Opinion
Case No. CIV-19-305-SLP
11-18-2019
RHONDA MILLER, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Rhonda Miller, seeks judicial review of the Social Security Administration's (SSA) denial of her application for disability insurance benefits (DIB). United States District Judge Scott L. Palk has referred the matter for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(B)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR) [Doc. No. 12], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On April 17, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 30-42. The Appeals Council denied Plaintiff's request for review. Id. at 1-8. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. § 404.1520. Following this process, the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since March 14, 2016, her alleged onset date. AR 32.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: degenerative disc disease with spinal stenosis, inflammatory polyarthritis, COPD with chronic bronchitis and asthma flare-ups, and anxiety disorder. Id. At step three, the ALJ found that Plaintiff's impairments or combination of impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 32-35.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that Plaintiff could perform sedentary work as defined in 20 C.F.R. § 404.1567(a) with the following additional restrictions:
[Plaintiff] is able to occasionally push or pull (including the operation of hand and foot controls), stoop, kneel, crouch, and climb ramps or stairs but never ropes, ladders, or scaffolds. She can never crawl or work around concentration of dust, fumes, extremes of heat or cold, noxious odors, or other respiratory irritants. She can understand, remember, and carry out simple work-related tasks and instructions; work with supervisors and coworkers on a superficial working basis (but not with the general public), and can adapt to routine changes in the working environment.Id. at 35-41.
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work and transferability of job skills is not a material issue. Id. at 41. The ALJ then proceeded to step five and, relying on the interrogatories answered by a vocational expert (VE), found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 41-42. Specifically, the ALJ found Plaintiff can perform the requirements of representative jobs such as document preparer, grinding machine operator, and painter. Id. at 42. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id.
III. Claims Presented for Judicial Review
Plaintiff brings two allegations of error: (1) the ALJ failed to include limitations set forth by the consultative examiner, and (2) the jobs relied on by the ALJ at step five are inconsistent with Plaintiff's RFC. Pl.'s Br. [Doc. No. 24] at 3-7, 7-11. For the reasons set forth below, the Court recommends that this matter be reversed and remanded because the ALJ failed to meet his step-five burden.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009); see also Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (holding that the court only reviews an ALJ's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied" and in that review, "we neither reweigh the evidence nor substitute our judgment for that of the agency" (citations and internal quotation marks omitted)). Under such review, "common sense, not technical perfection, is [the Court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).
V. Analysis
A. Whether the jobs cited by the ALJ at step five were inconsistent with Plaintiff's RFC
At steps one through four of the sequential evaluation process, the burden of proof is on the claimant to "establish[] a prima facie case of disability." Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). As part of her burden, she must provide evidence of her functional limitations, and show at step four that her impairments prevent her from performing her past work. Maestas v. Colvin, 618 F. App'x 358, 361 (10th Cir. 2015); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004). But at step five, the burden shifts to the ALJ to "show that there are jobs in the regional or national economies that the claimant can perform with the limitations the ALJ has found [her] to have. It is not the claimant's burden to produce or develop vocational evidence at step five." Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999); accord Thompson v. Sullivan, 987 F.2d 1482, 1487, 1491 (10th Cir. 1993).
1. Document Preparer
Plaintiff first argues that the ALJ did not meet his burden at step five because the VE's evidence, on which the ALJ relied, is inconsistent with information in the Dictionary of Occupational Titles (DOT). The undersigned agrees. It is well established that an ALJ has a duty to determine whether evidence provided by a VE is consistent with information in the DOT. Haddock, 196 F.3d at 1089, 1091. If the ALJ fails this duty and there is an unresolved conflict between the VE's information and the DOT, that information cannot constitute substantial evidence to support a determination of non-disability. Id. at 1091; see also Hackett, 395 F.3d at 1175; SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000).
At issue is the reasoning level set forth in the DOT definition for document preparer, one of the jobs the ALJ found Plaintiff could perform. See AR 42. The DOT defines occupations, in part, by the reasoning level required to perform the occupation. Reasoning levels describe a job's requirements regarding understanding instructions and dealing with variables. The levels range from 1 to 6, with 1 being the simplest and 6 the most complex. See DOT App. C (Components of the Definition Trailer), § III, 1991 WL 688702; see also Hilliard v. Berryhill, CIV-17-424-BMJ, 2018 WL 1221485, at *2 (W.D. Okla. Mar. 8, 2018).
The ALJ found that Plaintiff was restricted to understanding, remembering, and carrying out "simple work-related tasks and instructions," but the job of document preparer requires a reasoning level of three. AR 35; DOT 249.587-018 (document preparer), 1991 WL 672349 (4th rev. ed. 1991). The DOT states that level three reasoning requires 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." DOT App. C (Components of the Definition Trailer), § III, 1991 WL 688702; see also DOT 249.587-018 (document preparer), 1991 WL 672349. The Tenth Circuit has held that a limitation to "simple and routine work tasks . . . seems inconsistent with the demands of level-three reasoning." Hackett, 395 F.3d at 1176 (internal quotation marks and citation omitted). More recently, the Tenth Circuit has also found that inconsistency between level three reasoning and an RFC limitation to simple instructions. Paulek v. Colvin, 662 F. App'x 588, 594 (10th Cir. 2016). As Plaintiff was limited to both simple tasks and simple instructions, the undersigned finds there was a conflict between the VE's assertion that Plaintiff could perform the occupation of document preparer and the DOT requirements of that job. Though the interrogatories issued to the VE included the question "[a]re there any conflicts between the occupational evidence you have provided . . . and the occupational information contained in the DOT?," to which the VE answered "[n]o," see AR 308, there clearly was a conflict for which the ALJ did not "'investigate and elicit a reasonable explanation.'" See Haddock, 196 F.3d at 1091 (holding that "the ALJ must 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"); see also SSR 00-4p, 2000 WL 1898704 at *4 ("When vocational evidence provided by a [VE] is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the [VE] evidence to support a determination or decision that the individual is or is not disabled."). As such, the interrogatory answers given by the VE do not provide substantial evidence to support the ALJ's determination that Plaintiff can perform the job of document preparer and the ALJ has not met his burden with respect to this occupation.
Defendant argues that Plaintiff's past relevant work had a reasoning level of 4 and "Plaintiff has not provided any evidence that she could not perform work at that Reasoning Level." Def.'s Br. at 11. As set forth above, at this step in the evaluation, it is not Plaintiff's burden to prove that she cannot perform the requirements of a job; it is the ALJ's burden to prove that she can. See supra. Moreover, the ALJ affirmatively found that she could not perform her past relevant work. AR 41.
Defendant also argues that "the unskilled identified jobs could be performed by someone who was limited to simple work." Def.'s Br. at 12. Defendant contends that "simple work" is consistent with "unskilled work," that "unskilled work" corresponds to a specific vocational preparation (SVP) time of 1-2, that the jobs relied upon by the ALJ have an SVP of 1-2, and therefore, that Plaintiff can perform the jobs. Id. (relying on SSR 00-04p, 2000 WL 1898704, at *2). But the ALJ did not limit Plaintiff to "unskilled work," thus implicating the SVP listings of the jobs. Rather, the ALJ limited Plaintiff to "simple tasks and instructions," which, as set forth above, has been held by the Tenth Circuit to be inconsistent with level three reasoning.
2. Grinding Machine Operator and Painter
Plaintiff next asserts that the ALJ should not have relied on the jobs of grinding machine operator and painter because common sense dictates that there is an apparent conflict between the jobs and the RFC limitations of avoiding concentration of dust, fumes, extremes of heat or cold, noxious odors, or other respiratory irritants. Pl.'s Br. at 8-10; see also AR 35. Plaintiff acknowledges that the DOT descriptions of both jobs do not indicate that the jobs require exposure to respiratory irritants. Id.; see also DOT 690.685-194 (grinding machine operator), 1991 WL 678545; DOT 735.687-018 (painter), 1991 WL 679981. Thus, there is no actual conflict between the DOT and the RFC, which normally would be fatal to Plaintiff's argument. However, here it appears that the VE relied on information other than the DOT and, as such, created an apparent conflict—or at the very least confusion—which implicated the ALJ's duty to fully develop the record. Because the ALJ failed to fully develop the record regarding evidence from the VE, the ALJ was precluded from relying on same.
The Selected Characteristics of Occupations (SCO), a detailed companion volume to the DOT published by the U.S. Department of Labor, provides explanation for the Environmental Conditions components included in the DOT job descriptions. See U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (1993), App. D. Specifically, the "atmospheric conditions" component includes "[e]xposure to such conditions as fumes, noxious odors, dusts, mists, gases, and poor ventilation, that affect the respiratory system, eyes, or the skin." SCO, App. D. The DOT descriptions for both grinding machine operator and painter indicate that atmospheric conditions are "Not Present," which is defined as "[a]ctivity or condition does not exist." DOT 690.685-194 (grinding machine operator), 1991 WL 678545; DOT 735.687-018 (painter), 1991 WL 679981.
