Meloy v. Social Security Administration

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen granting 16 Plaintiff's Motion to Remand to Agency for Rehearing. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ALLISON JEAN MELOY,
Plaintiff,
v.

CIV 18-0371 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
to Agency for Rehearing, with Supporting Memorandum (Doc. 16), filed on October 15,
2018. 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. 3, 5, 6. Having considered the record, submissions of counsel, and relevant law,
the Court finds Plaintiff’s motion is well-taken and will be granted.
I.

Procedural History
Ms. Allison Meloy (Plaintiff) protectively filed an application with the Social

Security Administration for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act on December 12, 2013. See Administrative Record 1 (AR) at 182, 255-61.
Plaintiff alleged a disability onset date of July 1, 2006. See AR at 255. Because

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Documents 11-1 through 11-9 comprise the sealed Administrative Record. See Docs. 11-1–9.
The Court cites the Administrative Record’s internal pagination, rather than the CM/ECF
document number and page.

Plaintiff’s earning record showed that she had “acquired sufficient quarters of coverage
to remain insured through December 31, 2013[,]” she was required to “establish
disability on or before that date in order to be entitled to a period of disability and [DIB].”
AR at 12.
Disability Determination Services determined that Plaintiff was not disabled both
initially (AR at 174-82) and on reconsideration (AR at 183-92). Plaintiff requested a
hearing with an Administrative Law Judge (ALJ) on the merits of her application. AR at
203. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See
AR at 113-73. ALJ Cole Gerstner issued an unfavorable decision on October 19, 2016.
AR at 9-31. Plaintiff submitted a Request for Review of ALJ Decision to the Appeals
Council (AR at 253-54), which the council denied on February 22, 2018 (AR at 1-6).
Consequently, the ALJ’s decision became the final decision of the Commissioner. 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); 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

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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
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); 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” the claimant retains sufficient RFC “to perform work in the national economy, given
his 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).
At Step One of the process, 2 ALJ Gerstner found that while Plaintiff worked in
several part-time positions from 2006-2010 and made two “unsuccessful work attempts”
in 2012-2013, she “did not engage in substantial gainful activity since July 1, 2006, the
alleged onset date.” AR at 14 (citing 20 C.F.R. §§ 404.1571-1576). At Step Two, the ALJ
concluded that Plaintiff “had the following severe impairments: ulcerative colitis; migraine
headaches; eczema; and depression.” AR at 14 (citing 20 C.F.R. § 404.1520(c)). ALJ

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ALJ Gerstner first found that Plaintiff “last met the insured status requirements of the Social
Security Act through December 31, 2013.” AR at 14.

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Gerstner also noted that Plaintiff’s “asthma was a ‘non-severe’ impairment” because
“[t]here [was] no evidence that [her] asthma was greater than a slight abnormality or that
it resulted in more than a minimal effect on [her] ability to perform basic work activities
during the” relevant time period. AR at 15.
At Step Three, the ALJ found that Plaintiff “did not have an impairment or
combination of impairments that met or medically equaled 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). Ultimately, the ALJ found that through the
date last insured, Plaintiff
had the [RFC] to perform a limited range of light work as defined in 20
[C.F.R. §] 404.1567(b) as follows:
● [She] was able to lift and/or carry no more than 20 pounds occasionally
and 10 pounds frequently;
● [She] was able to stand and/or walk and sit for approximately six hours
in an eight-hour workday;
● [She] was able to perform pushing and pulling from a seated position
within the above weight restrictions; and
● [She] would be able to understand, remember, and carry out simple,
routine, and repetitive tasks and make simple work-related decisions.
AR at 17. The ALJ further determined that, through the date last insured, Plaintiff could
not perform her past relevant work, but she could perform the jobs of cashier II, mail
sorter, and furniture rental clerk. AR at 24-25. Ultimately, the ALJ found that Plaintiff
“was not under a disability, as defined in the Social Security Act, at any time from July 1,
2006, through December 31, 2013, the date last insured.” AR at 26 (citing 20 C.F.R.
§ 404.1520(g)).

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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 (10th Cir. 2012) (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
though the [C]ourt 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)).

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IV.

Discussion
Plaintiff contends that the following issues require reversal: (1) the ALJ did not

properly evaluate Plaintiff’s subjective complaints pursuant to SSR 16-3p; (2) the ALJ
did not adequately assess the opinion of Dr. Michael Gavin, M.D.; (3) the ALJ misstated
the VE’s testimony about the number of days Plaintiff could miss in a month; and (4) the
ALJ failed to resolve conflict between the VE’s testimony and the requirements of the
jobs the ALJ found Plaintiff could perform. Doc. 16 at 3-16.
A.

The ALJ’s evaluation of Plaintiff’s subjective complaints is
supported by substantial evidence.

Social Security Ruling 16-3p defines the two-step process an ALJ must use to
evaluate a claimant’s symptoms. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). At the
first step, the ALJ “consider[s] whether there is an underlying medically determinable
physical or mental impairment[] that could reasonably be expected to produce [the]
individual’s symptoms, such as pain.” Id. at *3. At the second step, after the ALJ has
found such an impairment, the ALJ “evaluate[s] the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit [the] individual’s ability to
perform work-related activities . . . .” Id.
As part of the step two evaluation, the ALJ considers the record evidence,
the claimant’s statements, medical and non-medical source statements,
and the non-exhaustive list of factors in 20 C.F.R. § [404].1529(c)(3), which
include:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received
for relief of pain or other symptoms;

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6. Any measures other than treatment an individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and
restrictions due to pain or other symptoms.
Ramirez v. Berryhill, No. CIV 17-0781 KBM, 2018 WL 4915830, at *8 (D.N.M. Oct. 10,
2018) (quoting SSR 16-3p at *7-8).
Here, ALJ Gerstner summarized Plaintiff’s testimony and self-reports regarding
the pain and other symptoms she experiences due to her ulcerative colitis and related
migraines. AR at 15, 17-18. The ALJ also thoroughly reviewed the evidence of record
and concluded that “[t]he clinical findings prior to [Plaintiff’s] date last insured are not
consistent with the extreme symptoms to which she testified at the hearing. [Her]
treatment records do not support her testimony of debilitating pain and fatigue and
frequent bowel movements on or before December 31, 2013.” AR at 18.
Plaintiff argues that “[t]he ALJ gave weak and insufficient reasons for rejecting
[her] statements regarding” her ulcerative colitis symptoms, and that the evidence he
cited in support of his finding “is not substantial evidence to support that [her]
statements” were not consistent with the record. Doc. 16 at 4-5. The Commissioner
contends that the ALJ reasonably evaluated Plaintiff’s subjective complaints in the
context of the record, and his findings were supported by substantial evidence. Doc. 18
at 19-21. The Court agrees that the ALJ gave thoughtful reasons and finds that his
determination regarding Plaintiff’s subjective complaints is supported by substantial
evidence. Specifically, ALJ Gerstner discussed:
Daily activities: The ALJ reviewed Plaintiff’s account of her daily activities. She
testified that her husband and mother do housework and prepare meals. AR at 23, 140-

