(SS) Purcella v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 SERINA TERESA PURCELLA, 10 Case No. 1:18-cv-01010-SKO Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security,1 14 Defendant. (Doc. 1) 15 _____________________________________/ 16 17 18 I. INTRODUCTION 19 On July 26, 2018, Plaintiff Serina Teresa Purcella (“Plaintiff”) filed a complaint under 20 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 21 Security (the “Commissioner” or “Defendant”) denying her application for supplemental security 22 income (“SSI”). The matter is currently before the Court on the parties’ briefs, which were 23 submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate 24 Judge.2 25 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See 26 https://www.ssa.gov/agency/commissioner.html (last visited by the court on September 12, 2019). He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 27 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 28 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 11, 12.) 1 2 On July 28, 2014, Plaintiff protectively filed an application for SSI payments, alleging she 3 became disabled on December 8, 2003 due to post-traumatic stress disorder (“PTSD”), celiac 4 disease, and heart problems. (Administrative Record (“AR”) 151, 153–54, 174–75, 196, 210, 365.) 5 Plaintiff was born on December 20, 1964 and was 49 years old on the date the application was filed. 6 (AR 160, 195.) She has a high school education, past work experience in home patient care, and 7 last worked full-time in 2004. (AR 16, 174–75, 196. 8 A. Summary of Relevant Medical Evidence 9 1. Community Psychiatry Associates 10 On August 29, 2014, Plaintiff presented to Community Psychiatry Associates for treatment 11 of her anxiety and depression. (AR 523.) Plaintiff reported she suffered from depression since 2008 12 13 and her “depression ha[d] been severe lately due to [a] medical condition.” (AR 523.) Plaintiff 14 reported experiencing the following symptoms: “poor concentration”; “poor appetite due to celiac 15 disease”; “hopelessness and worthlessness”; “persistent anxiety”; and “panic attacks any time she 16 leaves home.” (AR 523.) The examining physician recommended treatment including Zoloft and 17 Trazodone, in addition to the other psychotropic medications Plaintiff was already prescribed. (See 18 AR 523, 527.) 19 At a September 15, 2014 follow up appointment, Plaintiff reported panic attacks that 20 21 involved chest pain, trouble swallowing, coughing, lightheadedness, nausea, and feeling like she 22 was going to pass out. (AR 522.) Plaintiff stated these panic attacks happened “every time she 23 leaves home.” (AR 522.) On October 6, 2014, Plaintiff reported “irritability” and that she was 24 “dwelling on her panic.” (AR 521.) Plaintiff admitted she “hits her husband” and has done so “for 25 many years.” (AR 521.) This behavior was attributed to her family being physically abusive to her. 26 (AR 521.) Plaintiff reported episodes of palpitations and dizziness, that her energy and 27 28 1 2 2014, and reported that she had low energy, high anxiety, and an “okay” mood. (AR 520.) 3 2. Jordan De-Paz, M.D. 4 On June 6, 2014, Plaintiff presented to family practice physician Jordan De-Paz, M.D., for 5 treatment of dermatitis, celiac disease, and hypertension. (AR 616.) Dr. De-Paz recommended 6 Plaintiff take Metropolol for her hypertension, Hydroxyzine for her dermatitis, and other 7 medications for her anxiety. (See AR 619.) On July 3, 2014, Plaintiff returned for a follow up 8 appointment after an emergency room visit. (AR 612.) Dr. De-Paz noted that Plaintiff was seen at 9 10 the hospital for chest pain. (AR 612.) Dr. De-Paz directed Plaintiff to take Nitrostat for her 11 hypertension and then return for a blood pressure check. (AR 615.) 12 Plaintiff returned on July 4, 2014, for her blood pressure check. (AR 610.) Dr. De-Paz 13 found that Plaintiff’s blood pressure was within normal limits and directed her to continue her 14 medications and follow-up as needed. (AR 611.) On July 29, 2014, Plaintiff returned for treatment 15 of “pain and itching in face” and other problems including anxiety disorder, hypertension, and celiac 16 sprue. (See AR 606.) Dr. De-Paz noted that Plaintiff was prescribed to take Clonazeapm, 17 18 Doxycycline Hyclate, Hyroxyzine, Isosorbide Mononitrate, Metroprolol, and Nitrostat daily. (AR 19 606.) 