MacDonald v. Social Security Administration, Commissioner of

Filing 27

MEMORANDUM AND ORDER: The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 2/9/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KAREN JEAN MacDONALD,
Plaintiff,
vs.

Case No. 16-2594-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.

1

Glenn v. Shalala, 21 F.3d 983, 984

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

(10th Cir. 1994).

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
2

substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
3

their previous work, they are determined not to be disabled.

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On April 25, 2014, administrative law judge (ALJ) Christine

A. Cooke issued the 1st ALJ decision, finding that plaintiff was
not disabled (R. at 861-876).

Following denial of review by the
4

Appeals Council, plaintiff sought judicial review of the
defendant’s denial of benefits.

On July 20, 2015, Judge Marten

reversed the decision of the Commissioner and remanded the case
for further consideration (R. at 917-932).
On June 2, 2016, administrative law judge (ALJ) Michael
Comisky issued a 2nd ALJ decision (R. at 799-818).

Plaintiff

alleges that she has been disabled since February 27, 2011 (R.
at 800).

Plaintiff is insured for disability insurance benefits

through December 31, 2015 (R. at 802).

At step one, the ALJ

found that plaintiff has not engaged in substantial gainful
activity since the alleged onset date (R. at 802).

At step two,

the ALJ found that plaintiff has severe impairments (R. at 802).
At step three, the ALJ determined that plaintiff’s impairments
do not meet or equal a listed impairment (R. at 803).

After

determining plaintiff’s RFC (R. at 806), the ALJ found at step
four that plaintiff is not able to perform past relevant work
(R. at 816).

At step five, the ALJ found that plaintiff could

perform other work that exists in significant numbers in the
national economy (R. at 817).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 818).
III.

Did the ALJ err by failing to elicit a reasonable

explanation from the vocational expert (VE) for discrepancies
with the testimony of the VE and the Dictionary of Occupational

5

Titles (DOT) in light of the hypothetical question posed by the
ALJ?
In the 1st ALJ decision, the ALJ included in her RFC
findings that plaintiff should never be expected to understand,
remember, or carry out detailed instructions.

Job duties must

be simple, repetitive, and routine in nature (R. at 866, 54).
The district court reversed and remanded the case because the
hypothetical question propounded to the ALJ excluded occupations
requiring execution of detailed instructions; yet all the jobs
identified by the vocational expert (VE) and adopted by the ALJ
as jobs that plaintiff could perform, require the ability to
carry out detailed instructions.

The court cited to Hackett v.

Barnhart, 395 F.3d 1168, 1175-1176 (10th Cir. (2005), which held
that the ALJ must inquire about and resolve any conflicts
between the VE testimony and the description of that job in the
DOT (Dictionary of Occupational Titles) (R. at 929-931).
The medical opinion evidence includes an opinion from Dr.
Cohen indicating that plaintiff is moderately limited in
carrying out detailed instructions, but that she can complete
simple tasks (R. at 78).

Dr. Schulman opined that plaintiff is

moderately limited in the ability to carry out detailed
instructions, and indicated that plaintiff can understand and
remember simple instructions (R. at 97).

Dr. Neufeld opined in

2012 that plaintiff’s psychological difficulties would not
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preclude her ability to adequately understand and remember
simple instructions (R. at 524).

In 2014, Dr. Neufeld opined

that plaintiff’s psychological difficulties would not preclude
her ability to adequately understand, remember, and carry out at
least simple instructions (R. at 789).

He noted on another form

that plaintiff had a mild limitation in her ability to
understand and remember complex instructions (R. at 793).
Finally, in 2015, Dr. Pulcher opined that plaintiff is able to
carry out simple and intermediate level instructions (R. at
1418).

The ALJ gave great, significant, or substantial weight

to these opinions (R. at 813-815).
In his decision, the ALJ stated that plaintiff can
understand, remember and carry out work instructions and tasks
at an SVP 2 level2 (R. at 806).

In his hypothetical question to

the VE, the ALJ stated that plaintiff can understand, remember,
and carry out simple work instructions and tasks at an SVP 2
level (R. at 853, emphasis added).

With this and other

limitations, the VE identified 3 jobs that plaintiff could
perform, a collator operator, a mail clerk and a router (R. at
853-854).

The ALJ adopted these findings and found that

plaintiff could perform these jobs (R. at 817-818).
The jobs of router and collator operator require a
reasoning level of 2.

A reasoning level of 2 requires the

2

An SVP (specific vocational preparation) 2 level is anything beyond short demonstration up to and including 1
month. Dictionary of Occupational Titles, Appendix C at 1009 (4th ed. 1991).
7

ability to “apply commonsense understanding to carry out
detailed but uninvolved written or oral instructions.”
672123, 1991 WL 671753 (emphasis added).
requires a reasoning level of 3.

