Gavin Buck v. Nancy Berryhill

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAVIN LEE BUCK, No. 14-35976
Plaintiff-Appellant,
DC No.
v. 2:13-cv-02283-JCC
NANCY A. BERRYHILL, Acting
Commissioner Social Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Senior District Judge, Presiding
Argued and Submitted July 10, 2017
Seattle, Washington
Filed September 5, 2017
Before: A. Wallace Tashima and Jacqueline H. Nguyen,
Circuit Judges, and Donald E. Walter,* District Judge.
Opinion by Judge Tashima
*
The Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.
2 BUCK V. BERRYHILL
SUMMARY**
Social Security
The panel reversed the district court’s judgment
affirming the Commissioner of Social Security’s denial of
claimant’s applications for Disability Insurance Benefits and
Supplemental Security Income under the Social Security Act,
and remanded for further administrative proceedings.
The panel rejected claimant’s contentions that the
administrative law judge (“ALJ”) erred at step two of the
five-step sequential analysis by not adequately incorporating
all severe impairments into the determination of claimant’s
residual functional capacity, and by calling his antisocial
personality disorder merely a “personality disorder” without
qualification. The panel held that step two is merely a
threshold determination meant to screen out weak claims, and
was not meant to identify the impairments that should be
taken into account when determining the residual functional
capacity. The panel further held that step two was decided in
claimant’s favor, and he could not possibly have been
prejudiced, and any alleged error was therefore harmless.
Concerning the rejection of Dr. Kenderdine’s opinion,
which involved a psychiatric evaluation, the panel held that
in the context of this case, Dr. Kenderdine’s partial reliance
on claimant’s self-reported symptoms was not a valid reason
to reject his opinion. The panel also held that the ALJ’s use
of the opinion of a non-examining medical expert (which was
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BUCK V. BERRYHILL 3
rejected by the opinion of another non-examining physician)
to reject Dr. Kenderdine’s opinion was not a valid basis for
rejecting Dr. Kenderdine’s opinion.
The panel held that the law of the case doctrine did not
preclude this court from considering claimant’s arguments
regarding the ALJ’s treatment of the opinions of Drs.
Schechter and Fisher – where the district court, in a prior
appeal, affirmed the ALJ’s treatment of those opinions and
remanded for a second hearing before the ALJ – because the
law of the case doctrine applies only to decisions by the same
or a higher court. The panel held that the ALJ did not err in
rejecting the opinion of Dr. Schechter where there was a
discrepancy between the physician’s opinion and the
physician’s own notes. The panel also held that the ALJ
correctly interpreted Dr. Fisher’s opinion, which was
submitted on a form, by relying solely on the third section of
the form where the physician wrote his narrative opinion.
The panel held that the vast discrepancy between the
vocational expert’s testimony concerning job numbers and
those tendered by the claimant was too striking, and
concluded that the inconsistency in the record must be
addressed by the ALJ on remand.
COUNSEL
Charles W. Talbot (argued), Tacoma, Washington, for
Plaintiff-Appellant.
Jeffrey Raymond McClain (argued), Assistant Regional
Counsel; David Morado, Regional Chief Counsel, Seattle
Region X; Kerry Jane Keefe, Assistant United States
4 BUCK V. BERRYHILL
Attorney; Annette L. Hayes, United States Attorney; Office
of the General Counsel, Social Security Administration,
Seattle, Washington; for Defendant-Appellee.
OPINION
TASHIMA, Circuit Judge:
Gavin Buck (“Buck”) appeals the district court’s
judgment affirming the denial of Social Security Disability
Insurance (“SSDI”) and Supplemental Security Income
(“SSI”) benefits. Buck is diagnosed with several mental
illnesses, including bipolar disorder, antisocial personality
disorder, and attention deficit hyperactivity disorder
(“ADHD”). We have jurisdiction under 28 U.S.C. § 1291and we reverse and remand for further administrative
proceedings.
I. FACTUAL BACKGROUND
Buck was born in 1977. He has worked in the past as,
among other things, a stores laborer, construction laborer, and
tire changer. The longest he was ever employed was
17 months, working for Pioneer Human Services as a
shipping and receiving worker.1 Buck attributes his failure to
keep a job to his mental illnesses, which cause him to miss a
lot of work. He also has trouble concentrating and tends to
get nervous around people and lash out at them.
1
Pioneer Human Services is a company that hires people re-
entering society from prison or jail or who are battling drug
addictions. See Job Listings, P IONEER H UMAN S ERVICES ,
http://pioneerhumanservices.org/about/career (last visited July 31, 2017).
