The Circuit Split – GED Reasoning Levels, RFC Limitations To “Simple Tasks,” and Why Reliance on Hackett Is Wrong
The Dictionary of Occupational Titles prescribes a generalized education development (“GED”) reasoning level of two when jobs require carrying out “detailed instructions.” However, frequently lower courts in the Tenth Circuit are holding that limitations to “simple tasks” or “simple instructions” are consistent with a GED reasoning level of two. How can an RFC limitation to “simple instructions” be consistent with a job that requires understanding “detailed tasks?” It can’t, and the lower courts are simply wrong.
Consequently, The Tenth Circuit should clarify its prior holdings on the issue. There are several reasons for this. First, SSR 00-04p contemplates investigating inconsistencies between VE testimony and RFCs beyond mere reliance on a VE’s affirmation of consistency. Second, the majority of Circuit Courts that decided the issue hold that reasoning levels are necessary components of job performance and limitations to “simple tasks” are inconsistent with reasoning levels higher than level one. Third, the plain language of the regulations and the Commissioner’s guidance clearly indicate that reasoning levels are a necessary factor when evaluating RFCs that limit the ability to understand, carry-out, or comprehend tasks.
Frequently, ALJs abdicate their duty to resolve inconsistent vocational expert (“VE”) testimony. For example, ALJs frequently default to a VE’s statement that the VE’s testimony is consistent with the Dictionary of Occupational Titles (“DOT”) and halt any independent analysis about whether or not that testimony is actually consistent with the DOT. Recently, this has been seen in the context of the GED levels contained in the DOT. Specifically, different Circuit Courts have applied differing interpretations of the meaning and function of GED levels. Clearly, this poses a problem in the context of taking a VE at their word that their testimony is consistent with the DOT. Are the VE’s aware of the law? How can we know that a blanket statement about consistency confirms conformance with varying interpretations in the courts?
The ALJ’s duty to resolve discrepancies falls under SSR 00-4p. 2000 WL 1898704, at *2. While SSR 00-04p requires questioning whether the testimony is consistent “as part of the adjudicator’s duty to fully develop the record,” the inquiry does not absolve ALJs of their duty to resolve discrepancies. Id. Rather, the inquiry is merely a “part” of that duty. Id. at *2; see Hackett v. Astrue, 395 F.3d 1168, 1175 (10th Cir. 2005) (remanding to provide explanation for conflict that was not addressed in the record, even though the ALJ asserted that discrepancies between the VE testimony and the DOT were based on the VE’s experience). Moreover, SSR 00-04p contemplates identifying conflicts regardless of the VEs’ capability to identify their own inconsistencies, noting that ALJs “must explain the resolution of the conflict irrespective of how the conflict was identified.” 2000 WL 1898704, at *3. Often, we see courts and the Commissioner argue that the VE’s affirmative statement of consistency is sufficient for ALJs to rely on without further inquiry into actual consistency. However, this leads to the untenable conclusion that VEs be sufficiently versed in case law to identify discrepancies between the relevant circuit’s interpretation of the DOT, the plain language of the DOT, and testimony based on the VE’s experience.
In cases advancing beyond SSR 00-04p evaluations, the Commissioner frequently advocates that the DOT’s GED Scale equates solely to educational attainment and “not the simplicity or complexity of an occupation.” The Commissioner’s interpretation is wrong. The GED Scale “embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance.” DOT, Appendix C (emphasis added). If an aspect of education is required to perform a job, then that aspect certainly relates to the “simplicity or complexity of an occupation.” In the only published case on the matter, the Tenth Circuit treated the reasoning levels contained in the GED Scale as occupational prerequisites. See Hackett, 395 F.3d at 1176 (treating reasoning levels as imposing occupational requirements that relate to the RFC); see also Paulek, 2016 WL 5723860 at *11 (citing Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997)). In the Tenth Circuit, practitioners often encounter the Commissioner citing to Mounts v. Astrue, 479 F. App’x 860, 868 (10th Cir. 2012), and Anderson v. Colvin, 514 F. App’x 756, 764 (10th Cir. 2013), in support of the proposition that the GED Scale is solely relevant to educational attainment. However, the Commissioner’s frequent citation of these two cases is nearly always rejected by the courts. See e.g., Clark v. Colvin, Case No. CIV-14-1294-L, at *3 (W.D. Okla. Feb. 26, 2016); Ward v. Colvin, Case No. CIV-14-1141-M (W.D. Okla. Dec. 23, 2015); Perea v. Berryhill, Case. No. 17-573-KK (D.N.M. Aug. 30, 2018); Urias v. Berryhill, Case No. 16-1063-KBM (D.N.M. Jul. 11, 2017); Akbichi v. Berryhill, Case No. 17-cv-00838-REB (D. Colo. Apr. 11, 2018); Cain v. Berryhill, Case No. 16-cv-00640-GKF-FHM (N.D. Okla. Mar. 9, 2018).
