Buck v. Social Security Administration

Filing 17

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ.(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
HEATHER N. BUCK,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-17-459-KEW

OPINION AND ORDER

Plaintiff Heather N. Buck (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and the case is
REMANDED for further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”
42 U.S.C. § 423(d)(1)(A).

A claimant is disabled under the Social

Security

Act

“only

if

his

physical

or

mental

impairment

or

impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work

which

exists

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

1

whether

the

correct

legal

Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

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standards were applied.

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was 44 years old at the time of the ALJ’s decision.
Claimant completed her high school education.

Claimant has worked

in the past as a nanny, customer service representative, and
receptionist. Claimant alleges an inability to work beginning March
1,

2014

due

to

limitations

resulting

from

PTSD,

depression,

anxiety, nerves, right leg problems, Turner’s syndrome, thyroid
problems, hearing problems, and blindness in the left eye.

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Procedural History
On

November

7,

2014,

Claimant

protectively

filed

for

protectively filed for disability insurance benefits under Title II
(42 U.S.C. § 401, et seq.) and for supplemental security income
pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social
Security Act.

Claimant’s applications were denied initially and

upon reconsideration. On January 4, 2017, Administrative Law Judge

(“ALJ”) Deidre O. Dexter conducted an administrative hearing in
Tulsa,

Oklahoma.

On

February

9,

2017,

the

ALJ

entered

an

unfavorable decision. The Appeals Council denied review on October
16, 2017.

As a result, the decision of the ALJ represents the

Commissioner’s final decision for purposes of further appeal.

20

C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made her decision at step five of the sequential
evaluation. She determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional

capacity

(“RFC”)

to

perform

sedentary

work

with

limitations.

Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to

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include

all

of

Claimant’s

limitations

in

the

RFC

and

the

hypothetical questioning of the vocational expert at step five; and
(2) failing to take Soc. Sec. R. 83-12 into account in arriving at
her disability determination.
Step Five Analysis
In her decision, the ALJ found Claimant suffered from the
severe

impairments

of

dysfunction

of

a

major

joint,

anxiety

disorder, fibromyalgia, obesity, Turner syndrome, vision loss in the
left eye, hearing loss with use of hearing aids, and degenerative
disc disease.

(Tr. 20).

The ALJ determined Claimant retained the

RFC to perform sedentary work.

In so doing, she found Claimant

could lift/carry/push/pull five pounds frequently and ten pounds
occasionally; and sit for six hours and stand/walk for two hours in
an eight hour workday. Claimant should have the option to stand for
five minutes after 30 minutes of sitting without leaving her work
station.

She should not be required to stand/walk for more than 15

minutes consecutively.
stairs, stoop, and kneel.

She could occasionally climb ramps and
She could never climb ladders, ropes, or

scaffolds, or crouch or crawl.

Claimant could never have exposure

to unprotected heights or hazardous moving mechanical parts.

She

could not be involved with work where items present from the left.
She could have exposure to no more than moderate noise.

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She could

perform simple, routine tasks with regular breaks of at least 15
minutes every two hours.

Claimant could occasionally interact with

supervisors as needed to receive work instructions.

She could work

in proximity to co-workers but have no more than occasional direct
interaction with them.
public.

She could never interact with the general

(Tr. 24).

After consultation with a vocational expert, the ALJ determined
Claimant

could

perform

the

representative

job

of

document

specialist, which the ALJ found existed in sufficient numbers in the
national and regional economies.

(Tr. 29).

As a result, the ALJ

concluded that Claimant was not under a disability from March 1,
2014 through the date of the decision.

(Tr. 30).

Claimant contends the ALJ and vocational expert erred in
identifying

the

job

of

document

specialist

as

meeting

limitations of Claimant’s RFC, as established by the ALJ.
administrative

hearing,

the

ALJ

first

established

the

At the

with

the

vocational expert that Claimant could not perform her past relevant
work. (Tr. 72-73). The ALJ then proceeded through two hypothetical
questions, the latter of which reflected the RFC which the ALJ
ultimately adopted in this case.

Among the functional requirements

for the jobs identified by the expert was the ability “to perform
simple routine tasks with regular breaks of at least 15 minutes
every two hours.”

(Tr. 75).

The vocational expert identified a

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single job of document specialist, a sedentary job identified under
the Dictionary of Occupational Titles (“DOT”) as DOT #249.587-018.
The SVP was 2 and the available jobs in the national economy was
57,000.

When the ALJ inquired whether the vocational expert’s

testimony was consistent with the DOT, she responded that it was,
“aside from the ability to sit or stand outside of the description
of sedentary.
Counselor

in

consistent.”

The

job

That was based on my experience as a Vocational
exerting

this

type

of

work.

Otherwise,

it’s

(Tr. 75).

of

document

preparer

(or

document

specialist)

identified by the vocational expert has a reasoning level of R3.
DOT #249.587-018.
“[a]pply

Level-three reasoning requires the ability to

commonsense

understanding

to

carry

out

instructions

furnished in written, oral, or diagrammatic form” and “[d]eal with
problems

involving

several

standardized situations.”

concrete

variables

in

or

from

See DOT app. C, Components of the

Definition Trailer, 1991 WL 688702.

The Tenth Circuit has stated

that a level-three reasoning requirement “seems inconsistent” with
an RFC limited to simple and routine tasks.

Hackett v. Barnhart,

395 F.3d 1168, 1176 (10th Cir. 2005); see also Pritchett v. Astrue,
220 Fed.Appx. 790, 793 (10th Cir. 2007) (finding that an RFC
limiting a claimant to simple, repetitive, and routine tasks

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appeared inconsistent with jobs requiring a reasoning level of
three and remanding the case to allow the ALJ to address the
apparent conflict); Garcia v. Barnhart, 188 Fed.Appx. 760, 767
(10th

Cir.

2006)

(identifying

a

conflict

between

level-three

reasoning and a limitation to routine, repetitive, and simple
tasks).

Neither

explanation

for

the
this

vocational

expert

deviation

from

nor

the

the

ALJ

DOT.

offered

While

the

Commissioner recognizes a conflict within the various panels of the
Tenth Circuit on the issue of whether a vocational expert may rely
upon the SVP to determine the complexity of a particular job or
whether the reasoning level should determine the appropriate level
of activity in comparison to the RFC.

This Court has consistently

followed the only published opinion on the matter - the Hackett
case - to arrive at the conclusion that the reasoning level must be
consistent with the level of work established by the ALJ in the RFC
or

the

vocational

discrepancy.

expert

must

explain

the

basis

for

any

The problem is exacerbated by the fact that the

vocational expert was only able to identify a single representative
job which Claimant could perform under the RFC. If that single job
is eliminated, Claimant is entitled to a finding of disability. In
this case, the expert and, in turn, the ALJ did not provide an
explanation for the deviation from the DOT and the case must be

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returned to the ALJ for further development on this issue.
Claimant also urges that Soc. Sec. R. 83-12 on the question of
alternate sitting and standing requires a finding of disability.
This ruling only requires that a vocational expert be consulted to
clarify the implications of imposing a requirement to alternate
between sitting and standing.

While the vocational expert was

fairly clear on this issue, the expert should be consulted to
determine if the job base is eroded by including this requirement
in the RFC.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is REVERSED and the
case is REMANDED for further proceedings consistent with the Opinion
and Order.
IT IS SO ORDERED this 18th day of March, 2019.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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