Temple v. Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting 20 Plaintiff's MOTION to Remand to Agency for Rehearing. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DIANE MARIE TEMPLE,
Plaintiff,
v.

CIV 16-1007 KBM

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

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand
for a Rehearing, with Supporting Memorandum (Doc. 20) filed on April 6, 2017.
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to
me serving as the presiding judge and entering final judgment. See Docs. 4, 7, 11.
Having considered the record, submissions of counsel, and relevant law, the Court finds
Plaintiff’s motion is well-taken and will be granted in part.
I.

Procedural History
On December 31, 2012, Ms. Diane Temple (Plaintiff) protectively filed

applications with the Social Security Administration for a period of disability and
disability insurance benefits under Title II of the Social Security Act (SSA), and for
Supplemental Security Income under Title XVI of the SSA. Administrative Record1 (AR)
at 11, 177-78, 184. Plaintiff alleged a disability onset date of June 1, 2012. AR at 11,
1

Document 15-1 contains the sealed Administrative Record. See Doc. 15-1. The Court cites the
Administrative Record’s internal pagination, rather than the CM/ECF document number and
page.

177, 184. Disability Determination Services (DDS) determined that Plaintiff was not
disabled both initially (AR at 84-85) and on reconsideration (AR at 112-13). Plaintiff
requested a hearing with an Administrative Law Judge (ALJ) on the merits of her
applications. AR at 136-37.
Both Plaintiff and a vocational expert (VE) testified during the de novo hearing.
See AR at 26-55. ALJ Eric Weiss issued an unfavorable decision on April 24, 2015. AR
at 8-24. Plaintiff submitted a Request for Review of Hearing Decision/Order to the
Appeals Council (AR at 6-7), which the council denied on August 10, 2016 (AR at 1-5).
Consequently, the ALJ’s decision became the final decision of the Commissioner. See
Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
II.

Applicable Law and the ALJ’s Findings
A claimant seeking disability benefits must establish that she is unable “to

engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a
sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009).
The claimant has the burden at the first four steps of the process to show: (1) she
is not engaged in “substantial gainful activity”; (2) she has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) her impairment(s) meet or equal one of

2

the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant’s residual functional capacity (RFC), she is unable to
perform her past relevant work. 20 C.F.R §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv);
see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted).
“RFC is a multidimensional description of the work-related abilities [a claimant] retain[s]
in spite of her medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL
8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 §
12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant meets “the burden of establishing
a prima facie case of disability[,] . . . the burden of proof shifts to the Commissioner at
step five to show that” Plaintiff retains sufficient RFC “to perform work in the national
economy, given [her] age, education, and work experience.” Grogan, 399 F.3d at 1261
(citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation
omitted)); see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
At Step One of the process,2 ALJ Weiss found that while Plaintiff worked
cleaning houses in 2012 and 2013, and as a delivery driver in 2014, her earnings since
2010 do not rise to the level of gainful activity. AR at 13. Consequently, Plaintiff had not
engaged in substantial gainful activity since her alleged onset date of June 1, 2012. AR
at 13 (citing 20 C.F.R. §§ 404.1571-1576, 416.971-976). At Step Two, the ALJ
concluded that Plaintiff “has the following severe impairments: depressive disorder, and
generalized anxiety disorder . . . .” AR at 14 (citing 20 C.F.R. §§ 404.1520(c),
416.920(c)).

2

ALJ Weiss first found that Plaintiff’s “earning record shows that [she] has acquired sufficient
quarters of coverage to remain insured through December 31, 2012.” AR at 11, 13.

3

At Step Three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 . . . .” AR at 15 (citing
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). In
making his determination, ALJ Weiss considered listings 12.04 (affective disorders) and
12.06 (anxiety related disorders). AR at 15.
The ALJ first examined whether Plaintiff’s mental impairments met the
“paragraph B” criteria. He found that Plaintiff has mild restrictions in her activities of
daily living (AR at 15 – noting Plaintiff “lives alone and cares for four dogs[,]”
“occasionally works as a housekeeper” and works for a courier service approximately
20 hours/week, in which she drives locally and to Texas and Colorado) (citing AR at 76,
105, 400); moderate difficulties in the area of social functioning (AR at 15 – noting that
Plaintiff “testified that she has no problem working with people, . . . is sometimes
bothered by crowds, . . . limits her contact with others[,]” and had a roommate in 2012,
2013, and at the time of the hearing) (citing AR at 232-40); and moderate difficulties in
the area of concentration, persistence or pace (AR at 15-16 – noting Plaintiff’s work “as
a courier evinces her ability to concentrate and persist[,]” her testimony “that her head
pain distracts her attention and” limits her courier work, her report “that she forgets a lot
of things and cannot get organized[,]” and commenting on Plaintiff’s “difficulty focusing
on [the ALJ’s] questions during the hearing”) (citing AR at 237).
The ALJ acknowledged Plaintiff’s two-day emergency admission to a psychiatric
unit on July 28, 2012, due to “paranoid delusions in connection with amphetamine
toxicity[,]” “triggered by recent domestic violence against her that resulted in charges of

4

attempted murder and kidnapping against her boyfriend.” AR at 16. He found, however,
that Plaintiff has experienced no episodes of decompensation of extended duration,
because the episode only lasted two days (AR at 16 – noting that Plaintiff “was
assessed with substance induced psychotic disorder (meth) and acute stress disorder”).
Because the ALJ did not find that Plaintiff has at least two “marked” limitations or one
“marked” limitation and “repeated” episodes of decompensation, he determined that her
mental impairments did not satisfy the “paragraph B” criteria. AR at 16. The ALJ also
found that Plaintiff did not meet the “paragraph C” criteria of 12.04 or 12.06. AR at 16.
At Step Four, the ALJ Weiss concluded that while Plaintiff’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms[,]” he did not find Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms . . . entirely credible . . . .” AR at 18. The ALJ
considered the evidence of record, including the psychological consultative examination
performed by David LaCourt, Ph.D., the opinion of state agency DDS consultant Cheryl
Woodson-Johnson, and the report by Plaintiff’s roommate. AR at 14-19. Ultimately, the
ALJ found that Plaintiff
has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: she is
limited to perform simple, routine and repetitive tasks and is limited to
simple work related decisions in a work environment with only occasional
changes in the work setting. She may have only occasional interaction
with the public, coworkers and supervisors.
AR at 17. ALJ Weiss determined that Plaintiff “is capable of performing past relevant
work as a cleaner/housekeeper . . . and deliverer/courier[,]” neither of which “require the
performance of work-related activities precluded by” Plaintiff’s RFC. AR at 19. The ALJ