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41. The only housework she performs is to occasionally “put a glass or silverware in the
dishwasher.” AR at 23, 141. “[S]he rarely drives due to side effects from medication.”
AR at 2, 121. She goes “grocery shopping with her husband and she can walk around
for about 10 minutes if she is feeling well.” AR at 23, 151-52. She attends church, “but it
takes her hours to get ready.” AR at 23, 151. She listens to music, rarely watches
television, and enjoys getting online to check Facebook and email, but becomes
fatigued after approximately 20-30 minutes and must lie down. AR at 23, 149-50. “She
testified that she lies down on and off all day.” AR at 23, 150.
The location, duration, frequency, and intensity of pain or other symptoms: ALJ
Gerstner reviewed Plaintiff’s allegations of pain and other symptoms, including trouble
concentrating, abdominal pain; “terrible side effects from medication that made it very
difficult for her to concentrate[;]” “bathroom urgency, which caused her anxiety[;]” a loss
of control of her bowels; migraines with an aura, facial pain, and sharp pain that
radiated to her back; diarrhea with pain and bloody mucus; and an inability to sit still or
walk longer than ten minutes because of fatigue and pain. AR at 17-18, 132-34, 144,
149, 152.
Factors that precipitate and aggravate the symptoms: ALJ Gerstner noted that
“[s]tress triggered [Plaintiff’s] flares of ulcerative colitis.” AR at 17, 147-48.
The type, dosage, effectiveness, and side effects of any medication: The ALJ
discussed Plaintiff’s intravenous Remicade infusions (occurring every six or eight
weeks) and Asacol regimen for ulcerative colitis flare-ups (AR at 19, 20), and mentioned
that Plaintiff “stated she was ‘out of it’ the day of the Remicade infusion, the next day,
and the day after that” (AR at 23, 134). He noted that Plaintiff complained of headaches

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occurring approximately two days after the Remicade infusions (AR at 19, 133-34), but
that she had also complained of migraines prior to the infusions (AR at 17). He stated
she “sometimes took prednisone for diarrhea but this was a last resort due to side
effects consisting of hair loss and ‘moon face[,]’” and “at times she also used
suppositories and retention enemas.” AR at 23, 133, 153. ALJ Gerstner mentioned that
Plaintiff experiences “insomnia [as] a side effect of her medication” and takes trazodone
to combat the insomnia, but feels “drowsy, groggy, and ‘drugged’” the next day. AR at
22-23, 147.
Medications and treatment: The ALJ described Plaintiff’s medication regimen as
summarized above. He detailed her medical history during the relevant time period,
noting when she had flares and when she reported that she was “doing well” and the
doctors found her ulcerative colitis was in remission. AR at 18-23.
Measures Plaintiff uses to relieve pain and symptoms: The ALJ stated that Plaintiff
“used medical cannabis and a heating pad” that “‘somewhat’ helped relieve her pain.”
AR at 23, 130-31. He noted that the Imitrex Plaintiff takes for migraines “required her to
sleep for three to four hours to avoid having a ‘rebound headache.’” AR at 23, 134.
Plaintiff acknowledges that the ALJ detailed “treatment records showing long
periods of remission for up to a year or more and generally normal bowel function
during the period at issue” (Doc. 16 at 9 (quoting AR at 23)), but argues that the ALJ
violated SSR 16-3p by using this evidence to “undermine [her] statements concerning
the effects of ulcerative colitis” (id.). Social Security Ruling 16-3p provides that an ALJ
“will not disregard an individual’s statements about the intensity, persistence, and
limiting effects of symptoms solely because the objective medical evidence does not

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substantiate the degree of impairment-related symptoms alleged . . . .” SSR 16-3p at *5.
An ALJ uses “minimal or negative findings or inconsistencies in the objective medical
evidence [as] one of the many factors . . . in evaluating the intensity, persistence, and
limiting effects of an individual’s symptoms.” Id.
Here, the ALJ considered Plaintiff’s complaints of pain and symptoms in
conjunction with the relevant factors discussed in SSR 16-3p. The ALJ thoroughly
summarized the treatment notes from Plaintiff’s providers to support his finding that she
had long periods of remission. AR at 18-19 (noting Plaintiff was “asymptomatic . . . with
no diarrhea, bleeding, or abdominal pain” (citing AR at 428, 436)), 19 (noting her
ulcerative colitis was “in remission” (citing AR at 457)), 19-20 (detailing the many
records that reported Plaintiff was doing “well” (citing AR at 495-96, 492-93, 490, 501,
484, 470-71)). He also specifically discussed why he discounted her testimony that she
had “migraines three to four times per [week].” 3 AR at 15 (although she did tell one
provider in July 2010 that she had migraines one to two times “per week with no relief
from Excedrin” (citing AR at 456), later treatment records established that “she was
getting effective relief from Imitrex” for migraines that typically “occur[red] with menses
or during episodes of increased stress” – “about six times per month” (citing AR at 45444, 522, 975)).
Plaintiff contends that “[t]he fact [she] had periods of remission does not
undermine her statements about the limiting effects of her symptoms.” Doc. 16 at 9. She