Under SSR 00-4p, an ALJ's duty to identify any conflicts between the VE's testimony and the DOT also extends to identifying any conflicts between the VE's testimony and the SCO. See SSR 00-4p, 2000 WL 1898704, at *1.
Complicating the matter, however, is Plaintiff's past relevant work was hair stylist, for which the DOT description also indicates that atmospheric conditions are "Not Present." See AR 305 (VE interrogatory describing Plaintiff's past relevant work as hair stylist, DOT 332.271-018); DOT 332.271-018 (hair stylist), 1991 WL 672808. As such, the VE provided evidence that Plaintiff's past relevant work did not include exposure to noxious odors. But the VE also asserted that Plaintiff could not perform her past relevant work because it required "constant standing & constant work with the public & frequent contact w/ noxious odors." AR 307. To wit then, the evidence provided by the VE was internally inconsistent and indicates that, at least with respect to whether an occupation includes exposure to respiratory irritants such as noxious odors, the VE relied on something other than the DOT to make her determinations.
"[A]dministrative disability hearings are nonadversarial . . . and the ALJ has a duty to ensure that an adequate record is developed during the disability hearing consistent with the issues raised." Wall, 561 F.3d at 1062-63 (internal quotation marks and citation omitted). In developing the record, the ALJ may "receive evidence and examine witnesses about the contested issues in a case," including seeking assistance from VEs. See Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019) (internal quotation marks and citations omitted); 20 C.F.R. §§ 404.900(b), 404.1566(e). The VEs are "to provide impartial testimony in agency proceedings" and "may invoke not only publicly available sources but also information obtained directly from employers and data otherwise developed from their own experience in job placement or career counseling." Id. at 1152-53 (internal quotation marks and citations omitted). Once a VE has provided evidence, "an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods—where she got the information at issue and how she analyzed it and derived her conclusions." Id. at 1156.
Here, however, that did not happen. One reason, perhaps, is that the VE did not testify at Plaintiff's hearing but, instead, provided answers to written interrogatories six months after the hearing. See AR 47-72, 304-11. And though Plaintiff and her counsel were given the opportunity to comment on or question the evidence, see AR 309-11, so too was the ALJ, yet none did so. As a result, the VE's interrogatory answers did not provide clarity with respect to whether the jobs she suggested fit with the RFC's restrictions on exposure to atmospheric conditions, but instead created confusion—e.g., whether the jobs required exposure to respiratory irritants and the source she relied upon to make such determination. And by creating such confusion, the VE's interrogatory answers prevented the ALJ from having "sufficient information" to "make his disability determination," thus implicating the ALJ's duty to fully develop the record. Cf. Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008) (explaining that the ALJ need not further develop the record when sufficient information exists to make a disability determination); see also SSR 00-4p, 2000 WL 1898704, at *2 (discussing the ALJ's duty to fully develop the record with respect to VE evidence). "[A]n ALJ has a duty to fully develop the record even when the claimant is represented by an attorney . . . [and q]uestioning a [VE] about the source of [her] opinion and any deviations from a publication recognized as authoritative by the agency's own regulations falls within this duty." Haddock, 196 F.3d at 1091. Because the ALJ did not develop the record to alleviate the confusion created by the VE, and because such confusion persists with respect to a possible conflict between Plaintiff's RFC and the jobs cited by the VE, the undersigned finds that the VE's interrogatory answers do not provide substantial evidence for the ALJ's findings that Plaintiff can perform the occupations of grinding machine operator and painter.
It is the Commissioner's burden "to show that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy, given her age, education, and work experience." Lax, 489 F.3d at 1084 (alteration in original). For reasons stated above, the Commissioner has failed to meet this burden and remand is appropriate.
B. Whether the ALJ erred in the RFC determination
The Court does not address Plaintiff's remaining argument because the ALJ's analysis may be affected on remand after the ALJ properly considers the evidence. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (finding the court need not reach the merits of claims that "may be affected by the ALJ's treatment of the case on remand").
RECOMMENDATION
For the reasons set forth above, it is recommended that the Court reverse the Commissioner's decision and remand the matter for further proceedings consistent with this Report and Recommendation.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by December 2, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 18th day of November, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE