K.L.J.,1 Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION (2025)

OPINION AND ORDER

The government determined that Plaintiff K.L.J. was not disabled for purposes of the Social Security Act. AR ² 27–28. Plaintiff has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a United States Magistrate Judge under 28 U.S.C. § 636(c). ECF No. 8.

Standard of Review

In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence. See Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993); Parker v. Comm'r, SSA, 772 F. App'x 613, 617 (10th Cir. 2019) (“If [plaintiff] is right about the legal error, we must reverse even if the agency's findings are otherwise supported by substantial evidence.”).

“Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271–72 (10th Cir. 2009) (internal quotation marks omitted). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes a mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). However, it must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty v. Astrue, 515 F.3d, 1067, 1070 (10th Cir. 2007). (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)).

If the correct legal standards were applied and substantial evidence supports the findings of the Commissioner, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).

Background

At the second step of the Commissioner's five-step sequence for making determinations,³ the ALJ found that Plaintiff had the following severe impairments: “anxiety related disorder; depressive disorder; oligoarthritis of the left wrist; fibromyalgia; and migraine headaches (20 CFR 404.1520(c)).” AR 13. The ALJ determined at step three that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in the regulations. AR 13–17. Relevant to this appeal, the ALJ concluded as to Plaintiff's mental impairments that Plaintiff had moderate limitations in each of the four areas of functioning, known as the “paragraph B” criteria.⁴ Because the mental impairments must result in at least one extreme or two marked limitations in a broad area of mental functioning to satisfy the “paragraph B” criteria, the ALJ determined that the severity of the Plaintiff's mental impairments, considered singly and in combination, did not meet or medically equal the criteria of listings 12.04 (depressive, bipolar, and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). AR 15–17.

Because he concluded that Plaintiff did not have an impairment or combination of impairments that met the severity of the listed impairments, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to

perform light work as defined in 20 CFR 404.1567(b) except she can frequently handle, finger, and feel with the left non-dominant hand. [Plaintiff] can perform simple but not detailed work; can have occasional interaction with coworkers and the general public; requires a five-minute break every two hours; and can tolerate occasional changes in the workplace.

AR 17.

In formulating the RFC, the ALJ related that Plaintiff testified, among other complaints, that

she experienced brain fog during the period at issue and would manifest by her having issues with word finding or being able to spell correctly. She indicated the words do not come to her like they used to. [Plaintiff] alleged her speed and accuracy were also impacted. She stated this in turn affected her emotionally and mentally and that she was in a deep depression.

AR 19. Plaintiff related that her conditions and symptoms were getting worse. AR 20.

The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but her statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. The ALJ first noted that Plaintiff's description of her daily activities was not limited to the extent one would expect, given her complaints of chronic, disabling symptoms, especially her parenting responsibilities and her ability to drive. Id. The ALJ reasoned

that the physical and mental capabilities required in performing many of the activities [Plaintiff] described replicate those necessary for obtaining and maintaining employment. Thus, it would appear that such activities require significant functional ability and some consistent form of attention and are not consistent with [Plaintiff]’s allegations of disabling symptoms. These activities are inconsistent with the [Plaintiff]’s alleged severity, but are consistent with the ability to perform at work within the residual functional capacity determined in this decision.

Id.

The ALJ then reviewed the medical evidence and concluded that the record “does not establish disabling impairments of such a severity, either singly or in combination, that would preclude the performance of all sustained work activity.” AR 20. Among other things, ALJ noted that Plaintiff's mental conditions appear to be generally stable and manageable AR 22.

The ALJ found that Plaintiff was unable to perform her past relevant work as a paralegal. AR 25. However, after receiving testimony from a vocational expert (“VE”), the ALJ determined that jobs exist in significant numbers in the national economy that Plaintiff could perform given her RFC, including marking clerk, mail clerk, and small market assembler. AR 27. Accordingly, Plaintiff was deemed not to have been under a disability from November 1, 2019, the amended alleged onset date, through December 31, 2021, the date last insured. Id.

Analysis

Plaintiff argues that the ALJ's unfavorable decision should be reversed and remanded due to three errors. First, Plaintiff claims that the ALJ found that she suffered from a severe mental impairment but that impairment is not reflected in the RFC. Second, Plaintiff contends that the ALJ violated SSR 00-4p by failing to obtain vocational evidence and analyze an apparent conflict between the VE's purportedly unreliable testimony and the contents of the Department of Labor's Dictionary of Occupational Titles (“DOT”) regarding reasoning level, and also improperly relied upon obsolete occupations. Finally, Plaintiff asks whether the Social Security Administration's EM-21065 can be applied to completely prohibit any consideration of certain parts of the DOT.

