Sida v. Social Security Administration
Filing
33
MEMORANDUM OPINION AND ORDER re 24 MOTION to Remand by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DWAYNE SIDA,
Plaintiff,
vs.
No. CIV 17-0638 JB\GJF
SOCIAL SECURITY ADMINISTRATION
NANCY A. BERRYHILL, acting
Commissioner of SSA,
Defendant.
MEMORANDUM OPINION AND ORDER1
THIS MATTER comes before the Court on the Plaintiff’s Motion to Reverse and Remand
for Rehearing with Supporting Memorandum, filed January 24, 2018 (Doc. 24)(“Motion”). The
Motion is fully briefed. See Brief in Response to Plaintiff’s Motion to Reverse and Remand the
Agency’s Administrative Decision, filed March 23, 2018 (Doc. 26)(“Response”); Reply in
Support of Plaintiff’s Motion to Reverse and Remand for a Rehearing, filed April 23, 2018
(Doc. 30). Having meticulously reviewed the entire record and the briefing, the Court concludes
that the Motion has merit and that the Court should reverse and remand the Administrative Law
Judge’s ruling.2
1
The Court previously issued an Order that granted the requests in the Plaintiff’s Motion
to Reverse and Remand for Rehearing with Supporting Memorandum, filed January 24, 2018
(Doc. 24), and reversed the Administrative Law Judge’s ruling. See Order at 1, filed September
28, 2018 (Doc. 32)(“Order”). In the Order, the Court stated that it would later issue a
Memorandum Opinion and Order more fully detailing its rationale for this decision. See Order at
1 n.1. This Memorandum Opinion and Order is the promised opinion that details the Court’s
rationale for the previous Order and that remands the Administrative Law Judge’s ruling.
2
Pursuant to 28 U.S.C. § 636(b)(4), the Court withdraws the Order of Reference Relating
to Social Security Appeals, filed October 20, 2017 (Doc. 19), to the Honorable Gregory J. Fouratt,
United States Magistrate Judge for the United States District Court for the District of New Mexico.
FACTUAL BACKGROUND
Plaintiff Dwayne Sida was born August 6, 1970. See Administrative Record at 71, filed
October 20, 2017 (Doc. 18-1)(“AR”). He graduated high school and attended “a couple of years
of college,” but did not receive a degree. AR at 45. From 1989 to 2011, Sida held semi-continuous
employment, working as a heavy equipment operator, sandblaster, long-haul truck driver, and
maintenance man. See AR at 220.
Sida filed applications for both Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under the Social Security Act, 42 U.S.C. § 404 et seq. and § 1381 et seq.
(“the Act”), on November 6, 2012. See AR at 191-98. Sida claimed disability beginning on
November 1, 2010, based on a shattered left foot, post-traumatic stress disorder (“PTSD”),
depression, high blood pressure, and anxiety. See AR at 71. The Social Security Administration
(“SSA”) denied Sida’s application initially and upon reconsideration. See AR at 79-80, 89-90. At
his request, Sida received a de novo hearing before Administrative Law Judge (“ALJ”) Barry
O’Melinn, at which Sida, Sida’s attorney, and a vocational expert (“VE”) appeared. See AR at
32-70. On March 4, 2016, ALJ O’Melinn issued his decision, concluding that Sida is not disabled
within the Act’s meaning. See AR at 14-26. Sida appealed to the SSA Appeals Council, but it
declined review. See AR at 1-3. As a consequence, ALJ O’Melinn’s decision became the SSA
Commissioner’s final decision. See 20 C.F.R. § 422.210(a) (2018).
PROCEDURAL BACKGROUND
Sida then timely filed his appeal with this Court. See Complaint, filed June 13, 2017
(Doc. 1). Sida advances three grounds for relief. First, he argues that ALJ O’Melinn breached his
duty to develop the administrative record regarding Sida’s psychological impairments. See Motion
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at 15-18. Next, he contends that ALJ O’Melinn improperly rejected the opinion of Caryn Stone,
his treating licensed-mental-health counselor. See Motion at 18-22. Last, he contends that ALJ
O’Melinn’s step five analysis was legally infirm and bereft of substantial evidence. See Motion
at 22-27.
1. The ALJ’s Decision.
ALJ O’Melinn issued his decision on March 4, 2016. See AR at 11. At step one, he
concludes that Sida has not engaged in substantial gainful activity since the alleged disability onset
date of November 1, 2010. See AR at 16. At step two, ALJ O’Melinn finds Sida’s bilateral
shoulder pain and torn rotator cuff, along with his “mental disorders variously diagnosed as
posttraumatic stress disorder, depression[,] and anxiety,” to be severe impairments. AR at 17. In
contrast, ALJ O’Melinn finds Sida’s hypertension, foot pain, thyroid and liver disorders, and
alcohol abuse to be non-severe. See AR at 17-18.
At step three, ALJ O’Melinn concludes that none of Sida’s impairments, alone or in
combination, meet or medically equal the severity of a listed impairment in 20 C.F.R. § 404,
Subpart P, App. 1. See AR at 19-20. Specifically, ALJ O’Melinn considers Sida’s mental
impairments under Listing 12.04 (affective disorders) and 12.06 (anxiety-related disorders). ALJ
O’Melinn determines that the evidence does not satisfy the paragraph B criteria of these Listings,3
3
Paragraph B of Listings 12.04 and 12.06, which were identical at the relevant time in both,
describes impairment-related functional limitations that are incompatible with the ability to do any
gainful activity. The functional limitations must be the result of the mental disorder that the
diagnostic description describes. To meet either of these two Listings, a claimant must exhibit at
least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
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“[b]ecause the claimant’s mental impairments do not cause at least two ‘marked’ limitations or
one ‘marked’ limitation and ‘repeated’ episodes of decompensation, each of extended duration.”
