1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 ANITA S.,1 Case No. 2:19-cv-06862-GJS
12 Plaintiff MEMORANDUM OPINION AND 13 v. ORDER
14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff Anita S. filed a complaint seeking review of Defendant 19 Commissioner of Social Security’s (“Commissioner”) denial of her application for 20 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 21 the undersigned United States Magistrate Judge [Dkts. 11, 12] and briefs addressing 22 disputed issues in the case [Dkt. 16 (“Pltf.’s Br.”) and Dkt. 19 (“Def.’s Br.”)]. 23 Plaintiff did not file a reply. The Court has taken the parties’ briefing under 24 submission without oral argument. For the reasons discussed below, the Court finds 25 that this matter should be remanded for further proceedings. 26 27 1 In the interest of privacy, this Order uses only the first name and the initial of 28 the last name of the non-governmental party. 1 2 Plaintiff applied for SSI under Title XVI of the Social Security Act in 3 November 2015, alleging disability beginning in January 2008. [Administrative 4 Record (AR 157-66).] The agency denied Plaintiff’s claims initially and on 5 reconsideration (AR 90-990, and an Administrative Law Judge (“ALJ”) convened a 6 hearing in June 2018. [AR 44-60.] In a decision dated June 20, 2018, the ALJ 7 determined that Plaintiff was not disabled, following the five-step sequential 8 evaluation process set forth in 20 C.F.R. § 416.920(a). [AR 27-43.] 9 As relevant here, the ALJ found that Plaintiff had medically severe 10 impairments of degenerative disc disease of the lumbar spine, sciatica, right knee 11 derangement and degenerative joint disorder, obesity, and depression. [AR 32.] 12 The ALJ concluded that these impairments did not meet or equal any impairment 13 listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (AR 32-33) and found that Plaintiff had 14 the following Residual Functional Capacity (“RFC”): 15 [T]o perform light work as defined in 20 C.F.R. § 416.967(b) except 16 stand and/or walk for 6 hours in an 8-hour workday and she can sit for 6 hours in an 8-hour workday; she can occasionally climb, balance, 17 stoop, kneel, crouch, and crawl; she can understand and remember tasks; he [sic] can sustain concentration and persistence, he [sic] can 18 socially interact with the general public, co-workers, and supervisors, and he [sic] can adapt to workplace changes frequently enough to 19 perform unskilled jobs that require 1-step or 2-step simple instructions. 20 21 [AR 34-37.] 22 The ALJ determined that Plaintiff had no past relevant work. [AR 38.] The 23 ALJ determined, however, that considering Plaintiff’s age, education, work 24 experience, and RFC, there were jobs in the national economy that Plaintiff could 25 perform, and she was not disabled. [AR 38-39.] The ALJ’s determination was 26 based, in part, on a colloquy with a Vocational Expert (“VE”), Mr. Leeth. [AR 56- 27 59.] The VE was asked to opine, given Plaintiff’s RFC, “what jobs might be 28 available?” [AR 58.] The VE responded that there would be “packager positions,” 1 2 those jobs were “consistent with the DOT,” the VE responded in the affirmative. 3 [Id.] 4 Plaintiff challenges the ALJ’s decision based on two alleged errors. First, 5 Plaintiff contends that the RFC limitation to “unskilled jobs that require 1-step or 2- 6 step simple instructions” conflicts with the representative jobs identified by the VE, 7 each of which, pursuant to the Dictionary of Occupational Titles (“DOT”) require 8 reasoning level 2, where reasoning level 2 requires more than one-to-two step tasks. 9 [Pltf’s Br. at 4-5 (citing Rounds v. Comm’r Soc. Security Admin., 807 F.3d 996, 10 1003-04 (9th Cir. 2015).] And further, according to Plaintiff, the ALJ did not elicit 11 a reasonable explanation from the VE that accounts for and resolves the alleged 12 conflict with the DOT. Second, Plaintiff contends that the ALJ improperly 13 evaluated her testimony, failing to properly credit her complaints of debilitating 14 physical and mental limitations. Because the Court finds that this case should be 15 remanded based on the inconsistency between the RFC limitations and the DOT 16 requirements for the example jobs, it will not address Plaintiff’s second argument. 17 On remand, however, the ALJ should consider each of Plaintiffs allegations of error. 18 19 III. GOVERNING STANDARD 20 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 21 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 22 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 23 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 24 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 26 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 27 also Hoopai, 499 F.3d at 1074. 