Allen v. Saul ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KAREN A., Case No.: 3:19-cv-01464-KSC 12 Plaintiff, ORDER ON MOTIONS FOR 13 v. SUMMARY JUDGMENT 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 19 On August 5, 2019, plaintiff Karen A. filed a complaint pursuant to 42 U.S.C. § 20 405(g) seeking judicial review of a decision by the Commissioner of Social Security 21 denying her application for a period of disability and disability insurance benefits. Doc. 22 No. 1. Before the Court are the parties’ Cross-Motions for Summary Judgment. Doc. 23 Nos. 18, 19. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion for 24 Summary Judgment, DENIES defendant’s Motion for Summary Judgment, and 25 REMANDS the matter to the Social Security Administration for further proceedings. 26 / / 27 / / 28 / / 1 I. BACKGROUND 2 A. Plaintiff’s Application for Disability Benefits 3 On October 3, 2017, plaintiff filed an application for disability insurance benefits 4 under Title II of the Social Security Act. Certified Administrative Record (“AR”) at 24.1 5 Also on October 3, 2017, plaintiff protectively filed a Title XVI application for 6 supplemental security income. Id. In both applications she alleged disability beginning 7 on May 11, 2011.2 Id. After her applications were denied at the initial stage and upon 8 reconsideration, plaintiff requested an administrative hearing before an administrative 9 law judge (“ALJ”). Id. An administrative hearing was held on February 12, 2019, at 10 which plaintiff appeared with counsel and gave testimony. Id. At the hearing, the ALJ 11 also heard testimony from a vocational expert. Id. 12 B. The Five-Step Disability Evaluation 13 The Social Security regulations establish a five-step sequential evaluation for 14 determining whether a claimant is entitled to disability insurance benefits. See 20 C.F.R. 15 §§ 404.1520. First, the ALJ must determine whether the claimant is engaged in 16 substantial gainful activity. Id., § 404.1520(a)(4)(i). Second, the ALJ must determine 17 whether the claimant is suffering from a “severe” impairment within the meaning of the 18 Social Security regulations. Id., § 404.1520(a)(4)(ii). Third, if the ALJ finds the 19 claimant suffers from a severe impairment, the third step is to determine whether that 20 impairment meets or is medically equal to one of the impairments identified in the 21 regulations’ Listing of Impairments. Id., § 404.1520(a)(4)(iii). Fourth, if the severe 22 impairment does not meet or equal a Listing, the ALJ must determine the claimant’s 23 residual functional capacity (“RFC”) based on all impairments (including those that are 24 not severe) and whether that RFC is sufficient for the claimant to perform his or her past 25 26 27 1 The Court adopts the parties’ pagination of the AR. All other record citations are to the page numbers assigned by the Court’s ECF system. 28 1 relevant work. Id., § 404.1520(a)(4)(iv). The claimant has the burden of proving his or 2 her disability at steps one through four. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 3 1995). However, “[a]lthough the burden of proof lies with the claimant at step four, the 4 ALJ still has a duty to make the requisite factual findings to support his conclusion.” 5 Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 6 At the fifth and final step, the ALJ must determine whether the claimant can make 7 an adjustment to other work based on his or her RFC. Id., §404.1520(a)(4)(v). As the 8 Ninth Circuit has explained: 9 To aid in making this determination, the ALJ may rely on an impartial 10 vocational expert to provide testimony about jobs the applicant can perform despite his or her limitations. [citation] The Dictionary of Occupational 11 Titles (“Dictionary”), a resource compiled by the Department of Labor that 12 details the specific requirements for different occupations, guides the analysis. If the expert’s opinion that the applicant is able to work conflicts 13 with, or seems to conflict with, the requirements listed in the Dictionary, 14 then the ALJ must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant is disabled. [citation] 15 16 Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (citations omitted). Among 17 the requirements for each occupation identified in the DOT are the “reasoning ability 18 required to perform the job,” measured on a six-level scale with Level 1 being the lowest 19 reasoning ability required and Level 6 being the highest. See Zavalin v. Colvin, 778 F.3d 20 842, 846 (9th Cir. 2015). At this step, the burden “shifts” to the Commissioner “to 21 identify specific jobs existing in substantial numbers in the national economy” that the 22 claimant can perform despite his or her disability. Johnson, 60 F.3d at 1432. 23 C. Summary of the ALJ’s Findings 24 The ALJ followed the five-step process described above in rendering his decision. 25 AR at 25-26. At step one, the ALJ found plaintiff did not engage in substantial gainful 26 activity from April 26, 2015, her alleged onset date, through the date of the ALJ’s 27 decision. Id. at 27. 28 / / 1 At step two, the ALJ found that plaintiff had the following severe impairments: 2 degenerative changes in the lumbar spine with sciatica; history of asthma; obesity; 3 anxiety; depression; and personality and impulse control disorders. Id. The ALJ further 4 found that these medically determinable impairments severely limited plaintiff’s ability to 5 perform basic work requirements. Id. At step three, the ALJ found that none of these 6 impairments alone or in combination met or medically equaled one of the impairments 7 listed in the Commissioner’s Listing of Impairments. Id. at 28-29. 8 At step four, the ALJ found that plaintiff had the RFC to perform “light work” with 9 some exceptions based on both physical and mental impairments. Id. at 30. Specifically 10 with respect to plaintiff’s mental impairments, the ALJ found that plaintiff was “limited 11 to understanding, remembering and carrying out simple instructions and tasks; 12 responding appropriately to supervisors and coworkers in a task-oriented setting where 13 contact with others is casual and infrequent; performing work at a normal pace without 14 productive quotas; should not work in a setting that requires constant/regular contact with 15 the general public … ; and should not perform work which includes more than infrequent 16 handling of customer complaints.” Id. 17 In assessing plaintiff’s RFC, the ALJ considered reports of three separate mental 18 health examinations. Id. at 33-34. First, an evaluation done for the initial claim found 19 that plaintiff “can understand and remember simple and detailed instructions” and “can 20 carry out simple and detailed instructions over the course of a normal workweek.” Id. at 21 34. A second evaluation conducted in connection with plaintiff’s request for 22 reconsideration stated that plaintiff “can understand, remember, apply knowledge and 23 carry out two-step commands involving simple instructions and maintain concentration, 24 persistence and pace for the same; … may have difficulty sustaining attention over 25 extended periods; …[and] could sustain concentration, persistence and pace up to 4-hour 26 increments with customary work breaks.” Id. A third examination found that plaintiff “is 27 capable of understanding and following at least simple instructions [and] has a moderate 28 impairment in her capacity to maintain concentration, persistence and pace.” Id. The ALJ 1 considered these opinions “persuasive” and “consistent with the medical record.” Id. 2 Based on her RFC, the ALJ further determined that plaintiff was unable to return to her 3 past relevant work as a telemarketer. Id. at 35. 4 At step five, the ALJ found that, considering her age, education, work experience 5 and RFC, plaintiff could perform jobs that existed in significant numbers in the national 6 economy. Id. at 36. In making this determination, the ALJ relied on the testimony of a 7 vocational expert, who opined that given her RFC, plaintiff could work as a mail clerk 8 (DOT Code 209.687-026), marker (DOT Code 209.587-034), or office helper (DOT 9 Code 239.567-010). Id. The ALJ “determined that the vocational expert’s testimony 10 [was] consistent with the information contained in the [DOT].” Id. Thus, the ALJ found 11 plaintiff was not disabled. Id. at 37. 