Pensule v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER: Court directs that the decision of the Commissioner is reversed and that judgment shall be entered pursuant to sentence four of 42 U.S.C. § 405(g) remanding the case for further proceedings consistent with thismemorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 1/29/19. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTINE P.,1
Plaintiff,
vs.

Case No. 18-2338-SAC

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

MEMORANDUM AND ORDER
On March 28, 2014, plaintiff filed an application for social
security disability insurance benefits and, on April 7, 2014,
plaintiff filed an application for supplemental security income
benefits. These applications alleged a disability onset date of
August 1, 2012, but plaintiff amended the onset date to December
10, 2014 at her administrative hearing.
denied

initially

and

on

The applications were

reconsideration.

hearing was conducted on June 16, 2016.

An

administrative

The administrative law

judge (ALJ) considered the evidence and decided on August 30, 2017
that plaintiff was not qualified to receive benefits.
decision has been adopted by defendant.

This

This case is now before

the court upon plaintiff’s request to reverse and remand the
decision to deny plaintiff’s applications for benefits.

1

The initial is used to protect privacy interests.

1

I.

STANDARD OF REVIEW
To qualify for disability benefits, a claimant must establish

that he or she was “disabled” under the Social Security Act, 42
U.S.C. § 423(a)(1)(E), during the time when the claimant had
“insured status” under the Social Security program.

See Potter v.

Secretary of Health & Human Services, 905 F.2d 1346, 1347 (10th
Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To be “disabled” means

that the claimant is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”

42 U.S.C. §

423(d)(1)(A).
For supplemental security income claims, a claimant becomes
eligible in the first month where he or she is both disabled and
has an application on file.

20 C.F.R. §§ 416.202-03, 416.330,

416.335.
The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.
2009).

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.

“Substantial evidence” is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)(internal
quotation marks omitted).

“It requires more than a scintilla, but

less than a preponderance.”

Lax v. Astrue, 489 F.3d 1080, 1084
2

(10th Cir. 2007).

The court must examine the record as a whole,

including whatever in the record fairly detracts from the weight
of

the

defendant’s

decision,

and

on

that

basis

substantial evidence supports the defendant’s decision.

decide

if

Glenn v.

Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v.
Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th
Cir. 1991)).

The court may not reverse the defendant’s choice

between two reasonable but conflicting views, even if the court
would have made a different choice if the matter were referred to
the court de novo.

Lax, 489 F.3d at 1084 (quoting Zoltanski v.

F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

THE ALJ’S DECISION (Tr. 10-21).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 11-12).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether the

claimant has a medically determinable impairment that is “severe”
or a combination of impairments which are “severe.” At step three,
the ALJ decides whether the claimant’s impairments or combination
of

impairments

meet

or

medically

equal

the

criteria

of

an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Next,

the

ALJ

determines

the

claimant’s

residual

functional

capacity and then decides whether the claimant has the residual
functional capacity to perform the requirements of his or her past
3

relevant work.

Finally, at the last step of the sequential

evaluation process, the ALJ determines whether the claimant is
able

to

do

any

other

work

considering

his

or

her

residual

functional capacity, age, education and work experience.
In steps one through four the burden is on the claimant to
prove a disability that prevents performance of past relevant work.
Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006).

At step

five, the burden shifts to the Commissioner to show that there are
jobs

in

the

capacity.

economy
Id.

In

with

the

claimant’s

this

case,

the

residual

ALJ

decided

functional
plaintiff’s

application should be denied at the fifth step of the evaluation
process.
The ALJ made the following specific findings in his decision.
First, plaintiff meets the insured status requirements for Social
Security benefits through March 31, 2018.

Second, plaintiff has

not engaged in substantial gainful activity since August 1, 2012.
Third,

plaintiff

has

the

following

severe

impairments:

degenerative changes of the lumbar spine; obesity; history of
umbilical hernia; history of left knee surgery; history of left
shoulder
stress

surgery;
disorder;

history

of

bipolar

personality

disorder;

disorder,

and

posttraumatic
history

of

polysubstance abuse. Fourth, plaintiff does not have an impairment
or combination of impairments that meet or medically equal the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
4

Fifth, plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
except that:

plaintiff can lift/carry 20 pounds occasionally and

10 pounds frequently, with pushing and pulling limited to the same
weights; plaintiff can stand/walk 6 hours total, and sit for 6
hours total, all in an 8-hour workday with normal breaks; plaintiff
can occasionally climb stairs, ramps, ladders, and scaffolds;
plaintiff can frequently balance and occasionally stoop, kneel,
crouch, and crawl; plaintiff can tolerate frequent exposure to
extreme cold and vibrations; plaintiff can understand and remember
simple

instructions;

persistence

and

pace

plaintiff
to

complete

can

maintain

simple

tasks

concentration,
that

are

not

performed at a fast pace; and plaintiff can adapt to normal change
in a simple work environment.

Finally, the ALJ determined that,

although plaintiff cannot perform any past jobs she once was
capable of doing, she could perform such jobs as office helper,
mail clerk and collator operator. The ALJ further found that these
jobs exist in significant numbers in the national and state
economy.
III. BORDERLINE INTELLECTUAL FUNCTIONING – STEP TWO ANALYSIS
Plaintiff’s first argument to reverse the denial of benefits
contends that the ALJ failed consider the impact of plaintiff’s
borderline intellectual functioning upon plaintiff’s RFC and at
step two of his analysis.

There is no dispute that plaintiff was
5

diagnosed with borderline intellectual functioning in December
2016, several months after the administrative hearing. (Tr. 1454).
The ALJ stated that he gave substantial weight to the report
containing this diagnosis.

(Tr. 19).

The ALJ was obligated to

discuss uncontroverted evidence which is not relied upon as well
as significantly probative evidence that is rejected.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

Clifton v.

The ALJ did not

discuss borderline intellectual functioning, explain why he did
not consider it a “severe” impairment, or state its impact, if
any, upon plaintiff’s RFC. This is grounds to reverse the decision
to deny benefits, although the court agrees with defendant that
the omission of borderline intellectual functioning from the ALJ’s
step two analysis was inconsequential. As the Tenth Circuit stated
in Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016):

“[T]he

failure to find a particular impairment severe at step two is not
reversible error when the ALJ finds that at least one other
impairment is severe.”
IV.

Id.

STEP THREE ANALYSIS
A. Dr. Nguyen’s opinion
Plaintiff’s next argument is that the ALJ erred in finding at

step three that plaintiff did not meet or equal a regulatory
listing of impairments which warrants an award of benefits.

The

ALJ expressly considered listings 1.02 and 1.04 which concern
physical impairments, and listings 12.04 and 12.15 which concern
6

mental impairments.

(Tr. 13-15).

Plaintiff asserts that the ALJ

failed to consider the medical opinion of Dr. Kim-Doan Katrina
Nguyen when making his decision.

Dr. Nguyen stated, in conclusory

fashion, that plaintiff met the requirements of listing 12.04 for
affective disorders.

(Tr. 1305-06).

The court disagrees with plaintiff’s position. The ALJ stated
that Dr. Nguyen’s opinion as to plaintiff’s mental impairments was
given “little weight” and that “deference” was given to the
psychological opinions from other sources as discussed in the
opinion.

(Tr. 17).

In his discussion of the mental impairment

listings, the ALJ referred to the opinion of Dr. Kent, a licensed
psychologist who performed diagnostic testing upon plaintiff, and
the opinion of plaintiff’s treating source – Dr. McCleeary, a
licensed psychologist.

The ALJ acted within his discretion to

defer to the opinions of treating and examining specialists in
mental health over the opinion of Dr. Nguyen, an internal medicine
doctor who did not examine or treat plaintiff.
Astrue,

638

F.3d

1324,

1331

(10th

Cir.

factors for weighing a medical opinion).

See Krauser v.

2011)(citing

relevant

The ALJ also stated that

the opinions of the psychological opinions were more consistent
with the bulk of the medical evidence and that Dr. Nguyen did not
explain how plaintiff met listing 12.04.

Although plaintiff

disputes this conclusion, she does not explain why it is incorrect.

7

Upon review of the record, the court finds the ALJ’s analysis is
supported by substantial evidence.
B. Listing 12.04
Plaintiff’s next argument is that the ALJ erred in finding
that plaintiff does not meet the paragraph B criteria of listing
12.04.

