Paddlety v. Commissioner of Social Security

Filing 21

ORDER adopting Report and Recommendations re 18 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 7/1/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL S. PADDELTY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. CIV-14-891-D

ORDER
Defendant, the Acting Commissioner of the Social Security Administration,
objects to the portion of the Magistrate Judge’s Report and Recommendation (R&R)
which found the Administrative Law Judge (ALJ) failed to reconcile the vocational
expert’s (VE) testimony with the Dictionary of Occupational Titles (DOT). Exercising
de novo review pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and Fed. R. Civ. P.
72(b)(3),1 the Court affirms and adopts the R&R.
BACKGROUND
Upon receiving an application for disability insurance benefits (DIB) and/or
social security income (SSI), an ALJ is required to conduct a five-step sequential

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Where the district court refers dispositive matters to a magistrate judge for a
report and recommendation, the district court must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to. Birch v. Polaris
Indus., Inc., 812 F.3d 1238, 1246 (10th Cir. 2015).

process to determine whether a claimant is disabled. Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009). Step one requires the ALJ to determine whether the claimant
is “presently engaged in substantial gainful activity.” Id. (citations omitted). If not, the
ALJ proceeds to step two, which asks whether the claimant has “a medically severe
impairment or impairments.” Id. At step three, the ALJ considers whether the
claimant’s medically severe impairments are equivalent to a condition “listed in the
appendix of the relevant disability regulation.” Id. If the claimant’s impairments are
not equivalent to a listed impairment, the ALJ must consider, at step four, whether the
claimant’s impairments prevent him from performing his past relevant work. Id. Even
if a claimant is so impaired, the ALJ then considers, at step five, whether he possesses
the sufficient residual functional capability (RFC) to perform other work in the
national economy. Id.
The claimant bears the burden of establishing a prima facie case of disability
at steps one through four. Wells v. Colvin, 727 F.3d 1061, 1064 n. 1 (10th Cir. 2013).
If the claimant meets this burden, the burden of proof shifts to the Commissioner at
step five to show the claimant retains a sufficient RFC to perform work in the national
economy, given his age, education, and work experience. Id.
Although the five-step inquiry is the traditional and customary process
employed in determining whether a claimant is disabled, where there is evidence of

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drug addiction or alcoholism (DAA) in the record, a sixth step is added. Under this
analysis, the ALJ must determine whether the DAA is a “material contributing factor
to the claimant’s disability.” Redman v. Colvin, No. CIV-12-1039-R, 2014 WL
652314, at *1 (W.D. Okla. Feb. 19, 2014) (citing 20 C.F.R. § 416.935(a)); see also 20
C.F.R. § 404.1535. “In making this determination, the “key factor ... is whether [the
ALJ] would still find [claimant] disabled if [claimant] stopped using drugs or
alcohol.” Redman, supra (quoting 20 C.F.R. § 416.935(b)(1) (paraphrasing in
original)).
If the ALJ finds that the claimant’s remaining limitations would not be
disabling, then the DAA is a material contributing factor and the ALJ must find the
claimant is not disabled. Thompson v. Colvin, No. CIV-15-288-CG, 2016 WL
1273247, at *9 (W.D. Okla. Mar. 31, 2016) (citing 20 C.F.R. § 416.935(b)(2)(i)). If
the ALJ finds that the remaining limitations would in and of themselves be disabling,
then it must conclude the claimant is disabled. Id. (citing 20 C.F.R. §
416.935(b)(2)(ii)).
The evidence before the ALJ on Plaintiff’s application included evidence of
substance abuse. Applying the aforementioned six-step analysis, the ALJ determined
Plaintiff was not disabled. Relevant to these proceedings, the ALJ determined Plaintiff
was “able to understand, remember, and follow simple, repetitive 1-2-3 step tasks in

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a routine work setting” and “able to appropriately interact with the general public with
minimal and superficial contact.” R&R at 4. At the administrative hearing, the ALJ
asked a vocational expert (VE) whether such a hypothetical individual could perform
any work. In response, the VE identified four jobs the hypothetical individual could
perform: office helper, small products assembler, laundry folder and price tagger, each
job existing in significant numbers both in the State of Oklahoma and nationwide. On
cross examination, Plaintiff asked the VE about the General Educational Development
(GED) reasoning levels required for each position.2 The VE testified that with the
exception of the office helper position, the identified occupations had a reasoning
level of two. The VE was unable to provide a definition of “reasoning level two”
during the hearing, but provided a supplemental letter to the ALJ which defined the
term thusly:
Applying commonsense understanding or carry out detailed but
uninvolved written or oral instructions. Deals with problems involving
a few concrete variables in or from standardized situations.
R&R at 15. The VE, without further explanation, stated her opinion would not change
in light of this definition.