AR at 20. He then explains his reasoning regarding paragraph B’s four subparts.
ALJ O’Melinn begins by evaluating Sida’s activities of daily living (“ADLs”). See AR at
19. ALJ O’Melinn finds Sida to have only a mild restriction. See AR at 19. ALJ O’Melinn
references Sida’s testimony that “he could do household cleaning and chores,” along with Sida’s
self-reporting that he can clean, perform most house repairs, do yard work, or work with firewood
for up to two hours per day. AR at 19. Moreover, ALJ O’Melinn focuses on Sida’s self-reporting
that, to the extent he has limitations in personal care, they “[are] not due [to] mental functioning
but rather lack of transportation or money.” AR at 19.
Second, ALJ O’Melinn finds Sida has only mild difficulties with social functioning. ALJ
O’Melinn cites statements from Sida’s “Adult Function Report,” AR at 236-45, in support,
including that Sida can shop for basic needs when able to find transportation, and that Sida receives
and maintains food stamps. See AR at 19. ALJ O’Melinn further observes that Sida visits his
family on a regular basis, sees his girlfriend daily, and reports no general difficulties in getting
along with others. See AR at 19.
Third, ALJ O’Melinn finds that Sida has moderate difficulties with concentration,
persistence, and pace. ALJ O’Melinn describes Sida’s accounts of difficulties, including difficulty
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. § 404, Subpart P, App. 1, Part A1, 12.04(B) & 12.06(B) (2015). On March 27, 2017,
the SSA significantly altered the language of these listings in ways that are not relevant to this
decision.
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following written instructions, finishing what he starts, and handling stress well. See AR at 19.
ALJ O’Melinn does not, however, take all of Sida’s self-reported challenges at face value. Indeed,
while Sida “reported he could not handle money by paying bills, counting change, etc.,” ALJ
O’Melinn emphasizes Sida’s own explanation that “the reason was due to [Sida’s] lack of a job.”
AR at 19. Similarly, while Sida alleges memory problems, “the only example he gave is walking
from one room to another and forgetting what he was going to the new room to get.” AR at 19.
To ALJ O’Melinn, this problem represents “a routine experience,” which, when considered
alongside Sida’s other self-reporting, leads ALJ O’Melinn to find no more than a moderate
difficulty in this area.
ALJ O’Melinn concludes his paragraph B discussion by finding that Sida “has experienced
no episodes of decompensation, which have been of extended duration.” AR at 20.
Alongside his paragraph B findings, ALJ O’Melinn also considers whether Sida qualifies
under the paragraph C criteria.4 ALJ O’Melinn answers this inquiry in the negative, finding that
“the evidence fails to establish the presence of the ‘paragraph C’ criteria.” AR at 20.
4
At the time of ALJ O’Melinn’s decision, Paragraph C of Listings 12.04 and 12.06
provided that, in those instances where a claimant cannot meet the Paragraph B criteria, the
claimant may nevertheless qualify if he or she can show:
C. Medically documented history of a chronic affective disorder of at least 2 years’
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to
decompensate; or
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After concluding that none of Sida’s impairments satisfy an applicable Listing, ALJ
O’Melinn moves to step four and assesses Sida’s residual functional capacity (“RFC”). See AR at
16-21. After stating that he had given “careful consideration of the entire record,” ALJ O’Melinn
determines that Sida
has the residual functional capacity to perform light work as defined in 20 [C.F.R.
§§] 404.1567(b) and 416.967(b) except that he is further limited to occasional
pushing or pulling with the lower left extremity. He is limited to frequently
climbing ramps or stairs, occasionally climbing ladders, ropes or scaffolds,
occasionally balancing, stooping, kneeling, crouching, crawling, and occasional
bilateral reaching. He can understand, carry out and remember simple instructions
and make commensurate work related decisions, respond appropriately to
supervision, coworkers and work situations, deal with routine changes in work
setting, and maintain concentration persistence and pace for up to and including
two hours at [a] time with normal breaks throughout the work day.
AR at 20.
To develop Sida’s RFC, ALJ O’Melinn relies on three separate grounds. First, ALJ
O’Melinn renders an adverse credibility finding against Sida, opining that Sida’s “statements
concerning the intensity, persistence[,] and limiting effects of [his] symptoms are not entirely
credible.” AR at 21. To support his finding, ALJ O’Melinn contrasts Sida’s statements concerning
the severity of his symptoms with evidence of record and finds that the evidence does not
substantiate Sida’s contentions. See AR at 21-23.
As a threshold issue, ALJ O’Melinn addresses two allegations that Sida advances. First,
ALJ O’Melinn challenges Sida’s contention that the federal Division of Vocational Rehabilitation
3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.
20 C.F.R. § 404, Subpart P, App. 1, Part A1, §§ 12.04(C) & 12.06(C) (2015).
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(“DVR”) stopped assisting him because he was filing for disability. ALJ O’Melinn dismisses this
supposition, opining that “[i]t makes little sense that a vocational rehabilitation agency would
refuse to work with a person with disabilities.” AR at 21. ALJ O’Melinn concludes that Sida’s
allegation that the “DVR would [n]ot work with him due to alleged disability is incredible.” AR
at 21. Similarly, ALJ O’Melinn questions Sida’s account that “he had to sell his sandblasting
equipment to pay child support.” AR at 21. ALJ O’Melinn contrasts this statement with Sida’s
testimony that he “had his license revoked” and had “been incarcerated for non-payment of child
support in the past.” AR at 21. ALJ O’Melinn reasons that Sida’s “attempt to open his own
business failed for reasons unrelated to disability,” and finds that Sida’s statements on both the
closure of the sandblasting company and DVR’s unwillingness to assist him based on disability
“undermine[s] his credibility and the merits of his claim.” AR at 21.