The Court finds that remand is required because the ALJ did not consider the effect of Plaintiff's moderate mental limitations on the RFC and this error was not harmless. Because the first issue raised requires reversal, the Court does not discuss the others.

As noted above, the ALJ deemed Plaintiff's anxiety and depressive disorders to be severe impairments, and found that Plaintiff had moderate limitations in each of the four areas of mental functioning. But Plaintiff contends that the RFC does not contain any limitations beyond the ALJ's finding that Plaintiff can perform “simple but not detailed work.” Plaintiff argues that this inconsistency—a finding of severe mental impairments but no corresponding limitations in the RFC—requires remand.

In response, the Commissioner states that substantial evidence supports the ALJ's conclusion that, despite her severe impairments, Plaintiff was not disabled because she could do a range of simple light work. And more than simply limiting Plaintiff to unskilled work, the ALJ also limited her ability to interact with coworkers and the general public and adapt to changes, and further stated that Plaintiff required five-minute breaks every two hours.

A severe impairment is one that significantly limits an individual's physical or mental ability to do basic work activities.⁵ 20 C.F.R. § 404.1522(a). As the ALJ recognized, the limitations identified in the paragraph B criteria are not an RFC assessment, but are instead used at step three to determine the severity of the claimant's impairments to determine whether her symptoms meet or equal the criteria for a listed impairment. See AR 17. Generally, an impairment that causes moderate functional limitations may be considered severe, see 20 C.F.R. § 404.1520a(d)(1)–(2), but it is not per se disabling at step three. See Morgan v. Astrue, 302 F. App'x 786, 789 (10th Cir. 2008) (“Findings of ‘moderate’ limitations do not, by themselves, prove disability.”).

The mental FRC assessment at step four requires a more detailed assessment of the areas of mental functioning. “Although the special technique findings from step three are not a residual functional capacity, the same paragraph B criteria are again considered but in greater detail and by itemizing functions contained within the paragraph B categories.” Hawkins v. Kijakazi, No. 1:20-cv-01259 JHR, 2022 WL 17729918, at *7 (D.N.M. Dec. 16, 2022). “[T]the analytical similarities and overlap of evidence considered at these steps require their findings to be consistent even if they are not identical.” Id.

“[A] moderate impairment is not the same as no impairment at all.” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). In other words, “[a] ‘moderate’ limitation at step three cannot be meaningless for that capacity at step four.” Hawkins, 2022 WL 17729918, at *7 (citing Haga, 482 F.3d at 1208). Accordingly, an ALJ should resolve any inconsistencies between the RFC and moderate limitations in the paragraph B criteria. See Frantz v. Astrue, 509 F.3d 1299, 1303 n.3 (10th Cir. 2007) (remanding case and ordering the ALJ to address inconsistencies between finding of moderate limitations and the later RFC determination).

Here, the RFC does account for Plaintiff's moderate limitations in interacting with others and adapting or managing oneself by providing that she can have occasional interaction with coworkers and the general public and she can tolerate occasional changes in the workplace. AR 17.

However, the ALJ did not adequately consider how Plaintiff's moderate mental limitations in her ability to concentrate, persist, and maintain pace affected her ability to work. The Commissioner argues that, “most importantly for Plaintiff's claims,” the ALJ found that Plaintiff required a five-minute break every two hours. However, this is no real limitation at all because, as Plaintiff notes, these breaks are incorporated into the basic work activity for any job. See Program Operations Manual System (“POMS”) DI 24583.005(B)(2)(a) (stating that one of the “Mental Abilities Needed for Any Job” is “[t]he ability to maintain concentration and attention for extended periods (the approximately 2-hour segments between arrival and first break, lunch, second break, and departure)); see also SSR 96-9P, 1996 WL 374185, at *6 (July 2, 1996) (“In order to perform a full range of sedentary work, an individual must be able to remain in a seated position for approximately 6 hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon break at approximately 2-hour intervals.”). Therefore, the ALJ's “limitation” does not accommodate Plaintiff's moderate impairment in her ability to concentrate, persist, and maintain pace. Nor does the ALJ's narrative discussion, which focuses on Plaintiff's ability to perform “routine activities of daily living including adequate personal hygiene tasks, meal preparation, household chores and cleaning, and can drive and shop,” adequately explain how someone who is severely limited in her ability to concentrate, persist, and maintain pace would be able to work essentially a normal workday. Moreover, while the ALJ notes that Plaintiff's treatment records indicate that her “mental conditions are generally stable and manageable,” the fact remains that he also found that Plaintiff suffered severe mental impairments and had moderate limitations in functioning. An ALJ “cannot find moderate limitations at one step and ignore them at the next.” Hawkins, 2022 WL 17729918, at *8. “[W]ithout discussion to explain how her specific limitations allow her to perform a full range of unskilled work anyway, the Court cannot follow the ALJ's reasoning.” Id. This is reversible error.

The Commissioner also argues that the ALJ limiting Plaintiff to only “simple but not detailed work,” i.e., unskilled work, is sufficient to account for her mental impairments. The Court is not persuaded.

First, the Court agrees with Plaintiff that even unskilled work requires the ability to perform certain basic work activities, including understanding, carrying out, and remembering simple instructions. See 20 C.F.R. § 404.1522(b)(3); SSR 96–9p, 1996 WL 374185, at *9. The ALJ found that Plaintiff had severe mental impairments and moderate limitations in her mental functioning. The RFC does not reflect Plaintiff's admittedly significant limitations in her capacity to perform this basic work activity.

Second, the Tenth Circuit has recognized that restrictions to unskilled jobs do not in all instances account for the effects of mental impairments. Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (citing Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012). In Chapo, the court explained that impairment of mental functions “are not skills but, rather, general prerequisites for most work at any skill level.” Chapo, 682 F.3d at 1290 n.3 (quoting Wayland v. Chater, No. 95-7029, 1996 WL 50459 at *2 (10th Cir. Feb. 7, 1996); see also Craft v. Astrue, 539 F.3d 668, 677–78 (7th Cir. 2008) (noting that “the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job,” and holding limitation of the plaintiff to unskilled work did not account for several effects of mental impairment). The court also expressed skepticism that the “vague catch-all term” of “simple” work is sufficient to encompass “various functionally distinct mental limitations.” Chapo, 682 F.3d at 1290 n.3. Thus, “to determine whether an unskilled work designation accounts for mental limitations, the ALJ must carefully analyze the specific ways in which the claimant's impairments limit her ability to work and then compare those limits to the requirements of unskilled work.” Hawkins, 2022 WL 17729918, at *8. The ALJ did not explain “what specific functional capacities [Plaintiff]’s moderate mental limitations affected, nor how limiting her to unskilled work would account for them.” Id. This is an error, as an ALJ cannot use the “requirements of unskilled work as a substitute for careful factual analysis.” Id.

Finally, the Court cannot say that the ALJ's failure to consider the effect of Plaintiff's moderate mental limitations in formulating the RFC constitutes harmless error as the Court cannot conclude that no reasonable factfinder could have reached a different conclusion had the weight of the medical opinion evidence been adequately explained and supported by substantial evidence. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (concluding that, with certain “caveats, it ․ may be appropriate [in Social Security appeals] to supply a missing dispositive finding under the rubric of harmless error in the right exceptional circumstance, i.e., where, based on material the ALJ did at least consider (just not properly), we could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way”). Accordingly, the case must be remanded for further proceedings.

Conclusion

For the reasons set forth above, the Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this decision.

Dated this 7th day of November, 2025.

FOOTNOTES

2.   All references to “AR” refer to the sequentially numbered Administrative Record filed in this case. ECF No. 7.

3.   The Social Security Administration uses a five-step sequential process for reviewing disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step process requires the ALJ to consider whether a claimant: (1) engaged in substantial gainful activity during the alleged period of disability; (2) had a severe impairment; (3) had a condition which met or equaled the severity of a listed impairment; (4) could return to her past relevant work; and, if not, (5) could perform other work in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988). The claimant has the burden of proof through step four; the Social Security Administration has the burden of proof at step five. Lax, 489 F.3d at 1084.

4.   The four areas of mental functioning are: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself.

5.   Basic work activities are “the abilities and aptitudes necessary to do most jobs,” including:(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;(2) Capacities for seeing, hearing, and speaking;(3) Understanding, carrying out, and remembering simple instructions;(4) Use of judgment;(5) Responding appropriately to supervision, co-workers and usual work situations; and(6) Dealing with changes in a routine work setting.20 C.F.R. § 404.1522(b)(1)–(6).

N. Reid Neureiter United States Magistrate Judge