Opinion
CIV-21-1012-C
05-31-2022
MARVIN W. RUTLEDGE, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Marvin W. Rutledge (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not “disabled” under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Robin J. Cauthron referred the matter to the undersigned Magistrate Judge consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 15.
Plaintiff asks this Court to reverse the Commissioner's decision, arguing the Administrative Law Judge (ALJ) committed several errors. Doc. 16, at 424. Because the undersigned agrees that the ALJ erred when he failed to ask the vocational expert (VE) about the apparent conflict between the reasoning level needed to perform the identified jobs and Plaintiff's reasoning level, it finds reversal warranted on that issue. The Court will not address Plaintiff's remaining claims of error, “because [they] may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the AR will refer to its original pagination.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just [the claimant's] underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king] a prima facie showing that [s]he can no longer engage in h[er] prior work activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 18-28; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found that Plaintiff:
(1) had not engaged in substantial gainful activity since September 17, 2019, the alleged onset date;
(2) had the following severe medically determinable impairments: cataracts, dysfunction of major joints, carpal tunnel syndrome, post fracture of the right radius with reconstructive surgery, post traumatic arthritis of the right wrist, obstructive sleep apnea, depressive bipolar, and anxiety;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity (RFC) to perform light work, with additional physical and mental restrictions,
including that he can perform only unskilled work consisting of simple and routine tasks with routine supervision that require only that he be able to understand, remember, and carry out simple instructions;
5) was unable to perform any past relevant work;
(6) could perform jobs that exist in significant numbers in the national economy, such as a small product assembler, DICOT 706.684-022, as an electrical assembler, DICOT 729.687-010, and as an inspector/packer, DICOT 559.687074; and so,
(7) had not been under a disability from September 17, 2019, through November 5, 2019, through June 30, 2021.See AR 18-28.
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. §§ 404.1545 (a)(1), 416.945(a)(1).
2. Appeals Council's findings.
The Social Security Administration's Appeals Council denied Plaintiff's request for review, see id. at 1-6, making the ALJ's decision “the
Commissioner's final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The Court reviews the Commissioner's final decision to determine “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotation marks omitted). A decision is not based on substantial evidence “if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 105. The Court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013).
B. Issues for judicial review.
Plaintiff asserts seven errors by the ALJ, each requiring remand. The Court addresses his fourth argument, that the ALJ failed to resolve the inherent conflict between the jobs the VE set forth and the RFC assessment. Doc. 16, at 19-20. Each job requires a reasoning level of two, an apparent conflict with the RFC assessment which, as explained below, this Court has found requires further inquiry.
III. Apparent unresolved conflict between the RFC assessment and the jobs the ALJ relied on at step five.
The Dictionary of Occupational Titles (DICOT) 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.” DICOT, 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.
Plaintiff argues that an unresolved conflict exists between the RFC and the reasoning level required in all three jobs. Doc. 16, at 19-20. All three jobs the ALJ relied on at step five require reasoning level two. See DICOT 706.684022 (small products assembler), DICOT 729.687-010 (electrical assembler), and DICOT 559.687-074 (inspector/packer). Plaintiff argues that his limitation to jobs “doing only unskilled work consisting of simple and routine tasks” involving only the ability to “understand, remember and carry out simple instructions” conflicts with reasoning-level-two jobs. Doc. 16, at 19-20.
An ALJ in a disability-benefit case has a duty to identify and resolve any apparent conflicts between the DICOT and a VE's testimony. SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). To that end, the ALJ must ask the VE whether his or her testimony conflicts with the DICOT. 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.
An RFC limiting a claimant to “simple and routine work tasks . . . seems inconsistent with the demands of level-three reasoning,” requiring remand “to allow the ALJ to address the apparent conflict between [p]laintiff's inability to perform more than simple and repetitive tasks and the level-three reasoning required by the jobs identified as appropriate for her by the VE.” Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). Hackett concerned work tasks, not instructions. Hackett mandated that the ALJ was required “to address the apparent conflict between Plaintiff's inability to perform more than simple and repetitive tasks and the level-three reasoning required by the jobs identified as appropriate for her by the VE.” See id. Thus, while Hackett is instructive, it does not directly resolve the issue here of whether a limitation to simple instructions is compatible with level-two reasoning skills.
[W]e have previously held that a limitation to “simple and routine work tasks . . . seems inconsistent with the demands of level-three reasoning.” [citing Hackett]. While we have not spoken to whether a limitation to simple and routine work tasks is analogous to a limitation to carrying out simple instructions, the Eighth Circuit has held that a limitation to simple instructions is inconsistent with both level-two and level-three reasoning. See Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997). An “ALJ must investigate and elicit a reasonable explanation for any conflict between the [DICOT] and expert testimony before the ALJ may rely on the expert's testimony as substantial evidence to support a
determination of nondisability.” Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999) (emphasis added); see also Poppa v. Astrue, 569 F.3d 1167, 1173 (10th Cir. 2009) (noting that SSR 00-4p “requires that an ALJ must inquire about and resolve any conflicts between a [VE's] testimony regarding a job and the description of that job in the [DICOT.]”).Paulek v. Colvin, 662 Fed.Appx. 588, 594 (10th Cir. 2016) (first emphasis added).