ALJ O’Melinn also assigns “little weight” to Sida’s allegations concerning the severity of
his symptoms and, by O’Melinn’s account, “relied upon more credible evidence.” AR at 21. ALJ
O’Melinn begins this discussion by recalling Sida’s statement that “he has not healed from rotator
cuff surgery and that his range of motion is limited, only being able to lift his left arm to shoulder
height.” AR at 21. Then, turning to the medical records, ALJ O’Melinn notes that Sida was treated
for shoulder pain in July and August 2013, and prescribed medication. See AR at 22. At a routine
follow-up in October 2013, Sida reported that his shoulder pain continued, but that he had not
started taking his medication. See AR at 22. The clinician observed that Sida smelled of alcohol
and declared that he was at the appointment only to build up his case for disability. See AR at 22.
In the ALJ O’Melinn’s eyes, this “medication non-compliance coupled with the above statement
by [Sida] diminishes the credibility of [Sida].” AR at 22.
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ALJ O’Melinn also discusses Sida’s shoulder pain from 2014, which Sida describes as
originating when he “was fighting and fell on a chair.” AR at 22. Falling out of a tree the next
year aggravated Sida’s injury. See AR at 22. Sida underwent surgery in March 2015, “and follow
up appointments indicated steady improvement in pain level and range of motion.” AR at 22.
Clinical notes remark that Sida “had full range of motion, still had some popping in the shoulder[,]
but was not in any pain” at his July 2015, follow up. AR at 22. Moreover, ALJ O’Melinn
emphasizes that Sida participated in physical therapy from April through July 2015, for eleven
visits, and that notes indicate that he “reached maximum rehabilitation potential [and] no further
physical therapy was needed.” AR at 22. Based on these clinical observations, ALJ O’Melinn
opines that, “[w]hile the fact that [Sida] underwent surgery suggests the symptoms were genuine,
this is offset by the fact that the record reflects the surgery was generally successful in relieving
the symptoms.” AR at 22.
ALJ O’Melinn closes his adverse credibility finding by comparing Sida’s statements
concerning his mental impairments to the medical evidence of record. Sida reports treatment from
several providers for depression, PTSD, and anxiety beginning in 2013 at Ben Archer Health
Center. See AR at 22. Sida reports that, at that time, he “hear[d] music in his ears at times along
with ringing but denied visual hallucinations.” AR at 22. At a follow-up appointment, Sida
describes continued anxiety, but also relates that he has not started his prescribed medication and
has stopped attending behavioral therapy. See AR at 22. Later treatment at La Frontera in 2014
and 2015 reveals a similar pattern. See AR at 23. Sida was treated for depression and anxiety, but
treatment notes record further non-compliance with medication. See AR at 23. Nevertheless,
“treatment records note progress with medication effectiveness as they adjust the medication and
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amounts,” including an escalation of Sida’s Global Assessment of Functioning (“GAF”) scores5
from 35 to the 70s in the most recent tests of April and June 2015. AR at 23. ALJ O’Melinn drew
two conclusions from Sida’s mental health history: (i) that his “non-compliance with medication
demonstrates a possible unwillingness to do that which is necessary to improve his condition,”
which might indicate his symptoms are less severe than purported; and (ii) that, with proper
treatment, Sida demonstrates “significant improvement.” AR at 22-23.
ALJ O’Melinn also weighs the statements of Sida’s girlfriend, Deborah Apodaca, as the
second basis for his RFC finding. In ALJ O’Melinn’s estimation, the statements that Apodaca
provide concerning Sida’s condition “appear to only repeat the subjective complaints already
testified to and reported by [Sida].” AR at 24. Furthermore, ALJ O’Melinn opines that Apodaca
is neither a medical professional nor an uninterested party. See AR at 24. “Most importantly,”
ALJ O’Melinn concludes, “the clinical or diagnostic medical evidence that is discussed more
thoroughly herein does not support [her] statements.” AR at 24. Thus, ALJ O’Melinn finds
Apodaca’s statements “not credible.” AR at 24.
Third, ALJ O’Melinn relies on the medical evidence of record. To begin, ALJ O’Melinn
accords “some weight” to consultative examiner Dr. Marian Landau, D.O. AR at 23. Dr. Landau
finds Sida has full motor strength in the proximal and distal muscle groups in the upper and lower
extremities. See AR at 23. Dr. Landau finds that Sida has tenderness in his left forefoot, and
ultimately diagnoses him with “chronic left foot pain” and uncontrolled hypertension. AR at 23.
5
The Global Assessment of Functioning test is “widely used for scoring the severity of
illness in psychiatry.” I.H. Monrad Aas, Global Assessment of Functioning (GAF): Properties and
Frontier of Current Knowledge, Annals Gen. Psychiatry, May 2010, at 1, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2880316/#B14.
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ALJ O’Melinn accords the opinion some weight, rather than significant weight, as he finds that
Dr. Landau “did not have the opportunity to review additional evidence only available at the
hearing level regarding [Sida’s] impairments, including medical improvement.” AR at 23.
ALJ O’Melinn also assigns “some weight” to the non-examining agency consultants’
opinions who assessed Sida’s physical impairments. AR at 23. These two doctors -- Dr. Karine
Lancaster, M.D., and Dr. Tom Dees, M.D. -- both opine that Sida “is capable of work at the
medium exertional level except [he] is further limited to occasional push/pull with the left lower
extremities, can frequently climb ramps and stairs, occasionally climb ladders, ropes[,] and
scaffolds, occasionally balance, frequently crouch[,] and occasionally crawl.” AR at 23. ALJ
O’Melinn hesitates to grant these opinions more than “some weight,” as he finds Dr. Landau’s
opinions “more consistent with the record as a whole,” and also because neither Dr. Lancaster nor
Dr. Dees has “the benefit of considering the additional evidence that was available only after the
reconsideration determination, including subsequent medical evidence and the hearing testimony.”