1991 WL

The job of mail clerk

A job with the reasoning level

of 3 requires the ability to apply commonsense understanding to
carry out instructions furnished in various forms.
671813.

1991 WL

By contrast, a job with a reasoning level of 1 requires

the ability to apply commonsense understanding to carry out
simple one or two step instructions.

1991 WL 679273.

The ALJ indicated that plaintiff can understand, remember,
and carry out simple work instructions and tasks at an SVP 2
level.

The ALJ then stated in his decision the following:
Yet, all occupations recommended by Ms.
Doering [the VE] and relied on by Judge
Cooke require at least the ability to carry
out detailed instructions. In contrast, the
hypothetical propounded to Ms. Waddell [the
VE] at the supplemental hearing did not
exclude occupations requiring execution of
detailed instructions. Accordingly, the
issued raised by the USDC [United States
District Court] no longer arises in this
adjudication.

(R. at 818).

However, all the ALJ told the VE at the hearing

was that plaintiff could understand, remember and carry out
simple work instructions and tasks.

The ALJ did not indicate to

the VE that plaintiff could understand, remember and carry out
detailed instructions.

The ALJ also failed to state to the VE

that the ALJ, through his hypothetical, was not intending to
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exclude consideration of occupations requiring execution of
detailed instructions.
In summary, the hypothetical question, by stating that
plaintiff could understand, remember and carry out simple work
instructions and tasks, was limiting plaintiff to that type of
work.

If the ALJ had not intended to exclude occupations

requiring execution of detailed instructions, there would have
been no reason to include in the hypothetical that plaintiff
could understand, remember, and carry out simple work
instructions.
An ALJ must inquire about and resolve any conflicts between
the VE testimony and the description of that job in the DOT.
Poppa v. Astrue, 569 F.3d 1167, 1173 (10th Cir. 2009).

In

Hackett v. Barnhart, 395 F.3d 1168, 1176 (2005) the ALJ stated
that plaintiff retains the attention, concentration, persistence
and pace levels required for simple and routine work tasks.

The

court, citing to Lucy v. Chater, 113 F.3d 905, 909 (8th Cir.
1997), held that this limitation seems inconsistent with the
demands of level-three reasoning; the jobs that the VE and the
ALJ identified as being jobs that plaintiff could perform
required level-three reasoning.

The court therefore reversed

this portion of the ALJ’s decision and remanded to allow the ALJ
to address the apparent conflict between plaintiff’s inability
to perform more than simple and repetitive tasks and the level9

three reasoning required by the jobs identified as appropriate
for her by the VE.
One of the three jobs identified by the VE and the ALJ as a
job that plaintiff could perform in the case before the court,
mail clerk, requires level three reasoning.

Therefore, Hackett

is clearly controlling in regards to this job, and would require
the ALJ to address the apparent conflict between plaintiff’s
limitation to performing only simple work instructions and tasks
and the level-three reasoning required by this job.
In dicta, the court in Hackett stated that level-two
reasoning appears more consistent with plaintiff’s RFC.
F.3d at 1176.
Hackett.

395

However, that issue was not before the court in

In the case of Paulek v. Colvin, 662 Fed. Appx. 588,

591, 594 (10th Cir. Oct. 3, 2016), the ALJ found that Paulek was
able to understand, remember, and carry out simple instructions.
The ALJ, relying on VE testimony, found that plaintiff could
perform past work which had a reasoning level of three.

After

the court set out the DOT description for level-three, level-two
and level-one reasoning, the court stated the following:
As Mr. Paulek notes, we have previously held
that a limitation to “simple and routine
work tasks ... seems inconsistent with the
demands of level-three reasoning.” Hackett
v. Barnhart, 395 F.3d 1168, 1176 (10th Cir.
2005) (internal quotation marks and citation
omitted). While we have not spoken to
whether a limitation to simple and routine
work tasks is analogous to a limitation to
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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. See
Lucy v. Chater, 113 F.3d 905, 909 (8th Cir.
1997). An “ALJ must investigate and elicit a
reasonable explanation 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.” Haddock
v. Apfel, 196 F.3d 1084, 1091 (10th Cir.
1999) (emphasis added); see also Poppa v.
Astrue, 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 [VE's] testimony regarding a job
and the description of that job in the
[DOT.]”).
662 Fed. Appx. at 594.

The court found a conflict between the

VE’s testimony and the job descriptions in the DOT; the ALJ’s
failure to have the VE reconcile this conflict was found to be
reversible error.

662 Fed. Appx. at 594.3

As noted above, a reasoning level of 2 requires the ability
to carry out detailed but uninvolved written or oral
instructions.

