Fulton v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

DAVID L. F., )

)

Plaintiff, )

)

v. ) Case No. 4:22-CV-98-CDL

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review of a decision of the Commissioner of the Social

Security Administration (Commissioner) denying Social Security disability benefits. The

parties have consented to proceed before a United States Magistrate Judge in accordance

with 28 U.S.C. § 636(c). For the reasons set forth below, the Court affirms the

Commissioner’s decision.

I. Standard of Review

The Social Security Act (the Act) provides disability insurance benefits to

qualifying individuals who have a physical or mental disability. See 42 U.S.C. § 423. The

Act defines “disability” as an “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.” See 42 U.S.C. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (quoting Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S. Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the Court

may not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952

F.3d at 1178.

II. Background and Procedural History

The plaintiff filed an application for disability and disability insurance benefits on

January 28, 2019, alleging a disability onset date of January 17, 2016. (R. 125). The

plaintiff’s last insured date for the purpose of disability insurance benefits is September 30,

2016. (Id.; R. 18). He alleged that he became disabled due to mental conditions and

seizures. (R. 125-126). He was 38 years old on the alleged onset date. (R. 125).

The Commissioner denied plaintiff’s application on initial review and on

reconsideration. After the plaintiff requested a hearing before an Administrative Law Judge

(ALJ), telephonic hearings were held on May 13, 2020 and July 7, 2021. At each hearing,

testimony was given by plaintiff and a Vocational Expert (VE). (See R. 36-111).

When he filed his application for disability benefits, the plaintiff was working part-

time, packing and shipping merchandise for Macy’s, but that work reportedly did not rise

to the level of substantial gainful activity. (See R. 83-84). During the initial ALJ hearing

on his claim in May 2020, the plaintiff testified that, in that position, he tried his best to

keep up with the required pace of production and had not been disciplined for mistakes.

(R. 89). However, at the July 2021 hearing, the plaintiff indicated that he had more recently

had problems keeping up with his production quota, had been making errors in his work,

and that he was no longer working for Macy’s. (R. 51-52). He testified that his claim for

unemployment benefits was denied because he was found to have left the job voluntarily.

(R. 51). The plaintiff testified that he has been fired from previous jobs due to performance

problems. (R. 91).

The plaintiff left school in ninth grade, but he later obtained a high school

equivalency diploma, during time he spent in prison. (R. 83). In 2002 and 2003 he worked

as an industrial cleaner through a temporary staffing agency. (R. 43-44). That work was

performed at the heavy-exertion level, at specific vocational preparation (SVP) Level 2, as

defined in the Dictionary of Occupational Titles (DOT). The plaintiff has additional past

relevant work as a material handler (heavy exertion, SVP Level 3), compression molding

machine operator (heavy exertion, SVP Level 5), and hand packager (medium exertion,

SVP Level 2). (R. 65-66). The plaintiff at one time received training and obtained

certification to operate a forklift. (R. 83). While in prison, the plaintiff also built houses for

Habitat for Humanity. (R. 86-87). He was released from prison in 2014. (R. 87).

At the May 13, 2020 hearing, the plaintiff stated that he experiences hallucinations

that make him sweat, experience paranoia, and “feel weird,” and that he copes by taking

deep breaths and splashing water on his face. (R. 95-96). He testified that this occurs once

or more daily. (R. 96). He has missed work at times due to feelings of depression and a

lack of motivation. (R. 98). The plaintiff testified that he had stopped using alcohol and

marijuana for a 90-day period, but had recently relapsed. (R. 97).

At the July 7, 2021 hearing, the plaintiff indicated that he takes Seroquel and

Mitrazapine at night to treat his conditions. (R. 58-59). The medications help him sleep,

but he believes they also give him nightmares, and he does not believe the medications

reduce his hallucinations. (R. 59-60). The plaintiff testified that he hears voices telling him

to hurt himself or someone else, but that he tries to ignore them. (R. 60-61). He also

experiences feelings of paranoia and panic attacks, especially when around other people.

(R. 62-63). The plaintiff has never obtained a driver’s license, due to a lack of money and

previous DUIs. (R. 87). He testified that he can read and write, and that he “read[s] the

Bible a lot.” (R. 88).

On August 9, 2021, the ALJ issued a decision denying benefits. (R. 15-29). On

January 12, 2022, the Appeals Council denied the plaintiff’s request for review, which

rendered the ALJ’s decision the agency’s final decision. (R. 1-4). Plaintiff filed a timely

appeal in this Court, which has jurisdiction to review the ALJ’s August 9, 2021 decision

under 42 U.S.C. § 405(g).

III. The ALJ’s Decision

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step

one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At

step two, the ALJ determines whether the claimant has an impairment or a combination of

impairments that is severe. At step three, the ALJ determines whether the claimant’s severe

impairment or combination of impairments is equivalent to one that is listed in the

applicable regulation, which the Commissioner “acknowledges are so severe as to preclude

substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)

(internal quotation and citation omitted); see 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404,

subpt. P, App’x 1 (Listings). At step four, the claimant must show that his impairment or

combination of impairments prevents him from performing his previous work.

The claimant bears the burden on steps one through four. Lax v. Astrue, 489 F.3d

1080, 1084 (10th Cir. 2007). If the claimant satisfies this burden, thus establishing a prima

facie case of disability, the burden of proof shifts to the Commissioner to show at step five

that the claimant retains the capacity to perform other work available in the national

economy, considering the claimant’s age, education, and work experience. Id.

Here, at step one the ALJ found that the plaintiff has not performed substantial

gainful activity since his alleged onset date of January 17, 2016. (R. 18). At step two, the

ALJ determined that the plaintiff has severe impairments, including depressive disorder,

anxiety disorder, alcohol use disorder, cannabis use disorder, and borderline intellectual

functioning. Id. The ALJ found the plaintiff’s alleged seizures are not a medically

determinable impairment, noting a lack of objective medical evidence of seizures. Id.

At step three, the ALJ found that plaintiff’s impairments do not meet or equal the

severity criteria for any Listing, specifically addressing Listings for mental impairments,

including intellectual disorder. (See R. 19-21). The ALJ addressed the “paragraph B”

criteria—four areas of mental functioning used to determine whether a claimant’s mental

impairments functionally equal a Listing. Id.; see 20 C.F.R. § 404 Subpt. P App’x 1. The

ALJ found that Plaintiff has a moderate limitation in each of the “paragraph B” domains--

understanding, remembering, or applying information; interacting with others;

concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 19-

20).

At step four, after considering the entire record, the ALJ determined that plaintiff

has the RFC:

to perform a full range of work at all exertional levels but with

the following nonexertional limitations: able to understand,

remember and perform simple tasks that are learned by rote

with limited variables and limited judgment required. The job

should not involve tasks performed at a fast-paced production

rate pace. The [plaintiff] is able to sustain attention and

concentration for up to 2 hours at a time when performing

simple tasks that are learned by rote with limited variables and

limited judgment required and is able to sustain the mental

demands associated with performing simple tasks that are

learned by rote with limited variables and little judgment

required throughout an ordinary workday and workweek. He is

able to interact with supervisors as needed to receive work

instructions and supervision should be simple, direct and

concrete. The [plaintiff] is able to work in proximity to co-

workers but job should not involve teamwork or other work

where close communication or cooperation with co-workers is

needed in order to complete work tasks. He is able to interact

with the general public as needed to refer a member of the

public to a supervisor or co-worker for assistance but job

should not involve customer service or other work where

interacting with the general public is an essential function of

the job

(R. 21).

The ALJ indicated that in making this finding, she considered all of plaintiff’s

symptoms in connection with the objective medical evidence and other evidence, based on

the requirements of 20 C.F.R. §§ 404.1529 and 416.929 and Social Security Ruling (SSR)

16-3p, as well as medical opinions and prior administrative findings, in accordance with

the requirements of 20 C.F.R. §§ 404.1520c and 416.920c. (R. 21-22). The evidence

included consultative examination reports by three different psychologists (including one

psychological consultative examination from a prior, unsuccessful application for

disability). On March 25, 2015, Johna Smasal, Ph.D. assessed the plaintiff with diagnoses

of unspecified schizophrenia spectrum and other psychotic disorder; unspecified bipolar

and related disorder; and unspecified substance-related disorder. (R. 23; see R. 590-596).

On May 21, 2019, Joseph James, Psy.D. noted that the plaintiff reported marijuana use as

recently as the previous day. (R. 23; see R. 738). Dr. James assessed provisional diagnoses

of alcohol use disorder and cannabis use disorder, as well as unspecified anxiety and

depressive disorders. (R. 24; see R. 736-743).1 Dr. James identified intellectual disability

1 Dr. James noted that the plaintiff “appeared to be under the influence of some sort

of substance during the interview.” (R. 24; see R. 739). In his hearing testimony, the

plaintiff denied having been under the influence of drugs or alcohol during the

examination. (R. 93).

as an additional diagnosis to be ruled out, and recommended further testing, to include the

Minnesota Multiphasic Personality Inventory (MMPI-2), Wechsler Adult Intelligence

Scale (WAIS), and Substance Abuse Subtle Screening Inventories (SASSI). (R. 740).

Pursuant to a request by the plaintiff’s attorney, the plaintiff underwent another

consultative examination on June 28, 2021 with Larry Vaught, Ph.D. (See R. 107-110).

The ALJ ordered that the third consultative examination include “a mental RFC form with

narrative description of limitations,” as well as intelligence and other testing that Dr. James

had recommended. (R. 110). In his report on the examination, Dr. Vaught noted the

plaintiff’s report and previous documentation of depression, anxiety, and post-traumatic

stress disorder (PTSD). (R. 25). Dr. Vaught measured a full-scale I.Q. of 77 and assessed

diagnoses of major depressive disorder, severe with psychotic features; borderline

intellectual functioning; and chronic PTSD. Id.

Citing testimony by the VE as to a hypothetical person with plaintiff’s RFC, the

ALJ found at step four that plaintiff can perform his past relevant work as an industrial

cleaner, both as actually performed at the heavy-exertion level and as generally performed

at the medium-exertion level. (R. 28). Accordingly, the ALJ found at step four that plaintiff

is not disabled.

The ALJ also proceeded to make alternative findings at step five. Based on the VE’s

testimony as to a hypothetical person with plaintiff’s age, education, and RFC, the ALJ

found the plaintiff can perform the requirements of representative occupations including:

Laundry Worker, medium exertion, unskilled, SVP Level 2, DOT #

361.684-014, with 103,000 jobs existing in the national economy;

Industrial Sweeper Cleaner, medium exertion, unskilled, SVP Level 2, DOT

# 389.687-010, with 137,000 jobs existing in the national economy; and

Hospital Cleaner, medium exertion, unskilled, SVP Level 2, DOT #

323.687-010, with 54,000 jobs existing in the national economy.

(R. 28). Accordingly, the ALJ also found plaintiff is not disabled at step five. Id.

IV. Discussion

The plaintiff’s brief asserts a range of arguments that are not clearly delineated. The

Court classifies the plaintiff’s arguments as follows: (1) the ALJ failed to address certain

diagnosed impairments—specifically, paranoid schizophrenia and PTSD—at step two; (2)

the ALJ’s findings at step four (and, alternatively, step five) failed to adequately account

for evidence of those two conditions, and for Dr. Vaughn’s finding that the plaintiff

demonstrated very low mental processing speed on the WAIS; and (3) the ALJ improperly

relied on the VE’s testimony as to the mental work requirements consistent with the RFC

determination. The Commissioner argues that the ALJ properly considered the medical and

other evidence in the record and that substantial evidence supports the ALJ’s decision.

A. Step Two

The plaintiff contends that the ALJ erred at step two by failing to address evidence

that the plaintiff has received diagnoses of paranoid schizophrenia and PTSD. At step two

of the evaluative sequence, the ALJ must determine whether a claimant suffers from severe

impairments. That is all that is required of the ALJ at step two. Oldham v. Astrue, 509 F.3d

1254, 1256 (10th Cir. 2007). Once an ALJ finds that a claimant has at least one severe

impairment, a failure to designate others as “severe” at step two does not constitute

reversible error. See id.; Hill v. Astrue, 289 F. App’x 289, at **2 (10th Cir. 2008) (emphasis

in original) (“Once the ALJ finds that the claimant has any severe impairment, he has

satisfied the analysis for the purposes of step two.”).2 This is because, under the

regulations, the agency at later steps “consider[s] the combined effect of all of [the

claimant’s] impairments without regard to whether any such impairment, if considered

separately, would be of sufficient severity.” Langley v. Barnhart, 373 F.3d 1116, 1123-24

(10th Cir. 2004); see also 20 C.F.R. §§ 404.1545(e), 416.945(e).

Here, the ALJ found that the plaintiff has severe physical and mental impairments

at step two. (R. 18). As such, the ALJ’s failure to address any other medically determinable

impairment, if any, at step two does not constitute reversible error. See Oldham, 509 F.3d

at 1256. To the extent the plaintiff contends the ALJ failed to adequately address evidence

in the RFC determination, the Court will consider and address such arguments infra.

B. RFC Determination

At step four, the ALJ determines whether a claimant can return to his or her past

relevant work, using a three-phase analysis. Wells v. Colvin, 727 F.3d 1061, 1074 (10th

Cir.2013). First, the ALJ must evaluate the claimant’s physical and mental RFC. Second,

the ALJ must determine the physical and mental demands of the claimant’s past relevant

work. Finally, the ALJ determines whether the claimant can perform the job demands

found in the second phase, despite the mental and/or physical limitations of the RFC

determination. At each of these phases, the ALJ must make specific findings. Id.

2 Under 10th Cir. R. 32.1(A), “[u]npublished decisions are not precedential, but may

be cited for their persuasive value.”

The plaintiff argues that in the first phase of step four, the ALJ failed to adequately

address the subtest score from Dr. Vaught’s June 28, 2021 consultative examination, which

indicated extremely low mental processing speed. As stated in the ALJ’s decision, Dr.

Vaught recorded a full-scale IQ of 77 using the WAIS. (R. 25). Dr. Vaught’s report

includes additional details regarding the WAIS results. Dr. Vaught reported that the full-

scale score of 77 is “at the 6th percentile and in the borderline range of intellectual

functioning.” (R. 798). Dr. Vaught’s report includes the plaintiff’s subtest scores and

percentile rankings in four categories. In verbal comprehension, the plaintiff’s score was

78 (7th percentile); in perceptual reasoning, the plaintiff’s score was 82 (12th percentile);

in working memory, the plaintiff’s score was 77 (6th percentile); and in processing speed,

the plaintiff’s score was 52, placing him in the 1st percentile. Id.

The plaintiff contends that the ALJ erred by failing to specifically address the

subtest score showing the plaintiff’s mental processing speed was in the first percentile.

The plaintiff’s brief suggests, without citing authority, that the extremely limited

processing speed recorded by Dr. Vaught would eliminate even rote work, and that the ALJ

failed to account for this finding in the RFC.

But the ALJ’s decision accurately summarized Dr. Vaught’s report and explained

how Dr. Vaught’s report and accompanying medical source statement support the ALJ’s

RFC determination. As the ALJ’s decision explained, Dr. Vaught opined the plaintiff has

mild limitations in the ability understand, remember and carry out simple instructions and

the ability to make judgments on simple, work-related decisions; moderate limitations in

the ability understand, remember and carry out complex instructions and the ability to make

judgments on complex work-related decisions; and moderate limitations in the ability to

interact with co-workers and supervisors and respond appropriately to usual work

situations and to changes in a routine work setting. (R. 26). Dr. Vaught opined that the

claimant has only one marked limitation—in interacting with the general public. See id.

The ALJ concluded that Dr. Vaught’s opinions are persuasive and are “supported

by, and consistent with testing that was performed and other medical evidence of record.”

Id. The ALJ found that the plaintiff is limited to “simple tasks that are learned by rote with

limited variables and limited judgment required,” and eliminates any job involving “tasks

performed at a fast-paced production rate pace.” (R. 21).3 The ALJ’s RFC determination is

consistent with the functional limitations Dr. Vaught assessed following his examination

and testing of the plaintiff. (See R. 26; R. 800-803).

As such, substantial evidence supports the ALJ’s decision with respect to the WAIS

processing speed subtest score. The plaintiff offers no authority or cogent reason why Dr.

Vaught’s objective findings warranted limitations exceeding those Dr. Vaught himself

assessed. Although the ALJ’s decision did not detail the plaintiff’s WAIS subtest scores or

specifically discuss the processing speed subtest, the plaintiff has not shown that any such

omission was error, reversible or otherwise. See Qualls v. Apfel, 206 F.2d 1368, 1372 (10th

Cir. 2000) (noting that an ALJ’s failure to include an alleged limitation in the RFC is not

3 At step three, the ALJ’s decision noted that, while the plaintiff indicated he has

difficulty in concentrating and completing tasks, the plaintiff also admitted “that he is able

to prepare simple meals, watch TV, and manage funds.” (R. 19 (citing exhibits including

Adult Function Report completed by the plaintiff’s mother and the consultative

examinations of Dr. James and Dr. Vaught)).

error if the limitation is not supported by the medical record); see also Scull v. Apfel, 221

F.3d 1352, 2000 WL 1028250, at *1 (10th Cir. July 26, 2000) (unpublished) (“[D]isability

determinations turn on the functional consequences, not the causes, of a claimant’s

condition.”); Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000) (affirming where, inter

alia, claimant had not “directed [the court’s] attention to any medical evidence that was

disregarded” related to alleged functional limitation).4

The plaintiff’s brief also argues that the ALJ failed to adequately address evidence

relating to his diagnosed schizophrenia and PTSD. Although the plaintiff does not identify

which additional functional limitations he contends are necessary, he points to evidence

that his symptoms have included audial and visual hallucinations, paranoia, phobias, loose

associations, flat affect, restless behavior, sleep disturbances, and nightmares. (Doc. 12 at

6-7). However, the ALJ’s decision in fact noted records indicating or referring to previous

schizophrenia diagnoses, including in Dr. Smasal’s 2015 consultative evaluation. (See R.

23-24). In addition, the ALJ noted diagnoses of PTSD in 2019 and in Dr. Vaught’s

consultative examination. (R. 25). As discussed in the ALJ’s decision, Dr. Vaught’s

examination also reviewed the plaintiff’s past treatment records and reviewed his reported

symptoms, including hypervigilance in public, feeling people may try to hurt him, slowed

4 For the same reasons, the Court rejects the plaintiff’s contention that the ALJ was

required to obtain clarification of the VE’s testimony via post-hearing interrogatories. The

hypothetical need only reflect the limitations found to exist by the ALJ. See Evans v.

Chater, 55 F.3d 530, 532 (10th Cir.1995) (noting “the established rule that such inquiries

must include all (and only) those impairments borne out by the evidentiary record”).

speech, hearing voices, seeing things in the periphery, sleep disruption and nightmares,

lack of motivation, and lethargy. (R. 25; see also R. 796-799).

As explained supra and in the ALJ’s decision, Dr. Vaught’s examination findings

and opinion support the ALJ’s RFC determination. As such, the Court finds no merit to

the plaintiff’s suggestion that the ALJ failed to adequately consider evidence relating to

schizophrenia and PTSD. The ALJ’s discussion of the evidence was adequate, in that it

was reasonable and consistent with the applicable legal standards, and substantial evidence

supports the ALJ’s RFC findings. See Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)

(holding that court must affirm if, considering the evidence as a whole, there is sufficient

evidence which a reasonable mind might accept as adequate to support a conclusion); see

also Oldham, 509 F.3d at 1257-58 (on appeal, court reviews only sufficiency of evidence,

not its weight); Lax, 489 F.3d at 1084 (court may not reweigh evidence and displace agency

choice between two fairly conflicting views).

C. Reliance on Vocational Expert Testimony

The plaintiff contends that the ALJ erred in the second phase of step four by ignoring

an unspecified “probability” that, despite the VE’s testimony regarding the plaintiff’s past

work as an industrial cleaner—which was based on the plaintiff’s own testimony—the

plaintiff’s prior work was in fact more complex than the Level 2 general educational

development (GED) rating associated with the industrial cleaner occupation.5 The plaintiff

5 The DOT identifies a GED reasoning level between 1 (lowest) and 6 (highest) for

each listed job. GED reasoning level involves “aspects of education . . . which are required

of the worker for satisfactory job performance.” DOT, App. C, § III (4th Ed. Rev. 1991),

1991 WL 688702. Reasoning development level addresses the degree of analytical problem

appears to argue, in other words, that the ALJ improperly relied on the VE’s testimony

classifying the plaintiff’s past work as an industrial cleaner.

Generally, an ALJ may rely upon vocational expert testimony in making findings at

phase two and phase three of step four. Doyal, 331 F.3d at 761 (quoting Winfrey v. Chater,

92 F.3d 1017, 1025 (10th Cir. 1996)). While the step-four analysis may not be delegated

to the vocational expert, the ALJ may rely on information supplied by the vocational expert

regarding the demands of plaintiff’s past relevant work and regarding whether a person

with plaintiff’s RFC could meet those demands. Id., 331 F.3d at 761. The ALJ must

“investigate and elicit a reasonable explanation for any conflict between the [DOT] and

expert testimony.” Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999); see also SSR

00-04p, 2000 WL 1898704.

The plaintiff argues that the ALJ’s hypothetical RFC presented to the VE was not

sufficiently “precise,” and suggests that the plaintiff’s own testimony was unreliable

because the plaintiff “had a hard time remembering and was not clear in describing it.”

(Doc. 12 at 10-11). However, the Court has reviewed the hearing transcript and does not

find support for this argument. The plaintiff testified during the July 7, 2021 hearing that

he had worked for Green Country Staffing “since [he] was 18 years old.” (R. 43-44). The

plaintiff explained that, while he was assigned to work at National Steak and Poultry, his

solving required by a job. Reasoning level two requires a worker 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.

job included “cleaning out the containers with the high-pressure water hose, cleaning out

the containers and the buckets that they would season the meat, in processing the meat.”

(R. 44). When asked the heaviest weight he lifted in that job, the plaintiff recalled that he

was “not really sure, but the [containers] were big old steel, stainless steel buckets” that

“probably weighed, at least, over a hundred pounds.” Id. In response to the ALJ’s question,

VE Melissa Brassfield identified that past work as the job of industrial cleaner, with an

SVP level of 2. Id.; see also R. 65 (VE’s testimony that “[h]e worked as an industrial

cleaner, 381.687-030, medium, SVP: 2, heavy as performed.”). The plaintiff’s hearing

counsel had no questions regarding the VE’s testimony. (R. 68). Further supporting the

reliability of Ms. Brassfield’s testimony, during the plaintiff’s first ALJ hearing, a different

VE classified plaintiff’s past work as the same industrial cleaner job, based on her own

review of the record as to the plaintiff’s past work. (R. 101). As such, the Court finds that

the ALJ reasonably and properly relied on VE testimony in classifying the plaintiff’s past

relevant work as an industrial cleaner.

The plaintiff also argues that GED reasoning Level 2—which characterizes

plaintiff’s past relevant work, as well as two of the alternative occupations the ALJ

identified at step five—is not consistent with the ALJ’s RFC determination, which limits

the plaintiff to “simple tasks learned by rote with limited variables and limited judgment

required.” (See Doc. 12 at 19). However, the relevant case law does not support this

argument. See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (noting that Level

2 reasoning “appears more consistent with” an RFC for “simple and routine” work tasks);

Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (unpublished) (rejecting argument

that limitation to “simple and routine work tasks” is inconsistent with Level 2 reasoning);

see also Ray v. Comm’r of Soc. Sec., No. CIV-18-629-SM, 2019 WL 1474007, at *5 (W.D.

Okla. Apr. 3, 2019) (unpublished) (finding that Level 2 reasoning does not, “on its face,”

conflict with an RFC limited to simple work-related instructions and tasks; collecting

cases); compare Paulek v. Colvin, 662 F. App’x 588, 594 (10th Cir. 2016) (unpublished)

(citing Eighth Circuit holding that “a limitation to simple instructions is inconsistent with

both level-two and level-three reasoning,” but noting that Tenth Circuit has not ruled

“whether a limitation to simple and routine work tasks is analogous to a limitation to

carrying out simple instructions”). Under the existing case law, there was no apparent

conflict between the DOT and the VE’s testimony identifying jobs with GED Level 2

reasoning, and therefore the ALJ did not commit reversible error in accepting the VE’s

testimony.

V. Conclusion

For the reasons set forth above, the ALJ’s decision is supported by substantial

evidence and reflects the application of proper legal standards. Accordingly, the decision

of the Commissioner finding the plaintiff not disabled is affirmed.

SO ORDERED this 29th day of August, 2023.

CUnristre Q tikllee

Christine D. Little

United States Magistrate Judge

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