20 3. Michael Cohn, Ph.D. 21 On January 5, 2015, Plaintiff reported to psychologist Michael Cohn, Ph.D., for a 22 consultative psychiatric examination. (AR 528–32.) Dr. Cohn noted that Plaintiff complained of 23 anxiety with panic attacks and depression and that she suffered from these issues since she was 24 25 “young.” (AR 528.) Dr. Cohn noted that Plaintiff saw a psychiatrist every three weeks and may be 26 seeing a counselor as well, although that was unclear and “[Plaintiff] herself does not seem to know.” 27 (AR 528.) Plaintiff reported that “everyone” in her family has mental illness. (AR 529.) Plaintiff 28 1 2 noted that Plaintiff’s concentration, persistence and pace were “adequate.” (AR 529.) 3 Dr. Cohn diagnosed Plaintiff with anxiety disorder and noted that Plaintiff’s mood and affect 4 were anxious. (AR 530–31.) As to Plaintiff’s functional abilities, Dr. Cohn opined that Plaintiff 5 was unimpaired in understanding, remembering, and carrying out simple or complex instructions; 6 moderately impaired in relating and interacting with coworkers and the public; unimpaired in 7 maintaining concentration, persistence, and unimpaired in completing day-to-day work activity; 8 unimpaired in accepting instructions; unimpaired in maintaining regular attendance; and unimpaired 9 10 in performing work activities. (AR 531–32.) 11 4. Ritu Malik, M.D. 12 On March 26, 2015, endocrinologist Ritu Malik, M.D. performed a consultative examination 13 of Plaintiff. (AR 567–69.) Dr. Malik opined that Plaintiff could sit for at least six hours in an eight- 14 hour workday; stand and/or walk for at least six hours in an eight-hour workday; lift and carry 50 15 pounds occasionally and 20 pounds frequently; and had no postural, manipulative, visual, 16 communicative, or environmental limitations. (AR 569.) 17 18 5. Doris Karam, M.D. 19 On August 17, 2015, Plaintiff established care with internist Doris Karam, M.D. (AR 684.) 20 Dr. Karam treated Plaintiff for abdominal pain and other complications following her 21 cholecystectomy. (AR 684.) Dr. Karam noted that Plaintiff’s abdomen was “very distended and 22 very tender.” (AR 688.) On November 23, 2015, Dr. Karam diagnosed abdominal pain and diarrhea 23 and back pain. (AR 682.) On January 29, 2016, Plaintiff was seen in the emergency room for severe 24 25 abdominal pain. (AR 758.) Plaintiff returned to Dr. Karam on February 24, 2016 for a follow-up 26 visit after her hospitalization. (AR 672.) Dr. Karam indicated Plaintiff may suffer from ulcerative 27 colitis and referred Plaintiff to a gastroenterologist. (AR 676.) On June 10, 2016, Dr. Karam 28 1 2 noted that Plaintiff had coccyx tenderness and diagnosed sacrococcygeal disorder. (AR 657.) Dr. 3 Karam ordered a lumbar MRI for Plaintiff’s back issues. (AR 657.) On November 29, 2016, Dr. 4 Karam assessed coccydynia and lumbar radiculopathy. (AR 651.) On February 14, 2017, Dr. 5 Karam ordered an MRI for Plaintiff’s headaches and referred Plaintiff for a neuropsychiatry 6 evaluation due to memory loss issues. (AR 643.) 7 On February 28, 2017, Dr. Karam completed a psychiatric medical source statement. (AR 8 577.) Dr. Karam opined that Plaintiff had marked limitation in her ability to maintain concentration 9 10 and attention; withstand stress and pressures associated with work; understand, remember or carry 11 out instructions; deal with the public; and moderate limitation in her ability to understand, remember 12 and carry out instructions and relate and interact with coworkers. (AR 577.) Dr. Karam opined that 13 Plaintiff’s impairment and associated limitations were “permanent” and that Plaintiff was likely to 14 miss more than half of the work days every month due to her mental issues. (AR 577.) 15 6. Leonard Rubin, M.D. 16 On April 14, 2017, internist Leonard Rubin, M.D. completed a medical source statement 17 18 regarding Plaintiff’s physical impairments. (AR 844.) Dr. Rubin opined that Plaintiff could lift 19 and/or carry up to 20 pounds frequently and 50 pounds occasionally; could sit, stand, or walk for 20 six hours in an eight-hour workday; and had some manipulative limitations in her left hand. (AR 21 844–50.) Dr. Rubin opined that Plaintiff had no other limitations. (See AR 847–50.) 22 7. Michael Lace, Psy.D. 23 On April 17, 2017, psychologist Michael Lace, Psy.D. completed a medical source statement 24 25 regarding Plaintiff’s mental impairments. (AR 834–35.) Dr. Lace opined that Plaintiff was 26 moderately impaired in her ability to interact appropriately with the public, supervisors, and 27 coworkers, and mildly impaired in all other functional abilities. (AR 834–35.) 