Headley v. Colvin

Filing 19

ORDER that this case is REVERSED AND REMANDED to the Commissioner for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.§ 405(g)., by Judge Wiley Y. Daniel on 3/31/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-02989-WYD
PATRICIA L. HEADLEY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

THIS MATTER is before the Court on review of the Commissioner’s decision that
denied Plaintiff’s application for disability insurance benefits [“DIB”] and supplemental
security income [“SSI”]. For the reasons stated below, this case is reversed and
remanded to the Commissioner for further fact finding.
I.

BACKGROUND
Plaintiff, born on April 24, 1968, filed applications for DIB and SSI on August 10,

2009, stating that her disability began on June 10, 2009, due to injuries caused by a
motor vehicle accident. (Administrative Record [“AR”], 70, 73, 108, 14, 199, 205.) She
completed the tenth grade and had past relevant work as a still photographer, private
housecleaner, and hand packager. (Id. 109, 118, 131, 502-503.)
Plaintiff’s claims were initially denied on January 25, 2013 (AR 36, 37), and she
requested a hearing before an administrative law judge [“ALJ”]. (Id. 41.) The ALJ

conducted a hearing on September 8, 2011, and issued a “partially favorable” decision
dated November 14, 2011. (Id. 15–33.)
At step one, the ALJ determined that Plaintiff had not worked since her onset
date of June 10, 2009. (AR 24.) At step two, he found that Plaintiff’s severe
impairments consisted of “residuals of a motor vehicle accident including multiple
fractures (pelvis, cervical, right upper extremity, right lower extremity); history of
traumatic brain injury with mild neurocognitive disorder and borderline intellectual
functioning; adjustment disorder; and headaches.” (Id.) At step three, the ALJ
determined after considering Listings 1.02, 1.03, 1.04, 1.06, 1.07, 11.02, and 11.03 that
Plaintiff’s severe impairments did not meet or equal any listed impairment. (Id. 25.)
The ALJ then assessed Plaintiff’s residual functional capacity [“RFC”]. (AR 2632.) He found that Plaintiff retained the RFC to perform sedentary level work with
additional limitations as follows: occasionally stoop, crouch, kneel, climb stairs and
ramps; no ladders/scaffolds/ropes or balancing and crawling; not required to sit more
than 30 minutes at one time without the opportunity to stand; no work above shoulder
with dominant right upper extremity; no pushing, pulling or extended reaching with the
dominant right upper extremity; frequently handle and finger objects; no work at
unguarded heights or near unguarded hazardous mechanical equipment; no repetitive
up and down or side to side neck movements; not required to understand, remember,
and carry out more than simple instructions; and no more than superficial interaction
with the public. (AR 26.)

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At step four, the ALJ determined that this RFC did not allow Plaintiff to perform
her past relevant work. (AR 32.) At step five, the ALJ found that prior to turning age 50
on March 17, 2011, Plaintiff could have done other work that existed in significant
numbers, namely, that of a microfilmer and addressor. (Id. 32-33.) He found that as of
her 50th birthday, her age category changed and she was disabled pursuant to Medical
Vocational Disability Rule 201.10, 20 C.F.R. §404, Subpart P, Appendix 2. (Id. 33.)
The result of the ALJ’s partially favorable decision was that Plaintiff did not
receive any disability benefits under Title II of the Social Security Act because her
insured status expired less than six months before her 50th birthday, the day the ALJ
found she was disabled. Plaintiff asserts that she also did not receive any benefits
under Title XVI, due to income and resource issues.
The Appeals Council declined Plaintiff’s request for review. (AR 9). This made
the ALJ’s decision the agency’s final decision for purposes of judicial review. See 20
C.F.R. §§ 404.981, 422.201(a). Plaintiff then timely commenced this action.
Plaintiff argues that the ALJ erred as a matter of law at step five in failing to
reconcile his findings based on vocational expert testimony that conflicted with the
Dictionary of Occupational Titles [“DOT”], as required by Social Security Ruling 00-04p.
Further, she asserts that the ALJ erred in mechanically applying the Grid Rules which
would have directed a finding of disability before Plaintiff’s date last insured if the
borderline age rule had been considered. At step three, Plaintiff argues that the ALJ
erred by failing to obtain medical testimony as required by Social Security Ruling 96-6p.
Plaintiff also contends that the ALJ’s credibility finding was not based on substantial
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evidence, and that the ALJ erred in failing to base his findings regarding the weight he
gave to various medical opinions in evidence.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
“Evidence is not substantial if it is overwhelmed by other evidence in the record
or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). Further, “if the ALJ failed to apply the correct legal test, there is a ground for
reversal apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993).
The ALJ’s decision must be evaluated “based solely on the reasons given stated
in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Thus, I
will not consider the many post-hoc arguments of the Commissioner made in her
Response Brief. Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).

