Opinion
No. ED CV 16-2435-PLA
07-24-2017
ANGELA NAVARRO, Plaintiff, v. NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
I.
PROCEEDINGS
Plaintiff filed this action on November 25, 2016, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on December 19, 2016, and December 28, 2016. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively "JS") on July 20, 2017, that addresses their positions concerning the disputed issue in the case. The Court has taken the Joint Submission under submission without oral argument.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current Acting Commissioner of Social Security, is hereby substituted as the defendant herein.
II.
BACKGROUND
Plaintiff was born on June 10, 1957. [Administrative Record ("AR") at 179, 188.] She has past relevant work experience as an order clerk, sales clerk, and data entry clerk. [AR at 42.]
On August 14, 2013, plaintiff filed an application for a period of disability and DIB, and an application for SSI payments, alleging that she has been unable to work since December 15, 2012. [AR at 32, 179-87, 188-94.] After her applications were denied, plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 32, 124-25.] A hearing was held on April 14, 2015, at which time plaintiff appeared represented by an attorney, and testified on her own behalf. [AR at 49-91.] Following the hearing, interrogatories were propounded to a vocational expert ("VE"), who responded to the questions under oath. [AR at 305-11.] Although she was given notice that she could do so [AR at 312-13], plaintiff did not submit cross interrogatories, additional evidence, or request a supplemental hearing; the sworn answers were admitted into evidence. [AR at 32.] On October 14, 2015, the ALJ issued a decision concluding that plaintiff was not under a disability from December 15, 2012, the alleged onset date, through October 14, 2015, the date of the decision. [AR at 32-43.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 25-28.] When the Appeals Council denied plaintiff's request for review on September 27, 2016 [AR at 1-6], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.
III.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
"Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); see Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (citation and internal quotation marks omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan, 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.") (citation omitted).
IV.
THE EVALUATION OF DISABILITY
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. THE FIVE-STEP EVALUATION PROCESS
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. Id. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since December 15, 2012, the alleged onset date. [AR at 34.] At step two, the ALJ concluded that plaintiff has the"medically determinable conditions of ill-being" of degenerative disc disease, bilateral carpal tunnel syndrome, diabetes mellitus, and major depressive order, which in combination cause more than a minimal limitation on her ability to engage in work or work-like activity and, therefore, "constitute a severe impairment." [AR at 35.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [AR at 36.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), as follows:
The ALJ concluded that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2017. [AR at 34.]
RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. §§ 404.1567(b), 416.967(b).
[Can] stand and walk up to six (6) hours, cumulatively, and sit up to six (6) hours, cumulatively, in an eight hour work day. [Plaintiff] may stand up to 30 minutes at one time and walk up to 30 minutes at one time. [Plaintiff] can lift and carry up to 20 pounds occasionally and 10 pounds frequently. [Plaintiff] may alternate positions every thirty minutes. [Plaintiff] can occasionally climb, balance, bend, stoop, and crawl, but never climb rope, scaffold, or ladders. [Plaintiff] may more than frequently, but less than constantly, perform complex technical work and can perform a full range of simple, repetitive work. [Plaintiff] may perform work at stress level 7 on a scale of (1) one to (10) ten, one, by example, the work of a night dishwasher and ten being the work of an air traffic controller, as you may familiar [sic] with these occupations as they are generally performed in the national economy.
[AR at 39.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that plaintiff is able to perform her past relevant work as an order clerk, sales clerk, and data entry clerk. [AR at 42, 306.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of December 15, 2012, through October 14, 2015, the date of the decision. [AR at 32.]
V.
THE ALJ'S DECISION
Plaintiff contends that the ALJ erred when he relied on the testimony of the VE that plaintiff could perform her past relevant work, which is classified as Reasoning Level 3, in light of plaintiff's RFC limitation to "more than frequent[], but less than constant[], . . . complex technical work." [JS at 4-8; AR at 39.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.
A. VE TESTIMONY
In determining whether appropriate jobs exist for a claimant, or whether the claimant can perform her past relevant work, the VE generally will refer to the Dictionary of Occupational Titles ("DOT"). See Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). The DOT is usually "the best source for how a job is generally performed." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). Social Security Ruling 00-4p explicitly requires that the ALJ determine whether the VE's testimony deviates from the DOT, and whether there is a reasonable explanation for any deviation. See SSR 00-4p (stating that an ALJ must inquire whether a VE's testimony regarding "the requirements of a job or occupation" conflicts with the DOT). The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a VE's testimony, particularly in cases where the expert's testimony conflicts with the DOT. Massachi, 486 F.3d at 1153. In making disability determinations, the ALJ may rely on VE testimony that contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation. Light, 119 F.3d at 793; Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); Massachi, 486 F.3d at 1153. Although evidence provided by a VE "generally should be consistent" with the DOT, "[n]either the DOT nor the VE . . . evidence automatically 'trumps' when there is a conflict." SSR 00-4p. Thus, an ALJ must first determine whether a conflict exists, and if it does, she must then determine whether the VE's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the DOT. Id.
"The Commissioner issues [SSRs] to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted).
SSR 00-4p provides in relevant part:
When a VE . . . provides evidence about the requirements of a job or occupation, the [ALJ] has an affirmative responsibility to ask about any possible conflict between that VE . . . evidence and information provided in the DOT. . . .
. . . .
If the VE's . . . evidence appears to conflict with the DOT, the [ALJ] will obtain a reasonable explanation for the apparent conflict.
. . . .
When vocational evidence provided by a VE . . . is not consistent with information in the DOT, the [ALJ] must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled. The [ALJ] will explain in the determination or decision how he or she resolved the conflict. The [ALJ] must explain the resolution of the conflict irrespective of how the conflict was identified.
SSR 00-4p (emphasis added). SSR 00-4p similarly provides that "[w]hen there is an apparent unresolved conflict between VE . . . evidence and the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the VE . . . evidence to support a determination or decision about whether the claimant is disabled." Id. (emphasis added).
Only after determining whether the testimony of the VE has deviated from the DOT, and whether any deviation is reasonable, can an ALJ properly rely on the VE's testimony as substantial evidence to support a disability determination. Massachi, 486 F.3d at 1152-54. Evidence sufficient to support a deviation from the DOT may be either specific findings of fact regarding a claimant's ability to perform particular jobs, or inferences drawn from the context of the expert's testimony. See Light, 119 F.3d at 1435 n.7 (ALJ provided sufficient support for deviation by noting that the VE described characteristics and requirements of jobs in the local area consistent with claimant's RFC); Terry v. Sullivan, 903 F.2d 1273, 1279 (9th Cir. 1990) (ALJ may infer support for deviation where VE's understanding of applicable legal standards is clear from context).
"Although the burden of proof lies with the claimant at step four, 'the ALJ still has a duty to make the requisite factual findings to support his conclusion.'" Stanton v. Colvin, 2016 WL 4426395, at *4 (C.D. Cal. Aug. 17, 2016) (quoting Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001)). Moreover, an ALJ's determination that a claimant has the RFC to perform her past relevant work must contain a finding of fact as to the physical and mental demands of the past job, and that the claimant's RFC would permit a return thereto. SSR 82-62; see also Soria v. Callahan, 16 F. Supp. 2d 1145, 1151 (C.D. Cal. 1997) ("At step four, the ALJ is obliged to ascertain the demands of the claimant's former work and to compare those demands with present capacity.").
B. REASONING LEVEL 3
Plaintiff contends that the ALJ's RFC limitation to performing complex, technical tasks "more than frequently, but less than constantly," prevents her from being able to perform any of her past relevant work, as each of those occupations requires Reasoning Level 3 aptitude.
The DOT defines jobs at Reasoning Level 3 as requiring the ability to "[a]pply 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." DOT, App. C. Courts have found that a limitation to "simple, repetitive tasks" may be consistent with Reasoning Level 2. See, e.g., Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. May 25, 2005) ("While reasoning level two notes the worker must be able to follow 'detailed' instructions, it also . . . downplayed the rigorousness of those instructions by labeling them as being 'uninvolved.'"). However, Reasoning Level 3 expands the Reasoning Level 2 requirements of being able to follow "uninvolved" oral or written instructions, to include being able to follow instructions in diagrammatic form as well as oral and written forms, and to deal with "several concrete variables," as opposed to Level 2's "few concrete variables." DOT, App. C (emphasis added). The Ninth Circuit has determined that Reasoning Level 3 is inconsistent with the limitation to simple and repetitive work tasks. See Zavalin v. Colvin, 778 F.3d 842, 843-44 (9th Cir. 2015) (finding an "apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demand of Level 3 Reasoning").
Here, although the ALJ found plaintiff capable of "perform[ing] a full range of simple, repetitive work" (i.e., at Reasoning Level 2 or 1), he also found that she was capable of complex, technical work (i.e., at Reasoning Level 3) for some portion of the day. Specifically, the ALJ determined that plaintiff can "more than frequently, but less than constantly, perform complex technical work." [AR at 39.] The ALJ's hypothetical to the VE included these limitations. [AR at 309.] The VE testified that the hypothetical individual could perform her past relevant work in the occupations of order clerk (DOT No. 249.362-026), sales clerk (DOT No. 290.477-014), and data entry clerk (DOT No. 203.582-054). [AR at 306.] The DOT describes each of these occupations as requiring Reasoning Level 3 capabilities.
The Commissioner defines "frequently" as an "activity or condition [that] exists from 1/3 to 2/3 of the time." See DOT Nos. 249.362-026, 290.477-014, 203.582-054. The term "constantly" is defined as an activity performed two-thirds or more of an eight-hour workday. Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, app. C. Plaintiff contends that the ALJ's use of the term "constantly," therefore, equates to approximately five hours and twenty minutes of an eight-hour workday. [JS at 6.] According to plaintiff, this means that the ALJ determined she can perform complex, technical work for "some vague and undefined period, seemingly greater than five hours and twenty minutes a day, 'but less than constantly.'" [Id. (citing AR at 39).] Defendant argues that "an individual capable of performing complex technical work more than frequently but less than constantly can perform such work for up to approximately 66.65 percent of the time." [JS at 8 (emphasis added).] Defendant also contends that "the [VE's] testimony supports this." [JS at 9 (citing Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) for the proposition that a VE's recognized expertise provides the necessary foundation for her testimony).]
Plaintiff's argument (that the ALJ's RFC suggests that she can work for "some vague and undefined period, seemingly greater than five hours and twenty minutes a day, 'but less than constantly'") touches on, but does not fully flesh out, the problem with the ALJ's RFC determination that plaintiff can perform complex, technical work "more than frequently, but less than constantly." At least one district court has found the use of this phraseology to be "materially inconsistent." Barrett v. Comm'r of Soc. Sec., 2017 WL 3009207, at *4 (E.D. Cal. July 14, 2017) (Findings and Recommendations of United States Magistrate Judge, Objections due July 28, 2017). This Court agrees. Indeed, even without "[s]ubstituting the definitions [of constantly and frequently] for the terms" as the court did in Barrett (see id.), the ALJ's RFC assessment on its face boils down to a finding that plaintiff is able to perform complex tasks both more than frequently (which can only mean constantly) and less than constantly (which can only mean frequently or less) -- which is both logically and materially inconsistent.
While this decision is not controlling, the analysis is logical and consistent with this Court's analysis as well.
Defendant's argument that the ALJ found that plaintiff could perform complex tasks "up to" two-thirds of an eight-hour day [JS at 9] misrepresents what the ALJ actually determined. The ALJ did not find that plaintiff could perform complex tasks "up to" two-thirds of a workday; he found that plaintiff could perform such tasks "more than" one-third to two-thirds of a workday. See Barrett, 2017 WL 3009207, at *4 n.4. --------
Moreover, the only testimony from the VE on this issue is in the form of her written answers to interrogatories, and she apparently did not recognize the logical inconsistency in the hypothetical and resulting deviation from the DOT when she found the hypothetical individual with these limitations could perform Reasoning Level 3 occupations. Indeed, the ALJ never asked the VE whether her testimony deviated in any respect from the DOT, and the ALJ failed to identify and obtain a reasonable explanation for this apparent deviation. [See AR at 306-11.] "Where an ALJ fails to obtain an explanation for and resolve an apparent conflict -- even where the VE did not identify the conflict -- the ALJ errs." Richardson v. Astrue, 2012 WL 1425130, at *5 (N.D. Cal. Sept. 14, 2015).
As noted by plaintiff, the ALJ's error is not harmless. On her alleged onset date, plaintiff was "of advanced age" and, if unable to perform her past relevant work, and with no transferrable skills, she would be considered disabled. [JS at 8 (citing 20 C.F.R. pt. 404, subpt. P, app. 2 § 202.06).]
Remand is warranted on this issue.
VI.
REMAND FOR FURTHER PROCEEDINGS
The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96.
In this case, there is an outstanding issue that must be resolved before a final determination can be made. In an effort to expedite these proceedings and to avoid any confusion or misunderstanding as to what the Court intends, the Court will set forth the scope of the remand proceedings. The ALJ on remand shall clarify his determination regarding plaintiff's ability, if any, to perform complex technical tasks and/or occupations requiring level 3 reasoning skills. If necessary, the ALJ shall then determine at step four, with the assistance of a VE if necessary, whether plaintiff is capable of performing her past relevant work as an order clerk, sales clerk, or data entry clerk, and obtain a reasonable explanation from the VE for any deviation from the DOT. If plaintiff is not so capable, the ALJ should then complete the disability determination. / / / / /
VII.
CONCLUSION
IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.
This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. DATED: July 24, 2017
/s/_________
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE