Opinion
CIV-23-145-G
09-22-2023
LESA SUZANN SZCZEPANIAK, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. Section 423. Defendant has answered the Complaint and filed the administrative record (hereinafter AR__), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended Defendant's decision be reversed and remanded for further administrative proceedings.
I. Administrative History and Final Agency Decision
Plaintiff filed an application for DIB on September 22, 2020, alleging disability since January 1, 2016. AR 24. The Social Security Administration denied Plaintiff's application initially and on reconsideration. Id.
Plaintiff, appearing with counsel, and a vocational expert (“VE”) testified at a telephonic administrative hearing conducted before an administrative law judge (“ALJ”) on July 6, 2022. AR 42-88. On October 5, 2022, the ALJ issued a decision in which she found Plaintiff “was not disabled under . . . the Social Security Act through December 31, 2020, the last date insured.” AR 21-35.
Following the agency's sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity from January 1, 2016, the alleged onset date, through December 31, 2020, the last date insured. AR 26. At the second step, the ALJ found Plaintiff had the following severe impairments: bipolar disorder, anxiety, depression, asthma, hypertension, obesity, and degenerative joint disease. AR 27. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id.
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform less than a full range of light work. AR 29. Relevant to this appeal, the ALJ found Plaintiff was limited to understanding, remembering, and carrying out simple, routine, and repetitive instructions. Id. During the administrative hearing, the ALJ presented the RFC limitations to the VE to determine whether there were jobs in the national economy Plaintiff could perform. AR 84-87. Given the limitations, the VE determined Plaintiff could not perform any of her past relevant work, but identified three jobs, routing clerk, marker, and collator operator, from the Dictionary of Occupational Titles (“DOT”) that Plaintiff could perform. Id. The ALJ ultimately adopted the VE's testimony and concluded, at step five, that Plaintiff was not disabled based on her ability to perform the identified jobs. AR 34-35.
II. Issues Raised
On appeal, Plaintiff raises three issues. First, Plaintiff argues the ALJ erred in not enforcing the subpoena issued to Plaintiff's treating psychiatrist. Doc. No. 7 (“Op. Br.”) at 12-17. Second, Plaintiff contends the jobs the ALJ relied upon at step five conflict with the RFC's limitation to simple, routine, and repetitive instructions, and the ALJ failed to address this conflict. Id. at 17-22. Third, Plaintiff asserts the ALJ erred in her consideration of Plaintiff's subjective reports. Id. at 22-31.
III. General Legal Standards Guiding Judicial Review
Judicial review of Defendant'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. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). Substantial evidence “means-and means only- ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 587 U.S. __, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The “determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations, quotations, and brackets omitted). The court “meticulously examine[s] 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.” Id. (quotations omitted). While a court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, a court does not reweigh the evidence or substitute its own judgment for that of Defendant. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
IV. Analysis
The DOT defines occupations, in part, by the “reasoning level” required to perform the occupation. Reasoning levels describe a job's requirements for understanding instructions and dealing with variables. These levels range from one to six, with one being the simplest and six the most complex. Reasoning level one requires a worker to be able to “[a]pply commonsense understanding to carry out simple one- or two-step instructions” and “[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job.” DOT, App. C, Components of the Definition Trailer, 1991 WL 688702. Reasoning level two requires the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions [and] [d]eal with problems involving a few concrete variables in or from standardized situations.” Id.
Based on their reasoning levels, Plaintiff challenges the ALJ's finding at step five that she could perform the jobs identified by the VE. Op. Br. at 17-22. In her decision, the ALJ concluded Plaintiff could perform the jobs of routing clerk, marker, and collator operator. DOT, #222.687-022 (“routing clerk”), 1991 WL 672133; DOT #209.587-034 (“marker”), 1991 WL 671802, DOT #208.685-010, 1991 WL 671753. Plaintiff asserts that the RFC, which limited her to simple, routine, and repetitive instructions, conflicts with these jobs because they require a reasoning level of two.
An ALJ has a duty to identify and resolve any apparent conflicts between the DOT and a VE's testimony regarding whether a plaintiff can perform certain jobs. Social Security Ruling 00-4p, 2000 WL 1898704, at *2. To that end, the ALJ must ask the VE whether his testimony conflicts with the DOT. Id. at *4. Even if the VE answers “no,” the ALJ has a duty to independently identify and resolve any apparent conflicts before relying on the expert's testimony. Id.
