United States District Court, E.D. Arkansas, Little Rock Division
MICHAEL W. STEWART PLAINTIFF
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security Administration DEFENDANT
ORDER AFFIRMING THE COMMISSIONER
Stewart (“Stewart”) applied for social security
disability benefits with an amended alleged disability onset
date of March 31, 2014. (R. at 11). After a hearing, the
administrative law judge (“ALJ”) denied his
applications. (R. at 89). The Appeals Council later denied
Stewart's request for review, thereby making the
ALJ's decision the final decision of the Commissioner.
Stewart has requested judicial review.
reasons stated below, this Court affirms the ALJ's
The Commissioner's Decision
found that Stewart had the severe impairments of degenerative
disk disease status post cervical discectomy, left shoulder
radiculitis, and chronic obstructive pulmonary disease. (R.
at 78). The ALJ found that Stewart's impairments left him
with the residual functional capacity (“RFC”) to
perform light work except that he could lift and carry up to
twenty pounds occasionally and ten pounds frequently; sit for
a total of six hours in an eight-hour workday; stand/walk for
a total of six hours in an eight-hour workday; occasionally
stoop, crouch, bend, kneel, crawl, and balance; occasionally
reach overhead with the non-dominant extremity; not tolerate
excessive exposure to dust, smoke, fumes, and other pulmonary
irritants; and perform work that is simple, routine, and
repetitive with supervision that is simple, direct, and
concrete. (R. at 79). This RFC precluded Stewart from
performing any of his past relevant work. (R. at 87).
heard testimony from a vocational expert (“VE”)
to determine, at Step 5, if there were other jobs in the
national economy that Stewart could perform. The VE testified
that a hypothetical person with Stewart's age, education,
work experience, and RFC could perform jobs such as
production assembler or cashier II. (R. at 88-89).
Accordingly, the ALJ held that Stewart was not disabled. (R.
argues that: (1) the ALJ failed to resolve an apparent
conflict between the VE's testimony and the
Dictionary of Occupational Titles
(“DOT”); (2) new and material evidence
contradicts the ALJ's findings and requires reversal; and
(3) the ALJ erred by rejecting limitations found by the
non-examining State Agency consultants. Each of these
arguments fail for the reasons stated below.
Conflict Between VE Testimony and DOT
argues that the ALJ failed to resolve a conflict between the
VE's testimony and the DOT. According to Stewart, the job
of cashier II does not meet the mental restriction of his
RFC, because it cannot be performed by someone who is limited
to routine and repetitive tasks. The Commissioner controverts
the existence of such a conflict and argues that, in any
case, the VE identified two jobs, the other of which Stewart
does not allege is inconsistent with the DOT.
true that the ALJ has a responsibility to resolve any
conflict between the DOT and VE testimony. Kemp ex rel.
Kemp v. Colvin, 743 F.3d 630, 632-33 (8th Cir. 2014).
However, there is no need for the Court to determine if the
alleged apparent conflict exists in this case, because, as
the Commissioner observes, the VE identified
“production assembler” as another job that
Stewart could perform. (R. at 88-89, 142-43). Even if the
Court held that the ALJ failed to resolve a conflict between
the VE's testimony and the DOT concerning the job of
cashier II, this would not eliminate production assembler.
Accordingly, any such error regarding the cashier II job
would not have been altered the ALJ's Step 5
determination that Stewart was capable of performing work as
a “production assembler”; thereby rendering any
such error harmless. Van Vickle v. Astrue, 539 F.3d
825, 830 (8th Cir. 2008).
argues that evidence submitted after the ALJ issued his
decision contradicts his decision and demands reversal. This
new evidence is from his treating physician, Tommy Love,
M.D., who opines that: “Mr. Stewart is currently
disabled and is not able to maintain employment since 2014
due to a cervical fracture operated [sic] and subsequent
chronic pain syndrome. He also has adhesive capsulitis of the
right shoulder.” (R. at 72). Stewart also cites to a
June 29, 2016 prescription for a cane, which contradicts the
ALJ's conclusion that a cane was not prescribed. (R. at
Court must now decide if the record as a whole contains
substantial evidence to support the ALJ's decision, even
after considering the new evidence. Browning v.
Sullivan, 958 F.2d 817, 823 (8th Cir. 1992). Just as in
Browning, the conclusory letter from Dr. Love (which
attempts to opine on the legal question of whether
Stewart is “disabled”) is not sufficient to
overcome the weight of other evidence in the record.
Id. Even a treating physician's opinion is not
entitled to controlling weight if it is merely a conclusory
statement. Hamilton v. Astrue, 518 F.3d 607, 610
(8th Cir. 2008). Dr. Love provides no reasoning or diagnostic
results supporting his conclusion that Stewart is
“disabled.” Furthermore, while he mentions that
Stewart has adhesive capsulitis of the right shoulder, there
are no other records of any such diagnosis concerning the
right shoulder. In fact, Stewart specifically denied any pain
or issue with his right shoulder in his testimony during the
administrative hearing. (R. at 121, 135). Accordingly, this
conclusory opinion from Dr. Love is entitled to little
evidentiary weight and is not sufficient as to call the
ALJ's decision into question.
maintains that he received a prescription for a cane based on
a March 9, 2016 diagnosis of “degenerative changes at
L5-S1 with associated lateral recess stenosis and left leg
pain.” (R. at 1328). He also argues that this
prescription and numerous findings of antalgic gait
contradict the ALJ's findings. (R. at 30, 1183, 1187,
1192, 1196, 1203, 1207, 1210, 1213, 1217, 1222, 1226, 1252).
To the contrary, almost all of the medical records showing
antalgic gait also reflect that Stewart did not use
any assistive device to aid him in walking. (R. at 1183,
1187, 1192, 1196, 1203, 1207, 1210, 1213, 1217, 1222, 1226).
Finally, in the ALJ's decision (R. at 86), he noted that,
in Stewart's most recent visit to his doctor, on March 9,
2016, he had a normal gait, “with good coordination ...