Tracy v. Kijakazi

Filing 17

MEMORANDUM DECISION AND ORDER granting 9 Motion for Review of Social Security Agency Action. The court HEREBY ORDERS that the Commissioners decision in this case is AFFIRMED. Signed by Magistrate Judge Jared C. Bennett on 11/14/2023. (jwt)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
KELLY T.,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM DECISION
AND ORDER

Case No. 2:23-cv-00126-JCB

Magistrate Judge Jared C. Bennett

Under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have consented to Judge
Jared C. Bennett conducting all proceedings in this case, including entry of final judgment. 1
Before the court is Plaintiff Kelly T.’s (“Plaintiff”) appeal of Acting Commissioner of Social
Security Kilolo Kijakazi’s (“Commissioner”) final decision determining that Plaintiff is not
entitled to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. 2 After
careful consideration of the written briefs and the complete record, the court concludes that oral
argument is not necessary. Based upon the analysis set forth below, Plaintiff’s arguments on
appeal fail because there are jobs that exist in sufficient numbers in the national economy that
Plaintiff can perform considering her RFC. Therefore, the court affirms the Commissioner’s
decision.

1

ECF No. 7.

2

42 U.S.C. §§ 401-434.

PROCEDURAL BACKGROUND
Plaintiff alleges disability due to various physical and mental impairments. Plaintiff
applied for DIB in March 2020. 3 Plaintiff’s application was denied initially 4 and upon
reconsideration. 5 On May 23, 2022, Plaintiff appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”). 6 The ALJ issued a written decision on June 30, 2022,
denying Plaintiff’s claim for DIB. 7 Plaintiff appealed the adverse ruling, and, on December 19,
2022, the Appeals Council denied her appeal, 8 making the ALJ’s decision final for purposes of
judicial review. 9 On February 17, 2023, Plaintiff filed her complaint in this case seeking judicial
review of the Commissioner’s final decision. 10
STANDARD OF REVIEW
This court “review[s] 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.” 11 The Commissioner’s findings, “if supported by substantial evidence,
shall be conclusive.” 12 “Substantial evidence is such relevant evidence as a reasonable mind

3

ECF No. 8, Administrative Record (“AR ____”) 188-94.

4

AR 89, 104-09.

5

AR 90, 111-15.

6

AR 34-61.

7

AR 14-33.

8

AR 1-8.

9

42 U.S.C. § 405(g); 20 C.F.R. § 404.981.

10

ECF No. 1.

11

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and citation omitted).

12

42 U.S.C. § 405(g).
2

might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a
preponderance.” 13 “In reviewing the ALJ’s decision, [this court may] neither reweigh the
evidence nor substitute [its] judgment for that of the [ALJ].” 14 “The [f]ailure to apply the correct
legal standard or to provide this court with a sufficient basis to determine that appropriate legal
principles have been followed [are] grounds for reversal.” 15
The aforementioned standards apply to the Commissioner’s five-step evaluation process
for determining whether a claimant is disabled. 16 If a determination can be made at any one of
the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. 17
Step one determines whether the claimant is presently engaged in
substantial gainful activity. If [the claimant] is, disability benefits
are denied. If [the claimant] is not, the decision maker must proceed
to step two: determining whether the claimant has a medically
severe impairment or combination of impairments. . . . If the
claimant is unable to show that [her] impairments would have more
than a minimal effect on [her] ability to do basic work activities,
[she] is not eligible for disability benefits. If, on the other hand, the
claimant presents medical evidence and makes the de minimis
showing of medical severity, the decision maker proceeds to step
three. 18

13

Lax, 489 F.3d at 1084 (quotations and citation omitted).

14

Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quotations and citation omitted).

15

Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (first alteration in original)
(quotations and citation omitted).
16

20 C.F.R. § 404.1520(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988) (discussing the five-step process).
17

20 C.F.R. § 404.1520(a)(4); see also Williams, 844 F.2d at 750.

18

Williams, 844 F.2d at 750-51 (quotations and citations omitted); see also 20 C.F.R.
§ 404.1520(a)(4)(i)-(ii).
3

At step three, the claimant must show that his or her impairments meet or equal one of
several listed impairments that are “severe enough to prevent an individual from doing any
gainful activity, regardless of his or her age, education, or work experience.” 19 “If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” 20 Before considering step four,
however, the ALJ must determine the claimant’s RFC.21 An individual’s RFC is her greatest
ability to do physical and mental work activities on a regular and continuing basis despite
limitations from her impairments. 22 In making this determination, the ALJ must consider all of
the claimant’s impairments, including impairments that are not severe. 23
For the fourth step, the claimant must show, given her RFC, that her impairments prevent
performance of her “past relevant work.” 24 “If the claimant is able to perform [her] previous
work, [she] is not disabled.” 25 If, however, the claimant is not able to perform her previous work,
she “has met [her] burden of proof, establishing a prima facie case of disability.” 26
From here, “[t]he evaluation process . . . proceeds to the fifth and final step,” where the
burden of proof shifts to the Commissioner.27 The decision maker must determine “whether the

19

20 C.F.R. § 404.1525(a); see also 20 C.F.R. § 404.1520(a)(4)(iii).

20

Williams, 844 F.2d at 751.

21

20 C.F.R. § 404.1520(e).

22

Id. § 404.1545(a)(1), (b)-(c).

23

Id. § 404.1545(a)(2).

24

Id. § 404.1520(a)(4)(iv).

25

Williams, 844 F.2d at 751.

26

Id.

27

Id.
4

claimant has the [RFC] to perform other work in the national economy in view of [her] age,
education, and work experience.” 28 If it is determined that the claimant “can make an adjustment
to other work,” she is not disabled. 29 If, on the other hand, it is determined that the claimant
“cannot make an adjustment to other work,” she is disabled and entitled to benefits. 30
ANALYSIS
I.

There Are Jobs That Exist in Sufficient Numbers in the National Economy That
Plaintiff Can Perform Considering Her RFC, Which Precludes a Finding of
Disability.
The ALJ appropriately determined that Plaintiff is not disabled because there are jobs that

exist in sufficient numbers in the national economy that Plaintiff can perform considering
Plaintiff’s RFC. At step five, the Commissioner bore the burden of proving that Plaintiff “has the
[RFC] to perform other work in the national economy in view of [her] age, education, and work
experience.” 31 Commensurate with this burden, the ALJ determined that Plaintiff’s RFC, age,
education, and work experience allowed her to work in one of the following occupations:
(1) bakery worker, (2) cashier, (3) price marker/checker, (4) laundry worker, and (5) mail
sorter. 32 Plaintiff contends that none of those jobs is consistent with the ALJ’s RFC
determination. For example, as to job (1), Plaintiff argues that her RFC does not allow her to
work around dangerous machinery, but the description of bakery worker in the Dictionary of

28

Id. (quotations and citation omitted); see also 20 C.F.R. § 404.1520(a)(4)(v).

29

20 C.F.R. § 404.1520(a)(4)(v).

30

Id.

31

Williams, 844 F.2d at 751 (quotations and citation omitted); see also 20 C.F.R.
§ 404.1520(a)(4)(v).
32

AR 26-28.
5

Occupational Titles contradictorily requires that type of work. Additionally, for jobs (2)-(5),
Plaintiff contends that the level of education required for each exceeds the educational
limitations in her RFC. As shown below, even if the court assumes without deciding that the ALJ
erred as to jobs (1), (2), and (5): (A) the ALJ appropriately determined that jobs (3) and (4) were
within Plaintiff’s RFC; and (B) because jobs (3) and (4) exist in sufficient numbers in the
national economy, any error by the ALJ is harmless.
A. The ALJ Appropriately Determined That Plaintiff Can Perform the Jobs of Price
Marker/Checker and Laundry Worker.
Even if the court assumes without deciding that the ALJ erred as to three out of the five
jobs he determined that Plaintiff can perform, the ALJ appropriately determined that Plaintiff can
serve as a price marker/checker and as a laundry worker because those two jobs are consistent
with Plaintiff’s RFC and other required considerations. Among other things, the ALJ determined
that Plaintiff’s RFC allowed her to perform “simple work.” 33 Price marker/checker and laundry
worker are both jobs that qualify as “simple work.” To speak more technically in terms of Social
Security parlance, numerous courts—including the Tenth Circuit and this court—have concluded
that “simple work” reasonably equates to a General Educational Development reasoning level of
2 under the Commissioner’s criteria. 34

33

AR 22.

