Filed: Dec. 23, 2015
Latest Update: Dec. 23, 2015
Summary: ORDER VICKI MILES-LaGRANGE , District Judge . On September 17, 2015, United States Magistrate Judge Bernard M. Jones issued a Report and Recommendation in this action in which plaintiff seeks judicial review of the final decision of defendant Acting Commissioner of the Social Security Administration ("Acting Commissioner") denying plaintiff's applications for disability benefits and supplemental security income. The Magistrate Judge recommended the Acting Commissioner's decision be reverse
Summary: ORDER VICKI MILES-LaGRANGE , District Judge . On September 17, 2015, United States Magistrate Judge Bernard M. Jones issued a Report and Recommendation in this action in which plaintiff seeks judicial review of the final decision of defendant Acting Commissioner of the Social Security Administration ("Acting Commissioner") denying plaintiff's applications for disability benefits and supplemental security income. The Magistrate Judge recommended the Acting Commissioner's decision be reversed..
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ORDER
VICKI MILES-LaGRANGE, District Judge.
On September 17, 2015, United States Magistrate Judge Bernard M. Jones issued a Report and Recommendation in this action in which plaintiff seeks judicial review of the final decision of defendant Acting Commissioner of the Social Security Administration ("Acting Commissioner") denying plaintiff's applications for disability benefits and supplemental security income. The Magistrate Judge recommended the Acting Commissioner's decision be reversed and remanded for further proceedings consistent with the Report and Recommendation. The parties were advised of their right to object to the Report and Recommendation on or before October 8, 2015. On September 22, 2015, the Acting Commissioner filed her objection.
In the Report and Recommendation, the Magistrate Judge concludes that the Administrative Law Judge's (ALJ) step five determination was not supported by substantial evidence because the testimony of the vocational expert ("VE") was inconsistent with the Dictionary of Occupational Titles ("DOT") and, further, that the ALJ committed reversible legal error in failing to explain the conflict between the VE's testimony and the DOT.1 In reaching this conclusion, the Magistrate Judge relies on Tenth Circuit precedent which states:
before an ALJ may rely on expert vocational evidence as substantial evidence to support a determination of nondisability, the ALJ must ask how his or her testimony as the exertional requirement of identified jobs corresponds with the Dictionary of Occupational Titles, and elicit a reasonable explanation for any discrepancy on this point.
Report and Recommendation at 7 (citing Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)).
In her objection, the Acting Commissioner contends that the ALJ did everything required of him and that no conflict between the VE's testimony and the DOT was identified by the VE or plaintiff during the hearing that needed to be resolved. The Acting Commissioner further contends that the GED Scale reasoning levels used in the DOT "does not describe specific mental or skill requirements of a particular job, but rather describes the general educational background that makes an individual suitable for the job." Objection at 2 (citing Anderson v. Colvin, 514 F. App'x 756, 764 (10th Cir. 2013) (unpublished)).2
Having reviewed the Report and Recommendation, the Acting Commissioner's objection, and the applicable case law, the Court finds that the Magistrate Judge did not err in determining the ALJ's was without substantial evidence to make his step five determination. Specifically, the Court finds that while neither the plaintiff nor the VE addressed the inconsistencies between the VE's testimony and the DOT, an inconsistency in fact still exists and should be addressed prior to the ALJ making his step five determination as to whether plaintiff has a disability.
Therefore, upon de novo review, the Court:
(1) ADOPTS the Report and Recommendation [docket no. 23] issued by the Magistrate Judge on September 17, 2015;
(2) REVERSES the decision of the Acting Commissioner;
(3) REMANDS for additional administrative proceedings consistent with the Report and Recommendation; and
(4) ORDERS that judgment issue forthwith in accordance with the provisions of sentence four of 42 U.S.C. § 405(g).
