Gallegos v. Social Security Administration
ORDER by Magistrate Judge Gregory J. Fouratt granting in part and denying in part 20 Motion to Remand to Agency. (kdj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
AMANDA MARIE GALLEGOS,
Civ. No. 16-264 GJF
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
THIS MATTER is before the Court on Plaintiff’s “Motion to Reverse and Remand for
Rehearing, With Supporting Memorandum” (“Motion”), filed on October 14, 2016. ECF No.
20. The Commissioner responded on December 19, 2016. ECF No. 21. Plaintiff replied on
January 3, 2017. ECF No. 23. Having meticulously reviewed the entire record and the parties’
pleadings, the Court finds that Plaintiff’s Motion should be GRANTED IN PART and
DENIED IN PART. The Court further ORDERS that the instant matter be REVERSED and
REMANDED for the limited reason set forth herein.
Plaintiff was born on January 7, 1972. Administrative R. (“AR”) 49. She did not
graduate high school, but she did receive her general equivalency degree (“GED”). AR 38.
From 1997 to 2010, Plaintiff held semi-continuous employment as a cashier at a dairy facility,
change clerk at a casino, and as a home health care provider. AR 33-37. Plaintiff last worked as
a home health care provider, but quit the position in 2010 because she “ha[d] a hard time
concentrating.” AR 33.
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on July 27, 2012.
AR 132. Plaintiff claimed disability beginning on March 1, 2012, based on diabetes, blurred
vision, foot pain, high cholesterol, incontinence, high blood sugar, memory loss, and
concentration loss. AR 49. The Social Security Administration (“SSA”) denied Plaintiff’s
application initially on January 14, 2013, and upon reconsideration on May 3, 2013. AR 60, 75.
At her request, Plaintiff received a de novo hearing before ALJ Barry O’Melinn on March 25,
2014, at which Plaintiff, her attorney, and a vocational expert (“VE”) appeared. AR 28-47. On
August 29, 2014, the ALJ issued his decision, finding that Plaintiff was not disabled within the
meaning of the Social Security Act (“the Act”). AR 11-22. Plaintiff appealed to the SSA
Appeals Council, but it declined review on February 26, 2016. AR 1-3. As a consequence, the
ALJ’s decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2016).
Plaintiff timely filed her appeal with this Court on April 7, 2016. ECF No. 1.
Plaintiff advances two grounds for relief.
First, she argues that the ALJ erred by
improperly evaluating her urinary frequency as non-severe at step two and by failing to account
for the impairment as part of her residual functional capacity (“RFC”) determination at step four.
Pl.’s Mot. 7-10, ECF No. 10. Second, she contends the ALJ should be reversed for failing to
resolve a conflict between the testimony of the VE and the Dictionary of Occupational Titles at
step four. Id. at 11-12.
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision
becomes the final decision of the agency. 1 The Court’s review of that final agency decision is
both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”).
The factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373
F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004);
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ’s decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
Substantial evidence does not, however, require a preponderance of the evidence. See Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d
at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the Court examines “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2017); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).
Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1.
If a claimant’s
impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to
the first of three phases of step four and determines the claimant’s RFC. See Winfrey, 92 F.3d at
1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and
mental demands of the claimant’s past relevant work, and in the third phase, compares the
claimant’s RFC with the functional requirements of his past relevant work to determine if the
claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is
not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on
the question of disability for the first four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler,
814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to his past work, then the Commissioner bears the burden at
the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing
in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also
Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential
evaluation process in detail).
THE ALJ’S DECISION
The ALJ issued his decision on August 29, 2014. AR 8. At step one, he found that
Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of
March 1, 2012. At step two, the ALJ found Plaintiff’s diabetes mellitus, obesity, and depression
to be severe impairments. AR 13. In contrast, the ALJ found Plaintiff’s urinary frequency to be
non-severe. AR 13.
At step three, the ALJ found that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 14-16. The ALJ began with Plaintiff’s diabetes mellitus, which the
regulations directed the ALJ to assess under applicable listings for other body systems. 2 AR 14.
Thus, the ALJ considered “evidence of diabetic ketoacidosis, chronic hyperglycemia, and
Diabetes mellitus is an endocrine disorder. The SSA evaluates impairments that result from endocrine disorders
under the listings for other body systems. For diabetes mellitus, regulations specifically provide:
Diabetes mellitus and other pancreatic gland disorders disrupt the production of several hormones,
including insulin, that regulate metabolism and digestion. Insulin is essential to the absorption of
glucose from the bloodstream into body cells for conversion into cellular energy. The most
common pancreatic gland disorder is diabetes mellitus (DM). There are two major types of DM:
type 1 and type 2. Both type 1 and type 2 DM are chronic disorders that can have serious disabling
complications that meet the duration requirement. Type 1 DM—previously known as “juvenile
diabetes” or “insulin-dependent diabetes mellitus” (IDDM)—is an absolute deficiency of insulin
production that commonly begins in childhood and continues throughout adulthood. Treatment of
type 1 DM always requires lifelong daily insulin. With type 2 DM—previously known as “adultonset diabetes mellitus” or “non-insulin-dependent diabetes mellitus” (NIDDM)—the body's cells
resist the effects of insulin, impairing glucose absorption and metabolism. Treatment of type 2
DM generally requires lifestyle changes, such as increased exercise and dietary modification, and
sometimes insulin in addition to other medications. While both type 1 and type 2 DM are usually
controlled, some persons do not achieve good control for a variety of reasons including, but not
limited to, hypoglycemia unawareness, other disorders that can affect blood glucose levels,
inability to manage DM due to a mental disorder, or inadequate treatment.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, § 9.00(B)(5) (2016).
hypoglycemia in determining whether [Plaintiff’s] diabetes me[t] or equal[ed] a listing.” AR 14.
