STEPHAN M. VIDMAR, United States Magistrate Judge.
THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing, with Supporting Memorandum [Doc. 15] ("Motion"), filed on September
The standard of review in a Social Security appeal is whether the Commissioner's final decision
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. The decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Id. While a court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include "anything that may undercut or detract from the [Commissioner]'s findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir.2005). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.2007) (quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir.2004)).
In order to qualify for disability benefits, a claimant must establish that she is unable "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); 20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). At the first four steps of the evaluation process, the claimant must show: (1) she is not engaged in
Plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income on October 14, 2010. Tr. 10. Plaintiff alleged a disability-onset date of October 12, 2010. Id. Her claims were denied initially and on reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ Ben Willner held a hearing on May 15, 2012, in Albuquerque, New Mexico. Id. Plaintiff appeared pro se and in person. Tr. 10, 24-26. The ALJ took testimony from Plaintiff and an impartial vocational expert ("VE"), Thomas M. LaFosse, who appeared by telephone. Tr. 10, 30-53.
At the hearing, among other questions, the ALJ asked the VE to "classify [Plaintiff's past work as a cashier] as far as skill and exertional level[.]" Tr. 47. The VE responded that Plaintiff's past cashier work was classified as "retail cashier [Dictionary of Occupational Titles ("DOT")] number 211.462-010. Light duty. [Specific Vocational Preparation ("SVP") rating of] two." Id. Later at the hearing, in response to a hypothetical posed by the ALJ, the VE testified that a hypothetical individual with Plaintiff's RFC could perform the duties of retail cashier. Tr. 48-49.
The ALJ issued his unfavorable decision on November 27, 2012. Tr. 10-17. At step one, he found that Plaintiff had not engaged in substantial, gainful activity since December 31, 2010. See Tr. 12. Because Plaintiff had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded to step two. Id. There, he found that Plaintiff suffered from the following severe impairments: history of seizure disorder, depression, and osteoarthritis. Id. At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 13-14.
Because none of Plaintiff's impairments met a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 14-16.
Tr. 14.
At step four, the ALJ relied on the VE's hearing testimony to conclude that Plaintiff was able to perform her past relevant work as a cashier as it is generally performed and as Plaintiff actually performed
The ALJ's findings at step four are not supported by substantial evidence. First, there is an unresolved conflict between the VE's testimony regarding Plaintiff's ability to return to her past work as a cashier and the DOT's description of the reasoning level required to perform the duties of a cashier. Unless the conflict is resolved, the ALJ may not rely on the VE's testimony as substantial evidence for his ultimate finding of non-disability. Second, the ALJ's findings regarding the mental demands of Plaintiff's past relevant work are not supported by any evidence. For these reasons, remand is required.
Plaintiff argues that the ALJ erred in failing to resolve a conflict between the VE`s testimony (that someone with Plaintiff's RFC could perform the job duties of cashier) and the DOT's explanation of such duties (including "level-three reasoning").
Reasonable explanations are required for conflicts between the DOT and the VE's testimony. Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir.2005) (citing Social Security Ruling ("SSR") 00-4p; Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir.1999)). "[A]n ALJ has a duty to fully develop the record[.] Questioning a [VE] about the source of his opinion and any deviations from [the DOT] falls within this duty." Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.1999) (clarifying that the duty applies at steps three, four, and five of the sequential evaluation process). "[B]ecause cross-examining a [VE] with a publication such as the [DOT] is clearly a matter for someone well versed in social security law, not a layman[,]" the ALJ — not the claimant — is responsible for investigating and eliciting a reasonable explanation for any conflict between the VE's testimony and the DOT. Id. If the ALJ fails this duty and there is an unresolved conflict between the VE's testimony and the DOT, the VE's testimony cannot constitute substantial evidence to support a determination of non-disability. Id.
For example, in Hackett, the Tenth Circuit Court of Appeals found a conflict between the VE's testimony (that the plaintiff could perform certain jobs even though she was limited to "simple and routine work tasks") and the DOT (which describes the jobs as requiring level-three reasoning). Hackett, 395 F.3d at 1171,
The instant case is on all fours with Hackett. In Hackett, the plaintiff was limited to "simple and routine work tasks," and remand was required where the VE testified that the plaintiff could perform jobs requiring level-three reasoning. Hackett, 395 F.3d at 1171. Here, the ALJ limited Plaintiff to "simple tasks with simple instruction," Tr. 14, and the VE testified that Plaintiff could perform a job requiring level-three reasoning, Tr. 17.
The Court is not persuaded by the Commissioner's argument that there is no conflict between the VE's testimony in this case and the DOT. See [Doc. 16] at 6-7. Essentially, the Commissioner argues that the reasoning level is irrelevant; instead, she argues that the SVP rating is what matters. Id. The Commissioner argues that Plaintiff's restriction to "simple tasks with simple instruction" is merely a limitation to unskilled work. Id. at 6 (citing SSR 96-9p, 1996 WL 374185 at *9). She argues further that unskilled work is compatible with jobs designated in the DOT as having SVP ratings of 1 or 2. Id. (citing SSR 00-4p, 2000 WL 1898704 at *3). Since the DOT describes the cashier job as a having an SVP rating of 2, the Commissioner argues that the VE's testimony was consistent with the DOT. Id. at 7. The Court is not persuaded because this argument does not meaningfully address Hackett, which is binding precedent in this circuit.
There is a conflict between the VE's testimony in this case and the DOT. The ALJ failed to investigate and elicit a reasonable explanation for the conflict. Accordingly, the VE's testimony cannot constitute substantial evidence to support the ALJ's decision.
The parties dispute whether the ALJ's findings were adequate at phase two of step four, which pertains to the demands of Plaintiff's past relevant work. [Doc. 15] at 7; [Doc. 16] at 4-5. The Tenth Circuit Court of Appeals explained the phases at step four as follows:
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.1996) (emphases added).
The Tenth Circuit has also clarified that the record must be adequately developed to support the ALJ's findings at phase two in particular. E.g., id. at 1024. For example,
Id. at 1024 (quoting SSR 82-62, 1982 WL 31386 at *3) (alterations omitted). Where a claimant has a mental impairment and the record is not adequately developed regarding the mental demands of a claimant's past work, remand is necessary because otherwise there is no substantial evidence to support a phase-two finding. Id.; Flores v. Apfel, No. 99-2369, 2000 WL 1694301 at *3-4, 2000 U.S.App. LEXIS 28642 at *10-11 (10th Cir. Nov. 13, 2000) (unpublished) (reversing and remanding for further development of the record regarding the mental demands of claimant's past relevant work because the ALJ did not inquire about such demands at the hearing and because the vocational summary completed by the claimant did not address such demands).
Where the record is adequately developed, the phase-two findings must still be sufficient for a phase-three finding and for meaningful judicial review. Winfrey, 92 F.3d at 1025 ("Requiring the ALJ to make specific findings on the record at each phase of the step four analysis provides for meaningful judicial review. When ... the ALJ makes findings only about the claimant's limitations, and the remainder of the step four assessment takes place in the VE's head, [courts] are left with nothing to review.").
Here, Plaintiff argues that at phase two the ALJ impermissibly failed to make findings himself regarding the demands of Plaintiff's past relevant work. [Doc. 15] at 7 (citing Winfrey, 92 F.3d at 1023-26). Plaintiff argues that the ALJ's recitation of the VE's testimony about the demands of Plaintiff's past work is not enough. Id. Thus, Plaintiff concludes that the ALJ's ultimate finding that Plaintiff is able to return to her past relevant work is deficient. Id.
The Commissioner responds the ALJ's findings at phase two were sufficient. [Doc. 16] at 8. She argues that the ALJ "specifically referred to the VE testimony that Plaintiff's past work as a [cashier] was an unskilled[,] light duty job that corresponded to [DOT] 211.462-010." Id. Essentially, the Commissioner argues that it was adequate for the ALJ to reference the VE's testimony classifying Plaintiff's past work. [Doc. 16] at 8. Plaintiff, however, replies that "[i]n order to make a past work finding, the ALJ `must obtain adequate factual information about those work demands which have a bearing on the medical established limitations.'" [Doc. 17] at 3 (quoting Winfrey, 92 F.3d at 1024). Plaintiff appears to argue that because the ALJ elicited no testimony whatsoever from her regarding the demands of her past work as a cashier, the ALJ's phase-two findings cannot be supported by substantial evidence. [Doc. 17] at 4, 5-6.
Plaintiff is correct. As it stands, the record does not contain substantial evidence to support the ALJ's phase-two findings regarding the mental demands of Plaintiff's past work as a cashier. Because Plaintiff appeared at the hearing pro se,
The entirety of the ALJ's findings at phase two of step four are as follows:
Tr. 16. To the extent that Plaintiff argues that the phase-two findings are inadequate because the ALJ merely recited the VE's testimony, the Court does not agree. The ALJ may rely on the VE's testimony in making findings at phase two. Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003). Although it would have been preferable for the ALJ to have expressly indicated that he found that the demands of Plaintiff's past work were consistent with the cited sections of the DOT, there is no reversible error in the lack of the phrase "I find." See id.
However, Plaintiff also argues that the record does not support the ALJ's finding that the demands of Plaintiff's past work as a cashier correspond to DOT 211.462-010. See [Doc. 17] at 5-6. As Plaintiff correctly points out, the ALJ asked Plaintiff no question at the hearing about how she performed her past work as a cashier, and indeed, she gave no testimony on the subject. See Tr. 24-54. The ALJ did ask questions regarding her past work as a preschool teacher, Tr. 32-34, but none regarding cashiering. It would seem, therefore, that the VE would have no basis for classifying Plaintiff's past work as a cashier.
However, the ALJ asked the VE if he had had an opportunity to "review the claimant's work history and listen to the testimony presented in [the] hearing." The VE said, "Yes, I have." Tr. 46. The ALJ went on to ask the VE whether he need further testimony from the claimant regarding her past jobs before the VE classified them "as far as skill and exertional level." The VE said, "No questions, Judge." Tr. 47. Additionally, the Commissioner points out that the record contains a work-activity report, completed by Plaintiff, describing her past work as a cashier. [Doc. 16] at 8 (citing Tr. 182). The implied argument is that the VE or the ALJ or both had reviewed the work-activity report and that it constitutes substantial evidence to support the phase-two finding. See id.
The Court is not persuaded by the Commissioner's arguments for two reasons. First, it is unclear whether the VE ever saw the work-activity report. Indeed, the Commissioner does not explicitly argue that the VE ever saw the work-activity report. Id. Rather, she merely argues that the work-activity report does not evidence that Plaintiff's past work as a cashier work was not unskilled. Id. Second, even if the VE did review the work-activity report, the report does not address the mental demands of Plaintiff's cashiering job. See Tr. 182. Without any evidence — from the hearing or anywhere else — on the record regarding the mental demands of Plaintiff's past work as a cashier, the
The Court will reverse the ALJ's decision and remand the case to allow the ALJ to revisit step four. The ALJ must address the apparent conflict between Plaintiff's inability to perform more than simple tasks with simple instruction and the level-three reasoning required by the cashier job identified as appropriate for Plaintiff by the VE. Additionally, the ALJ must make findings regarding the demands of Plaintiff's past relevant work that are supported by substantial evidence.