Furthermore, in the Tenth Circuit’s lower courts, the Commissioner nearly always relies on dicta in Hackett, 395 F.3d at 1176, and the application of Hackett in Stokes v. Astrue to argue that level two reasoning is consistent with limitations to simple tasks. 274 F. App’x 675 (10th Cir. 2008). Though, again, the Commissioner’s reasoning suffers fatal flaws. In Hackett, the Tenth Circuit stated that “level-two reasoning appears more consistent” with the plaintiff’s RFC which limited the Plaintiff to simple tasks. Hackett, 395 F.3d at 1176. By itself, Hackett is not dispositive as the Tenth Circuit declined to say that a limitation to simple tasks is consistent with level-two reasoning. Id.
Moreover, the RFC in Hackett is easily distinguished from the RFCs used in most cases where GED reasoning levels pose a problem. In Hackett, the RFC stated the Plaintiff “retains the attention, concentration, and pace levels required for simple and routine work tasks.” Hackett, 395 F.3d at 1176. Therefore, a commonly used RFC such as a “can understand, remember, comprehend, and carry out simple work-related instructions and tasks” is much more limiting than the RFC in Hackett. Accordingly, Hackett’s RFC, that appeared “more consistent with level-two reasoning,” did not limit the Plaintiff’s understanding, remembering, comprehending, or carrying-out instructions. Id. Instead, it related to other, less applicable “reasoning” limitations such as those found in the “special technique.” Id. See generally 20 C.F.R. §§ 404.1520a, 416.920a. For example, there was no limitation regarding “understanding” or “carrying out,” as used in the DOT. Id. Likewise, there was no indication that the Hackett plaintiff lacked capacity to rationalize or understand simple tasks, and the RFC only limited his ability to concentrate enough to maintain pace. Id. Furthermore, the Hackett court acknowledged this distinction by noting in its analysis that level-two reasoning appeared “more consistent with Plaintiff’s RFC.” Id. (emphasis added). Therefore, Hackett does not stand for the proposition that level-two reasoning is consistent with simple tasks, but instead that level-two reasoning may be consistent with an RFC limitation to simple tasks on the basis of concentration, attention, and pace.
The Commissioner’s reliance on Stokes is equally mistaken. The plaintiff in Stokes argued that a limitation to “simple tasks” was more consistent with level-one reasoning. 274 F. App’x at 684. However, the RFC in Stokes did not specifically limit the plaintiff to simple tasks on the basis of understanding, remembering, comprehending, and carrying out instructions. Id. at 683. And, regardless of any distinctions, Stokes’s interpretation that Hackett means “simple and routine work tasks” are “consistent with the demands of level-two reasoning” is no longer valid. Id. at 684. The Tenth Circuit recently limited whatever persuasive effect, if any, Stokes has in the Tenth Circuit’s more recent decision in Paulek. 2016 WL 5723860 at *10. In Paulek, the Tenth Circuit held that “we have not spoken to whether a limitation to simple and routine work tasks is analogous to a limitation to carrying out simple instructions, the Eight Circuit has held that a limitation to simple instructions is inconsistent with both level-two and level-three reasoning.” 2016 WL 5723860 at *11 (citing Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997)). Therefore, any reliance on Stokes’s interpretation of Hackett is in err as the Tenth Circuit’s most recent holdings directly contradict Stokes.
Because the Tenth Circuit most recently held in Paulek that it has yet to decide whether level-two reasoning is consistent with simple tasks, the Tenth Circuit and its lower courts should look to other circuits for guidance. The most immediate guidance would be the Eighth Circuit’s holding in Lucy v. Chater, 113 F.3d at 909 (8th Cir. 1997), that both Hackett and Paulek cited in support. Paulek, 2016 WL 5723860 at *10; Hackett, 395 F.3d at 1176. In Lucy, the Eighth Circuit held limitations to simple instructions were inconsistent with both level-two and level-three reasoning levels. 113 F.3d at 909 (8th Cir. 1997). The Plaintiff in Lucy had a Full-Scale IQ score of 78, well above listing-level, but doctors still diagnosed the plaintiff with borderline intellectual functioning. Lucy, 113 F.3d at 907. In Lucy, doctors opined that neither satisfied a listing in-effect at the time of the hearing. Lucy, 113 F.3d at 907. Nonetheless, the Eighth Circuit applied a plain reading of level-one and level-two reasoning levels. Id. That is, where level-two reasoning requires the ability to understand and carry out “detailed instructions,” level-one reasoning plainly “requires the ability to understand and carry out simple instructions.” Lucy, 113 F.3d at 909 (citing DOT, 1010-11 (4th ed. 1991) (emphasis omitted).