28 1 2 On January 16, 2015, Sandip Sen, M.D., a Disability Determination Services medical 3 consultant, assessed Plaintiff’s mental residual functional capacity (RFC).3 (AR 204–05.) Dr. Sen 4 opined that Plaintiff was moderately limited in her ability to work in coordination with or in 5 proximity to others; interact appropriately with the public; accept instructions and respond 6 appropriately to criticism from supervisors; and get along with coworkers without exhibiting 7 behavioral extremes; and had no significant limitation in all other functional abilities. (AR 205– 8 206.) 9 10 Upon reconsideration on March 13, 2015, another Disability Determination Services 11 medical consultant, A. Garcia, M.D., agreed with all of Dr. Ocrant’s RFC findings and the 12 limitations he found. (AR 218–20.) 13 B. Administrative Proceedings 14 The Commissioner denied Plaintiff’s application for benefits initially on January 16, 2015, 15 and again on reconsideration on April 29, 2015. (AR 225–29, 233–37.) On May 29, 2015, Plaintiff 16 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 240–42.) 17 18 On March 30, 2017, Plaintiff appeared with counsel and testified before an ALJ as to her 19 alleged disabling conditions. (AR 171–194.) Plaintiff testified that she experiences constant pain 20 in her back, neck, hands, and legs. (AR 179.) She stated that her medications for her mental 21 impairments make her “very drowsy, incoherent, dizzy, off balance” and that she showers “every 22 other day” and has to sit down in the shower. (AR 180.) She testified that she sits in a recliner with 23 24 25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours a day, for five days a week, or an equivalent work schedule. 26 TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions 27 that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 2 much pain. (AR 181.) Plaintiff takes Neurontin, Clonazepam, and Baclofen three times a day every 3 day. (AR 182, 187.) She testified that she has anger issues due to PTSD stemming from sexual 4 abuse from relatives early in life. (AR 188.) She stated she cannot work full time because her 5 mental health medications “leave [her] incoherent and tired.” (AR 191.) 6 A Vocational Expert (“VE”) testified very briefly at the hearing. (AR 193.) The VE testified 7 for the sole purpose of classifying Plaintiff’s previous job. (AR 193.) The VE testified that 8 Plaintiff’s past work was as a home attendant, Dictionary of Occupational Titles (DOT) code 9 10 354.377-014, which was medium work with a specific vocational preparation (SVP)4 of 3. (AR 11 193.) The ALJ then excused the VE and closed testimony. (AR 193.) 12 C. The ALJ’s Decision 13 In a decision dated May 22, 2017, the ALJ found that Plaintiff was not disabled, as defined 14 by the Act. (AR 151–62.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 15 § 416.920. (AR 153–61.) The ALJ decided that Plaintiff had not engaged in substantial gainful 16 activity since the application date of July 28, 2014 (step one). (AR 53.) At step two, the ALJ found 17 18 that Plaintiff had the following severe impairments: “colitis, status-post cholecystectomy”; “mild 19 lumbar degenerative disc disease”; “coccydynia”; “cervical spondylosis, status-post anterior 20 cervical discectomy at C5-C6”; anxiety disorder; panic disorder; and PTSD. (AR 153–54.) The 21 ALJ found that Plaintiff did not have an impairment or combination of impairments that met or 22 medically equaled one of the Listings (step three). (AR 154–56.) 23 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 24 25 26 4 Specific vocational preparation (SVP), as defined in DOT, App. C, is the amount of lapsed time required by a typical 27 worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest 1 2 residual functional capacity … We use this residual functional capacity assessment at both step four 3 and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 4 retained the RFC: 5 to perform medium work as defined in 20 CFR 416.967(c) limited to simple 6 routine tasks with no more than occasional interaction with co-workers, supervisors, and the public, with no requirement for collaborative work. 7 (AR 156.