Akbichi v. Commissioner, Social Security Administration

Filing 18

ORDER REVERSING DISABILITY DECISION AND REMANDING TO DEPUTY COMMISSIONER by Judge Robert E. Blackburn on 4/11/2018. (lrobe)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 17-cv-00838-REB
AZIZ AKBICHI,
Plaintiff,
v.
NANCY BERRYHILL, Deputy Commissioner for Operations, performing the duties and
functions not reserved to the Commissioner of Social Security,[1]
Defendant.

ORDER REVERSING DISABILITY
DECISION AND REMANDING TO DEPUTY COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed April 5, 2017, seeking
review of the Deputy Commissioner’s decision denying plaintiff’s claims for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the Deputy
Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully
briefed, obviating the need for oral argument. I reverse and remand.
1

On March 6, 2018, the Government Accountability Office determined that Nancy Berryhill’s
continuing status as Acting Deputy Commissioner of Social Security violated the Federal Vacancies
Reform Act, and therefore that she was not authorized to continue serving as Acting Deputy
Commissioner after November 16. Until such time as a successor is nominated and confirmed, Ms.
Berryhill appears as the Deputy Deputy Commissioner of Operations for the agency. See Nancy A.
Berryhill, Social Security Administration (available at: https://www.ssa.gov/agency/Deputy
Commissioner.html) (last accessed April 5, 2018); Social Security News, Does This Mean That Nancy
Berryhill Is Now the Acting Deputy Commissioner of Social Security? (available at:
https://socsecnews.blogspot.com/2018/03/does-this-mean-that-nancy-berryhill-is.html) (last accessed April
5, 2018).
2

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of osteoarthritis and avascular
necrosis of the right hip, epilepsy, obesity, and major depressive disorder and
personality disorder. After his applications for disability insurance benefits and
supplemental security income benefits were denied, plaintiff requested a hearing before
an administrative law judge. This hearing was held on October 7, 2015. At the time of
the hearing, plaintiff was 49 years old. He has a high school education and past
relevant work experience as a refrigeration technician and a furniture salesman. He has
not engaged in substantial gainful activity since April 30, 2008, his alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits or supplemental security income benefits. Although the medical
evidence established plaintiff’s suffered from severe impairments, the judge concluded
the severity of those impairments did not meet or equal any impairment listed in the
social security regulations. The ALJ found plaintiff had the residual functional capacity
to perform a reduced range of sedentary work with postural, environmental, and nonexertional limitations, most specifically for present purposes, a limitation to simple,
routine, and repetitive tasks. Although this finding precluded plaintiff’s past relevant
work, the judge determined there were other jobs existing in sufficient numbers in the
national and local economies that he could perform. He therefore found plaintiff not
disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.

II. STANDARD OF REVIEW
2

A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Deputy Commissioner] to consider the combined effects of
the impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d
1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere
existence of a severe impairment or combination of impairments does not require a
finding that an individual is disabled within the meaning of the Social Security Act. To
be disabling, the claimant’s condition must be so functionally limiting as to preclude any
substantial gainful activity for at least twelve consecutive months. See Kelley v.
Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Deputy Commissioner has established a quinquepartite sequential
evaluation process for determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the

5.

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claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. § 404.1520(a)(4)(i)-(v).3 See also Williams v. Bowen 844 F.2d 748, 750-52
(10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first
four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287,
2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Deputy Commissioner
to show that the claimant is capable of performing work in the national economy. Id. A
finding that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. Casias v. Secretary of Health & Human
Services, 933 F.2d 799, 801 (10th Cir. 1991).
Review of the Deputy Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “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 a lack of
3

Throughout this opinion, although I cite to relevant sections of Part 404 of Title 20 of the Code of
Federal Regulations, which contain the Deputy Commissioner’s regulations relating to disability insurance
benefits, identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental
security income benefits.

4

substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Deputy Commissioner. Id.
III. LEGAL ANALYSIS
In two concise, related points of error, plaintiff maintains the ALJ’s determination
at step five of the sequential evaluation that there are other jobs in the local and national
economies which he could perform within the limits of his residual functional capacity is
not supported by substantial evidence. I concur, and therefore reverse.
Plaintiff’s residual functional capacity, as determined by the ALJ, precluded all his
past relevant work. (See Tr. 32-33, 61-62.) Nevertheless, based on the testimony of a
vocational expert at the administrative hearing, the ALJ found there were other jobs
existing in significant numbers in the local and national economies plaintiff could
perform. Specifically, and again consistent with the testimony of the vocational expert
at the hearing, the ALJ found the alternative jobs of document preparer, collator
operator, and surveillance system monitor were consistent with plaintiff’s residual
functional capacity. (Tr. 34, 63.)
As plaintiff points out, contrary to the testimony of the vocational expert, the
collator operator job is a light, not a sedentary, occupation. (See DOT No. 208.685-010
(available at: https://occupationalinfo.org/20/208685010.html) (last accessed April 9,
2018).) The ALJ has an affirmative duty to inquire as to and resolve any apparent
conflict between the job requirements identified in the DOT and the vocational expert’s
testimony. Social Security Ruling 00-4p, 2000 WL 1898704 at *4 (SSA Dec. 4, 2000).
While the ALJ did query the vocational expert generally as to whether her

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testimony was consistent with the DOT (see Tr. 64), the vocational expert’s incorrect
recitation of the exertional level of the document preparer job does not constitute
substantial evidence in support of the ALJ’s determination that plaintiff could perform
that job in the circumstances of this case. Although the vocational expert did clarify that
her testimony regarding the ability to sit and stand as needed and employer tolerances
for abstenteeism, breaks, and other off-task allowances were based on her professional
experience (Tr. 64), those specific matters do not address whether a claimant with
plaintiff’s limited sedentary residual functional capacity can perform the requirements of
an occupation designated as light work by the DOT.
Moreover, while this error in the vocational expert’s testimony might not have
been apparent at the hearing, a simple perusal of the DOT description of the job would
have highlighted the error. The burden of confirming this job was within the parameters
of plaintiff’s residual functional capacity falls on the ALJ. See Haddock v. Apfel, 196
F.3d 1084, 1090 (10th Cir. 1999).
Because the Deputy Commissioner essentially concedes plaintiff’s next
argument, that the requirement of the surveillance system monitor job for “frequent”
talking is inconsistent with the ALJ’s determination that plaintiff was limited to no more
than occasional interaction with supervisors, coworkers, and the public (see Def. Resp.
at 8), the ALJ’s disability determination must stand or fall based on the sole remaining
alternative job identified as within plaintiff’s residual functional capacity – that of
document preparer. Plaintiff contends the demands of this job are inconsistent with the
ALJ’s conclusion that plaintiff was limited to simple, routine, and repetitive tasks
because the job presupposes a General Educational Development (“GED”) reasoning

6

level of 3.4 (See DOT No. 249-587-018 (available at: https://occupationalinfo.org/
24/249587018.html) (last accessed April 9, 2018).) As I have noted previously, “[t]he
law in this circuit is clear:”
[W]hen a claimant retains the mental RFC to perform only
“simple and routine work tasks” – and the ALJ finds a
claimant not disabled at step five based on a vocational
expert's testimony that the claimant is able to perform jobs
with a reasoning level of three – finding that the claimant
was not disabled at step five is not based upon substantial
evidence.
Barnes v. Colvin, 27 F.Supp.3d 1153, 1160 (D. Colo. 2014) (citations omitted). See
also Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (limitation to “simple
and routine work tasks” “seems inconsistent with the demands of level-three
reasoning”); Scheibeler v. Astrue, 2009 WL 3077310 at *3 (D. Colo. Sept. 21, 2009)
(“A person . . . whose mental RFC is limited to ‘simple’ work and work that is not
‘detailed’ would thus arguably lack the mental RFC for jobs at or above R2.”)
The Deputy Commissioner points out that GED “does not describe specific
mental or skill requirements of a particular job, but rather describes the general
educational background that makes an individual suitable for the job,” Anderson v.
Colvin, 514 Fed. Appx. 756, 764 (10th Cir. April 4, 2013), and maintains that plaintiff’s
4

GED is comprised of three variables – Reasoning Development, Mathematical Development,
and Language Development. “General Educational Development embraces those aspects of education
(formal and informal) which are required of the worker for satisfactory job performance. This is education
of a general nature which does not have a recognized, fairly specific occupational objective.” DOT, App. C
§ III: Components of the Definition Trailer http://www.occupationalinfo.org/appendxc_1.html#III (last
accessed April 10, 2018). A reasoning level of 3 suggests the job requires the ability to "[d]eal with
problems involving several concrete variables in or from standardized situations;" by comparison, a
reasoning level of 1 requires no more than the ability to “[a]pply commonsense understanding to carry out
simple one- or two-step instructions.” DOT, Appendix C, § III, ¶ 03, available at
http://www.occupationalinfo.org/appendxc_1.html#III (last accessed April 10, 2018).

7

level of education indicates jobs he can perform jobs with a reasoning level of 3.5
See 20 C.F.R. § 1564(b)(4) (“We generally consider that someone with [a high school
education and above] can do semi-skilled through skilled work.”] This argument
completely ignores the ALJ’s express determination that plaintiff, despite his educational
background, is now limited to simple, routine, and repetitive tasks.6 Although the
vocational expert possibly could have supplied an explanation for the apparent
discrepancy between plaintiff’s residual functional capacity and the reasoning level
required of the alternative jobs she identified, she did not. The court cannot accept the
Deputy Commissioner’s post hoc rationalization of that decision, see Grogan v.
Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005), nor is it authorized to make that
determination itself. The matter must be remanded to resolve the apparent discrepancy
in the record.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the conclusion of the Deputy Commissioner through the Administrative
Law Judge that plaintiff was not disabled is reversed;
5

The Deputy Commissioner’s contention that Anderson and Hackett represent a split in
authority in the Tenth Circuit on this issue is unpersuasive. It is plain that the difficulty identified in Hackett
and its progeny stems from the unexplained equivalence between a claimant’s limited mental residual
functional capacity and alternative jobs which ostensibly require more complex reasoning. See, e.g.,
Barnes, 23 F.Supp.3d at 1160. The cases the Deputy Commission cites in support of this argument are
inapposite, either because the mental limitations proposed to the vocational expert were specifically
defined in terms of GED levels, see, e.g., Mounts v. Astrue, 479 Fed. Appx. 860, 868 (10th Cir. May 9,
2012), or because, as in Anderson itself, any error was found harmless, see Anderson, 514 Fed. Appx.
at 764.
6

To the extent the Deputy Commissioner argues that a capacity for semi-skilled or skilled work
correlates to a Specific Vocational Preparation (“SVP”) level of 3 or above, see SSR 00-4p, 2000 WL
1898704 at *3, she ignores the distinctions between the GED and SVP rubrics. See Barnes, 23
F.Supp.3d at 1160 (noting clear “disconnect” between GED and SVP, “which is perhaps unsurprising
given that they comprise distinct components of the definition trailer”).

8

2. That this case is remanded to the ALJ, who is directed to
a.

Solicit further vocational expert testimony or otherwise further
develop the record as he deems necessary to substantiate a
determination as to whether there are other jobs in the local and
national economies that are within plaintiff’s residual functional
capacity as previously assessed;

b.

Reassess his determination at step 5 of the sequential evaluation;
and

c.

Reassess the disability determination; and

3. That plaintiff is awarded his costs, to be taxed by the clerk of the court in the
time and manner required by Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28
U.S.C. § 2412(a)(1).
Dated April 11, 2018, at Denver, Colorado.
BY THE COURT:

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