In conclusion, he found that “the evidence does not establish that [Plaintiff’s] diabetes mellitus
meets or medically equals the criteria of any Listing.” AR 14.
Following his examination of Plaintiff’s physical impairments, the ALJ considered
whether Plaintiff’s mental impairment met the criteria of Listing 12.04 (affective disorders). AR
14. He began by evaluating paragraph B of the Listing and Plaintiff’s activities of daily living
(“ADLs”). AR 15. There, the ALJ found Plaintiff to have only a mild restriction. Among other
things, the ALJ observed that Plaintiff “cared for herself, [her] three-year-old son, and her
chickens and dog while her husband worked full time as a plumber.” AR 15. Additionally, he
noted that Plaintiff “read her son stories, gave him baths, and walked him.” AR 15 (citing AR
Second, the ALJ found Plaintiff had only mild difficulties with social functioning. The
ALJ cited approvingly to the Third Party Function Report completed by Plaintiff’s husband,
wherein he reported that Plaintiff “visited with her mother and sister once a week.” AR 15
(citing AR 167). The ALJ found this to accord with Plaintiff’s own statement that she “shopped
every day, drove, and participated in a weekly play group with her son.” AR 15 (citing AR 17677).
Third, the ALJ found that Plaintiff had moderate difficulties with concentration,
persistence, and pace. In support, he cited to Plaintiff’s testimony that “she would lose items
such as her money card, her husband’s money card[,] and her to do list.” AR 15. He also
mentioned Plaintiff’s written statements, where she “noted she could pay attention for a few
minutes, did not finish what she started, had to read written instructions over and over again, and
did not follow oral instructions very well.” AR 15. Plaintiff also documented that “she did not
do well under stress and did not handle changes in routine at all.” AR 15 (citing AR 178-79).
These reports corresponded with the findings of the non-examining state consultants, who
“opined [Plaintiff] had moderate difficulties in concentration, persistence, and pace.” AR 15
(citing AR 56, 72).
The ALJ concluded his paragraph B discussion by finding that Plaintiff “has experienced
no episodes of decompensation, which have been of extended duration.” AR 15.
Alongside his paragraph B findings, the ALJ also considered whether Plaintiff qualified
under the paragraph C criteria. The ALJ answered this inquiry in the negative, finding that “the
evidence fails to establish the presence of the ‘paragraph C’ criteria.” AR 15. Specifically, he
recalled that Plaintiff “lived with her husband and young son, cared for her chickens and dog,
and her husband worked full time.” AR 15. “Further,” he remarked, “the medical evidence
showed minimal evidence of mental health treatment.” AR 15.
Because none of Plaintiff’s impairments satisfied an applicable Listing, the ALJ moved
on to step four and assessed Plaintiff’s RFC. AR 16-21. After “careful consideration of the
entire record,” the ALJ determined that Plaintiff has the residual functional capacity to:
perform light work as defined in 20 [C.F.R. §] 404.1567(b) except [she] can
occasionally climb ramps or stairs, can never climb ladders, ropes or scaffolds,
can occasionally balance, stoop, kneel, crouch and crawl, and must avoid
concentrated exposure to operational control of moving machinery and heights.
Further, [Plaintiff] can understand, remember and carry out simple instructions
and make commensurate work-related decisions. Finally, [Plaintiff] can respond
appropriately to supervision, co-workers, and work situations, deal with changes
in work settings, and maintain concentration, persistence or pace for up to and
including two hours at a time throughout a workday with normal breaks.
To develop Plaintiff’s RFC, the ALJ relied on four separate grounds. First, the ALJ
rendered an adverse credibility finding against Plaintiff, opining that Plaintiff’s “statements
concerning the intensity, persistence[,] and limiting effects of these symptoms are not entirely
credible.” AR 21. To support his finding, the ALJ contrasted Plaintiff’s contention “that she is
disabled because of her memory problems” with medical reports showing Plaintiff had
“forgot[ten] to take her medicine,” and generally, was in poor compliance with her medicine
regimen. AR 21. The ALJ found it “significant” that Plaintiff “explained she was ‘too busy’ to
take her medicine[ ].” AR 21 (citing AR 341). The ALJ similarly highlighted the contradiction
between Plaintiff’s report of “significant memory problems” and her self-reported ability “to care
for her young son and her animals[,] which included ‘a few’ chickens and a dog.” AR 21.
Moving to Plaintiff’s physical impairments, the ALJ found “no objective evidence” of Plaintiff’s
“increased urinary frequency.” AR 21. “While she did report this problem,” the ALJ observed
that “there was no medical reason or cause for the increased urinary frequency.” AR 21. He
concluded that if Plaintiff’s “conditions were as limiting as she claimed, she would have had
more consistent medical treatment that would have objectively supported the alleged
[limitation].” AR 21.