12 II. DISPUTED ISSUES 13 Plaintiff moves for summary judgment on the basis that the ALJ found plaintiff 14 capable of following “simple instructions” without addressing that the “ceiling of what 15 [plaintiff] can do” is to follow one- and two-step commands. Doc. No. 18-1 at 7-8. 16 Plaintiff states that since the occupations the ALJ determined she could perform each 17 require a Reasoning Level 2 or 3, they are inconsistent with her limitation to carrying out 18 one- and two-step commands. Id. at 8. In other words, plaintiff’s position is that she is 19 limited to performing occupations requiring Reasoning Level 1 based on her RFC. 20 Plaintiff further asserts that the ALJ’s “fail[ure] to acknowledge” that plaintiff can only 21 “understand, remember, apply knowledge and carry out two-step commands” was legal 22 error. Id. at 9. Plaintiff asserts that the ALJ’s error was not harmless because her the 23 limitations on her reasoning ability “erod[e]” her “ability to perform occupations” such as 24 those the ALJ found she could capably do. Id. Plaintiff requests that the Court reverse 25 and award benefits, or, in the alternative, reverse and remand for further proceedings. Id. 26 The Commissioner also moves for summary judgment and raises two arguments. 27 Doc. No. 19. First, the Commissioner asserts that plaintiff has waived the argument that 28 the ALJ’s finding that she is able to perform simple tasks is inconsistent with positions 1 requiring Reasoning Level 2, because plaintiff did not raise this issue at the hearing. 2 Doc. No. 19 at 5. Second, the Commissioner argues that “the ALJ did not find that 3 [p]laintiff was limited to simple one[-] and two-step tasks but only limited her to carrying 4 out ‘simple instructions and tasks,’” which is consistent with Reasoning Level 2. Id. at 7. 5 Accordingly, the Commissioner states, there was no error in the ALJ’s finding that 6 plaintiff could perform the positions of marker and office helper, both requiring 7 Reasoning Level 2. Id. at 6-7. The Commissioner concedes that the position of mail 8 clerk, which requires Reasoning Level 3, “may” be inconsistent with a limitation to 9 perform “simple, repetitive tasks,” but asserts this error was harmless given that there 10 were other positions the ALJ found plaintiff capable of performing. Id. 11 III. STANDARD OF REVIEW 12 The Commissioner’s final decision “must be affirmed” if it is “supported by 13 substantial evidence, and if the Commissioner applied the correct legal standards.” 14 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial 15 evidence” means “‘such relevant evidence as a reasonable mind might accept as adequate 16 to support a conclusion.’” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (citation 17 omitted). This Court must review the record “as a whole” and consider adverse as well 18 as supporting evidence. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 19 However, where the evidence is susceptible of more than one rational interpretation, the 20 Commissioner’s decision must be upheld. See Burch v. Barnhart, 400 F.3d 676, 679 (9th 21 Cir. 2005). The Commissioner’s decision, even if erroneous, may not be reversed if the 22 error is harmless. Pruett v. Colvin, 85 F. Supp. 3d 1152, 1157 (N.D. Cal. 2015). 23 However, the Court cannot uphold the Commissioner’s decision for reasons “ʻthat the 24 agency did not invoke in making its decision.’” Stout v. Comm’r Soc. Sec. Admin., 454 25 F.3d 1050, 1054 (9th Cir. 2006). 26 / / 27 / / 28 / / 1 IV. DISCUSSION 2 A. There Is an Apparent Conflict Between Plaintiff’s RFC and Occupations 3 Requiring Level 2 or Level 3 Reasoning Ability 4 In Zavalin, the Ninth Circuit addressed an ALJ’s determination that a claimant 5 could perform jobs that were inconsistent with his reasoning abilities. 778 F.3d 842. The 6 claimant, Zavalin, suffered from cerebral palsy, a learning disability, and a speech 7 impediment, as a result of which he was limited to performing “simple, routine tasks.” 