United States District Court, D. Kansas
CAROLYN J. S.,  Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum, United States District Judge
seeks review of a decision of the Commissioner of Social
Security denying Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) benefits pursuant to
sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social
Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A). Finding error in the Administrative Law
Judge's (ALJ) decision, the court ORDERS that judgment
shall be entered pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) REVERSING the decision and REMANDING the case
to the Commissioner for further proceedings consistent with
argues that the ALJ erred in finding that Plaintiff can do
her past relevant work as a mail clerk, Dictionary of
Occupational Title's (DOT) occupational definition #
209.687-026, because that definition does not describe the
past work she performed taking mail off the line, sorting it
by zip code, bundling it and putting it in boxes, and sending
them to the next department for shipping. (Pl. Br. 10-14).
She argues that even if the work she did meets the DOT
definition of work as a mail clerk, she cannot perform that
work because it requires constant standing beyond the six
hours in a workday required by light work as assessed by the
ALJ, and because the ALJ did not resolve the conflict between
the standing requirements of light work and the mail clerk
job as she performed it or the conflict between the assessed
limitation to “simple, routine, and repetitive tasks
and the DOT's recognition that the mail clerk job
requires a reasoning level of three. Id. at 15-16.
She argues the ALJ erred in assessing residual functional
capacity (RFC), including errors in weighing the medical
source opinions. Id. at 17-29. Finally, Plaintiff
argues that the Commissioner's decision should be
reversed, and the case remanded for an immediate award of
benefits and determination of an onset date which is no later
than Plaintiff's attainment of age 55 on August 24, 2015.
Id. at 29-32.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
she applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844
F.2d 748, 750 (10th Cir. 1988)). “If a determination
can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
she has a severe impairment(s), and whether the severity of
her impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's RFC. 20 C.F.R. §§ 404.1520(e),
416.920(e). This assessment is used at both step four and
step five of the sequential evaluation process. Id.
Commissioner next evaluates steps four and five of the
process-determining at step four whether, considering the RFC
assessed, claimant can perform her past relevant work; and at
step five whether, when also considering the vocational
factors of age, education, and work experience, she is able
to perform other work in the economy. Wilson, 602
F.3d at 1139 (citing Lax, 489 F.3d at 1084). In
steps one through four the burden is on Plaintiff to prove a
disability that prevents performance of past relevant work.
Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir.
2006); accord, Dikeman v. Halter, 245 F.3d
1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at
751 n.2. At step five, the burden shifts to the Commissioner
to show that there are jobs in the economy which are within
the RFC assessed. Id.; Haddock v. Apfel,
196 F.3d 1084, 1088 (10th Cir. 1999).
binding precedent requires remand for the ALJ to resolve the
conflict between the ALJ's assessment of a limitation to
simple, routine, and repetitive tasks and the mail clerk
occupation's requirement of a reasoning level of three,
the court goes directly to that issue and does not follow its
usual practice of addressing the issues in order of the
sequential evaluation process. However, because the court
finds the evidence equivocal and that there are factual
issues regarding whether the mail clerk job qualifies as past
relevant work which should be addressed in the first instance
by the Commissioner, remand for an immediate award of
benefits is inappropriate.
found Plaintiff's mental impairments include
depression/bipolar disorder, posttraumatic stress disorder,
and anxiety. (R. 12). She found Plaintiff's impairments
limit her to simple, routine, and repetitive tasks.
Id. at 14. She recognized the vocational
expert's testimony that Plaintiff's past work
included work as a “mail clerk, DOT # 209.687-026,
[which] is light in exertion and unskilled (SVP 2).”
Id. at 19 (bold omitted). She stated the vocational
expert testified that a hypothetical person with
Plaintiff's functional limitations “was capable of
performing the claimant's past relevant work as a
mailroom clerk as generally performed.” Id.
