Greer v. Social Security Administration

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa granting 19 MOTION to Remand to Agency Opening Brief with Supporting Memorandum. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RANDALL SCOTT GREER,
Plaintiff,
vs.

Civ. No. 18-224 KK

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER1
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 13) filed May 8, 2018, in support of Plaintiff Randall Scott Greer’s (“Plaintiff”) Complaint
(Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim
for Title XVI supplemental security income benefits. On July 20, 2018, Plaintiff filed his Motion
to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). (Doc. 19.)
The Commissioner filed a Response in opposition on September 6, 2018 (Doc. 21), and Plaintiff
filed a Reply on September 28, 2018. (Doc. 22.) The Court has jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously
reviewed the entire record and the applicable law and being fully advised in the premises, the Court
finds that remand is necessary, and the Motion is therefore GRANTED.

1

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Doc. 13.)

I. Background and Procedural Record
Claimant Randall Scott Greer (“Mr. Greer”) alleges that he became disabled on May 30,
2003, at the age of forty because of MRSA and depression.2 (Tr. 220, 224.3) Mr. Greer completed
high school in 1981, and has worked as a page attendant and administrative assistant for the State
of New Mexico. (Tr. 225.) Mr. Greer reported he initially stopped working “for other reasons,”
but that his conditions became severe enough to keep him from working since November 11, 2011.
(Tr. 224.)
On April 11, 2014, Mr. Greer protectively filed an application for Supplemental Security
Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq.

(Tr. 18, 191-96.)

Mr. Greer’s application was initially denied on August 26, 2014. (Tr. 84-92, 93, 122-25.) It was
denied again at reconsideration on March 4, 2015. (Tr. 104-16, 117, 129-30.) On March 30, 2015,
Mr. Greer requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 132-33.) ALJ
James Linehan conducted a hearing on January 11, 2017. (Tr. 40-73.) Mr. Greer appeared in
person at the hearing with attorney representative Jonathan Woods.4 (Id.) The ALJ took testimony
from Mr. Greer (Tr. 43-66), and an impartial vocational expert (“VE”), Melissa Brassfield (Tr. 6672). On February 10, 2017, ALJ Linehan issued an unfavorable decision. (Tr. 15-31.) On
January 8, 2018, the Appeals Council issued its decision denying Mr. Greer’s request for review
and upholding the ALJ’s final decision. (Tr. 1-6.) On March 8, 2018, Mr. Greer timely filed a
Complaint seeking judicial review of the Commissioner’s final decision. (Doc. 1.)

2

Mr. Greer initially filed Title II and Title XVI claims. (Tr. 189-90, 191-96.) However, Mr. Greer waived his Title II
claim at the Administrative Hearing. (Tr. 42.) There is no retroactivity for Title XVI payments. Therefore, the earliest
possible established onset date in a Title XVI claim is the application filing date or protective filing date. See POMS
DI 25501.370.A.1. – The Established Onset Date for Title XVI Claims.
3

Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 13) that was lodged with the Court on
May 8, 2018.
4

Mr. Greer is represented in this proceeding by Attorney William S. Rode. (Doc. 1.)

2

II. Applicable Law
A.

Disability Determination Process

An individual is considered disabled if he 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) (pertaining to disability insurance benefits);
see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits
for adult individuals). The Social Security Commissioner has adopted the familiar five-step
sequential analysis to determine whether a person satisfies the statutory criteria as follows:
(1)

At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”5 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his medical condition.

(2)

At step two, the ALJ must determine the severity of the claimed physical or
mental impairment(s). If the claimant does not have an impairment(s) or
combination of impairments that is severe and meets the duration
requirement, he is not disabled.

(3)

At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.

(4)

If, however, the claimant’s impairments do not meet or equal in severity
one of the listing described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform his “past relevant
work.” Answering this question involves three phases. Winfrey v. Chater,
92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the
relevant medical and other evidence and determines what is “the most
[claimant] can still do despite [his physical and mental] limitations.” 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3).
Second, the ALJ determines the physical and mental demands of claimant’s

5

Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less, get paid
less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity that you do
for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).

3

past work. Third, the ALJ determines whether, given claimant’s RFC, the
claimant is capable of meeting those demands. A claimant who is capable
of returning to past relevant work is not disabled.
(5)

If the claimant does not have the RFC to perform his past relevant work, the
Commissioner, at step five, must show that the claimant is able to perform
other work in the national economy, considering the claimant’s RFC, age,
education, and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is deemed
not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the
initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert,
482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to
the Commissioner at step five to show that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is disabled or not disabled at any point in the
five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health & Human
Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.

Standard of Review

This Court must affirm the Commissioner’s denial of social security benefits unless (1) the
decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal
standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at
800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor
substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th
Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence

4

. . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at
1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in
the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan,
966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a
sufficient basis to determine that appropriate legal principles have been followed.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to
discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the
evidence,” and “the [ALJ’s] reasons for finding a claimant not disabled” must be “articulated with
sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
III. Analysis
The ALJ made his decision that Mr. Greer was not disabled at step five of the sequential
evaluation. (Tr. 29-31.) Specifically, the ALJ determined that Mr. Greer had not engaged in
substantial gainful activity since May 30, 2003, his alleged onset date.6 (Tr. 20.) He found that
Mr. Greer had severe impairments of arthralgia, anxiety, depression, and posttraumatic stress
disorder (PTSD). (Id.) The ALJ also found that Mr. Greer had nonsevere impairments of a history
of MRSA, alcohol abuse disorder, hypertension, sleep apnea, anemia, and hearing loss. (Tr. 21.)
The ALJ determined, however, that Mr. Greer’s impairments did not meet or equal in severity one
the listings described in Appendix 1 of the regulations. (Tr. 21-23.) As a result, the ALJ proceeded
to step four and found that Mr. Greer had the residual functional capacity to
lift 20 pounds . . . occasionally . . . and carry 10 pounds frequently. The claimant
can stand and walk alternatively for 2 hours each activity out of 8 hours per day
with sitting occurring intermittently throughout the remaining 6 hours of the day.
The claimant can reach, push and pull with upper extremities up to 8 hours per
8-hour day. The claimant can use hands for grasping, holding and turning objects
up to 8 hours per 8-hour day. The claimant can climb, stoop, kneel, crouch, crawl
6

See fn. 2, supra.

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and balance up to 6 hours per 8-hour day. In addition, claimant is limited to work
that is of SVP level 2 or less as defined in the DOT with a limited ability to apply
common sense understanding to remember and carry out very short and simple
written or oral instructions, and can make simple work-related decisions with
occasional interaction with supervisors, co-workers and general public.
(Tr. 23.) The ALJ further concluded at step four that Mr. Greer had no past relevant work. (Tr. 29.)
At step five, the ALJ determined that based on Mr. Greer’s age, education, work experience, RFC,
and the testimony of the VE, there were jobs that existed in significant numbers in the national
economy that Mr. Greer could perform. (Tr. 29-30.)
In support of his Motion, Mr. Greer argues that (1) the ALJ failed to properly account for
the medical opinion of treating physician Dr. Patricia Carbajal, M.D.; (2) that the ALJ failed to
articulate appropriate reasons for rejecting the medical opinions of PA-C Matthew Fitch and CNP
Cheryl Brubaker; and (3) that the ALJ failed to resolve a conflict between the DOT and the VE
testimony regarding the reasoning level requirements of the jobs identified, and that after
eliminating two of the three jobs identified that conflict with the RFC, the resulting number of jobs
is so low that it requires a Trimiar analysis. (Doc. 19 at 11-25.)
For the reasons discussed below, the Court finds (1) the ALJ provided appropriate
explanations that are supported by substantial evidence for the weight he accorded the medical
source opinions; (2) the ALJ failed to resolve the conflict between the VE testimony and DOT
regarding the reasoning level requirements of the jobs identified; and (3) that the ALJ’s step five
error is not harmless. As such, this case requires remand to determine whether significant jobs
exist in the national economy that Mr. Greer can perform.