The ALJ stated that plaintiff can understand,

remember, and carry out simple work instructions, the same
limitation as that given in Paulek.

Lucy, cited with approval

in Hackett and Paulek, held that a limitation to simple
instructions is inconsistent with both level-two and level-three
reasoning.

Lucy, 113 F.3d at 909.

3

On its face, the language

In the case of Pemberton v. Berryhill, Case No. 16-2501-SAC (D. Kan. April 26, 2017; Doc. 15 at 6-7), the court
held that when a claimant was limited to simple work, and the jobs identified required a reasoning level of 2 or 3,
the conflict must be explained. In that case, defendant did not contest this conflict, or the need for the ALJ to
explain it, but argued that the remaining job constituted a significant number of jobs in the national economy.
11

for a reasoning level of 2 (the ability to carry out detailed
but uninvolved written or oral instructions) reasonably appears
to conflict with a person being limited to understanding,
remembering and carrying out simple work instructions.

Because

of this conflict, the ALJ erred by failing to inquire about and
resolve this conflict.

The case shall therefore be remanded in

order for the ALJ to inquire about and resolve the conflict
between the VE’s testimony and the description of the job in the
DOT.4
IV.

Are the ALJ’s RFC findings supported by substantial

evidence?
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
evidence.”

The ALJ must explain how any material

inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.

The RFC assessment must

always consider and address medical source opinions.

If the RFC

assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.

4

SSR 96-8p,

Although the ALJ indicated that plaintiff could perform simple work instructions and tasks at an SVP-2 level,
SVP-2 only indicates that this describes a job that take anything beyond short demonstration up to and including 1
month to perform. SVP-2 is silent on a person’s ability to carry out detailed but uninvolved instructions. On the
other hand, there is a clear conflict between the ability to understand, remember, and carry out simple work
instructions and a job that requires the ability to carry out detailed but uninvolved instructions. Defendant does not
cite to any statute, regulation, ruling, or case law that establishes that a person with an SVP-2 has the ability to
perform a job with a reasoning level of 2.
12

1996 WL 374184 at *7.

SSR rulings are binding on an ALJ.

20

C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
In reaching his RFC determination, an ALJ is permitted, and
indeed required, to rely on all of the record evidence,
including but not limited to medical opinions in the file.
Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013).

When the

ALJ fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that his
RFC conclusions are not supported by substantial evidence.

See

Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
28, 2003).

The ALJ’s decision must be sufficiently articulated

so that it is capable of meaningful review; the ALJ is charged
with carefully considering all of the relevant evidence and
linking his findings to specific evidence.

Spicer v. Barnhart,

64 Fed. Appx. 173, 177-178 (10th Cir. May 5, 2003).

It is

insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.

Cruse v.

U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
Cir. 1995).

When the ALJ has failed to comply with SSR 96-8p

because he has not linked his RFC determination with specific
evidence in the record, the court cannot adequately assess
13

whether relevant evidence supports the ALJ’s RFC determination.
Such bare conclusions are beyond meaningful judicial review.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
The court finds no clear error in the ALJ’s findings
regarding plaintiff’s RFC.

As the court noted in its earlier

decision, the RFC determination is supported by substantial
evidence that is detailed in the ALJ decision, including the
medical opinion evidence (R. at 922-926, 929).

Plaintiff fails

to cite to any medical opinion evidence that plaintiff has
specific limitations that were not included in the ALJ’s RFC
findings.

The ALJ discussed in detail the medical evidence and

medical opinion evidence in support of his RFC findings (R. at
808-815).

As the court indicated earlier, this court again

finds that the RFC is supported by substantial evidence in the
record.5
V.

Did the ALJ err in his evaluation of the statement of a 3rd

party?
This issue was also raised when this case was first
considered by the court in 2015.

In 2015, the court found that

the ALJ reasonably weighed this evidence (R. at 926).

5

The ALJ

In regards to plaintiff’s mental RFC, the ALJ limited plaintiff to simple work instructions and tasks at an SVP 2
level. In Vigil v. Colvin, 805 F.3d 1199, 1203-1204 (2015), the court found that a moderate concentration,
persistence or pace problem in the RFC was adequately taken into account when limited to unskilled work with an
SVP of only one or two. In Smith v. Colvin, 821 F.3d 1264, 1269 (2016), moderate mental limitations were found
to be adequately taken into account with an RFC limiting the claimant to simple, repetitive, and routine tasks.
14

in 2016 stated that he considered the statement of Mr. Wilson,
and discussed in detail his reasons for giving it no weight (R.
at 815-816).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).

The court finds no error by

the ALJ in his consideration of this evidence.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 9th day of February 2018, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

15