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 8 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not entirely 9 consistent with the medical evidence and other evidence in the record[.]” (AR 158.) At step five, 10 the ALJ found that Plaintiff could not perform past relevant work. (AR 160.) The ALJ found that 11 Plaintiff was a younger individual age 18–49 on the date the application was filed, and subsequently 12 changed age category to “closely approaching advanced age,” had at least a high school education, 13 and was able to communicate in English. (AR 160.) The ALJ then determined: 14 Transferability of job skills is not material to the determination of disability 15 because using the Medical-Vocational Rules as a framework supports a finding that [Plaintiff] is “not disabled,” whether or not [Plaintiff] has 16 transferable job skills[.] 17 Considering [Plaintiff’s] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the 18 national economy that [Plaintiff] can perform[.] 19 (AR 160–61) (citations omitted). 20 The ALJ determined that the Grids dictated a finding of no disability without considering 21 additional exertional or non-exertional limitations. (AR 161.) The ALJ found that with Plaintiff’s 22 RFC, “[t]he unskilled occupational job base is not significantly eroded so long as [Plaintiff] is able 23 24 to meet these basic mental demands” and Plaintiff, “with the decisional residual functional capacity 25 herein, would be able to meet these demands.” (AR 161.) Therefore, the ALJ found Plaintiff was 26 not disabled. (AR 161.) 27 28 1 2 May 23, 2018. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 3 Commissioner. 20 C.F.R. § 416.1484. 4 III. LEGAL STANDARD 5 A. Applicable Law 6 An individual is considered “disabled” for purposes of disability benefits if he or she is 7 unable “to engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which has lasted or can 9 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 10 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 11 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 12 previous work but cannot, considering [her] age, education, and work experience, engage in any 13 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 14 “The Social Security Regulations set out a five-step sequential process for determining 15 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 16 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 17 following description of the sequential evaluation analysis: 18 In step one, the ALJ determines whether a claimant is currently engaged in substantial 19 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step 20 two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ 21 proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, 22 [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her 23 past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to 24 step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the claimant is not 25 disabled. If not, the claimant is disabled. 26 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 27 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 28 1 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 2 “The claimant carries the initial burden of proving a disability in steps one through four of 3 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 4 1989)). “However, if a claimant establishes an inability to continue her past work, the burden shifts 5 to the Commissioner in step five to show that the claimant can perform other substantial gainful 6 work.” Id. (citing Swenson, 876 F.2d at 687). 7 B. Scope of Review 8 “This court may set aside the Commissioner’s denial of disability insurance benefits [only] 9 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the 10 record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined 11 as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 12 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial 13 evidence is such relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 15 “This is a highly deferential standard of review …” Valentine v. Comm’r of Soc. Sec. 16 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 17 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 18 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 19 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 20 1156 (citations omitted) (“If the evidence is susceptible to more than one rational interpretation, the 21 court may not substitute its judgment for that of the Commissioner.”). 