5

ultimately decided that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from June 1, 2012, through the date of [the ALJ’s] decision . . . .” AR at 20
(citing 20 C.F.R. §§ 404.1520(f), 416.920(f)).
III.

Legal Standard
The Court must “review the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal
quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id.
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation
omitted) (alteration in original)). The Court will “consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of evidence in
disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the
Commissioner’s.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and
quotations omitted)).
“The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The
Court “may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even

6

though the court would justifiably have made a different choice had the matter been
before it de novo.’” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).
IV.

Discussion
Plaintiff asserts two broad issues in her Motion. First, Plaintiff argues that the ALJ

failed to correctly weigh both the examining psychologist’s and the non-examining
psychiatrist’s opinions. Doc. 20 at 6-11. Second, Plaintiff proposes a variety of
arguments to support her contention that the ALJ’s “past work finding is contrary to the
evidence.” Id. at 11.
A.

ALJ’s Weiss’ assessment of Dr. LaCourt’s opinion is inadequate to
uphold the ALJ’s ultimate decision.

Plaintiff argues that ALJ Weiss’s analysis of Dr. LaCourt’s opinion constitutes
reversible error for two reasons: (1) the ALJ’s rejection of Dr. LaCourt’s opinion on
Plaintiff’s marked limitations is not supported by substantial evidence; and (2) the ALJ
erred by failing to incorporate in the RFC limitations findings by Dr. LaCourt that Plaintiff
has a moderate limitation in her ability to carry out instructions due to “task
impersistence,” and marked limitations in working without supervision and in working
with supervisors. Doc. 20 at 8-10.
DDS referred Plaintiff to a one-time consultation with Dr. LaCourt on June 1,
2013. AR at 400. Dr. LaCourt noted the following background information: Plaintiff lives
by herself (with four dogs). AR at 400. She dropped out of school in 9th grade to have
her first child; she eventually obtained her GED. AR at 400. Plaintiff has worked over
the years for a house-cleaning agency, but she was fired in August 2012. AR at 400.

7

Her ex-boyfriend3 beat Plaintiff in the head with a rock in June 2012, and Dr. LaCourt
noted that it was unclear what type of treatment she received after that beating. AR at
400. Plaintiff stated that she “has been unable to go out of the house after dark since
the assault[,] and that it” is hard to go out even during the daytime. AR at 400-01.
Plaintiff also reported that one month after the beating, she checked herself into a
psychiatric inpatient “detox” stay because she was having methamphetamine-induced
auditory hallucinations and paranoid delusions (she thought someone was after her)
which “remitted rapidly . . . .” AR at 400, 401. Plaintiff discussed her other medical
history with Dr. LaCourt, including her broken right index finger and her Hepatitis C
diagnosis. AR at 401.
In the “Findings and Interpretation” section of his report, Dr. LaCourt noted:
Plaintiff wore clean, appropriate clothing, had normal grooming and hygiene, and
functional posture and gait. AR at 401. She neither reported nor exhibited “untoward
movements, mannerisms, tremors or tics . . . .” AR at 401. She showed normal attention
“with a commensurate level of general concentration.” AR at 401. While Dr. LaCourt did
not observe “an appreciable amount of scatter or variability of concentration” during the
appointment, Plaintiff reported she was experiencing (both at the appointment and at
other times) “ongoing/persisting anxiety of a free-floating kind, i.e., without identifiable
recent/proximal antecedents.” AR at 401.

3

Plaintiff’s counsel notes that while some of the record evidence (including Dr. LaCourt’s notes)
refers to this person as Plaintiff’s ex-husband, he was actually her ex-boyfriend. Doc. 20 at 17
n.6. The ex-boyfriend was convicted of attempted murder in connection with the beating, AR at
400, and apparently released from prison before the January 2015 hearing before the ALJ. AR
at 35.

8

Dr LaCourt found that Plaintiff was oriented “to time, place, person and partially
to the general situation.” AR at 401. Her recall and memory were grossly intact “with
varying degrees of low detail/vague retrieval” related to “small gaps associated with the
assault.” AR at 401. Plaintiff denied regular counseling or psychotherapy. AR at 401.
Plaintiff “reported ongoing sleep issues, . . . even with medications to help her sleep.”
AR at 401. While she noted “reduced-awareness perceptions ‘in the shadows’ at night[,]
. . . there was no direct evidence of active hallucinatory or delusional process . . . .” AR
at 401. Plaintiff had taken self-defense classes to feel more secure. AR at 401.
Plaintiff’s affect was appropriate; she was pessimistic, anxious, and had a dysphoric
mood. AR at 401. She did not report any “untoward preoccupations” including any “selfharm ideation.” AR at 401. Plaintiff displayed average to low-average intellectual
functioning and reported “no difficulties with reading or performing everyday math as
part of household duties.” AR at 401-02. Dr. LaCourt listed the medications Plaintiff was
taking, noted that she had occasional alcoholic beverages but not regularly or to the
point of intoxication, and indicated that she had not taken illicit substances since July
2012 (methamphetamine). AR at 402.
Dr. LaCourt diagnosis of Plaintiff included Generalized Anxiety Disorder,
methamphetamine abuse (in sustained full remission), and Depressive Disorder NOS.
AR at 402. He opined that Plaintiff had the following limitations:



Understanding and remembering detailed/complex instructions: no
limitation; very short/simple instructions: no limitation
Sustained concentration/task persistence, for carrying out instructions:
moderate limitation associated with task impersistence; attending and
concentrating: no limitation; working without supervision: marked
limitation

9






Social interaction, with the public: moderate limitation; with coworkers:
marked limitation; with supervisor: marked limitation associated with
anxiety
Adaptation to changes in the workplace: no limitation; aware of normal
hazards/reacting appropriately: mild limitation
Use of public transportation/travel to unfamiliar places: marked
limitation associated with anxiety about being around other people for
extended periods of time

AR at 402. He opined that Plaintiff could manage her own benefits. AR at 402.
The ALJ summarized Dr. LaCourt’s examination notes and findings, including a
full recital of Dr. LaCourt’s opinion on Plaintiff’s limitations. AR at 18. ALJ Weiss found
that Plaintiff “is more limited in the area of concentration, persistence and pace than Dr.
LaCourt opined.” AR at 18. He determined that “the evidence and [Plaintiff’s] testimony
do not support [Dr. LaCourt’s] opinion that she has marked limitations in working with
co-workers or supervisors because she testified that she has no problem working with
people.” AR at 18. The ALJ gave Dr. LaCourt’s opinion partial weight. AR at 18.
Notably, while Plaintiff cites to 20 C.F.R. § 404.1527, she stops short of actually
arguing that the ALJ failed to analyze Dr. LaCourt’s opinion using the factors in that
section. See Doc. 20 at 6. Instead, Plaintiff argues that (1) the ALJ erred in rejecting the
marked limitations opined by consultative psychologist Dr. LaCourt; and (2) the RFC
fails to account for Dr. LaCourt’s finding regarding a moderate limitation in Plaintiff’s
ability to carry out instructions due to “task impersistence.” See Doc. 20 at 7-10.
1.

The ALJ’s findings regarding the marked limitations Dr.
LaCourt opined are supported by substantial evidence.

Dr. LaCourt opined that Plaintiff has marked limitations in four areas: (1) working
without supervision; (2) working with coworkers; (3) working with supervisors

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(associated with anxiety); and (4) using public transportation (associated with anxiety
about being around other people for extended periods of time). AR at 402.
Plaintiff begins with Dr. LaCourt’s assessed limitations on working with coworkers
and supervisors. In these two areas, the ALJ reasoned the finding of marked limitations
is not supported, because Plaintiff testified “that she has no problem working with
people.” AR at 18. Plaintiff argues this was error, because Plaintiff avoids dealing with
people; for example, when she delivers packages, she testified that she will go “in and
out real fast.” Doc. 20 at 8 (quoting AR at 45) Plaintiff also testified that her coworkers
say she “always ha[s] a smile on [her] face,” but at the same time, “she reported
checking behaviors while in her car in parking lots because of anxiety about who might
be there.” Id. (citing AR at 45-47).
However, substantial evidence does support the ALJ’s rejection of marked
limitations on Plaintiff’s ability to work with both coworkers and supervisors, as well as
her ability to use public transportation due to anxiety about being around people.4 The
state agency DDS consultant, on whose opinion the ALJ placed great weight, found that
Plaintiff was “not significantly limited in interacting appropriately with the general public
[and in] getting along with co-workers[,]” and that Plaintiff is only moderately limited in
her ability to accept instructions and respond appropriately to criticism from supervisors.
See AR at 65. The consultant also explained in Section III that Plaintiff would be “able to

4

Plaintiff made no specific arguments about the marked limitation on her ability to use public
transportation (due to anxiety about being around people). See Doc. 20. The Court notes,
however, that the ability to use public transportation is not a required skill for unskilled work.
See, e.g., Soc. Sec. Ruling, SSR 85-15, Titles II & XVI: Capability to do Other Work—The
Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertional Impairments, at
*4 (Jan. 1, 1985). More importantly, the ALJ sufficiently discussed Plaintiff’s anxiety as
explained in this section.

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perform work where . . . supervision required is simple, direct and concrete (unskilled).”
AR at 66.
The fact that Plaintiff has been working as a courier negates the fact that she has
marked limitations working with supervisors, as she is obviously supervised, at least
remotely. And Plaintiff is clearly able to manage her anxiety working around people as a
courier, even if that means she makes her deliveries quickly and avoids excessive
interaction with others.
The ALJ discussed the fact that based on Plaintiff’s testimony, “it appears that
[her] past reports of her mental limitations, including her fear of leaving her home, or
even to occupy parts of her home, are improved. Her testimony describes a current
ability to not only leave her home, but to also maintain part-time employment.” AR at 19.
Finally, while not noted in the ALJ’s decision, the following exchange took place at the
hearing:
“Q

[Dr. LaCourt] said that anxiety-related events caused limitation [sic] in social

interaction with coworkers and supervisors.
A

Yes, I didn’t have a supervisor back then. . . . I totally kept to myself almost.”

AR at 38-39 (emphasis added). She explained that back then, at the time of her onetime evaluation with Dr. LaCourt in June 2013, she did not have a supervisor and kept
to herself. She also testified that her anxiety was “real bad” for “about a year or so” after
the June 2012 incident with her ex-boyfriend. AR at 35. Her interview with Dr. LaCourt
came within that year time period. After that period of bad anxiety, she began working
again as a courier. AR at 35-36.

