Opinion
No. C-13-00158 DMR
03-25-2014
JOHN BENAVIDEZ, Plaintiff, v. CAROLYN W. COLVIN, Defendant.
ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
IN PART AND REMANDING FOR
FURTHER PROCEEDINGS
Plaintiff John Benavidez ("Plaintiff") moves for summary judgment to reverse the final administrative decision of the Commissioner of the Social Security Administration (the "Commissioner") finding Plaintiff not disabled and denying his application for benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. The Commissioner cross-moves to affirm. For the reasons stated below, the court grants Plaintiff's motion for summary judgment in part and remands this action for further proceedings.
I. Procedural History
On January 14, 2010, Plaintiff filed an application for SSI benefits under Title XVI of the Act and, where applicable, for medical assistance under Title XIX of the Act, alleging disability beginning September 5, 2002. (Administrative Record ("A.R.") 81-87.) The agency denied Plaintiff's claim on July 15, 2010 and denied it again upon reconsideration on September 15, 2010. (A.R. 27-31, 37-41.) Thereafter, Plaintiff filed a request for hearing on October 1, 2010. (A.R. 45-47.)
The record contains a discrepancy regarding the onset date of Plaintiff's disability. (Compare A.R. 81, 164 (onset date 2002) with (A.R. 107, 169 (onset date 2007).) Neither party addressed this discrepancy, nor does it appear relevant to the present dispute.
Administrative Law Judge ("ALJ") Mary P. Parnow held a hearing on June 13, 2011, at which both Plaintiff and an impartial vocational expert ("VE"), Lynda Berkley, testified. (A.R. 331-55.) Plaintiff was represented by counsel at the hearing. (A.R. 333.) On October 18, 2011, the ALJ issued a written decision finding that Plaintiff was not disabled. (A.R. 16-24.) The Appeals Council denied Plaintiff's request for review, (A.R. 6-9), making the ALJ's opinion the final decision of the Commissioner. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff filed suit in this court pursuant to 42 U.S.C. § 405(g), and thereafter Plaintiff and Defendant filed cross motions for summary judgment. [Docket Nos. 18 ("Pl.'s Mot."), 30 ("Def.'s Mot.").]
II. Establishing Disability Under the Social Security Act.
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910.
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 1. At the first step, the ALJ considers the claimant's work activity, if any. If the claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled. 2. At the second step, the ALJ considers the medical severity of the claimant's impairment(s). If the claimant does not have a severe medically determinable physical or mental impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of impairments that is severe and meets the duration requirement, the ALJ will find that the claimant is not disabled. 3. At the third step, the ALJ also considers the medical severity of the claimant's impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20 C.F.R., Pt. 404, Subpt. P, App. 1 [the "Listings"] and meets the duration requirement, the ALJ will find that the claimant is disabled. 4. At the fourth step, the ALJ considers an assessment of the claimant's residual functional capacity ("RFC") and the claimant's past relevant work. If the claimant can still do his or her past relevant work, the ALJ will find that the claimant is not disabled. 5. At the fifth and last step, the ALJ considers the assessment of the claimant's RFC and age, education, and work experience to see if the claimant can make an adjustment to other work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4); 20 C.F.R. §§ 404.1520; see also Tackett, 180 F.3d at 1098-99. The burden of proof is on the claimant as to steps one to four, while step five shifts the burden to the Commissioner. Tackett, 180 F.3d at 1098. Before reaching step four, the ALJ is required to assess the claimant's residual functional capacity. See 20 C.F.R. § 404.1520(4) ("Before we go from step three to step four, we assess your residual functional capacity. . . . We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps."). A claimant's RFC is "the most [the claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a)(1). The assessment of RFC must be "based on all the relevant evidence in [the claimant's] case record." 20 C.F.R. § 404.1545(a)(1); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
III. Relevant Facts
The ALJ's decision found that Plaintiff had severe impairments consisting of angina, asthma, degenerative disc disease of the lumbar spine, torn ligament of the left knee, and left eye blindness. (A.R. 18.) The ALJ also considered Plaintiff's "medically determinable mental impairment of major depressive order," but concluded that this disorder "does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere." (A.R. 18.) The ALJ also noted that Plaintiff's "major depressive order does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities . . . ." (A.R. 18, see also A.R. 20.)
