Opinion
CIV-22-1019-R
09-19-2023
DALLAS LAYNE MARTIN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his application for supplemental security income (“SSI”) under Title II of the Social Security Act, 42 U.S.C. § 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended Defendant's decision be reversed and remanded for further administrative proceedings.
I. Administrative History and Final Agency Decision
Plaintiff protectively filed an application for SSI on March 2, 2020, alleging disability since July 12, 2012. AR 16. The Social Security Administration denied Plaintiff's application initially and on reconsideration. Id.
Plaintiff, appearing with counsel, and a vocational expert (“VE”) testified at a telephonic administrative hearing conducted before an administrative law judge (“ALJ”) on May 31, 2022. AR 36-70. On June 30, 2022, the ALJ issued a decision in which he found Plaintiff had not been disabled within the meaning of the Social Security Act at any time from March 2, 2020, the application date, through the date of the decision. AR 13-29.
Following the agency's sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since March 2, 2020, the application date. AR 19. At the second step, the ALJ found Plaintiff had the following severe impairments: “degenerative disc disease of the lumbar spine, with residual effects post-surgical repair; residual effects post motor vehicle accident, with fractured back, legs, ankles and traumatic brain injury; major depressive disorder, post-traumatic stress disorder, anxiety and marijuana abuse.” Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 20.
At step four, the ALJ found, relevant to this appeal, that Plaintiff had the residual functional capacity (“RFC”) to perform “simple, routine, and repetitive tasks, requiring no more than 1-2-3 step instructions, not performed in a fast-paced production environment, involving making only simple, work-related decisions.” AR 22. During the administrative hearing, the ALJ presented the RFC limitations to the VE to determine whether there were jobs in the national economy Plaintiff could perform. AR 64-65. Given the limitations, the VE determined Plaintiff could not perform any of his past relevant work, but identified two jobs, photocopy machine operator and marker, from the Dictionary of Occupational Titles (“DOT”) that Plaintiff could perform. Id.
The ALJ asked the VE if his testimony was consistent with the DOT and the VE testified that with regard to Plaintiff's ability to perform simple, routine, and repetitive tasks, requiring no more than one-to-three step instructions, it was consistent. AR 66.The ALJ ultimately adopted the VE's testimony and concluded, at step five, that Plaintiff was not disabled based on his ability to perform the identified jobs. AR 27-28.
The VE explained that the DOT does not address Plaintiff's RFC limitations related to social interaction with coworkers, supervisors and the public and standing four out of eight hours. Id. He stated that with regard to these limitations, his testimony that Plaintiff could perform the identified jobs was based upon his “professional education, experience and training.” Id.
II. Issues Raised
On appeal, Plaintiff raises three issues. First, Plaintiff argues the ALJ's RFC is not supported by substantial evidence primarily resulting from the ALJ's failure to properly analyze the medical opinions of record and Plaintiff's subjective reports. Doc. No. 15 (“Op. Br.”) at 5-7, 9-14. Second, Plaintiff contends the jobs the ALJ relied upon at step five conflict with the RFC's limitation to simple, routine, and repetitive tasks, requiring no more than one-to-three step instructions. Id. at 7-9. Third, Plaintiff asserts the ALJ failed to consider the cumulative effects of Plaintiff's severe and non-severe impairments. Id. at 14-15.
III. General Legal Standards Guiding Judicial Review
Judicial review of Defendant's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). Substantial evidence “means-and means only- ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 587 U.S. __, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The “determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations, quotations, and brackets omitted). The court “meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. (quotations omitted). While a court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, a court does not reweigh the evidence or substitute its own judgment for that of Defendant. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
IV. Analysis
The DOT defines occupations, in part, by the “reasoning level” required to perform the occupation. Reasoning levels describe a job's requirements for understanding instructions and dealing with variables. These levels range from one to six, with one being the simplest and six the most complex. Reasoning level one requires a worker to be able to “[a]pply commonsense understanding to carry out simple one- or two-step instructions” and “[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job.” DOT, App. C, Components of the Definition Trailer, 1991 WL 688702. Reasoning level two requires the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions [and] [d]eal with problems involving a few concrete variables in or from standardized situations.” Id.