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Importantly, the ALJ recognized Plaintiff’s anxiety about being around others and
incorporated a limitation on her ability to work around the public and with coworkers and
supervisors in Plaintiff’s RFC, as he limited her to “only occasional interaction with the
public, coworkers and supervisors.” AR at 17. Thus, the ALJ did not completely reject
these marked limitations,5 and the VE considered these limitations when identifying jobs
Plaintiff can perform. See, e.g., Chapo v. Astrue, 682 F.3d 1285, 1290-91 (10th Cir.
2012) (noting that where ALJ effectively rejected certain moderate and marked
limitations opined by a treating psychologist, the VE did not have the opportunity to
consider those limitations).
Substantial evidence also supports the ALJ’s rejection of a marked limitation on
Plaintiff’s ability to work without supervision, because the ALJ gave great weight to the
state agency DDS consultant, who found that Plaintiff was not significantly limited in her
ability to “sustain an ordinary routine without special supervision . . . .” AR at 18. The
ALJ noted that this opinion was consistent with the longitudinal record. AR at 18.
Included in the longitudinal record, and noted by the ALJ earlier in the decision, is the
fact that Plaintiff occasionally works as a housekeeper, apparently on her own and
without supervision. AR at 15, 43. And while the ALJ did not note the following
exchange that took place at the hearing, it is also relevant to this topic:
“Q

You were seen by a psychologist named David LaCourt back in June 2013. . . .

And he in his report talked about problem want [sic] you were having with respect to
working without supervision? Do you consider that a problem?

5

A “marked” limitation is a “[s]erious limitation[]” and signifies that a plaintiff’s ability to function
is “severely limited but not precluded . . . .” Chapo v. Astrue, 682 F.3d 1285, 1289 n.2 (10th Cir.
2012) (quotation omitted).

13

A

No.”

AR at 38. The ALJ specifically asked about Dr. LaCourt’s finding on Plaintiff’s ability to
work without supervision, and Plaintiff negated Dr. LaCourt’s opinion.
While the evidence could possibly be construed to support Plaintiff’s conclusion,
there is substantial evidence to support the ALJ’s ultimate decision, and the Court will
not displace that decision simply because there are two conflicting views. See Lax, 489
F.3d at 1084 (quotation omitted). There is no reversible error on this issue.
2.

The ALJ on remand must address and explain any moderate
limitation in Plaintiff’s ability to carry out instructions.

Plaintiff also contends that her RFC fails to account for Dr. LaCourt’s finding
regarding a moderate limitation in Plaintiff’s ability to carry out instructions due to “task
impersistence.” Doc. 20 at 9. While the Court understands the ALJ’s ultimate decision
on this matter, the ALJ failed to sufficiently explain his finding. Because the Court is
remanding for other reasons (see Section IV(B)), it also directs the ALJ to explain either
why this moderate limitation is rejected, or why the RFC incorporates the limitation.
a.

The definition of unskilled work includes the ability to
carry out simple instructions.

The Tenth Circuit has held that “a reference to ‘unskilled work’ may be construed
to incorporate the mental functions associated with unskilled work, which are ‘the
abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.’” Adkins v. Colvin, No. 14CV-01043-LTB, 2015 WL 4324564, at *10 (D. Colo. July 16, 2015), aff'd, 645 F. App’x

14

807 (10th Cir. 2016) (emphasis added) (quoting Jaramillo v. Colvin, 576 F. App’x. 870,
875 (10th Cir. 2014) (quoting SSR 85–15, 1985 WL 56857, at *4 (Jan. 1, 1985))).
The oft-cited case in this area is Jaramillo v. Colvin, 576 F. App’x 870 (10th Cir.
2014). In Jaramillo, the ALJ found the plaintiff could “perform sedentary work but was
‘limited to simple, routine, repetitive and unskilled tasks’ and had to avoid all exposure
to direct sunlight.” Jaramillo, 576 F. App’x at 872. The ALJ put “great weight” on the
consultative psychiatrist’s opinion, who found moderate limitations on the plaintiff’s
ability to “carry out instructions,” “attend and concentrate,” and “work without
supervision.” Id. The ALJ also placed “great weight” on the state agency doctor who had
reviewed the medical records (including the consultative psychiatrist’s opinion) and had
completed a Mental Residual Function Capacity Assessment (MRFCA), noting in the
Section III narrative portion that the plaintiff in that case was able to “carry out simple
instructions . . . .” Id. at 873.
The Tenth Circuit discussed SSR 85-15 and noted that “[t]he basic mental
demands of competitive, remunerative, unskilled work include the abilities (on a
sustained basis) to understand, carry out, and remember simple instructions . . . .” Id. at
875 (emphasis added) (discussing Soc. Sec. Ruling, SSR 85-15, Titles II & XVI:
Capability to do Other Work – The Medical-Vocational Rules as a Framework for
Evaluating Solely Nonexertional Impairments, at *4 (Jan. 1, 1985)). “These abilities are
examples of work-related mental functions.” Id. (citing SSR 96–8p, 1996 WL 374184, at
*6). “Therefore, a limitation to unskilled work or, as the ALJ phrased it here, ‘unskilled
tasks,’ could be used as shorthand for the specific mental abilities described in SSR 85–
15 . . . .” Id. The RFC tracked the opinion of the DDS doctor (who opined in Section III

15

that the plaintiff could carry out simple instructions), but it did not comport with the
moderate limitation the consultative psychiatrist found on the plaintiff’s ability to carry
out instructions. Id. The Tenth Circuit emphasized that the ALJ had placed great weight
on the consultative psychiatrist’s opinion but failed to explain why he did not incorporate
this particular limit into the RFC. Id.
b.

It appears that the ALJ interpreted Dr. LaCourt’s
limitation as one on carrying out simple instructions.

In deciding whether an ALJ has failed to incorporate a limitation in a plaintiff’s
ability to carry out instructions, courts discussing Jaramillo distinguish between
limitations on carrying out simple versus detailed instructions. For example, in
Shawbaker v. Colvin, 189 F. Supp. 3d 1168 (D. Kan. 2016), the ALJ limited the plaintiff
to “simple, routine and repetitive tasks consistent with unskilled work” in “a low-stress
work environment with only occasional interaction with co-workers and the public.”
Shawbaker, 189 F. Supp. 3d at 1171. In making this RFC determination, the ALJ had
“relied” upon6 the opinion of a consultative psychologist, who found that the plaintiff
there was not significantly limited in her ability to carry out very short and simple
instructions, but was moderately limited in her ability to carry out detailed instructions.
Id. at 1173.
The Shawbaker plaintiff argued that Jaramillo supported her theory that the RFC
did not reflect her mental impairments. Id. The court distinguished Jaramillo, “because
the consultant upon whom the ALJ relied found that plaintiff was less impaired than the
claimant in Jaramillo. [Ms. Shawbaker] was considered moderately limited in her ability
6

The Shawbaker court does not disclose what weight the ALJ gave the consultative
psychologist. Shawbaker, 189 F. Supp. 3d at 1172-73.

16

to carry out detailed instructions, not all instructions.” Id. (emphasis added). The court
concluded that the RFC comported with SSR 85-15 and with the Tenth Circuit’s
decision in Jaramillo. Id.
[T]he ALJ’s description of plaintiff’s RFC – i.e., that plaintiff would be
limited to simple, routine and repetitive tasks consistent with unskilled
work and that she would be precluded from production-rate job tasks but
could tolerate a low-stress work environment and only occasional
interaction with co-workers and the public – sufficiently expresses
plaintiff’s moderate limitations in carrying out detailed instructions,
maintaining attention and concentration for extended periods, and
interacting with the general public.
Id. (citing Adkins v. Colvin, 2015 WL 4324564 *10 (D. Colo. July 26, 2015) (“unskilled
work limitation adequately expresses similar mental restrictions”); Vigil v. Colvin, 805
F.3d 1199, 1203-04 (20th Cir. 2015) (“unskilled work limitation adequately accounts for
moderate limitations in concentration, persistence and pace where there was a specific
finding that the claimant had enough memory and concentration to perform simple
tasks”)).
In Whelan v. Colvin, No. CIV-15-129-R, 2016 WL 562871 (W.D. Okla. Jan. 22,
2016), R. & R. adopted, No. CIV-15-129-R, 2016 WL 593835 (W.D. Okla. Feb. 12,
2016), the court found Jaramillo inapplicable because the consultant in Whelan had
“found moderate difficulties in [the plaintiff’s] ability to understand, remember, and carry
out detailed instructions,” whereas in Jaramillo, the consultant’s opinion did “not indicate
whether the plaintiff was moderately impaired in her ability to perform work with detailed
versus complex instructions, only that the impairment existed.” Whelan, 2016 WL
562871, at *8; see also Knight v. Colvin, CIV 15-0882 KBM, 2016 WL 9489144, at *7

17

(D.N.M. Dec. 5, 2016) (noting that the psychologist in that case had not made a
“distinction . . . between simple versus complex instructions”).
Dr. LaCourt opined that Plaintiff has a moderate limitation in her ability to carry
out instructions due to “task impersistence”; he did not specify whether this means she
is limited in carrying out simple and/or detailed instructions. In fact, he did not offer any
explanation about what he meant by “task impersistence,” which is not a term that
ordinarily appears in social security regulations or relevant caselaw.
ALJ Weiss failed to explicitly recognize that Dr. LaCourt’s limitation on carrying
out instructions does not reference either simple or detailed instructions. The ALJ did
offer some discussion of his findings on Plaintiff’s ability in this area. First, in discussing
his finding that Plaintiff has moderate difficulties with respect to concentration,
persistence and pace,7 the ALJ said that Plaintiff’s “testimony that she drives as a
courier evinces her ability to concentrate and persist.” AR at 15. Nonetheless, the ALJ
expressly found Plaintiff “more limited in the area of concentration, persistence and
pace than Dr. LaCourt opined.”8 AR at 18 (emphasis added). ALJ Weiss also noted that
while the DDS consultant found a moderate limitation on Plaintiff’s ability to carry out
detailed instructions, she found no significant limitation in Plaintiff’s ability to understand
and remember very short and simple instructions. See AR at 18, 64. Further, in the
narrative explanation of the MRFC assessment, the DDS consultant explained that

7

The ability to carry out simple and/or detailed instructions is listed under the section entitled
“sustained concentration and persistence limitations” on the MFRAC form. See, i.e., AR at 64.
8

It is also important to note that ALJ Weiss gave Dr. LaCourt’s opinion only partial weight. This
is in contrast to Jaramillo, where the ALJ had given the psychiatrist’s opinion great weight, then
failed to explain why the opined moderate limitation on the plaintiff’s ability to carry out
instructions was not incorporated into the RFC. See Jaramillo, 576 F. App’x at 873, 876.

18

Plaintiff, while limited to unskilled jobs, “would be able to complete simple, routine work
related activities[,]” which necessarily includes the ability to carry out simple instructions.
AR at 66; see also SSR 85-15.
It is telling that the DDS consultants – and the ALJ in discussing the consultants’
opinions – distinguished between Plaintiff’s abilities to carry out short and simple versus
complex instructions. From the ALJ’s limited discussion, it appears that the ALJ
considered Dr. LaCourt’s nonspecific opinion regarding “task impersistence” to call for a
limitation to carrying out simple instructions only. This is only an inference, however,
and one the Court is not comfortable making. “If the Court were to affirm the ALJ’s
holding, it would have to read such an explanation, post hoc, into the ALJ’s decision.”
See Doom v. Colvin, No. CIV-15-409-R, 2016 WL 3248590, at *3 (W.D. Okla. June 13,
2016); see also See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). The
Court will remand for further analysis of this issue and asks the ALJ to explicitly discuss
this moderate limitation and Plaintiff’s limitations on carrying out both simple and
detailed instructions.
B.

The ALJ did not adequately account for the DDS consultants’
opinions on Plaintiff’s moderate limitation regarding interruptions
from psychological symptoms.

Plaintiff next argues the ALJ did not account for two moderate limitations that the
DDS consultants found “in the areas of completing a workday without interruptions from
psychological symptoms, and performing at a consistent pace without an unreasonable
number and length of rest periods.” Doc. 20 at 11 (citing AR at 65). Plaintiff proffers that
“these limitations are consistent with Dr. LaCourt’s finding of a moderate limitation from
‘task impersistence.’” See id. The Court agrees that the limitation in performing at a

19

consistent pace is very similar to the limitation regarding “task impersistence,” and the
Court will ask the ALJ to address this limitation for the reasoning described above in
Section IV(A)(2).
The Court also agrees that ALJ Weiss failed to account for the remaining
moderate limitation regarding interruptions from psychological symptoms. Here, the
DDS consultants both indicated a moderate limitation in this area and specified in the
MRFC narrative portion that Plaintiff “would experience occasional interruptions in her
workweek due to feelings of anxiety.” AR at 66, 95 (emphasis added). See Smith v.
Colvin, 821 F.3d 1264, 1269 n.2 (10th Cir. 2016) (instructing courts to examine the
MRFC narrative, not simply the “notations of moderate limitations”).
The mental abilities needed for any job include “the ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest
periods.” Social Security Program Operations Manual System (“POMS”) § DI
25020.010, http://policy.ssa.gov/poms.nsf/lnx/0425020010 (emphasis added) (quoted in
Ellis v. Berryhill, 2:15-CV-00917-LF, 2017 WL 3084467, at *5 (D.N.M. July 19, 2017)).
“These requirements are usually strict.” Id. The Court finds the facts here are analogous
to those in Ellis v. Berryhill, where the non-examining state agency psychological
consultant also noted the plaintiff would have “occasional interruptions from
psychological symptoms,” among other limits. Ellis, 2017 WL 3084467, at *4. The court
found that because the “ability to complete a normal workday and workweek without
psychologically based interruptions . . . is a general requirement for all jobs, the ALJ”
erred in failing to address the limitation in determining the plaintiff’s RFC. Id. at *5 (citing

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Bowers v. Astrue, 271 F. App’x 731, 733-34 (10th Cir. 2008)). While the Court observes
that Plaintiff’s mental limitations have improved since the DDS consultants’ formulated
their opinions, the ALJ did not specifically discuss this limitation in his decision. Because
“this court may not create or adopt post-hoc rationalizations to support the ALJ’s
decision that are not apparent from the ALJ’s decision itself[,]” it must grant Plaintiff’s
Motion on this issue and remand for clarification. See Haga, 482 F.3d at 1207-08
(citations omitted).
C.

The ALJ’s past work and credibility findings were adequate, but the
ALJ should address any inconsistency between Plaintiff’s RFC and
the level-two reasoning requirement regarding “detailed but
uninvolved” instructions.

Plaintiff argues that the ALJ’s past work finding is unsupported by substantial
evidence because he: (1) incorrectly omitted several limitations from her RFC finding,
(2) made an improper credibility finding, and (3) failed to make appropriate findings
regarding the demands of her past work and whether she may now meet those
demands. Doc. 20 at 11-12.
1.

The Plaintiff has waived any argument about the ALJ’s RFC
determination regarding her headaches and manipulative
impairment.

Plaintiff contends that ALJ Weiss failed to consider the limiting effects of her
headaches and manipulative impairment. Id. at 12-15. Plaintiff summarizes the record
evidence and makes the brief and conclusory argument that the “ALJ failed to weigh the
medical opinions properly, . . . because she [sic] failed to recognize and analyze the
medical records that support the findings of the limitations.” Doc. 20 at 13; see also id.

21

at 13-15. Yet Plaintiff fails to present any kind of analysis or authority to support her
argument.
The Court notes that the ALJ discussed both of these impairments in his
decision. AR at 14. He cited to numerous medical records and discussed Plaintiff’s
hearing testimony. AR at 14 (citing AR at 263-64, 285, 303, 305, 309, 371, 376, 380-81,
392); see also AR at 31-36; 227. Without developing her arguments on this issue, the
Court is left to assume that she is simply offering another possible view of the evidence.
The Court declines to second-guess the ALJ’s decision and will deny Plaintiff’s Motion
on this issue.
2.

The ALJ’s credibility finding stands.

Plaintiff argues that ALJ Weiss erred when he “concluded that [Plaintiff’s] reports
of symptoms were not credible because ‘it does not appear that she has sought
treatment.’” Doc. 20 at 15 (quoting AR at 19). Plaintiff also takes issue with the ALJ’s
failure to request certain medical records. Id. at 16.
Plaintiff contends it was error for ALJ Weiss to question her credibility when he
“referred twice in his decision to the lack of medical records.” Doc. 20 at 16. Plaintiff
cites Tenth Circuit authority for the proposition that “consideration of the amount of
treatment received by a claimant does not play a role in [the] determination” of the
severity of a mental impairment. Doc. 20 at 15 (quoting Grotendorst v. Astrue, 370 F.
App’x 879, 883 (10th Cir. 2010) (alteration in original)).
“When a claimant establishes a medically determinable physical or mental
impairment that could reasonably be expected to produce the symptoms complained of,
the ALJ must evaluate the intensity, persistence, and functionally limiting effects of the

22

symptoms to determine the extent to which the symptoms affect the claimant’s capacity
for work.” Holcomb v. Astrue, 389 F. App’x 757, 760 (10th Cir. 2010) (citing 20 C.F.R.
§§ 404.1529(c), 404.929(c)). “To do this, the ALJ must make a finding about the
credibility of the claimant’s statements regarding the symptoms and their functional
effects.” Id. (citing Soc. Sec. Ruling, SSR 96-7p, Titles II & XVI: Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996 WL
374186, at *1 (July 2, 1996)). “Credibility determinations are peculiarly the province of
the finder of fact, and we will not upset such determinations when supported by
substantial evidence.” Id. (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(internal quotation omitted)). “[F]indings with respect to a claimant’s credibility ‘should
be closely and affirmatively linked to substantial evidence and not just a conclusion in
the guise of findings.’” Id. (quoting Hardman v. Barnhart, 362 F.3d 676, 678-79 (10th
Cir. 2004) (internal quotation omitted)).
The Court agrees that it would be improper for the ALJ to have determined
Plaintiff’s credibility solely on the lack of medical records. The Court finds, however, that
ALJ Weiss was not simply basing his credibility determination on a lack of treatment
records; rather, he was commenting on the fact that her claims of the severity of her
impairments are inconsistent with the record evidence. See AR at 19. The ALJ also
noted that Plaintiff’s mental impairments have shown improvement to the point that she
is able to maintain a part time job. AR at 19. The Court finds ALJ Weiss’s credibility
finding is sufficiently linked to substantial evidence and will deny Plaintiff’s Motion on
this issue.