8 Id. at 844, 845. At a hearing regarding Zavalin’s eligibility for disability benefits, the 9 ALJ asked a vocational expert if there were jobs in the national economy that Zavalin 10 could perform, given his limitations. Id. at 844. The vocational expert testified that 11 Zavalin could work as a cashier or a surveillance system monitor. Id. Both jobs require 12 Reasoning Level 3. Id. Following the five-step process outlined above, the ALJ in 13 Zavalin determined that the claimant was not disabled. Id. at 845. The ALJ 14 acknowledged Zavalin’s limitation to “simple, repetitive tasks,” but, relying on the 15 vocational expert’s testimony and the DOT, determined that Zavalin could perform the 16 occupations identified by the vocational expert. Id. “[T]he ALJ did not explain whether 17 Zavalin possessed the reasoning ability required to perform these occupations, given his 18 residual functional capacity of only simple, routine or repetitive work.” Id. 19 The Ninth Circuit reversed and remanded. Id. at 848. The Zavalin court found 20 there was a “plain” conflict between the claimant’s RFC “to perform simple, repetitive 21 tasks, and the demands of Level 3 reasoning,” which required the claimant to “apply 22 commonsense understanding to carry out instructions furnished in written, oral or 23 diagrammatic form” and to “deal with problems involving several concrete variables.” 24 Id. at 847. The Zavalin court further found that the ALJ erred because she “failed to 25 recognize [this] inconsistency” and therefore did not question the vocational expert as to 26 how a person limited to executing simple, repetitive tasks could capably perform a job 27 requiring Level 3 reasoning ability. Id. Furthermore, because the ALJ did not “reconcile 28 this apparent conflict,” the record was not sufficiently developed for the reviewing court 1 to “determine whether substantial evidence support[ed] the ALJ’s five-step finding” that 2 Zavalin was not disabled. Id. at 847-48. 3 The Court finds that Zavalin controls here. Plaintiff asserts that the “ceiling of 4 what [plaintiff] can do” is to follow one- and two-step commands. Doc. No. 18-1 at 7-8. 5 The Commissioner disputes this and argues that “the ALJ did not find [p]laintiff was 6 limited to simple one and two-step tasks but only limited her to carrying out ‘simple 7 instructions and tasks.’” Doc. No. 19 at 7. But that is not unequivocally clear from the 8 record. The ALJ found that plaintiff was “limited to understanding, remembering and 9 carrying out simple instructions and tasks.” AR at 30. Yet the ALJ also “fully 10 considered” and “found consistent with the medical record” the opinions of three mental 11 health professionals, who on separate occasions found plaintiff: 12 • “can understand and remember … [and] carry out simple and detailed 13 instructions”; 14 • “can understand, remember, apply knowledge and carry out two-step 15 commands involving simple instructions”; and 16 • “is capable of understanding and following at least simple instructions.” 17 Id. at 33-34 (emphasis added). Considering these assessments (to which the ALJ 18 assigned “great weight,” id. at 35) in comparison to the descriptions found in the DOT, 19 the Court finds that Level 1 “seems at least as consistent” with plaintiff’s limitation as 20 Level 2.3 Zavalin, 778 F.3d at 847; see also Rounds v. Comm’r Soc. Sec. Admin., 807 21 22 3 The DOT defines Level 1 and Level 2 as follows: 23 LEVEL 1 24 Apply commonsense understanding to carry out simple one- or two-step instructions. 25 Deal with standardized situations with occasional or no variables in or from these situations encountered on the job. 26 LEVEL 2 27 Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from 28 1 F.3d 996, 1003 (9th Cir. 2015) (noting that claimant with a Level 1 reasoning ability 2 “cannot perform” tasks requiring “detailed” instructions as required by Level 2). 3 On the record before it and considering plaintiff’s limitation to following “simple” 4 and “one- or two-step instructions,” AR at 33-34, the Court finds that the vocational 5 expert’s testimony that plaintiff could perform occupations requiring Level 2 or Level 3 6 reasoning ability “appear more than the [plaintiff] can handle.” Zavalin, 778 F.3d at 846. 