28 1 2 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 3 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 4 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 5 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 6 reverse the Commissioner’s decision if it is based on harmless error, which exists if 7 the error is “inconsequential to the ultimate nondisability determination, or if despite 8 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 9 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 10 omitted). 11 IV. DISCUSSION 12 13 The Vocational Expert’s Testimony Conflicted With The DOT And The ALJ 14 Erred By Failing To Resolve The Conflict. 15 Plaintiff contends that the jobs identified by the VE – packager, classified in 16 the DOT at 726.687-042; electronic worker, classified in the DOT at 726.687-010; 17 and floater, classified in the DOT at 222.687-014 [see AR 39] – each require 18 reasoning level 2. As the Ninth Circuit held in Rounds v. Commissioner Social 19 Security Administration, a reasoning level two occupation requires more that one-to- 20 two step tasking. 807 F.3d 995, 1003-04 (9th Cir. 2015). Plaintiff argues that 21 because a limitation to “1-step or 2-step simple instructions” was part of Plaintiff’s 22 RFC as determined by the ALJ, the jobs identified by the VE, per the DOT, are in 23 conflict with Plaintiff’s RFC limitations. The Court agrees. 24 In general, an ALJ may not rely on a vocational expert’s testimony regarding 25 the requirements of a particular job without first inquiring whether the testimony 26 conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 27 2007) (citing Social Security Ruling (“SSR”) 00-4p ).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 ANITA S.,1 Case No. 2:19-cv-06862-GJS
12 Plaintiff MEMORANDUM OPINION AND 13 v. ORDER
14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff Anita S. filed a complaint seeking review of Defendant 19 Commissioner of Social Security’s (“Commissioner”) denial of her application for 20 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 21 the undersigned United States Magistrate Judge [Dkts. 11, 12] and briefs addressing 22 disputed issues in the case [Dkt. 16 (“Pltf.’s Br.”) and Dkt. 19 (“Def.’s Br.”)]. 23 Plaintiff did not file a reply. The Court has taken the parties’ briefing under 24 submission without oral argument. For the reasons discussed below, the Court finds 25 that this matter should be remanded for further proceedings. 26 27 1 In the interest of privacy, this Order uses only the first name and the initial of 28 the last name of the non-governmental party. 1 2 Plaintiff applied for SSI under Title XVI of the Social Security Act in 3 November 2015, alleging disability beginning in January 2008. [Administrative 4 Record (AR 157-66).] The agency denied Plaintiff’s claims initially and on 5 reconsideration (AR 90-990, and an Administrative Law Judge (“ALJ”) convened a 6 hearing in June 2018. [AR 44-60.] In a decision dated June 20, 2018, the ALJ 7 determined that Plaintiff was not disabled, following the five-step sequential 8 evaluation process set forth in 20 C.F.R. § 416.920(a). [AR 27-43.] 9 As relevant here, the ALJ found that Plaintiff had medically severe 10 impairments of degenerative disc disease of the lumbar spine, sciatica, right knee 11 derangement and degenerative joint disorder, obesity, and depression. [AR 32.] 12 The ALJ concluded that these impairments did not meet or equal any impairment 13 listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (AR 32-33) and found that Plaintiff had 14 the following Residual Functional Capacity (“RFC”): 15 [T]o perform light work as defined in 20 C.F.R. § 416.967(b) except 16 stand and/or walk for 6 hours in an 8-hour workday and she can sit for 6 hours in an 8-hour workday; she can occasionally climb, balance, 17 stoop, kneel, crouch, and crawl; she can understand and remember tasks; he [sic] can sustain concentration and persistence, he [sic] can 18 socially interact with the general public, co-workers, and supervisors, and he [sic] can adapt to workplace changes frequently enough to 19 perform unskilled jobs that require 1-step or 2-step simple instructions. 20 21 [AR 34-37.] 