Consequently, she found Plaintiff can do her “past work
as a mailroom clerk [which] does not require the performance
of work-related activities precluded by the claimant's
residual functional capacity” and is therefore not
Plaintiff argues, “the job of mail clerk as described
in the DOT requires a reasoning development level of
three.” (Pl. Br. 16) (citing DOT Appendix C,
available online at
(last visited, June 17, 2019). Reasoning level three requires
one to “Apply 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.” Id.
Plaintiff argues that reasoning level three is inconsistent
with a limitation to simple, routine, and repetitive tasks.
(Pl. Br. 16) (citing Hackett, 395 F.3d at 1176;
Paulek v. Colvin, 662 Fed.Appx. 588, 594 (10th Cir.
Oct. 3, 2016); and Pritchett v. Astrue, No. 06-5130,
220 Fed.Appx. 790, 793 (10th Cir. March 23, 2007). In
Hackett the court reversed for “the ALJ to
address the apparent conflict between Plaintiff's
inability to perform more than simple and repetitive tasks
and the level-three reasoning required by the jobs
identified.” Hackett, 395 F.3d at 1176.
Similarly, in Pritchett the court remanded for the
ALJ to address the apparent conflict between level-three
reasoning and a restriction to “simple, repetitive and
routine work.” 220 Fed.Appx. at 793. Finally, in
Paulek, the court found the ALJ's failure to
reconcile the apparent conflict between level three reasoning
and a limitation to understanding, remembering, and carrying
out simple instructions required remand. 662 Fed.Appx. at
Commissioner argues that the ALJ did all she was required to
do in this case. She asked the vocational expert if a
conflict exists and was told that there was none. (Comm'r
Br. 21-22). Moreover, he argues that reasoning level is a
component of General Educational Development (GED) and
“[i]t seems untenable that Plaintiff had the education
to perform the mailroom clerk position while she was
performing it, but has somehow lost that education.”
(Comm'r Br. 22). He argues “the Tenth Circuit has
issued conflicting decisions concerning the significance of
GED reasoning levels.” Id. at 23 (citing
Hackett, 395 F.3d at 1176; Anderson v.
Colvin, 514 Fed.Appx. 756, 764 (10th Cir. 2013); and
Mounts v. Astrue, 479 Fed.Appx. 860, 866 (10th Cir.
2012)). Finally, he argues that the “decisions actually
addressing the DOT definition of GED reasoning
levels-i.e., those decisions that have relied on the
guidance in Anderson and Mounts- are the
better-reasoned line of authority.” Id.
(citing numerous district court decisions within the Tenth
Circuit). The Commissioner then argues and quotes extensively
from the well-reasoned decision in Rom v. Colvin,
No. 15-CV-402-FHM, 2016 WL 3528059 at *3 (N.D. Okla. June 23,
2016) for the proposition that the DOT has several ways to
address job complexity, the VE not the court has the
expertise to interpret the information in the DOT, and that a
VE could rely on SVP and the DOT occupational code more than
the GED reasoning level in evaluating the complexity of a
particular job. Id. at 23-24. He quotes the
Rom court's finding “that the jobs
identified by the vocational expert with reasoning level two
and three are not clearly beyond Plaintiff's RFC so as to
require remand for further consideration, ” and argues
this court should “find that the ALJ reasonably relied
on the uncontradicted testimony of the vocational expert that
someone with Plaintiff's age, education, and RFC could
perform her past relevant work as a mailroom clerk.”
Id. at 24.
points out that Anderson and Mounts are
unpublished and argues that they are not inconsistent with
Hackett. (Reply 5). She argues that the
Anderson court assumed a conflict between the VE
testimony and the DOT reasoning level but found any error in
failing to resolve the conflict was harmless because the VE
identified two other jobs with a reasoning level of one which
could be done by the claimant. (Reply 5) (citing
Anderson, 514 Fed.Appx. at 763-64). She argues that
in the Mounts case the ALJ assessed an RFC finding
the claimant capable of performing tasks which were not
complex (GED 1-3) ...