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The ALJ actually said “three to four times per month[,]” but he then goes on to discuss that the
treatment record, which shows approximately six migraines per month, does not support Plaintiff’s
testimony about the number of migraines she has per month. See AR at 15. The Court presumes
this was an error.

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argues that the evidence ALJ Gerstner relied on was overwhelmed by other evidence.
Id. The Court disagrees. The ALJ acknowledged the times that Plaintiff experienced
flares of her ulcerative colitis and the accompanying pain and symptoms. See AR at 18
(noting impression of ulcerative colitis with rectum “the only area of disease activity”
(citing AR at 392)), 19 (noting an acute flare in May 2010 with blood, mucus, and
urgency, and a biopsy that showed “chronic active colitis as well as inflammatory
changes in her cecum and ascending colon” (citing AR at 490, 492)), 19 (noting a mild
flare in June 2011 with urgency, mucus, and blood but no abdominal pain (citing AR at
481)), 20 (noting an “acute onset of diarrheal illness that lasted a day and a half” in
March 2012 (citing AR at 476)), 20 (noting that she had experienced a flare in late 2012
that was treated with prednisone (discussing AR at 467-68, see also AR at 470, 473)),
20 (noting that in February 2014, Plaintiff stated that she’d had an increase in urgency,
blood, and abdominal pain over the past six months (citing AR at 536)), 21 (discussing
record evidence of flares after the date last insured). Of the flares that Plaintiff listed in
her motion, the ALJ only failed to discuss one incident: Plaintiff testified that she had
done some seasonal work sorting mail in 2013, but she did not complete the training
due to a flare and was fired due to absences. See Doc. 16 at 6 (citing AR at 123-24).
Plaintiff does not argue, however, that this flare was documented separately in the
medical record, thus the Court does not find that the ALJ erred in failing to discuss it. 4
The Court may not reweigh the record evidence; it may only review the ALJ’s
“decision to ensure that [he] applied the correct legal standard and that [his] findings are

4

The Court notes that ALJ Gerstner did mention this work attempt at Step One. See AR at 14
(noting that Plaintiff made an unsuccessful work attempt at the United States Postal Service in
2012 but left “within three months because of her condition”).

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supported by substantial evidence.” Kayser v. Berryhill, No. 16-cv-0978 SMV, 2017 WL
4857442, at *3 (D.N.M. Oct. 25, 2017) (citing Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1996)). The Court finds that the ALJ’s findings regarding Plaintiff’s subjective
complaints of pain and other symptoms are supported by and linked to substantial
evidence in the record. See id. at *4 (citing Kepler, 68 F.3d at 391).
B.

The ALJ adequately evaluated Dr. Gavin’s opinion.

