Rodgers v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TOMMY RODGERS, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-12-STE

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the

final decision of the Commissioner of the Social Security Administration denying Plaintiff’s

application for benefits under the Social Security Act. The Commissioner has answered

and filed a transcript of the administrative record (hereinafter TR. ____). The parties have

consented to jurisdiction over this matter by a United States magistrate judge pursuant

to 28 U.S.C. § 636(c).

The parties have briefed their positions, and the matter is now at issue. Based on

the Court’s review of the record and the issues presented, the Court REVERSES AND

REMANDS the Commissioner’s decision.

I. PROCEDURAL BACKGROUND

Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for benefits. Following an administrative hearing, an Administrative Law Judge

(ALJ) issued an unfavorable decision. (TR. 10-20). On review, the Appeals Council denied

Plaintiff’s request for review. (TR. 1-3). Thus, the decision of the ALJ became the final

decision of the Commissioner for purposes of this appeal.

II. THE ADMINISTRATIVE DECISION

The ALJ followed the five-step sequential evaluation process required by agency

regulations. , 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.

§ 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial

gainful activity since October 2, 2018, the application date. (TR. 12). At step two, the ALJ

determined Mr. Rodgers suffered from the following severe impairments: essential

hypertension; degenerative disc disease of the lumbar spine; degenerative joint disease;

obesity; asthma; depression; anxiety; and trauma stressors. (TR. 12). At step three, the

ALJ found that Plaintiff’s impairments did not meet or medically equal any of the

presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1

(TR. 12).

At step four, the ALJ concluded that Mr. Rodgers retained the residual functional

capacity (RFC) to:

[P]erform sedentary work as defined in 20 CFR 416.967(a) except to

climbing of ladders, ropes or scaffolds and no stooping; crouching, crawling,

kneeling, balancing, and climbing or ramps and stairs can be done

occasionally. No exposure to elevated levels of fumes, dusts, gasses, odors,

poor ventilation, or other respiratory irritants (elevated level means

concentration in excess of that normally found in modern office buildings or

light manufacturing facilities). Due to mental impairments, the claimant is

capable of doing 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. The claimant can relate to

supervisors and coworkers on a superficial and work related basis and can

adapt to a work situation. The claimant, as part of his job duties, should

work at his own workstation or location independently performing his own

tasks, without having to directly interact with coworkers to perform those

tasks, there should be no contact with the general public.

(TR. 14).

At step four, the ALJ concluded that Plaintiff could not perform his past relevant

work. (TR. 18). However, the ALJ presented the RFC limitations to a vocational expert

(VE) to determine whether there were other jobs in the national economy that Plaintiff

could perform. (TR. 55-57). Given the limitations, the VE identified three jobs from the

Dictionary of Occupational Titles (DOT). (TR. 57). At step five, the ALJ adopted the VE’s

testimony and concluded that Mr. Rodgers was not disabled based on his ability to

perform the identified jobs. (TR. 19-20).

III. ISSUE PRESENTED

On appeal, Mr. Rodgers alleges error at step five. (ECF Nos. 17:11-24; 22:2-13).

IV. STANDARD OF REVIEW

This Court reviews the Commissioner’s final decision “to determin[e] whether the

Commissioner applied the correct legal standards and whether the agency’s factual

findings are supported by substantial evidence.” , 952 F.3d.

1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard,

a court looks to an existing administrative record and asks whether it contains “sufficien[t]

evidence” to support the agency’s factual determinations. , 139 S. Ct.

1148, 1154 (2019). “Substantial evidence . . . is more than a mere scintilla . . . and means

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

a conclusion.” , 139 S. Ct. at 1154 (internal citations and quotation

marks omitted).

While the court considers whether the ALJ followed the applicable rules of law in

weighing particular types of evidence in disability cases, the court will “neither reweigh

the evidence nor substitute [its] judgment for that of the agency.” , 805

F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

V. ERROR AT STEP FIVE

As stated, the ALJ concluded that Plaintiff could perform unskilled jobs that: (1)

consisted of “simple and routine tasks” and (2) required only the ability to “understand,

remember, and carry out simple instructions.” (TR. 14). With this RFC, the ALJ concluded

that Plaintiff was not disabled at step five, based on his ability to perform the following

jobs in the national economy: (1) Document Preparer, DOT #249.587-018; (2) Printed

Circuit Board Inspector, DOT #726.684-110; and (3) Toy Stuffing Machine Operator, DOT

#731.685-014. (TR. 57).

The DOT defines occupations, in part, by the “reasoning level” required to perform

the occupation. Reasoning levels describe a job’s requirements regarding 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 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.” DOT, Appendix C, Components of the Definition Trailer, 1991

WL 688702. Reasoning level three requires the ability to “[a]pply commonsense

understanding to carry out instructions furnished in written, oral, or diagrammatic form

[and] [d]eal with problems involving several concrete variables in or from standardized

situations.”

As noted by Plaintiff, all three jobs the ALJ relied on at step five require reasoning

level two or reasoning level three. DOT #249.587-018 (Document Preparer—

reasoning level three); (2) DOT #726.684-110 (Printed Circuit Board Inspector—

reasoning level two); and (3) DOT #731.685-014 (Toy Stuffing Machine Operator—

reasoning level two). (TR. 19, 57). Mr. Rodgers presents two alternate theories for

reversal: (1) that an unresolved conflict exists between the RFC and the reasoning level

required in all three jobs; and/or (2) the RFC conflicts with the “Document Preparer” job

and the remaining jobs do not qualify as a “significant number” to constitute substantial

evidence at step five. (ECF No. 17:13-23; 22:2-9). The Court agrees with Plaintiff’s first

premise, obviating further discussion of Plaintiff’s alternate theory.

A. Unresolved Conflict Between RFC and Document Preparer Job

Mr. Rodgers 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 reasoning level three, which is

required of the “Document Preparer” job. (ECF Nos. 17:13-16; 22:2-4). As a result,

Plaintiff argues that: (1) the ALJ had an affirmative duty to resolve the conflict or obtain

an explanation for the same before relying on the VE’s testimony at step five and (2)

because the ALJ failed to resolve the conflict, reversal is warranted.

In response, the Commissioner argues that the VE’s testimony regarding a lack of

conflict provides substantial evidence to support the ALJ’s decision, even if a conflict had

existed. In support, the Commissioner relies on SSR 04-p as the controlling authority

regarding the ALJ’s duty to resolve conflicts between the DOT and VE testimony. (ECF

No. 20:6-7). Indeed, SSR 00-4p places on the ALJ an “affirmative responsibility to ask

about any possible conflict between [the] VE . . . evidence and information provided in

the DOT.” SSR 04-p, 2000 WL 1898704, at *4 (Dec. 4, 2000). Here, Ms. Kijakazi argues

that the ALJ discharged her duty under SSR-04 by “affirmatively inquir[ing] of the

vocational expert that his testimony was consistent with the DOT[.]” (ECF No. 21:6).

Because the ALJ failed to identify a conflict, Defendant argues that no further inquiry

and/or resolution was required and the ALJ was entitled to rely on the VE’s testimony as

substantial evidence at step five. (ECF No. 21:6-7).

In , 395 F.3d 1168, 1176 (10th Cir. 2005), the Tenth Circuit

held that a limitation to “simple and routine work tasks” “seem[ed] inconsistent with the

demands of level-three reasoning.” There, the Court focused on the VE’s failure to

acknowledge and explain the discrepancy between testimony that the plaintiff could

perform jobs which required level three reasoning and the DOT. , 395 F.3d

at 1175 (“[T]here is no indication in the record that the VE expressly acknowledged a

conflict with the DOT or that he offered any explanation for the conflict.”). The

Commissioner argues that is not controlling because in that case, the Court held

that the ALJ had erred by failing to ask the VE whether his testimony conflicted with the

DOT. (ECF No. 21:7-8). According to Ms. Kijakazi, “Here, in contrast to , the

vocational expert specifically testified—twice—that there was no inconsistency between

his testimony and the DOT. In such circumstances, . . . does not mandate

remand.” (ECF No. 21:8). As a result, the Commissioner argues that the ALJ was entitled

to rely on the VE’s testimony as substantial evidence at step five. (ECF No. 21:8). The

Court disagrees.

Here, like in , neither the VE nor the ALJ acknowledged or explained the

discrepancy between the VE testimony and the DOT as it related to Mr. Rodgers’ ability

to perform “simple and routine tasks.” The fact 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. 196 F.3d 1084, 1087 (10th Cir. 1999) (“before

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 Dictionary of

Occupational Titles, and elicit a reasonable explanation for any discrepancy on this

point.”) (emphasis added); SSR 00–4p, 2000 WL 1898704, at *2–*4 (“[w]hen

there is an apparent unresolved conflict between VE . . . evidence and the DOT, 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); , 395 F.3d at 1175 (noting that SSR 00–4p

“essentially codifies ” and “requires a reasonable explanation for conflicts

between a VE’s testimony and the DOT relating to any ‘occupational information’ ”)

(citation omitted); , 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

regarding a lack of conflict was sufficient simply because the ALJ asked the VE to identify

any conflicts with the DOT and the VE failed to do so), , 2019 WL 6329363 (W.D.

Okla. Nov. 26, 2019); , No. CIV-18-1129-SM,

2019 WL 2476750, at *2 (W.D. Okla. June 13, 2019) (finding 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 DOT, and the VE did

not indicate any conflict existed); , 2019 WL 7293408, at *5 (D.N.M. Dec.

30, 2019) (“mere reliance on the VE’s affirmation of consistency is not enough”).

A conflict existed between the RFC and the reasoning level required to perform

the job of Document Preparer, which the ALJ failed to resolve. , . As a

result, the Court concludes that this job does not provide substantial evidence for the ALJ

at step five.

B. Unresolved Conflict Between RFC and Jobs Involving Printed

Circuit Board Inspector and Toy Stuffing Machine Operator

Mr. Rodgers also argues that remand is warranted based on an unresolved conflict

which existed between the RFC and the remaining jobs involving Printed Circuit Board

Inspector and Toy Stuffing Machine Operator, which require a reasoning level of two.

(ECF No. 17:21-23). The Court agrees.

As stated, reasoning level two requires the ability to “[a]pply commonsense

understanding to carry out detailed but uninvolved written or oral instructions[.]” DOT,

Appendix C, Components of the Definition Trailer, 1991 WL 688702. Ms. Kijakazi argues

that “the Tenth Circuit and this Court have found an RFC for unskilled work consisting of

simple and routine tasks is consistent with GED reasoning level 2.” (ECF No. 21:8-9). In

support, Defendant relies on two cases from this Court— , No. CIV-20-

1139-STE, 2021 WL 6051107 (W.D. Okla. Dec. 21, 2021) and , No. CIV-20-

307-STE, 2021 WL 2169117 (W.D. Okla. May 27, 2021)—and argues “The Court should

follow its prior reasoning and reject Plaintiff’s argument that his RFC was inconsistent

with GED reasoning level 2.” The Court does not find those cases persuasive.

In and , the RFC limited the plaintiff to jobs which required only the

ability to “understand, remember, and carry out simple, routine, and repetitive tasks.”

, 2021 WL 6051107 at *1; , 2021 WL 2169117, at *1. The Court notes

the persuasive value of and in cases involving a limitation to “simple,

routine, and repetitive tasks.” But here, the ALJ additionally limited Mr. Rodgers to work

which required the ability to “understand, remember, and carry out simple instructions,”

a limitation which was not present in or . Under circumstances where such

additional limitation has been present, this Court has reversed, having found an

unresolved conflict between an individual’s ability to perform jobs involving only simple

instructions and jobs which required reasoning level two. , No. CIV-

20-658-SM, 2021 WL 3826478 (W.D. Okla. Aug. 26, 2021); , No. CIV-19-

067-STE, 2019 WL 6312000 (W.D. Okla. Nov. 25, 2019).

The Commissioner also argues that Plaintiff relies on “what he admits is dicta from

, 662 F. App’x 588, 594 (10th Cir. 2016) (unpublished), for the proposition

that GED reasoning level 2 is inconsistent with simple instructions.” ECF No. 21:9. In

, the Tenth Circuit Court of Appeals cited , , and noted that the issue

as to level two reasoning has not been resolved:

[W]e have previously held that a limitation to “simple and routine work

tasks ... seems inconsistent with the demands of level-three reasoning.”

[citing ]. 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.

, 113 F.3d 905, 909 (8th Cir. 1997). An “ALJ must

investigate and elicit a for any conflict between the

[DOT] and expert testimony before the ALJ may rely on the expert's

testimony as substantial evidence to support a determination of

nondisability.” , 196 F.3d 1084, 1091 (10th Cir. 1999)

(emphasis added); , 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 [vocational expert's] testimony

regarding a job and the description of that job in the [DOT.]”).

, 662 F. App’x at 594.

Although the statement regarding simple instructions was dictum in , the

fact remains that 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. As a result, and based on the holdings

in Long and Larson, the Court concludes that an unresolved conflict exists between Mr.

Rodgers’ RFC and the reasoning levels required for the jobs of Printed Circuit Board

Inspector and Toy Stuffing Machine Operator. As a result, remand is appropriate for

further proceedings in accordance with Hackett, Haddock, and Paulek.

ORDER

The Court has reviewed the medical evidence of record, the transcript of the

administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.

Based on the forgoing analysis, the Court REVERSES AND REMANDS the

Commissioner’s decision.

ENTERED on March 15, 2022.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

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