BUCK V. BERRYHILL 5
The medical record in this case begins with an
examination by Dr. Shawn Kenderdine, Ph.D., on May 19,
2008. Dr. Kenderdine performed his examination on behalf
of the Washington Department of Social and Health Services
(“DSHS”). Dr. Kenderdine performed both a clinical
interview and a mental status evaluation. Buck’s results
indicated that his learning would be impaired to some degree.
Dr. Kenderdine diagnosed Buck with ADHD,
methamphetamine dependence in remission, major depressive
disorder, and antisocial personality disorder. He assessed
limitations in Buck’s ability to exercise judgment and make
decisions, to relate appropriately to co-workers and
supervisors, to respond appropriately to and tolerate the
pressures of a work setting, to control physical or motor
movements, and to maintain appropriate behavior. In
addition to his clinical observations, Dr. Kenderdine also
noted that Buck “reported attendance problems and poor
attention as interfering with his ability to sustain or maintain
work.”
Starting in July 2008, Buck received treatment from
Valley Cities Counseling and Consultation (“Valley Cities”).
A mental status examination by Valley Cities found that Buck
had an anxious affect, impaired concentration, poor impulse
control, and poor insight into his problems.
Buck filed applications for SSDI and SSI benefits on
September 17, 2008, with an alleged onset date of March 1,
2008.
On November 13, 2008, Buck was examined by Dr.
Allison Schechter, Psy.D., at the request of the Social
Security Administration (“SSA”). Dr. Schechter reviewed
Dr. Kenderdine’s report, a psychiatric evaluation done at
6 BUCK V. BERRYHILL
Valley Cities, and Valley Cities’ treatment notes. She also
conducted an interview and a mental status evaluation. Dr.
Schechter diagnosed Buck with ADHD (combined type,
childhood onset), bipolar disordar (not otherwise specified),
adult antisocial behavior, and methamphetamine and
marijuana dependence (in remission per history). She
assigned a Global Adult Functioning (“GAF”) score of 60.
Functionally, Dr. Schechter opined that Buck might have
difficulty performing both simple and repetitive tasks, as well
as detailed and complex tasks. In addition, Buck would
easily become irritated and act out inappropriately when
irritable. Overall, Buck’s disorders would interfere with his
ability to work consistently and on a regular schedule.
In December 2008, Dr. Alex Fisher, Ph.D., performed a
psychiatric review of Buck’s file for the SSA. He diagnosed
Buck with ADHD and bipolar disorder. He determined that
Buck was only moderately functionally limited. Dr. Fisher’s
results were affirmed by Dr. Mary Gentile, Ph.D.
This case has been heard by an Administrative Law Judge
(“ALJ”) twice. The first hearing was in September 2009. At
that hearing, Dr. Arthur Lewy, Ph.D., testified as a medical
expert. Dr. Lewy opined that Buck has only mild limitations
in daily living and social function, and moderate limitations
in concentration, persistence, and pace, and concluded that
Buck could do simple, repetitive work. Dr. Lewy further
opined that the Schechter report was not reliable because Dr.
Schechter frequently qualified her conclusions with the word
“may.” In addition, he noted discrepancies between Dr.
Schechter’s notes and her conclusions. For example, she
assessed a GAF score of 60, which implies only moderate
symptoms, but her conclusions indicated severe symptoms.
BUCK V. BERRYHILL 7
The ALJ denied Buck’s claims for benefits. This denial
was eventually appealed to the district court, which remanded
the case to the ALJ. One of the reasons for the remand was
that the ALJ improperly rejected Dr. Kenderdine’s opinion.
On April 30, 2009, Richard Hockett B.A. (“Hockett”)
performed an assessment of Buck at the request of the DSHS.
He diagnosed Buck with bipolar I disorder and ADHD. He
assessed marked functional limitations in ability to remember
and follow simple or complex instructions, in the ability to
exercise judgment and make decisions and to perform routine
tasks. He also noted a moderate limitation on the ability to
learn new tasks. Hockett wrote that Buck was severely
impaired socially, unable to respond appropriately to and
tolerate the pressures and expectations of a normal work
setting, and markedly limited in the ability to relate
appropriately to co-workers, supervisors, and the public.
Buck did not obtain treatment between 2009 and 2011.
When he went for treatment at Valley Cities in March 2011,
he reported increased anxiety and depression.
Buck went to prison at some point after April 24, 2012.
