Brookbank v. Social Security Administration
ORDER denying 16 Motion to Remand to Agency by Magistrate Judge Carmen E. Garza. (jrt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DIANA L. BROOKBANK,
No. CV 17-142 CG
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Diana L. Brookbank’s Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum (the “Motion”),
(Doc. 16), filed August 21, 2017; Defendant Commissioner Nancy A. Berryhill’s Brief in
Response to Plaintiff’s Motion to Reverse and Remand the Agency’s Administrative
Decision (the “Response”), (Doc. 18), filed October 19, 2017; and Plaintiff’s Reply in
Support of Plaintiff’s Motion to Reverse and Remand for a Rehearing with Supportive
Memorandum, (Doc. 19), filed November 2, 2017.
On March 25, 2013, Ms. Brookbank applied for disability insurance benefits and
supplemental security income claiming disability beginning August 8, 2008.
(Administrative Record “AR” 208-18). In both applications, Ms. Brookbank claimed posttraumatic stress disorder, depression, anxiety, and obsessive compulsive disorder
limited her ability to work. (AR 76, 89). Ms. Brookbank’s applications were denied
initially on August 27, 2013, (AR 76-101), and on reconsideration on October 17, 2013,
(AR 104-31). Ms. Brookbank requested a hearing before an Administrate Law Judge
(“ALJ”), (AR 149-51), which was granted, and a hearing was held on September 25,
2015 before ALJ Lillian Richter, (AR 37-75). Ms. Brookbank represented herself and
testified at the hearing, and Leslie J. White, an impartial vocational expert (“VE”), also
testified. (AR 33-34).
On November 9, 2015, ALJ Richter issued her decision finding Ms. Brookbank
not disabled at any time from her alleged onset date through the date of the decision.
(AR 32). Ms. Brookbank requested review by the Appeals Council, (AR 16), which was
denied, (AR 5-8), making the ALJ’s decision the Commissioner’s final decision for
purposes of this appeal.
Ms. Brookbank has appealed the ALJ’s decision, arguing the ALJ committed
reversible error by failing to resolve a conflict between the VE’s testimony and the
Dictionary of Occupational Titles (“DOT”). (Doc. 16 at 1). The Court has reviewed the
Motion, the Response, the Reply, and the relevant law. Additionally, the Court has
meticulously reviewed the administrative record. Because the ALJ did not err in failing to
resolve any conflict, the Court finds Ms. Brookbank’s application should be DENIED.
Standard of Review
The standard of review in a Social Security appeal is whether the
Commissioner’s final decision is supported by substantial evidence and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.
1992). If substantial evidence supports the Commissioner’s findings and the correct
legal standards were applied, the Commissioner’s decision stands and the plaintiff is not
entitled to relief. 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). The ALJ’s failure to apply the correct legal standards or demonstrate
that he has done so is grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019
(10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A
court should meticulously review the entire record but should neither re-weigh the
evidence nor substitute its judgment for the Commissioner’s. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court’s review is limited to the Commissioner’s final
decision, 42 U.S.C. § 405(g), which is generally the ALJ’s decision, rather than the
Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. 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.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record must include “anything that may undercut or detract from the
ALJ’s findings in order to determine if the substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ]’s findings from
being supported by substantial evidence.” 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)).
Applicable Law and Sequential Evaluation Process
For purposes of supplemental security income, a claimant establishes a disability
when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A)
(2004); 20 C.F.R. § 416.905(a). In order to determine whether a claimant is disabled,
the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920.
At the first four steps of the SEP, the claimant bears the burden of showing: (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 either (3) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i–iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant
cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant is able to perform other
work in the national economy, considering the claimant’s RFC, age, education, and
work experience. Grogan, 399 F.3d at 1261.