22 The ALJ determined that Plaintiff had no past relevant work. [AR 38.] The 23 ALJ determined, however, that considering Plaintiff’s age, education, work 24 experience, and RFC, there were jobs in the national economy that Plaintiff could 25 perform, and she was not disabled. [AR 38-39.] The ALJ’s determination was 26 based, in part, on a colloquy with a Vocational Expert (“VE”), Mr. Leeth. [AR 56- 27 59.] The VE was asked to opine, given Plaintiff’s RFC, “what jobs might be 28 available?” [AR 58.] The VE responded that there would be “packager positions,” 1 2 those jobs were “consistent with the DOT,” the VE responded in the affirmative. 3 [Id.] 4 Plaintiff challenges the ALJ’s decision based on two alleged errors. First, 5 Plaintiff contends that the RFC limitation to “unskilled jobs that require 1-step or 2- 6 step simple instructions” conflicts with the representative jobs identified by the VE, 7 each of which, pursuant to the Dictionary of Occupational Titles (“DOT”) require 8 reasoning level 2, where reasoning level 2 requires more than one-to-two step tasks. 9 [Pltf’s Br. at 4-5 (citing Rounds v. Comm’r Soc. Security Admin., 807 F.3d 996, 10 1003-04 (9th Cir. 2015).] And further, according to Plaintiff, the ALJ did not elicit 11 a reasonable explanation from the VE that accounts for and resolves the alleged 12 conflict with the DOT. Second, Plaintiff contends that the ALJ improperly 13 evaluated her testimony, failing to properly credit her complaints of debilitating 14 physical and mental limitations. Because the Court finds that this case should be 15 remanded based on the inconsistency between the RFC limitations and the DOT 16 requirements for the example jobs, it will not address Plaintiff’s second argument. 17 On remand, however, the ALJ should consider each of Plaintiffs allegations of error. 18 19 III. GOVERNING STANDARD 20 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 21 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 22 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 23 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 24 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 26 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 27 also Hoopai, 499 F.3d at 1074. 28 1 2 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 3 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 4 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 5 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 6 reverse the Commissioner’s decision if it is based on harmless error, which exists if 7 the error is “inconsequential to the ultimate nondisability determination, or if despite 8 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 9 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 10 omitted). 11 IV. DISCUSSION 12 13 The Vocational Expert’s Testimony Conflicted With The DOT And The ALJ 14 Erred By Failing To Resolve The Conflict. 15 Plaintiff contends that the jobs identified by the VE – packager, classified in 16 the DOT at 726.687-042; electronic worker, classified in the DOT at 726.687-010; 17 and floater, classified in the DOT at 222.687-014 [see AR 39] – each require 18 reasoning level 2. As the Ninth Circuit held in Rounds v. Commissioner Social 19 Security Administration, a reasoning level two occupation requires more that one-to- 20 two step tasking. 807 F.3d 995, 1003-04 (9th Cir. 2015). Plaintiff argues that 21 because a limitation to “1-step or 2-step simple instructions” was part of Plaintiff’s 22 RFC as determined by the ALJ, the jobs identified by the VE, per the DOT, are in 23 conflict with Plaintiff’s RFC limitations. The Court agrees. 24 In general, an ALJ may not rely on a vocational expert’s testimony regarding 25 the requirements of a particular job without first inquiring whether the testimony 26 conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 27 2007) (citing Social Security Ruling (“SSR”) 00-4p ). If a deviation from the DOT 28 exists, the ALJ should obtain a reasonable explanation for the deviation. Massachi, 1 2 793 (9th Cir. 1997) (ALJ may rely on vocational expert testimony that contradicts 3 the DOT, but only insofar as the record contains persuasive evidence to support the 4 deviation); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). Evidence 5 sufficient to support a deviation from the DOT may be either specific findings of 6 fact regarding Plaintiff’s ability to perform particular jobs, or inferences drawn from 7 the context of the vocational expert’s testimony. See Johnson, 60 F.3d at 1435, n. 7 8 (ALJ provided sufficient support for deviation by noting that the vocational expert 9 described characteristics and requirements of jobs in the local area consistent with 10 plaintiff’s RFC). 