The ALJ derived additional support from his consideration of the Third Party Function
report completed by Plaintiff’s husband, Daniel V. Gallegos. AR 20-21 (citing AR 162-70). Mr.
Gallegos asserted that Plaintiff could not focus on certain tasks and that her mind was in different
places. AR 20. The ALJ discounted this opinion, observing inter alia that Mr. Gallegos “works
full time and thus is unable to observe [Plaintiff] when he works,” and that his report is
“inconsistent with the objective evidence of record.” AR 20-21. As a consequence, the ALJ
accorded “little weight to the opinion of Mr. Gallegos,” finding that his “report is unpersuasive
and does not credibly support that [Plaintiff] is disabled.” AR 20-21.
Third, the ALJ relied on the medical evidence of record. To begin, the ALJ accorded
“little weight” to the opinions of the non-examining agency consultants who assessed Plaintiff’s
physical impairments. AR 18-19. These two doctors – Dr. Ronald Crow, D.O. and Dr. Stephen
A. Whaley – both opined that Plaintiff’s diabetes was a non-severe impairment. AR 18 (citing
AR 54-55, 68). The ALJ took exception with these opinions, finding instead that the “hearing
level evidence” supports the fact that Plaintiff’s diabetes “is a severe impairment as opposed to a
non-severe impairment.” AR 19.
The ALJ also assigned little weight to the opinion of Dr. Raul Young-Rodriguez, M.D.,
the consultative examiner who assessed Plaintiff’s physical limitations in December 2012. AR
19. Following his examination of Plaintiff, Dr. Young-Rodriguez concluded that “there was no
clinical evidence to support a limitation of [Plaintiff’s] activity.” AR 19. The ALJ discounted
this opinion, finding that “Dr. Young-Rodriguez’[s] opinion that there was no evidence to
support a limitation of activity is inconsistent with the objective findings.” AR 19. As an
example, the ALJ highlighted Dr. Young-Rodriguez’s observation that Plaintiff “could stand at
one time for 20 minutes and stand for two hours out of an eight-hour period.” AR 19. In the
ALJ’s opinion, that restriction “by itself supports physical limitations.” AR 19. The ALJ made
similar citations to other portions of Dr. Young-Rodriguez’s opinion, and ultimately concluded
that his “findings are inconsistent with the opinion of no limitations.” AR 19.
The ALJ completely discounted the opinion of consultative examiner Dr. Finian J.
Murphy, Ed.D. Dr. Murphy examined Plaintiff in December 2012 and initially opined that
Plaintiff’s “activities of daily living were within the normal range, she was oriented in all
spheres[,] and had average intelligence.” AR 20. But, while he believed Plaintiff’s “ability to
understand instructions was within the normal range,” he also found that “her ability to carry out
instructions, concentrate and persist at tasks was markedly limited by her psychological and
medical problems.” AR 20.
Furthermore, he assessed Plaintiff with the exceptionally low
Global Assessment of Functioning (“GAF”) 3 score of 31. The ALJ found Dr. Murphy’s opinion
“internally inconsistent” and concluded that Dr. Murphy’s “examination findings do not support
the extremely low GAF assessment.” AR 20. Moreover, the ALJ found that the opinion “is not
consistent with the objective evidence of record.” AR 20. As a result, the ALJ gave “no weight”
to the opinion.
The ALJ closed his consideration of medical opinions by evaluating the submissions of
the two non-examining agency psychologists, Dr. Suzanne Castro and Dr. Cheryl WoodsonJohnson, Psy.D. He reviewed each of their findings in detail, including the numerous mental
limitations they endorsed. 4 AR 19-20. Ultimately, he accorded “moderate weight” to their
opinions, finding that “[t]hey are mostly consistent with the objective evidence.” AR 20. The
ALJ cautioned however, that “the evidence of record does not support the opinion that [Plaintiff]
cannot work in a fast-paced environment or have strict production quotas.” AR 20. Based on
the ALJ’s review of the evidence, he reasoned that “[t]here is no credible indication [that
Plaintiff’s] psychological condition has ever affected [Plaintiff’s] ability to work, nor is there
credible evidence her condition worsened since she stopped working.” AR 20.
The Global Assessment of Functioning test is “widely used for scoring the severity of illness in psychiatry.” See
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2880316/#B14 (last visited July 18, 2017). A GAF score of 31
Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) or major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to
work; child frequently beats up younger children, is defiant at home, and is failing at school).
See https://msu.edu/course/sw/840/stocks/pack/axisv.pdf (last visited July 18, 2017).
Plaintiff’s appeal challenges only the ALJ’s findings on exertional limitations. Thus, the Court has omitted a
detailed discussed of the nonexertional limitations recommended by these psychologists.
Along with the preceding three bases, the ALJ completed his RFC determination by
assessing Plaintiff’s obesity under Social Security Ruling (“SSR”) 02-01p. 5 See SSR 02-01p,
2002 WL 34686281 (Sep. 12, 2002). “In the instant matter,” he explained, Plaintiff’s obesity
“does not indicate any limits when standing alone.” AR 21. “However,” he reasoned, “when
taken in combination with the other impairments, it counsels in favor of the postural and
exertional limits indicated herein.” AR 21.