The Tenth Circuit has indicated that a limitation to simple tasks is consistent with level two reasoning. See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (stating that a limitation to simple and routine work tasks “appears more consistent” with level 2 reasoning than with level 3 reasoning); Stokes v. Astrue, 274 Fed.Appx. 675, 684 (10th Cir. 2008) (finding that a limitation to simple, repetitive work was “consistent with the demands of level-two reasoning”). However, the Tenth Circuit has not determined whether a limitation to simple instructions is consistent with level two reasoning. See Paulek v. Colvin, 662 Fed.Appx. 588, 594 (10th Cir. 2016) (“[W]e have not spoken to whether a limitation to simple and routine work tasks is analogous to a limitation to carrying out simple instructions[.]” (emphasis added)). In both Hackett and Paulek, the Tenth Circuit cited with approval to an Eighth Circuit case in which the court held that a limitation to simple instructions is inconsistent with both level two and level three reasoning. Paulek, 662 Fed.Appx. at 594 (citing Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997)); Hackett, 395 F.3d at 1176 (same).
In her Response, Defendant asserts that the Eighth Circuit subsequently declined to follow Lucy in this regard. Doc. No. 12 at 11 (citing Galloway v. Kijakazi, 46 F.4th 686, 690 (8th Cir. 2022)). While accurate, it does not change the Tenth Circuit's citation to Lucy's ruling with approval. Paulek, 662 Fed.Appx. at 594; Hackett, 395 F.3d at 1176.
In her Response, Defendant asserts there is no conflict between a limitation to simple and routine work tasks and reasoning level two jobs. Doc. No. 12 at 10-11. However, this ignores the RFC's limitation that Plaintiff was limited to simple, routine, and repetitive instructions, rather than simple work or tasks. Since Paulek and Hackett, this Court has generally drawn a distinction between simple tasks and simple instructions when determining whether an RFC containing such limitations conflicts with level two reasoning. See Chatmon v. Kijakazi, No. CIV-23-291-P, 2023 WL 5395942, at *3-4 (W.D. Okla. Aug. 22, 2023) (reviewing this Court's history of distinguishing between simple tasks and simple instructions and finding that an RFC limitation to simple instructions conflicts with reasoning level two jobs); Calvin v. Kijakazi, No. CIV-21-1046-SM, 2022 WL 3268745, at *4 (W.D. Okla. Aug. 10, 2022) (“Although a limitation to simple tasks is consistent with a reasoning level of two, that is not the case for a limitation to simple instructions.” (citing C.H.C. v. Comm'r, Soc. Sec. Admin., 20-cv-2428-KLM, 2022 WL 950433, at *7 (D. Colo. March 29, 2022) (explaining that “Hackett concerned work tasks, not instructions, and the Court has found no legal authority equating the two for purposes of legal analyses”))); Rutledge v. Kijakazi, No. CIV-21-1012-C, 2022 WL 2232518, at *4 (W.D. Okla. May 31, 2022) (reversing and remanding where RFC contained limitation to simple instructions, the jobs identified at step five required level two reasoning, and neither the VE nor the ALJ addressed the same), adopted, 2022 WL 2232205 (W.D. Okla. June 21, 2022); Rodgers v. Kijakazi, No. CIV-21-12-STE, 2022 WL 801560, at *4-5 (W.D. Okla. March 15, 2022) (finding an unresolved conflict exists between an RFC limitation to understanding, remembering, and carrying out simple instructions and reasoning level two, stating, “Although the statement regarding simple instructions was dictum in Paulek, the fact remains that [the] Tenth Circuit has not definitively determined whether level two reasoning is consistent with RFC limitations of ‘simple instructions,' but it has affirmatively cited the Eighth Circuit in this regard.”); Steele v. Kijakazi, No. CIV-20-1294-STE, 2022 WL 801579, at *6 (W.D. Okla. March 15, 2022) (finding no conflict between RFC limitation to simple, routine, repetitive tasks and level two reasoning); Long v. Kijakazi, No. CIV-20-658-SM, 2021 WL 3826478, at *3-4 (W.D. Okla. Aug. 26, 2021) (finding conflict between RFC containing limitation to understanding, remembering, and carrying out simple instructions and reasoning level two jobs and noting ALJ never inquired as to whether such conflict existed); Wilson v. Saul, No. CIV-18-1185-F, 2019 WL 6337444, at *5, 7 (W.D. Okla. Oct. 18, 2019) (affirming where RFC limited the plaintiff to simple, routine, and repetitive tasks and ALJ relied on reasoning level two jobs the plaintiff could perform, stating, “[T]he Tenth Circuit has rejected the notion that a ‘limitation to simple, repetitive and routine work should be construed as a limitation to jobs with a reasoning level rating of one.'” (quoting