Other circuits have made similar findings. In Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015), the Ninth Circuit held that a limitation to simple one or two step tasks is inconsistent with level-two reasoning levels. In Henderson v. Colvin, 643 F. App’x 273, 276-77 (4th Cir. 2016), the Fourth Circuit agreed with Rounds and found that a limitation to simple tasks is inconsistent with level-two reasoning. See also Chavis v. Berryhill, Case No. 6:17-3358-MBS-KFM, at *30 (D.S.C. Feb. 14, 2019) (examining the rationale and applicability of Rounds and Henderson in lower court decisions).
The Seventh and Eleventh Circuits take the opposite approach. The Seventh Circuit held in Terry v. Astrue that a limitation to simple tasks does not preclude even level-three reasoning jobs. See 580 F.3d 471 (7th Cir. 2009). However, the Seventh Circuit has not revisited the question since the other circuits reexamined it and came to different conclusions. Much like the Seventh Circuit, the Eleventh Circuit still holds that level-three reasoning is not inconsistent with simple tasks, though it has yet to say as much in a published opinion. See Chambers v. Comm’r of Soc. Sec., 662 F. App’x 869 (11th Cir. 2016) (unpublished).
The remaining circuits have declined to make a bright-line rule on the issue. For example, in Joyce v. Comm’r of Soc. Sec., the Sixth Circuit reframed its prior holdings that reasoning levels and RFC findings could never conflict and decided to “leave open the possibility that an ALJ might reversibly err by failing to inquire about or resolve a conflict between the DOT reasoning levels and simple-tasks limitation.” 662 F. App’x 430, 440 (6th Cir. 2016) (unpublished). District courts in the Second Circuit are conflicted and “have differed as to whether a [GED] reasoning level of 2 conflicts with a hypothetical limiting the claimant to simple, routine, and repetitive tasks.” Graves v. Astrue, 2102 U.S. Dist. LEXIS 144024 at *34-35 (W.D.N.Y. Oct. 4, 2012); see Jimenez v. Berryhill, No. 16-cv-3972-DRH, 2018 WL 4054876, at *4 (E.D.N.Y. Aug. 24, 2018).
The Tenth Circuit should adopt the rationale held in Fourth Eighth, and Ninth Circuits. In the opposing courts, neither has arrived at a conclusion based on reasoning that comports with the Tenth Circuit’s holdings in Hackett. For example, the Seventh Circuit’s holding in Terry found no conflict between level-three reasoning and simple tasks. 580 F.3d at 478. The Seventh Circuit went on to interpret SSR 00-04p as requiring resolution of only “apparent” conflicts, and thus, any error is harmless. Id. The Tenth Circuit has not considered the applicability of harmless error to reasoning levels, and the Commissioner, tellingly, has never advocated that in the Tenth Circuit.
Likewise, the Eleventh Circuit’s holding in Chambers is antithetical to SSR 00-04p and prior Tenth Circuit cases. 662 F. App’x 877. Chambers found that any conflict did not require resolution because “the vocational expert outweighs the DOT,” and therefore, a VE’s affirmation regarding his or her testimony provides seemingly automatic resolution of any potential conflict. See id. Accordingly, the Tenth Circuit’s Paulek directly contradicts Chambers, finding “Though the ALJ asked the VE whether his testimony was consistent with the DOT, it clearly was not, and the ALJ did not make alternative findings at step five.” 2016 WL 5723860 at *11.
Finally, it is important to note that the Commissioner often attempts to muddy the waters between “simple tasks” and “unskilled work” or Specific Vocational Preparation levels (“SVP”). Unskilled work is defined as “work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). “Unskilled work” incorporates SVP levels or “the amount of lapsed time required by a typical worker to learn” the duties needed for average performance in an occupation. DOT, App’x C(II). Accordingly, level-one reasoning and “unskilled work” possess some overlap, with “unskilled work” borrowing language from the definition of level-one reasoning; however, they are treated differently by the Tenth Circuit, the DOT, and ALJs. Compare Hackett, 395 F.3d at 1176 (dealing with reasoning levels irrespective of SVP) with Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (finding an RFC that specifically limited the plaintiff to SVP one or two jobs was supported by substantial evidence). Furthermore, “semiskilled work” is “work which needs some skills but does not require doing the more complex work duties.” 20 C.F.R. § 404.1568(b). The Commissioner’s procedure manual defines “semiskilled” work as work requiring “the ability to understand and remember detailed instructions” and the ability to “carry out detailed instructions.” POMS DI 25020.010 Mental Limitations (emphasis added). That is, it defines “semiskilled” work using the same language the DOT uses in level-two reasoning. DOT, App’x C. The Commissioner’s regulatory scheme appears to presume that jobs requiring the “carrying out of detailed instructions” take longer to learn, resulting in a higher SVP level, or at least, requires the VE to provide an explanation under SSR 00-04p.
Therefore, for these reasons, the lower courts in the Tenth Circuit are making significant errors in holding fast to Stoke’s interpretation of Hackett’s dicta, while ignoring the plain language of the regulations, the DOT, and the Tenth Circuit’s most recent decision on the issue, Paulek.