He was shot in the legs by police while fleeing arrest. The
ALJ considered Buck’s eligibility for benefits both before and
after he sustained these gunshot wounds.
On remand, Buck had a second hearing before the same
ALJ. Dr. Jay Toews, Ph.D., testified as a medical expert at
this hearing. Dr. Toews testified that Buck would be capable
of remembering and understanding simple instructions,
carrying out routine tasks, and could tolerate incidental
contact with others. He also testified that Dr. Kenderdine’s
opinion was unreliable because the Beck depression index
8 BUCK V. BERRYHILL
used by Dr. Kenderdine produces exaggerated scores at the
high end of the scale. Specifically, Buck had a Beck
depression score of 41, and Dr. Toews testified that scores
over 30 are “exaggerations of true scores.” After the ALJ had
already issued his ruling, Buck submitted an additional sworn
declaration by Dr. Brett T. Copeland, Psy.D., stating that
there is no support for Dr. Toews’ testimony that Beck scores
are exaggerated.
Vocational expert (“VE”) Jerie Longacre also testified at
Buck’s second hearing. She was asked to consider a
hypothetical individual who was capable of work at all
exertional levels; who could understand, remember, and carry
out simple instructions; who could carry out routine tasks;
who could tolerate incidental contact with others in a work
place; and who would have problems with frequent changes
in work requirements. These limitations correspond to the
residual functional capacity (“RFC”) that the ALJ assessed.
The VE testified that someone with Buck’s limitations would
be able to perform Buck’s past work as a stores laborer, tire
changer, construction laborer, or shipping and receiving
worker.
The VE also testified that after his gunshot wounds, Buck
could work in computer assembly, as a bottling line attendant,
a bottle packer, or as a conveyor-belt maker. The ALJ posed
a third hypothetical, in which the individual would be limited
to sedentary work. The VE responded that such an individual
could work as a surveillance systems monitor, document
preparer, or food and beverage order clerk.
The VE testified that the occupations of bottling line
attendant, bottle packer, and conveyor belt maker had
national job numbers of 600,000, 8,800, and 235,000,
BUCK V. BERRYHILL 9
respectively, and Washington state job numbers of 16,000,
200, and 4,400, respectively. Buck’s attorneys, allegedly
using the same software program as the VE, determined that
there are only 231 positions nationally as a bottling line
attendant, with six in Washington; 2,039 positions nationally
as a bottle packer, with 51 in Washington; and 26 positions
nationally as a conveyor belt maker, with none in
Washington. The ALJ curtailed Buck’s cross-examination of
the VE on the issue of job numbers, promising Buck that he
would be able to make a post-hearing submission. In the end,
however, the ALJ did not address Buck’s submission.
The ALJ issued his decision denying Buck benefits on
May 17, 2013. Applying the five-step sequential analysis
used in disability claims, the ALJ first found that Buck had
not engaged in substantial gainful activity since his alleged
onset date of March 1, 2008. At step two, he found that Buck
suffered from five severe impairments: ADHD, bipolar
disorder, personality disorder, marijuana dependence (in
remission), and methamphetamine dependence (in remission).
As of April 24, 2012, Buck also had the severe impairment of
status post gunshot wounds in both lower extremities with
fractures in the left leg. At step three, the ALJ found that
Buck’s impairments do not meet or equal a listed impairment.
In assessing Buck’s RFC, the ALJ found Buck’s own
testimony to be not credible. He noted that Buck had made
inconsistent statements regarding his work history, education,
and substance abuse and that he had a significant criminal
history, including crimes of dishonesty.
The ALJ found that before he was shot, Buck had the
RFC to perform work at all exertional levels, with the ability
to understand, remember, and carry out simple instructions
10 BUCK V. BERRYHILL
and routine tasks, and the ability to tolerate incidental contact
with others in the workplace. Buck would have problems,
however, with frequent changes in work environments. After
he was shot, Buck’s RFC would have the same non-exertional
limitations as before, but he would additionally be limited to
light work.
At step four, the ALJ found that prior to being shot, Buck
could perform his past relevant work as a stores laborer, tire
changer, and construction laborer. At step five, the ALJ
found that after being shot Buck could work as a bottling line
attendant, bottle packer, conveyor-belt maker, surveillance
systems monitor, document preparer, and food and beverage
order clerk, just as the VE had testified. Buck was therefore
found not disabled.
Buck appealed to the Appeals Council, which denied his
request for review. He then appealed to the district court.
