United States District Court, E.D. Arkansas, Jonesboro Division
ORDER REMANDING TO THE COMMISSIONER
Manning (“Manning”) applied for social security
disability benefits with an alleged disability onset date of
September 4, 2012. (R. at 41). After a hearing, the
administrative law judge (“ALJ”) denied
Manning's application. (R. at 17). The Appeals Council
denied Manning's request for review. (R. at 1).The
ALJ's decision now stands as the Commissioner's final
decision, and Manning has requested judicial
reasons stated below, this Court reverses and remands the
The Commissioner's Decision
found that Manning had the severe impairment of “late
effects from [a] cerebrovascular accident, ” due to a
stroke in September 2012. (R. at 11, 14). The ALJ then found
that Manning had the residual functional capacity
(“RFC”) to perform light work, except that he
could only use his right upper extremity as an assistive
device and he could not use it to perform any overhead
reaching, pushing, or pulling. (R. at 12). The ALJ took
testimony from a vocational expert (“VE”) and
found that the RFC permitted employment in jobs such as sales
attendant and file clerk. (R. at 16). Thus, the ALJ found
that Manning was not disabled.
Court's function on review is to determine whether the
Commissioner's decision is supported by substantial
evidence on the record as a whole and whether it is based on
legal error. Miller v. Colvin, 784 F.3d 472, 477
(8th Cir. 2015); see also 42 U.S.C. § 405(g).
argues that the ALJ's decision is not supported by
substantial evidence on the record as a whole because: (1)
the VE failed to identify and resolve a conflict with the
Dictionary of Occupational Titles
(“DOT”); and (2) the RFC was inconsistent with
the medical evidence.
administrative hearing, the VE assured the ALJ that his
testimony was consistent with the DOT. (R. at 37). However,
the jobs identified by the VE-DOT codes 206.367-014 and
299.677-010-both require frequent reaching according to the
Selected Characteristics of Occupations Defined in the
Revised Dictionary of Occupational Titles
(“SCO”). The assigned RFC limited Manning to
using his right upper extremity “as no more than an
assistive device, ” and he was “precluded from
performing overhead reaching as well as pushing and pulling
duties.” (R. at 12).
expert testimony conflicts with the DOT, the DOT controls.
Montgomery v. Chater, 69 F.3d 273, 276 (8th Cir.
1995). The DOT can be rebutted with VE testimony that shows
that a particular job can be performed by the claimant.
Id. While the VE did testify that Manning could
perform the jobs identified, neither the VE or the ALJ
identified or addressed the possibility of a conflict between
the testimony and the DOT. The VE gave no explanation for the
inconsistency, and that lack of explanation was error.
also contends that the RFC itself is not supported by
substantial evidence on the record as a whole. The Court
did not discuss mental limitations observed by Dr. Suzanne
Gibbard, a consultative examiner. Dr. Gibbard noted problems
with Manning's memory and his ability to sustain
concentration and complete tasks in a timely manner. (R. at
379). The ALJ did not even mention Dr. Gibbard's
evaluation and findings, and did not include any limitations
in the RFC due to mental impairments.
the ALJ mischaracterized the findings of Dr. Tim Shown, who
examined Manning on March 10, 2014. In discussing the
residual effects of Manning's September 2012 stroke, the
ALJ stated that “more recent testing” by Dr.
Shown noted “full motor strength with no more than
moderate limitations throughout.” (R. at 14). Dr.
Shown'sreport nowhere states that Manning had only
“moderate” limitations in functioning. To the
contrary, Dr. Shown specifically found that Manning had
decreased range of motion in his right shoulder, right upper
extremity and right knee, along with decreased strength in
his right upper and lower extremities. (R. at 410-11). Dr.
Shown's notation of “moderate” referred to
the complexity of Manning's case. (R. at
ALJ's misreading of the medical evidence and failure to
discuss the opinion of Dr. Gibbard, especially as she noted
additional mental limitations, requires reversal.