22 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 23 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 24 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 25 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 26 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 27 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 1 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 2 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 3 533 F.3d at 1038 (quoting Robbins, 466 F.3d at 885). “[T]he burden of showing that an error is 4 harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 5 556 U.S. 396, 409 (2009) (citations omitted). 6 IV. DISCUSSION 7 Plaintiff contends that the ALJ erred in the following respects: (1) improperly relying upon 8 the Grids, instead of obtaining testimony from a VE, regarding Plaintiff’s social limitations and their 9 effect on the occupational base; (2) failing to properly evaluate Dr. Rubin’s opinion that Plaintiff’s 10 impairments cause manipulative and postural limitations; and (3) failing to include work-related 11 limitations in the RFC consistent with Plaintiff’s limitations and failing to offer any reason for 12 discounting Plaintiff’s limitations related to colitis. (Doc. 20 at 1–2.) The Court agrees with 13 Plaintiff on the first issue and will remand the case for the ALJ to obtain further testimony from a 14 VE. 15 A. The ALJ Erred at Step Five Relying Exclusively on the Medical-Vocational Guidelines 16 And Neglecting to Obtain the Testimony of a VE Regarding the Effect of Plaintiff’s Social Limitations on the Occupational Base. 17 1. Legal Standard 18 The Medical-Vocational Guidelines (the “Grids”) provide a uniform conclusion about disability 19 20 for various combinations of age, education, previous work experience, and residual functional 21 capacity. The Grids allow the Commissioner to streamline the administrative process and encourage 22 uniform treatment of claims based on the number of jobs in the national economy for any given 23 category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983) 24 (discussing creation and purpose of the Grids). 25 The Commissioner may apply the Grids in lieu of taking the testimony of a vocational expert 26 27 only when the Grids accurately and completely describe the claimant’s abilities and limitations. See 28 Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). Thus, the Commissioner generally may not 1 2 on exertional strength factors only. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(e). 3 “The use of the grids to find a claimant not disabled can be appropriate when both exertional and 4 nonexertional limitations are alleged,” but only where ALJ finds that the plaintiff’s “nonexertional 5 limitations do not significantly affect [her] exertional capabilities.” Bates v. Sullivan, 894 F.2d 6 1059, 1063 (9th Cir. 1990), overruled in part by Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). 7 “If a claimant has an impairment that limits his or her ability to work without directly affecting his 8 or her strength, the claimant is said to have non-exertional . . . limitations that are not covered by 9 10 the Grids.” Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, Subpart 11 P, Appendix 2, § 200.00(d), (e)). 12 In cases where the Grids are not fully applicable, the ALJ may meet his burden under step five 13 of the sequential analysis by propounding to a vocational expert hypothetical questions based on 14 medical assumptions, supported by substantial evidence, that reflect all the plaintiff’s limitations. 15 See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically, where the Grids are 16 inapplicable because plaintiff has sufficient non-exertional limitations, the ALJ is required to obtain 17 18 vocational expert testimony. See Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988). 19 2. Analysis 20 The ALJ included in Plaintiff’s RFC that she was “limited to simple routine tasks with no 21 more than occasional interaction with co-workers, supervisors, and the public, with no requirement 22 for collaborative work.” (AR 156.) At step five, the ALJ determined that Plaintiff’s non-exertional 23 limitations “have little or no effect on the occupational base of unskilled medium work.” (AR 161.) 24 25 The ALJ accordingly declined to obtain the testimony of a VE regarding Plaintiff’s social limitations 26 and the effect on her occupational base, and instead relied on the Grids to determine that Plaintiff 27 was not disabled. (AR 161.) 