Ms. Brookbank applied for supplemental security income and disability insurance
benefits claiming post-traumatic stress disorder, anxiety, depression, and obsessive
compulsive disorder limited her ability her work. (AR 76, 89). At step one, the ALJ found
Ms. Brookbank had not engaged in substantial gainful activity since her alleged onset
date. (AR 23). At step two, the ALJ determined Ms. Brookbank has three severe
20 C.F.R. pt. 404, subpt. P, app. 1.
impairments: an anxiety related disorder, an affective disorder, and a substance
dependence disorder. Id. At step three, the ALJ found Ms. Brookbank’s impairments do
not, either singly or in combination, meet or medically equal the severity of a Listed
impairment. (AR 25).
At step four, the ALJ found that Ms. Brookbank 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 performing simple, routine, and repetitive
tasks; she is unable to work in close proximity with others without becoming distracted
from work tasks; she cannot work at production pace but can meet end-of-day goals;
she can interact frequently with supervisors and the public, but can only interact
occasionally with coworkers; and she can tolerate few changes in the routine work
setting. (AR 26). The ALJ based this RFC on her review of Ms. Brookbank’s selfreported symptoms and the medical evidence in the record. (AR 26-30).
Proceeding to step five, the ALJ determined that Ms. Brookbank has no past
relevant work, qualifies as an individual closely approaching advanced age, has a high
school education, and is able to communicate in English. (AR 31). At the hearing, the
VE testified that an individual with Ms. Brookbank’s qualifications and RFC could
perform the jobs of waitress, laundry attendant, shipping and receiving weigher, hand
packager, and ticket taker, as those jobs are defined in the DOT. (AR 71-73). Based on
the VE’s testimony, the ALJ concluded that Ms. Brookbank can perform jobs existing in
significant numbers in the national economy. Id. at 31-32. Accordingly, the ALJ held that
Ms. Brookbank was not disabled from her alleged onset date through the date of her
In her Motion, Ms. Brookbank asserts that the VE’s testimony conflicted with the
DOT and that the ALJ failed to resolve the conflict. As discussed, the VE testified Ms.
Brookbank can perform five jobs as the DOT defines them. The DOT defines
occupations, in part, by the “reasoning development level” or “reasoning level” required
to perform the occupation. (Doc. 18 at 5). Reasoning levels describe a job’s
requirements regarding understanding instructions and dealing with variables. They
range from level one to level six, with one being the simplest and six the most complex.
Three of the jobs the VE identified require reasoning level three, while the other
two require reasoning level two. Level three reasoning requires the ability to “[a]pply
commonsense understanding to carry out written, oral, or diagrammatic” instructions
and “[d]eal with problems involving several concrete variables in or from standardized
situations.” Id. Reasoning level two requires applying commonsense understanding to
written and oral (but not diagrammatic) instructions and dealing with problems involving
few (rather than several) concrete variables. Id. Ms. Brookbank argues that her
limitation to simple, routine, and repetitive tasks is inconsistent with both reasoning
levels two and three. (Doc. 16 at 2-16). Therefore, she argues the VE’s testimony that
she can perform those jobs conflicts with the DOT.
In Response, the Commissioner concedes that the DOT and the VE’s testimony
conflict as to the level three reasoning jobs. (Doc. 19 at 5). But, the Commissioner
argues the VE’s testimony does not conflict as to the remaining level two reasoning
jobs, hand packager and ticket taker. Id. The Commissioner maintains that the ALJ’s
error is harmless because Ms. Brookbank can work as a hand packager or ticket taker,
and those jobs exist in significant numbers in the national economy. Id. at 7.
In her Reply, Ms. Brookbank insists that, given her RFC, she is incapable of
performing any of the jobs the VE identified. She states that, on the contrary, she is
limited to jobs with reasoning level one, which requires the ability to understand and
follow simple one- or two-step instructions. (Doc. 19 at 5). She does not contest the
Commissioner’s assertion that hand packager and ticket taker exist in significant
numbers in the national economy.
At step five of the SEP, the ALJ must “investigate and elicit a reasonable
explanation for any conflict” between the DOT and a VE’s testimony. Haddock v. Apfel,
196 F.3d 1084, 1091 (10th Cir. 1999). In Hackett v. Barnhart, the Tenth Circuit held that
a limitation to “simple and routine work tasks” “seems inconsistent with the demands of
level-three reasoning” and “appears more consistent” with level-two reasoning. 395 F.3d
1168, 1176. Courts have consistently relied on Hackett in finding a conflict between a
limitation to “simple” tasks and jobs with reasoning level three. See, e.g., Paulek v.