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B.

The Merits of Plaintiff’s Arguments
1.

The Step Three Finding

I first address Plaintiff’s argument that the ALJ erred at step three in failing to
obtain medical expert testimony as required by Social Security Ruling 96-6p. Plaintiff
argues that she should have been found disabled as of the date of her motor vehicle
accident (June 9, 2009) due to having a condition that meets or medically equals a
musculoskeletal Listing (1.00 et seq.), or Listing 12.02 as to her brain injury. 20 C.F.R.
§ 404, Subpart P, Appendix 1. Plaintiff asserts that the ALJ had no medical basis to
support his finding regard Listings 1.00 et seq., and erred in not considering whether
Listing 12.02 was applicable.
Plaintiff effectively concedes that her conditions did not meet any of the
musculoskeletal Listings (Pl. Br. 18). However, at step three, the ALJ must also
determine “whether the claimants impairment is equivalent to one of a number of listed
impairments that the [Commissioner] acknowledges as so severe as to preclude
substantial gainful activity.’” Drapeau v. Massanari, 255 F.3d 1211, 1212 (10th Cir.
2001) (quoting Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.1996) (further quotation
omitted)). “An impairment(s) is medically equivalent to a listed impairment. . .if it is at
least equal in severity equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 1526(a).
SSR 96-6p provides that “the judgment of a physician designated by the
Commissioner on the issue of equivalence on the evidence before the [“ALJ”] must be
received into the record as expert opinion evidence and given appropriate weight.” 1996
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WL 374180, at *3 (July 2, 1996). “The signature of a State agency medical. . . consultant
on [SSA 831, 832 or 833 forms] ensures that consideration by a physician … designated
by the Commissioner has been given the question of medical equivalence.” Id. Thus,
“[w]hether a claimant’s impairment equals a listing is a medical judgment, and an ALJ
must consider an expert’s opinion on the issue.” Barnett v. Barnhart, 381 F.3d 664, 670671 (7th Cir. 2004) (citing 20 C.F.R. § 404.1526(b)); see also SSR 96-6p, 1996 WL
374180, at *3 (July 2, 1996) (“longstanding policy requires that the judgment of a
physician. . . designated by the Commissioner on the issue of equivalence on the
evidence before the [ALJ] . . . must be received into the record as expert opinion
evidence and given appropriate weight.”)
In the case at hand, I agree with Plaintiff that the ALJ erred at step three as he did
not consult a medical expert to determine whether Plaintiff’s impairments medically
equaled a listing. As to Listings 1.02, 1.03, 1.04, 1.06 and 1.07, the ALJ stated that there
was “no medical evidence in the record that supports listing level severity.” (AR 25.) In
so finding, he did not discuss any opinions of the medical providers. Nor did he consult a
medical expert. Similarly, as to headaches, the ALJ stated, “[t]he record in this case
does not show that the claimant’s headaches satisfy either” Listing 11.02 or 11.03, and
no medical expert’s opinion was considered. (Id.)
The Commissioner argues, however, that agency policy instructs that the record
before the ALJ only need contain the judgment of an agency-designated physician on
the issue of medical equivalence. See 20 C.F.R. § 404.1526(c). She asserts that this
obligation can be, and routinely is, fulfilled by the signature of a state agency physician
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on forms completed at the initial determination stage of administrative review. See SSR
96-6p, 1996 WL 374180, at *3.
While this may be true, the Commissioner acknowledges that the record in this
case contains no such physician signature because the case was adjudicated under a
pilot program to test modifications to the disability determination process, which allows a
non-physician (“single decisionmaker” or “SDM”) to complete the forms and make the
determination at the initial stage. See 20 C.F.R. § 404.926(a),(b)(2). The Commissioner
argues that while this may be a technical error, it does not necessitate remand because
Plaintiff has not shown she was harmed because Plaintiff did not show how her
impairments equaled the Listings. Further, the Commissioner argues that the ALJ
reasonably found from the evidence that Plaintiff’s impairments did not meet a listing.
I reject the Commissioner’s arguments, and find that a remand is required as to
this issue. It is undisputed that the ALJ obtained no medical judgment or opinion as to
medical equivalence. The SDM is not a medical professional, and such an opinion
cannot be relied on as a medical opinion. See Cunningham v. Astrue, No. 09-2535SAC, 2010 WL 4737795, at *4 (D. Kan. Nov. 16, 2010); Klobas v. Astrue, No. 08-CV02324-REB, 2010 WL 383141, at *5 (D. Colo. Jan. 29, 2010). Further, to the extent the
Commissioner summarizes evidence that she contends supports the ALJ’s findings that
the Listings were not met, including Listing 12.02, this is post hoc argument which is
improper. Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
Finally, given the nature and extent of Plaintiff’s multiple traumatic injuries, I
cannot find that the error was harmless. See Allen v. Barnhart, 357 F.3d 1140, 1145
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(10th Cir. 2004) (error is considered harmless only if it the Court finds that “no
reasonable administrative fact finder, following the correct analysis, could have resolved
the factual matter in favor of the claimant”).1 This is particularly true given the fact that
the ALJ failed to consider Plaintiff’s organic brain dysfunction or listings relevant to same,
including Listing 12.02.2
I find the opinion in Carbajal v. Astrue, No. 10-CV-02025-PAB, 2011 WL 2600984,
at *3 (D. Colo. June 29, 2011) instructive on this issue. There, Judge Brimmer of this
Court reversed and remanded a social security case where the ALJ made his step three
finding without any opinion from a medical source on the issue of equivalence. Id. at *3.
Judge Brimmer noted, “[a]lthough the Commissioner is correct that the burden is on
plaintiff to demonstrate her impairment meets or equals a listing at step three, SSR 966p requires the ALJ to develop the record by receiving a medical opinion on this issue.”
Id. He also found that the lack of a required medical opinion was not rendered harmless
by the ALJ’s findings at step four and five. Id. I agree with this
analysis, which I find applies equally to this case. See also Hamblen v. Astrue, No. 11CV-01491-LTB, 2012 WL 3288950, at *4-5 (D. Colo. Aug. 13, 2013).