Based on their reasoning levels, Plaintiff challenges the ALJ's finding at step five that he could perform the jobs identified by the VE. Op. Br. at 7-9. In his decision, the ALJ concluded Plaintiff could perform the jobs of photocopy machine operator and marker. DOT, #207.685-014 (“photocopy machine operator”), 1991 WL 671745; DOT #209.587-034 (“marker”), 1991 WL 671802. Plaintiff asserts that the RFC, which limited him to simple, routine, and repetitive tasks, requiring no more than one-to-three step instructions, and simple decisions, conflicts with these jobs because they require a reasoning level of two.
An ALJ has a duty to identify and resolve any apparent conflicts between the DOT and a VE's testimony regarding whether a plaintiff can perform certain jobs. Social Security Ruling 00-4p, 2000 WL 1898704, at *2. To that end, the ALJ must ask the VE whether his testimony conflicts with the DOT. Id. at *4. Even if the VE answers “no,” the ALJ has a duty to independently identify and resolve any apparent conflicts before relying on the expert's testimony. Id.
As an initial matter, Defendant asserts, relying on two unpublished cases, that the DOT's reasoning levels “equate to educational attainment, not the simplicity or complexity of an occupation.” Doc. No. 17 at 14 (citing Anderson v. Colvin, 514 Fed.Appx. 756, 764 (10th Cir. 2013) and Mounts v. Astrue, 479 Fed.Appx. 860, 868 (10th Cir. 2012)). The argument continues that given Plaintiff's educational background, i.e., having completed two years of college, “[t]here is no evidence that Plaintiff . . . lacked the educational background required to do the work identified by the [VE].” Id. This Court has repeatedly rejected this argument. See Chatmon v. Kijakazi, No. CIV-23-291-P, 2023 WL 5395942, at *3 (W.D. Okla. Aug. 22, 2023); Fields v. Kijakazi, No. CIV-23-183-STE, 2023 WL 4868563, at *3 (W.D. Okla. July 31, 2023) (citing Wilson v. Saul, No. CIV-18-1185-F, 2019 WL 6337444, at *6 (W.D. Okla. Oct. 18, 2019); Stevens v. Comm'r of Soc. Sec., No. CIV-18-1129-SM, 2019 WL 2476750 (W.D. Okla. June 13, 2019); Collins v. Comm'r of Soc. Sec. Admin., No. CIV-17-018-HE, 2017 WL 4204036, at *4 (W.D. Okla. Sept. 21, 2017); Paddelty v. Colvin, No. CIV-14-891-D, 2016 WL 3647697, at *3 (W.D. Okla. July 1, 2016); Clark v. Colvin, 2016 WL 1171153, at *6 (W.D. Okla. Feb. 26, 2016), adopted, 2016 WL 1178807 (W.D. Okla. Mar. 23, 2016)).
With regard to Plaintiff's argument, the Tenth Circuit has indicated that a limitation to simple tasks is consistent with level two reasoning. See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (stating that a limitation to simple and routine work tasks “appears more consistent” with level 2 reasoning than with level 3 reasoning); Stokes v. Astrue, 274 Fed.Appx. 675, 684 (10th Cir. 2008) (finding that a limitation to simple, repetitive work was “consistent with the demands of level-two reasoning”). However, the Tenth Circuit has not determined whether a limitation to simple instructions is consistent with level two reasoning. See Paulek v. Colvin, 662 Fed.Appx. 588, 594 (10th Cir. 2016) (“[W]e have not spoken to whether a limitation to simple and routine work tasks is analogous to a limitation to carrying out simple instructions[.]” (emphasis added)). In both Hackett and Paulek, the Tenth Circuit cited with approval to an Eighth Circuit case in which the court held that a limitation to simple instructions is inconsistent with both level two and level three reasoning. Paulek, 662 Fed.Appx. at 594 (citing Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997)); Hackett, 395 F.3d at 1176 (same).