11 At the hearing in this case, the ALJ presented the vocational expert with a 12 hypothetical person with Plaintiff’s RFC and asked “[w]hat jobs might be 13 available?” The entirety of the VE’s testimony in response was the identification of 14 the three positions set forth above and the number of such jobs in the national 15 economy. [AR 58.] The VE further testified, in response to the ALJ, that all of the 16 identified jobs were consistent with the DOT. [Id.]2 17 The vocational expert’s testimony that these three jobs could be performed 18 with the one-to-two step instructions limitation is clearly inconsistent with the DOT 19 requirement of reasoning level 2, per the Ninth Circuit’s decision in Rounds. 807 20 F.3d at 1003-04. The ALJ may rely on expert testimony that contradicts the DOT if 21 the record contains persuasive evidence to support the differences. Johnson, 60 22 F.3d at 1435. However, the vocational expert in this case gave no supporting 23 information to justify his statement that these the three identified jobs could be 24
25 2 The ALJ also asked what appears, from the VE’s answer, to be a more restrictive 26 hypothetical that is, to the Court, essentially incoherent. Q: “With the physical assumptions I describe but with the assumption that those mental limitations would 27 seldom or never allow for the previously named mental functions could one perform any of those jobs? A: No, Your Honor.” [AR 58.] Whatever this more restrictive 28 hypothetical was meant to be, it is not at issue here. 1 2 that his testimony did not contradict the DOT, it is difficult to imagine how he 3 would have resolved any contradiction. As such, the Court finds that the record fails 4 to contain persuasive evidence to support this deviation from the DOT. 5 The Commissioner does not contend that the RFC as written and the DOT 6 requirements are consistent. Rather, the Commissioner argues that Rounds “should 7 not apply to the facts of this case” because of medical evidence in the record 8 considered by the ALJ but not presented to or considered by the vocational expert. 9 [Def.’s Br. at 3.] Defendant’s argument is essentially that the Court should make its 10 own, independent determination that the underlying evidence before the ALJ was 11 inconsistent with the ALJ’s own final RFC determination and therefore consistent 12 with the DOT requirements of the identified occupations. The Commissioner argues 13 harmless error, because the weight of the evidence the ALJ considered should trump 14 the VE’s mistaken testimony and the ALJ’s specific RFC limitation. While the 15 Court believes that this case issue may be remedied on remand, it is not for the 16 Court to disregard the required procedures and substitute its own judgment in place 17 of either the ALJ’s, in making an RFC determination, or that of the VE in opining 18 on or describing the requirements of particular representative jobs. This case must 19 therefore be remanded. 20 V. CONCLUSION 21 22 The decision of whether to remand for further proceedings or order an 23 immediate award of benefits is within the district court’s discretion. Harman v. 24 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 25 served by further administrative proceedings, or where the record has been fully 26 developed, it is appropriate to exercise this discretion to direct an immediate award 27 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 28 turns upon the likely utility of such proceedings”). But when there are outstanding 1 || issues that must be resolved before a determination of disability can be made, and it 2 || 1s not clear from the record the ALJ would be required to find the plaintiff disabled 3 || if all the evidence were properly evaluated, remand is appropriate. Id. 4 The Court finds that remand is appropriate because the circumstances of this 5 || case suggest that further administrative review could remedy the ALJ’s errors. See 6 || INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 7 || determination, the proper course is remand for additional agency investigation or 8 || explanation, “except in rare circumstances”); Treichler v. Comm’r of Soc. Sec. 9 || Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is 10 || inappropriate where “there is conflicting evidence, and not all essential factual 11 issues have been resolved”); Harman, 211 F.3d at 1180-81. 12 For all of the foregoing reasons, IT IS ORDERED that: 13 (1) the decision of the Commissioner is REVERSED and this matter 14 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 15 administrative proceedings consistent with this Memorandum Opinion and 16 Order; and 17 (2) Judgment be entered in favor of Plaintiff. 18 19 || ITIS SO ORDERED. 20 | / | 21 || DATED: October 22, 2020 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28