Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMANDA L. B.,1 )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 24-2489-JWL
FRANK BISIGNANO, )
Commissioner of Social Security, )
)
Defendant. )
______________________________________)
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Supplemental Security Income (SSI) benefits pursuant to sections 1602 and
1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a and 1382c(a)(3)(A)
(hereinafter the Act). Finding error in the Administrative Law Judge’s (ALJ) evaluation
of the vocational expert’s (hereinafter VE) testimony, the court ORDERS that judgment
shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the
Commissioner’s final decision for further proceedings consistent with this decision.
I. Background
1 The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of disability claimants, it has determined to
caption Social Security decisions using only the initial of the Plaintiff’s last name.
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Plaintiff protectively filed an application for SSI benefits on June 2, 2021. (R. 32,
393-98). After exhausting administrative remedies before the Social Security
Administration (SSA), Plaintiff filed this case seeking judicial review of the
Commissioner’s decision pursuant to 42 U.S.C. § 405(g). Plaintiff claims the ALJ failed
to account for nonexertional limitations resulting from fatigue, failed properly to evaluate
the opinions of the state agency psychological consultants, failed to resolve apparent
conflicts between the VE testimony and the Dictionary of Occupational Titles (|DOT),
and failed to determine whether the remaining occupations available to Plaintiff consisted
of a significant number of jobs.
The 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” refers to
the weight, not the amount, of the evidence. It requires more than a scintilla, but 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. 1988).
Consequently, to overturn an agency’s finding of fact the court “must find that the
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evidence not only supports [a contrary] conclusion, but compels it.” I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
The 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) (brackets in
Bowling)). 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. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; 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
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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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four and step five of the sequential
evaluation process. Id.
The 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 (quoting 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 previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). Because the court finds error in the ALJ’s evaluation of apparent conflicts
between the VE's testimony and information in the DOT, it will not provide an advisory
opinion regarding the other issues. Plaintiff may present arguments regarding the
remaining issues to the ALJ on remand.
II. Discussion
Plaintiff argues the ALJ’s RFC limitation to “understand and remember simple
instructions … for simple repetitive tasks” (R. 39) appears to conflict with the ability to
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perform jobs within the occupation of a Data-Examination Clerk which require
Reasoning Level 3, the ability to, “Apply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form. Deal with problems
involving several concrete variables in or from standardized situations.” DICOT
209.387-022, 1991 WL 671788 (GPO DOT 1991). Plaintiff cites Hackett, 395 F.3d at
1176, for the proposition that an RFC limitation to simple and routine tasks seems
inconsistent with the demands of Level 3 Reasoning. (Pl. Br. 12). Plaintiff also argues
that limitation appears to conflict with the ability to perform jobs within the occupations
of Sorter, Touchup Screener, Sack Repairer, and Film-Touchup Inspector which require
Reasoning Level 2, the ability to “Apply commonsense understanding to carry out
detailed but uninvolved written or oral instructions. Deal with problems involving a few
concrete variables in or from standardized situations.” DOT, App. C, III, 02 Level
Reasoning Development (G.P.O. 1991), available online at, Appendix C: Components of
the Definition Trailer - DOT Dictionary of Occupational Titles, last visited, Nov. 5, 2025.
Plaintiff cites eight District of Kansas cases and one District of New Mexico case in
support of her argument. (Pl. Br. 14-15).
In his response brief, the Commissioner argues the apparent conflicts argued by
Plaintiff were resolved by the VE, who testified that the Data-Examination Clerk, and the
Bill Sorter occupations, though classified as SVP (Specific Vocational Preparation) Level
3 occupations had a subset of jobs within those occupations which could be performed at
SVP Level 2. (Comm’r Br. 15) (citing R. 117). He then argues, “While the vocational
expert testified in terms of SVP level, this reasonably corresponds to reduced complexity
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in the work.” (Pl. Br. 15). He points out the definition of unskilled work involves
performing simple duties and that unskilled work corresponds to SVP Level 1 or 2 work.
Id. He then concludes,
Thus, the vocational expert carved out a subsection of the two occupations
that, from his expert knowledge, could be performed even with a restriction
to simple work (Tr. 117). This unchallenged expert testimony provided
substantial evidence meeting the ALJ’s burden at step five.
Id. (citing Biestek v. Berryhill, 587 U.S. 97, 105-06 (2019) (recognizing a vocational
expert’s testimony as substantial evidence as to job numbers supporting the agency’s
burden at step five)). He argues Plaintiff failed his burden to demonstrate error because
“the vocational expert testimony reasonably reconciled any apparent conflict between the
DOT and the restriction to simple work.” Id. at 16.
Finally, the Commissioner points out the Tenth Circuit in Hackett, 395 F.3d at
1176, “held that a limitation to ‘simple and routine work tasks’ was inconsistent with the
demands of GED [General Educational Development] Reasoning Level 3 but was
consistent with the demands of GED Reasoning Level 2.” Id. (also citing Stokes v.
Astrue, 274 F. App’x. 675, 684 (10th Cir. 2008) (citing Hackett and reiterating that a
limitation to simple work tasks is not inconsistent with Level 2 reasoning involving
detailed but uninvolved instructions)). He also notes this court has “held that no conflict
exists between simple work and GED Reasoning Level 2.” Id. 16-17 (citing Danette
Renee G. v. Kijakazi, Civ. A. No. 21-2475-JWL, 2022 WL 17338283, at *10 (D. Kan.