The Commissioner argues that “courts within this district have held that when a plaintiff is capable of one to two step instructions, . . . that capability may be translated into an RFC limitation for simple, routine, and repetitive tasks . . . consistent with reasoning level two jobs.” Doc. 20, at 20 & n. 8 (citing three cases from the District of Kansas and also noting “[t]here is some disagreement on this issue” (citing more cases from that district)). The Commissioner also argues that the VE, “not the court, has the expertise to interpret the information in the DICOT.” Id. at 21 (internal quotation marks and citation omitted.). She urges the Court to reject the request to “find a conflict where the VE testified that one did not exist.” Id.; AR 65-66 (VE testimony that no conflict existed).
Here, like in Hackett, neither the VE nor the ALJ explained or even acknowledged the discrepancy between the VE testimony and the DICOT as it related to Plaintiff's ability to perform “simple and routine tasks.” That the VE failed to identify a conflict after assuring the ALJ that he would do so did not relieve the ALJ to investigate regarding a conflict himself. See AR 62 (testimony of VE that he would advise the ALJ of a conflict). See Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999) (“[B]efore an ALJ may rely on expert vocational evidence as substantial evidence to support a determination of nondisability, the ALJ must ask the expert how his or her testimony as to the . . . requirement[s] of identified jobs corresponds with the [DICOT], and elicit a reasonable explanation for any discrepancy on this point.”) (emphasis added); see also SSR 00-4p, 2000 WL 1898704, at *2-*4 (“When there is an apparent unresolved conflict between VE . . . evidence and the DICOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the VE . . .” and “[t]he [ALJ] must explain the resolution of the conflict irrespective of how the conflict was identified”) (emphasis added).
See also Hackett, 395 F.3d at 1175 (noting that SSR 00-4p “essentially codifies Haddock” and “requires a reasonable explanation for conflicts between a VE's testimony and the DICOT relating to any ‘occupational information'”); Wilson v. Saul, No. CIV-18-1185-F, 2019 WL 6337444, at *6 (W.D. Okla. Oct. 18, 2019) (rejecting the Commissioner's argument that the VE's testimony about a lack of conflict was sufficient simply because the ALJ asked the VE to identify any conflicts with the DICOT and the VE failed to do so), adopted, 2019 WL 6329363 (W.D. Okla. Nov. 26, 2019); Stevens v. Comm'r of Soc. Sec., No. CIV-18-1129-SM, 2019 WL 2476750, at *2 (W.D. Okla. June 13, 2019) (finding that the existence of a conflict which required an explanation under SSR 04-p even though the ALJ had asked the VE to advise her of any inconsistency between the VE's testimony and the DICOT, and the VE did not reflect any conflict existed); Kelley v. Saul, 2019 WL 7293408, at *5 (D.N.M. Dec. 30, 2019) (“[M]ere reliance on the VE's affirmation of consistency is not enough.”).
This Court has reversed when the identical limitations were present, having found an unresolved conflict between an individual's ability to perform jobs involving only simple instructions and jobs which required reasoning level two. See Long v. Kijakazi, No. CIV-20-658-SM, 2021 WL 3826478 (W.D. Okla. Aug. 26, 2021); Larson v. Saul, No. CIV-19-067-STE, 2019 WL 6312000 (W.D. Okla. Nov. 25, 2019).
See also C.H.C. v. Comm'r, Soc. Sec. Admin., 2022 WL 950433, at *8 (D. Colo. Mar. 29, 2022) (“A reasoning level of 1 explicitly discusses simple instructions by stating that a claimant must be able ‘to carry out simple one-or two-step instructions,' while a reasoning level of 2 does not mention simple instructions but, rather, states that a claimant must be able ‘to carry out detailed but uninvolved written or oral instructions.' Thus, the plain language of these reasoning levels suggests that jobs with level 2 reasoning skills require one to comply with ‘detailed instructions' rather than mere ‘simple instructions.' While the Court does not find that ‘simple instructions' necessarily precludes jobs with level 2 reasoning skills, the Court does find, pursuant to Hackett, that the ALJ must explain the apparent discrepancy. Further, failure to do so constitutes reversible error. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012) (stating that, even though the Court does not insist on ‘technical perfection' in an ALJ's decision, the Court must be able to follow the ALJ's reasoning).”).
Although the statement regarding simple instructions was dictum in Paulek, no binding caselaw has 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. As a result, and based on the holdings in Long and Larson, the Court finds that an unresolved conflict exists between Plaintiff's RFC and the reasoning levels required for the jobs the ALJ identified. As a result, remand is appropriate for further proceedings in accordance with Hackett, Haddock, and Paulek.
Accordingly, the decision of the Commissioner should be reversed and remanded.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court reverse and remand the Commissioner's decision.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before June 14, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.