Plaintiff argues that the ALJ erred in giving Dr. Michael Gavin’s opinion partial
weight on the basis “that the limitations [Dr. Gavin] assessed applied only when [she]
had a flare of ulcerative colitis.” Doc. 16 at 12 (quoting AR at 21). Dr. Gavin, a
gastroenterologist, treated Plaintiff from January 2011 through July 2013. See AR at
697. In July 2014, Dr. Gavin completed a Residual Functional Capacity Form, opining
on Plaintiff’s limitations and symptoms due to her ulcerative colitis diagnosis. See AR at
697-702. He qualified his opinion regarding her functional limitations (sitting, standing,
etc.) to those times when she had a flare of ulcerative colitis. See AR at 698-99. He did
not, however, similarly qualify his opinion of Plaintiff’s symptoms: he noted that she
experienced frequent bathroom visits and daily abdominal pain due to her diagnosis. AR
at 700.
ALJ Gerstner gave “Dr. Gavin’s evaluation partial weight, since he noted that the
limitations he assessed applied only when [Plaintiff] had a flare of ulcerative colitis.” AR
at 21. The ALJ “note[d] that Dr. Gavin did not quantify [the] flares” and “emphasize[d]
that the . . . treatment records, including those from Dr. Gavin, show that [her] condition
was in remission for periods of up to one year or more and that she had generally
normal bowel function during the period on or before her date last insured.” AR at 21.

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Plaintiff contends that the ALJ committed two errors: first, in not explicitly discussing
whether Dr. Gavin’s opinion was entitled to controlling weight, and second, in construing
Dr. Gavin’s opinion regarding Plaintiff’s symptoms to apply only to those times she
experiences flares. Doc. 16 at 12-14.
When analyzing an opinion from a claimant’s treating physician, an “ALJ must
complete a sequential two-step inquiry, each step of which is analytically distinct.”
Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).
An ALJ must first consider whether the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques. . . . If the
ALJ finds that the opinion is well-supported, he must then confirm that the
opinion is consistent with other substantial evidence in the record.
Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014) (quoting Robinson v. Barnhart, 366
F.3d 1078, 1082 (10th Cir. 2004) (internal quotations omitted) (alterations in original)).
“If the opinion is deficient in either of these respects, it is not to be given controlling
weight.” Krauser, 638 F.3d at 1330. However, “[e]ven if a treating opinion is not given
controlling weight, it is still entitled to deference . . . .” Id. The ALJ “must make clear how
much weight the opinion is being given . . . and give good reasons, tied to the factors
specified in the cited regulations for this particular purpose, for the weight assigned.” Id.
When weighing the opinion, the ALJ considers “all of the factors provided in 20 C.F.R.
§ 404.1527[,]” which include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (6) other factors brought to the ALJ's attention
which tend to support or contradict the opinion.

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Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quoting Watkins v. Barnhart,
350 F.3d 1297, 1300-01 (10th Cir. 2003) (internal quotations omitted)).
Here, it is clear that ALJ Gerstner did not give Dr. Gavin’s opinion controlling
weight, and the Court will not reverse on this basis. See Mays, 739 F.3d at 575 (noting
that because it was clear “from the decision that the ALJ declined to give controlling
weight to” the treating physician’s “opinion, [the court would] not reverse on this
ground”) (citation omitted). Further, the Court finds that the ALJ adequately evaluated
Dr. Gavin’s opinion at the second step of the analysis.
With respect to the first, second, and fifth factors, ALJ Gerstner noted that
Plaintiff sought care from Dr. Gavin “approximately every three months for ulcerative
colitis from January 2011 to July 2013.” AR at 21. With respect to the third and fourth
factors, the ALJ specified that he gave Dr. Gavin’s opinion partial weight as the
limitations he opined were confined to the times Plaintiff had a flare of ulcerative colitis.
AR at 21. The ALJ discounted the opinion because Dr. Gavin did not quantify the flares,
and the ALJ found that Plaintiff’s “treatment records, including those from Dr. Gavin,
show that [her] condition was in remission for periods of up to one year or more and that
she had generally normal bowel function during the period on or before her date last
insured.” AR at 21.
Plaintiff complains that Dr. Gavin did not explicitly limit his opinion regarding her
symptoms to those times she has flares, and the ALJ erred in so finding. Doc. 16 at 1213. Yet, the record supports the ALJ’s finding, as the ALJ detailed earlier in his decision.
For example, in May 2011, Dr. Gavin noted that Plaintiff’s last flare of ulcerative colitis