7 Thus, there was an apparent conflict between the vocational expert’s testimony that 8 plaintiff could work as a mail clerk, marker, or office helper and plaintiff’s limitations. 9 B. The ALJ Failed to Reconcile the Conflict 10 The ALJ was required to “reconcile the conflict before relying on the expert to 11 decide if the claimant is disabled.” Gutierrez, 844 F.3d at 807; see also Lamear v. 12 Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017) (same) (citing Zavalin, 778 F.3d at 846). 13 The hearing transcript reflects that the ALJ presented the vocational expert with a 14 hypothetical claimant with plaintiff’s limitations, including that the hypothetical claimant 15 “is able to understand, remember and carry out simple instructions and tasks,” and 16 inquired whether there was work that the hypothetical claimant could perform. AR at 58- 17 59. The vocational expert testified that the hypothetical claimant could not return to any 18 past relevant work, but could work as a mail clerk, marker, or office helper. Id. The 19 following exchange then took place: 20 Q: Has your testimony today been consistent with the DOT and Selected Characteristics of Occupations? 21 22 A: Yes. 23 Id. at 59. The ALJ did not inquire further of the vocational expert or solicit her 24 explanation of how a hypothetical claimant who could only carry out simple, one- and 25 26 27 Dictionary of Occupational Titles, Appx. C, 1991 WL 688702 (emphasis added). 28 1 two-step instructions could nevertheless capably perform jobs requiring a Level 2 or 2 Level 3 reasoning ability. See id. In his written decision, the ALJ stated simply that 3 “Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s 4 testimony is consistent with the information contained in the Dictionary of Occupational 5 Titles.” Id. at 36. 6 The Court finds the foregoing inquiry was insufficient to satisfy the ALJ’s 7 “affirmative duty to ‘ask the expert to explain the conflict and then determine whether the 8 vocational expert’s explanation for the conflict is reasonable before relying on the 9 expert’s testimony to reach a disability determination.’” Rounds, 807 F.3d at 1003 10 (quoting Zavalin, 778 F.3d at 846). The ALJ was required to, but did not, “directly 11 address[]” whether plaintiff’s limitation to carrying out simple tasks was consistent with 12 the occupational requirements of mail clerk, marker, or office helper, “and if so, why.” 13 Id.; see also Jimenez Rodriguez v. Saul, No. 19-CV-805-CAB-KSC, 2019 WL 7048774, 14 at *5 (S.D. Cal. Dec. 23, 2019) (“While ALJs are allowed to rely on the opinions of the 15 V[ocational] E[xpert], they are also obligated to make reasonable inquiry into any 16 potential conflicts with the DOT.”) (citing Lamear, 865 F.3d at 1206). Instead, the ALJ 17 accepted the vocational expert’s conclusory statement that her testimony was consistent 18 with the DOT. See Buck v. Berryhill, 869 F.3d at 1051 (noting that a vocational expert’s 19 testimony “is not incontestable”). That was error. Rounds, 807 F.3d at 1003; Guiterrez, 20 844 F.3d at 807; Zavalin, 778 F.3d at 847. 21 C. The ALJ’s Error Was Not Harmless 22 The Commissioner asserts that the ALJ’s error was harmless and urges the Court to 23 find the ALJ’s decision “legally sufficient in all respect[s].” Doc. No. 19 at 7-8. 24 However, the ALJ’s failure to reconcile an apparent conflict is not harmless precisely 25 because it is difficult if not impossible to determine from the record “whether substantial 26 evidence supports the ALJ’s five-step finding that [the claimant] could perform [the] 27 work.” Zavalin, 778 F.3d at 848 (second alteration in original); see also Lamear, 865 28 F.3d at 1206 (noting the “absen[ce] [of] anything in the record to explain th[e] apparent 1 discrepancy”); Pruett v. Colvin, 85 F. Supp. 3d 1152, 1158 (N.D. Cal. 2015) (“The ALJ’s 2 failure to do so may preclude the Court from determining whether the ALJ’s decision is 3 supported by substantial evidence.”). In short, the very failure to develop the record also 4 means the record is insufficient to support a finding that the error was harmless. Rounds, 5 807 F.3d at 1004 (finding that “the record does not support a conclusion that the ALJ’s 6 failure to resolve this apparent conflict was harmless error”). 