The magistrate judge issued a Report and Recommendation
affirming the ALJ’s decision. The district judge adopted the
magistrate judge’s Report and Recommendation. Buck
timely appealed.
II. STANDARD OF REVIEW
This Court reviews the district court’s judgment affirming
an ALJ’s denial of Social Security benefits de novo. Molina
v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). This Court
should reverse only if the ALJ’s decision was not supported
by substantial evidence in the record as a whole or if the ALJ
applied the wrong legal standard. Id. The Court may not
reverse an ALJ’s decision on account of a harmless error. Id.
at 1111.
BUCK V. BERRYHILL 11
III. STEP TWO ANALYSIS
Disability claims are evaluated using a five-step
sequential analysis:
In step one, the ALJ determines whether a
claimant is currently engaged in substantial
gainful activity. If so, the claimant is not
disabled. If not, the ALJ proceeds to step 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 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, App. 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 past relevant work. If so, the claimant is
not disabled. If not, the ALJ proceeds to 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 disabled. If not, the
claimant is disabled.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Buck contends that the ALJ made two errors at step two
of this analysis. First, he contends that the ALJ did not
adequately incorporate all severe impairments into the
determination of Buck’s RFC. Second, he contends that the
12 BUCK V. BERRYHILL
ALJ erred by calling his antisocial personality disorder
merely a “personality disorder,” without qualification.
Neither contention has merit.
At the first hearing on Buck’s claim, the ALJ found only
two severe disabilities: ADHD and bipolar disorder. After
the first hearing, under the RFC determined by the ALJ, Buck
could perform a full range of work at all exertional levels; he
was capable of understanding and remembering simple
instructions and capable of carrying out routine tasks in a
reliable manner, that he had the ability to tolerate incidental
contact with others while at work; and he would have
problems coping with stress involved in frequent changes.
After the second hearing, the ALJ found three new severe
impairments at step two: personality disorder, marijuana
addiction (in remission), and methamphetamine addiction (in
remission). Buck argues that the addition of new severe
impairments should have altered the RFC. However, aside
from some changes in wording, the RFC determined after the
second hearing was the same as after the first.
Buck misunderstands the purpose of step two in the
analysis. Step two is merely a threshold determination meant
to screen out weak claims. Bowen v. Yuckert, 482 U.S. 137,
146–47 (1987). It is not meant to identify the impairments
that should be taken into account when determining the RFC.
In fact, “[i]n assessing RFC, the adjudicator must consider
limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’” Titles II &
XVI: Assessing Residual Functional Capacity in Initial
Claims, Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *5 (S.S.A. July 2, 1996). The RFC therefore
should be exactly the same regardless of whether certain
BUCK V. BERRYHILL 13
impairments are considered “severe” or not. Here, all
impairments were taken into account both times.
Moreover, step two was decided in Buck’s favor after
both hearings. He could not possibly have been prejudiced.
Any alleged error is therefore harmless and cannot be the
basis for a remand. Molina, 674 F.3d at 1115.
Buck also makes much of the fact that the ALJ identified
his antisocial personality disorder as merely a “personality
disorder,” without the qualification “antisocial.” This
argument is unpersuasive. There is no indication that the ALJ
misunderstood the nature of Buck’s impairments. Absent
other evidence, using the shorthand “personality disorder”
does not indicate any error in the ALJ’s determination of
Buck’s RFC or any other part of the analysis. Any alleged
“error” is therefore harmless. Id.IV. THE KENDERDINE OPINION
Buck argues that Dr. Kenderdine’s partial reliance on
Buck’s self-reported symptoms was not a valid reason for the
ALJ to reject his opinion. He also argues that the ALJ erred
in relying on the opinion of Dr. Toews, a nonexamining
medical expert, in rejecting Dr. Kenderdine’s opinion.
A. Self-Reports in Psychiatric Evaluations
“A physician’s opinion of disability premised to a large
extent upon the claimant’s own accounts of his symptoms and
limitations may be disregarded where those complaints have
been properly discounted.” Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal quotation
marks and citation omitted).
14 BUCK V. BERRYHILL
Dr. Kenderdine’s opinion was based in part on Buck’s
self-report that he had trouble keeping a job. However, Dr.
Kenderdine also conducted a clinical interview and a mental
status evaluation. These are objective measures and cannot
be discounted as a “self-report.”