AR at 23.
Next, ALJ O’Melinn considers the non-examining agency psychologists’ opinions and
accords their opinions “little weight.” AR at 23-24. These clinicians, Dr. Ralph Rabinowitz,
Ph.D., and Dr. Thomas VanHosse, Ph.D., both rate Sida’s mental impairments as “less than nonsevere.” AR at 24. ALJ O’Melinn discounts their opinions, as neither has had the opportunity to
review the record submitted at the hearing level, “including mental health records from 2014 and
2015.” AR at 24.
Last, ALJ O’Melinn weighs the November 2015, medical assessment that Stone prepared.
See AR at 24.
Stone assigns Sida: (i) “moderate to marked limitations with memory,
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concentration[,] and pace functions”; (ii) “marked limitations in social interactions”; and (iii) and
“moderate to marked limitations in adaptation functions.” AR at 24. ALJ O’Mellin ascribes “little
weight” to Stone’s opinion for multiple reasons. First, he notes that Stone is not an acceptable
medical source. See AR at 24. Further, ALJ O’Melinn remarks that her opinion is “quite
conclusory, providing very little explanation of the evidence relied upon in forming that opinion.”
AR at 24. ALJ O’Melinn observes that Stone “did not document positive objective clinical or
diagnostic findings, and apparently relied quite heavily on the subjective report of symptoms and
limitations provided by [Sida], and seemed to uncritically accept as true most, if not all, of what
[Sida] reported.” AR at 24. ALJ O’Melinn disapproves of this approach, as he finds that “there
exist good reasons for questioning the reliability of [Sida’s] subjective complaints.” AR at 24.
Ultimately, ALJ O’Melinn discounts Stone’s opinion both for its reliance on Sida’s subjective
reports, and because it is “inconsistent with [Sida’s] admitted activities of daily living.” AR at 24.
In the second phase of step four, ALJ O’Melinn discusses the testimony of VE Sandra
Trost, who testified at Sida’s administrative hearing that Sida had past relevant work as a heavy
equipment operator (Dictionary of Occupational Titles (“DOT”)6 # 859.683-010), a sandblaster
(DOT # 503.687-010), a janitor (DOT # 381.687-018), a groundskeeper (DOT # 406.687.010),
and as a house repairer (DOT # 869.381-010). See AR at 25, 30. Then, at the third and final phase
of step four, ALJ O’Melinn finds that Sida is “unable to perform past relevant work.” AR at 25.
6
The DOT includes information about jobs -- classified by their exertional and skill
requirements -- that exist in the national economy. See 20 C.F.R. § 220.134 (2018). Regulations
require the Commissioner to take administrative notice of job information that the DOT provides.
See 20 C.F.R. § 404.1566 (2018).
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At step five, ALJ O’Melinn relies on Trost’s testimony to determine what jobs, if any, Sida
could still perform. Trost takes Sida’s RFC into consideration and opines that Sida can perform
the occupations of furniture rental consultant (DOT # 295.357-018), with a specific vocational
preparation (“SVP”) level of 2 and 49,378 jobs in the national economy, and usher (DOT
# 344.677-014), with an SVP level of 2 and 16,691 jobs in the national economy. See AR at 26.
Notably, upon examination by Sida’s counsel, Trost acknowledges that the position of furniture
rental consultant represents a position with reasoning level three in the DOT. See AR at 68.
Notwithstanding this admission, ALJ O’Melinn in his ruling states that, “[p]ursuant to [Social
Security Ruling (“SSR”)] 00-4p,” he has “determined that the vocational expert’s testimony is
consistent with the information contained in the Dictionary of Occupational Titles.” AR at 26.
Having accepted Trost’s testimony, ALJ O’Melinn finds Sida “capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” AR at 26.
Accordingly, ALJ O’Melinn finds that Sida has not been under a disability, as the Act defines that
term, during the relevant time period and denied his claim. See AR at 26.
STANDARD OF REVIEW
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision
becomes the agency’s final decision.7 The court’s review of that final agency decision is both
factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008)(“The standard of
review in a social security appeal is whether the correct legal standards were applied and whether
the decision is supported by substantial evidence.” (citing Hamilton v. Sec’y of Health & Human
7
A court’s review is limited to the Commissioner’s final decision, see 42 U.S.C. § 405(g)
(2012), which generally is the ALJ’s decision and not the Appeals Council’s denial of review. See
O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994); 20 C.F.R. § 404.981 (2018).
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Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). The factual findings at the administrative level
are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004)(internal quotations omitted)(quoting
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003)); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004)(internal quotations omitted)(quoting Doyal v. Barnhart, 331 F.3d at 760). An
ALJ’s decision “is not based on substantial evidence if it is overwhelmed by other evidence in the
record or if there is a mere scintilla of evidence supporting it.” Langley v. Barnhart, 373 F.3d at
1118 (internal quotations omitted)(quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988));
Hamlin v. Barnhart, 365 F.3d at 1214 (internal quotations omitted)(quoting Bernal v. Bowen, 851
F.2d at 299). Substantial evidence does not, however, require a preponderance of the evidence.