The ALJ stated:

To satisfy the “paragraph B” criteria, the mental
impairments must result in at least one extreme or two
marked limitations in a broad area of functioning, which
are:
understanding,
remembering,
or
applying
information; interacting with others; concentrating,
persisting, or maintaining pace; or adapting or managing
themselves. A marked limitation means function in this
area independently, appropriately, effectively, and on
a sustained basis is seriously limited.
An extreme
limitation is the inability to function independently,
appropriately or effectively, and on a sustained basis.
(Tr. 14).
in

The ALJ found that plaintiff had:

understanding,

remembering,

or

moderate limitations

applying

information;

mild

limitations in interacting with others; moderate limitations in
concentrating,

persisting

or

maintaining

pace;

limitations in adapting or managing oneself.

Id.

and

moderate

In support of

these findings, the ALJ noted that Dr. Kent did diagnostic testing
which showed that plaintiff “could remember and understand simple
tasks, rather than ones that are more complex”; that Dr. McLeeary
stated that plaintiff had a mild limitation overall in social
functioning;

that

the

diagnostic

testing

showing

moderate

limitations in concentrating, persisting, or maintaining pace; and
that McLeeary and Kent’s reports supported a conclusion that
8

plaintiff had a moderate limitation in adapting or managing for
herself.

(Tr. 14).

Because the ALJ found that plaintiff’s mental

impairments did not produce at least two “marked” limitations or
one “extreme” limitation, he found that the paragraph B criteria
were not satisfied.
Plaintiff

Id.

asserts

that

the

ALJ’s

conclusions

are

not

supported by substantial evidence when one examines other evidence
in the record.

Plaintiff recounts the results of the battery of

tests administered by Dr. Kent.

While plaintiff scored quite low

in many categories, Dr. Kent’s medical source statement, which is
based on the testing in part, is consistent with the ALJ’s findings
as to the mental impairment listings.

Plaintiff also mentions

Lisa Tate, a consultative examiner who found that plaintiff had
deficient memory and concentration.

The report plaintiff cites,

however, shows that plaintiff’s immediate memory was within normal
limits, her recent memory was moderately deficient, and her remote
memory was within normal limits.

(Tr. 21).

The same report

recorded that plaintiff’s concentration was mildly deficient and
that her pace, persistence and social functioning was within normal
limits.

(Tr. 21-22).

Plaintiff also refers to Dr. Dave, a

treating source, who indicated that plaintiff showed signs of
pseudodementia.
functional

(Tr. 1151).

analysis

by

Dr.

This evidence is not related to a
Dave

9

and

the

doctor

provides

no

indication of severity.

Therefore, the court does not believe it

counters the substantial evidence in support of the ALJ’s analysis.
Plaintiff argues that the ALJ’s holding as to plaintiff’s
ability to interact with others is not supported by substantial
evidence, pointing to places in the record showing that plaintiff
has isolated herself from others, had extreme reactions during
conflicts with other people, and had panic attacks. The ALJ relied
upon plaintiff’s treating psychologist, Dr. McLeeary, for his
finding regarding interaction with others.

She had been seeing

plaintiff for slightly more than a year when she made her report.
Her answers to questions regarding plaintiff’s social interactions
and ability to adapt in the workplace mostly show only mild
limitations, with some moderate limitations.

(Tr. 1254).

This is

consistent with the answers recorded by Dr. Kent, who indicated
only mild limitations in plaintiff’s ability to interact with the
public, co-workers and supervisors.
McLeeary

reported

an

angry

(Tr. 1456).

incident

when

Although Dr.

plaintiff

reacted

irrationally to a decision to change her medication and stated
that

“this”

would

prevent

her

from

participating

in

gainful

employment (Tr. 1250), the court finds that there is substantial
evidence in the reports of Dr. Kent and Dr. McLeeary to support
the findings the ALJ made in his mental impairment listings
analysis, in spite of incidents when plaintiff has had angry
outbursts or suicidal ideations or reacted with histrionics.
10

This

conclusion

extends

to

the

ALJ’s

determination

that

plaintiff has a moderate limitation in concentrating, persisting
or maintaining pace.