6

A.

The ALJ Provided Appropriate Explanations That Are Supported By
Substantial Evidence For the Weight He Accorded to the Medical
Sources Opinions

The Administrative Record contains forty-eight treatment notes from ABQ Health Partners
from June 11, 2014, through November 7, 2016, related to Mr. Greer’s medical care. (Tr. 463575, 710-16, 885-1001.) On June 11, 2014, Mr. Greer presented with complaints of hypertension,
left elbow pain, depression, anxiety and alcohol abuse.7 (Tr. 505-10.) Over the course of the next
two years, Mr. Greer sought and received treatment for, inter alia, chest pain, hyperlipidemia,
hearing loss, vision changes, low back pain, MRSA follow-up, basal cell carcinoma, skin rashes,
gout, sleep apnea, and diverticulosis. (Tr. 463-575, 710-16, 885-1001.) Mr. Greer received most
of his medical care at ABQ Health Partners where he was cared for by numerous healthcare
professionals, with PA-C Matthew Fitch being his most frequent provider.8 In December 2016,
three of these providers, Patricia Carabajal, M.D., PA-C Fitch, and CNP Cheryl Brubaker,
completed medical source statements on Mr. Greer’s behalf. (Tr. 876-77, 1043-44, 1048-50.)
1.

Patricia Carabajal, M.D.

Mr. Greer first saw Dr. Carabajal on June 8, 2015, to establish care. (Tr. 923.) Mr. Greer
wanted to be tested for diabetes due to urinary frequency and had “paperwork that he [wanted]
signed for a medical disability due to [] chronic MRSA.” (Tr. 923-24.) Mr. Greer reported that
he continued to take iron for anemia and continued to see his psychologist for alcohol abuse.9 (Tr.

7

PA-C Matthew Fitch referred Mr. Greer for an elbow brace, prescribed Meloxicam (NSAID) and Lisinopril (High
Blood Pressure), and considered an antidepressant pending blood work review. (Tr. 506.) PA-C Fitch advised
Mr. Greer to stop drinking. (Id.)
8

The providers who treated him included Patricia Carabajal, M.D.; Damen Sacomen, M.D.; Angela Wo, M.D.; Peter
S. Guido, M.D.; Cardiologist Christina Lopez, M.D.; Ophthalmologist Suchitra Katiyar, OD; Dermatologist Jeffrey
Becker, M.D.; Podiatrist Gary Nelson, DPM; Audiologist Richard Cram, AUD; Preston Matthews, D.O.; Malerie
Mock, P.A.; Katie Joshi – Inactive PA; Cheryl Brubaker, CNP; and Deborah Pacheco, NP.

9

ABQ Health Partners provider Preston Matthews, D.O. referred Mr. Greer for treatment related to his reported
depression, and Mr. Greer began treating with Babak Mirin, M.D., on June 1, 2015. (Tr. 873-74, 917.) Dr. Mirin

7

924.) On physical exam, Dr. Carabajal noted, inter alia, that Mr. Greer appeared healthy and in
no acute distress, that he had a “normal gait, no swelling of the lower extremities, no limping,
AROM within normal limits, PROM within normal limits, no tenderness of the upper extremities
and no tenderness of the lower extremities,” and that Mr. Greer’s “affect seemed normal, mood
seemed normal and no decrease in concentrating ability.” (Tr. 925.) Dr. Carabajal noted she took
a MRSA swab of a skin irritation under Mr. Greer’s abdominal fold. (Id.) She assessed (1) MRSA
carrier; (2) urinary frequency; (3) low back pain; (4) alcohol abuse; and (5) anemia. (Tr. 921.)
She planned to follow up on the MRSA swab,10 obtain a renal function panel,11 refer Mr. Greer to
physical therapy for low back pain,12 and prescribe pantoprazole. (Tr. 921.) She instructed
Mr. Greer to submit the disability paperwork to physical therapy and to his counselor for
evaluation. (Id.)
Mr. Greer saw Dr. Carabajal next on July 20, 2015. (Tr. 930-34.) Mr. Greer presented
with complaints of itching skin and disability paperwork he wanted filled out.13 (Tr. 932.)
Mr. Greer also complained of ongoing pain in his back and elbows. (Id.) On physical exam,
Dr. Carabajal noted, inter alia, that Mr. Greer appeared healthy and in no acute distress, that he
had a “normal gait, no swelling of the lower extremities, no limping, no tenderness of the lumbar
spine, AROM within normal limits, PROM within normal limits, no tenderness of the upper

treated Mr. Greer for dysthymia disorder, post-traumatic stress disorder, and general anxiety disorder for
approximately seventeen months. (Tr. 1041.) On December 21, 2016, Dr. Mirin prepared a “To Whom It May
Concern” letter in which he stated that he prescribed Celexa, Neurontin and Valium for Mr. Greer’s mental
impairments and that they “have been helping him.” (Id.)
10

Culture results from the MRSA swab were negative. (Tr. 1028.)

11

Mr. Greer’s renal function panel indicated results in the normal reference range. (Tr. 1027.)

12

Dr. Carabajal provided a referral to Mr. Greer to VibrantCare Rehabilitation for physical therapy evaluation and
treatment. (Tr. 921.) The Administrative Record does not contain any physical therapy records.

13

Mr. Greer explained that he went to a physical therapy visit but did not address the paperwork. (Tr. 932.) He also
explained that he had not addressed the disability paperwork with his psychiatrist. (Id.)

8

extremities and no tenderness of the lower extremities”; and that he was alert and oriented to
person, place time, date, and situation. (Tr. 938.) Dr. Carabajal assessed low back pain, elbow
pain, rash, anxiety and depression, and MRSA carrier. (Tr. 930.) She planned to refer Mr. Greer
to Peak Motion for physical therapy evaluation and treatment for his low back and elbow pain; she
noted that Mr. Greer’s anxiety and depression were stable; and she advised Mr. Greer that the
disability paperwork should be evaluated by physical therapy. (Id.)
On August 5, 2015, Mr. Greer presented to Dr. Carabajal requesting Meloxicam for
arthritis. (Tr. 937.) He reported aches in his right hand, knees, and back. (Id.) He also requested
a referral for complaints of reduced hearing. (Id.) Dr. Carabajal’s physical exam was unchanged
from her July 20, 2015, exam. (Tr. 938.) She assessed Mr. Greer with reduced hearing and
arthralgia. (Tr. 935.) She planned to refer Mr. Greer to Dr. Karl Horn to evaluate his hearing loss,
and she prescribed Meloxicam for arthralgia. (Id.)
On January 16, 2016, Mr. Greer saw Dr. Carabajal requesting a refill of his inhaler for
wheezing. (Tr. 942.) He also complained of left foot pain, which Dr. Carabajal assessed as stable.
(Tr. 943.) On physical exam, Dr. Carabajal noted, inter alia, that Mr. Greer had a “normal gait,
no swelling of the lower extremities, no limping and no tenderness of the lower extremities”; and
that he was alert and oriented to person, place, time, date and situation. (Tr. 944.)
On March 2, 2016, Mr. Greer reported to Dr. Carabajal that he had slipped on some liquid
at home and fallen, and that his left clavicle continued to be painful. (Tr. 951.) Mr. Greer also
reported that his abdominal pain had improved, that his rectal bleeding had resolved, and that he
recently celebrated one year of sobriety. (Id.)