See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)(citing Zoltanski v. Fed. Aviation Admin.,
372 F.3d 1195, 1200 (10th Cir. 2004)). A court should meticulously review the entire record but
should neither reweigh the evidence nor substitute its judgment for that of the Commissioner. See
Langley v. Barnhart, 373 F.3d at 1118; Hamlin v. Barnhart, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the court examines “whether the ALJ
followed the ‘specific rules of law that must be followed in weighing particular types of evidence
in disability cases.’” Lax v. Astrue, 489 F.3d at 1084 (quoting Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005)). The court may reverse and remand if the ALJ failed “to apply the correct
legal standards, or to show . . . that [he or] she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019
(10th Cir. 1996). Ultimately, if substantial evidence supports the ALJ’s findings and the correct
legal standards were applied, the Commissioner’s decision stands, and the plaintiff is not entitled
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to relief. See Langley v. Barnhart, 373 F.3d at 1118; Hamlin v. Barnhart, 365 F.3d at 1214, Doyal
v. Barnhart, 331 F.3d at 760.
SEQUENTIAL EVALUATION PROCESS
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical severity
of the claimant’s impairments, and the requirements of the Listing of Impairments.8 See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4), & 404 Subpart P, App. 1. If a claimant’s impairments are not
equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases
of step four and determines the RFC. See Winfrey v. Chater, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of
the claimant’s past relevant work, and in the third phase, compares the claimant’s RFC with the
functional requirements of his or her past relevant work to determine if the claimant is still capable
of performing his or her past work. See Winfrey v. Chater, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from performing his or her past work, then
he or she is not disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden
of proof on the question of disability for the first four steps, and then the burden of proof shifts to
the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler,
814 F.2d 1456, 1460 (10th Cir. 1987). If the claimant cannot return to his or her past work, then
8
The Listing of Impairments is contained in 20 C.F.R. Appendix 1 to Subpart P of Part 404.
The Listing of Impairments provides, “for each of the major body systems[,] impairments that [the
SSA] consider[s] to be severe enough to prevent an individual from doing any gainful activity,
regardless of his or her age, education, or work experience.” 20 C.F.R. § 404.1525(a).
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the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless
capable of performing other jobs existing in significant numbers in the national economy. See
Barnhart v. Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th
Cir. 1988)(discussing the five-step sequential evaluation process in detail).
ANALYSIS
Sida advances three allegations of error, but the Court need only address the last, as the
Court concludes that it necessitates remand. Sida challenges ALJ O’Melinn’s step five findings
on multiple fronts. First, he asserts that ALJ O’Melinn commits legal error by failing to resolve a
conflict between Trost’s testimony and the DOT concerning Sida’s ability to perform the job of
furniture rental consultant. See Motion at 22-24. Additionally, Sida contends that ALJ O’Melinn
did not perform the analysis Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992), requires for the
remaining, borderline number of usher jobs that Trost identified in the national economy, thereby
depriving his opinion of the substantial evidence required for affirmance. See Motion at 24-27.
Both arguments persuade the Court for the reasons set forth below.
I.
ALJ O’MELINN COMMITTED MULTIPLE LEGAL ERRORS AT STEP FIVE.
Sida argues that Trost erroneously identifies the furniture-rental-consultant position as a
position that he could hold with his assigned RFC. Sida initiates this challenge by recalling the
relevant portion of ALJ O’Melinn’s hypothetical to Trost, which limited Sida to the ability to
“understand, remember, and carry out simple instructions and make commensurate work-related
decisions.” Motion at 23-24 (internal quotation marks omitted)(quoting AR at 64-65). He argues
that “there is a discrepancy” between this RFC and the reasoning development level which the
DOT identifies as being necessary for the position of furniture rental consultant. Motion at 22.
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Sida explains that the reasoning development code for furniture rental consultant in the DOT is
“R3,” which the DOT defines as requiring the worker to “[a]pply commonsense understanding to
carry out instructions furnished in written, oral, or diagrammatic form[ and d]eal with problems
involving several concrete variables in or from standardized situations.” Motion at 23 (emphasis
omitted).
In addition to highlighting the textual conflict between the RFC and the DOT, Sida also
directs the Court to the United States Court of Appeals for the Tenth Circuit’s decision in Hackett
v. Barnhart, where he contends the Tenth Circuit “held that a level-two reasoning appeared to be
consistent with an RFC where the claimant ‘retains the attention, concentration, persistence, and
pace levels required for simple and routine work tasks.’” Motion at 23 (quoting Hackett v.
Barnhart, 395 F.3d at 1176).
Thus, Sida concludes that “ALJ O’Melinn’s reliance upon
inconsistent and unsupported VE testimony is legal error and is not substantial evidence supporting
his Step 5 finding.” Motion at 24. He bolsters his conclusion by reminding the Court both that it
is ALJ O’Melinn’s duty to resolve any conflicts between Trost’s testimony and the DOT pursuant
to SSR 00-4p, and that the Commissioner bears the burden at step five “to prove that the claimant
can perform other work existing in the national economy.” Motion at 24 (internal quotation marks
omitted)(quoting Talbot v. Heckler, 814 F.2d at 1460)(citing SSR 00-4p, 2000 WL 1898704 (Dec.
4, 2000)).
The Commissioner responds only circuitously to Sida’s argument. Notably, she never
concedes a conflict between Trost’s recommendation and the DOT.
The Commissioner
emphasizes instead that the reasoning level at issue is just one component of the General
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Educational Development (“GED”)9 calculus of the DOT, which “embraces those aspects of
education (formal and informal) that are required of a worker for satisfactory job performance.”
Response at 19 (emphasis omitted)(citing DICOT, App. C, 1991 WL 688702). The Commissioner
acknowledges the Hackett v. Barnhart court’s observation “that a limitation to ‘simple and routine
tasks’ seemed inconsistent with the demands of level 3 reasoning,” but questions the applicability
of Hackett v. Barnhart’s guidance, as, in Hackett v. Barnhart, the “Tenth Circuit did not discuss
the claimant’s education level.” Response at 19 (emphasis in original)(citing Hackett v. Barnhart,
9
The DOT uses the acronym GED to refer to General Educational Development, which it
describes as follows:
General Educational Development embraces those aspects of education
(formal and informal) which are required of the worker for satisfactory job
performance. This is education of a general nature which does not have a
recognized, fairly specific occupational objective. Ordinarily, such education is
obtained in elementary school, high school, or college. However, it may be
obtained from experience and self-study.