7 The problem is amply demonstrated by the record here. As the Commissioner 8 concedes (see Doc. No. 19 at 6), plaintiff’s RFC is inconsistent with the requirements of 9 the mail clerk position, which would require her to “apply commonsense understanding 10 to carry out instructions furnished in written, oral or diagrammatic form” and to “deal 11 with problems involving several concrete variables.” Dictionary of Occupational Titles, 12 Appx. C, 1991 WL 688702; accord Buck, 869 F.3d at 1051 (finding jobs requiring 13 Reasoning Level 3 “inconsistent” with limitation to performing “simple, routine or 14 repetitive work”); Payan v. Colvin, 672 Fed. App’x 732, 733 (9th Cir. 2016) (same). The 15 ALJ’s unquestioning acceptance of the vocational expert’s conclusory statement that her 16 testimony was consistent with the DOT “necessarily” means the record is silent as to 17 “whether the vocational expert’s explanation for deviating from the DOT was 18 reasonable.” Pruett, 85 F. Supp. 3d at 1158. The ALJ’s failure to develop the record also 19 means there is nothing in the record to support the Commissioner’s assertion that 20 plaintiff’s RFC is consistent the positions requiring Reasoning Level 2. Doc. No 19 at 7. 21 Without the benefit of a more complete record, this Court cannot assume that the 22 ALJ correctly determined plaintiff could perform positions requiring Reasoning Level 2 23 or Level 3. Pruett, 85 F. Supp. 3d at 1158. Accordingly, based on the record before it, 24 the Court finds that the Commissioner has failed to carry its burden to establish plaintiff 25 can perform other work in the national economy. The Court further finds that the case 26 must be remanded so that the ALJ may address in the first instance whether, in fact, 27 plaintiff could perform jobs requiring Reasoning Level 2 or 3 notwithstanding her 28 limitation of carrying out “simple” instructions. See Lamear, 865 F.3d 1207 (remanding 1 || for further “follow up” with the vocational expert); Buck, 869 F.3d at 1052 (reversing and 2 || directing that the ALJ ‘“‘address[]’” the “inconsistency in the record” on remand). 3 ||D. Waiver 4 Finally, the Court rejects the Commissioner’s argument that plaintiff waived her 5 ||right to challenge the inconsistency between her RFC and the positions the ALJ found 6 ||she could perform on appeal. Doc. No. 19 at 5. The ALJ has an “affirmative duty” to 7 develop the record. Rounds, 807 F.3d at 1003. This includes eliciting testimony 8 ||}explaining any “apparent conflict” between the vocational expert’s testimony and what 9 claimant can handle.” Zavalin, 778 F.3d at 846; see also Social Security Ruling 10 || (“SSR”) 0O-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (explaining the ALJ’s duty to 11 || “fully develop the record” as to whether there is consistency between VE occupational 12 ||evidence and the DOT). The law of this Circuit is clear that counsel’s failure to raise the 13 || apparent conflict “does not relieve the ALJ of his express duty to reconcile apparent 14 ||conflicts through questioning.” Lamear, 865 F.3d at 1206 (citing Zavalin, 778 F.3d at 15 846). Accordingly, this argument has not been waived. 16 V. CONCLUSION 17 The record establishes an apparent conflict between plaintiff's limitations and the 18 || DOT requirements for the positions the ALJ determined plaintiff was capable of 19 || performing. Under this Circuit’s precedent, the ALJ was obligated to reconcile this 20 ||inconsistency, but did not do so. That error was not harmless. Accordingly, plaintiff’ s 21 ||motion for summary judgment is GRANTED and defendant’s motion for summary 22 ||judgment is DENIED. The Court hereby REMANDS the matter to the Social Security 23 || Administration for further proceedings. 24 || IT IS SO ORDERED. 25 ||Dated: September 21, 2020 Sb Ul / 26 M02 cr Hon. Karen S. Crawford United States Magistrate Judge