M ORE L AW
LEXAPEDIA
Salus Populi Suprema Lex Esto

Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Date: 02-05-2018

Case Style:

Amy Thomas v. Nancy A. Berryhill, Acting Commissioner of Social Securty

Federal Courthouse Eastern District of Arkansas - Little Rock, Arkansas

Case Number: 16-4559

Judge: Arnold

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Eastern District of Arkansas (Craighead County)

Plaintiff's Attorney: Stephanie Wallace

Defendant's Attorney: Gabriel Michael Bono, Stacey Elise McCord, Melinda R. Newman

Description: Amy Thomas was thirty-four years old, the mother of a four-year-old son, and
in the process of divorcing her second husband. A high-school graduate, she lived on
her own, cared for herself and her indoor dog and cat, tended her home, managed her
finances, and led a more-or-less independent life. She had custody of her son every
other week and would care and provide for him as well, from preparing his breakfast
to putting him to sleep. She had a driver's license and could drive if need be, but grew
anxious behind the wheel and preferred to have someone else take her on her weekly
errands, which she handled herself. To pass the time, she enjoyed painting, television,
and light reading. She was also morbidly obese, suffered from osteoarthritis, scored
a full-scale IQ of seventy, experienced depression and anxiety, and said that she often
relied on a parent to help her with chores that she could not do on her own. Thomas
had also never held a job, going onto disability benefits at age eighteen and coming
off them only when her husband's income rendered her ineligible. With her divorce
looming on the horizon, she applied again for supplemental security income on the
basis of disability, claiming that she could not work.
The Commissioner of Social Security denied Thomas's application, and an
administrative law judge upheld the denial, finding that Thomas was not disabled
since her impairments did not preclude her from performing substantial gainful work.
See 42 U.S.C. § 1382c(a)(3)(B). The Appeals Council declined Thomas's request for
further review, making the ALJ's decision the Commissioner's final one. See Combs
v. Berryhill, 878 F.3d 642, 645 (8th Cir. 2017). Thomas sought judicial review of that
decision, and the district court affirmed it in a conscientious opinion and order. She
appeals from the judgment entered on that order, and we reverse and remand.
We review the district court's judgment de novo and will affirm if substantial
evidence on the record as a whole supports the Commissioner's decision. Vance v.
Berryhill, 860 F.3d 1114, 1117 (8th Cir. 2017); see also 42 U.S.C. § 405(g).
The ALJ used the Social Security Administration's five-step evaluation process
to find that Thomas was not "disabled." See 20 C.F.R. § 416.920(a)(4). Thomas does
not contest the ALJ's findings at the first three steps: that she has not engaged in
substantial gainful work, that she has severe impairments that significantly limit her
ability to perform basic work activities, and that her impairments do not render her
per se disabled. She assigns error only to the ALJ's findings at the fourth and fifth
-2-
steps, where he expressly gave "little weight" to her treating physician's medical
opinion in determining her residual functional capacity (RFC) and based his finding
that she could perform a significant number of jobs in the national economy on a
vocational expert's testimony that her RFC qualified her for two jobs in particular.
"The opinion of a treating physician is accorded special deference under the
social security regulations" and "normally entitled to great weight." Vossen v. Astrue,
612 F.3d 1011, 1017 (8th Cir. 2010). "However, the Commissioner may discount or
even disregard the opinion of a treating physician where other medical assessments
are supported by better or more thorough medical evidence." Fentress v. Berryhill,
854 F.3d 1016, 1020 (8th Cir. 2017). The Commissioner may also assign "little
weight" to a treating physician's opinion when it is either internally inconsistent or
conclusory. Chesser v. Berryhill, 858 F.3d 1161, 1164–65 (8th Cir. 2017).
Thomas calls Dr. Roland Hollis her treating physician. At the hearing, she told
the ALJ that she has visited Dr. Hollis, a primary-care doctor, every other month since