The GED Scale is composed of three divisions: Reasoning Development,
Mathematical Development, and Language Development. The description of the
various levels of language and mathematical development are based on the
curricula taught in schools throughout the United States. An analysis of
mathematics courses in school curricula reveals distinct levels of progression in the
primary and secondary grades and in college. These levels of progression
facilitated the selection and assignment of six levels of GED for the mathematical
development scale.
However, though language courses follow a similar pattern of progression
in primary and secondary school, particularly in learning and applying the
principles of grammar, this pattern changes at the college level. The diversity of
language courses offered at the college level precludes the establishment of distinct
levels of language progression for these four years. Consequently, language
development is limited to five defined levels of GED inasmuch as levels 5 and 6
share a common definition, even though they are distinct levels.
DICOT, App. C, 1991 WL 688702.
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395 F.3d at 1176). Rather, she maintains that, in two recent unpublished decisions, “the Tenth
Circuit has recognized that GED levels describe general educational background, not specific
mental or skill requirements.” Response at 19 (citing Anderson v. Colvin, 514 F. App’x 756, 764
(10th Cir. 2013)(unpublished); Mounts v. Astrue, 479 F. App’x 860, 868 (10th Cir.
2012)(unpublished)). Thus, based on Sida having achieved at least a high school education, the
Commissioner posits that “there is no actual conflict in this case between the vocational expert
testimony and the DOT based on Hackett.” Response at 20. Accordingly, she concludes, “[i]n the
absence of an actual conflict, any failure by the ALJ to explain any resolution between the
vocational expert’s testimony and the DOT job descriptions is harmless.” Response at 20 (citing
Poppa v. Astrue, 569 F.3d 1167, 1173-74 (10th Cir. 2009)).
A.
SSR 00-4P DEMANDS IDENTIFYING AND RESOLVING VE CONFLICTS
WITH THE DOT.
“In making disability determinations,” the SSA relies “primarily on the DOT” at steps four
and five of the sequential evaluation process. SSR 00-4p, 2000 WL 1898704, at *2. Nonetheless,
ALJs may also use VEs “at these steps to resolve complex vocational issues.” SSR 00-4p, 2000
WL 1898704, at *2. Occupational evidence that a VE provides “generally should be consistent
with the occupational information supplied by the DOT.” SSR 00-4p, 2000 WL 1898704, at *2.
“When there is an apparent unresolved conflict between VE . . . evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the conflict before relying on the
VE . . . evidence to support a determination or decision about whether the claimant is disabled.”
SSR 00-4p, 2000 WL 1898704, at *2. “Neither the DOT nor the VE . . . evidence automatically
‘trumps’ when there is a conflict. The adjudicator must resolve the conflict by determining if the
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explanation given by the VE . . . is reasonable and provides a basis for relying on the
VE . . . testimony rather than on the DOT information.” SSR 00-4p, 2000 WL 1898704, at *2.
Where an ALJ takes testimony from a VE, the ALJ assumes two affirmative
responsibilities. First, in all cases where a VE provides evidence about the requirements of a job
or occupation, SSR 00-4p commands the ALJ to “[a]sk the VE . . . if the evidence he or she has
provided conflicts with information provided in the DOT.” SSR 00-4p, 2000 WL 1898704, at *4.
Then, in those cases where the VE’s testimony appears to conflict with the DOT, the ALJ must
“obtain a reasonable explanation for the apparent conflict.” SSR 00-4p, 2000 WL 1898704, at *4.
Should such a conflict arise, an ALJ “must resolve the conflict before relying on the VE” testimony
to support a disability determination. SSR 00-4p, 2000 WL 1898704, at *4. Furthermore, the ALJ
must explain how the conflict was resolved, “irrespective of how the conflict was identified.” SSR
00-4p, 2000 WL 1898704, at *4.
B.
HACKETT V. BARNHART REQUIRES CONSISTENCY BETWEEN
SIDA’S RTC AND THE JOB’S REASONING LEVEL.
In Hackett v. Barnhart, the Tenth Circuit was asked to decide whether a limitation to simple
and routine tasks precluded a claimant from working in a position requiring reasoning level three.
There, the claimant’s RFC provided that, “[m]entally, [the claimant] retains the attention,
concentration, persistence and pace levels required for simple and routine work tasks.” 395 F.3d
at 1176 (citation and internal quotation marks omitted). Based on that RFC, a VE at the claimant’s
administrative hearing had testified that she could work as both a call-out operator and a
surveillance-system monitor, which both require a reasoning level of three. See 395 F.3d at 1176.
The claimant argued, however, that “her RFC, as found by the ALJ, [was] incompatible with jobs
requiring a reasoning level of three.” 395 F.3d at 1176.
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To decide the issue, the Tenth Circuit in Hackett v. Barnhart looked to the DOT’s plain
language. The DOT defines reasoning level three as the ability to “[a]pply commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic form[, and d]eal
with problems involving several concrete variables in or from standardized situations.” 395 F.3d
at 1176 (alterations in original)(internal quotation marks omitted)(quoting DICOT, App. C, 1991
WL 688702). The Tenth Circuit in Hackett v. Barnhart then compared that definition with GED
reasoning level two, which requires a worker to “[a]pply commonsense understanding to carry out
detailed but uninvolved written or oral instructions [and d]eal with problems involving a few
concrete variables in or from standardized situations.” 395 F.3d at 1176 (alterations in
original)(internal quotation marks omitted)(quoting DICOT, App. C, 1991 WL 688702). By
comparing the two levels, the Tenth Circuit determined that the claimant’s limitation to “‘simple
and routine work tasks’ . . . seems inconsistent with the demands of level-three reasoning.” 395
F.3d at 1176 (citation omitted). Rather, the Tenth Circuit opined, “level-two reasoning appears
more consistent with Plaintiff’s RFC.” 395 F.3d at 1176.
C.
ALJ O’MELINN ERRED BY FAILING TO RESOLVE THE CONFLICT
BETWEEN TROST’S TESTIMONY AND THE DOT.
Even within this first subset of Sida’s claim, two grounds for remand exist. The first
derives from SSR 00-4p, which imposes upon ALJs “an affirmative responsibility to ask . . . the
VE . . . if the evidence he or she has provided conflicts with information provided in the DOT.”
SSR 00-4p, 2000 WL 1898704, at *4. Here, ALJ O’Melinn conspicuously neglected to ask. See
AR at 60-68. Yet, in his decision denying Sida’s disability claims, ALJ O’Melinn states that,
“[p]ursuant to SSR 00-4p, I have determined that the vocational expert’s testimony is consistent
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with the information contained in the Dictionary of Occupational Titles.”
AR at 26.
Unfortunately, he did no such thing.
Additionally, the Court will remand this matter because it is not apparent from the record
or the parties’ briefing that Sida has the ability to work as a furniture rental consultant under his
present RFC. The Court recognizes that the Tenth Circuit’s language in Hackett v. Barnhart is not
mandatory and, moreover, that the language may be dicta. See Hackett v. Barnhart, 395 F.3d at
1176 (noting that the limitation to simple and routine tasks seems inconsistent with the demands
of level-three reasoning). Nevertheless, the same logic that persuaded the Tenth Circuit in Hackett
v. Barnhart persuades this Court.
In this cause, the relevant portion of Sida’s RFC states that “[h]e can understand, carry
out[,] and remember simple instructions and make commensurate work related decisions.” AR at
20. Just as in Hackett v. Barnhart, this limitation seems facially incompatible with a GED
reasoning level 3 position where a worker must “[a]pply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form,” and “[d]eal with problems involving
several concrete variables in or from standardized situations.” DICOT, App. C, 1991 WL 688702.
To the contrary -- but just as in Hackett v. Barnhart -- Sida’s RFC limitation more closely aligns
with reasoning level 2, where a worker need only “[a]pply commonsense understanding to carry
out detailed but uninvolved written or oral instructions,” and “[d]eal with problems involving a
few concrete variables in or from standardized situations.” DICOT, App. C, 1991 WL 688702.
Thus, despite the Commissioner’s position that “there is no actual conflict in this case between the
vocational expert testimony and the DOT,” Response at 20, based on the DOT’s plain language
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and on the guidance in Hackett v. Barnhart, an actual conflict exists, and ALJ O’Melinn did not
resolve it. In that failure, ALJ O’Melinn committed legal error requiring remand.
D.
WHAT REMAINS OF ALJ
SUBSTANTIAL EVIDENCE.
O’MELINN’S
STEP
FIVE
LACKS
Notwithstanding ALJ O’Melinn’s failure to resolve the conflict described above, a
harmless error argument could be advanced based on the remaining position, as an usher, that ALJ
O’Melinn identified. In fact, the Commissioner urges this course. See Response at 20-21. The
Commissioner observes that “the second job identified by the vocational expert (Usher) has a GED
reasoning level of 2,” and, “[c]onsequently, any alleged error by the ALJ relying on the Furniture
Rental Consultant job as one Plaintiff could perform did not impact the ultimate outcome of this
case.” Response at 20-21.
Sida identifies, however, a separate basis for reversal based on the usher position. He
begins by reminding the Court that “[i]t is the Commissioner’s burden at Step 5 to prove that a
claimant retains the RFC to perform other jobs existing in ‘significant numbers’ in the national
economy.” Motion at 25 (quoting Haddock v. Apfel, 196 F.3d 1084, 1089 (10th Cir. 1999)). Sida
then directs the Court to Trimiar v. Sullivan, 966 F.2d at 1330-32, for the “non-exhaustive list of
factors to consider in determining whether work exists in significant numbers.” Motion at 25.
Based on Trost’s testimony that 16,691 usher positions exist in the national economy, Sida
extrapolates that only 333.82 usher jobs exist per state. See Motion at 26. Furthermore, he
contends that this number does not rise to the significant level which the statute requires.
Therefore, Sida concludes that, based on this “dubious and borderline” number of jobs, ALJ
O’Melinn “should have conducted the inquiry suggested by Trimiar in doubtful cases.” Motion at
27.
- 22
The Commissioner responds that the Tenth Circuit “has not established the number of jobs
necessary to be considered significant because ‘each case should be evaluated on its individual
merits.’” Response at 21 (quoting Trimiar v. Sullivan, 966 F.2d at 1330). Similarly, she explains
that “[SSA] policy does not dictate what number of jobs may or may not be significant in a
particular case.” Response at 21. Rather, the Commissioner opines, “a determination as to what
is significant is left to the ALJ, weighing the statutory language and applying it to the particular
facts.” Response at 21.
Applying these principles, the Commissioner contends that “[t]his is what the ALJ did
here.” Response at 21. By her estimation, ALJ O’Melinn’s finding is based on VE testimony,
which the regulation allows. See Response at 21 (citing 20 C.F.R. § 404.1566(e) (2018)).
Additionally, the Commissioner cites to one unpublished Tenth Circuit decision for the proposition
that as few as 11,000 jobs can constitute a significant number of jobs in the national economy.
Response at 21-22 (citing Rogers v. Astrue, 312 F. App’x 138, 141-42 (10th Cir.
