Opinion
CIV-21-1104-SLP
08-25-2022
RAYNA DAWN BRYANT, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
GARY M. PURCELL, Judge.
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant denying her application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1382. 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 supplemental security income on February 3, 2020, alleging disability beginning on February 3, 2020. AR 15. The Social Security Administration denied her application initially and on reconsideration. Id. An Administrative Law Judge (“ALJ”) then held a hearing during which Plaintiff and a vocational expert (“VE”) testified. AR 37-60. On May 4, 2021, the ALJ issued a decision finding Plaintiff was not disabled within the meaning of the Social Security Act. AR 12-32.
Following the agency's well-established sequential evaluation procedure, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 3, 2020, the alleged onset date. AR 17. At the second step, the ALJ found Plaintiff had severe impairments of obesity, hypertension, post-traumatic stress disorder, major depressive disorder, and attention-deficit hyperactivity disorder. Id. 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 meeting or medically equaling the requirements of a listed impairment. AR 18.
At step four, relevant to this appeal, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to “understand, remember, and carry out simple tasks with simple instructions in a routine work setting (SVP 1-2).” AR 22. Based on the RFC finding and the VE testimony, the ALJ determined Plaintiff could perform the jobs of janitor, dishwasher, and hand packer, each of which exist in significant numbers in the national economy. AR 30-31. As a result, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from February 3, 2020 through the date of the decision. AR 31-32.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 416.1472.
II. Issues Raised
Plaintiff raises three issues on appeal. First, Plaintiff argues the ALJ failed to resolve inconsistencies between two medical opinions, each of which she determined to be persuasive in determining the RFC. Doc. No. 16 at 11-16. Second, Plaintiff contends the ALJ erred by failing to conduct a “function-by-function” assessment of the RFC. Id. at 16-27. Finally, Plaintiff asserts the ALJ erred by not addressing the consultative examiner's opinion that Plaintiff required a job coach. Id. at 27-28.
III. General Legal Standards Guiding Judicial Review
The Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401, et seq. A disability is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death[,] or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 416.909 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The Court must determine whether Defendant's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148, 1154 (2019). Substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted).
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, 561 F.3d at 1052 (citation, quotations, and alteration omitted). The Court must also be mindful that reviewing courts may not create post-hoc rationalizations to explain Defendant's treatment of evidence when that treatment is not apparent from the decision itself. Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (citing, e.g., Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).
IV. Prior Administrative Medical Findings
Plaintiff's first issue on appeal arises from two administrative medical findings contained within the record. During the initial consideration of Plaintiff's disability claim, the Disability Determination Services (“DDS”) consultative examiner Dr. James Sturgis determined Plaintiff suffered from medically determinable mental impairments involving depressive disorders, anxiety, obsessive-compulsive disorders, and neurodevelopmental disorders. AR 65. In evaluating Plaintiff's mental RFC, Dr. Sturgis concluded Plaintiff could, inter alia, “understand and carry out simple, 1-2 step tasks.” AR 69.
On reconsideration of Plaintiff's claim, DDS consultant examiner Dr. William H. Farrell concluded Plaintiff suffered from medically determinable impairments involving anxiety, obsessive compulsive disorders, and depressive disorders. AR 80. In evaluating Plaintiff's mental RFC, Dr. Farrell found Plaintiff could, inter alia, “understand, recall, and perform simple and detailed tasks with routine supervision.” AR 88-89.
In her decision, the ALJ noted each of these findings specifically and then stated that she found “Dr. Sturgis[] and Farrell's opinions persuasive” and well supported. AR 29. Plaintiff alleges error in the ALJ's evaluation of the findings from Drs. Sturgis and Farrell, arguing the ALJ committed a consistency error by interpreting these opinions as containing identical limitations. According to Plaintiff, the opinions are inconsistent with one another because Dr. Sturgis stated that Plaintiff could “understand and carry out simple, 1-2 step tasks” and Dr. Farrell found Plaintiff could “understand, recall, and perform simple and detailed tasks with routine supervision.” From this premise, Plaintiff essentially presents two arguments: (1) the ALJ's failure to make the distinction alone is error requiring remand and (2) the jobs found at step five are precluded by Dr. Sturgis' persuasive medical opinion.
V. ALJ's Duty to Consider Administrative Medical Findings
For claims such as Plaintiff's, filed after March 27, 2017, 20 C.F.R. § 416.920c provides that Defendant no longer will “defer or give any specific evidentiary weight, including controlling weight, to any . . . prior administrative medical findings[.]” 20 C.F.R. § 416.920c(a). Instead, the ALJ need only articulate how persuasive she finds the prior administrative medical findings. 20 C.F.R. § 416.920c(b). Persuasiveness is determined primarily by an opinion's supportability and consistency, and the ALJ must explain how she considered those factors. 20 C.F.R. § 416.920c(b)(2) & (c)(1)-(2). In addition, the ALJ may, but is not required to, discuss other considerations that may bear on the persuasiveness of a medical opinion or prior administrative medical findings, such as the relationship of the source to the claimant, the source's area of specialization, and other factors such as the source's familiarity with the disability program's policies and evidentiary requirements. 20 C.F.R. § 416.920c(b)(2) & (c)(3)-(5).