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“Each occupation in the DOT is coded with a reasoning development level,
which corresponds to the ability to follow instructions and solve problems that is
required for satisfactory job performance.” Hulsey v. Astrue, 622 F.3d 917, 923(8th
Cir. 2010) (citing 2 Dictionary of Occupational Titles, app. C, at 1009-11).
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The ALJ accepted the VE’s testimony and summarily determined it was
consistent with the information contained in the DOT. On appeal to this Court,
Plaintiff contended, inter alia, that the VE’s identified occupations, which required
the ability to “carry out detailed but uninvolved written or oral instructions” were
inconsistent with information in the DOT, specifically in light of the fact Plaintiff’s
RFC was determined as only being able to “understand, remember, and follow simple,
repetitive 1-2-3 step tasks in a routine work setting.” The matter was referred to
Magistrate Judge Bernard Jones, who agreed with Plaintiff and determined the finding
of level two reasoning was incompatible with the inability to understand, remember,
and carry out detailed work-related tasks. R&R at 16. Accordingly, the magistrate
judge recommended reversal of the ALJ’s decision and remand for further
proceedings.
Relying on the unpublished decision in Anderson v. Colvin, 514 F. App’x 756
(10th Cir. 2013) (unpublished),3 the Commissioner contends that GED reasoning
levels do not have a direct relation to an RFC or the mental requirements of any given
occupation. Rather, according to the Commissioner, such reasoning levels relate only

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In Anderson, the Tenth Circuit noted that “GED does not describe specific
mental or skill requirements of a particular job, but rather describes the general
educational background that makes an individual suitable for the job, broken into the
divisions of Reasoning Development, Mathematical Development and Language
Development.” Id. at 764.
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to a claimant’s educational background. The Commissioner asks this Court to decline
to adopt the R&R as it relates to this narrow issue.
STANDARD OF REVIEW
The standard of review in a Social Security appeal is
whether the Commissioner’s final decision is supported by substantial
evidence, and whether she applied the correct legal standards. Substantial
evidence is more than a mere scintilla and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion....
Evidence is not substantial if it is overwhelmed by other evidence in the
record or constitutes mere conclusion.... Moreover, all the ALJ’s
required findings must be supported by substantial evidence....
Grogan v. Barnhart, 399 F.3d 1257, 1261–62 (10th Cir. 2005) (internal citations and
quotation marks omitted). A district court must “meticulously examine the record as
a whole, including anything that may undercut or detract from the ALJ’s findings in
order to determine if the substantiality test has been met.” Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007). However, the Court should not reweigh the evidence or
substitute its judgment for that of the ALJ. Salazar v. Barnhart, 468 F.3d 615, 621
(10th Cir. 2006).
DISCUSSION
At the onset, the Court finds an apparent conflict exists in the evidentiary record
because the jobs at issue (those with level two reasoning) each require the ability to
“carry out detailed but uninvolved written or oral instructions,” which are in contrast

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to the ALJ’s conclusion that Plaintiff could only “understand, remember, and follow
simple, repetitive 1-2-3 step tasks in a routine work setting.” Compare Tabor v.
Colvin, No. CIV-14-281-RAW, 2015 WL 5724857, at *3 (E.D. Okla. Sept. 29, 2015)
(finding RFC that claimant “was markedly limited in the ability to understand and
remember detailed instructions, the ability to carry out detailed instructions, and the
ability to interact appropriately with the general public” was inconsistent with
requirements of level two reasoning). Stated another way, “[i]f a claimant is limited
to simple tasks, it stands to reason that a job requiring the ability to understand and
carry out detailed but uninvolved written or oral instructions would create a conflict.”
Id. (citing McKinnon v. Astrue, No. 09-cv-613-CMA, 2010 WL 3190621, at *5 (D.
Colo. Aug. 12, 2010); Allen v. Barnhart, No. C-02-3315-EDL, 2003 WL 22159050,
at *10 (N.D.Cal. Aug. 28, 2003)). In such circumstances, the ALJ has an affirmative
duty to 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).
In Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005), the Tenth Circuit
reversed the portion of the ALJ’s decision in which the ALJ found the plaintiff could
perform two occupations requiring level three reasoning, explaining that the plaintiff’s

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RFC that she could maintain the attention, concentration, persistence and pace levels
required for simple and routine work tasks appeared inconsistent with the demands of
level three reasoning. Although the Court finds it difficult to reconcile here the
separate approaches represented by Hackett and Anderson, it is bound to follow the
clear dictates of the circuit’s published decision in Hackett. Therefore, the Court
declines to follow Anderson and looks to the circuit’s opinion in Hackett for guidance.
Indeed, courts in this district have uniformly followed Hackett when the
Commissioner has presented them with similar arguments relying on Anderson. See
Clark v. Colvin, No. CIV-14-1294-L, 2016 WL 1171153, at **5-6 (W.D. Okla. Feb.
26, 2016); Ward v. Colvin, No. CIV-14-1141-M, 2015 WL 9451073, at *1 n. 1 (W.D.
Okla. Dec. 23, 2015); Wiggins v. Colvin, No. CIV-14-103-R, 2015 WL 5157492, at
**2-3 (W.D. Okla. Sept. 2, 2015). The Court sees no compelling reason to disagree
with these decisions. To this end, and for the reasons stated above, the Court is
unpersuaded that there is no relationship between an individual’s RFC and the
reasoning level listed in the DOT for a particular occupation and affirms the
magistrate judge’s conclusion.
The ALJ did not, to the Court’s satisfaction, resolve the apparent conflict
between the VE’s testimony and the DOT, and was therefore not entitled to rely on
the VE’s testimony as substantial evidence. Accordingly, the Court adopts the R&R

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reversing the Commissioner’s decision and remanding the case for further
proceedings.
CONCLUSION
The Magistrate Judge’s Report and Recommendation [Doc. No. 18] is
ADOPTED as set forth herein. The Commissioner’s decision is hereby REVERSED,
and the case is REMANDED for further proceedings consistent with this Order. A
judgment shall be issued forthwith.
IT IS SO ORDERED this 1st day of July, 2016.

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