Plaintiff contends the ALJ’s decision is

inconsistent with the testing results of Dr. Kent.
disagrees.
results,

The court

Dr. Kent’s report, which was based on the testing
showed

that

plaintiff

had

marked

limitations

in

understanding and carrying out complex instructions, but only mild
limitations in understanding and carrying out simple instructions.
(Tr. 1455).

The ALJ’s conclusion that plaintiff had a “severe

limitation”, although not one meeting a listing level (Tr. 14), is
consistent with this evidence.
Finally,

plaintiff

contends

that

plaintiff

has

marked

limitations in adapting or managing herself, rather than the
moderate limitations found by the ALJ.

Again, the ALJ’s findings

are supported by the answers recorded by Dr. McLeeary and Dr. Kent.
While there may be incidents which suggest a greater limitation,
those incidents are not so frequent and intense for the court to
find that substantial evidence does not support the ALJ’s analysis
of whether plaintiff’s condition met the requirements of the
listings.

11

V. RFC FINDINGS
A. Physical RFC
Plaintiff next contends that the ALJ did not properly assess
plaintiff’s physical RFC.

Plaintiff first argues that the ALJ

mischaracterized the evidence when he stated:
Medical imagery showed some degenerative changes in the
lumbar spine, but on examination the claimant has had
normal range of motion and not more than occasional
problems with orthopedic maneuvers, and no positive
straight leg raising tests.
(Tr. 18).
that

the

This statement, according to plaintiff, did not mention
imagery

also

showed

that

plaintiff

had

grade

I

anteriolistesis of L5-S1 with apparent bilateral spondylosis at
L5, facet hypertrophy and bilateral sacroiliac degenerative joint
disease.2

The ALJ also did not mention some positive straight leg

raising tests and tests showing reduced range of motion.
As the court has previously stated, an ALJ is required to
consider all the evidence in the record, but not required to
discuss all the evidence; he or she must discuss the evidence
supporting

the

ALJ’s

decision

and

discuss

the

uncontroverted

evidence not relied upon as well as the significantly probative
evidence that is rejected.

Wall, 561 F.3d at 1067.

Plaintiff

does not claim that the ALJ failed to consider this evidence and

2

This account was from x-rays taken in April 2014. (Tr. 491). Findings from
x-rays taken in July 2016 did not report facet hypertrophy, fractures or
dislocations, and found only minor changes from degenerative disk disease. (Tr.
1375).

12

plaintiff does not demonstrate that the evidence is so significant
that it required discussion.

While the statement that there were

no positive straight leg raising tests may be mistaken and the
record shows some indications of limited range of motion, the court
is convinced that these mistakes are inconsequential to the ALJ’s
ultimate determination in this case and therefore should be viewed
as harmless.

See Smith v. Berryhill, 2018 WL 5726227 *5 (D.Nev.

7/19/2018)(finding harmless error in omission of two instances of
positive straight leg raise where record as a whole indicates that
ALJ would have reached the same result).

There is no indication

that the positive straight leg tests or limited range of motion
findings required or likely would have justified a more limited
RFC finding in this case.
Plaintiff also asserts that the ALJ did not properly consider
the opinion of Lynnette Sanders, an APRN who treated plaintiff.3
(Tr. 1243-48).

The opinion stated that plaintiff could sit for

three hours in an eight-hour workday and stand or walk for one
hour.

It stated that plaintiff must get up from a seated position

every 45 minutes and that she could return to a seated position in
15 to 20 minutes.

The opinion also stated that plaintiff could

lift up to five pounds frequently and occasionally up to 10 pounds,

3

The questionnaire completed by Sanders was co-signed by Dr. David Huerter.
(Tr. 1247).

13

but never more than 10 pounds.4

The opinion was rendered in early

June 2016 approximately one month after plaintiff had had rotator
cuff surgery and the ALJ held that the statement did not take into
account

plaintiff’s

improvement

after

the

surgery

and

was

contradicted by physical therapy notes and the surgeon’s followup,
which showed improvement or suggested improvement would happen.5
(Tr. 17).

Later visits to Sanders and others do not mention

shoulder pain.

E.g., Tr. 1459-1467. A physical therapy discharge

statement dated September 8, 2016 stated that plaintiff was able
to lift 5 pounds overhead without pain and that plaintiff was 90%
towards being able to perform normal activities of daily living
without shoulder pain.

(Tr. 1384).

Plaintiff was discharged to

a home exercise program.
The

ALJ

offered

Sanders’ opinion.
opinion

indicate

reasonable

grounds

for

discounting

Ms.

The record entries following Ms. Sanders’
improvement

in

plaintiff’s

condition with physical therapy and time.

left

shoulder

This evidence and the

opinion of Dr. Nguyen provide substantial evidence in support of
the ALJ’s RFC findings even though those findings differ from those
set forth in Ms. Sanders’ statement in early June 2016.

4

The statement indicated that plaintiff’s primary symptoms were psychiatric;
it did not mention back pain as a problem. (Tr. 1244). Later records from
Sanders do mention back pain but do not recommend treatment beyond ice, heat,
stretches and medication. (Tr. 1331, 1319-20).

5

Plaintiff also reported lifting and carrying a new grandchild and a threeyear old grandchild in June and July 2016. (Tr. 55, 1331).

14

Plaintiff next argues that the physical RFC limits are not
supported by substantial evidence. Plaintiff notes that the limits
suggested

in

Ms.

Sanders’

statement

(occasionally

lifting

10

pounds; 3 hours work in a seated position; 1 hour in a standing
and/or walking position) and the limits suggested by Dr. Nguyen (4
or 6 hours sitting and 4 or 2 hours standing or walking)6 are not
adopted by the ALJ.

(Tr. 1245, 1310, 1446).

“[T]here is no

requirement for a direct correspondence between an RFC finding and
a specific medical opinion on the functional capacity question.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).

“’[T]he

ALJ, not a physician, is charged with determining a claimant’s RFC
from the medical record.’”

Id., quoting Howard v. Barnhart, 379

F.3d 945, 949 (10th Cir. 2004).

The ALJ made reference to Dr.

Thompson’s evaluation (Ex. 11F), plaintiff’s normal gait, and
plaintiff’s dog-walking as supporting his RFC findings.
17).

(Tr. 16-

The court finds this amounts to substantial evidence.
B. Mental RFC
Plaintiff’s next argument is that the ALJ did not properly

formulate plaintiff’s mental RFC.

The ALJ found that plaintiff

has the ability to understand and remember simple instructions;

6

Dr. Nguyen’s responses to the ALJ’s interrogatories in this regard are
somewhat confusing. But, Dr. Nguyen does state that it was “NOT clear that
[plaintiff’s] physical limitations were significant or prolonged enough to
affect work ability” and that “[b]ased on evaluation/exam by Dr. Randall
Thompson on 8/9/14, [plaintiff] should be able to sit normally in an 8-hour
day [with] breaks. She may have limitations [with] standing & walking,
lifting, carrying weight, bending, stooping, crouching, or squatting.” (Tr.
1306, 1446).

15

maintain concentration, persistence and pace to complete simple
tasks that are not performed at a fast pace and can adapt to normal
change in a simple work environment.

(Tr. 15).

The ALJ stated

that he gave Dr. Kent’s opinion substantial weight in reaching his
conclusions.
Plaintiff

notes,

however,

that

Dr.

Kent

found

that

plaintiff’s pace of work is “quite impaired” and “markedly impairs
[her] performance.” (Tr. 1456). Dr. Kent’s report stated in part:
[Plaintiff’s] ability in processing simple or routine
visual material without making errors is in the
extremely low range when compared to her peers.
She
performed better than approximately 0.3% of her peers on
the processing speed tasks. . . . Processing visual
material quickly is an ability that she performs poorly
as compared to her verbal and nonverbal reasoning
ability.
Processing speed is an indication of the
rapidity with which she can mentally process simple or
routine information without making errors.
(Tr. 1451-52).

The report also stated:

“Her pace is extremely

slow and would markedly affect her work functioning” and “[a]t the
maximum she would appear capable of tolerating a limited work
environment.”

(Tr. 1453).

Defendant asserts that the ALJ accounted for these findings
by

limiting

completing

plaintiff’s

simple

tasks

RFC
not

to

a

simple

performed

at

work
a

fast

environment,
pace.

The

vocational expert defined work not performed at a fast pace as
non-piece work not involving a conveyer belt, without constant
physical demands, and giving the plaintiff some control over the

16

pace.

(Tr.

requiring

419).

at

least

requirements:

The

vocational

level-two

expert

reasoning

listed

as

three

satisfying

jobs
these

office helper, mail clerk and collator operator.

The court finds that the ALJ’s mental RFC does not account
for Dr. Kent’s condition that plaintiff be in a “limited work
environment” doing simple work at an “extremely slow” pace.

Nor

does the ALJ explain why he gave Dr. Kent’s report substantial
weight,

but

refused

to

adopt

these

conditions.

Dr.

Kent’s

conclusions are significantly probative evidence which the ALJ has
rejected without giving a reason.

The ALJ is not entitled to

pick and choose through an uncontradicted medical opinion.

Haga

v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
VI. VOCATIONAL EXPERT TESTIMONY
Plaintiff’s

mental

RFC

ties

into

the

final

argument

in

plaintiff’s opening brief.7 Plaintiff contends that the vocational
expert listed three jobs as within plaintiff’s RFC, although each
job required a level of mental functioning beyond plaintiff’s
functional capacity.
listed

by

the

It is agreed by the parties that the jobs

vocational

expert

required

at

least

level-two

reasoning, which is described in Appendix C of the Dictionary of
Occupational Titles as:

7

In plaintiff’s reply brief, plaintiff raises the issue of whether the ALJ
should have considered if plaintiff met the criteria of listing 12.05
intellectual disorder. This appears to be a new argument raised in the reply
brief. The court declines to consider it.

17

Apply commonsense understanding to carry out detailed
but uninvolved written or oral instructions. Deal with
problems involving a few concrete variables in or from
standardized situations.
But, the ALJ’s RFC findings limited plaintiff to understanding and
remembering simple instructions.

In these situations, the court

has remanded for explanation and resolution of the conflict.
Pemberton

v.

Berryhill,

2017

WL

1492934

*2-3

(D.Kan.

4.26/2017)(where claimant was limited to “simple work”; Tate v.
Colvin, 2016 WL 4679942 *7 (D.Kan. 9/7/2016)(where claimant should
never be expected to understand, remember or carry out detailed
instructions); MacDonald v. Colvin, 2015 WL 4429206 *8 (D.Kan.
7/20/2015)(same); Crabtree v. Colvin, 2015 WL 9473404 *3 (D.Kan.
12/28/2015)(where claimant should never be expected to understand,
remember or carry out detailed instructions and job duties must be
simple, repetitive and routine in nature).
Defendant argues that the Tenth Circuit’s decision in Stokes
v. Astrue, 274 Fed.Appx. 675 (10th Cir. 2008) is contrary to
plaintiff’s argument.

The court disagrees.

In Stokes, the Tenth

Circuit held that an RFC limitation to “simple, repetitive, and
routine work” was consistent with level-two reasoning jobs.
a greater limitation was described.

Here,

The ALJ limited plaintiff to

“simple tasks” in a “simple work environment” where she was given
“simple instructions.”

(Tr. 15).

This description conflicts with

vocational expert’s testimony which assumed that plaintiff could

18

perform jobs carrying out “detailed but uninvolved written or oral
instructions.”

This conflict must be reconciled.

See Hackett v.

Barnhart, 395 F.3d 1168, 1175-76 (10th Cir. 2005).
VII. REMAND FOR FURTHER CONSIDERATION
Plaintiff asks that the court reverse and remand for an award
of benefits.

Although this matter has been pending for a long

time, the court believes further administrative consideration
would be useful to resolve the issues discussed previously in this
order and that the record does not strongly compel an award of
benefits.

This is not a situation where remand for additional

findings would only serve to delay the receipt of benefits.
Therefore, the court declines to remand for an award of benefits.
See

Salazar

v.

Barnhart,

468

F.3d

615,

626

(10th

Cir.

2006)(discussing factors to consider in deciding whether to remand
for an award of benefits).
VIII. CONCLUSION
For the above-stated reasons, the court directs that the
decision of the Commissioner is reversed and that judgment shall
be

entered

pursuant

to

sentence

four

of

42

U.S.C.

§

405(g)

remanding the case for further proceedings consistent with this
memorandum and order.

19

IT IS SO ORDERED.
Dated this 29th day of January, 2019, at Topeka, Kansas.

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

20