In the second phase of step four, the ALJ discussed the testimony of VE Leslie White,
who testified at Plaintiff’s administrative hearing that Plaintiff had past relevant work as a home
health care provider, DOT # 354.377-014, and as a cashier, DOT # 211.462-010. AR 21. VE
White further testified that Plaintiff’s past relevant work as a cashier had a specific vocational
SSR 02-01p provides the following guidance to ALJs as they assess the effects of obesity on a claimant’s residual
Obesity can cause limitation of function. The functions likely to be limited depend on many
factors, including where the excess weight is carried. An individual may have limitations in any
of the exertional functions such as sitting, standing, walking, lifting, carrying, pushing, and
pulling. It may also affect ability to do postural functions, such as climbing, balance, stooping, and
crouching. The ability to manipulate may be affected by the presence of adipose (fatty) tissue in
the hands and fingers. The ability to tolerate extreme heat, humidity, or hazards may also be
The effects of obesity may not be obvious. For example, some people with obesity also have sleep
apnea. This can lead to drowsiness and lack of mental clarity during the day. Obesity may also
affect an individual’s social functioning.
An assessment should also be made of the effect obesity has upon the individual’s ability to
perform routine movement and necessary physical activity within the work environment.
Individuals with obesity may have problems with the ability to sustain a function over time. As
explained in SSR 96-8p [ ], our RFC assessments must consider an individual's maximum
remaining ability to do sustained work activities in an ordinary work setting on a regular and
continuing basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an
equivalent work schedule. In cases involving obesity, fatigue may affect the individual's physical
and mental ability to sustain work activity. This may be particularly true in cases involving sleep
The combined effects of obesity with other impairments may be greater than might be expected
without obesity. For example, someone with obesity and arthritis affecting a weight-bearing joint
may have more pain and limitation than might be expected from the arthritis alone.
SSR 02-01p, 2002 WL 34686281, at *6 (Sep. 12, 2002).
preparation (“SVP”) level of two and a light exertion level. AR 45. Then, when asked by the
ALJ whether she could identify jobs that could be performed by an individual with Plaintiff’s
vocational profile (age, education, and work experience) who was assigned the limitations
contained in Plaintiff’s RFC, the VE testified that such an individual could perform Plaintiff’s
past work as a cashier. AR 45. Based on the testimony of VE White, the ALJ concluded in the
third phase of step four that Plaintiff could return to her past relevant work as a cashier.
Accordingly, the ALJ found that Plaintiff had not been under a disability, as defined by the Act,
during the relevant time period and denied her claim. AR 22.
Plaintiff advances two allegations of error. The first of these is easily dismissed, as it is
little more than a veiled attempt to induce this Court to reweigh the evidence. The second claim,
however, contains multiple bases for reversing the ALJ’s ruling and remanding this matter for
the limited purposes identified herein. The Court’s reasoning follows below.
A. The ALJ Properly Evaluated Plaintiff’s Urinary Frequency
Plaintiff begins her appeal by claiming “the ALJ erred by failing to find urinary
stress/incontinence to be a severe impairment” at step two.
Pl.’s Mot. 7.
acknowledges that the ALJ “found other impairments to be severe,” and thus, “proceeded past
step two,” she nevertheless advances the additional argument that the ALJ also “erred at step
four” by failing to consider her urinary frequency as part of the RFC determination. Id. at 9.
Plaintiff questions the ALJ’s process in several ways. Generally, she argues that there is
“substantial evidence of record” to demonstrate that her “urinary frequency/stress incontinence is
a severe impairment” at step two, and that the same evidence, considered at step four, proves that
her “urinary frequency has more than a minimal effect on her ability to perform basic work
activities.” Id. at 7, 8 (citations omitted). Additionally, she attempts to weaken the ALJ’s
rationale by locating inconsistencies in his logic.
In one novel example, she asserts the
The ALJ stated that there was no objective evidence of her alleged increased
urinary frequency and no medical reason or cause for this condition, and if [it]
were as limiting as [Plaintiff] claimed she would have had more consistent
treatment. The ALJ’s reasoning is contradictory to his earlier finding of nonseverity. If the ALJ found no objective evidence for her urinary frequency, then
he should have found it not to be a medically determinable impairment.
Pl.’s Mot. 10 (internal citations omitted). Plaintiff propounds similar arguments for each ground
supporting the ALJ’s finding, and concludes by asserting that “[t]he ALJ’s omission of any
limitation regarding [Plaintiff’s] urinary frequency was legal error requiring reversal and
The Commissioner responds that “the ALJ fully evaluated Plaintiff’s subjective
complaints relating to her urinary frequency, and his RFC finding is supported by substantial
evidence.” Def.’s Resp. 4, ECF No. 22. In support, she explains that “[t]he ALJ found that
Plaintiff did not pursue regular treatment for her urinary problems, and substantial evidence
supports that finding.” Id. at 5. The Commissioner further cites to the record, which reveals that
Plaintiff was not compliant with her diabetes treatment, did not keep a lab appointment, did not
follow up with a referral to a gynecologist for evaluation of her urinary problems, and only
began taking medication for the urinary frequency “a few weeks before the administrative
hearing.” Id. Citing to Tenth Circuit precedent, the Commissioner contends it “was reasonable
and appropriate for the ALJ to consider this evidence when assessing the extent to which
Plaintiff’s urinary frequency impacted her ability to work.” Id. (citing Qualls v. Apfel, 206 F.3d
1368, 1372-73 (10th Cir. 2000); Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988)).
Furthermore, the Commissioner cites to Cowan v. Astrue, 552 F.3d 1182, 1191 (10th Cir. 2008)
for the proposition that “[t]he ALJ properly considered the fact that Plaintiff worked for years
despite urinary frequency.” Def.’s Resp. 5. Taken together, the Commissioner believes “[t]he
ALJ properly evaluated the evidence on this issue and provided reasons for his findings, and his
RFC finding is supported by substantial evidence.” Id. at 6.
On this issue, the Commissioner prevails. Despite Plaintiff’s attempts to the contrary,
neither prong of her argument persuades this Court. In fact, both are foreclosed by extant case
law. As to the former – Plaintiff’s assertion that the ALJ erred at step two by not finding her
urinary frequency severe – there is simply no plausible basis to propound the argument.
To proceed past step two, it is well established that an ALJ need only find one severe
See Oldham v. Astrue, 509 F.3d 1254, 1256-67 (10th Cir. 2007).
recognizes “that the ALJ found other impairments to be severe . . . [and] proceeded past step
two,” but ignores the preclusive effect that doing so had on her ability to claim step two error.
The Tenth Circuit discussed this bar in Allman v. Colvin, where the court observed that “[a]s
long as the ALJ finds one severe impairment, the ALJ may not deny benefits at step two but
must proceed to the next step.” 813 F.3d 1326, 1330 (10th Cir. 2016). “Thus,” the court
reasoned, “the failure to find a particular impairment severe at step two is not reversible error
when the ALJ finds at least one other impairment is severe.” Id. In Allman, the ALJ found six
other impairments to be severe and the court correspondingly held on appeal that the claimant’s
step two argument “fail[ed] as a matter of law.”
Here, the ALJ found three other
impairments severe, and Plaintiff’s step two allegation of error must similarly fail as a matter of
Plaintiff’s step four allegation fares no better than the former, for it is an impermissible
one. In its title, Plaintiff avers that the ALJ “compounded [his step two error] by failing to
evaluate all impairments, including both severe and non-severe at step four.” Pl.’s Mot. 7. Yet,
upon review, the assertion proves transparently false.
At step four, the ALJ exhaustively
evaluated Plaintiff’s impairments, 6 including the urinary frequency which forms the basis of her
step four claim. The ALJ reviewed Plaintiff’s account of her symptoms and weighed that
account alongside statements by her husband and the opinions of medical professionals. AR 1720. While Plaintiff did report the condition, the ALJ accurately noted that “there was no medical
reason or cause for the increased urinary frequency,” and that “[i]f her conditions were as
limiting as she claimed, she would have more consistent medical treatment that would have
objectively supported the alleged limitations.” AR 21.
Ultimately, the ALJ considered the
record and found that “there was no objective evidence” of Plaintiff’s urinary frequency. AR 21.
The ALJ examined Plaintiff’s claims of urinary frequency in detail. The following represents only a fractional
sampling of that review:
The claimant testified she could not remember things, had a short attention span, went to the
restroom very frequently, had feet pain, and had concentration issues for which she took Celexa.
The claimant testified she had been to the doctor two weeks prior to the hearing and her Celexa
dosage had been increased, but she had not yet gotten the new prescription. The claimant asserted
she went to the bathroom more than 20 times a day and had gotten medicine for this problem four
weeks prior to the hearing, but she maintained the medicine had not helped. She claimed she had
the restroom problem for years and had not tried any other remedies before her recently prescribed
medicine. The claimant asserted her clients had complained about how much she used the
restroom. She testified that one time one of her clients from Heritage had requested a different
caregiver in either 2008 or in 2010 and did not know why the client requested a different
She also claimed the doctor referred her to the gynecologist for her urinary problems. In a two
hour time period, the claimant claimed she went to the bathroom at least five or six times, had to
go to the bathroom when she was out shopping or at appointments, wore protection all the time,
and a bladder check after her son was born revealed no bladder problems. The claimant testified
she preferred not to participate in social activities. The claimant testified she could not sit through
a movie without needing to go to the bathroom, she worried about urinating on herself, and felt
like people judged her. Finally, she claimed she had to use the bathroom ten times a night, it
interrupted her sleep and this made her tired during the day.
AR 17 (internal quotation marks omitted).
Clearly, the ALJ evaluated Plaintiff’s urinary frequency at step four.
In fact, he
thoroughly did so. It seems clear to the Court, therefore, that Plaintiff’s dispute is not actually
that the ALJ did not evaluate both Plaintiff’s severe and non-severe impairments at step four, but
rather, that the ALJ did not evaluate the impairments in Plaintiff’s favor. And, because the ALJ
did not do so, Plaintiff now invites this Court to usurp the administrative responsibilities of the
executive and weigh the evidence de novo on appeal. The Court must refuse the invitation, as it
is forbidden from doing so. See Qualls, 206 F. 3d at 1371. Instead, the Court finds that
substantial evidence supports the ALJ’s RFC determination, as it is supported by the ALJ’s
thorough analysis, by Plaintiff’s adverse credibility finding, by the objective medical evidence of
record, and by the medical opinions of every single doctor who opined on Plaintiff’s exertional
limitations. Therefore, the Court will deny Plaintiff’s first allegation of error, and order that it
not be reconsidered on remand.
The ALJ Committed Legal Error at Step Four
Plaintiff next asserts that that ALJ failed to resolve a conflict between the Dictionary of
Occupational Titles (“DOT”) and the VE’s testimony at step four. Pl.’s Mot. 11. During the
third (and final) phase of the step four inquiry, the ALJ asked the VE the following:
So if we have a person of the claimant’s age, education and work experience, who
can do work at the light exertional level as that term is defined. Such a person
may occasionally climb ramps or stairs. Never climb ladders, ropes or scaffolds.
Such a person may occasionally balance, stoop, kneel, crouch and crawl. Such a
person should avoid concentrated exposure to operational control of moving
machinery, unprotected heights and hazardous machinery. Such a person can
understand, carry out and remember simple instructions, and make
commensurate work-related decisions. Respond appropriately to supervision,
coworkers and work situations. Deal with routine changes in work setting.
Maintain concentration, persistence and pace for up to and including two hours at
a time with normal breaks throughout a normal workday. Could such a person do
any of claimant’s past work?
Id. (quoting AR 45) (emphasis added). The VE responded in the affirmative, and related that
Plaintiff should be able to return to her past relevant work as a cashier, as that position
conformed to the exertional and skill levels contained in the ALJ’s hypothetical RFC. Id. (citing
Plaintiff alleges that this recommendation was in error. She argues that the abilities
required by the cashier position “as it is described in the [DOT] do not match the abilities in the
ALJ’s hypothetical.” Id. Plaintiff explains that the job of cashier II, DOT # 211.462-010,
“requires a reasoning level of 3, which the Tenth Circuit has found inconsistent with a limitation
to simple work.” Id. (citing Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)).
Plaintiff further contends that, when a claimant is limited to simple work, the Hackett case
requires the ALJ to “address a claimant’s ability to perform work at a reasoning level 3 in a
factually specific manner.” Id. (citing Hackett, 385 F. 3d at 1176). Plaintiff concludes by stating
“[t]he ALJ erred by failing to investigate and resolve this inconsistency.” Id. at 12 (citing SSR
00-4p, 2000 WL 1898704 (Dec. 4, 2000)).
The Commissioner responds circuitously to Plaintiff’s contention. Notably, she never
overtly concedes a conflict between the VE’s recommendation and the DOT.
Commissioner focuses her efforts on shoring up her interpretation of SSR 00-4p, which she
believes only requires an ALJ to resolve “any apparent conflict.” Def.’s Resp. 6 (emphasis in
original). Toward that end, the Commissioner questions “why or how the ALJ should have been
aware of [the Hackett case] or how its holding made the alleged inconsistency ‘apparent’ to the
ALJ at the hearing.” Id. at 7. She also directs blame at Plaintiff, noting that the discrepancy
Plaintiff now asserts in her Motion was one that she “did not assert at the hearing.” Id. at 6
(emphasis in original). The Commissioner then cites to the unpublished decision in Segovia for
the notion that “the ALJ is not under an obligation to seek out any and all possible conflicts
between the DOT and the vocational expert’s testimony before relying on that testimony in his
decision.” Id. (citing Segovia v. Astrue, 226 F. App’x 801, 804 (10th Cir. 2007) (unpublished)).
By the Commissioner’s reading of relevant regulations, “the ALJ fully complied with the
requirements of SSR 00-4p, and Plaintiff’s argument is without merit.” Id.
The Commissioner closes by questioning the holding in Hackett. She acknowledges the
Hackett court’s observation “that a mental RFC limitation to ‘simple and routine tasks’ seemed
inconsistent with GED 7 reasoning level three, and appeared more consistent with GED reasoning
level two.” Id. at 7 (citing Hackett, 395 F.3d at 1176). But, based on her reading of the DOT,
the Commissioner argues that “GED reasoning levels equate to educational attainment, not the
simplicity or complexity of an occupation.” Id. (citing DICOT, App’x C, 1991 WL 688702).
Therefore, she directs the Court to two unpublished cases which she believes evince a “split of
authority” on “whether (and how) GED reasoning levels are related to the mental requirements
The DOT uses the acronym GED to refer to General Educational Development, which it describes as follows:
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. Ordinarily, such
education is obtained in elementary school, high school, or college. However, it may be obtained
from experience and self-study.
The GED Scale is composed of three divisions: Reasoning Development, Mathematical
Development, and Language Development. The description of the various levels of language and
mathematical development are based on the curricula taught in schools throughout the United
States. An analysis of mathematics courses in school curricula reveals distinct levels of
progression in the primary and secondary grades and in college. These levels of progression
facilitated the selection and assignment of six levels of GED for the mathematical development
However, though language courses follow a similar pattern of progression in primary and
secondary school, particularly in learning and applying the principles of grammar, this pattern
changes at the college level. The diversity of language courses offered at the college level
precludes the establishment of distinct levels of language progression for these four years.
Consequently, language development is limited to five defined levels of GED inasmuch as levels 5
and 6 share a common definition, even though they are distinct levels.
