Dickson v. Saul

VIRGIL PAUL DICKSON, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.

Case No. CIV-19-248-SM

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

November 1, 2019

MEMORANDUM OPINION AND ORDER

Virgil Paul Dickson (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have consented to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Docs. 4, 14.

Plaintiff maintains he cannot perform the jobs identified at step five of the sequential evaluation process. After a careful review of the record (AR), the parties' briefs, and the relevant authority, the court affirms the Commissioner's decision. See 42 U.S.C. § 405(g).¹

I. Administrative determination.

A. Disability standard.

The Social Security Act defines "disability" as the "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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).

B. Burden of proof.

Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.

C. Relevant findings.

1. Administrative Law Judge's findings.

The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 817-28; see 20 C.F.R. §§ 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:

(1) had not engaged in substantial gainful activity from the alleged onset date through the last-insured date;

(2) had the severe impairments of obesity, diabetes mellitus, degenerative disc disease, hypothyroidism, asthma, depression, and adjustment disorder;

(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;

(4) had the residual functional capacity (RFC)² for sedentary work with additional restrictions;

(5) was unable to perform any past relevant work, but could perform jobs that exist in significant numbers in the national economy such as order clerk, document preparer, and touch-up screener; and thus

(6) was not disabled between the alleged onset date and the date last insured.

AR 819-28.

2. Appeals Council's findings.

Because Plaintiff's case had once been remanded by a federal district court for further consideration, see Dickson v. Berryhill, 2017 WL 4082688, at *1 (E.D. Okla. Sept. 15, 2017), and the Appeals Council did not assume jurisdiction of the case, the ALJ's decision is the Commissioner's final decision. See 20 C.F.R. § 404.984(a).

II. Judicial review of the Commissioner's final decision.

A. Review standard.

The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) ("It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (internal quotation marks and citation omitted). A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).

B. Issues for judicial review.

Plaintiff asserts he cannot perform the jobs identified by the ALJ at step five of the sequential evaluation process because those jobs require a GED reasoning level of two or three. Doc. 15, at 10-14.

III. Analysis.

A. Step-five determination.

At step five, the ALJ must "investigate and elicit a reasonable explanation for any conflict" between the Dictionary of Occupational Titles (DICOT) and a vocational expert's testimony. Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). Plaintiff contends the ALJ did not perform this duty. The court agrees that there was an apparent conflict between the VE's testimony and the DICOT on two of the three jobs identified by the VE and that the ALJ failed to investigate or explain the conflict. But the court also finds that there was no conflict between the VE's testimony and the DICOT on one of the jobs. Because that job exists in sufficient numbers in the national economy, the ALJ's error is harmless.

1. The RFC.

The ALJ found Plaintiff was limited to "understand[ing], remember[ing] and apply[ing] simple, routine instructions and concentrate[ing] and persist[ing] for extended periods in order to complete simple work tasks with routine supervision." AR 822. The undersigned notes that the ALJ made twospecific RFC findings relevant here—that Plaintiff was "able to understand, remember, and apply simple, routine instructions" and that Plaintiff could "complete simple work tasks with routine supervision. Id. The Tenth Circuit has "not spoken to whether a limitation to simple and routine work tasks is analogous to a limitation to carrying out simple instructions." Paulek v. Colvin, 662 F. App'x 588, 594 (10th Cir. 2016). But, by listing the restrictions separately, it is clear the ALJ intended them as two distinct limitations. So, the undersigned will consider each limitation as it relates to Plaintiff's ability to perform the jobs identified by the ALJ.

2. Touch-up screener.

The ALJ found Plaintiff could perform the job of touch-up screener. AR 827. This position has a reasoning level of two. See DICOT § 726.684-110, 1991 WL 679616. The DICOT states that a job with a reasoning level of 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." DICOT App. C (Components of the Definition Trailer), § III, 1991 WL 688702.

The Tenth Circuit has indicated that a limitation to simple tasks is consistent with a reasoning level of two. See, e.g., 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 a reasoning level of twothan with a reasoning level of three); see also Stokes v. Astrue, 274 F. App'x 675, 684 (10th Cir. 2008) (holding that a limitation to simple, repetitive work was "consistent with the demands of level-two reasoning"); Forssell v. Berryhill, No. CIV-18-94-STE, 2018 WL 6440882, at *8 (W.D. Okla. Dec. 7, 2018) (finding Plaintiff's limitations of "performing simple, routine, and repetitive tasks" did not "inherently conflict with reasoning level two).³ There is thus no conflict between performing simple work tasks and the ability to perform the job of touch-up screener, which requires a reasoning level of two.

Similarly, the court finds that a reasoning level of two does not conflict with a limitation to understanding, remembering, and applying simple, routine instructions. See Ray v. Comm'r of Soc. Sec., 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.'"); Roth v. Colvin,2017 WL 394676, at *9 (W.D. Okla. Jan. 11, 2017) (finding that an RFC determination allowing a plaintiff to perform jobs with "simple[,] repetitive, routine instructions and work decisions" was "consistent with 'reasoning level 2'") adopted, 2017 WL 395215 (W.D. Okla. Jan. 27, 2017); Goleman v. Colvin, 2016 WL 3556958, at *4 (W.D. Okla. May 6, 2016) (where RFC limited claimant to "simple, routine, repetitive instructions," "[t]he ALJ properly relied on the jobs identified by the VE with a reasoning level of two.").

Because there was no conflict between the DICOT and the VE's testimony, the ALJ did not err in finding Plaintiff could perform the job of touch-up screener.

3. Order clerk and document preparer.

The ALJ also found Plaintiff could perform the jobs of order clerk and document preparer. AR 822. These jobs require a reasoning level of three. DICOT § 209.567-014, 1991 WL 671794 (order clerk); DICOT § 249.587-018, 1991 WL 672349 (document preparer). A reasoning level of three 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." DICOT App. C (Components of the Definition Trailer), § III, 1991 WL 688702.

Being limited to simple work tasks with routine supervision appears incompatible with a reasoning level of three. See Hackett, 395 F.3d at 1176(stating that a limitation to simple and routine work tasks "appears more consistent" with a...