Ultimately, the ALJ made the following determination of Plaintiff's residual functional capacity:
I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) except sit for six hours of an eight hour workday with breaks; stand/walk for six hours in an eight hour work day with breaks; use push/pull devices up to 20 pounds; can handle, manipulate, feel and finger objects without any problems; and would have difficulty with frequent kneeling, climbing, and crouching.(A.R. 20, see also A.R. 24.) Thus, the ALJ's determination of Plaintiff's RFC did not account for any mental limitations. Based on this RFC, the ALJ posed hypothetical questions to the VE about Plaintiff's past relevant work, which was classified as "fixture maker" in the Dictionary of Occupational Titles. (A.R. 350-52.) The ALJ's questions did not reference any mental impairments. However, when Plaintiff's counsel asked the VE whether a claimant who had moderate difficulties in maintaining concentration, persistence, or pace would be able to do any work, the VE testified "no." (A.R. 353.)
. . .
The ALJ ultimately found that Plaintiff was not disabled because the ALJ found him capable of performing his past relevant work. (A.R. 24.) Her decision states that "[i]n comparing the claimant's residual functional capacity with the physical and mental demands of [claimant's past] work [as a fixture maker], I find that the claimant is able to perform it as actually and generally performed." (A.R. 24.)
Plaintiff argues that the ALJ did not adequately assess Plaintiff's mental impairments and the related medical opinions in the record. Three physicians offered opinions about Plaintiff's mental impairments: Dr. David Pingitore, Ph.D., Dr. Mario Morando, M.D., and Dr. Farrell Bennett, M.D.
For purposes of this opinion, the term "physician" or "doctor" includes psychologists such as Dr. Pingitore who do not have an M.D. See 20 C.F.R. § 404.1527(a)(2) (defining "medical opinions" as "statements from physicians and psychologists and other acceptable medical sources," and prescribing the respective weight to be given the opinions of treating sources and examining sources); see also Lester v. Chater, 81 F.3d 821, 830 n.7 (9th Cir. 1996).
A. Dr. Pingitore's Opinions
Psychological consultative examiner Dr. Pingitore examined Plaintiff in May 2010. (A.R. 214-16.) Dr. Pingitore's report identifies Plaintiff's diagnosis as "Major Depression, Mild, Recurrent," but notes that "there is little objective evidence that the claimant is unable to engage in substantial employment by reasons of a mental disorder." (A.R. 216.) Dr. Pingitore states that Plaintiff's "predominant issues appear to be his general medical conditions." (A.R. 216.) Dr. Pingitore's report also includes his opinion that Plaintiff "appeared able to execute simple one- and two-step commands." (A.R. 216.)
B. Dr. Bennett's Opinions
At the time Dr. Bennett provided his opinion, he had treated Plaintiff for three years as his primary care physician. (A.R. 287.) However, Dr. Bennett identified a number of limitations related to Plaintiff's mental condition. In filling out a physical residual functional capacity questionnaire, Dr. Bennett identified depression and psychological factors as affecting Plaintiff's physical condition and answered that "emotional factors" "contribute to the severity of [Plaintiff's] symptoms and functional limitations." (A.R. 288.) When asked "[h]ow often in a typical workday is your patient's experience of pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks," Dr. Bennett answered "occasionally," meaning "6% to 33% of an 8-hour working day." (A.R. 288 (emphasis in original).) Dr. Bennett additionally indicated that Plaintiff was capable of low stress jobs, but not moderate or high stress work. (A.R. 288.)
C. Dr. Morando's Opinions
Dr. Morando, the State agency psychiatric consultant, reviewed Plaintiff's medical records about a month after Dr. Pingitore's examination of Plaintiff. (A.R. 217, 228.) Dr. Morando diagnosed Plaintiff with "major depressive disorder, mild," while also identifying Plaintiff as having "moderate limitations" in "concentration, persistence and pace." (A.R. 220, 225.) Dr. Morando also noted moderate limitations in Plaintiff's "ability to understand and remember detailed instructions[,] . . . the ability to carry out detailed instructions[, and] the ability to maintain attention and concentration for extended periods of time[.]" (A.R. 228.)
IV. Standard of Review
The ALJ's underlying determination "will be disturbed only if it is not supported by substantial evidence or it is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (internal quotation marks omitted). "Substantial evidence" is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" but less than a preponderance. Id. When performing this analysis, the court must "consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Robbins, 466 F.3d at 882 (citation and quotation marks omitted).
If the evidence reasonably could support two conclusions, the court "may not substitute its judgment for that of the Commissioner" and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982); Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). "Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).
V. Discussion
Plaintiff argues that the ALJ erred by failing to properly account for Plaintiff's mental impairments. Presumably based on Dr. Pingitore's report, the ALJ concluded that Plaintiff's "major depressive order does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities . . . ." (A.R. 18, see also A.R. 20.) However, while Dr. Pingitore described Plaintiff's depressive disorder as "mild," he also noted a potential limitation. Dr. Pingitore opined that Plaintiff "appeared able to execute simple one- and two-step commands." (A.R. 216)
The decision did not specifically state whether the ALJ adopted Dr. Pingitore's opinion, either in whole or in part. However, in rejecting reviewing physician Dr. Morando's opinion that Plaintiff was moderately limited in concentration, persistence, and pace, the ALJ stated that "Dr. Morando was merely a reviewing physician and not an examining physician like Dr. Pingitore." (A.R. 19.) Based on this statement, it appears that the ALJ accepted at least some portion of Dr. Pingitore's opinion.
It is not clear whether Dr. Pingitore intended to express this as a limitation, or simply to note that Plaintiff could execute simple commands without opining as to whether Plaintiff could follow more complicated ones. At any rate, Plaintiff argues that the "state agency physicians also felt that Mr. Benavidez would be limited to performing simple tasks." (Pl.'s Mot. 5.) In effect, Plaintiff contends that the opinions of the other physicians in the record support that Dr. Pingitore identified a mental impairment that prevents Plaintiff from doing work involving complex commands.
Defendant argues that Plaintiff has waived arguments on Dr. Bennett and Dr. Morando's opinions because Plaintiff did not properly raise their opinions in his motion. Defendant contradicts itself in a footnote, expressly recognizing that "Plaintiff mentioned in his argument . . . State agency review physician Mario Morado [sic], M.D." (Def.'s Mot. 3 n.3.) And while Plaintiff could have described Dr. Bennett's opinions in more detail, he did make the argument that "[t]he ALJ did not provide specific and legitimate reasons for rejecting the treating physician opinion which contradicts his RFC." (Pl.'s Mot. 5.) Dr. Bennett was Plaintiff's treating physician for three years. Therefore, Plaintiff's motion properly raises the issue of whether the ALJ adequately considered these physicians' opinions.
For instance, Dr. Bennett, Plaintiff's treating physician, opined that Plaintiff's "experience of pain or other symptoms [were] severe enough to interfere with attention and concentration needed to perform even simple work tasks," approximately "6% to 33% of an 8-hour working day." (A.R. 288 (emphasis omitted and added).) Likewise, State agency psychiatric consultant Dr. Morando, having reviewed Plaintiff's medical records a month after Dr. Pingitore's examination of Plaintiff, opined that Plaintiff had "moderate limitations" in "concentration, persistence and pace." (A.R. 225.) Dr. Morando further opined that Plaintiff had moderate limitations in his "ability to understand and remember detailed instructions[,] . . . the ability to carry out detailed instructions[, and] the ability to maintain attention and concentration for extended periods of time[.]" (A.R. 225, 228-29.)
Dr. Morando and Dr. Bennett's opinions thus identify impairments in Plaintiff's ability to perform complex tasks and follow more complicated or detailed instructions. Their descriptions of Plaintiff's limitations in understanding and remembering detailed instructions and maintaining attention and concentration indicate that Plaintiff would have difficulty performing any work beyond simple tasks. In light of these opinions and the record as a whole, Dr. Pingitore's statement about Plaintiff's ability to execute one- to two-step commands can be viewed as consistent with the other physicians' opinions indicating that Plaintiff is limited to performing simple tasks.
Furthermore, Dr. Pingitore's use of the phrase "simple one- and two-step commands" directly reflects the Dictionary of Occupational Titles' ("DOT") description of level one Reasoning Development. See Dictionary of Occupational Titles, Appendix C (4th ed. 1991) (describing level one as having the ability to "[a]pply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job."). Level one Reasoning Development "is the lowest rung on the [six part] development scale" requiring only "limited reasoning required to do the job," and "applying to the most elementary of occupations; only the slightest bit of rote reasoning being required." Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005). Dr. Pingitore's opinion appears to indicate that he identified an impairment in Plaintiff's ability to perform anything more than simple tasks as "[j]obs classified at reasoning level[] one . . . are consistent with a limitation to simple, unskilled work." Thacker v. Astrue, No. 3:11CV246-GCM-DSC, 2011 WL 7154218, at *4 (W.D.N.C. Nov. 28, 2011)). Dr. Pingitore's opinion about Plaintiff's ability to execute one- and two- step commands is somewhat ambiguous because it is not clearly stated as a limitation. However, in the context of the record as a whole, interpreting Dr. Pingitore's opinion as a limitation is both reasonable and consistent with the opinions of Drs. Morando and Bennett.
While the ALJ generally appeared to adopt Dr. Pingitore's opinions, the ALJ's determination of Plaintiff's RFC did not reflect Dr. Pingitore's opinion regarding Plaintiff's ability execute one- to two-step commands. Moreover, the ALJ failed to properly account for Dr. Bennett and Dr Morando's opinions about Plaintiff's mental impairments. While the ALJ's decision discusses Dr. Bennett's opinions in considering Plaintiff's physical abilities and limitations, the ALJ never mentions any of Dr. Bennett's opinions about Plaintiff's mental conditions. (A.R. 22, 23.) The ALJ rejected Dr. Morando's opinions, stating that "there is no evidence to support that the claimant had more than mild limitations," and that "Dr. Morando was merely a reviewing physician and not an examining physician like Dr. Pingitore." (A.R. 19.) However, as noted above, Dr. Morando, Dr. Bennett and Dr. Pingitore all appear to agree that Plaintiff would be limited to performing simple tasks. The ALJ's formulation of Plaintiff's RFC does not reflect this limitation.
A. The ALJ Erred in Assessing the Medical Opinions
1. Dr. Pingitore's Opinions
Although the ALJ's decision acknowledged that "psychological consultative examiner [Dr. Pingitore] found the claimant appeared able to perform one to two step commands" (A.R. 20), the ALJ did not include this limitation when formulating Plaintiff's RFC, nor did the ALJ explain the reasons for excluding it, ignoring it, or viewing it as something other than a statement regarding a limitation. Ignoring portions of a physician's opinion is considered an implicit rejection of those opinions and failure to offer reasons for doing so is legal error. Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996).
While an ALJ is not required to adopt all of an examining physician's assessment, Magallanes, 881 F.2d at 753, an ALJ is required to explain the reasons for rejecting those portions of an examining physician's assessment that the ALJ chooses not to adopt. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007). When an examining physician's assessment is uncontradicted, the ALJ should provide "clear and convincing" reasons for rejecting that opinion. See Lester, 81 F.3d at 830; see also 20 C.F.R. § 416.927(d)(2). Here, the decision did not address whether Dr. Pingitore's assessment of Plaintiff's ability to execute commands was uncontradicted or not; however, "[t]he opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)).
Given the requirements governing the treatment of an examining physician's opinions, the ALJ should have made a determination about whether Dr. Pingitore's opinion of Plaintiff's ability to execute simple commands was contradicted or supported by any other doctor. Moreover, since the ALJ incorporated some, but not all, of the limitations Dr. Pingitore identified when assessing Plaintiff's RFC, and did so without explanation, it cannot be said that "substantial evidence" supports the ALJ's RFC assessment. See Lingenfelter, 504 F.3d at 1040.
2. Dr. Bennett's Opinions
The ALJ also erred in ignoring the opinions of Plaintiff's treating physician, Dr. Bennett, about Plaintiff's mental limitations. "[T]he treating physician's opinion as to the combined impact of the claimant's limitations—both physical and mental—is entitled to special weight." Lester, 81 F.3d at 833 ("This is particularly true in cases . . . where the parts of the functional restrictions arising from the claimant's physical impairments cannot be separated from the parts arising from his mental impairments."). The ALJ never considered Dr. Bennett's opinions about Plaintiff's mental impairments. As discussed above, the ALJ was required to analyze whether these opinions were contradicted by other physicians in the record and then to provide either "clear and convincing reasons" or "specific and legitimate" reasons for rejecting them. See id. at 830-31; see also 20 C.F.R. § 416.927(c)(2); SSR 96-2p. The ALJ did not engage in this analysis. Therefore, the ALJ erred by failing to properly consider Dr. Bennett's opinions regarding Plaintiff's mental limitations.
3. Dr. Morando's Opinions
The ALJ similarly erred in her treatment of Dr. Morando's opinions. An ALJ "may reject the opinion of a non-examining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citations omitted). Here, the ALJ rejected Dr. Morando's opinions on the grounds that he was "merely a reviewing physician and not an examining physician like Dr. Pingitore," and because the ALJ found that "there is no evidence to support that the claimant had more than mild limitations." (A.R. 19.) While Dr. Morando was not a treating or examining physician like Drs. Bennett and Pingitore, his opinions are nevertheless consistent with those doctors' assessments as to Plaintiff's mental limitations, and "the more consistent an opinion is with the record as a whole, the more weight [should be given] to that opinion." 20 C.F.R. § 416.927(c)(4) and (e). As discussed above, both Dr. Pingitore and Dr. Bennett identified limitations associated with Plaintiff's mental impairments, including problems with attention, concentration, and performing more than simple tasks. Dr. Morando's opinions are consistent with this, especially with regard to mental impairments related to Plaintiff's concentration and ability to perform more complex tasks. Therefore, the ALJ's complete rejection of Dr. Morando's opinions does not comport with the record as a whole.
In sum, the ALJ did not properly address the opinions of Dr. Morando, Dr. Bennett, or Dr. Pingitore regarding Plaintiff's mental limitations. If the ALJ rejected these opinions or portions of these opinions, the ALJ's decision should have provided the required analysis of the reasons for rejecting those opinions. If those opinions were not rejected, they should have been incorporated into the ALJ's assessment of Plaintiff's RFC.
B. The ALJ's Error Was Not Harmless
The court cannot say that the ALJ's error was harmless in the overall disability determination. See Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an ALJ's error is harmless when it is "irrelevant to the ALJ's ultimate disability conclusion."). Here the ALJ relied on the VE's testimony to determine whether Plaintiff is capable of performing his past relevant work, but in questioning the VE the ALJ did not include Dr. Pingitore's opinion about Plaintiff's ability to perform one- and two- step commands, nor the other physicians' opinions about Plaintiff's impairments relating to limitations in performing complex tasks. The ALJ should have provided the VE with a a complete hypothetical that accurately reflected Plaintiff's physical and mental RFC. See Valentine v. Comm'r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) ("The hypothetical an ALJ poses to a vocational expert, which derives from the RFC, 'must set out all the limitations and restrictions of a particular claimant.'") (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) ("If a vocational expert's hypothetical does not reflect all of the claimant's limitations, then the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy." (internal quotation marks and citation omitted)).
First, if the ALJ had included Dr. Pingitore's opinion about Plaintiff's ability to execute simple one- and two- step commands in posing questions to the VE, the VE may have determined that Plaintiff was unable to perform his past relevant work. As noted above, Dr. Pingitore's statement about Plaintiff's ability to execute "simple one- and two-step commands" corresponds with the language in level one of the six-part Reasoning Development scale, which requires the lowest reasoning ability and is "consistent with a limitation to simple, unskilled work." Thacker, 2011 WL 7154218, at *4. While the ALJ found that Plaintiff could perform his past relevant work as a fixture maker (as classified at DOT 600.380-010), the fixture maker occupation requires a Reasoning Development of level four. Dictionary of Occupational Titles, 6 Machine Trades Occupations 600.130-010 to 613.132-010 (4th ed. 1991). Courts have rejected attempts to extend level one reasoning to occupations requiring level three reasoning and above. See Bement v. Astrue, No. C11-814-TSZ-JPD, 2011 WL 7039958, at *13 (W.D. Wash. Dec. 28, 2011) (collecting cases). Generally "a level four reasoning level . . . is incompatible with a limitation to simple repetitive tasks." Johnson v. Astrue, No. SACV 10-01576-OP, 2011 WL 2448263, at *8 (C.D. Cal. June 17, 2011). Thus, the VE's testimony may well change with the inclusion of Dr. Pingitore's opinion.
If the VE's testimony is unchanged, the ALJ may only rely on expert testimony which contradicts the Dictionary of Occupational Titles insofar as the record contains persuasive evidence to support the deviation. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007).
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The inclusion of the other physicians' opinions could change the ALJ's disability determination as well. For instance, when Plaintiff's counsel asked the VE whether a claimant who had moderate difficulties in maintaining concentration, persistence, or pace would be able to do any work, the VE testified "no." (A.R. 353.) Dr. Morando specifically opined that Plaintiff had "moderate limitations" in "concentration, persistence and pace," (A.R. 225), and Dr. Bennett recognized that Plaintiff's experience of pain or other symptoms were severe enough to interfere with Plaintiff's attention and concentration needed to perform even simple work tasks up to 33% of an 8-hour working day. (A.R. 288.) As the ALJ's decision about Plaintiff's mental impairments and RFC may change after properly analyzing the underlying medical opinions on this issue, and that decision could alter the testimony provided by the VE, which the ALJ relies on, the court cannot find the ALJ's error was harmless to the final determination of Plaintiff's disability.
VIII. Conclusion
For the foregoing reasons, the Court finds the ALJ's decision not fully supported by substantial evidence in the record. Accordingly, the court remands this case for further proceedings not inconsistent with this opinion.
IT IS SO ORDERED.
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DONNA M. RYU
United States Magistrate Judge