1

The Commissioner acknowledges that there is no dispute that Plaintiff experienced significant
physical and mental limitations following her car accident. (Def.’s Resp. Br. at 9.)
2

Although the ALJ appears to do an analysis of the Part “B” and “C” criteria of the mental health
Listings in general (AR 26), he did not mention which mental health Listing he was considering and did no
analysis of whether her brain injury medically equaled one. Plaintiff points to the opinion of Dr. Rosenblum
who estimated that Plaintiff had suffered a loss of intellectual ability of 15 IQ points or more. She asserts
that this opinion, in combination with Plaintiff’s treating doctor’s observations, supported an analysis of
Listing 12.02. This should be considered by the ALJ upon remand.

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2.

The Weighing of the Medical Opinions

I also find error with the ALJ’s decision to reject certain of the impairments found
by Plaintiff’s treating nurse practitioner, Ms. Mitchell. The ALJ indicated that he
considered Ms. Mitchell’s opinion, who is not an acceptable source, under SSR 06-03p
and the relevant regulations. (AR 29.) He gave the opinion “partial weight”. (Id.) Thus,
while the ALJ noted that some of the restrictions in her assessment were consistent with
the RFC, he rejected her finding that Plaintiff “should never stoop, crouch, or kneel.” (Id.)
Instead, he found that she could occasionally perform these activities. (Id. 26.) The ALJ
stated that Ms. Mitchell’s finding was “unsupported and not borne out in the treatment
records,” and that there was “no evidence to show that the claimant’s physical
impairments have worsened after the alleged onset date.” (Id.)
I find that the reasons for rejecting these restrictions by Ms. Mitchell are invalid or
not supported by substantial evidence. First, to the extent the ALJ found that Plaintiff’s
impairments have not worsened, this is a non-sequitur. Plaintiff was obviously in the
worst shape on her onset date when she suffered life-threatening injuries in the car
accident. The fact that her impairments did not worsen after that is not relevant to the
weight to be given to medical opinion.
As for the finding that Ms. Mitchell’s opinion regarding stopping, crouching and
kneeling is “unsupported and not borne out in the treatment notes”, I disagree and find
that this is an improper lay judgment. See Langley v. Barnhart, 373 F.3d 1116, 1121
(10th Cir. 2004) (“[i]n choosing to reject the treating physician’s assessment, an ALJ may
not make speculative inferences from medical reports and may reject a treating
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physician’s opinion outright only on the basis of contradictory medical evidence and not
due to his or her own credibility judgments, speculation, or lay opinion’”) (emphasis in
original and quotation omitted); see also Winfrey v. Chater, 92 F.3d 1017, 1021-22 (10th
Cir. 1996) (an ALJ is not entitled to reject a doctor’s opinions without adequate
justification or to substitute his own medical judgment for that of mental health
professionals). While Ms. Mitchell’s notes are not very detailed, they do note chronic
problems including Plaintiff’s head injury, and pain “in joint, shoulder” and “joint, lower
leg”. (AR 408, 410, 414.) They also show that Ms. Mitchell felt that Plaintiff’s problems
were significant enough that she chose to prescribe narcotics such as Oxycodone to
treat her pain. (Id. 409, 411, 415.) Based on these findings, there is no basis for the
ALJ to conclude that Ms. Mitchell’s restrictions on crouching, stooping, and kneeling
were unsupported. Indeed, the restrictions appear to be reasonable for a person with
chronic pain problems in their legs.3
I find that the failure to give adequate reasons for rejecting Ms. Mitchell’s opinion
in part is another basis for remand. On remand, the ALJ should keep in mind that even
though a nurse practitioner is not an acceptable medical source, information from such a
source “may be based on special knowledge of the individual and may provide insight
into the severity of the impairment(s) and how it affects the individual's ability to