Generally, the ALJ is not required to explain how the other factors beyond supportability and consistency were considered. 20 C.F.R. § 416.920c(b)(2). However, when the ALJ finds that two or more prior administrative findings on the same issue are equally well-supported and consistent with the record but are not exactly the same, the ALJ must explain how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. § 416.920c(b)(3). Additionally, the ALJ's overall rationale must be “sufficiently specific” to permit meaningful appellate review. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
VI. ALJ's Consideration of the Administrative Medical Findings
As discussed, in evaluating the prior administrative medical findings, the ALJ found both psychologists' opinions persuasive. AR 29. According to SSR 96-8p, the RFC assessment “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.” The ALJ must explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved. SSR 96-8p, 1996 WL 374184, at *7. SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). An ALJ's failure to properly consider medical opinions involves harmless error if there is no inconsistency between the opinions and the ALJ's assessment of the RFC. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). In that case, the plaintiff is not prejudiced “because giving greater weight to [the] opinion would not have helped her.” Id. at 1163 (holding if the ALJ's RFC is “generally consistent” with the findings in an opinion, “[t]here is no reason to believe that a further analysis or weighing of th[e] opinion could advance [the plaintiff's] claim of disability.”).
In the RFC, the ALJ concluded Plaintiff can “understand, remember and carry out simple tasks with simple instructions in a routine work setting.” AR 22. These functional limitations are consistent with the findings from Dr. Farrell. As Plaintiff points out, however, the RFC and Dr. Farrell's findings conflict with the findings of Dr. Sturgis that limited Plaintiff to “simple, 1-2 step tasks.” AR 69. As a result, Plaintiff alleges error related to the ALJ's failure to discuss the inconsistency.
Defendant contends the ALJ adopted a middle ground between the two administrative findings. Defendant argues, “Dr. Sturgis found that Plaintiff could only do one-to-two step tasks, while Dr. Ferrell [sic] found that Plaintiff could handle even detailed tasks. The ALJ found that Plaintiff could do simple tasks, a finding between these two extremes.” Doc. No. 18 at 11 (citations omitted). Contrary to Defendant's argument, however, the ALJ's decision does not reflect a middle ground approach. The ALJ merely stated that both opinions were well supported and persuasive. AR 29-30. She then adopted an RFC that conflicted with Dr. Sturgis' findings.
The undersigned also notes that, as is evident by the analysis below, there is no basis to conclude that the ALJ's alleged “middle ground” would not also conflict with both the RFC and the jobs identified at step five.
This conflict is significant because it is not clear Plaintiff could perform the jobs identified at step five if the ALJ had adopted Dr. Sturgis' opinion. The Dictionary of Occupational Titles (“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. These levels range from one to six, with one being the simplest and six the most complex. Reasoning level one requires the ability to “[a]pply commonsense to carry out simple one- or two-step instructions.” DOT, Appendix C, Components of the Definition Trailer, 1991 WL 688702. By contrast, 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. (emphasis added). As noted by Plaintiff, the jobs upon which the ALJ relied at step five have a reasoning level of two. See DOT, § 381.687-018, 1991 WL 673258 (Janitor); DOT, § 318.687-010, 1991 WL 672755 (Dishwasher); DOT, § 920.587-018, 1991 WL 687916 (Hand Packer).
Plaintiff argues that jobs which require reasoning level two inherently conflict with Dr. Sturgis' finding that Plaintiff could perform “simple, 1-2 step tasks.” The Tenth Circuit has not addressed this issue, but it has noted the court has yet to definitively determine whether a limitation to simple “tasks” is consistent with level two reasoning. See Paulek v. Colvin, 662 Fed.Appx. 588, 594 (10th Cir. 2016) (explaining in dicta, “While we have not spoken to whether a limitation to simple and routine work tasks is analogous to a limitation to carrying out simple instructions, the Eighth Circuit has held that a limitation to simple instructions is inconsistent with both level-two and level-three reasoning. See Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997).”).
