Coleen Colunga v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
COLEEN J. COLUNGA, No. 19-15288
Plaintiff-Appellant, D.C. No. 1:18-cv-00085-LEK-KJM
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 3, 2021
Honolulu, Hawaii
Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.
Memorandum joined by Judge CLIFTON and Judge R. NELSON and by Judge
COLLINS as to Parts 1 and 2; Partial Dissent by Judge COLLINS
Coleen Colunga appeals the district court’s judgment affirming the Social
Security Administration’s denial of her applications for disability insurance
benefits and supplemental security income. We have jurisdiction under 28 U.S.C.
§ 1291 and review de novo the district court’s decision affirming the denial of
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
benefits. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003).
We may set aside such a denial only when the findings of the Administrative Law
Judge (“ALJ”) “are based on legal error or not supported by substantial evidence in
the record.” Id. We affirm.
1. Colunga argues that, in ascertaining her residual functional capacity
(“RFC”), the ALJ failed to adequately explain his reasons for rejecting her
testimony concerning the severity of her symptoms. Specifically, Colunga claims
that the ALJ “ignored without comment” her testimony “that she has difficulty
breathing, coughs a lot, and gets out of breath fast” and that, as a result, she has
difficulty walking. She asserts that the ALJ also failed to address her testimony
that her Chronic Obstructive Pulmonary Disease (“COPD”) causes sleeping
problems that result in fatigue and a need to take naps, as well as her testimony that
she is sensitive to “volcanic off gassing” or “vog.” We reject this contention.
When an ALJ determines that a claimant’s allegations of severity are not
credible, the ALJ must support his or her decision with findings that are
“sufficiently specific to allow a reviewing court to conclude the adjudicator
rejected the claimant’s testimony on permissible grounds and did not ‘arbitrarily
discredit a claimant’s testimony’” regarding her symptoms and limitations.
Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc) (citation
omitted). The ALJ’s explanation meets this standard. The ALJ specifically
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addressed Colunga’s breathing problems and the limitations that followed from
them. He also discussed whether Colunga had a “severe sleep disorder separate
from her severe breathing impairment” and whether her RFC needed to include an
additional “limitation against exposure to respiratory irritants.” Although the ALJ
did not specifically quote or recite the portions of Colunga’s testimony that
addressed the particular breathing-related limitations Colunga now emphasizes,1
we conclude that the ALJ’s decision sufficiently discloses the permissible grounds
on which that testimony was rejected, see id., and “‘explain[s] what evidence
undermines the testimony,’” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
1090, 1102 (9th Cir. 2014) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208
(9th Cir. 2001)). Given the ALJ’s extensive discussion of Colunga’s breathing
problems and the limitations that follow from them, this is not a case in which we
are forced to “speculate as to the grounds for the ALJ’s conclusions.” Id. at 1103.2
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The ALJ did, however, specifically address several other aspects of Colunga’s
testimony that he did not find entirely credible, such as her claimed inability to
pick up things, the degree to which she claimed she could not be around people,
and her claimed inability to handle stress or changes in routine. The ALJ also
noted, more generally, that her claimed limitations were “not consistent” with her
“activities of daily living.” This was thus not a case in which the ALJ completely
failed to mention or address any specific aspects of the claimant’s testimony that
were rejected.
2
As the Commissioner notes, apart from challenging the adequacy of the ALJ’s
articulation of his reasoning, Colunga largely fails to challenge the substantive
rationale for that reasoning. The only arguable exception is the ALJ’s rejection of
a limitation concerning “exposure to respiratory irritants,” which Colunga asserts is
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2. We reject Colunga’s argument that the ALJ’s RFC determination must be
set aside because it does not specifically mention the statements of her daughter,
Keola Thompson. The ALJ need not “discuss every witness’s testimony on a
individualized, witness-by-witness basis.” Molina v. Astrue, 674 F.3d 1104, 1114
(9th Cir. 2012), superseded by regulation on other grounds as stated in Ahearn v.
Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Thus, for example, when the ALJ
“provided clear and convincing reasons for rejecting [the claimant’s] own
subjective complaints” and a lay witness’s testimony was “similar to such
complaints,” it “follow[ed] that the ALJ also gave germane reasons for rejecting
[the lay witness’s] testimony.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 694 (9th Cir. 2009). Because the statements from Thompson to which
Colunga points on appeal echoed Colunga’s own testimony about her symptoms
and functional limitations, the ALJ’s failure to mention those statements expressly
does not warrant setting aside his decision. See id.contradicted by her testimony about vog as well as by medical records concerning
how environmental factors affect her COPD. On this point, the ALJ acknowledged
that Dr. Shibuya, a non-examining physician whom the ALJ otherwise found
persuasive, had opined that Colunga should avoid “concentrated” exposure to
respiratory irritants, but the ALJ concluded that the medical evidence from the
examining physicians did not support a “separate limitation against exposure to
respiratory irritants.” We cannot say that the ALJ’s reading of the record evidence
on this score was unreasonable.
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3. Colunga alternatively contends that, even if the ALJ’s RFC determination
was proper, his questioning of the vocational expert at the hearing was flawed
because it did not reflect all of the limitations in that RFC. At the fifth and final
step of the disability analysis, the ALJ must determine whether the claimant is
capable of making an adjustment to another line of work—if she is, then she is not
disabled. 20 C.F.R. § 404.1520(a)(4)(v). The Commissioner has the burden of
demonstrating that the claimant can engage in such work. Hill v. Astrue, 698 F.3d
1153, 1161 (9th Cir. 2012). As part of that analysis, the ALJ may pose
hypothetical questions to vocational experts, provided that the questions are “based
on medical assumptions supported by substantial evidence in the record and
reflecting all the claimant’s limitations, both physical and mental, supported by the
record.” Id. (citation omitted). If the question fails to reflect all claimed
limitations, “‘then the expert’s testimony has no evidentiary value to support a
finding that the claimant can perform jobs in the national economy.’” Id. at 1162(quoting Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)).
Here, the ALJ found that Colunga could have “only occasional interaction
with the public[,] . . . co-workers[,] or supervisors.” But the hypothetical question
he posed to the vocational expert asked only about occasional interaction with the
public or coworkers—omitting the third category, “supervisors,” that was
enumerated in the RFC. The Commissioner argues that the expert adequately
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addressed Colunga’s limitations, but even if the ALJ’s hypothetical could have
been more artful, any error was harmless because it was “inconsequential to the
ultimate nondisability determination.” Treichler, 775 F.3d at 1099 (citation
omitted). We agree that the error, if any, was harmless and that remand is not
required.
There is no basis for concluding that the particular jobs the vocational expert
found consistent with Colunga’s RFC (kitchen helper, stores laborer, and hand
packager) require more than “occasional interaction” with supervisors that is
outside the scope of activity already covered by the coworker limitation. The
Dictionary of Occupational Titles3 (“DOT”), on which the ALJ relied, delineates
the tasks required for particular jobs. The listed tasks that relate to interaction with
supervisors are “taking instructions-helping” and “talking.” In particular, “[t]aking
instructions-helping” refers to the task of “[a]ttending to the work assignment
instructions or orders of supervisor.” DOT Appendix B – Explanation of Data,
People, and Things, available at 1991 WL 688701. According to the DOT, none
of the three jobs identified by the vocational expert entails a significant amount of
either “taking instructions-helping” or “talking.” See DOT 920.587-018, available
at 1991 WL 687916 (description for “packager, hand”); DOT 922.687-058,
3
We reject Colunga’s argument that we cannot look to the DOT’s job descriptions.
See Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2015) (looking to the DOT’s job
descriptions to determine if the ALJ’s error at step five was harmless).
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available at 1991 WL 688132 (description for “laborer, stores”); DOT 318.687-
010, available at 1991 WL 672755 (description for “kitchen helper”) (all listing
“taking instructions-helping” as “not significant” and “talking” as “not present”).
Given that all three of the positions identified by the expert require, at most,
a minimal amount of interpersonal interaction, including with supervisors, the
ALJ’s failure to specifically mention “supervisors” in addition to “coworkers” was
inconsequential to the ultimate finding of non-disability. Any error was therefore
harmless, and no remand is required.
AFFIRMED.
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FILED
DEC 17 2021
Colunga v. Kijakazi, No. 19-15288
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
COLLINS, Circuit Judge, concurring in part and dissenting in part:
I concur in Parts 1 and 2 of the memorandum disposition. I dissent as to Part
3, however, because I do not think that the record permits us to conclude that the
ALJ’s deficient questioning of the vocational expert was harmless.
As the majority notes, see Mem. Dispo. at 5, we have held that, in assessing
whether the claimant can “engage in work that exists in significant numbers in the
national economy,” the ALJ may “ask[] a vocational expert a hypothetical question
based on medical assumptions supported by substantial evidence in the record and
reflecting all the claimant’s limitations, both physical and mental, supported by the
record.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). But if the
hypothetical question “‘does not reflect all 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.’” Id. at 1162 (quoting Matthews v.
Shalala, 10 F.3d 678, 681 (9th Cir. 1993)). Here, the ALJ found that Colunga’s
residual functional capacity (“RFC”) encompassed several limitations, including
that “she can have only occasional interaction with the public, and[] she can have
only occasional interaction with co-workers or supervisors” (emphasis added).
However, in framing the hypothetical question to the vocational expert, the ALJ
left out the word “supervisors” and told the expert to assume that the hypothetical
person “would only have occasional interaction with the public or coworkers.”
The Commissioner acknowledges the error, but he claims that it was harmless for
two reasons. The majority accepts the second of those reasons, see Mem. Dispo. at
6–7, but I disagree with both.
First, the Commissioner asserts that the limitation as to “co-workers” is
literally broad enough to sweep in “supervisors.” But this overlooks the fact that,
as the agency itself has recognized, interaction with supervisors entails different
considerations, including concerns about “being judged and evaluated,” which
“can be intolerable for some mentally impaired persons.” See SSR 85-15, 1985
WL 56857 (Jan. 1, 1985) at *6. We thus cannot say that the hypothetical
question’s mention of “co-workers” adequately captures Colunga’s RFC, which
specifically referenced both “co-workers” and “supervisors.”
Second, noting that the vocational expert relied on three particular jobs that
Colunga could perform, the Commissioner contends that, if the court examines the
descriptions of these three specific jobs in the Dictionary of Occupational Titles
(“DOT”), which was relied on by the ALJ, none of these three jobs entails more
than occasional interaction with supervisors. Cf. Zavalin v. Colvin, 778 F.3d 842,
848 (9th Cir. 2015) (referring to DOT’s job descriptions in assessing harmless
error). But these job descriptions do not reference whether those positions require
“only occasional interaction with . . . supervisors,” which is the phrasing used in
2
the RFC. Instead, the Commissioner argues that we can deduce that conclusion
from the fact that the three job descriptions do not require skills such as “talking”
or “taking instructions-helping,” which is defined as “[a]ttending to the work
assignment instruction orders of supervisor.” See DOT Appendix B – Explanation
of Data, People, and Things, available at 1991 WL 688701; see also DOT
920.587-018 (job description for “Packager, Hand”), available at 1991 WL
687916; DOT 922.687-058 (job description for “Laborer, Stores”), available at
1991 WL 688132; DOT 318.687-010 (job description for “Kitchen Helper”),
available at 1991 WL 672755. The majority concludes that this inference
obviously follows from the DOT job descriptions, and on that basis the majority
finds the ALJ’s error in framing the question to the vocational expert to be
harmless. But a “reviewing court may not make independent findings based on the
evidence before the ALJ to conclude that the ALJ’s error was harmless.” Brown-
Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). It is the role of the vocational
expert in the first instance, not this court, to assess whether the limitation to “only
occasional interaction with . . . supervisors” is adequately covered by the two
aspects of the relevant DOT job descriptions that the Commissioner now cites.
Accordingly, I would affirm the district court’s decision insofar as it upholds
the ALJ’s determination of Colunga’s RFC, but I would vacate that decision to the
extent that it upheld the adequacy of the ALJ’s hypothetical question to the
3
vocational expert and I would remand for further proceedings. I therefore
respectfully concur in part and dissent in part.
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