Stokes, 274 Fed.Appx. at 684)); Forsell v. Berryhill, No. CIV-18-94-STE, 2018 WL 6440882, at *7-8 (W.D. Okla. Dec. 7, 2018) (finding no inherent conflict between RFC limitation to simple, routine, and repetitive tasks and level two reasoning jobs); Lee v. Berryhill, No. CIV-16-483-R, 2017 WL 2892338, at *7 (W.D. Okla. June 15, 2017) (same); but see Tedder v. Kijakazi, No. CIV-20-1211-P, 2021 WL 5826275, at *4 (W.D. Okla. Dec. 8, 2021) (“[A] limitation to simple tasks involving one to two step instructions is consistent with . . . [a] reasoning level of two”) (citing Ray v. Comm'r of Soc. Sec., No. CIV-18-00638-SM, 2019 WL 1474007, at *5 (W.D. Okla. Apr. 3, 2019) (“The court finds that, on its face, the description for a reasoning level of 2-the ability to carry out detailed but uninvolved written or oral instructions-does not conflict with Plaintiff's RFC limitation to carrying out simple work-related instructions and tasks.” (quotations omitted)); Dickson v. Saul, No. CIV-19-248-SM, 2019 WL 5684513, at *3 (W.D. Okla. Nov. 1, 2019) (“[T]he court finds that a reasoning level of two does not conflict with a limitation to understanding, remembering, and applying simple, routine instructions.”); Roth v. Colvin, CIV-16-0002-D, 2017 WL 394676, at *9 (W.D. Okla. Jan. 11, 2017) (finding that a RFC determination allowing a plaintiff to perform jobs with “simple, repetitive, routine instructions and work decisions” was “consistent with reasoning level 2” (quotations omitted)).
In the present case, the ALJ limited Plaintiff to simple, routine, and repetitive instructions. AR 29. This limitation conflicts with the reasoning level two jobs the ALJ identified at step five, see supra, and neither the ALJ nor the VE addressed the same. Accordingly, this matter should be reversed and remanded for further proceedings.
Additionally, on remand, the ALJ should consider whether it was error to decline to enforce the subpoena issued to Plaintiff's treating psychiatrist, Dr. Lisa Matson. Plaintiff reported that she saw Dr. Matson from 2015 beyond December 31, 2020, the date last insured. AR 73-74. Plaintiff explained that she sees Dr. Matson not only for medication but for therapy as well. Id. On July 30, 2022, the ALJ issued a subpoena to Dr. Matson for her mental health treatment records for Plaintiff beginning January 1, 2015. AR 232. In response, Dr. Matson sent only a letter in which she stated that Plaintiff suffers from bipolar affective disorder, social anxiety, and depression, was currently compliant with the treatment plan, and that Plaintiff is “unable to maintain a job currently.” AR 1402.
Plaintiff acknowledged that Dr. Matson's latter statement was an issue reserved solely to Defendant. Doc. No. 7 at 16; Cainglit v. Barnhart, 85 Fed.Appx. 71, 76 (10th Cir. 2003) (citing 20 C.F.R. § 404.1527[(d)](1)).
If an ALJ determines that records sought by an unanswered subpoena are “reasonably necessary for the full presentation of the case,” the ALJ “will” seek to enforce the same. Social Security Hearings, Appeals, and Litigation Manual, § 1-25-82.In the present case, in spite of the fact that Dr. Matson's records would have constituted the only mental health treatment records, the ALJ did not choose to enforce the subpoena, neither did she address this choice in her decision. Instead, the ALJ stated that the plaintiff's “psychological records prior to the date last insured include only routine care through her primary care physician . . .” and concluded that the RFC's “limitation to simple, repetitive task work with limit[ed] socialization in a generally stable work environment is supported by a review of the available treatment records prior to the date last insured.” AR 31, 32 (emphasis added). With regard to Dr. Matson's letter, the ALJ stated that her statement that Plaintiff was unable to maintain a job was dated “almost two years after the date last insured.” AR 33. Yet, the ALJ did not attempt to secure the five years of treatment records predating Plaintiff's date of last insured. As such, on remand, the ALJ should consider whether such records are “reasonably necessary” to the full presentation of the case.
https://www.ssa.gov/OPHome/hallex/I-02/I-2-5-82.html (last accessed on Sept. 21.
In light of this recommendation, it is unnecessary to address the remaining arguments Plaintiff raised on appeal. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”).
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter REVERSING and remanding the decision of the Commissioner for further administrative proceedings. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or 2023). before October 12th, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.