Aseme v. Social Security Administration, Commissioner
Filing
27
MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 03/25/2022. (AKD)
FILED
2022 Mar-25 PM 04:03
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KALAINE ASEME,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION, Commissioner,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 2:20-cv-00989-SGC
MEMORANDUM OPINION 1
The plaintiff, Kalaine Aseme, appeals from the decision of the Commissioner
of the Social Security Administration (the “Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). (Doc. 1).2 Aseme timely pursued and exhausted her administrative
remedies, and the Commissioner’s decision is ripe for review pursuant to 42 U.S.C
§§ 405(g) and 1383(c)(3). For the reasons discussed below, the Commissioner’s
decision is due to be reversed and remanded for further proceedings.
1
The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 19).
2
Citations to the record in this case refer to the document and page numbers assigned by the court’s
CM/ECF document management system and appear in the following format: (Doc. __ at __).
Citations to the administrative record refer to the page numbers assigned by the Commissioner and
appear in the following format: (Tr. at __).
I.
Procedural History
Aseme was about 23 years old at the time of her alleged disability onset. (Tr.
at 144). She graduated high school, has one year of college education, and has past
relevant work as a cashier checker. (Tr. at 42, 172). Aseme filed her applications for
DIB and SSI on May 15, 2017, alleging she became disabled on April 2, 2017, due
to bipolar disorder. (Tr. at 144, 171).
Aseme’s claim was denied, and she requested a hearing before an
administrative law judge (“ALJ”). (Tr. at 75, 85). Following the April 3, 2019,
hearing, the ALJ denied Aseme’s claim. (Tr. at 23). After the Appeals Council
denied review of the ALJ’s decision (Tr. at 1), that decision became the final
decision of the Commissioner. See Fry v. Massanari, 209 F. Supp. 2d 1246, 1251
(N.D. Ala. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)).
Thereafter, Aseme filed this action. (Doc. 1).
II.
Statutory and Regulatory Framework, and the ALJ’s Evaluation
To establish eligibility for disability benefits, a claimant must show “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
twelve months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20 C.F.R. §
404.1505(a). Furthermore, a claimant must show she was disabled between her
2
alleged onset disability date and her date last insured. Mason v. Comm’r of Soc. Sec.,
430 F. App’x 830, 831 (11th Cir. 2011) (citing Moore v. Barnhart, 405 F.3d 1209,
1211 (11th Cir. 2005); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)).
The Social Security Administration (“SSA”) employs a five-step sequential analysis
to determine an individual’s eligibility for disability benefits. 20 C.F.R. §
404.1520(a)(4).
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Id. at § 404.1520(a)(4)(i). If the claimant is engaged
in substantial gainful activity, the Commissioner will find the claimant is not
disabled. Id. at § 404.1520(a)(4)(i) and (b). At the first step, the ALJ determined
Aseme met the SSA’s insured status requirements through September 30, 2022. (Tr.
at 17). She further determined that, even though Aseme had worked after the alleged
disability onset date of April 2, 2017, this work activity did not rise to the level of
substantial gainful activity. (Tr. at 17-18).
If the claimant is not engaged in substantial gainful activity, the
Commissioner must next determine whether the claimant suffers from a severe
physical or mental impairment or combination of impairments that has lasted or is
expected to last for a continuous period of at least twelve months. 20 C.F.R. §
404.1520(a)(4)(ii). If the claimant does not have a severe impairment or combination
of impairments, the Commissioner will find the claimant is not disabled. Id. at §
3
404.1520(a)(4)(ii) and (c). At the second step, the ALJ determined Aseme has the
following severe impairments: bipolar disorder, with psychosis. (20 C.F.R §§
404.1520(c) and 416.920(c)); (Tr. at 18).
If the claimant has a severe impairment or combination of impairments, the
Commissioner must then determine whether the impairment or combination of
impairments meets or equals one of the “Listings” found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairment
or combination of impairments meets or equals one of the Listings, the
Commissioner will find the claimant is disabled. Id. at § 404.1520(a)(4)(iii) and (d).
At the third step, the ALJ determined Aseme does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the Listings. (Tr. at 18). While the ALJ determined Aseme’s impairments were not
severe, she did find Aseme was moderately limited in: (1) understanding,
remembering, or applying information; (2) interacting with others; (3) concentrating,
persisting, or maintaining pace; and (4) adapting and managing oneself. (Tr. at 1819).
If the claimant’s impairment or combination of impairments does not meet or
equal one of the Listings, the Commissioner must determine the claimant’s residual
functional capacity (“RFC”) before proceeding to the fourth step. 20 C.F.R. §
404.1520(e). At the fourth step, the Commissioner will compare an assessment of
4
the claimant’s RFC with the physical and mental demands of the claimant’s past
relevant work. Id. at § 404.1520(a)(4)(iv) and (e). If the claimant can perform past
relevant work, the Commissioner will find the claimant is not disabled. Id. at §
404.1520(a)(4)(iv).
If the claimant is not capable of performing her past relevant work, the
Commissioner will determine whether the claimant can perform other work that
exists in substantial numbers in the national economy in light of the claimant’s RFC,
age, education, and work experience. Id. at § 404.1520(a)(4)(v) and (g)(1). If the
claimant is capable of performing other work, the Commissioner will find the
claimant is not disabled. Id. at § 404.1520(a)(4)(v) and (g)(1). If the claimant is not
capable of performing other work, the Commissioner will find the claimant is
disabled. Id. at § 404.1520(a)(4)(v) and (g)(1).
Before proceeding to the fourth step, the ALJ found that Aseme’s impairments
could reasonably be expected to cause some of her alleged symptoms but Aseme’s
statements about the intensity, persistence, and limiting effects of her symptoms
were not entirely consistent with the medical evidence and other evidence in the
record. (Tr. at 20). The ALJ determined Aseme had the following RFC:
[T]he claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: no climbing of ladders, ropes, or scaffolds;
no work around unprotected heights or hazardous machinery. The
claimant is limited to unskilled work activity with the ability to attend
and concentrate for 2-hour periods, and with no more than occasional
5
workplace changes. She has to [sic] ability to make simple, workrelated decisions that is goal oriented, but is precluded from production
or assembly pace work. She can perform work where contact with the
general public is not an essential part of job duties, and can perform
independent work that does not require teamwork or coordination of
others.
(Tr. at 19).
At the fourth step, the ALJ concluded Aseme is unable to perform any past
relevant work. (Tr. at 22). Proceeding to the final step, the ALJ found Aseme was a
“younger individual” on the alleged onset date, with at least a high school education
and the ability to communicate in English. (Tr. at 22). Transferability of job skills
was not material to the disability determination because the Medical-Vocational
rules supported a finding that Aseme was not disabled, whether or not she had
transferable job skills. (Id.). Relying on testimony from a vocational expert (“VE”),
the ALJ determined that a significant number of jobs exist in the national economy
for an individual with Aseme’s age, education, work experience, and RFC. (Id. at
23). Based on this evidence, the ALJ ultimately concluded Aseme was not disabled
and was not entitled to benefits. (Id.).
III.
Standard of Review
A district court’s role in reviewing claims brought under the Social Security
Act is narrow. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
6
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). A court gives deference
to the factual findings of the Commissioner, provided those findings are supported
by substantial evidence, but applies close scrutiny to the legal conclusions. See Miles
v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). A district court reviews the
Commissioner’s legal conclusions de novo. Davis v. Shalala, 985 F.2d 528, 531
(11th Cir. 1993). “The [Commissioner’s] failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the proper
legal analysis has been conducted mandates reversal.” Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
Nonetheless, a court may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if a court finds that the proof
preponderates against the Commissioner’s decision, it must affirm if the decision is
7
supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990)). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Id. It is “more than a scintilla, but less than a preponderance.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
No decision is automatic, for “despite th[e] deferential standard [for review of
claims], it is imperative that th[is] Court scrutinize the record in its entirety to
determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d
622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir.
1984)). Moreover, failure to apply the correct legal standards is grounds for reversal.
See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Finally, the harmless error doctrine applies to the review of an ALJ’s decision.
See Valdez v. Comm’r of Soc. Sec., 808 F. App’x 1005, 1008 (11th Cir. 2020) (citing
Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983)).
IV.
Discussion
Aseme challenges the substance of the ALJ’s finding for two main reasons.3
First, she argues the ALJ did not clearly articulate good cause for giving less weight
3
Aseme also argues the ALJ’s decision is constitutionally defective because the ALJ was
appointed by a commissioner who enjoyed tenure protection, which has since been ruled
unconstitutional. (Doc. 21 at 7-11). Because the ALJ’s opinion is due to be reversed and remanded
on other grounds, the court declines to address this argument; however, many courts to address
this issue outside the context of a motion to dismiss have found it unpersuasive. See, e.g., Rives v.
Comm’r of Soc. Sec., No. 1:20CV2549, 2022 WL 681273 (N.D. Ohio March 8, 2022); Vickery v.
8
to the opinion of Aseme’s treating physician, Dr. Karen Callahan, than to the
opinions of the non-examining record reviewer, Dr. Teresa Moran, and the
consultive examiner, Dr. Brian McFarland. She complains the reason provided by
the ALJ for assigning partial weight to Dr. Callahan’s opinion—that Aseme’s severe
symptoms improved with medication compliance—cannot constitute good cause
because Dr. Callahan’s notes do not provide different limitations when Aseme was
compliant with her medication.
Second, Aseme complains the RFC did not incorporate all limitations afforded
by Dr. Moran and Dr. McFarland, even though the ALJ found Dr. McFarland’s
opinion persuasive.4 In particular, Aseme asserts the ALJ did not incorporate Dr.
Moran’s opinion that Aseme be limited to short, simple instructions and tasks, that
Aseme have limited interactions with supervisors, or that Aseme would likely miss
1-2 days a month because of her bipolar disorder. Aseme also argues the ALJ did
not incorporate Dr. McFarland’s opinion that she had a limited ability to interact
with supervisors.
Comm’r of Soc. Sec., No. 5:21-cv-122-PRL, 2022 WL 252464 (M.D. Fla. Jan. 27, 2022);
Benavidez v. Kijakazi, No. CV 20-990 SCY, 2021 WL 6062715 (D.N.M. Dec. 22, 2021); Tibbetts
v. Comm’r of Soc. Sec., No. 2:20-CV-872-SPC-MRM, 2021 WL 6297530 (M.D. Fla. Dec. 21,
2021), report and recommendation adopted, No. 2:20-CV-872-SPC-MRM, 2022 WL 61217
(M.D. Fla. Jan. 6, 2022).
4
The ALJ did not describe the persuasiveness of Dr. Moran’s opinion but observed it was
consistent with Dr. McFarland’s opinion.
9
A. The ALJ should re-examine Aseme’s RFC in light of the Eleventh
Circuit’s holding in Schink.
The ALJ issued her decision before the Eleventh Circuit’s decision in Schink
v. Commissioner of Social Security, 935 F.3d 1245 (11th Cir. 2019). In Schink, the
court remanded a finding that the claimant was not disabled due to bipolar disorder.
Id. The court held the ALJ erred at the third step of the evaluation process in not
considering the episodic nature of bipolar disorder, noting the claimant’s “failure to
maintain consistent treatment was much more a symptom of his disorder . . . than a
sign of its mildness.” Id. at 1267. Following Schink, the court then remanded a case
in which the ALJ found the bipolar claimant was not disabled, instructing the ALJ
to weigh the evidence considering Schink’s holding. Samuels v. Acting Comm’r of
Soc. Sec., 959 F.3d 1042 (11th Cir. 2020). In Samuels, the claimant objected to the
determinations made at the fourth and fifth steps. While the court did not opine on
the claimant’s step four arguments, it held the hypothetical posed to the VE must
account for the episodic nature of bipolar disorder. Id.
Here, the ALJ’s decision does not address the episodic nature of bipolar
disorder, except perhaps to discount Aseme’s “severe” symptoms as disabling
because those symptoms improved when Aseme was compliant with her
medication.5 But the ALJ issued her decision on June 7, 2019, more than two months
5
As discussed in more detail below, the ALJ did not identify which symptoms improved with
medication, nor did she discuss what impact those symptoms have on Aseme’s ability to work.
10
before Schink was decided on August 27, 2019. As in Samuels, because the ALJ did
not have the benefit of the Eleventh Circuit’s decision in Schink, the ALJ should
reweigh the evidence of Aseme’s disability, considering the episodic nature of
bipolar disorder.
B. The ALJ should address how medication compliance improves
Aseme’s broader mental functioning.
The ALJ found Dr. Callahan’s opinion 6 was “partially persuasive, as
treatment notes indicate that the claimant experiences severe symptoms of bipolar
disorder when she stops taking her medications, but improves when she resumes her
medications as prescribed.” (Doc. 21 at 12; Tr. at 21). 7 Aseme objects to this finding
because Dr. Callahan’s opinion does not provide different limitations when Aseme
is taking medication and when she is not.
The ALJ does not identify the “severe” symptoms that improve with
medication, but she specifically cites Dr. Callahan’s discharge notes in which Dr.
Callahan described the effect of medication on Aseme’s symptoms during an
6
Of the three medical opinions, Dr. Callahan’s was the only one that identified marked or extreme
limitations in any of Aseme’s abilities. (Tr. at 564-565).
7
For DIB applications filed after March 27, 2017, new regulations adopted by the Social Security
Administration apply. See Miller v. Kijakazi, No. 20-656-GMB (N.D. Ala. entered Sept. 14,
2021), Doc. 16 at 11. The previous version of the regulations incorporated the treating physician
rule, which attributed more weight to the opinions of treating sources in the absence of certain
circumstances. Id. The current regulations eliminate the hierarchy of medical opinions and the
treating physician rule. See id.; 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Under the new regulatory
regime, an ALJ should focus on the persuasiveness of an opinion by analyzing its supportability
and consistency. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
11
inpatient stay. In the discharge notes, Dr. Callahan observed that medication
improved Aseme’s sleeping patterns, mania with grandiose delusions, and agitation.
(Tr. at 454-56). A review of Dr. Callahan’s other treatment notes similarly reflects
Aseme’s medication improved symptoms of mania, insomnia, and psychosis. (Tr. at
532-563). The ALJ also cites Dr. Callahan’s findings of “mostly normal mental
status examinations when [Aseme] is compliant with medication,” but a review of
the cited records shows that the “mostly normal mental status” is summarily
described in the treating notes as “no psychosis,” “stable,” “improved, stable,”
“cooperative, nonsuicidal” and “cooperative, appropriate affect and thought.” (Tr. at
494, 505, 518, 530, 532, 534, 544-46, 548-50). It is wholly unclear whether these
very brief descriptors are assessing an improvement in Aseme’s “severe” symptoms
of psychosis, mania, and paranoia or an improvement in the moderate impairments
to Aseme’s broader mental functioning that the ALJ found at the third step.
Aseme’s disability claim is not based on her symptoms of mania, psychosis,
and insomnia, however; instead, she claims her bipolar disorder affects her memory,
concentration, and ability to complete tasks. (Tr. at 183). More severe symptoms are
of course reflected in the record, but they are not the heart of Aseme’s disability
claim. The ALJ did not discuss what evidence in the record supported a finding that
Aseme’s medication compliance improved her broader mental functioning, namely
her ability to: (1) understand, remember, and apply information; (2) concentrate,
12
persist, and maintain pace; (3) adapt and manage herself; and (4) interact
appropriately with supervisors and co-workers. (See Tr. at 18-19).