Moreover, as two other circuits have acknowledged,
“[t]he report of a psychiatrist should not be rejected simply
because of the relative imprecision of the psychiatric
methodology . . . .” Blankenship v. Bowen, 874 F.2d 1116,
1121 (6th Cir. 1989) (quoting Poulin v. Bowen, 817 F.2d 865,
873–74 (D.C. Cir. 1987)). Psychiatric evaluations may
appear subjective, especially compared to evaluation in other
medical fields. Diagnoses will always depend in part on the
patient’s self-report, as well as on the clinician’s observations
of the patient. But such is the nature of psychiatry. See
Poulin, 817 F.2d at 873 (“[U]nlike a broken arm, a mind
cannot be x-rayed.”).Thus, the rule allowing an ALJ to reject
opinions based on self-reports does not apply in the same
manner to opinions regarding mental illness. In the context
of this case, Dr. Kenderdine’s partial reliance on Buck’s self-
reported symptoms is thus not a reason to reject his opinion.
B. Conflicts Between Examining and Nonexaming
Medical Opinions
“The opinion of an examining physician is . . . entitled to
greater weight than the opinion of a nonexamining physician.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as
amended April 9, 1996. If the opinion of an examining
physician is contradicted by the opinion of another doctor, it
may nevertheless be rejected only “for specific and legitimate
reasons that are supported by substantial evidence in the
record.” Id. at 830–31. “The opinion of a nonexamining
BUCK V. BERRYHILL 15
physician cannot by itself constitute substantial evidence that
justifies the rejection of the opinion [of] an examining
physician . . . .” Id. at 831. Thus, the opinion of Dr. Toews,
a nonexamining medical expert, is not substantial evidence
permitting the rejection of Dr. Kenderdine’s opinion.
Further, Dr. Toews’ opinion is itself contradicted by the
opinion of another nonexamining physician, Dr. Copeland.
Dr. Copeland concluded that the Beck inventory does not
produce exaggerated results and that there is no professional
support for Dr. Toews’ opinion. This conflict in the record
corroborates the rejection of Dr. Toews’ testimony as a basis
for rejecting Dr. Kenderdine’s opinion.
V. SCHECHTER AND FISHER OPINIONS
Buck argues that the opinion of Dr. Schechter was
improperly rejected by the ALJ. He also argues that the ALJ
should have considered “section I” of the form used by Dr.
Fisher in his opinion. The Commissioner argues that both of
these issues are precluded by law of the case.
A. Law of the Case
Under the law of the case doctrine, “a court is generally
precluded from reconsidering an issue that has already been
decided by the same court, or a higher court in the identical
case.” Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993).
This case was previously appealed to the district court, where
it was remanded for a second hearing before the ALJ. In that
decision, the district court affirmed the ALJ’s treatment of the
opinions of Drs. Schechter and Fisher. That affirmance was
not appealed. The Commissioner apparently believes that
this Court should be bound by that district court ruling. The
16 BUCK V. BERRYHILL
law of the case applies, however, only to decisions by the
same or a higher court. While it was appropriate for the
district court below to affirm based on law of the case, this
Court is not bound to do the same. We therefore assess the
ALJ’s treatment of the Schechter and Fisher opinions on the
merits.
B. Schechter Opinion
A physician’s opinion can be discredited based on
contradictions between the opinion and the physician’s own
notes. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005). Dr. Schechter’s notes indicate much less severe
symptoms than her opinion. For example, she gave Buck a
GAF score of 60, which indicates only moderate symptoms.
By contrast, her opinion describes severe symptoms, such as
screaming and breaking things for days straight. In light of
this discrepancy, the ALJ did not err in rejecting Dr.
Schechter’s opinion.
C. Fisher Opinion
Dr. Fisher’s opinion was submitted on a form, the first
section of which is a checklist of symptoms. The third
section of the form is where the physician writes the narrative
opinion. Buck complains that the ALJ only considered the
third section of the form and ignored the first section. His
argument lacks merit.
Although not binding law, the Social Security
Administration’s Program Operations Manual System
(“POMS”) is persuasive authority. Warre v. Comm’r of Soc.
Sec. Admin, 439 F.3d 1001, 1005 (9th Cir. 2006). POMS
BUCK V. BERRYHILL 17
contains a section explaining the form used by Dr. Fisher. It
states:
The purpose of section I (“Summary
Conclusion”) on the SSA-4734-F-SUP is
chiefly to have a worksheet to ensure that the
psychiatrist or psychologist has considered
each of these pertinent mental activities . . . .
It is the narrative written by the psychiatrist or
psychologist in section III (“Functional
Capacity Assessment”) of form SSA-4734-
F4-SUP that adjudicators are to use as the
assessment of RFC.
