Pilling v. Social Security Administration Commissioner

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DENNIS B. PILLING, JR. 	PLAINTIFF
V. 	Civil No. 2:24-cv-02101-TLB-MEF
LELAND DUDEK, Acting Commissioner,1
Social Security Administration 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Dennis Pilling, Jr., brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (the “Commissioner”)
denying his claim for a period of disability and disability insurance benefits (“DIB”) and adult
disabled child (“ADC”) benefits under Title II of the Social Security Act (hereinafter “the Act”),
42 U.S.C. § 423(d)(1)(A). 	In this judicial review, the Court must determine whether there is
substantial evidence in the administrative record to support the Commissioner’s decision. See 42
U.S.C. § 405(g).
I. 	Procedural Background
Plaintiff filed his applications for DIB and ADC on February 24, 2021, and March 3, 2021,
respectively, alleging disability since July 6, 2013, due to hypermobility; issues with his feet,
ankles, and hands; joint pain, popping, swelling, and dislocation; limb and blood stasis; depression;
suicidal thoughts, and additional “serious medical issues not yet diagnosed.” (ECF No. 7, pp. 101,
138, 166, 339-355, 386, 419-420, 437). An administrative hearing was held on June 8, 2023. (Id.
at 51-99). The Plaintiff was both present and represented by counsel.
1 Leland Dudek was named Acting Commissioner of the Social Security Administration on
February 18, 2025, and in his official capacity is substituted as defendant. 	See Fed. R. Civ. P.
25(d).
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 1 of 7 PageID #:
<pageID>

2
Plaintiff was 18 years old on his alleged onset date and possessed a high school education.
(ECF No. 7, pp. 26, 40, 100, 138, 387). He attained the age of 22 on July 6, 2013. Plaintiff has
no past relevant work (“PRW”) experience. (Id. at 40, 412-418).
On April 2, 2024, Administrative Law Judge (“ALJ”) Glenn Neel determined that the
Plaintiff met insured status requirements through June 30, 2021. (ECF No. 7, p. 26). The ALJ
then identified RYR1 mutation myopathy, Ehlers-Danlos syndrome/localized joint hypermobility
spectrum disorder, mild degenerative disc disease of the lumbar spine, gouty arthropathy, obesity,
varicose veins, tenosynovitis of the right foot, chronic pain syndrome, a history of right shoulder
surgery, adjustment disorder with mixed anxiety and depressed mood, major depressive disorder,
generalized anxiety disorder, and generalized social phobia as severe impairments, but concluded
the Plaintiff did not have an impairment or combination of impairments that met or medically
equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at
27). 	Despite his impairments, ALJ Neel found that Plaintiff retained the residual functional
capacity (“RFC”) to perform light work, except he could occasionally climb, balance, stoop, kneel,
crouch, crawl, and reach/work overhead bilaterally, and must avoid concentrated exposure to
hazards (i.e., no work at unprotected heights, no work around dangerous unprotected moving
machinery, and no driving as part of work). He could understand, remember, and carry out simple
instructions, could use judgment to make simple work-related decisions, could have occasional
interactions with supervisors, coworkers, and the public, and could deal with occasional changes
in a routine work setting. 	(Id. at 30). 	With the assistance of a Vocational Expert (“VE”), ALJ
Neel determined Plaintiff could perform work as an assembler, cleaner, and router. (Id. at 40-41).
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 2 of 7 PageID #:
<pageID>

3
The Appeals Council denied Plaintiff’s request for review on June 14, 2024. (ECF No. 7,
pp. 8-13). Plaintiff subsequently filed this action on July 31, 2024. (ECF No. 2). Both parties
have filed appeal briefs (ECF Nos. 9, 11), and the matter is ready for Report and Recommendation.
II. 	Applicable Law
This 	Court’s 	role 	is 	to 	determine 	whether 	substantial 	evidence 	supports 	the
Commissioner’s findings. 	Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 	Substantial
evidence is less than a preponderance, but it is enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. 	Biestek v. Berryhill, 139 S.Ct. 1148, 1154
(2019). We must affirm the ALJ’s decision if the record contains substantial evidence to support
it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the
record to support the Commissioner’s decision, the Court may not reverse it simply because
substantial evidence exists in the record that would have supported a contrary outcome, or because
the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir.
2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the findings of the ALJ, we must affirm
the ALJ’s decision. Id.
A claimant for Social Security disability benefits has the burden of proving his disability
by establishing a physical or mental disability that has lasted at least one year and that prevents
him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). 	The Act defines “physical or mental
impairment” as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 3 of 7 PageID #:
<pageID>