2005. But at the end of January 2013 when Dr. Hollis disclosed Thomas's patient file
from January 2012 onwards, the file showed that she had seen him only twice: in July
2012 and January 2013. Only eleven other office visits appear in the record, all of
which took place after Thomas had filed her new social-security application in late
January 2013. The record supports a conclusion that Thomas exaggerated her preapplication
relationship with Dr. Hollis and thus his ability to provide "a detailed,
longitudinal picture" of her impairments—the primary reason that the social-security
regulations accord treating physicians deference. See 20 C.F.R. § 404.1527(c)(2).
On appeal, Thomas does not assert that Dr. Hollis's file on her paints a detailed,
longitudinal portrait of her impairments, nor does she contend that the file as a whole
supports her claim of disability: She faults the ALJ only for assigning little weight to
Dr. Hollis's medical opinions in the "two residual functional capacity assessments [he
completed]—one in March 2013 and the other in March 2014." Those assessments,
-3-
however, consist of nothing more than vague, conclusory statements—checked boxes,
circled answers, and brief fill-in-the-blank responses. They cite no medical evidence
and provide little to no elaboration, and so they possess "little evidentiary value." See
Toland v. Colvin, 761 F.3d 931, 937 (8th Cir. 2014). On that basis alone, the ALJ did
not err in giving Dr. Hollis's RFC assessments little weight and relying more heavily
on other opinions in the record. See id. at 935, 937.
As the district court noted, moreover, Dr. Hollis's earlier assessment of Thomas
is inconsistent with his later one. In March 2013, Dr. Hollis found that Thomas could
use her fingers to manipulate objects for an entire eight-hour workday, use her hands
to grasp and twist objects for half of the workday, sit for sixty minutes in a row, and
stand/walk for five minutes at a time. But one year later, he declared, without any
explanation for the change, that Thomas could use her fingers and hands only for onefifth
of a workday, sit for ten minutes at a time, and stand/walk for no length of time.
Dr. Hollis's clinical notes from Thomas's intervening office visits do not reflect that
kind of escalation in the severity of her impairments: There is no mention of a
difficulty with her hands or fingers or any indication she had acquired a problem with
sitting, and the only specialist he recommended was a dietician to place her on a lowcalorie
diet. Since Dr. Hollis's more recent assessment was inconsistent with the trend
line in his notes and his own earlier assessment, the ALJ did not err in rejecting those
medical opinions. See Boyd v. Colvin, 831 F.3d 1015, 1021 (8th Cir. 2016).
The ALJ did not err in finding that Dr. Hollis's opinions were also inconsistent
with the record as a whole. Dr. Hollis, as we already observed, stated in his March
2014 assessment that Thomas could not stand/walk for any length of time and could
use her hands and fingers for only one-fifth of a workday. He asserted further that
Thomas's impairments interfered constantly with the attention and concentration
required for simple work-related tasks. Those core assessments were contradicted by
the medical findings of multiple examining physicians. For example, Dr. Joseph
Patterson found that Thomas had a perfectly normal grip in both hands, could hold
-4-
a pen and write, could touch fingertips to palm, could oppose thumbs to fingers, could
pick up a coin, and could stand/walk without assistive devices. He confirmed that
Thomas had osteoarthritis in her knees, but detected no joint deformity or instability
and no muscle weakness or atrophy. Dr. Anita Gail Wells found "no evidence" that
Thomas was unable "to cope with typical mental/cognitive demands of basic worklike
tasks" and concluded that "[o]ther than being morbidly obese and [exhibiting a]
slow gait," Thomas appeared able "to complete work related tasks in an acceptable
timeframe." Thomas's own psychiatrist, Dr. W. Robert VanScoy, corroborated Dr.
Wells's findings, remarking in multiple progress notes that Thomas's concentration,
judgment, and insight were "good" and that her memory was "completely intact." The
ALJ did not err in relying instead on those more thorough, detailed opinions. See
Fentress, 854 F.3d at 1020.
Thomas's self-reported activities of daily living provided additional reasons for
the ALJ to discredit Dr. Hollis's pessimistic views of her abilities. Thomas's
activities—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. See Roberson v. Astrue, 481 F.3d
1020, 1025 (8th Cir. 2007); see also Hacker v. Barnhart, 459 F.3d 934, 937–38 (8th
Cir. 2006); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005). No one disputes that
Thomas faces severe impairments and may regularly need assistance in her life. But
it is implicit in the Commissioner's disability-evaluation scheme that even someone
with "severe physical and mental impairments" may "nonetheless [be] able to work."
See Onstad v. Shalala, 999 F.2d 1232, 1233, 1235 (8th Cir. 1993).
In sum, we hold that substantial evidence on the record as a whole supports the
ALJ's decision to give little weight to Dr. Hollis's opinions in determining Thomas's
RFC. Thomas does not otherwise dispute the ALJ's description of her RFC.
-5-
As part of Thomas's RFC, the ALJ determined that she could perform unskilled
sedentary work limited to the complexity of rote "1 to 2 step tasks" that involve "few
variables and little judgment." At the hearing, the ALJ asked the vocational expert
whether he could identify any jobs for an individual of Thomas's age, education,
RFC, and lack of work experience. The expert replied that he could, and he identified
two jobs: "machine tending," and "new accounts clerk." Relying on the expert's
testimony about those jobs, the ALJ found that the Commissioner had met her burden
of proving that Thomas was not disabled because she could perform a significant
number of jobs in the national economy. See Gann v. Berryhill, 864 F.3d 947, 952
(8th Cir. 2017). The Commissioner has conceded, however, that the expert erred in
suggesting that machine tending was suitable work, so our review will focus only on
whether the ALJ properly relied on the expert's testimony that someone with
Thomas's RFC could handle the job requirements of a new accounts clerk.
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) (quoting
SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). Thomas contends that a conflict
marred the expert's testimony here that an individual with her RFC could perform the
work of a new accounts clerk: Her RFC limited her to work involving the complexity
of "1 to 2 step tasks," whereas the DOT provides that the job of a new accounts clerk
involves level-three reasoning. See DOT 205.367-014. Level-three reasoning requires
the ability to apply "commonsense understanding to carry out instructions furnished
in written, oral, or diagrammatic form." See Hulsey v. Astrue, 622 F.3d 917, 923 (8th
Cir. 2010). Level-one reasoning, by contrast, is described as the mere ability to apply
"commonsense understanding to carry out simple one- or two-step instructions." See
Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010). In other words, the expert
testified that the hypothetical individual was qualified to handle a job that the DOT
classifies as two reasoning levels higher than the limitations in her RFC. No one
-6-
raised that discrepancy at the hearing before the ALJ, and so the expert was not asked
to explain why his testimony seemed to differ from the information in the DOT.
Since the DOT's definitions "are simply generic job descriptions that offer the
approximate maximum requirements for each position, rather than their range," not
every position as a new accounts clerk has "requirements identical to or as rigorous
as those listed in the DOT." Id. The Commissioner urges us to use that logic to find
that there was no conflict between the vocational expert's testimony and the DOT. But
to do so would stretch that logic beyond its limits and effectively deny that a conflict
could ever be apparent. The DOT, for example, categorizes the job of a judge under
level-six reasoning, see DOT 111.107-010, which is headily described as the ability
to apply "principles of logical or scientific thinking to a wide range of intellectual and
practical problems." See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). If the
expert had testified that someone limited to rote "1 to 2 step tasks" could serve as a
judge, the Commissioner's position would have us reason that applying principled
thought to diverse problems represents the zenith of judging and that the expert must