2009)(unpublished)). Finally, she contends that ALJ O’Melinn, in fact, discusses the Trimiar v.
Sullivan factors in that he addresses Sida’s severe mental and physical impairments, his ability to
travel, and the work Sida could perform through the VE’s testimony.
The Commissioner
concludes that, in the aggregate, ALJ O’Melinn’s evaluation satisfies the approach that the Tenth
Circuit announced in Trimiar v. Sullivan. See Response at 22.
1.
The Commissioner’s Step Five Burden to Show Sufficient Jobs in the
National Economy for a Person with Sida’s Impairments.
When the disability analysis reaches step five of the sequential process, the burden shifts
to the Commissioner to show that “there are sufficient jobs in the national economy for a
hypothetical person with [the claimant’s] impairments,” Jensen v. Barnhart, 436 F.3d 1163, 1168
- 23
(10th Cir. 2005), “given her age, education, and work experience,” Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007)(internal quotation marks omitted)(quoting Hackett v. Barnhart, 395 F.3d at
1171). See 20 C.F.R. §§ 416.960, .963-.965 (2018)(explaining that a claimant’s vocational factors
of age, education, and work experience are considered, along with the claimant’s RFC, to
determine at step five whether there are a significant number of jobs that a claimant can perform).
The Commissioner meets this burden if substantial evidence supports the decision. See Thompson
v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
To determine whether jobs exist in significant numbers, regulations require the
Commissioner to take administrative notice of reliable job information from various governmental
and other publications, including the DOT.
See 20 C.F.R. § 416.966(d)(1) (2018).
The
Commissioner may also use the services of a VE or of another specialist to determine whether a
claimant’s work skills can be used in specific occupations. See 20 C.F.R. § 416.966(e). See also
Rogers v. Astrue, 312 F. App’x at 142 (explaining that the VE’s purpose is to go beyond facts
already established through publications eligible for judicial or administrative notice, and provide
an alternative avenue of proof)(citing Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993)).
2.
The Trimiar v. Sullivan Factors and the Facts of this Case Counsel
Remand.
In Trimiar v. Sullivan, the issue was whether 650 to 900 jobs existing in the region
constituted a significant number. See 966 F.2d at 1329-32. The Tenth Circuit 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: (i) “the level of claimant’s disability”; (ii) “the reliability of the
vocational expert’s testimony”; (iii) “the distance claimant is capable of traveling to engage in the
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assigned work”; (iv) “the isolated nature of the jobs”; and (v) “the types and availability of such
work.” 966 F.2d at 1330 (internal quotation marks omitted)(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. See 966 F.2d at 1332.
The Tenth Circuit has made it clear that judicial line-drawing in this context is
inappropriate, that the issue of numerical significance entails many fact-specific considerations
requiring individualized evaluation, and, most importantly, that 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. 2004)(internal
quotation marks omitted)(quoting Trimiar v. Sullivan, 966 F.2d at 1330). Nevertheless, this
general rule is not without exception, as the Tenth Circuit in Allen v. Barnhart recognizes:
[I]t nevertheless may be appropriate to supply a missing dispositive finding under
the rubric of harmless error in the right exceptional circumstance, i.e., where, based
on material the ALJ did at least consider (just not properly), we could confidently
say that no reasonable administrative factfinder, following the correct analysis,
could have resolved the factual matter in any other way.
357 F.3d at 1145. Thus, the district court may supply a missing dispositive finding, but only in
“exceptional circumstance[s].” Allen v. Barnhart, 357 F.3d at 1145.
Here, ALJ O’Melinn does not explicitly evaluate or engage in a fact-specific consideration
of the numerical significance of 16,691 usher positions in the national economy. See AR at 26.
Rather, ALJ O’Melinn considers this number only in conjunction with the 49,378 jobs identified
for the position of furniture rental consultant. See AR at 26. Furthermore, he considered the sum
of the two job positions against the backdrop of the numerous step five errors already identified
supra at 15-18. On these facts, the Court cannot say this analysis represents the “exceptional
- 25
circumstance” where “no reasonable administrative factfinder, following the correct analysis,
could have resolved the factual matter in any other way.” Allen v. Barnhart, 357 F. 3d at 1145.
The Court therefore will adhere to the Tenth Circuit’s preference that the ALJ evaluate numerical
significance in the first instance and further declines to supply a dispositive finding of harmless
error to conclude that there are a “significant number” of jobs available to Sida in the national
economy. Allen v. Barnhart, 357 F.3d at 1144. To make that finding would represent the
improvident judicial factfinding against which the Tenth Circuit cautions in Allen v. Barnhart.
In conclusion, ALJ O’Melinn’s failure to resolve the conflict between the VE’s testimony
and the DOT regarding Sida’s limitation to simple instructions and simple work-related decisions,
and the reasoning-level-three job of furniture rental consultant which the VE identified, is
reversible error. See Hackett v. Barnhart, 395 F.3d at 1176; Haddock v. Apfel, 196 F.3d at 1091.
The Court further concludes that the remainder of ALJ O’Melinn’s step five finding cannot be
saved through a finding of harmless error, and directs the ALJ to consider all the Trimiar v.
Sullivan factors on remand, given the relatively low number of usher jobs in the national economy.
IT IS ORDERED that the Commissioner’s final decision is remanded for further
administrative proceedings.
________________________________
UNITED STATES DISTRICT JUDGE
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Counsel:
Michael D. Johnson
Laura J. Johnson
Michael D. Armstrong Law Office
Albuquerque, New Mexico
Attorneys for the Plaintiff
John C. Anderson
United States Attorney
Manuel Lucero
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
--and-Dorrelyn Dietrich
Steven Martyn
Social Security Administration
Office of the General Counsel
Denver, Colorado
Attorneys for the Defendant
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