Furthermore, the court cannot locate substantial evidence in the record to
support a conclusion that Aseme’s medication compliance improved her broader
mental functioning. Neither Dr. Moran nor Dr. McFarland say much on this topic.
Dr. Moran notes Aseme’s “ongoing stability is dependent also on [her] compliance
with treatment.” (Tr. at 68). While the ALJ stated that Dr. McFarland found
moderate limitations “when [Aseme] was compliant with prescribed medications,”
Dr. McFarland does not link Aseme’s medication compliance to his assessment of
her limitations. He does observe, however, that Aseme “is at risk for future episodes
and will need to remain in regular outpatient mental health treatment to mitigate the
potential need for additional inpatient stays” and that “she will likely continue to
experience interruptions in her capacity to maintain employment.” (Tr. at 485).
The ALJ did not sufficiently explain her conclusion that Dr. Callahan’s
opinion of Aseme’s broader mental functioning should be discounted based solely
on Dr. Callahan’s observations that medication improved Aseme’s mania,
psychosis, and insomnia. On remand, the ALJ should address this issue.
C. The ALJ should address whether Aseme is limited in her ability to
interact with supervisors in determining Aseme’s RFC.
At the third step, the ALJ found Aseme was moderately limited in interacting
with others, and she specifically cited Dr. McFarland’s opinion that Aseme was
13
moderately limited in her ability to respond appropriately to supervision. 8 (Tr. at 19).
Aseme complains the RFC did not account for any limitations on her ability to
interact with supervisors, even though both Dr. Moran and Dr. McFarland found she
was limited in this area. The Commissioner does not address this argument, except
to state that “substantial evidence supports the Commissioner’s RFC finding and
corresponding hypothetical question to the VE.” (Doc. 24-1 at 42).
On one hand, Aseme indicated she gets along “very well” with authority
figures. (Tr. at 184). On the other hand, all three physicians opined that Aseme had
some impairment in her ability to interact with supervisors. Dr. Moran opined that
Aseme is “[m]oderately limited” in her “ability to accept instructions and respond
appropriately to criticism from supervisors.” (Tr. at 71). Dr. McFarland
“anticipate[d] . . . moderate impairment in [Aseme’s] ability to respond appropriately
to supervision, coworkers, and work pressures in a work setting.” (Tr. at 485). And
Dr. Callahan indicated Aseme had a “marked” impairment in her ability to interact
appropriately with supervisors. (Tr. at 565). In her decision, the ALJ referenced only
Dr. McFarland’s opinion that Aseme is moderately limited in her ability to respond
8
The ability to respond appropriately to supervision is a basic work activity. See 20 C.F.R. §
416.922(b)(5) (listing basic work activities as including “[r]esponding appropriately to
supervision, co-workers and usual work situations”); 20 C.F.R. § 416.945(c) (noting that
assessment of mental abilities to determine RFC includes whether there is a limited ability “in
carrying out instructions, and in responding appropriately to supervision, coworkers, and work
pressure in a work setting” which may reduce the claimant’s ability to perform other work).
14
appropriately to supervision in determining that Aseme’s impairments are not
severe; however, this impairment was not incorporated into the RFC or the questions
posed to the VE. “Consideration of all impairments, severe and non-severe, is
required when assessing a claimant’s RFC.” Schink, 935 F.3d at 1268. On remand,
the ALJ should evaluate and explain whether and to what extent Aseme can interact
with supervisors as a component of her RFC.
D. The ALJ should address projected absenteeism in determining
Aseme’s RFC.
Aseme’s RFC does not account for projected absenteeism even though all
three medical opinions referenced some expectation that Aseme’s illness would
impact her attendance, and none of their opinions were linked to Aseme’s
medication compliance. Dr. Moran opined that Aseme would likely miss 1-2 days
of work each month because of her psychiatric symptoms. (Tr. at 70). Dr. McFarland
indicated that Aseme was at risk for future episodes and would need to remain in
regular outpatient mental health treatment to mitigate the potential need for
additional inpatient stays. (Tr. at 485). He also opined that Aseme would likely
continue to experience interruptions in her capacity to maintain employment. (Id.).
Dr. Callahan opined Aseme was not capable of full-time work. (Tr. at 565).
Despite all three physicians referencing an expectation of absenteeism, the
ALJ did not address this potential impairment when determining Aseme’s RFC. This
is problematic given the testimony of the VE:
15
Q:
What would be an unacceptable level of, I’m sorry, what would
be work adequate attendance for the jobs that you gave an answer to the
Judge’s first hypothetical?
A:
An individual can be absent up to one day per month on an
ongoing basis. If the absenteeism rises to two days per month that
persists over a three-month period consecutively, then that would
eliminate all employment.
(Tr. at 44).
As in Samuels, the record here reflects absenteeism is a potential limitation
caused by Aseme’s bipolar disorder. See Samuels, 959 F.3d at 1047. The ALJ may
have concluded that Aseme’s absenteeism would not rise to the level that would
eliminate all employment. But because the ALJ is silent on this issue, the court
cannot determine what conclusion the ALJ made or whether that conclusion was
supported by substantial evidence. See Schink, 935 F.3d at 1269 (holding an ALJ’s
failure to provide a reviewing court with sufficient reasoning requires reversal). On
remand, the ALJ should reconsider the evidence and make a determination on this
point and, if necessary, include or otherwise implicitly account for Aseme’s
impairments in her hypothetical to the VE. See id. at 1047.
E. The ALJ should address the consistency and supportability of all
medical opinions.
As discussed above, the ALJ discounted Dr. Callahan’s opinion because Dr.
Callahan’s notes reflected that medication improved Aseme’s symptoms of mania,
psychosis, and insomnia. But the ALJ did not address the consistency or
16
supportability of Dr. Callahan’s opinion before discounting it. In fact, the ALJ made
no findings about the supportability of any of the medical opinions. She did note that
the opinions of Dr. McFarland and Dr. Moran were consistent, but this is to be
expected, given that Dr. Moran considered Dr. McFarland’s evaluation of Aseme in
her own evaluation.
Under the new regulations, the most important factors in evaluating the
persuasiveness of medical opinions are supportability and consistency. See 20 C.F.R.
404.1520(c). Here, the ALJ addressed the consistency of two medical opinions but
did not address the supportability of any of the opinions. On remand, the ALJ should
address both the supportability and consistency of all medical opinions when
assigning their weight.
F. The ALJ’s failure to specifically incorporate Aseme’s reasoning
level into her RFC is harmless error.
Aseme believes that because the ALJ noted Dr. Moran’s opinion was
consistent with the record, Dr. Moran’s limitation of “short simple instructions”
should have been incorporated into Aseme’s RFC. According to Aseme, a limitation
to both short and simple instructions would have reduced her Dictionary of
Occupational Titles (“DOT”) reasoning level from level two to level one, thereby
impacting the jobs available to her. (Doc. 21 at 20). Again, the Commissioner does
not address this argument, other than to summarily assert that substantial evidence
supports the Commissioner’s decision.
17
At step three, the ALJ determined Aseme was moderately limited in
understanding, remembering, or applying information. The RFC, however, does not
explicitly incorporate this limitation but, instead, simply limits Aseme to unskilled
work. Likewise, the hypothetical posed to the VE referenced only unskilled work.
The VE testified that Aseme could perform three unskilled positions: dishwasher,
janitor, and dietary aide. (Tr. at 23). Dishwasher and janitor each have a DOT
reasoning level of two, while a dietary aide requires a DOT reasoning level of three.
Dictionary of Occupational Titles, §§ 318.687-010, 381.687-018, and 319.677-014.