4
techniques.” 	42 U.S.C. § 423(d)(3). 	A Plaintiff must show that his disability, not simply his
impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his age, education, and experience. See 20 C.F.R. § 404.1520(a)(4). The fact finder only
considers Plaintiff’s age, education, and work experience in the light of his RFC if the final stage
of the analysis is reached. 20 C.F.R. § 404.1520(a)(4)(v).
To qualify for child benefits as a disabled adult, the claimant must be “18 years old or older
and have a disability that began before he attained 22 years of age. 20 C.F.R. § 404.350(a)(5).
III. 	Discussion
Plaintiff raises the following issues on appeal: (1) whether the ALJ erred in failing to fully
and fairly develop the record; (2) whether the ALJ erred in his RFC determination; and (3) whether
the ALJ failed to properly resolve a direct conflict between his RFC assessment, the VE’s
testimony, and the DOT. (ECF No. 9).
Of particular concern to the undersigned are the ALJ’s findings at Step Five. 	At the
administrative hearing, the ALJ presented the hypothetical of a person of Plaintiff’s age, education,
and work experience who could perform light work with the same limitations later found in the
RFC determination, including occasional overhead work and overhead reaching. (ECF No. 7, p.
91). In response, the Vocational Expert (“VE”) testified that the Plaintiff could perform work as
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 4 of 7 PageID #:
<pageID>

5
an assembler, cleaner, and router, the same jobs the ALJ found Plaintiff could perform at Step Five
of his decision. 	(Id. at 40, 91-92). 	Because the DOT does not address overhead reaching and
overheard work, the expert stated that he based his opinion that the Plaintiff could still perform
these jobs despite the DOT requirement of frequent reaching on his own “observation, experience,
knowledge, and education.” (Id. at 96). He did not, however, provide further elaboration.
In his opinion, the ALJ made the following findings:
Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary of
Occupational Titles except potentially with regard to the overhead reaching/work
limitation. 	However, there is a reasonable explanation for the discrepancy. 	The
Dictionary of Occupational Titles does not differentiate between overhead reaching
versus reaching in all directions and the jobs identified by the vocational expert
require frequent reaching. 	The vocational expert testified, however, that an
individual with the overhead reaching limitation in the residual functional capacity
could nevertheless perform the jobs identified. The vocational expert is a highly
skilled and qualified individual, as demonstrated by their resume, on file as Exhibit
19E, was selected according to the Administration’s law, regulations, and policies
directing the selection of vocational experts for individual hearings, is fully
qualified to render expert opinions in this case and relied on a combination of their
own professional experience, observations knowledge and education in testifying
that the light jobs identified above can be performed by someone who can perform
only occasional overhead reaching/work. (ECF No. 7, p. 41).
For an ALJ to rely on a VE’s testimony that appears to conflict with a Dictionary listing,
the ALJ must identify and resolve the conflict. Stanton v. Soc. Sec. Admin., 899 F.3d 555, 558
(8th Cir. 2018). Otherwise, the VE’s testimony does not constitute substantial evidence to support
a denial of benefits. Id. The VE must provide sufficient explanation for his testimony, not simply
a statement that he based his answer on his experience. See Alberda v. Soc. Sec. Admin., 2021 WL
4239500, *3 (E.D. Ark., September 17, 2021) (wherein the ALJ restricted Plaintiff to no more than
occasional overhead reaching, and VE testimony that he relied on his experience to resolve the
conflict was insufficient); Manuel v. Saul, 2020 WL 6200186, *2 (E.D. Ark., Oct. 22, 2020)
(wherein Plaintiff was limited to occasional overhead reaching and VE testimony that he relied on
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 5 of 7 PageID #:
<pageID>

6
his past experience with these and similar jobs was an insufficient basis for resolving the conflict);
Stanton, 899 F.3d at 560 (wherein ALJ addressed a question of potential conflict between the
reasoning levels of the job, finding VE’s). 	“[T]he expert’s statement that his opinion was
‘consistent with the DOT and [his] experience’ was not a sufficient explanation, because it did not
address whether or why the expert’s experience provided a basis to overcome an apparent conflict
with the Dictionary.” Stanton, 899 F.3d at 560. While the VE may very well have had knowledge
about the requirements of specific jobs and their requirements from his experience, he did not say
so and further elaboration was required. Id.
The Commissioner argues that whether “the VE’s explanations were based upon
insufficient personal experience and unreliable scholarly literature ... were fact issues for the ALJ
to resolve,” citing Gieseke v. Colvin, 770 F.3d 1186, 1189 (8th Cir. 2014). 	(ECF No. 14).
However, because the VE failed to explain the specific experience and/or scholarly literature he
relied on, we must remand this case to the ALJ for further consideration. The ALJ’s finding that
the VE is a “highly skilled and qualified individual” who was “selected according to the
Administration’s law, regulations, and policies directing the selection of vocational experts for
individual hearings” does not constitute a sufficient basis for resolving the conflict, as this
statement could be made for any of the VE’s employed by the Administration. The finding still
lacks the required specificity.
IV. 	Conclusion
Based on the foregoing, it is RECOMMENDED that the Commissioner’s decision be
reversed, and the case remanded back to the Commissioner for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g).
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 6 of 7 PageID #:
<pageID>

7
The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. We remind the parties
that objections must be both timely and specific to trigger de novo review by the district
court.
DATED this 10th day of March 2025.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
Case 2:24-cv-02101-TLB Document 12 Filed 03/10/25 Page 7 of 7 PageID #:
<pageID>