34

See, e.g., Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (concluding that an RFC
allowing a plaintiff to perform simple and routine work tasks was suited to a reasoning level of
2); Cassandra B. v. Kijakazi, No. 2:21-cv-00228-JCB, 2022 WL 1202752, at *6 (D. Utah April
22, 2022) (concluding that an RFC allowing a plaintiff to perform simple tasks encompassed a
reasoning level of 2).
6

The fact that “simple tasks” encompass a reasoning level of 2 is significant here. The only
objection that Plaintiff raises against the determination that she can perform the jobs of price
marker/checker and laundry worker is that a reasoning level of 2 is too high for the “simple
work” designation in the ALJ’s RFC determination. However, as a matter of law, that objection is
inaccurate. Consequently, the jobs of price marker/checker and laundry worker are jobs that
Plaintiff can perform according to her RFC and the other regulatory requirements that the ALJ
appropriately considered.
B. Because the Price Marker/Checker and Laundry Worker Jobs Exist in Sufficient
Numbers in the National Economy, Any Error the ALJ May Have Made in
Considering Other Jobs Is Harmless.
Even if three of the five jobs that the ALJ determined Plaintiff can perform were
inconsistent with her RFC, such error was harmless because the two other jobs the ALJ
determined Plaintiff can perform exist in sufficient numbers in the national economy, which
precludes a disability finding. Indeed, the Tenth Circuit has concluded that harmless error exists
where, as here, at least two of several jobs that the ALJ determined were within a plaintiff’s RFC
existed in sufficient numbers in the national economy. 35 This was because harmless error applies
where “no reasonable factfinder could have resolved the factual matter any other way.” 36
The 688,000 jobs available in the national economy for the price marker/checker job and
the laundry worker job preclude any reasonable factfinder from determining that the

35

Anderson v. Colvin, 514 F. App’x 756, 764 (10th Cir. 2013) (holding that even if the ALJ erred
in determining that the plaintiff could perform certain jobs, the ALJ appropriately determined
that the plaintiff could perform two jobs that existed in sufficient numbers in the national
economy, which precluded a disability finding).
36

Id.
7

aforementioned number of jobs is insufficient in the national economy to entertain a disability
finding. Although the Tenth Circuit has not provided a specific, bright-line number of jobs that
constitute a sufficient number in the national economy to preclude a disability finding, it has
stated that the harmless error number could be between 100 and 152,000. 37 Even though the
harmless error inquiry based on the number of jobs in the national economy can be nuanced, 38 a
number like 688,000 obliterates nuance and easily allows any reasonable factfinder to determine
that jobs in those quantities are sufficient in the national economy to preclude a finding of
disability. Consequently, even if the ALJ’s determination of the jobs that Plaintiff can perform
based on her RFC was only 40% correct, that is more than enough here to count the 60% error
rate as harmless.
CONCLUSION AND ORDER
As demonstrated above, Plaintiff’s arguments on appeal fail. Therefore, the court
HEREBY ORDERS that the Commissioner’s decision in this case is AFFIRMED.
IT IS SO ORDERED.
DATED this 14th day of November 2023.
BY THE COURT:

JARED C. BENNETT
United States Magistrate Judge

37

Evans v. Colvin, 640 F. App’x 731, 736 (10th Cir. 2016).

38

See, e.g., Margaret G. v. Kijakazi, No. 2:23-CV-00169-TS-JCB, 2023 WL 7353755, at *5 (D.
Utah Oct. 12, 2023), report and recommendation adopted sub nom., Margaret G. v. Kijakazi, No.
2:23-cv-169 TS-JCB, 2023 WL 7343589 (D. Utah Nov. 7, 2023).
8