3

The Commissioner’s argument that Ms. Mitchell never actually tested Plaintiff’s ability to stoop,
crouch, and kneel is an improper post hoc rationale. It is also not a proper basis to support the ALJ’s
decision as the ALJ accepted Dr. Hodge’s opinion on Plaintiff’s ability to stoop, crouch, and kneel without
any evidence that Dr. Hodge tested these abilities. The ALJ cannot have it both ways. See Teter v.
Heckler, 775 F.2d 1104, 1106 (10th Cir. 1985) (an ALJ cannot reject a medical provider’s “reports as
based on inadequate findings when they are comparable to those reports the ALJ found sufficiently
detailed”).

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function.” SSR 06-03p, 2006 WL 2329939, at *2-4. An opinion from a non-acceptable
medical source may even be entitled to greater weight than that of a treating physician.
Id. at *5.
I next address the opinion of examining psychologist Dr. Rosenblum (AR 447470.) Dr. Rosenblum opined, among other things, that “the claimant’s cognitive
organizational difficulties would at best allow the claimant to do only extremely simple
activities” with no multitasking which “may make her unemployable.” (Id. 448.) Plaintiff
is correct that the ALJ did not state what weight he assigned this opinion. This was
error, as an ALJ’s decision “‘must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to’” the opinion. Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quotation omitted). However, the ALJ’s
RFC specified that Plaintiff could understand, remember, and carry out only simple
instructions. Thus, it appears the ALJ may have given it at least some weight.
To the extent the ALJ s decision did not take into account all aspects of
Dr. Rosenblum’s opinion, including his opinion that Plaintiff should be limited to
“extremely simple” tasks with no multitasking, the ALJ found that there is “minimal to no
support in the record” for the opinion. He stated in that regard that it is not supported by
the narrative, Dr. Rosenblum’s “opined ‘B’ criteria of mild limitations in social functioning
and maintaining concentration, persistence and pace, or the specific assessment of
functional capacity in which he opined the claimant has no more than moderate mental
functional limitations in the ability to do unskilled, semi-skilled, and skilled work.” (AR
31.) I find that these reasons are invalid and/or not supported by substantial evidence.
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First, the narrative in Dr. Rosenblum’s report discusses several impairments
based upon his testing which are significant and supported his opinion. This includes at
least a 15 point IQ loss due to head trauma, diminishing cognitive organization, and a
marked reduction in Plaintiff’s processing speed and ability to multi-task. (AR 448).
These findings were substantiated by extensive testing with Plaintiff that documented
brain damage (id.), including tests that were not performed by consultative examiner
Dr. Lowell-Tupa. There is no evidence to support the ALJ’s belief that Dr. Rosenblum’s
finding of mild limitations in social functioning and maintaining concentration, persistence
and pace was inconsistent with his opinion limiting Plaintiff to only extremely simple
tasks with no multitasking. To the extent the ALJ believed there was an inconsistency in
this regard, he had a duty to contact Dr. Rosenblum to clarify this. See 20 C.F.R.
§ 404.1512(e)(1) (“We will seek additional evidence or clarification from your medical
source when the report from your medical source contains a conflict or ambiguity that
must be resolved”) (in effect at the time of the ALJ’s decision).
Also, the fact that Dr. Rosenblum found moderate mental functional limitations in
the ability to work does not support the ALJ’s decision to reject a portion of
Dr. Rosenblum’s opinion. The finding of a moderate impairment “‘‘supports the
conclusion that the individual's capacity to perform the activity is impaired,’ POMS DI
24510.063 B.2. (boldface omitted), and therefore must be related with sufficient precision
in a dispositive hypothetical to a VE and in an RFC finding.” Jaramillo v. Colvin, 576
F. App’x 870, 876 (10th Cir. 2014).