23

Plaintiff also contends the ALJ erred by failing to request specific medical
records. Doc. 20 at 16. In his decision, the ALJ noted that Plaintiff reported to Dr.
LaCourt that she was “voluntarily hospitalized a couple of months prior to the
examination because she thought someone was after her, although no such report
appears in the record.” AR at 17 (citing AR at 401). Plaintiff argues that her 2012
hospitalization is evidence that she has a disorder not considered by the ALJ – stress
disorder.9 Doc. 20 at 16-19.
“The burden to prove disability in a social security case is on the claimant, and to
meet this burden, the claimant must furnish medical and other evidence of the existence
of the disability.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 (1987)). “A social security disability hearing is
nonadversarial, however, and the ALJ bears responsibility for ensuring that ‘an
adequate record is developed during the disability hearing consistent with the issues
raised.’” Id. (quoting Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359, 36061 (10th Cir. 1993) (internal citation omitted)). “As a result, ‘[a]n ALJ has the duty to
develop the record by obtaining pertinent, available medical records which come to his
attention during the course of the hearing.’” Id. (quoting Carter v. Chater, 73 F.3d 1019,
1022 (10th Cir. 1996) (internal citations omitted)). “Nonetheless, in cases such as this
one where the claimant was represented by counsel at the hearing before the ALJ, ‘the
ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure and
present claimant’s case in a way that the claimant’s claims are adequately explored,’

9

The ALJ did mention that Plaintiff was “assessed with substance induced psychotic disorder
(meth) and acute stress disorder” as a result of her July 2012 emergency psychiatric stay. AR at
16.

24

and the ALJ ‘may ordinarily require counsel to identify the issue or issues requiring
further development.’” Id. (quoting Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir.
1997) (internal citation omitted)).
At the hearing, the ALJ asked Plaintiff’s counsel, Mr. Harris, if he had a chance to
review the record, and if he had other exhibits to offer. AR at 29-30. Mr. Harris
answered in the negative. AR at 30. The ALJ noted that he “was previously informed
that [Mr. Harris was] going to be requesting additional medical records from a Dr. Rios
covering the 2014 time frame and possibly some physical therapy records.” AR at 30.
Notably, Mr. Harris never raised the issue of an alleged “stress disorder,” nor did he
mention the missing hospitalization record. The ALJ was entitled to rely on Plaintiff’s
counsel, who had presumably seen the same note in Dr. LaCourt’s opinion.
The Court does not agree that the ALJ erred in failing to request this record.
Because the Court is remanding the case, however, the Court will direct the ALJ to
consider this additional medical record if Plaintiff can produce it. It is Plaintiff’s burden,
however, to locate and submit the record.
3.

The ALJ’s decision adequately accounted for how Plaintiff
performed her past relevant work.

Plaintiff argues that the ALJ committed error in failing to ask Plaintiff how she
performed her past relevant work. Doc. 20 at 19-21 (citing Wells v. Colvin, 727 F.3d
1061, 1075 (10th Cir. 2013) (“detailed information about . . . mental demands [of past
relevant work] . . . must be obtained as appropriate”) (internal quotation omitted)). To
the extent Plaintiff references her earlier arguments regarding the alleged marked
limitations in task impersistence, working without supervision, and working with

25

supervisors (see Doc. 20 at 19), the Court has already found that substantial evidence
supported the ALJ’s findings on these limitations. Otherwise, Plaintiff “makes no specific
argument concerning sufficiency of the evidence to support the ALJ’s finding that she
can meet the demands of her past relevant work. Instead, she targets the ALJ’s alleged
failure to” determine how Plaintiff performed her past work. See Doyal, 331 F.3d at 760.
See also Doc. 20 at 19-20.
The Court disagrees and finds that the question of how Plaintiff performed her
past work was adequately explored at the hearing by both Plaintiff’s attorney and the
ALJ. For example, Mr. Harris asked her if she leaves work when she gets a headache.
AR at 33. Plaintiff responded that rather than leaving, she sits down and relaxes. AR at
33. Mr. Harris followed up, “[b]ut if it lasted several hours, would you be able to [work?]”
Plaintiff answered, “I’ll still work, but it hurts. You know usually when I’m driving, . . . I
just rock is what I do.” 10 AR at 33. He asked Plaintiff about the number of hours she
works and how long she has been working, her job duties as a courier, and what was
difficult for her as a housekeeper. AR at 34-35. Mr. Harris then asked Plaintiff again
about how she handles headaches while driving as a courier. AR at 36. Later, Mr. Harris
asked about Plaintiff’s anxiety relative to coworkers, supervisors, and crowds, and he
asked her how she deals with panic attacks, particularly during deliveries. AR at 38-40.
ALJ Weiss then asked questions about her past relevant work: he elicited
testimony on what she delivers, the weight of her deliveries, how long she drives, and
what she does during a delivery (AR at 40-41), her work as a pastry chef and a
10

Plaintiff points out one particular alleged deficiency, in that she testified that if her employer
asks her to work when she has a headache, she will decline. Doc. 20 at 20 (citing AR at 34). But
as the testimony above shows, Plaintiff also testified that she will work through a headache if
she gets one when she is already at work.

26

cashier/stocker at a gas station (AR at 41-42), and her work as a house cleaner,
including when she last did a house cleaning job, and what her duties were (AR at 4243). The ALJ also asked her, with respect to her courier job, to what extent she comes
into contact with people (“all the time”) and coworkers (“I don’t see them”), and asked if
she has problems working with people (“No, because everybody says I always have a
smile on my face”). AR at 45. Plaintiff’s attorney then followed up with more questions
about her ability to work full-time (AR at 45-46), additional questions about long-term
deliveries (AR at 46-47), and her feelings about being around strangers (AR at 47). The
line of questioning at the hearing was sufficient to establish how Plaintiff performed her
past work.
Plaintiff next argues that it was error for the ALJ to rely “on the VE testimony that
[Plaintiff] could work ‘as [she] performed the jobs and as they are generally
performed[,]’” because the VE testimony was “not at all clear on this issue.” Doc. 20 at
19 (quoting AR at 19). Plaintiff further asserts that “the VE did not testify that he had
reviewed the information in the file regarding how [Plaintiff] actually performed the jobs.”
Doc. 20 at 20. After Plaintiff’s testimony concluded, the ALJ asked the VE if he had
“read and listened to the claimant’s testimony regarding work history[,]” which the VE
answered in the affirmative. AR at 48 (emphasis added). That the VE testified he had
“read” about Plaintiff’s work history is satisfactory.
The ALJ then specified Plaintiff’s nonexertional limitations and asked if she could
perform her past work; the VE said she could be a housekeeper or a courier. AR at 49.
The ALJ asked if the VE’s testimony was “consistent with the DOT[,]” and the VE
affirmed it was. AR at 51. The ALJ further inquired if Plaintiff was “off-task 15 percent of

27

the eight-hour workday including normal breaks, could [she] perform her past work . . . .”
AR at 51. The VE responded that Plaintiff could still perform the courier job, but not the
housekeeper job. AR at 51. Finally, the ALJ asked if Plaintiff’s “prior work as [the VE]
classif[ied] it, was that performed and as found in the DOT?” AR at 51-52. The VE
answered, “Yes, Your Honor. They’re one in the same.” AR at 52. In his decision, the
ALJ noted the VE testified that “a person with [Plaintiff’s RFC] could perform any of [her]
past relevant work . . . as [she] performed the jobs and as they are generally
performed.” AR at 19. The Court finds that the VE had sufficient information to formulate
an opinion on Plaintiff’s abilities, and the ALJ properly relied on the VE’s testimony. The
Court will deny Plaintiff’s Motion on this issue.
4.

The ALJ should address the inconsistency between the VE
testimony and the DOT.

Finally, Plaintiff contends that ALJ Weiss “failed to reconcile inconsistencies in
the VE testimony with information in the Dictionary of Occupational Titles” (DOT), in that
the reasoning level of deliverer/courier is not consistent with the ALJ’s finding that
Plaintiff is limited to simple work. Doc. 20 at 21. The Tenth Circuit has held “that the 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); see also Soc. Sec. Ruling, SSR 00-4p, Policy Interpretation
Ruling: Titles II & XVI: Use of Vocational Expert & Vocational Specialist Evidence, &
Other Reliable Occupational Information in Disability Decisions, 2000 WL 1898704, at
*2 (Dec. 4, 2000). This is an “affirmative responsibility” in which the adjudicator must

28

both “[a]sk the VE . . . if the evidence he or she has provided conflicts with the
information provided in the DOT; and [i]f the VE’s . . . evidence appears to conflict with
the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.”
SSR 00-4p, 2000 WL 1898704, at *4.
The Tenth Circuit extended these principles to General Educational Development
(GED) reasoning levels in Hackett, 395 F.3d at 1176. GED “embraces those aspects of
education (formal and informal) which are required of the worker for satisfactory job
performance.” DOT, Appx. C, Components of the Definition Trailer, 1991 WL 688702
(Jan. 1, 2016). “The GED Scale is composed of three divisions: Reasoning
Development, Mathematical Development, and Language Development.” Id. At issue
here is the Reasoning Development division, which has six defined levels, with one
representing the lowest level and six representing the highest. Id.
Plaintiff argues that the deliverer/courier job, with a reasoning level of two, is
inconsistent with Plaintiff’s RFC limitation to simple, routine, and repetitive tasks.
Doc. 20 at 21. A reasoning level of two requires a worker to: “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.” 1991
WL 688702. As Plaintiff points out, the fact that reasoning level two requires an
understanding of “detailed but uninvolved” instructions, see id., seems to conflict with
Plaintiff’s RFC, which limits her to “simple, routine and repetitive tasks” and to making
“simple work related decisions . . . .” See AR at 17. Because the Court is remanding this
case for other reasons, the ALJ should also address any inconsistency between
Plaintiff’s RFC and the requirement for an understanding of “detailed but uninvolved”

29

instructions in the level-two reasoning deliverer/courier job identified as appropriate for
her. See Hackett, 395 F.3d at 1176.
V.

Conclusion

The Court finds that this case should be remanded for the ALJ to address the
following: (1) address Dr. LaCourt’s finding of a moderate limitation on Plaintiff’s ability
to carry out instructions due to task impersistence; (2) address the DDS consultants’
opinions on Plaintiff’s moderate limitation regarding interruptions from psychological
symptoms; and (3) address any inconsistency between Plaintiff’s RFC and the
requirement for an understanding of “detailed but uninvolved” instructions in the leveltwo reasoning deliverer/courier job identified as appropriate for her. If Plaintiff produces
the missing 2012 hospitalization record referred to in Section IV(C)(2), the ALJ should
consider it as part of the record.
Wherefore,
IT IS ORDERED that Plaintiff’s Motion to Reverse and Remand for a Rehearing,
with Supporting Memorandum (Doc. 20) is granted. A final order pursuant to Rule 58 of
the Federal Rules of Civil Procedure will enter concurrently herewith.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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