have meant, but neglected to say, that near the nadir are judicial positions that involve
little more than inking a rubber stamp and applying it to sheets of paper. That seems
to us a bridge too far.
We do not believe that the generic character of the DOT's job descriptions can
in and of itself resolve a discrepancy between a job's requirements as set forth in the
DOT and a vocational expert's testimony that someone with a more limited RFC is
qualified to do it. See SSR 00-4p, supra, at *2. An expert generally seeks to resolve
such a discrepancy by specifying that he has limited his testimony to only those jobs
within the DOT description that someone with the relevant RFC can perform and, in
more recent years under the Commissioner's policy on apparent unresolved conflicts,
by explaining the basis of his opinion that jobs within that narrower subset exist in
significant number. See, e.g., Gieseke v. Colvin, 770 F.3d 1186, 1189 (8th Cir. 2014);
Welsh v. Colvin, 765 F.3d 926, 929–30 (8th Cir. 2014); Jones v. Astrue, 619 F.3d 963,
-7-
976–78 (8th Cir. 2010); Jones v. Chater, 72 F.3d 81, 82 (8th Cir. 1995). As those
cases indicate, we usually refer to the DOT's generic breadth to affirm that an ALJ
permissibly viewed an expert's explanation as having eliminated the seeming conflict.
We do not use it to deny that there ever was a conflict. The Commissioner invites us
to hold nonetheless that an explanation was not necessary here since the ALJ could
assume, based on the generic nature of the DOT, that such an explanation existed and
the expert would have given it if asked. The Commissioner does not direct us to a
published decision in which we have expressly held that, and we have found none.
Such a holding, in any event, would be inconsistent with our longstanding precedent
that an ALJ may not rely on unexplained expert testimony that someone with a
particular RFC is qualified to do a job that the DOT describes as exceeding it. See,
e.g., Montgomery v. Chater, 69 F.3d 273, 275–77 (8th Cir. 1995); Stathis v. Sullivan,
964 F.2d 850, 852 (8th Cir. 1992). We have not deviated from that baseline when
applying the Commissioner's policy on the unreliability of expert testimony that
contains an "apparent unresolved conflict" with the DOT. See Moore v. Colvin, 769
F.3d at 989–90; Kemp v. Colvin, 743 F.3d 630, 632–33 (8th Cir. 2014).
By incorporating the definition of level-one reasoning into the RFC, the ALJ
indicated "that [Thomas] could perform only occupations at [that] reasoning level."
See Moore v. Astrue, 623 F.3d at 604. An apparent conflict thus existed between the
vocational expert's testimony that someone limited to "1 to 2 step tasks" could work
as a new accounts clerk and the DOT description that being such a clerk involves a
higher level of reasoning. See Rounds v. Comm'r of SSA, 807 F.3d 996, 1003 (9th Cir.
2015); see also Porch v. Chater, 115 F.3d 567, 571–72 (8th Cir. 1997). Because 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. Moore v. Colvin,
769 F.3d at 990. 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. Id. at 989–90. In the absence of that inquiry, the
-8-
expert's testimony did not constitute substantial evidence on which the Commissioner
could rely to conclude that Thomas was not disabled due to the existence of jobs in
the national economy that she can perform. See id. at 990. Since it is not an issue in
this appeal, we do not decide whether a "reasonable explanation" under that policy
requires the expert to explain the basis of his testimony that a significant number of
positions exist within a DOT job description that someone with a more limited RFC
is qualified to perform. See SSR 00-4p, supra, at *2–3; compare Welsh, 765 F.3d at
930, with Jones v. Chater, 72 F.3d at 82.
We note further that the DOT's description of a new accounts clerk may
conflict with Thomas's RFC in another way: The RFC limited her to work "where
interpersonal contact is incidental," but the very first line in the DOT's description of
that job says that a new accounts clerk "[i]nterviews customers applying for charge
accounts." See DOT 205.367-014.

Outcome: We vacate the district court's judgment and remand with instructions to return
the case to the Social Security Administration for a new step-five determination.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2018 MoreLaw, Inc. - All rights reserved.