DICOT, App’x C, 1991 WL 688702.
of a job.” Id. at 7-8 (citing Anderson v. Colvin, 514 F. App’x 756, 764 (10th Cir. 2013)
(unpublished); Mounts v. Astrue, 479 F. App’x 860, 868 (10th Cir. 2012) (unpublished)). The
Commissioner maintains that the district court cases which have relied on these unpublished
decisions “are the better-reasoned line of authority.” Id. at 8 (citing Pacheco v. Colvin, 83 F.
Supp. 3d 1157, 1159 (D. Colo. 2015); Owen v. Colvin, No. 1:13-CV-00141, 2015 WL 1490947,
at *5 (D. Utah Mar. 30, 2015) (unpublished); Herriage v. Colvin, No. 14-1345, 2015 WL
5472496, at *2 (D. Kan. Sept. 16, 2015) (unpublished); Pacheco v. Colvin, No. 2:13-CV-197
DN, 2014 WL 869294, at *7 (D. Utah Mar. 5, 2014) (unpublished)). These cases, alongside her
preceding argument, lead the Commissioner to conclude “there was no ‘apparent’ conflict
between the vocational expert’s testimony and the DOT at the time of the hearing, and Plaintiff
has further failed to conclusively establish there is any conflict at all.” Id.
In making disability determinations, the SSA relies “primarily on the DOT” at steps four
and five of the sequential evaluation process.
SSR 00-4p, 2000 WL 1898704, at *2.
Nonetheless, ALJs may also use VEs “at these steps to resolve complex vocational issues.” Id.
Occupational evidence provided by a VE “generally should be consistent with the occupational
information supplied by the DOT.” Id. “When there is an apparent unresolved conflict between
VE [ ] evidence and the DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE [ ] evidence to support a determination or decision about
whether the claimant is disabled.” Id. “Neither the DOT nor the VE [ ] evidence automatically
‘trumps’ when there is a conflict. The adjudicator must resolve the conflict by determining if the
explanation given by the VE [ ] is reasonable and provides a basis for relying on the VE [ ]
testimony rather than on the DOT information.” Id.
Where an ALJ takes testimony from a VE, the ALJ assumes two affirmative
responsibilities. First, in all cases where a VE provides evidence about the requirements of a job
or occupation, the ALJ is commanded by SSR 00-4p to “[a]sk the VE [ ] if the evidence he or
she has provided conflicts with information provided in the DOT.” Id. at *4. Then, in those
cases where the VE’s testimony appears to conflict with the DOT, the ALJ must “obtain a
reasonable explanation for the apparent conflict.” Id. Should such a conflict arise, an ALJ “must
resolve the conflict before relying on the VE” testimony to support a disability determination.
Id. Furthermore, the ALJ must explain how the conflict was resolved, “irrespective of how the
conflict was identified.” Id.
Hackett v. Barnett
In Hackett, the Tenth Circuit was asked to decide whether a limitation to simple and
routine tasks precluded a claimant from working in a position requiring reasoning level three.
There, the claimant’s RFC provided that “[m]entally, [the claimant] retains the attention,
concentration, persistence and pace levels required for simple and routine tasks.” See Hackett,
395 F.3d at 1176. (citation omitted) (emphasis added).
Based on that RFC, a VE at the
claimant’s administrative hearing had testified that she could work as both a call-out operator
and a surveillance-system monitor. Id. The claimant argued, however, that “her RFC, as found
by the ALJ, [was] incompatible with jobs requiring a reasoning level of three.” Id.
To decide the issue, the Hackett court looked to the plain language of the DOT. The
DOT defines reasoning level three as the ability to “[a]pply commonsense understanding to carry
out instructions furnished in written, oral, or diagrammatic form[, and d]eal with problems
involving several concrete variables in or from standardized situations.” Id. (citing DICOT,
App’x C, 1991 WL 688702). The Hackett court then compared that definition with GED
reasoning level two, which requires a worker to “[a]pply commonsense understanding to carry
out detailed but uninvolved written or oral instructions [and d]eal with problems involving a few
concrete variables in or from standardized situations.” Id. (citing DICOT, App’x C, 1991 WL
688702). By comparing the two levels, the court determined that Plaintiff’s limitation to “simple
and routine tasks . . . seems inconsistent with the demands of level-three reasoning.” Id. (citation
omitted). Rather, they opined, “level-two reasoning appears more consistent with Plaintiff’s
The ALJ committed legal error by neglecting his affirmative duty
Closer inspection of Plaintiff’s claim reveals two separate grounds necessitating remand.
The first derives from SSR 00-4p, which imposes upon ALJs “an affirmative responsibility to
ask . . . the VE if the evidence he or she has provided conflicts with information provided in the
DOT.” SR 00-4p, 2000 WL 1898704, at *4. Here, the ALJ conspicuously neglected to do so.
The ALJ’s failure was reinforced by his written decision, where, rather than inserting the
step four/five boilerplate language that “pursuant to SSR 00-4p, the vocational expert’s
testimony is consistent with the information contained in the Dictionary of Occupational
Titles,” 8 the ALJ chose instead to state: “[i]n accordance with Social Security Ruling (SSR) 004p, the undersigned accepts the testimony of the vocational expert that the cashier position is
light, unskilled, and does not exceed the residual functional capacity.” AR 22. This choice of
words did not go unnoticed by this Court.