In her Response, Defendant asserts there is no conflict between a limitation to simple and routine work tasks and reasoning level two jobs. Doc. No. 17 at 14. However, this ignores the RFC's additional limitation that Plaintiff was limited to one-to-three step instructions and simple decisions. Since Paulek and Hackett, this Court has generally drawn a distinction between simple tasks and simple instructions when determining whether an RFC containing such limitations conflicts with level two reasoning. See Chatmon, 2023 WL 5395942, at *3-4 (reviewing this Court's history of distinguishing between simple tasks and simple instructions and finding that an RFC limitation to simple instructions conflicts with reasoning level two jobs); Calvin v. Kijakazi, No. CIV-21-1046-SM, 2022 WL 3268745, at *4 (W.D. Okla. Aug. 10, 2022) (“Although a limitation to simple tasks is consistent with a reasoning level of two, that is not the case for a limitation to simple instructions.” (citing C.H.C. v. Comm'r, Soc. Sec. Admin., 20-cv-2428-KLM, 2022 WL 950433, at *7 (D. Colo. March 29, 2022) (explaining that “Hackett concerned work tasks, not instructions, and the Court has found no legal authority equating the two for purposes of legal analyses”))); Rutledge v. Kijakazi, No. CIV-21-1012-C, 2022 WL 2232518, at *4 (W.D. Okla. May 31, 2022) (reversing and remanding where RFC contained limitation to simple instructions, the jobs identified at step five required level two reasoning, and neither the VE nor the ALJ addressed the same), adopted, 2022 WL 2232205 (W.D. Okla. June 21, 2022); Rodgers v. Kijakazi, No. CIV-21-12-STE, 2022 WL 801560, at *4-5 (W.D. Okla. March 15, 2022) (finding an unresolved conflict exists between an RFC limitation to understanding, remembering, and carrying out simple instructions and reasoning level two, stating, “Although the statement regarding simple instructions was dictum in Paulek, the fact remains that [the] Tenth Circuit has not definitively determined whether level two reasoning is consistent with RFC limitations of ‘simple instructions,' but it has affirmatively cited the Eighth Circuit in this regard.”); Steele v. Kijakazi, No. CIV-20-1294-STE, 2022 WL 801579, at *6 (W.D. Okla. March 15, 2022) (finding no conflict between RFC limitation to simple, routine, repetitive tasks and level two reasoning); Long v. Kijakazi, No. CIV-20-658-SM, 2021 WL 3826478, at *3-4 (W.D. Okla. Aug. 26, 2021) (finding conflict between RFC containing limitation to understanding, remembering, and carrying out simple instructions and reasoning level two jobs and noting ALJ never inquired as to whether such conflict existed); Wilson, 2019 WL 6337444, at *5, 7 (affirming where RFC limited the plaintiff to simple, routine, and repetitive tasks and ALJ relied on reasoning level two jobs the plaintiff could perform, stating, “[T]he Tenth Circuit has rejected the notion that a ‘limitation to simple, repetitive and routine work should be construed as a limitation to jobs with a reasoning level rating of one.'” (quoting Stokes, 274 Fed.Appx. at 684)); Forsell v. Berryhill, No. CIV-18-94-STE, 2018 WL 6440882, at *7-8 (W.D. Okla. Dec. 7, 2018) (finding no inherent conflict between RFC limitation to simple, routine, and repetitive tasks and level two reasoning jobs); Lee v. Berryhill, No. CIV-16-483-R, 2017 WL 2892338, at *7 (W.D. Okla. June 15, 2017) (same); but see Tedder v. Kijakazi, No. CIV-20-1211-P, 2021 WL 5826275, at *4 (W.D. Okla. Dec. 8, 2021) (“[A] limitation to simple tasks involving one to two step instructions is consistent with . . . [a] reasoning level of two”) (citing Ray v. Comm'r of Soc. Sec., No. CIV-18-00638-SM, 2019 WL 1474007, at *5 (W.D. Okla. Apr. 3, 2019) (“The court finds that, on its face, the description for a reasoning level of 2-the ability to carry out detailed but uninvolved written or oral instructions-does not conflict with Plaintiff's RFC limitation to carrying out simple work-related instructions and tasks.” (quotations omitted)); Dickson v. Saul, No. CIV-19-248-SM, 2019 WL 5684513, at *3 (W.D. Okla. Nov. 1, 2019) (“[T]he court finds that a reasoning level of two does not conflict with a limitation to understanding, remembering, and applying simple, routine instructions.”); Roth v. Colvin, CIV-16-0002-D, 2017 WL 394676, at *9 (W.D. Okla. Jan. 11, 2017) (finding that a RFC determination allowing a plaintiff to perform jobs with “simple, repetitive, routine instructions and work decisions” was “consistent with reasoning level 2” (quotations omitted)).
In the present case, the ALJ limited Plaintiff not only to simple tasks but also to one-to-three step instructions and simple decisions. AR 22. The latter limitation conflicts with the reasoning level two jobs the ALJ identified at step five, see supra, and neither the ALJ nor the VE addressed the same. Accordingly, this matter should be reversed and remanded for further proceedings.
In light of this recommendation, it is unnecessary to address the remaining arguments Plaintiff raised on appeal. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”).
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter REVERSING and remanding the decision of the Commissioner for further administrative proceedings. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before October 10th, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.