Nov. 30, 2022); Karen Jean M. v. Saul, Civ. A. No. 19-2455-JWL, 2020 WL 5057488, at
*14 (D. Kan. Aug. 27, 2020); and Kyle Edward Victor G. v. Saul, Civ. A. No. 19-2518-
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JWL, 2020 WL 3960422, at *11 (D. Kan. July 13, 2020)). Citing Galloway v. Kijakazi,
46 F.4th 686, 690 (8th Cir. 2022), he points out the Eighth Circuit has held consistently
with this court’s position.
In her Reply Brief, Plaintiff argues, “
Defendant either attempts to substitute (or conflates) the Specific
Vocational [Preparation] (“SVP”) scale … with the reasoning level scale …
. The Defendant is mis[taken] in conflating the SVP number – which
measures [preparatiom] based on how long it takes to learn a job – with the
reasoning level numbers – which [measure] the complexity of instructions
and cognitive processing. The ALJ’s failure to differentiate these concepts
underscores the lack of a valid resolution of the conflict.
(Reply 6) (citation omitted). She then argues, “because at least some of the six jobs
identified are questionable due to unresolved conflicts as argued above, the ALJ has an
obligation to evaluate whether the remaining jobs constitute a significant number in the
national economy.” Id. (citing Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004)).
As both parties agree, the Hackett court determined the mental ability to perform
only “simple and routine work tasks” is insufficient to perform “the demands of level
three reasoning.” 395 F.3d at 1176 (citing Lucy v. Chater, 113 F.3d 905, 909 (8th Cir
1997)). The Hackett court went on to note, “level-two reasoning appears more consistent
with [Ms. Hackett’s] RFC.” Id. As the Commissioner suggests, this court has long held
that the mental RFC to perform “simple and routine work tasks;” “simple work;” “simple
instructions;” “detailed but uninvolved instructions to perform simple, routine, and
repetitive tasks;” “simple, repetitive, routine tasks and to making simple work-related
decisions;” or “simple, repetitive, routine tasks with simple, work-related decisions and
few, if any, workplace changes,” are sufficient to handle the demands of occupations
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requiring Reasoning Level 2. Danette Renee G., 2022 WL 17338283, at *10; Stephanie
Beth D. v. Kijakazi, Civ. A. No. 20-2622-JWL, 2022 WL 1136192, at *9 (D. Kan. April
18, 2022); Karen Jean M., 2020 WL 5057488, at *14; and Kyle Edward Victor G., 2020
WL 3960422, at *11.
It is apparently based upon the facts that this broad range of mental RFC
assessments equates to unskilled work, that an SVP Level of 1 or 2 also equates to
unskilled work, and that the VE testified that a portion of the jobs within the SVP 3
(semiskilled) occupations of Bill Sorter and Data Clerk are actually unskilled (SVP 2)
that the Commissioner in his brief argued that the ambiguities had been adequately
resolved. However, as this court is aware, some unskilled work requires the mental
ability for Level 3 Reasoning. Carolyn J. S. v. Saul, Civ. A. No. 18-4049-JWL, 2019 WL
2523575, *2 (D. Kan. June 19, 2019) (the occupation of a Mail Clerk is unskilled (SVP
2) but is Reasoning Level 3).
Moreover, the Data Clerk occupation present here—even the portion the VE
testified is at SVP 2 level (unskilled) requires Reasoning Level 3. DICOT 209.387-022,
1991 WL 671788 (G.P.O. 1991). While the Commissioner’s argument implies the VE’s
testimony also support’s adjusting the Reasoning Level to 2, that is not what the VE
testified. (R. 117) (“[Data Clerk] is sedentary, SVP 3, but it’s my professional opinion
there would be about 9,300 of those jobs remaining at SVP 2.”).
Thus, following its past reasoning, and finding the non-binding district court
precedent cited by Plaintiff unpersuasive for the reasons cited in Danette Renee G., 2022
WL 17338283, at *10; Stephanie Beth D., 2022 WL 1136192, at *9; Karen Jean M.,
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2020 WL 5057488, at *14; and Kyle Edward Victor G., 2020 WL 3960422, at *11, the
court finds no error in the ALJ’s accepting the VE’s testimony that the 16,000 jobs in the
occupations of Bill Sorter, Table Worker, Touchup Screener, Sack Repairer,2 and
Inspector are within the mental ability of Plaintiff.
Although this court believes Hackett was wrongly decided, it is binding Tenth
Circuit precedent, and the court must therefor find that the Reasoning Level 3 of the Data
Clerk occupation requires greater mental functional capacity than that assessed for
Plaintiff. Carolyn J. S., 2019 WL 2523575, at *2-3.
Consequently, although the ALJ found that 25,400 representative jobs in the
national economy was a significant number, eliminating the 9,300 jobs available in the
Data Clerk occupation leaves only 16,100 representative jobs. As Plaintiff points out
judicial line-drawing regarding a significant number of jobs in the national economy is
inappropriate. (Reply 6) (citing Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004);
and Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992)). 16,100 representative
jobs is an insufficient number of jobs for the court to determine as a matter of law that it
is a significant number. Therefore, remand is necessary for the Commissioner to make
that determination in the first instance.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) REMANDING the Commissioner’s final decision
in this case for further proceedings consistent with this decision.
2 The ALJ’s decision refers to this occupation as a “Fax” Repairer, but as Plaintiff points
out, 782.687-046 is the DOT identification for the occupation of a “Sack Repairer.”
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Dated November 6, 2025, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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