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.” Id., app. C. Reasoning level two requires an individual 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. In contrast, reasoning level one requires the
individual to [a]pply commonsense understanding to carry out simple one- or twostep instructions” and “[d]eal with standardized situations with occasional or no
variables in or from these situations encountered on the job.” Id.
In 2021, the Eleventh Circuit discussed the apparent conflict between level
one and level two of the DOT reasoning levels where a claimant’s RFC has a
18
limitation about both length (short) and complexity (simple):
The primary difference between levels one and two is the length of the
instructions—not the complexity. While level one specifies that the
instructions must be “simple,” level two similarly specifies that they
must be “uninvolved.” . . . Accordingly, the difference between levels
one and two lies in the length of the instructions, with level one being
limited to one- or two-step instructions, and level two not being limited
in length.
Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1323 (11th Cir. 2021). The
court specifically found there is no apparent conflict between a “limitation to
following simple instructions and positions that require the ability to follow ‘detailed
but uninvolved’ instructions.” Id. at 1320. The court also noted that “‘detailed’
indicates length rather than complexity.” Id. at 1323. The court found no conflict
between a claimant who had the ability to “understand, carry-out, and remember
simple instructions” and identified positions with a reasoning level of two. Id.
Here, the VE identified two jobs with a reasoning level two but none with
reasoning level one. Thus, the question is whether there is substantial evidence that
Aseme’s RFC could have incorporated reasoning level two (“simple instructions”)
as opposed to reasoning level one (“short, simple instructions”).
Dr. Moran found Aseme was not significantly limited in her ability to carry
out very short and simple instructions but moderately limited in her ability to carry
out detailed instructions. (Tr. at 70). Dr. Moran explained Aseme “would be
expected to understand, remember, and carry out short simple instructions and tasks
19
but would likely have difficulty with more detailed tasks and instructions.” (Tr. at
70). Dr. Callahan found mild limitations in Aseme’s ability to understand and
remember simple instructions and to carry out simple instructions and marked
limitations in her ability to understand and carry out complex instructions. (Tr. at
564). Dr. McFarland found mild to moderate limitations in Aseme’s ability to
understand, carry out, and remember simple instructions. (Tr. at 485). The ALJ
found Dr. McFarland’s opinion on this matter persuasive because it was mostly
consistent with Dr. Moran’s. (Tr. at 21).
While all three medical opinions discussed limitations in Aseme’s ability to
carry out instructions, only Dr. Moran referenced instructions that were both simple
and short. The ALJ also noted that Aseme reported she could follow instructions
very well. (Tr. at 20, 183). Thus, the record contains substantial evidence suggesting
Aseme could follow simple instructions, corresponding to a reasoning level of two.
As discussed above, the ALJ relied on the VE’s testimony that Aseme could
perform three unskilled positions: dishwasher, janitor, and dietary aide. Dishwasher
and janitor each have a DOT reasoning level of two, while a dietary aide requires a
DOT reasoning level of three. Neither the ALJ nor the VE addressed the level three
reasoning level required in the position of dietary aide. But even if Aseme could not
work as a dietary aide, the VE identified two other positions Aseme could perform
at reasoning level two—dishwasher, of which approximately 559,886 jobs exist in
20
the national economy, and janitor, of which approximately 2,101,810 jobs exist in
the national economy. The ALJ identified more than 2.6 million jobs that Aseme
could perform at reasoning level two, which is substantial evidence to support the
ALJ’s conclusion that there are a sufficient number of jobs in the national economy
that Aseme can perform. See Valdez, 808 F. App’x at 1010. Thus, any error in the
ALJ’s failure to explicitly incorporate Aseme’s reasoning level into the RFC was
harmless. See id.
V.
Conclusion
Based on the foregoing, the ALJ’s decision is not supported by substantial
evidence.
Accordingly, this matter will be reversed and remanded to the
Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. §
405(g).
DONE this 25th day of March, 2022.
______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?