It should not have gone unnoticed by the
Commissioner. And yet, somehow, it did. Indeed, one can imagine this Court’s surprise when it
reviewed this statement by the Commissioner:
Although the Court cannot cite to sealed records from other social security appeals, it can relate that this is the
boilerplate language routinely inserted by SSA adjudicators to communicate their compliance with the affirmative
duty imposed on them by SSR 00-4p.
The vocational expert testified that such an individual could perform Plaintiff’s
past work as a cashier. The vocational expert affirmed that his testimony was
consistent with the information in the Dictionary of Occupational Titles (DOT),
and Plaintiff’s attorney did not question the vocational expert about the
consistency of the vocational expert’s testimony and the DOT.
Def.’s Resp. 2-3 (emphasis added). The vocational expert did no such thing, and the ALJ
propounded no such question. 9
The ALJ neglected his affirmative duty under SSR 00-4p to ensure consistency between
the VE’s testimony and the DOT. This represents reversible error and necessitates remand.
Hackett counsels remand
Additionally, this Court must remand the instant matter because it is not apparent from
the record or the parties’ briefing that Plaintiff has the ability to work as a cashier II under her
present RFC. The undersigned recognizes that the Hackett court’s language was not mandatory,
and moreover, that the language is dicta. See Hackett, 395 F.3d at 1176 (noting that the
limitation to simple and routine tasks seems inconsistent with the demands of level-three
reasoning). Nevertheless, the same logic that persuaded the Hackett court persuades this Court.
In the instant cause, the relevant portion of Plaintiff’s RFC states that “[s]uch a person
can understand, carry out and remember simple instructions, and make commensurate workrelated decisions.” AR 45. This, just as in Hackett, seems facially incompatible with a GED
reasoning level 3 position where a worker must “[a]pply commonsense understanding to carry
out instructions furnished in written, oral, or diagrammatic form” and “[d]eal with problems
involving several concrete variables in or from standardized situations.” DICOT, App’x C,
1991 WL 688702. To the contrary (but just as in Hackett), Plaintiff’s RFC limitation more
This Court assumes that counsel for the Commissioner simply overlooked these facts or inadvertently inserted
boilerplate language from a prior response in another case. In the future, counsel are encouraged to adapt their
arguments to the peculiar facts of each case. It is enough to say that a repeat performance of this error will meet
with the Court’s disfavor.
closely aligns with reasoning level 2, where a worker need only “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions,” and “deal with
problems involving a few concrete variables in or from standardized situations.” Id.
The Commissioner’s arguments are unpersuasive
The Commissioner’s arguments to the contrary are unavailing. First, the Court rejects
her remarkable proposition that ALJs should not be charged with knowledge of published Tenth
Circuit case law that governs the legal review of their decisions.
The Commissioner tellingly
cites no authority in support of this position. Would the Commissioner also excuse an ALJ’s
ignorance of the “pick and choose” rule, which is itself a creature of judicial creation? See Haga
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“An ALJ is not entitled to pick and choose
through an uncontradicted medical opinion, taking only the parts that are favorable to a finding
Next, the Court must also reject the Commissioner’s intimation that the Plaintiff
somehow foreclosed her ability to raise her step four issue because she failed to do so before the
ALJ. This notion ignores the U.S. Supreme Court’s holding in Sims v. Apfel, where the Court
discussed the nonadversarial nature of social security proceedings and dismissed the idea of issue
exhaustion as “inappropriate” in that setting. See 530 U.S. 103, 112 (2000).
Finally, the Commissioner’s focus on apparent – as opposed to actual – conflicts is the
quintessential red herring. The focus on “apparent conflict” distracts from the central purpose of
SSR 00-4p: to require ALJs to identify conflicts – thereby making them appear, or become
“apparent conflicts” - by “[a]sking the VE [ ] if the evidence he or she has provided conflicts
with information provided in the DOT.” See SSR 00-4p, 2000 WL 1898704, at *4. Then, “If the
[VE’s] evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable
explanation for the apparent conflict.” Id. In the instant matter, the ALJ neglected his duty to
confirm that the VE’s testimony conformed to the DOT, thereby eliminating the simplest method
of perceiving an apparent conflict between her testimony and the DOT. The Commissioner’s
deflection fails to obscure the ALJ’s obvious error.
Based on the above, this Court will follow the guidance of Hackett and reverse and
remand “to allow the ALJ to address the apparent conflict between Plaintiff’s inability to
perform more than simple and repetitive tasks and the level-three reasoning required by the jobs
identified as appropriate for her by the VE.” Hackett, 395 F.3d at 1176. On remand, the ALJ
shall ensure that:
(1) the affirmative duty imposed by SSR 00-4p to ensure consistency between the
VE’s testimony and the DOT is observed;
(2) a fact-specific inquiry is undertaken to determine if Plaintiff can in fact
perform her past relevant work as a cashier II, notwithstanding its GED reasoning
level of 3, and
(3) if Plaintiff is restricted by virtue of her RFC to employment requiring a
reasoning level of 3, a proper step-five inquiry is undertaken.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum [ECF No. 20] is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED
and REMANDED for further administrative proceedings.
IT IS SO ORDERED.
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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