Finally, Porter maintains that the ALJ erred by failing to explain why she did not adopt
Dr. Danushkodi’s opinion that Porter should never balance. Tr. 1331. As above, the ALJ need
not adopt the entirety of Dr. Danushkodi’s opinion. Additionally, the ALJ’s decision with regard
to balance is supported by substantial evidence in the record. The ALJ “noted that examinations
conducted both previous and subsequent to [Porter’s] knee surgeries have routinely demonstrated
full and/or near full strength to the claimant’s lower extremities.” Tr. 641. The ALJ also
acknowledged that while on some occasions Porter was shown to be with antalgic gait, on
numerous other occasions Porter was shown to be with normal gait. Tr. 641 (citing Tr. 964,
1074, 1337). The ALJ’s RFC with regard to balance is therefore supported by substantial
evidence in the record.
Porter similarly argues that the ALJ erred when she gave Mr. Keough’s opinion “some
weight,” but then failed to include all of the limitations imposed by Mr. Keough in the RFC.
While an ALJ is not required to base her RFC entirely on the opinion of one medical
source, the ALJ must explain why a medical opinion was not adopted if it conflicts with the
RFC. SSR 96-8p (“If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.”). Having afforded Mr. Kough
“some weight,” the ALJ offers no explanation as to why only certain limitations are incorporated
in the RFC. Mr. Keough opined that Porter’s ability to adapt to the environment of others,
respond appropriately to supervision, adjust to changes in a routine, and interact socially in an
appropriate manner, appeared mildly to moderately impaired. Tr. 1317. Mr. Keough also
opined that Porter had moderate limitations in interacting appropriately with supervisors and
responding appropriately to usual work situations and to changes in work settings. Tr. 1322.
Yet, as previously discussed, the only mental limitations found in the ALJ’s RFC are that Porter
“can perform simple, routine and repetitive tasks requiring only occasionally [sic] contact with
the public and coworkers.” Tr. 638.
Just as with Dr. Isenberg’s opinion, discussed supra II.A., the ALJ’s decision not to
incorporate a restriction on Porter’s ability to interact with supervisors had a potentially
significant impact on this case’s outcome. See SSR 85-15 (“The basic mental demands of
competitive, remunerative, unskilled work include the abilities (on a sustained basis) . . . to
respond appropriately to supervision, coworkers, and usual work situations . . . .”). Additionally,
the ALJ also decided not to incorporate Mr. Keough’s opinion regarding Porter’s ability to
respond appropriately to usual work situations and to changes in work settings. This decision
also has a potentially significant impact on the outcome. Dealing with changes in a routine work
setting is “generally required by competitive, remunerative, unskilled work.” SSR 96-9p.
While the ALJ could have relied on other evidence, she failed to explain why parts of the
RFC are inconsistent with Mr. Keough’s opinion, which she gave “some weight.” This is
reversible error. See e.g., Crews-Cline v. Colvin, No. 4:13-CV-00723-NKL, 2014 WL 2828894
(W.D. Mo. June 23, 2014) (finding that when an ALJ states the RFC is based on one doctor’s
opinion, which was given “great weight,” but then fails to explain why parts of the RFC are
inconsistent with that opinion constitutes reversible error). On remand, the ALJ should either
formulate an RFC consistent with Mr. Keough’s entire opinion, or explain why certain parts of
the RFC are inconsistent, and how it is otherwise supported by substantial evidence in the record.
Porter argues that the ALJ erred in affording Dr. Koprivica’s opinion little weight. She
maintains that the ALJ was incorrect in her conclusion that the opinion is inconsistent with the
longitudinal record. Dr. Koprivica, a consultative examiner, provided a statement in April 2013.
The ALJ afforded Dr. Koprivica’s opinions little weight, however, because the record
demonstrated a full range to Porter’s right shoulder and full to near full strength of her right
The ALJ is entitled to give lesser weight to an opinion if it is inconsistent with the
objective evidence. See Goff v. Barnhart, 421 F.3d 785, 790-91 (8th Cir. 2005) (“An appropriate
finding of inconsistency with other evidence alone is sufficient to discount the opinion.”). The
ALJ noted that while Dr. Koprivica examined a painful and decreased range to Porter’s right
shoulder, multiple records after his examination routinely demonstrated a full range to Porter’s
shoulder. Tr. 640. Porter argues that Dr. Koprivica’s opinion is not inconsistent because four
other medical examinations also found limited range of motion and shoulder pain. However,
only two of the exams that Porter cites occurred after Dr. Koprivica’s statement. The ALJ cited
seven separate medical examinations that showed normal musculoskeletal range of motion, and
twenty-six separate medical examinations that showed near normal to normal strength of the
Furthermore, Dr. Lingenfelter, who treated Porter for her
shoulder injury, released her to return to full duty. Tr. 2310. Thus, the ALJ’s decision to afford
Dr. Koprivica’s statement little weight due to inconsistencies with the longitudinal record is
supported by substantial evidence.
Finally, Porter argues reversal is necessary because the Commissioner did not sustain her
burden at Step Five. Specifically, Porter argues that the VE precluded overhead reaching, and
yet all three jobs that the vocational expert identified require frequent reaching. She also argues
that the vocational expert's testimony about two of the three jobs identified—document preparer
and printed circuit board inspector—are inconsistent with the Dictionary of Occupational Titles
The vocational expert, Dr. Veltrano, testified that a hypothetical individual with Porter’s
RFC could perform the jobs of document preparer, printed circuit board inspector, and lens
inserter. Tr. 679. He also testified that there were 56,000 document preparer jobs in the national
economy, 66,500 printed circuit board inspector jobs in the national economy, and 45,000 lens
inserter jobs in the national economy. Tr. 679.
Porter argues that the RFC’s preclusion on overhead reaching conflicts with all three jobs
that the vocational expert identified, because each requires frequent reaching. See Dictionary of
Occupational Titles (“DOT”) 249.587-018, 1991 WL 672349 (4th Ed. Rev. 1991) (Document
Preparer); DOT 713.687-026, 1991 WL 679273 (Lens Inserter); DOT 726.684-110, 1991 WL
679616 (Printed Circuit Board Inspector).
The Social Security Administration’s Program
Operations Manual System’s Medical and Vocational Quick Reference Guide (the “Program
Operations Manual”) defines “[r]eaching” as “[e]xtending the hands and arms in any direction.”
DI 25001.001(A)(63) (available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001).
Porter argues that the definition therefore includes overhead reaching.
The ALJ specifically asked Dr. Veltrano, however, whether his testimony was consistent
with the DOT. Dr. Veltrano testified that it was, but that it was also supplemented by his
knowledge and experience of human resources and work practices in business and industry, “as
it relates to no overhead reaching.” Tr. 680. Thus, the vocational expert expressly addressed and
resolved the apparent conflict between the DOT description, the Program Operations Manual,
and Porter’s RFC.
This case is distinguishable from the cases that Porter cites in which the vocational expert
did not address apparent inconsistencies between the DOT definition and a claimant’s
See Moore v. Colvin, 769 F.3d 987, 989-90 (8th Cir. 2014) (holding that 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,” where vocational expert,
when asked if her testimony was consistent with the DOT, stated merely, “Yes, it is”); Kemp ex
rel. Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014) (noting, in vacating decision affirming
denial of benefits, that “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 the job as described in the DOT); Gribble v. Colvin, No. 14-0027, 2015
WL 847479, at *22 (E.D. Mo. Feb. 26, 2015) (same) (quoting Kemp, 743 F.3d at 633); O’Leary
v. Colvin, No. 13-CV-00230-DW, Doc. 15, at 4 (W.D. Mo. Feb. 7, 2014) (“[T]here appears to be
a conflict between the VE’s testimony and the DOT. Remand is required because the ALJ did
not address and then resolve this conflict in her Decision.”); Coates v. Colvin, No. 14-0843ODS, 2015 WL 4610991, at *2 (W.D. Mo. July 30, 2015) (finding that ALJ had erred in failing
to “obtain an explanation for” a conflict between the vocational expert’s testimony and the
Substantial evidence in the record supports the ALJ’s conclusion that Porter’s inability to
reach overhead does not preclude her from performing the duties of document preparer, lens
inserter, or printed circuit board inspector.
Document Preparer and Lens Inserter
Porter further argues that the vocational expert's testimony about two of the three jobs
identified—document preparer and lens inserter—was inconsistent with the DOT. Specifically,
she argues that her RFC is limited to “simple, repetitive, routine” work, but the document
preparer job is not described as repetitive, DOT 249.587-018, 1991 WL 672349, and that her
RFC precludes her from the use of any hazardous machinery or exposure to extreme heat, fumes,
odors, dusts, and gases, but printed circuit board inspector involves “cleaning boards with Freon”
and using a “soldering iron.” DOT 726.684-110, 1991 WL 679616. Porter’s argument does not
Assuming that the document preparer and printed circuit board inspector jobs are
inconsistent with the DOT, as Porter argues, the VE identified at least one other job that is not:
lens inserter. Porter suggests that because the VE’s testimony is not consistent with the DOT
and the ALJ did not resolve the conflict, the ALJ may not rely on any of the VE’s testimony.
However, the Eighth Circuit has expressly held that a VE's “mistaken recommendation” can be
harmless error where the VE has recommended other work that a claimant can perform with her
RFC. See Grable v. Colvin, 770 F.3d 1196, 1202 (8th Cir. 2014). Nothing suggests that Dr.
Veltrano failed to identify another job consistent with the DOT. Indeed, Porter acknowledges
that lens inserter is specifically identified to be repetitive, and makes no argument that it
otherwise conflicts with her RFC.2 DOT 713.687-026, 1991 WL 679273 (Lens Inserter).
Porter’s arguments concerning the Step Five findings therefore fail.
For the reasons discussed above, the Court REMANDS this case to the
Commissioner for further proceedings consistent with this opinion.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: March 7, 2018
Jefferson City, Missouri
Aside from the overhead reaching argument, discussed above.
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