Thomas v. Berryhill, 881 F.3d 672 (8th Cir. 2018).
Plaintiff was a younger individual with no past relevant work alleging disability on the basis of morbid obesity, osteoarthritis, a full-scale IQ of seventy, with depression and anxiety. She had previously received Supplemental Security Income which had ceased when she married. She had recently divorced.
She appealed the district court decision on the basis that (1) the ALJ erred in assigning “little weight” to her treating physician in determining her RFC, and (2) the ALJ was required to resolve a conflict in the vocational expert testimony before determining she could perform a significant number of jobs in the national economy. The court rejected her first argument finding that the ALJ properly weighed the opinion of her treating physician explaining that she had treated with him on only two occasions subsequent to her application, his two opinions were check-the-box forms, and the two opinions were inconsistent with each other with no explanation for the change or record reflecting any intervening escalation in her condition. The court also found that her activities of daily living such as “caring for her young son, preparing his meals, doing housework, shopping for groceries, handling money, watching television, and driving a car when necessary, among other things—showed that she could work.”
However, the court found the RFC limiting the Plaintiff to “1 to 2 step tasks” involving “few variables and little judgment” was inconsistent with Step 5 jobs DOT descriptions involving Level Three reasoning—”the ability to apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form.” In essence, the VE testified that Plaintiff could perform a job which was, in reality, two reasoning levels higher than her RFC limitations. The court explained “[b]y incorporating the definition of level-one reasoning into the RFC, the ALJ indicated that she could perform only occupations at [that] reasoning level.” The Commissioner has ruled that an ALJ may not rely on a vocational expert’s testimony about the requirements of a job if an “apparent unresolved conflict” exists between that testimony and the job’s description in the Dictionary of Occupational Titles (DOT). See Moore v. Colvin, 769 F.3d 987, 989-90 (8th Cir. 2014) The court continued “[b]ecause that conflict was “apparent” and not just “possible,” the ALJ needed to do more than have the expert affirm that his testimony was consistent with the DOT. Under the Commissioner’s own policy, the ALJ was required to elicit from the expert an opinion on whether there is a “reasonable explanation” for the conflict and determine whether the expert’s testimony warranted reliance despite the conflicting information in the DOT. In the absence of that inquiry, the expert’s testimony did not constitute substantial evidence on which the Commissioner could rely.” The court vacated the district court’s judgment and remanded to return the case to the Agency for a new Step 5 determination.
Chismarich v. Berryhill, 888 F.3d 978 (8th Cir. 2018).
Plaintiff alleged disability due to bipolar disorder, drug and alcohol addiction, knee injury, learning disability, and attention deficit disorder. He appealed the district court decision on the basis that the ALJ’s findings at Step 3 as part of the Psychiatric Review Technique were inconsistent with the ALJ’s RFC finding. Specifically, at Step 3 the ALJ found that Plaintiff had “moderate” impairments in the domains of (1) social functioning, (2) activities of daily living, and (3) concentration, persistence, or pace. He argued these findings were inconsistent with an RFC finding with the following mental limitations: able to understand, remember, and carry out at least simple instructions and non-detailed tasks; can respond appropriately to supervisors and co-workers in a task oriented setting where contact with others is casual and infrequent; can perform work at a normal pace without production quotas; should not work in a setting which includes constant, regular contact with the general public; and should not perform work which includes more than infrequent handling of customer complaints.
The court rejected this argument explaining “there is nothing inconsistent with the ALJ’s separate analyses at the different steps.” While as “a general proposition” the psychiatric review technique must be consistent with the RFC finding “[a]s a practical matter, however, the different steps serve distinct purposes, the degrees of precision required at each step differ, and our deferential standard of review precludes us from labeling findings as inconsistent if they can be harmonized.” The court explained that if apparent inconsistencies in the ALJ’s opinion can be harmonized, then there is no error, since each step of the 5-step evaluation does not require identical levels of precision in interpretation. See Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006) (“Each step in the disability determination entails a separate analysis and legal standard.”). Refusing to “pick nits nor accept an appellant’s invitation to rely upon perceived inconsistencies” the court further explained “the record overwhelming supports the determination that [claimant] is not disabled.” His activities such as “car[ing] for and transport[ing] four young children, perform[ing] housekeeping tasks, manag[ing] the sale of the family’s house, and negotiate[ing] with the builders of a new house” supported the ALJ’s RFC finding. The court affirmed the district court’s judgment.
Nash v. Commissioner, Social Security Administration, 907 F.3d 1086 (8th Cir. 2018).
Plaintiff, a person “closely approaching retirement age” alleged disability due to problems with her back, right knee, and right thumb. She alleged disability onset on the date she was “laid off” from her position as a recruiter. During the administrative hearing she testified to urinary incontinence and frequent restroom usage. She appealed the district court decision on the basis that (1) the ALJ did not include a limitation in any hypotheticals to the vocational expert that she needed to lie down and prop up her feet, (2) the ALJ did not include any bathroom related limitations in the RFC finding, and (3) the ALJ violated SSR 96-8p by failing to formulate an RFC on a “function-by-function” basis.
The court rejected these arguments. First, it explained the only evidence for Plaintiff’s need to lie down and proper up her feet was her own testimony which the ALJ had found inconsistent with the evidence of record. Her treating doctors’ own opinion stated that despite her back pain she would be able to sit. Subjective complaints may be discounted if the claimant’s testimony is inconsistent with the evidence as a whole. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The court also noted here that Plaintiff had stopped working due to a lay off and not her medical condition. Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998) (determination that claimant not disabled supported in part by facts that claimant (1) left job due to lay-off, not her medical condition, and (2) continued to seek work after alleged onset date). Second, the court explained that no medical source identified urinary incontinence as a disabling condition. While treatment notes indicated a diagnosis of urinary incontinence and medication for it, they did not identify a basis for the diagnosis or an accompany limitations. The court, therefore, found it could not display the ALJ’s determination “who is in a better position to gauge credibility and resolve conflicts in evidence.” Finally, the court explained that the ALJ did not violate SSR 96-8p because while “an ALJ [cannot] disregard evidence or ignore potential limitations, [this does] not require an ALJ to mechanically list and reject every possible limitation.” The court affirmed the district court’s judgment.