POMS DI 25020.010(B)(1), available at
https://secure.ssa.gov/poms.nsf/lnx/0425020010 (last visited
July 12, 2017). The ALJ thus correctly interpreted the form
by relying solely on the third section, rather than the first.
VI. VE TESTIMONY
A. Jobs with Reasoning Level 3
Buck argues, and the Commissioner concedes, that three
of the jobs identified by the VE should have been excluded
for having a Reasoning Level of 3.
The VE testified that Buck could do the jobs of
surveillance systems monitor, document preparer, and food
and beverage order clerk. These three positions all have a
Reasoning Level of 3 in the Dictionary of Occupational
Titles. However, Buck’s RFC limits him to simple
instructions and routine tasks. We recently held that a
limitation to simple, routine, or repetitive work is inconsistent
18 BUCK V. BERRYHILL
with Reasoning Level 3. Zavalin v. Colvin, 778 F.3d 842,
846–48 (9th Cir. 2015). In light of Buck’s RFC, Buck is not
capable of doing the three identified jobs, and they should not
have been relied on by the ALJ. Nonetheless, this error may
be harmless because the VE identified other jobs that Buck
could do, namely those of bottling line attendant, bottle
packer, and conveyor-belt maker.2 See Molina, 674 F.3d at
1115.
B. Available Job Numbers
“An ALJ may take administrative notice of any reliable
job information, including information provided by a VE.”
Bayliss, 427 F.3d at 1218. “A VE’s recognized expertise
provides the necessary foundation for his or her testimony.
Thus, no additional foundation is required.” Id.Buck erroneously reads the above language from Bayliss
to require that the ALJ independently assess the reliability of
VE testimony. However, as is clear from the language of
Bayliss, at least in the absence of any contrary evidence, a
VE’s testimony is one type of job information that is regarded
as inherently reliable; thus, there is no need for an ALJ to
assess its reliability.
Notwithstanding the foregoing, VE testimony is not
incontestable. For example, our precedent establishes that
when VE testimony conflicts with the Dictionary of
2
The evidence supporting the prevalence of these jobs in the national
and regional economy is discussed in the immediately following section.
If there are not sufficient numbers of these jobs, this error would not be
harmless.
BUCK V. BERRYHILL 19
Occupational Titles,3 the ALJ must “determine whether the
vocational expert’s explanation for the conflict is reasonable
and whether a basis exists for relying on the expert rather
than the Dictionary of Occupational Titles.” Massachi,
486 F.3d at 1153; see also SSR 00-4p, 2000 WL 1898704, at
*2 (S.S.A. Dec. 4, 2000) (“Occupational evidence provided
by a VE or VS generally should be consistent with the
occupational information supplied by the [Dictionary of
Occupational Titles]. . . . At the hearings level, as part of the
adjudicator’s duty to fully develop the record, the adjudicator
will inquire, on the record, as to whether or not there is such
consistency.”). Likewise, when the VE’s testimony on job
numbers conflicts with the Medical-Vocational Guidelines
(“Grids”)4, the ALJ must “clarif[y] and develop[] the record.”
Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). In
this case, the vast discrepancy between the VE’s job numbers
and those tendered by Buck, presumably from the same
source, is simply too striking to be ignored. See supra at 8–9.
This inconsistency in the record must be addressed by the
ALJ on remand.5
3
“In making disability determinations, the Social Security
Administration relies primarily on the Dictionary of Occupational Titles
for information about the requirements of work in the national economy.”
Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007).
4
The Social Security Administration frequently uses Grids as a
framework for the step five determination. POMS DI 25025.005,
available at https://secure.ssa.gov/apps10/poms.NSF/lnx/0425025005 (last
visited July 12, 2017).
5
Our recent opinion in Shaibi v. Berryhill, No. 15-16849, 2017 WL
3598085, at *6 (9th Cir. Aug. 22, 2017), holding that “when a claimant
fails entirely to challenge a vocational expert’s job numbers during
administrative proceedings before the agency, the claimant waives such
a challenge on appeal,” does not apply to this case because Buck’s
20 BUCK V. BERRYHILL
VII. CONCLUSION
For the foregoing reasons, the judgment of the district
court is reversed and the action is remanded to the district
court with directions to further remand to the Commissioner
for further proceedings consistent with this opinion.
REVERSED and REMANDED with directions.
challenge to the VE’s job numbers was made “during administrative
proceedings.”