On physical exam, Dr. Carabajal noted that

Mr. Greer had a normal gait, no swelling of the lower extremities, no limping, was alert, and
oriented to person, place, time, date and situation. (Tr. 952-53.) Dr. Carabajal discussed safety

9

issues, reviewed a recent abdominal ultrasound and indicated that Mr. Greer’s abdominal pain was
improved and stable, and congratulated Mr. Greer on his one year of sobriety. (Tr. 949.)
On December 21, 2016, Patricia Carabajal, M.D., prepared medical source statements
related to Mr. Greer’s ability to perform work-related physical and mental activities. (Tr. 104850.) As to Mr. Greer’s physical limitations, she assessed that Mr. Greer could only lift/carry up to
ten (10) pounds occasionally due to back pain; that he could sit for 2 hours, stand for 2 hours, and
walk for 2 or 3 hours in an eight-hour workday due to depression and lack of concentration; that
he could frequently reach, handle, finger, and push/pull with both hands; that, if his feet were
rested, he could occasionally operate foot controls; that he could occasionally climb stairs and
ramps, balance, and kneel; and that he could never stoop or crouch. (Tr. 1048-49.) Dr. Carabajal
explained that Mr. Greer’s physical problems would last for twelve consecutive months because
Mr. Greer had problems with concentration and fatigue. (Tr. 1049.) As to Mr. Greer’s mental
limitations, she noted that Mr. Greer suffered from a pain producing impairment, injury or
sickness; that it was not severe; that he suffered sleep disturbance due to his pain or other causes;
that he had fatigue as a result of his impairments; and that Mr. Greer had to rest or lie down at
regular intervals because of his pain and/or fatigue. (Tr. 1050.) She assessed that he had slight
limitations in his ability to (1) perform activities within a schedule; (2) work in coordination
with/or proximity to others without being distracted by them; and (3) complete a normal workday
and workweek without interruptions from pain or fatigue based symptoms and to perform at a
consistent pace without unreasonable number and length of rest periods. (Id.) She assessed that
Mr. Greer had moderate limitations in his ability to (1) maintain attention and concentration for
extended periods (i.e., 2-hour segments); (2) maintain regular attendance and be punctual within

10

customary tolerance; and (3) maintain physical effort for long periods without a need to decrease
activity or pace, or to rest intermittently. (Id.)
The ALJ accorded Dr. Carbajal’s opinion little weight. (Tr. 28.) The ALJ explained that
Dr. Carbajal’s assessed limitations were without support from the other evidence of record, “as
well as [Mr. Greer’s] own prior statement as reported hereinabove.” (Id.) The ALJ also explained
that Dr. Carbajal’s opinions were conclusory, and that Dr. Carabajal provided little to no
explanation of the objective relevant evidence she relied on in forming her opinions, and did not
reference any diagnostic testing in support of her conclusions. (Id.) Finally, the ALJ explained
that although Dr. Carabajal’s opinions were legitimate and deserved consideration, the context in
which they were produced could not be ignored; i.e., that Mr. Greer sought and paid for
Dr. Carabajal’s opinions through an attorney referral and in connection with an effort to generate
evidence for his appeal. (Id.)
Mr. Greer argues that the ALJ failed to properly account for the medical opinions of
treating physician Patricia Carabajal, M.D. (Doc. 19 at 11-17.) In support, Mr. Greer asserts that
(1) the ALJ failed to specify what evidence from the record was inconsistent with Dr. Carabajal’s
assessments; (2) the ALJ failed to demonstrate how Mr. Greer’s statements concerning his daily
activities rendered Dr. Carabajal’s opinion unsupported; (3) the ALJ’s reliance on the lack of
objective evidence and diagnostic testing was an erroneous basis for discounting Dr. Carabajal’s
expert opinion; and (4) that rejecting an opinion obtained for evidentiary purposes is speculative.
(Doc. 19 at 11-17.) The Commissioner contends that (1) the ALJ provided specific regulatory
reasons for the weight he accorded, including references to the relatively normal medical findings
that he discussed elsewhere in his determination; (2) the ALJ properly considered Mr. Greer’s
activities of daily living in weighing Dr. Carabajal’s opinion; (3) the ALJ properly considered the

11

absence of objective evidence and diagnostic testing in weighing Dr. Carabajal’s opinion; and
(4) the ALJ properly considered the context in which Dr. Carabajal’s opinion was obtained and,
even if it was error, the ALJ provided other legitimate reasons. (Doc. 21 at 13-17.)
“In deciding how much weight to give a treating source opinion, an ALJ must first
determine whether the opinion qualifies for ‘controlling weight.’” Langley v. Barnhart, 373 F.3d
1116, 1119 (10th Cir. 2004) (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)).
To do so, the ALJ must consider whether the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques.” Id. If the answer is “no,” the inquiry ends. Id. If
the opinion is well supported, the ALJ must then determine if it is consistent with other substantial
evidence in the record. Id. If the opinion is deficient in either of these respects, the opinion is not
entitled to controlling weight. Id. However, even if a treating physician’s opinion is not entitled
to controlling weight, it is still entitled to deference and must be weighed using the relevant
regulatory factors.14 Id. An ALJ need not articulate every factor; however, the ALJ’s decision
must be “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.” Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007). Ultimately, ALJs are required to weigh medical source
opinions and to provide “appropriate explanations for accepting or rejecting such opinions.” SSR
96-5p, 1996 WL 374183 at *5 (emphasis added); see Keyes-Zachary v Astrue, 695 F.3d 1156,
1161 (10th Cir. 2012) (citing 20 C.F.R. § 416.927(e)(2)(ii))).

14

These factors include the examining relationship, treatment relationship, length and frequency of examinations, the
degree to which the opinion is supported by relevant evidence, the opinion’s consistency with the record as a whole,
and whether the opinion is that of a specialist. See 20 C.F.R. § 416.927(c)(2)-(6) (evaluating opinion evidence for
claims filed before March 27, 2017).

12

As an initial matter, the ALJ’s speculation that Mr. Greer sought and paid for
Dr. Carabajal’s assessments solely to obtain evidence in the current appeal is not a proper basis
for discounting a medical source opinion. See generally Langley, 373 F.3d at 1121 (rejecting as
speculative the ALJ’s conclusion that a medical report was simply an act of courtesy to a patient);
see also 20 C.F.R. § 416.927(c) (setting forth appropriate factors for evaluating opinion evidence
for claims filed before March 27, 2017). That aside, the ALJ nonetheless provided appropriate
explanations that are supported by substantial evidence for the weight he accorded Dr. Carabajal’s
opinions.
In his determination, in the many paragraphs preceding his weighing of the medical source
opinions, the ALJ discussed and summarized with sufficient specificity the record evidence and
medical record evidence that was inconsistent with Dr. Carabajal’s opinions regarding Mr. Greer’s
ability to do work-related physical and mental activities. Oldham, 509 F.3d at 1258; see also 20
C.F.R. §§ 416.927(c)(3) and (4) (explaining that the more a medical source presents relevant
evidence in support of and better explains her medical opinions, and the more consistent a medical
opinion is with the record as a whole, the more weight it will be given). For example, the ALJ
discussed Mr. Greer’s reported activities of daily living that were inconsistent with his alleged
limitations, such as living alone, driving, caring for his personal needs and grooming, doing
household chores of sweeping and laundry, grocery shopping, preparing his own meals, taking his
Labrador for walks, attending daily AA meetings, golfing,15 fishing, watching television with
comprehension, and using his smartphone for texting. (Tr. 22, 24, 27.) The record supports these

15

In January 2017 Mr. Greer testified that he had not golfed in two years, but his medical records contain numerous
references to frequent golfing during the two-year period preceding his testimony, including in late October, 2016.
(Tr. 53, 503, 508, 545, 928, 978, 988-89.)

13

findings.16 (Tr. 44, 55-58, 230-34, 251-54, 361, 491, 503, 508, 545, 928, 978, 988.) See Newbold
v. Colvin, 718 F.3d 1257, 1266 (10th Cir. 2013) (finding that the inconsistency between assessed
limitations and a claimant’s activities of daily living was a legitimate basis for discounting a
medical source opinion). The ALJ also discussed the inconsistency between Mr. Greer’s testimony
that he could lift and carry twenty pounds and Dr. Carabajal’s assessment that Mr. Greer could
never lift anything over eleven pounds and could only occasionally lift/carry up to ten pounds due
to back pain. (Tr. 24.) The record supports this finding of inconsistency. (Tr. 49, 1048.) The
ALJ discussed that physical exams performed by ABQ Health Partners providers consistently
demonstrated, inter alia, that Mr. Greer had 5 out of 5 strength in his upper and lower extremities,
no extremity edema, normal range of motion, could ambulate without assistance, could get on and
off an exam table without difficulty, had only mild degenerative changes in his left elbow, that his
MRSA had resolved, and that his gout had resolved. (Tr. 24-25.) The record supports these
findings. (Tr. 46, 510, 514, 518, 523, 528, 532, 537, 541, 545, 550, 560, 564, 569, 575, 594, 659,
889, 895, 900, 904, 910, 925, 933, 938, 944, 952, 958, 964, 994, 1028, 1038.) The ALJ discussed
that mental status exams performed by Mr. Greer’s treating psychiatrist, Babak Mirin, M.D.,
consistently demonstrated that Mr. Greer had normal eye contact, an appropriate affect, good
judgment and insight, normal speech, a cooperative demeanor, and a clean appearance.17 (Tr. 2526.) The record supports these findings. (Tr. 827, 835, 838, 841, 847, 851, 854, 857, 862, 865.)
The ALJ also discussed the examining State agency psychological consultant’s report in which
Susan Flynn, Ph.D., observed that Mr. Greer was fully oriented, had good eye contact, normal

16

The record also supports that Mr. Greer reported and testified he cares for his yard and does a lot of gardening. (Tr.
58, 254, 361.) Mr. Greer initially reported he mows his yard, but then testified he does not mow his yard. (Tr. 58,
232, 252.)

17

See fn. 9, supra.

14

motor activity, steady attention, normal speech, organized thought processes with some
circumstantial thinking, and did serial sevens quickly and accurately.18 (Tr. 26.) The record
supports this finding.19 (Tr. 360-61.) Thus, the ALJ’s discussion of the evidence prior to weighing
the medical source evidence demonstrates that he properly considered whether Dr. Carabajal’s
opinions were supported by her treatment notes and the record as whole, as he was required to do,
and cited to specific record evidence that was inconsistent with the Dr. Carabajal’s opinions.
Langley, 373 F.3d at 1119; see 20 C.F.R. §§ 416.927(c)(3) and (4).
Mr. Greer’s reliance on Robinson v. Barnhart20 for the proposition that the ALJ improperly
discounted Dr. Carabajal’s opinions as to his mental impairments for lack of objective evidence
and diagnostic testing is misplaced. In Robinson, the Tenth Circuit found, in relevant part, that the
ALJ’s analysis of a treating physician’s opinion was deficient in several respects. Robinson, 366
F.3d at 1982. In particular, the court noted that it was unable to ascertain how or why the ALJ
found the medical source opinion “vague and conclusive,” and commented that if the ALJ meant
it was inadequately supported, “that a psychological opinion may rest either on observed signs and
symptoms or on psychological tests . . . thus, [the treating physician’s] observations about
claimant’s limitations do constitute specific mental findings.” Id. (emphasis added). Here,
Dr. Carabajal did not perform any psychological tests.21 Moreover, Dr. Carabajal’s treatment

18

The ALJ noted that Dr. Flynn assessed that Mr. Greer was capable of paying attention and following directions,
could do tasks of daily living, and was capable of managing his own funds. (Tr. 27.) The ALJ accorded Dr. Flynn’s
opinion some weight and explained that Dr. Flynn’s examination and opinions were prior to Mr. Greer’s mental health
treatment with Dr. Babak Mirin and that the new evidence in the record diminished her opinion somewhat. (Id.)

19

The record also demonstrates that although ABQ Health Partners providers assessed depression and anxiety from
time to time, their treatment notes contain no evidence of psychological exams, mental status exams, or observations
that Mr. Greer was functionally limited based on his mental impairments.
20

366 F.3d 1078 (10th Cir. 2004).

21

The Administrative Record contains evidence of only one psychological test. On July 28, 2014, nonexamining
State agency psychological consultant Susan M. Flynn, Ph.D., performed a Mini Mental Status Exam. (Tr. 361.)
Dr. Flynn noted that Mr. Greer

15

notes do not contain any observations that Mr. Greer was functionally limited based on his mental
impairments. To the contrary, Dr. Carabajal’s treatment notes indicated that Mr. Greer’s “affect
seemed normal, mood seemed normal and no decrease in concentrating ability.” (Tr. 925.) On
July 20, 2015, January 16, 2016, and March 2, 2016, Dr. Carabajal noted that Mr. Greer was alert
and oriented to person, place, time, date and situation. (Tr. 938, 944, 952-53.) On July 20, 2015,
she indicated that Mr. Greer’s depression and anxiety were stable. (Tr. 930.) Thus, the ALJ’s
explanation that Dr. Carabajal’s opinions lacked a basis in objective evidence and diagnostic
testing is reasonable and supported by substantial evidence.
2.

Other Medical Source Evidence
a.

Matthew Fitch, PA-C

PA-C Fitch saw Mr. Greer twenty times from June 11, 2014, through April 1, 2015. (Tr.
505-75, 590-94, 885-910.) PA-C Fitch assessed anxiety and depression in eight treatment notes.
(Tr. 505, 511, 533, 571, 885, 890, 896, 901.) On June 11, 2014, PA-Fitch planned to consider an
antidepressant pending Mr. Greer’s blood work. (Tr. 505.) On June 16, 2014, PA-Fitch prescribed
Trazodone. (Tr. 511.) On July 30, 2014, PA-Fitch discontinued Trazodone and prescribed
Clonazepam. (Tr. 533.) On January 12, 2015, PA-Fitch noted that Mr. Greer had good control
over his overall anxiety and depression symptoms with Clonazepam. (Tr. 572.) On February 11,
2015, PA-C Fitch discontinued Clonazepam and started Citalopram.

(Tr. 885-86.)

scored 30 out of a possible 30 points. He was oriented to date, time and place. He did the serial
sevens quickly and accurately in his head. He could recall all three words which indicated his recent
memory is intact. He printed with his left hand. He was able to copy the geometric figure accurately.
Mr. Greer gave a standard answer in the normal range to the question on judgment. The question
about smoke in a theater prompted him to say he would run out which suggests he has some problem
with impulse control. His insight seemed intact. His level of reasoning is at the abstract level. He
has a good fund of general knowledge.
(Id.)

16

On

February 27, 2015, PA-Fitch discontinued Citalopram and restarted Clonazepam. (Tr. 896-97.)
On March 6, 2015, PA-Fitch prescribed Buspirone. (Tr. 901.) None of PA-C Fitch’s treatment
notes contain evidence of psychological exams or mental status exams, and the only observation
noted that related to Mr. Greer’s mental impairments was that Mr. Greer had good control over his
symptoms with Clonazepam. (Tr. 572.)
On December 19, 2016, PA-C Fitch completed a Medical Assessment of Ability To Do
Work-Related Activities (Mental) on Mr. Greer’s behalf. (Doc. 1043-44.) He assessed that
Mr. Greer had slight limitations in his ability to (1) remember very short and simple instructions;
(2) carry out very short and simple instructions; (3) sustain an ordinary routine without special
supervision; and (4) ask simple questions or request assistance. (Id.) He assessed that Mr. Greer
had moderate limitations in his ability to (1) remember locations and work-like procedures;
(2) understand and remember detailed instructions; (3) carry out detailed instructions; (4) maintain
attention and concentration for extended periods (i.e., 2- hour segment); (5) sustain an ordinary
routine without special supervision; (6) perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerance; (7) work in coordination with/or proximity
to others without being distracted by them; (8) make simple work-related decisions; (9) complete
a normal workday and workweek without interruptions from psychological based symptoms and
to perform at a consistent pace without unreasonable number and length of rest periods;
(10) interact appropriately with the general public; (11) accept instructions and respond
appropriately to criticism from supervisors; (12) get along with coworkers or peers without
distracting them or exhibiting behavioral severes; (13) respond appropriately to changes in the
work place; (14) be aware of normal hazards and take adequate precautions; (15) travel to
unfamiliar places or using public transportation; and (16) set realistic goals or make plans

17

independently of others. (Id.) PA-C Fitch explained that he based his assessed limitations on
Mr. Greer’s “report.” (Id.)
The ALJ accorded PA-C Fitch’s opinion little weight. The ALJ explained that the opinion
itself indicates that the assessed limitations contained therein are based on the claimant’s subjective
reports and not upon any objective findings. (Tr. 28.) The ALJ further explained that Mr. Greer
underwent the examination that formed the basis of the opinion in question not in an attempt to
seek treatment for symptoms, but rather, through attorney referral and in connection with an effort
to generate evidence for the current appeal. (Id.) The ALJ also discussed that PA-C Fitch was not
an acceptable medical provider and could not establish the existence of a medically determinable
impairment. (Id.)
b.

Cheryl Brubaker, CNP

CNP Brubaker saw Mr. Greer twice. On March 14, 2016, Mr. Greer presented with cough,
congestion and drainage for two weeks. (Tr. 954-59.) CNP Brubaker assessed acute bacterial
sinusitis and cough. (Id.) On April 22, 2016, Mr. Greer presented for follow up on his cough.
(Tr. 960-64.) CNP Brubaker assessed pharyngitis, acute, and allergic rhinitis. (Tr. 960.)
On December 7, 2016, CNP Brubaker prepared a Medical Source Statement of Ability To
Do Work-Related Activities (Mental) on Mr. Greer’s behalf. (Tr. 876-77.) She assessed that
Mr. Greer had no limitations in understanding and memory. (Id.) She assessed Mr. Greer had
slight limitations in his ability to (1) carry out very short and simple instructions; (2) make simple
work-related decisions; (3) ask simple questions or request assistance; and (4) maintain socially
appropriate behavior and adhere to basic standards of neatness and cleanliness. (Id.) She assessed
that Mr. Greer had moderate limitations in his ability to (1) carry out detailed instructions;
(2) sustain an ordinary routine without special supervision; (3) interact appropriately with the

18

general public; and (4) get along with coworkers or peers without distracting them or exhibiting
behavioral severes; (5) respond appropriately to changes in the work place; (6) be aware of normal
hazards and take adequate precautions; and (7) set realistic goals or make plans independently of
others. (Id.) She assessed that Mr. Greer had marked limitations in his ability to (1) maintain
attention and concentration for extended periods (i.e., 2- hour segment); (2) perform activities
within a schedule, maintain regular attendance and be punctual within customary tolerance;
(3) work in coordination with/or proximity to others without being distracted by them;
(4) complete a normal workday and workweek without interruptions from psychological based
symptoms and to perform at a consistent pace without unreasonable number and length of rest
periods; (5) accept instructions and respond appropriately to criticism from supervisors; and
(6) travel to unfamiliar places or use public transportation. (Id.) CNP Brubaker explained the
bases of her assessed limitations as “[l]imitations of concentration and ability to sustain focus and
concentration” and “frequent irritability and anxiety impacting interactions and job performance.”
(Id.)
CNP Brubaker also assessed that Mr. Greer met the criteria for Listings 12.04 Affective
Disorders and 12.06 Anxiety-Related Disorders. (Tr. 878-79.)
The ALJ similarly accorded CNP Brubaker’s opinion little weight. (Tr. 28.) The ALJ
explained that the opinion contained no treatment records, relationship history, or objective
findings to support the opinions contained therein. (Id.) The ALJ further explained that CNP
Brubaker’s opinion conflicted with the claimant’s repeated normal mental status examinations.
(Id.)
Mr. Greer argues that the reasons the ALJ provided for according little weight to the two
other medical source opinions are inadequate. As for PA-C Fitch’s opinion, Mr. Greer relies on

19

Robinson for the proposition that PA-C Fitch could rely on Mr. Greer’s subjective complaints to
form his opinion regarding Mr. Greer’s mental impairments. (Doc. 19 at 17-20.) He further asserts
that it was improper for the ALJ to rely on the context in which the assessment was obtained as a
basis to discount it. (Id.) As for CNP Brubaker’s opinion, Mr. Greer argues that the ALJ failed to
consider treatment notes from other ABQ Health Partners providers that indicated Mr. Greer’s
history of and treatment for anxiety and depression. (Id.) The Commissioner contends that the
ALJ properly relied on the lack of support and explanation for their opinions, as well as their
inconsistency with other record evidence. (Doc. 21 at 12-13.)
The regulations contemplate the use of information from “other sources,” both medical22
and non-medical,23 “to show the severity of an individual’s impairment(s) and how it affects the
individual’s ability to function.” Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007) (citing 20
C.F.R. §§ 416.902); see SSR 06-03p, 2006 WL 2329939, at *2.24 “Information from these ‘other
sources’ cannot establish the existence of a medically determinable impairment. Instead, there
must be evidence from an ‘acceptable medical source’25 for this purpose.” SSR 06-03p, 2006 WL
2329939, at *2.26 An ALJ is required to explain the weight given to opinions from other medical

22

For claims filed before March 27, 2017, other medical sources are defined as nurse practitioners, physician
assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapist. SSR 06-03p, 2006
WL 2329939, at *2; SSR 96-2p, 2017 WL 3928298.
23

For claims filed before March 27, 2017, non-medical sources include, but are not limited to, educational personnel,
such as school teachers, counselors, early intervention team members, developmental center workers, and daycare
center workers; public and private social welfare agency personnel, rehabilitation counselors; and spouses, parents
and other caregivers, siblings, other relatives, friends, neighbors, clergy, and employers. SSR 06-03p, 2006 WL
2329939, at *2; SSR 96-2p, 2017 WL 3928298.

24

SSR 06-3p is rescinded for claims filed on or after March 27, 2017. SSR 96-2p, 2017 WL 3928298, at *1. For
claims filed after March 27, 2017, all medical sources can make evidence that are categorized and considered as
medical opinions. Id. at *2.

25
For claimed filed before March 27, 2017, “acceptable medical sources” are licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. SSR 06-03p,
2006 WL 2329939, at *1; SSR 96-2p, 2017 WL 3928298.
26

See fn. 24, supra.

20

sources and non-medical sources who have seen a claimant in their professional capacity, “or
otherwise ensure that the discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning, when such opinions may
have an effect on the outcome of the case.” Id. at *6; see also Keyes-Zachary v. Astrue, 695 F.3d
1156, 1163 (10th Cir. 2012) (finding that ALJ was required to explain the amount of weight given
to other medical source opinion or sufficiently permit reviewer to follow adjudicator’s reasoning).
The weight given to this evidence will vary according to the particular facts of the case, the source
of the opinion, the source’s qualifications, the issues that the opinion is about, and other factors,
i.e., how long the source has known and how frequently the source has seen the individual; how
consistent the opinion is with other evidence; the degree to which the source presents relevant
evidence to support an opinion; how well the source explains the opinion; whether the source has
a specialty or area of expertise related to the individual’s impairment; and any other facts that tend
to support or refute the opinion. SSR 06-03p, 2006 WL 2329939, at *4-5.27
Although the ALJ’s speculation that Mr. Greer sought and paid for PA-C Fitch’s
assessment solely to obtain evidence in the current appeal is not a proper basis for discounting a
medical source opinion, the ALJ provided appropriate explanations that are supported by
substantial evidence for the weight he accorded both PA-C Fitch’s and CNP Brubaker’s opinions.
Here, the ALJ explained that PA-C Fitch explicitly indicated that his assessed limitations were
based on Mr. Greer’s subjective reports. (Tr. 28.) The record supports this finding. (Tr. 104344.) Further, having found Mr. Greer’s statements concerning the intensity, persistence and
limiting effects of his alleged symptoms were not entirely consistent with the medical evidence
and other evidence in the record (Tr. 24), a finding Mr. Greer has not disputed, the ALJ could

27

Id.

21

properly discount findings to the extent they relied on subjective complaints he found to be
inconsistent with the record evidence. See Beard v. Colvin, 642 F. App’x 850, 852 (10th Cir. 2016)
(unpublished) (an ALJ can discount findings to the extent they relied on subjective complaints
found to be incredible, but must give reasons for rejecting objective assessment); see generally
Hackett v. Barnhart, 395 F.3d 1168, 1174 (10th Cir. 2005) (finding the ALJ was free to reject a
treating psychologist’s opinion where it appeared to be based on subjective complaints and isolated
instances “rather than objective findings”). Additionally, PA-C Fitch did not perform any
psychological tests, and PA-C Fitch’s treatment notes did not contain any observations that
Mr. Greer was functionally limited based on his mental impairments. As such, Mr. Greer’s
reliance on Robinson is misplaced given the lack of psychological testing and/or observed signs
and symptoms about Mr. Greer’s mental limitations in PA-C Fitch’s treatment notes, or in the
medical record evidence as a whole. See Section III.A.1, supra.
The Court also finds that the ALJ’s reasons for according little weight to CNP Brubaker’s
medical source statement are supported by substantial evidence. Here, CNP Brubaker’s treatment
history with Mr. Greer was limited to seeing him twice for acute physical symptoms; i.e., sinusitis
and rhinitis. Her treatment notes made no reference to any complaints about or treatment for
Mr. Greer’s mental impairments, nor did she indicate any observed signs or symptoms related to
Mr. Greer’s mental limitations. Her medical source opinion is, therefore, not supported by her
own treatment notes. Moreover, her opinion is not supported by treatment notes from other ABQ
Health Partners providers or by the medical record evidence as a whole. See Section III.A.1, supra.
For all of the foregoing reasons, the Court finds the ALJ applied the proper regulatory
standards in weighing the medical source evidence and provided appropriate explanations

22

supported by substantial evidence for the weight he accorded the medical and other medical source
opinions. As such, there is no reversible error as to this issue.
B.

The ALJ Failed To Resolve the Conflict Between the VE’s Testimony
and the DOT Regarding the Reasoning Level Requirements of the Jobs
Identified

At step five, the ALJ determined that based on Mr. Greer’s age, education, work
experience, RFC, and the testimony of the VE, there were jobs that existed in significant numbers
in the national economy that Mr. Greer could perform. (Tr. 29-30.) Mr. Greer argues, however,
that the ALJ failed to resolve a conflict between the DOT and the VE testimony regarding the
reasoning level requirements of the jobs identified, and that after eliminating the two jobs that
conflict with the RFC, the resulting number of jobs is so low that it requires a Trimiar28 analysis.
(Doc. 19 at 20-25.) Mr. Greer explains that the jobs of inspector/hand packager and small products
assembler require a reasoning level of two, and that those jobs are incompatible with the ALJ’s
mental RFC that limits him to applying “common sense understanding to remember and carry out
very short and simple written or oral instructions.” (Id.) The Commissioner argues there was no
apparent conflict to resolve and that the Tenth Circuit, in Hackett v. Barnhart,29 has held that
reasoning level two jobs are consistent with a limitation to simple work. (Doc. 21 at 17-21.) The
Commissioner also argues that a claimant’s General Educational Development (“GED”), which
includes a claimant’s ability to reason, does not describe the mental or skill requirements of a job,
but rather the general educational knowledge or background needed for satisfactory performance.
(Id.) As such, the Commissioner contends that Mr. Greer’s high school education qualifies him
for greater than unskilled work. (Id.) In the alternative, the Commissioner contends that even if

28

Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992).

29

395 F.3d 1168 (10th Cir. 2005).

23

the Court were to find an unresolved conflict thereby eliminating two of the jobs the VE identified,
that the reasoning level one job that remains constitutes enough jobs to be considered significant.
(Doc. 21 at 17-21.)
The Tenth Circuit has held that “an ALJ must investigate and elicit a reasonable
explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely
on the expert testimony as substantial evidence to support a determination of nondisability.”
Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). After the Tenth Circuit’s holding in
Haddock, the Social Security Administration promulgated Social Security Ruling 00-4p and
further clarified the ALJ’s affirmative responsibility to ask about conflicts. SSR 00-4p instructs
that
[w]hen vocational evidence provided by a VE or VS is not consistent with
information in the DOT, the [ALJ] must resolve this conflict before relying on the
VE or VS evidence to support a determination or decision that the individual is or
is not disabled. The [ALJ] will explain in the determination or decision how he or
she resolved the conflict. The [ALJ] must explain the resolution of the conflict
irrespective of how the conflict was identified.
SSR 00-4p, 2000 WL 1898704, at *4.
The ALJ failed to resolve the apparent conflict between the VE’s testimony and the DOT
regarding the reasoning levels of two for the inspector/hand packager, DOT 559.687-074 and small
products assembler, DOT 706.684-022 that the VE identified. This is error. In this case, the ALJ’s
mental RFC specifically limited Mr. Greer to, inter alia, applying common sense understanding
to remember and carry out very short and simple written or oral instructions. (Tr. 23.) Pursuant
to the Dictionary of Occupational Titles, this limitation restricts Mr. Greer to reasoning level one
jobs. See Appendix C – Components of the Definition Trailer, 1991 WL 688702 (explaining that
Reasoning Level I requires the ability to “[a]pply commonsense understanding to carry out simple
one- or two-step instructions”; Reasoning Level II requires the ability to “[a]pply commonsense
24

understanding to carry out detailed but uninvolved written or oral instructions. . . .”). Further,
although the Tenth Circuit in Hackett found that a limitation to “simple routine work tasks” is
more consistent with jobs requiring level two reasoning, 395 F.3d at 1176, that is not the case here
because the ALJ did not limited Mr. Greer to simple routine work tasks, but to “very short and
simple written or oral instructions.” (Tr. 23.) As such, Hackett does not apply.
Finally, while acknowledging that the GED ratings generally correspond to a person’s level
of formal and informal education that makes him suitable for a job, Anderson v. Colvin, 514 F.
App’x 756, 764 (10th Cir. 2013) (unpublished), a claimant’s education is one vocational factor that
bears on the ALJ’s ultimate determination of whether a claimant can adjust to other work at step
five. 20 C.F.R. § 416.960(c)(1) (Commissioner considers RFC and vocational factors of age,
education, and work experience to decide whether claimant can adjust to work). Moreover, the
Court is not persuaded that merely identifying jobs that are unskilled neutralizes or supplants the
reasoning level conflict as the Commissioner argues. See McHerrin v. Astrue, 2010 WL 3516433,
at *6, 156 Soc. Sec. Rep. Serv. 598 (E.D. Pa., Aug. 31, 2010) (explaining that a number of courts
have found the DOT’s reasoning levels are much more indicative of whether a claimant is capable
of performing more than simple, repetitive tasks) (internal citations omitted)); see also Chapo v.
Astrue, 682 F.3d 1285, 1290, at n. 3 (10th Cir. 2012) (“[w]hile the jobs cited by the VE happen to
be unskilled, that just accounted for issues of skill transfer, not impairment of mental functions –
which ‘are not skills, but, rather, general prerequisites for most work at any skill level’” (quoting
Wayland v. Chater, 76 F.3d 394 (10th Cir. 1996) (unpublished))); see also Craft v. Astrue, 539 F.3d
668, 677-78 (7th Cir. 2008) (holding that a limitation to unskilled work did not account for several
effects of mental impairment); Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997) (explaining that
many unskilled jobs require more than the mental capacity to follow simple instructions); Cooper

25

v. Barnhart, 2004 WL 2381515, *4 (N.D. Ola. Oct. 15, 2004) (finding that a limitation to simple
tasks appears more squarely addressed by a job’s reasoning level, than to its SVP level, which
focuses on vocational preparedness necessary to perform the job); SSR 85-15, 1985 WL 56867, at
*6 (“Because response to the demands of work is highly individualized, the skill level of a position
is not necessarily related to the demands of the job. A claimant’s condition may make performance
of an unskilled job as difficult as an objectively more demanding job.”). For these reasons, the
Court declines to adopt the Commissioner’s position that the GED reasoning levels can be
disregarded when addressing the mental demands of jobs listed in the DOT and that identifying
unskilled jobs eliminates any conflicts and accommodates a claimant’s limitation to do simple
work. Particularly where, as here, the ALJ’s RFC did not limit Mr. Greer to “simple” work, but
specifically limited his ability to do work-related mental activities in the area of understanding,
remembering and carrying out instructions to “very short and simple written or oral instructions.”
(Tr. 23.)
C.

The ALJ’s Step Five Error Is Not Harmless

Where two of the three jobs the VE identified exceeded the ALJ’s RFC and the ALJ failed
to resolve the apparent conflict between the VE’s testimony and the DOT, the question remains
whether the one remaining job of conveyor line bakery worker exists in significant numbers such
that the ALJ’s error is harmless. For the reasons discussed below, the Court cannot conclude that
the ALJ’s error is harmless.
The Tenth Circuit has emphasized that “the issue of numerical significance entails many
fact-specific considerations requiring individualized evaluation” and, as such, “the evaluation
‘should ultimately be left to the ALJ’s common sense in weighing the statutory language as applied
to a particular claimant’s factual situation.’” Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir.

26

2004) (quoting Trimiar, 966 F.2d at 1330). In Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992),
the issue was whether 650 to 900 jobs existing in the region constituted a significant number. 966
F.2d at 1329-32. The court stated that “[t]his Circuit has never drawn a bright line establishing
the number of jobs necessary to constitute a “significant number,” and noted several factors courts
may consider in evaluating the “significant number” issue, including: (1) the level of claimant’s
disability; (2) the reliability of the vocational expert’s testimony; (3) the distance claimant is
capable of traveling to engage in the assigned work; (4) the isolated nature of the jobs; and, (5) the
types and availability of such work. Id. at 1330 (quoting Jenkins v. Bowen, 861 F.2d 1083, 1087
(8th Cir. 1988)). The Tenth Circuit ultimately determined that the ALJ had considered those
factors, and that substantial evidence supported his decision. Id. at 1332.
A number of subsequent Tenth Circuit cases have addressed the application of Trimiar and
the issue of what constitutes a significant number of jobs. In Allen, the Tenth Circuit remanded
when it determined that the ALJ had erroneously relied on two jobs that were in direct conflict
with his RFC findings to find that significant jobs existed, and concluded that the ALJ “never had
occasion to decide if the one hundred [statewide] surveillance jobs alone constituted a significant
number under the statute.” 357 F.3d at 1144. The Allen court rejected the Commissioner’s
harmless error argument and held that it would be an improper exercise in judicial factfinding to
excuse the ALJ’s failure to assess the numerical significance of the surveillance jobs in connection
with the Trimiar factors given the low number of jobs at issue. Id. at 1145. In Rhodes v. Barnhart,
117 F. App’x 622 (10th Cir. 2004), the Tenth Circuit remanded where the ALJ had stated on the
record at the administrative hearing that 150 statewide supervisor jobs was not a significant
number of jobs, but subsequently concluded in his decision, without any analysis or discussion of
the Trimiar factors, that 150 jobs in the State of Oklahoma and 14,000 jobs nationally were a

