Ward v. Commissioner of Social Security

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 23 , Reversing the decision of the Acting Commissioner and Remanding for additional administrative proceedings consistent with the Report and Recommendation. Signed by Honorable Vicki Miles-LaGrange on 12/23/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAKE D. WARD,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

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Case No. CIV-14-1141-M

ORDER
On September 17, 2015, United States Magistrate Judge Bernard M. Jones issued a
Report and Recommendation in this action in which plaintiff seeks judicial review of the final
decision of defendant Acting Commissioner of the Social Security Administration (“Acting
Commissioner”) denying plaintiff’s applications for disability benefits and supplemental security
income. The Magistrate Judge recommended the Acting Commissioner’s decision be reversed
and remanded for further proceedings consistent with the Report and Recommendation. The
parties were advised of their right to object to the Report and Recommendation on or before
October 8, 2015. On September 22, 2015, the Acting Commissioner filed her objection.
In the Report and Recommendation, the Magistrate Judge concludes that the
Administrative Law Judge’s (ALJ) step five determination was not supported by substantial
evidence because the testimony of the vocational expert (“VE”) was inconsistent with the
Dictionary of Occupational Titles (“DOT”) and, further, that the ALJ committed reversible legal

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error in failing to explain the conflict between the VE’s testimony and the DOT. 1 In reaching this
conclusion, the Magistrate Judge relies on Tenth Circuit precedent which states:
before an ALJ may rely on expert vocational evidence as
substantial evidence to support a determination of nondisability,
the ALJ must ask how his or her testimony as the exertional
requirement of identified jobs corresponds with the Dictionary of
Occupational Titles, and elicit a reasonable explanation for any
discrepancy on this point.
Report and Recommendation at 7 (citing Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir.
1999)).
In her objection, the Acting Commissioner contends that the ALJ did everything required
of him and that no conflict between the VE’s testimony and the DOT was identified by the VE or
plaintiff during the hearing that needed to be resolved. The Acting Commissioner further
contends that the GED Scale reasoning levels used in the DOT “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.” Objection at 2 (citing Anderson v.
Colvin, 514 F. App’x 756, 764 (10th Cir. 2013) (unpublished)). 2

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The DOT includes a General Education Development (GED) Scale which is composed
of three components: (1) reasoning development; (2) mathematical development; and (3)
language development. See Report and Recommendation at 3 (citing DOT, Appendix C,
Components of the Definition Trailer, 1991 WL 688702). The reasoning development
component, at issue here, is composed of six levels. Plaintiff was identified to be at a level three
of the reasoning development component. The apparent conflict the Magistrate Judge has
identified comes from the ALJ’s finding, in determining plaintiff’s residual functional capacity
(“RFC”), that “with respect to [p]laintiff’s mental work capacity that he [could] understand,
remember, and carry out simple, routine, and repetitive tasks” and the Tenth Circuit’s finding in
Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) “that an RFC limiting a claimant to
simple and routine work appears inconsistent with jobs requiring a reasoning level of three.”
Report and Recommendation at 4 (internal quotations omitted).
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The Acting Commissioner relies on two unpublished Tenth Circuit cases which found
that the “GED reasoning levels address the claimant’s education, not the mental skill
requirements of a particular job”. Report and Recommendation at 2. See Anderson and Mounts v.
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Having reviewed the Report and Recommendation, the Acting Commissioner’s
objection, and the applicable case law, the Court finds that the Magistrate Judge did not err in
determining the ALJ’s was without substantial evidence to make his step five determination.
Specifically, the Court finds that while neither the plaintiff nor the VE addressed the
inconsistencies between the VE’s testimony and the DOT, an inconsistency in fact still exists and
should be addressed prior to the ALJ making his step five determination as to whether plaintiff
has a disability.
Therefore, upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 23] issued by the
Magistrate Judge on September 17, 2015;

(2)

REVERSES the decision of the Acting Commissioner;

(3)

REMANDS for additional administrative proceedings consistent with the Report
and Recommendation; and

(4)

ORDERS that judgment issue forthwith in accordance with the provisions of
sentence four of 42 U.S.C. § 405(g).

IT IS SO ORDERED this 23rd day of December, 2015.

Astrue 479 F. App’x 860 (10th Cir. 2012). The Magistrate Judge declined to find “that to the
extent GED reasoning levels are not specific mental or skill requirements, they can be
disregarded when addressing the mental demands of jobs listed in the DOT.” Report and
Recommendation at 6. Further, the Magistrate Judge found that, regarding the two Tenth Circuit
cases cited by the Acting Commissioner, neither of the circumstances presented in the cases were
presented in this case.
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