Recently, the Northern District of Illinois addressed the conflict between reasoning levels one and two and certain RFCs. In Mildred B. v. Kijakazi, No. 19 CV 3532, 2022 WL 1746849, at *4 (N.D. Ill. May 31, 2022), the court explained:
“[T]here is a significant difference between one- to two-step tasks and simple, routine, repetitive tasks.” Schlattman v. Colvin, Case No. 12 C 10422, 2014 WL 185009, at *7 (N.D. Ill. Jan. 14, 2014). “One- to two-step tasks function as a term of art in the Social Security context: the Department of Labor's [DOT] . . . defines a Reasoning Development Level of 1 as the ability to apply commonsense understanding to carry out simple one- or two-step instructions.” Id. (internal quotation marks and brackets omitted). “By contrast, Reasoning Development Level 2 requires the ability to apply commonsense understanding to carry out detailed but uninvolved written or oral instructions.” Id. (internal
quotation marks and bracket omitted). “Accordingly, a limitation to one or two step work restricts the person to a Level 1 Reasoning job under the DOT, whereas simple work may also include Reasoning Level 2 or higher.” Deborah B. v. Kijakazi, No. 20-cv-7729, 2022 WL 1292249, at *2 (N.D. Ill. Apr. 29, 2022). Thus, “a limitation to one-to-two step tasks is more restrictive than just the limitation to simple work[.]” Id.; accord Wyatt v. Colvin, Case No. 14-cv-3252, 2015 WL 3919058, at *8 (N.D. Ill. Jun. 24, 2015) (remand warranted where ALJ's “fail[ure] to use the psychologist's terminology” that plaintiff was limited to “one and two-step tasks” in hypothetical question to VE, and instead asking whether plaintiff could perform “simple work,” may have “caused the expert to overstate the occupations for which Plaintiff was qualified”).Id. at *4.
Other courts have reached similar conclusions. See Henderson v. Colvin, 643 F. App'x. 273, 277 (4th Cir. 2016) (holding “there is an apparent conflict between an RFC that limits [a plaintiff] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed [though uninvolved] instructions”); Rounds v. Comm'r of Soc. Sec., 807 F.3d 996, 1003 (9th Cir. 2015) (finding a conflict between an RFC limiting the plaintiff to performing one- and two-step tasks and the demands of level two reasoning and noting the close similarity between the RFC and level one reasoning); Gary R. v. Comm'r of Soc. Sec., No. 6:20-cv-1109-JR, 2021 WL 3056081, at *3 (D. Or. July 20, 2021) (“There is an apparent conflict between performing one-and two-step tasks, and the demands of level two reasoning.”); Tabitha F. v. Saul, No. 6:19-cv-00618-AA, 2021 WL 374968, at *3 (D. Or. Feb. 3, 2021) (“[T]o the extent [] Dr. Kessler believed that 12 step task and instruction limitations were consistent with a mental RFC limited to ‘simple routine tasks,' his opinions were internally inconsistent,” explaining the latter was consistent with reasoning level two jobs and the former to reasoning level one jobs); C.P. v. Saul, No. 19-1256-JWB, 2020 WL 6544582, at *6 (D. Kan. Nov. 6, 2020) (“The plain language of the DOT suggests that a limitation to one-to-two-step instructions conflicts with the requirements for jobs requiring level two reasoning.”); Kim L.P. v. Saul, No. 18-CV-552-JED-FHM, 2020 WL 5802927, at *4 (N.D. Okla. Sept. 29, 2020) (“Although the state agency doctors found [] Plaintiff was capable of following ‘simple instructions,' they specified [] this meant instructions of one to two steps. [] [D]espite giving ‘substantial weight' to their opinions, the ALJ omitted the ‘1-2 step' limitation from his RFC. He was free to do this, but he was required to explain his reasoning in doing so. On remand, the ALJ should either incorporate the limitation into his RFC and proceed accordingly or explain why he declined to do so in the first instance.” (citations omitted)); Levine v. Astrue, No. 06-CV-2901, 2008 WL 859245, at *3 (E.D. Penn. March 27, 2008) (finding a conflict between the RFC indicating the plaintiff was limited to “simple, 1-2 step work tasks” and jobs requiring level two reasoning).
20 C.F.R. § 416.920c(b)(3) dictates that when the ALJ finds that two or more prior administrative findings on the same issue are equally well-supported and consistent with the record but are not the same, she must explain how she considered “the other most persuasive factors in paragraphs (c)(3) through (c)(5).” Here, the ALJ failed to do so. Instead, she erred by finding both opinions persuasive and well supported but failing to explain the inconsistency between the two. Moreover, the ALJ's error was not harmless because neither the RFC nor the jobs identified at step five are consistent with Dr. Sturgis' opinion. Davis v. Comm'r of Soc. Sec., No. CIV-17-291-RAW-SPS, 2018 WL 4346692, at *4-5 (E.D. Okla. Aug. 24, 2018) (finding a conflict between a limitation to simple one- to two-step instructions and reasoning level two jobs, and explaining, “Although the unresolved conflict as to the claimant's mental limitations would have been harmless error if other jobs had been identified that did not pose a conflict, they are not harmless here because all three jobs had reasoning levels of two or three.”). Accordingly, the Court should remand this matter for further administrative proceedings consistent with the reasoning herein.
In light of this recommendation, it is unnecessary to address the remaining argument 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 before September 14th , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 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.