27

significant number of jobs. Id. at 632. The court explained that because the ALJ failed to evaluate
the Trimiar factors and make specific factual findings regarding the numerical significance
requirement, it could not properly review the issue. Id. In Chavez v. Barnhart, 126 F. App’x 434
(10th Cir. 2005), the Tenth Circuit remanded because two of the jobs the VE described conflicted
with the Dictionary of Occupational Titles, and the ALJ did “not give explicit consideration to the
[Trimiar] factors this court has recognized should guide the ALJ’s commonsense judgment,” and
did not have an opportunity to evaluate whether the 199 parking lot attendant jobs in the region,
standing alone, existed in significant numbers. Id. at 436. In Norris v. Barnhart, 197 F. App’x
771 (10th Cir. 2006), the Tenth Circuit remanded on other grounds, but noted that the ALJ’s
consideration of the Trimiar factors on remand could be particularly important given the fairly
small number of jobs identified,30 and in view of the claimant’s inability to sit for more than 45
minutes which could preclude her from driving long distances to work. Id. at 777.
In contrast, in Stokes v. Astrue, 274 F. App’x 675 (10th Cir. 2008), the Tenth Circuit applied
harmless error where two of the four jobs the ALJ relied on were determined to be inconsistent
with the ALJ’s RFC because no reasonable factfinder could determine that suitable jobs did not
exist in significant numbers where there were still 11,000 regionally available jobs and 152,000
nationally available jobs from the two remaining jobs. Id. at 684. In Rogers v. Astrue, 312 F.
App’x 138 (10th Cir. 2009), the Tenth Circuit implied that 11,000 nationally available jobs was a
significant number.31 Id. at 142. In Raymond v. Astrue, 356 F. App’x 173 (10th Cir. 2009), the

30

The VE identified surveillance system monitor (700 to 1000 jobs regionally and 65,000 to 85,000 nationally) and
food and beverage order taker (600 jobs regionally and 125,000 nationally). Norris v. Barnhart, 197 F. App’x 771,
777 (10th Cir. 2006).
31

The question before the Court was whether the ALJ failed to resolve a conflict between the VE’s testimony and the
DOT regarding the exertional requirement for the job of hand packager. Rogers v. Astrue, 312 F. App’x 138, 141-42
(10th Cir. 2009). The hand packager job required medium exertional capacity; however, the ALJ’s RFC assessment
had limited claimant to lifting no more than 10 pounds at a time or lifting and/or carrying more than 3-5 pounds more
than occasionally. Id. at 141. The Court held that because the VE testified, on the basis of his professional experience,

28

only question before the court was whether or not the job of rental clerk existed in significant
enough numbers. Id. at 177. The claimant argued that a significant number of jobs must exist in
the regional economy before an ALJ can avoid a disability finding and that 385 rental clerk jobs
in the region was insufficient. Id. at 177. The Tenth Circuit rejected the claimant’s argument,
holding that the controlling statutes, federal regulations, and case law all indicate that the proper
focus is generally on jobs in the national, not regional, economy.32 Id. The court also distinguished
the facts in Trimiar and noted that Trimiar does not hold that only regional jobs are relevant, or
that a court must engage in a factorial analysis when the number of jobs available is much larger
as it was here (1.34 million national jobs). Id. at 178, n. 2. Finally, in Botello v. Astrue, 376 F.
App’x 847 (10th Cir. 2010), the claimant argued that the ALJ had failed to consider his traveling
distance pursuant to Trimiar as directed by the court on remand. Id. at 849-51. The Botello court
held that even though the ALJ failed to make any findings in his remand decision regarding the
distances that claimant would have to travel pursuant to Trimiar as ordered, that the court could
uphold the ALJ’s significant numbers ruling based solely on the number of jobs that the VE
identified as being available in the national economy; i.e., 67,250. Id. at 851. The court, relying

that 11,000 sedentary hand packager jobs existed in the national economy, the apparent conflict between the DOT and
the VE’s testimony regarding the job’s exertional requirements was reasonably explained, and the ALJ could rely on
the testimony as substantial evidence to support her determination of nondisability. Id. at 142.
32

The Court stated that in 42 U.S.C. § 423(d)(2)(A), for example, Congress prescribed that “[a]n individual shall be
determined to be under a disability only if . . . [he cannot] engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the immediate area . . . ‘[w]ork which exists
in the national economy’ means work which exists in significant numbers either in the region where such individual
lives or in several regions of the country.” Raymond, 356 F. App’x at 177 (emphasis added); see also 20 C.F.R.
§ 416.966(c) (“We will determine that you are not disabled if your residual functional capacity and vocational abilities
make it possible for you to do work which exists in the national economy.”); Jensen v. Barnhart, 436 F.3d 1163, 1168
(10th Cir. 2005) (“The Commissioner met her five-step burden of proving that there are sufficient jobs in the national
economy for a hypothetical person with Jensen’s impairments.”); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005) (noting that the claimant must show his impairments prevent him from performing his past work, and then the
burden shifts to the Commissioner to show that the claimant can perform work in the national economy)); Hamlin v.
Barnhart, 365 F.3d 1208, 1224 (10th Cir. 2004) (noting that jobs need only exist within “the regional or national
economy”) (emphasis added)).

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on its unpublished order and judgment in Raymond, reiterated that Trimiar did not require ALJs
to engage in a multi-factorial analysis to assess whether there are significant jobs in the regional
economy when the number of national available jobs is significant and unchallenged. Id.
The Court is not persuaded that the conveyor line bakery worker job exists in significant
numbers in the national economy. Here, the ALJ did not explicitly evaluate or engage in a factspecific consideration of the numerical significance of 12,000 conveyor line bakery worker jobs
in the national economy, with only 50 statewide jobs. (Tr. 71.) Nor did the ALJ engage in
“individualized evaluation” of the issue of numerical significance. Thus, although the Court may
“in the right exceptional circumstance” “supply a missing dispositive finding under the rubric of
harmless error,” here, there is insufficient information from which the Court “could confidently
say that no reasonable administrative factfinder, following the correct analysis, could have
resolved the factual matter in any other way.” Allen, 357 F.3d at 1144-45. Indeed, while the
number of national jobs slightly exceeds the 11,000 nationally available jobs the Tenth Circuit has
previously implied constitutes a significant number, Rogers, 312 F. App’x at 142, the number of
statewide jobs available is far below the number of jobs found in cases in which the Tenth Circuit
has remanded for additional evaluation. See Allen, 357 F.3d at 1145 (the ALJ never had occasion
to decide if 100 statewide surveillance jobs standing alone constituted a significant number);
Rhodes, 117 F. App’x at 632 (the ALJ failed to evaluate the Trimiar factors and make specific
findings regarding the numerical significance of 150 statewide and 14,000 national supervisor
jobs); and Chavez, 126 F. App’x at 436 (the ALJ did not have the opportunity to evaluate whether
199 parking lot attendant jobs in the region, standing alone, existed in significant numbers).
In short, in the absence of both evaluation by the ALJ of numerical significance in the first
instance and of “exceptional circumstances,” the Court declines to supply a dispositive finding and

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is unable to conclude under the circumstances here there are a “significant number” of jobs
available to Mr. Greer in the national economy that would support a finding of harmless error. The
Court also finds that it would be an improper exercise in judicial factfinding to excuse the ALJ’s
failure to assess the numerical significance of the conveyor line bakery worker job in connection
with all of the Trimiar factors given the low number of jobs in New Mexico. Allen, 357 F. 3d at
1145; Raymond, 356 F. App’x at 178, n.2; Botello, 376 F. App’x at 851. The ALJ improperly
relied on the VE’s testimony to determine that significant jobs existed in the national economy
that Mr. Greer could perform and his step five findings are not supported by substantial evidence.
Thompson, 987 F.2d at 1487. Remand is necessary.
IV. Conclusion
For the reasons stated above, Mr. Greer has presented some meritorious arguments and his
Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (Doc. 19) is
GRANTED.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent

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