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Since I have found error with the weighing of Dr. Rosenblum’s opinion regarding
Plaintiff’s mental impairments, this may well impact the weight to be given to consultative
examiner Dr. Lowell-Tupa’s opinion. I also, however, find error with the ALJ’s treatment
of her opinion.
While the ALJ gave “great weight” to Dr. Lowell-Tupa’s opinion (AR 31), he
rejected her finding that Plaintiff’s ability to perform work-related tasks at an adequate
pace was likely mildly to moderately impaired due to fatigue, and that Plaintiff could
succeed in “in some fairly simple part-time work, but she may get too fatigued to work full
time, due to her past brain injury.” (Id. 445.) The ALJ stated that the findings were
“unpersuasive”, as they were not supported by the mostly mild findings.” (Id.) He also
stated that this opinion was “purely speculative and outside the psychologist’s expertise.”
(Id.) The fact, however, that Dr. Lowell-Tupa found mild findings in other area does not
provide support for the decision to reject her findings about the impact of fatigue on
Plaintiff’s ability to perform work related functions. A medical provider’s statements
about Plaintiff’s condition or impairments “are specific medical findings” which the ALJ
errs in rejecting in the absence of conflicting evidence. Washington v. Shalala, 37 F.3d
1437, 1439 (10th Cir. 1994). Dr. Lowell-Tupa obviously credited Plaintiff’s complaints of
fatigue, and I find no error with this. “The practice of psychology is necessarily
dependent, at least in part, on a patient’s subjective statements.” Thomas v. Barnhart,
147 F. App’x 755, 759 (10th Cir. 2005) (unpublished).
There is also no support for the ALJ’s finding that the opinion is outside
Dr. Lowell-Tupa’s expertise or is speculation. It is reasonable to assume that a
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psychologist would be trained in addressing how fatigue impacts a patient’s ability to
perform mental work related tasks, and I fail to see how this is speculation. Accordingly,
the ALJ should reweigh these findings of Dr. Lowell-Tupa on remand and provide valid
reasons for either accepting or rejecting them.
3.

The Credibility Finding

While Plaintiff argues that the ALJ erred in connection with the credibility finding, I
find no error. He acknowledged that the record demonstrates that Plaintiff’s impairments
could reasonably produce her symptoms, and that the “impairments cause her some
discomfort and pain.” (AR 28.) However, he found that Plaintiff’s testimony regarding
her subjective complaints was not fully persuasive. (Id.) He noted the appropriate
factors (id. 27-28), and his findings are linked to substantial evidence. Kepler v. Chater,
68 F.3d 387, 391 (10th Cir. 1995).
Thus, the ALJ reasonably considered the fact that, while the objective medical
evidence supported some limitations, it did not show limitations consistent with the extent
of Plaintiff’s complaints (AR 29-32). See 20 C.F.R. § 404.1529(c)(4); SSR 96-7p, 1996
WL 374186, at *6-7. I also find that the ALJ was entitled to consider Plaintiff’s statement
regarding alcohol to Dr. Hodges (AR 30), as well as the fact that she received
unemployment benefits in 2010 and 2011 (id. 28.) See Moses v. Astrue, No. 10-CV2824-REB, 2012 WL 1326672, at *3 (D. Colo. Apr. 17, 2012) (unpublished) (citing
cases).4 Finally, the ALJ explicitly considered the third party statements and obviously

4

The Chief ALJ memorandum cited by Plaintiff (Pl. Br. 22-23) does not preclude consideration of
the receipt of unemployment benefits in assessing a claimant’s credibility, but reaffirmed agency policy
that receipt of such benefits was one of many factors that an ALJ may consider. (See ECF No. 15-6.)

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found them to not be significantly probative. I find no error in this. See Wall v. Astrue,
561 F.3d 1048, 1064 n. 22 (10th Cir. 2009).
4.

The Step Five Finding

Plaintiff also argues that the ALJ failed to reconcile the vocational expert [“VE”]
testimony at step five and the DOT. In that regard, she notes the ALJ’s finding that prior
to her 50th birthday, she was not disabled because she could perform the jobs of
“document preparer microfilming” and “addressor.” (AR. 33.) Neither the ALJ, nor the VE
in his testimony, identified those jobs by their job title code numbers in the DOT. Plaintiff
asserts that those jobs are found under DOT code numbers 249.587-018 (“preparer,
microfilm”) and 209.587-010 (“addresser”). She contends that these jobs are not
compatible with the ALJ’s RFC findings, the VE’s testimony to the contrary
notwithstanding. (Id. 504.)
Turning to my analysis, an ALJ must inquire about and resolve any conflicts
between a VE’s testimony regarding available jobs and the descriptions of those jobs in
the DOT. Poppa v. Astrue, 569 F.3d 1167, 1173 (10th Cir. 2009); SSR 004-p, 2000 WL
1898704, at *4 (1989). Thus, when the findings of the VE are in conflict with the DOT,
“the ALJ must investigate and elicit a reasonable explanation for any conflict between the
Dictionary and expert testimony before the ALJ may rely on the expert's testimony as
substantial evidence to support a determination of nondisability.” See Haddock v. Apfel,
196 F.3d 1084, 1091 (10th Cir. 1999); SSR 00-4p, 2000 WL 1898704, at *4 (2000).
When the ALJ fails to elicit such an explanation, the case must be reversed and

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remanded to allow the ALJ to address the apparent conflict. Hackett v. Barnhart, 395
F.3d 1168, 1176 (10th Cir. 2005).
In this case, the ALJ asked the VE whether his testimony conflicted with the DOT,
and the VE testified that it did not. (AR 504.) However, I find the VE’s testimony was not
accurate, as the jobs do actually conflict with the DOT. The Commissioner has not
disputed this and I find that a remand is required on this basis as well, even though the
conflict was not raised until this proceeding. See Hackett, 395 F.3d at 1176.
Thus, the first job of “preparer, microfilm” requires a “reasoning” level of 3. The
ALJ found that Plaintiff could perform jobs requiring that she understand, remember, and
carry out only simple instructions. The Tenth Circuit has held that a job with a reasoning
level of 3 cannot be performed by someone limited to performing simple job tasks.
Hackett, 395 F.3d at 1176. The VE did not identify this discrepancy, and the ALJ did not
address it or reconcile it in his decision. Moreover, both jobs the VE found Plaintiff could
do require frequent reaching. The ALJ found that Plaintiff could never work above
shoulder with dominant right upper extremity and could do no pushing, pulling or
extended reaching with the dominant right upper extremity. Again, the VE did not
identify this discrepancy, and the ALJ did not resolve it in his decision.5
Accordingly, I find that a remand is required for the ALJ to address the conflicts
and elicit a reasonable explanation from the ALJ regarding same.

5

To the extent the Commissioner relies on Segovia v. Astrue, 226 F. App’x 801, 804 (10th Cir.
2007) in arguing that there was no error, I reject this argument. First, Segovia is an unpublished opinion
and has no precedential value. Second, the issue in that case appeared to involve only an implied or
indirect conflict between the VE’s testimony and the DOT. Here, however, there was a direct, not an
indirect, conflict.

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I also direct the ALJ on remand to consider whether Plaintiff’s age category before
she turned 50 should have been mechanically in this case, i.e, whether this presented a
borderline situation. See 20 C.F.R. § 404.1563(b) (“If you are within a few days to a few
months of reaching an older age category, and using the older age category would result
in a determination or decision that you are disabled, we will consider whether to use the
older age category after evaluating the overall impact of all the factors of your case.”).
The Tenth Circuit has found that when a claimant’s age falls within the borderline period
contemplated in § 404.1563(b), the mechanical application of the Grid Rules is prohibited
and the failure to consider the issue is reversible error. Daniels v. Apfel, 154 F.3d 1129,
1136 (10th Cir. 1998).
III.

CONCLUSION
Based upon the foregoing, I find that the ALJ erred at step three as he failed to

obtain the opinion of a medical expert as to medical equivalence as required by Social
Security Ruling 96-6p. I also find that the ALJ erred in weighing some of the medical
opinions. Finally, I find that the ALJ erred at step five in not resolving conflicts between
the VE’s testimony regarding available jobs and the descriptions of those jobs in the
DOT and in not considering whether Plaintiff’s age fell within the borderline period
contemplated in § 404.1563(b). Accordingly, it is
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.
§ 405(g).

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Dated: March 31, 2015
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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