28 1 2 and thus the ALJ was entitled to rely on the Grids in this case. (Doc. 25 at 5.) The Court disagrees. 3 In Terrill v. Berryhill, No. 1:17-cv-00751-BAM, 2018 WL 4503429, at *3–4 (E.D. Cal. Sept. 4 19, 2018), the court reversed the ALJ’s denial of benefits because the ALJ improperly relied on the 5 Grids in a situation similar to this case. In that case, the plaintiff contended that the ALJ was 6 required to ask a VE to consider her ability to perform medium jobs due to limitations to “no more 7 than occasional face-to-face interaction with . . . the general public, coworkers and supervisors.” Id. 8 at *2. The court held that the ALJ erred in failing to obtain the testimony of a VE, reasoning that 9 10 “where an ALJ specifically limits a claimant’s ability to interact with coworkers and supervisors, 11 such a limitation conflicts with the basic requirements of unskilled work and has the potential to 12 significantly erode the occupational base.” Id. at *4 (collecting cases). 13 The Court agrees with the analysis in Terrill and finds the case is nearly indistinguishable 14 from this case. Like in Terrill, the ALJ here limited Plaintiff to “occasional interaction with co- 15 workers, supervisors, and the public.”5 (See AR 156.) The ALJ in this case went even further, 16 however, and limited Plaintiff to no collaborative work with others.6 (See AR 156.) Because the 17 18 ALJ limited Plaintiff to occasional interaction and no collaborative work with others, the ALJ was 19 required to obtain the testimony of a VE as to the effect of those limitations on her occupational 20 base, and erred in relying on the Grids to direct a finding of no disability. See Terrill, 2018 WL 21 22 5 Defendant cites to George v. Berryhill, 727 F. App’x 287, 290–91 (9th Cir. 2018), and Cowen v. Commissioner of Soc. 23 Sec., 400 F. App’x 275, 277 (9th Cir. 2010), in support of its position. (Doc. 25 at 5.) Cowen is distinguishable from this case because there, the ALJ limited the Plaintiff only to “limited public contact.” See 400 F. App’x at 277. 24 Similarly, in George it is unclear what social limitations were imposed by the ALJ, although the decision implies, but does not state, that they consisted solely of “little contact with supervisors or coworkers.” See 727 F. App’x at 291. 25 Here, the ALJ limited Plaintiff considerably more extensively than in Cowen or George, to “simple routine tasks with no more than occasional interaction with co-workers, supervisors, and the public, with no requirement for collaborative 26 work.” (See AR 156.) 6 This finding appears to conflict with the ALJ’s finding that “a substantial loss of ability to respond appropriately to 27 supervisors or coworkers would severely limit the potential occupational base” under SSR 85-15. (See AR 161.) The ALJ does not sufficiently explain why Plaintiff is limited to no collaborative work with others, when the ALJ found she 28 is unlimited in her ability to respond appropriately to supervisors or coworkers, and can “occasionally” interact with 1 2 1638866 (E.D. Cal. Apr. 5, 2018); Little v. Commissioner of Soc. Sec., 780 F. Supp. 2d 1143, 1153– 3 54 (D. Or. 2011); Gonzales v. Astrue, No. 1:09-CV-01306-GSA, 2010 WL 4392911 (E.D. Cal. Oct. 4 9, 2010); Stark v. Astrue, No. 07-6465, 2009 WL 2566723 (N.D. Cal. Aug. 18, 2009); Shankles v. 5 Astrue, No. 09-1258, 2010 WL 5169077 (E.D. Cal. Dec. 14, 2010); Galinski v. Astrue, No. C11- 6 516-RSL-JPD, 2011 WL 7070323, at *16 (W.D. Wash. 2011). 7 B. The ALJ’s Error Was Not Harmless 8 The Court now turns to the analysis of whether this error by the ALJ was harmless. The 9 10 Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act 11 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. 12 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 13 925, 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies where the ALJ errs by 14 not discharging their duty to develop the record). As such, “the court will not reverse an ALJ’s 15 decision for harmless error.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citing 16 Robbins, 466 F.3d at 885). 17 18 An error is harmless “where it is inconsequential to the ultimate nondisability 19 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of Soc. 20 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if the 21 agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less than 22 ideal clarity’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). “In 23 other words, in each case [courts] look at the record as a whole to determine whether the error alters 24 25 the outcome of the case.” Molina, 674 F.3d at 1115. “[T]he nature of [the] application” of the 26 “harmless error analysis to social security cases” is “fact-intensive―‘no presumptions operate’ and 27 ‘[courts] must analyze harmlessness in light of the circumstances of the case.’” March v. Colvin, 28 1 2 Shinseki, 556 U.S. at 409 (citations omitted). 3 Here, the ALJ’s error was not harmless because the error caused the ALJ to determine that 4 Plaintiff was not disabled without the benefit of the testimony of a VE. The VE’s testimony is 5 crucial as it may determine Plaintiff’s occupational base and whether she can perform any jobs at 6 all, considering her non-exertional, social limitations. See Terrill, 2018 WL 4503429, at *4–5. The 7 Court therefore also finds that the ALJ’s error was not harmless, see, e.g., Molina, 674 F.3d at 1115 8 (citations omitted) (stating that an error is harmless “where it is inconsequential to the ultimate 9 10 nondisability determination”), and the remand of this matter is appropriate. 11 C. The ALJ’s Error Warrants Remand for Further Proceedings 12 In her briefing, Plaintiff requests that the Court remand the case for the ALJ “to determine 13 the impact of Plaintiff’s social limitations on the available job base” after obtaining the testimony 14 of a VE. (Doc. 20 at 12.) 15 Where the ALJ commits an error and that error is not harmless, the “ordinary … rule” is “to 16 remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 17 18 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 19 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 (citations 20 omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit-as- 21 true’ rule”). In determining whether to apply this exception to the “ordinary remand rule,” the court 22 must determine, in part, whether (1) “the record has been fully developed;” (2) “there are 23 outstanding issues that must be resolved before a determination of disability can be made;” and (3) 24 25 “further administrative proceedings would be useful.” Id. at 1101 (citations omitted). As to the last 26 inquiry, additional “[a]dministrative proceedings are generally useful where the record has not been 27 fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further 28 1 2 benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 3 Here, the Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 4 inapplicable because additional administrative proceedings would be useful. Further, Plaintiff does 5 not request that the Court award benefits. On remand, the ALJ should address the error described 6 in this Order by obtaining the testimony of a VE regarding Plaintiff’s social limitations and the 7 effect of those limitations on the occupational base. 8 Accordingly, the Court will remand this case for further proceedings. 9 10 D. The Court Declines to Determine Plaintiff’s Remaining Assertions of Error 11 As the Court finds that remand is appropriate for the ALJ to obtain the testimony of a VE 12 regarding Plaintiff’s social limitations and the effect of the limitations on her occupational base, the 13 Court does not reach Plaintiff’s remaining assertions of error. (See Doc. 20 at 13–16); cf. Newton 14 v. Colvin, No. 2:13-cv-2458-GEB-EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) 15 (“As the matter must be remanded for further consideration of the medical evidence, the court 16 declines to address plaintiff’s remaining arguments”); Willmett ex rel. A.P. v. Astrue, No. 2:10-cv- 17 18 01201 KJN, 2011 WL 3816284, at *1 (E.D. Cal. Aug. 25, 2011) (“Because this legal error warrants 19 remanding this matter for further proceedings, the undersigned does not reach the remainder of [the] 20 plaintiff’s arguments seeking reversal of the ALJ’s and Appeals Council’s decisions.”). 21 V. CONCLUSION AND ORDER 22 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 23 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 24 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment in 25 favor of Plaintiff Serina Teresa Purcella and against Defendant Andrew Saul, Commissioner of 26 Social Security. 27 28 1 Sheila K. Oberto 2 Dated: January 6, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28