United States District Court, W.D. Missouri, Western Division
RONALD J. COATES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER AND OPINION REVERSING COMMISSIONER'S FINAL DECISION DENYING BENEFITS
ORTRIE D. SMITH, Senior District Judge.
Plaintiff appeals the Commissioner of Social Security's final decision to the extent that it denies his application for Supplemental Security Income ("SSI") benefits. The Commissioner's decision is reversed and the case is remanded for further proceedings.
I. STANDARD OF REVIEW
"[R]eview of the Secretary's decision [is limited] to a determination whether the decision is supported by substantial evidence on the record as a whole. Substantial evidence is evidence which reasonable minds would accept as adequate to support the Secretary's conclusion. [The Court] will not reverse a decision simply because some evidence may support the opposite conclusion." Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this standard also requires that the Court consider evidence that fairly detracts from the final decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v. Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means "more than a mere scintilla" of evidence; rather, it is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010).
Plaintiff was born in November 1977, completed the eighth grade, and has prior work experience as a house painter. He alleges he became disabled in late December 2009 as a result of injuries from a self-inflicted shotgun wound as well as various psychological conditions. An ALJ issued a partially favorable ruling, finding Plaintiff was disabled until December 27, 2010, but that Plaintiff's condition improved to the point that thereafter he was able to work. Plaintiff appealed, but the Commissioner filed a Motion asking the Court to reverse and remand the case for further proceedings. The Motion explained that the ALJ's hypothetical questions posed to the vocational expert ("VE") did not match the ALJ's assessment of Plaintiff's residual functional capacity ("RFC"). The Commissioner further explained that on remand the ALJ would "obtain medical source statements and opinions from treating and/or examining physicians... reconsider Plaintiff's maximum residual functional capacity [and] obtain testimony from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base." Coates v. Astrue, No. 12-0958, Doc. # 13 at 1-2. With no opposition from Plaintiff, the Court granted the Commissioner's Motion and reversed and remanded "for reconsideration as set forth in the Commissioner's motion." Id., Doc. # 15. On remand, the Appeals Council noted the error that had led the Commissioner to ask for reversal and directed the ALJ, among other things, to "obtain medical source statements from treating and/or examining physicians regarding the claimant's limitations; reconsider the claimant's maximum RFC and provide appropriate rationale... in support of the assessed limitations...." R. at 953. On remand, the ALJ did not obtain medical source statements from Plaintiff's past treating physicians.
The ALJ ultimately found Plaintiff's RFC permitted him to perform sedentary work with additional limitations, including one that he engage in no overhead reaching or repetitive reaching with his arms. The RFC also limited Plaintiff to "simple, unskilled work with no contact with the general public." R. at 865. These limitations were included in hypothetical question posed to the VE. R. at 916. In response to this hypothetical, the VE testified Plaintiff could perform work as a document preparer, addressing clerk, or weight tester. The VE was asked if this testimony was "consistent with the Dictionary of Occupational Titles" and the VE answered "Yes, with supplementation based on my education, training, and experience to address any factors not specifically addressed by the DOT and SCO." R. at 917. The VE did not identify any specific inconsistencies between the RFC and the DOT, explain how her education, training and experience was employed to resolve any inconsistencies that might have existed, how any such inconsistencies were resolved, or how resolution of these issues affected the number of jobs that might be available.
Plaintiff contends the VE's testimony does not provide substantial evidence demonstrating Plaintiff can perform work in the national economy because there are apparent inconsistencies between his RFC and the DOT descriptions for the jobs identified by the VE. The Court agrees.
Social Security Ruling 00-4p states that the ALJ "has an affirmative responsibility to ask about any possible conflict" between the VE's testimony and the information contained in the DOT. "The ALJ [is] required not only to ask the expert whether there [is] a conflict, but also to obtain an explanation for any such conflict, " and the failure to follow this requirement is error. Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007).
While the ALJ erred, the error requires reversal only if the Court concludes the error was not harmless. See id. (holding failure to follow SSR 00-4p harmless because there was no conflict between the VE's testimony and the DOT). Determining whether the error is harmless requires a comparison between the RFC and the DOT.
The parties agree that the three positions identified by the VE - document preparer, addressing clerk, and weight tester - all require the ability to "reach frequently;" that is, 1/3 to 2/3 of an eight hour day. Plaintiff's ability to reach was limited in two respects: he could not engage in "overhead reaching" and he could not engage in "repetitive reaching." This seems to present a potential conflict between the RFC and the DOT, and this conflict had to be acknowledged, explained, and resolved by eliciting appropriate testimony from the VE. The Court views this situation as very similar to the one in Kemp v. Colvin, 743 F.3d 630 (8th Cir. 2014). There, the claimant's RFC precluded him from more than "occasional overhead reaching, " creating a conflict with the DOT description that required "constant reaching" even though the description did not specify the "reaching" was "overhead." 743 F.3d at 632-33. "[T]he record d[id] not reflect whether the VE or the ALJ even recognized the possible conflict [and] the VE did not explain the possible conflict and the ALJ sought no such explanation." Id. at 633. The fact that the VE in this ...