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was a year prior, and she was “doing well” with “two to three bowel movements per day
that were well formed and non-bloody[, and s]he denied any pain, nausea, or vomiting.”
AR at 19 (citing AR at 484). In March 2012, Dr. Gavin compared “a rather acute onset of
diarrheal illness” with “normal bowel function,” in which she had two bowel movements
per day with no fever, chills, or abdominal pain. See AR at 20 (citing AR at 476). In
January 2013, when Dr. Gavin reported that Plaintiff was in “clinical remission,” he
stated that she had two formed bowel movements per day with “no associated
abdominal pain.” AR at 20 (citing AR at 470-71). The Court notes that Dr. Gavin referred
to Plaintiff’s symptoms as “ulcerative colitis symptoms” and noted that she denied
symptoms during the times her disease was in remission. See, e.g., AR at 467-68.
Plaintiff does not point to any treatment record to support a finding that she
exhibited these symptoms when she was not experiencing a flare of ulcerative colitis.
See Docs. 16 at 12-14; 19. Ultimately, the Court finds that the ALJ’s decision to give Dr.
Gavin’s opinion partial weight is well-reasoned and supported by substantial evidence.
C.

The Court will remand for further analysis of the VE’s testimony.

Plaintiff makes two arguments regarding the VE’s testimony. First, she contends
that the ALJ misstated the VE’s testimony about the number of days an individual can
miss work without being disciplined or terminated. Doc. 16 at 11-12. Second, she
argues that the ALJ failed to resolve a conflict between the VE testimony and the
Dictionary of Occupational Titles (DOT). Id. at 14-16.
1.

The Court will direct the ALJ to address the contradiction in
the VE’s testimony about the acceptable number of days
missed per month.

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At the administrative hearing, the ALJ asked the VE about the number of days off
employers generally find acceptable: “What would be excessive in a competitive work
environment?” AR at 170. The VE replied:
Anything more than one day per month is . . . what employers say. However,
if an individual continually took one day per month, I’m sure that would also
result in progressive discipline or termination . . . . But one day per month
is the acceptable rate. Nothing more than one per month.
AR at 170. Later, Plaintiff’s attorney asked the VE, “if [Plaintiff] were to miss a day every
eight weeks” for infusion treatments, “would that have to be accommodated by an
employer?” AR at 171. The VE responded “Yes, it would. . . . Because that, I believe,
would take perhaps more than one day.” AR at 172. The attorney clarified that “if
[Plaintiff] were to take [the infusion] on Friday,” and return to work on Monday, “you’re
saying that would eliminate jobs?” AR at 172. The VE replied “Definitely.” AR at 172.
The ALJ mentioned this discrepancy in the VE’s testimony:
The vocational expert also testified that absences greater than one day per
month would be considered excessive and would preclude competitive
employment and that one day of absence per month would normally be “the
acceptable rate.” [Plaintiff’s attorney] asked the vocational expert to assume
that the individual would need to miss a minimum of one day of work every
eight weeks for infusion treatments. The vocational expert testified that this
would be an accommodation[] which would eliminate competitive
employment. However, I do not rely on the vocational expert’s testimony as
the basis for my decision, since one day of absence every eight weeks is
within the one day per month the vocational expert previously testified would
normally be acceptable.
AR at 25. In other words, the ALJ chose to credit the VE’s first statement (one day of
missed work per month is acceptable) over her second statement (one day of missed
work every eight weeks will eliminate jobs). Because the Court will remand for the
reasons discussed below, the Court will also direct the VE to clear up any discrepancies

16

regarding the acceptable number of absences. See Campbell v. Bowen, 822 F.2d 1518,
1523 n.6 (10th Cir. 1987) (noting that an ALJ “may not ask a [VE] a hypothetical
question based on substantial evidence and then ignore unfavorable answers”)
(citations omitted).
2.

The Court will remand so that the ALJ may address the
inconsistency between the VE’s testimony and the DOT.

