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Everhart v. Commissioner of Social Security

United States District Court, N.D. Mississippi, Oxford Division

July 27, 2018

ROXANNE EVERHART PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          DAVID A. SANDERS UNITED STATES MAGISTRATE JUDGE

         This matter is before the court pursuant to 42 U.S.C. § 405(g) to review the decision of the Commissioner of Social Security (“Commissioner”) denying the application of Roxanne Everhart for disability insurance benefits and supplemental security income under the Social Security Act. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit.

         The court, having reviewed the administrative record, the briefs of the parties, the applicable law, and having heard oral argument, finds the Commissioner's decision denying benefits should be reversed and remanded for further proceedings consistent with this opinion.

         Facts and Procedural History

         On April 14, 2015, Roxanne Everhart filed her application for DIB and SSI, alleging onset of disability on February 13, 2015. After the application was denied at the lower levels, a hearing was held before an administrative law judge (“ALJ”) on August 11, 2016. An unfavorable decision was issued on September 23, 2016. The Appeals Council denied review. The case is now before this court on appeal.

         The ALJ found that Everhart had severe impairments of hypertension, osteoarthritis, gastroesophageal reflux disease, degenerative disc disease, depression, and anxiety. After determining that the claimant did not meet any listed impairment, the ALJ determined Everhart's residual functional capacity, finding she could perform medium work with the following limitations: lifting, carrying, pushing, and pulling up to 50 pounds occasionally and 25 pounds frequently; standing and walking up to 6 hour in an 8-hour workday; sitting up to 6 hours in an 8 hour workday; occasionally reaching overhead bilaterally, stooping, and crouching; simple, routine, and repetitive tasks, and making simple work-related decisions; simple, direct, and concrete supervision; and incidental contact with coworkers and the general public.

         At step four, the ALJ found that Everhart was incapable of performing past relevant work as a therapist. However, relying on the testimony of a vocational expert, the ALJ found that other jobs exist in significant numbers in the national economy that claimant can perform, namely sandwich maker and price tag ticker. The ALJ thus found claimant was not disabled.

         The claimant asserts the ALJ's decision is not supported by substantial evidence and is not based upon proper legal standards because the ALJ (1) failed to resolve a possible conflict between the VE's testimony and the Dictionary of Occupational Titles and (2) improperly discounted the opinion of claimant's treating psychiatrist.

         Law and Standard of Review

         This court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence “must do more than create a suspicion of the existence of the fact to be established, but ‘no substantial evidence' will be found only where there is a ‘conspicuous absence of credible choices' or ‘no contrary medical evidence.'” Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164(5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434(5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).

         In determining disability, the Commissioner, through the ALJ, works through a five-step sequential process.[1] The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability, and if the claimant is successful in sustaining his burden at each of the first four levels, then the burden shifts to the Commissioner at step five.[2] First, claimant must prove he is not currently engaged in substantial gainful activity.[3] Second, claimant must prove his impairment is “severe” in that it “significantly limits his physical or mental ability to do basic work activities . . . .”[4] At step three, the ALJ must conclude claimant is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1.[5] Fourth, claimant bears the burden of proving he is incapable of meeting the physical and mental demands of his past relevant work.[6] If claimant is successful at all four of the preceding steps, the burden shifts to the Commissioner to prove, considering claimant's residual functional capacity, age, education, and past work experience, that he is capable of performing other work.[7] If the Commissioner proves other work exists which claimant can perform, claimant is given the chance to prove that he cannot, in fact, perform that work.[8]

         Analysis and Discussion

         I. CONFLICT BETWEEN VE AND DOT

         Among other limitations, the ALJ limited Everhart to occasionally reaching overhead bilaterally and included that limitation in his hypothetical to the VE. The VE testified that such a hypothetical individual could perform the medium, unskilled job of sandwich maker (DOT 317.664-010) and the light, unskilled job of price tag ticker (DOT 209.587-034). However, according to the DOT and its companion volume, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO), sandwich maker requires constant reaching, while price tag ticker requires frequent reaching. The DOT defines “reaching” as “[e]xtending hand(s) and arm(s) in any direction.” App. C, Selected Characteristics of Occupations Defined in the Revised Dictionary of ...


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