Colvin, 662 Fed. Appx. 588, 594 (10th Cir. 2016) (unpublished). Additionally, in Stokes
v. Astrue, the Tenth Circuit stated that a limitation to simple, repetitive, and routine work
“is consistent with the demands of level-two reasoning.” 274 Fed. Appx. 675, 684 (10th
Cir. 2008) (unpublished). The Stokes court rejected the claimant’s argument that a
limitation to “simple, repetitive, and routine work should be construed as a limitation to
jobs with reasoning level-rating of one.” Id.
This Court has reached different conclusions regarding reasoning level two
depending on the circumstances. In two cases, the Court has held that a limitation to
understanding, remembering, and carrying out simple instructions did not conflict with
level-two reasoning. Kerr v. Berryhill, 2017 WL 3531506, at *13-14 (D.N.M. Aug. 16,
2017) (unpublished); Parrish v. Berryhill, 2017 WL 2491526, at *3, 8-9 (D.N.M. Apr. 12,
2017) (unpublished). In Flores v. Berryhill, the Court held that the ALJ failed to resolve a
conflict between the VE’s testimony and the DOT because the claimant had limited
English skills. 2017 WL 3149353, at *5-9 (D.N.M. June 2, 2017) (unpublished). The
Court found the claimant’s limited ability to speak and inability to read English affected
his ability to perform jobs with level-two reasoning. Id. at *7. Finally, the Court has held
that a limitation to “very simple instructions” was inconsistent with reasoning level two
and seemed more consistent with reasoning level one. Collins v. Colvin, No. CV 14-864
CG, (Doc. 28 at 28).
In this case, the ALJ limited Ms. Brookbank to performing simple, routine, and
repetitive tasks and found Ms. Brookbank unable to work in close proximity with others
without becoming distracted from work tasks; unable to work at production pace but
able to meet end-of-day goals; able to interact frequently with supervisors and the
public, but only occasionally with coworkers; and able to tolerate only few changes in
her routine work setting. (AR 22). Reasoning level two requires carrying out “detailed
but uninvolved written or oral instructions” and dealing with “a few concrete variables in
or from standardized situations.” (Doc. 18 at 6). Pursuant to Hackett and Stokes, Ms.
Brookbank’s limitations do not inherently conflict with reasoning level two. Hackett, 395
F.3d at 1176; Stokes, 274 Fed. Appx. at 684.
Ms. Brookbank also has other nonexertional limitations, but they do not relate to
her ability to apply commonsense understanding, follow instructions, or deal with
variables. Instead, they relate to her work environment. For example, Ms. Brookbank is
unable to work in close proximity with others without becoming distracted and cannot
keep production pace. These restrictions are different than the restrictions in Collins and
Flores. In Flores, the Court remanded to clarify whether the claimant could understand
and carry out instructions that were “presumably in English.” 2017 WL 3149353, at *5-9.
In Collins, the claimant was explicitly limited to following “very simple instructions,”
which conflicts with “detailed but uncomplicated instructions.” No. CV 14-864 CG, (Doc.
28 at 28). Although Ms. Brookbank insists her limitation to simple tasks is only
consistent with level one reasoning, the Tenth Circuit explicitly rejected that argument in
Stokes. 274 Fed. Appx. at 684. The Court therefore finds that the VE’s testimony that
Ms. Brookbank can perform reasoning level two jobs does not conflict with the DOT.
For the foregoing reasons, the Court finds that the VE’s testimony did not conflict
with the DOT as to reasoning level two jobs. The ALJ’s error regarding reasoning level
three jobs was harmless because the remaining reasoning level two jobs exist in
significant numbers in the national economy. IT IS THEREFORE ORDERED that Ms.
Brookbank’s Motion to Reverse and Remand for a Rehearing with Supporting
Memorandum, (Doc. 16), is DENIED.
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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