Finally, Plaintiff argues that the ALJ failed to resolve an inconsistency in the VE’s
testimony with information in the DOT, in that the reasoning level of cashier II (DOT
Code 211.462-010), mail sorter (DOT Code 209.687-026), and furniture rental clerk
(DOT Code 295.357-018) is not consistent with the ALJ’s finding that Plaintiff is limited
to jobs in which she can understand, remember, and carry out simple, routine, and
repetitive tasks and make simple work-related decisions. See Doc. 16 at 14. The jobs
the VE testified to and the ALJ identified as appropriate for Plaintiff require a reasoning
level of three. See AR at 25, 166-67; see also DOT Vol. I, at 181, 183, 234 (4th ed. rev.
1991). 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 SSR
00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). This is an “affirmative responsibility” in
which the adjudicator must both “[a]sk the VE . . . if the evidence he or she has provided
conflicts with the information provided in the DOT; and [if] 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.

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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 cashier II, mail sorter, and furniture rental clerk jobs, all
with a reasoning level of three, are inconsistent with her RFC limitation to simple,
routine, and competitive tasks and simple work-related decisions. A reasoning level of
three requires a worker to: “Apply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form. Deal with problems involving several
concrete variables in or from standardized situations.” Id. The Tenth Circuit has “held
that a limitation to ‘simple and routine work tasks . . . seems inconsistent with the
demands of level-three reasoning.” Paulek v. Colvin, 662 F. App’x 588, 594 (10th Cir.
2016) (quoting Hackett, 395 F.3d at 1176).
The Commissioner does not dispute this argument, but instead urges the Court
to consider that Plaintiff may have the “ability to perform the jobs identified by the ALJ”
due to her education (two years of college) and past relevant work (which required a
GED reasoning level of four). Doc. 18 at 22. Yet, the ALJ specifically found that Plaintiff
was unable to perform her past relevant work (AR at 24); thus, the Court does not find it
appropriate to hypothesize that she can perform tasks outside of her RFC based on her

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past relevant work. In short, the ALJ failed to obtain an explanation for this clear conflict.
The Commissioner cites no authority to support her position that the ALJ’s error is
harmless, or that it is at all appropriate for the Court to make such a post-hoc finding in
the ALJ’s place.
As a back-up plan, the government asks the Court to accept two other jobs that
the VE mentioned as possibilities—addresser and toy stuffer. Doc. 18 at 23 (citing AR at
167-69). The Commissioner cites Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir.
2009), for the proposition that where the ALJ erroneously relied on two jobs, but
substantial evidence showed the claimant could perform a third job, the error on the first
two jobs was harmless. Raymond is distinguishable, however, because the ALJ actually
listed the third job in the decision. See id. at 1271, 1274. Here, ALJ Gerstner did not
mention the jobs of addresser or toy stuffer in his decision. Moreover, as Plaintiff points
out in her reply, these two positions add up to only 10,028 jobs in the economy. See
Doc. 19 at 2-3; AR at 168-69 (addresser – 6,197 jobs; toy stuffer – 3,831 jobs). The
government did not argue that these positions represent a significant number of jobs in
the economy, and the Court declines to supply that argument in its place.
For these reasons, the Court will reverse and remand for further analysis of the
conflict between the VE’s testimony and the DOT.
V.

Conclusion
The Court finds that the ALJ’s evaluation of Plaintiff’s subjective complaints is

supported by substantial evidence and that the ALJ adequately evaluated Dr. Gavin’s
opinion. The Court will remand, however, because the ALJ failed to address an
inconsistency between the VE’s testimony and the DOT. The ALJ should also address

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the contradiction in the VE’s testimony about the acceptable number of days an
individual may miss work in a month.
Wherefore,
IT IS ORDERED that Plaintiff’s Motion to Reverse and Remand to Agency for
Rehearing with Supporting Memorandum (Doc. 16) is GRANTED.

________________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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