Anna Flores v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: November 30, 2020
• Docket: 5:19-cv-00511
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNA F., ) Case No. ED CV 19-511-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 18 I. 19 INTRODUCTION 20 On March 21, 2019, plaintiff Anna F. filed a complaint against the 21 Commissioner of the Social Security Administration (“Commissioner”), seeking a 22 review of a denial of a period of disability and disability insurance benefits 23 (“DIB”). The parties have fully briefed the matter in dispute, and the court deems 24 the matter suitable for adjudication without oral argument. 25 Plaintiff presents one issue for decision, whether the Administrative Law 26 Judge (“ALJ”) erred at step five by failing to explain an inconsistency between the 27 vocational expert’s testimony and the Dictionary of Occupational Titles (“DOT”). 28 1 Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 7-12; see 2 Defendant’s Memorandum in Support of Answer (“D. Mem.”) at 1-3. 3 Having carefully studied the parties’ memoranda, the Administrative Record 4 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 5 the ALJ did err at step five, but the error was harmless. Consequently, the court 6 affirms the decision of the Commissioner denying benefits. 7 II. 8 FACTUAL AND PROCEDURAL BACKGROUND 9 Plaintiff, who was 38 years old on the alleged disability onset date, has a 10 twelfth grade education. AR at 76, 129. She has past relevant work as a 11 housecleaner. Id. at 56. 12 On May 1, 2017, plaintiff filed an application for a period of disability and 13 DIB alleging an onset date of December 14, 2013 due to fibromyalgia, right leg 14 nerve damage, chronic pain in the right leg, anxiety disorder, acid reflux, and 15 idiopathic pulmonary fibrosis. Id. at 129-30. The Commissioner denied plaintiff’s 16 applications initially, and upon reconsideration, after which she filed a request for a 17 hearing.1 Id. at 167-82. 18 On September 11, 2018, plaintiff, represented by counsel, appeared and 19 testified before ALJ Derek Johnson. Id. at 36-62. The ALJ also heard testimony 20 from Raymond North, a vocational expert (“VE”). Id. On September 20, 2018, the 21 ALJ denied plaintiff’s claim for benefits. Id. at 16-30. 22 Applying the well-known five-step sequential evaluation process, the ALJ 23 found, at step one, that plaintiff has not engaged in substantial gainful activity from 24 December 14, 2013, the alleged onset date, through December 31, 2017, the date 25 26 1 This was plaintiff’s second DIB application. Plaintiff’s prior applications for DIB and supplemental security income were also denied, with ALJ Alan 27 Markiewicz finding on December 13, 2013 that plaintiff as not disabled from 28 October 15, 2006 through December 13, 2013. AR at 115-24. 1 last insured. Id. at 19. 2 At step two, the ALJ found plaintiff suffered from the following severe 3 impairments: fibromyalgia; a history of right tibia and fibula fracture injury; 4 obstructive pulmonary condition; unspecified cognitive disorder; affective 5 disorders variously diagnosed as depressive and mood disorders; anxiety; and post- 6 traumatic stress disorder. Id. 7 At step three, the ALJ found plaintiff’s impairments, whether individually or 8 in combination, did not meet or medically equal one of the listed impairments set 9 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. 10 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),2 and 11 determined she had the capacity to perform sedentary work, but with the 12 limitations that plaintiff could: occasionally push and pull with the right lower 13 extremity; never crawl or climb ladders, ropes, or scaffolds; occasionally climb 14 ramps and stairs, balance, stoop, kneel, and crouch; and tolerate no exposure to 15 temperature extremes, wetness, vibration, pulmonary irritants, or hazards such as 16 unprotected heights and moving machinery. Id. at 21. The ALJ further determined 17 plaintiff’s mental limitations allowed her to: understand, remember, and carry out 18 simple, routine tasks; and tolerate occasional interaction with the general public 19 and coworkers. Id. 20 The ALJ found, at step four, that plaintiff was unable to perform her past 21 relevant work. Id. at 28. 22 At step five, the ALJ found there were jobs that existed in significant 23 24 2 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 numbers in the national economy that plaintiff could perform, including document 2 preparer, touchup screener, and addresser. Id. at 28-29. Consequently, the ALJ 3 concluded plaintiff did not suffer from a disability as defined by the Social 4 Security Act. Id. at 30. 5 Plaintiff filed a timely request for review of the ALJ’s decision, which was 6 denied by the Appeals Council. Id. at 1-11, 238-40. The decision of the ALJ 7 stands as the final decision of the Commissioner. 8 III. 9 STANDARD OF REVIEW 10 This court is empowered to review decisions by the Commissioner to deny 11 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 12 Administration must be upheld if they are free of legal error and supported by 13 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 14 (as amended). But if the court determines the ALJ’s findings are based on legal 15 error or are not supported by substantial evidence in the record, the court may 16 reject the findings and set aside the decision to deny benefits. Aukland v. 17 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 18 1144, 1147 (9th Cir. 2001). 19 “Substantial evidence is more than a mere scintilla, but less than a 20 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 21 “relevant evidence which a reasonable person might accept as adequate to support 22 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 23 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 24 finding, the reviewing court must review the administrative record as a whole, 25 “weighing both the evidence that supports and the evidence that detracts from the 26 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 27 affirmed simply by isolating a specific quantum of supporting evidence.’” 28 1 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 2 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 3 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 4 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 5 1992)). 6 IV. 7 DISCUSSION 8 Plaintiff contends the ALJ erred at step five because he improperly relied on 9 the testimony of the vocational expert, who identified jobs that exceeded plaintiff’s 10 RFC. P. Mem. at 7-12. Specifically, plaintiff argues the ALJ erred by failing to 11 resolve a conflict between the VE’s testimony and the Dictionary of Occupational 12 Titles. 13 At step five, the burden shifts to the Commissioner to show that the claimant 14 retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 15 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not 16 disabled at step five, the Commissioner must provide evidence demonstrating that 17 other work exists in significant numbers in the national economy that the claimant 18 can perform, given his or her age, education, work experience, and RFC. 20 19 C.F.R. § 416.912(b)(3). 20 ALJs routinely rely on the DOT “in evaluating whether the claimant is able 21 to perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 22 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 416.966(d)(1) 23 (stating the DOT is a source of reliable job information). The DOT is the 24 rebuttable presumptive authority on job classifications. Johnson v. Shalala, 60 25 F.3d 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a VE’s testimony 26 regarding the requirements of a particular job without first inquiring whether the 27 testimony conflicts with the DOT, and if so, the reasons therefor. Massachi, 486 28 1 F.3d at 1152-53 (citing Social Security Ruling (“SSR”) 00-4p). But failure to so 2 inquire can be deemed harmless error where there is no apparent conflict or the VE 3 provides sufficient support to justify deviation from the DOT. Id. at 1154 n.19. 4 In order for an ALJ to accept a VE’s testimony that contradicts the DOT, the 5 record must contain “‘persuasive evidence to support the deviation.’” Id. at 1153 6 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation 7 may be either specific findings of fact regarding the claimant’s residual 8 functionality, or inferences drawn from the context of the expert’s testimony. 9 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted). 10 Here, plaintiff’s determined RFC limited her, inter alia, to simple, routine 11 tasks. AR at 21. The VE identified three jobs someone with plaintiff’s RFC could 12 perform: document preparer, touchup screener, and addresser. Id. at 57-58. The 13 ALJ asked the VE whether any of the jobs he identified had a reasoning level of 14 three. Id. at 58. The VE responded that the document preparer job was a reasoning 15 level three job. Id. The ALJ then inquired whether this job was consistent with the 16 RFC for simple and routine tasks. Id. The VE responded that they were consistent 17 because “[i]t’s unskilled work” and “[t]he reasoning level three is equated in my 18 view at a level that is at the elementary school level,” an explanation that the ALJ 19 accepted. Id. The ALJ thus fulfilled his initial obligation to inquire into whether 20 the VE’s testimony conflicted with the DOT, but was then required to obtain “a 21 reasonable explanation for the apparent conflict.” Overman v. Astrue, 546 F.3d 22 456, 463 (7th Cir. 2008) (quoting SSR 00-4p)). The question is whether the ALJ 23 obtained such an explanation from the VE or erred in relying on the VE’s 24 testimony in reconciling the conflict. 25 A. The ALJ Erred at Step Five 26 Plaintiff argues the ALJ erred at step five when he concluded that plaintiff 27 could perform the job of document preparer. P. Mem. at 7-12. Specifically, 28 1 plaintiff argues the job, which requires a reasoning level of three, is incompatible 2 with plaintiff’s RFC restricting her to simple, routine tasks, and the ALJ erred by 3 relying on the VE’s testimony explaining the inconsistency. Id. 4 Each DOT job description includes general educational development 5 (“GED”) scales for reasoning, language, and mathematics, which are “aspects of 6 education (formal and informal) which are required of the worker for satisfactory 7 job performance.” DOT, Appendix C, Section III. To determine a job’s simplicity 8 and the reasoning level required, one should look to the GED reasoning level 9 ratings for the job listed in the DOT. Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 10 (C.D. Cal. 2005). A job’s reasoning level “gauges the minimal ability a worker 11 needs to complete the job’s tasks themselves.” Id. 12 The DOT classifies the job of document preparer as having reasoning level 13 three. DOT 249.587-018. Level three reasoning assumes a person can “[a]pply 14 commonsense understanding to carry out instructions furnished in written, oral, or 15 diagrammatic form [and] [d]eal with problems involving several concrete variables 16 in or from standardized situations.” See DOT, App. C. The Ninth Circuit has held 17 that “there is an apparent conflict between the residual functional capacity to 18 perform simple, repetitive tasks, and the demands of Level 3 Reasoning.” Zavalin 19 v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). 20 The VE here testified that someone with plaintiff’s RFC could perform the 21 job of document preparer because the job was “unskilled work” and “equated in 22 [the VE’s] view at a level that is at the elementary school level. AR at 58. The 23 ALJ accepted the VE’s testimony and did not ask for any further explanation. Id. 24 In the hearing decision, the ALJ acknowledged that the document preparer job has 25 a GED reasoning level of three, but explained the inconsistency by stating that the 26 job was “consistent with simple repetitive tasks based on [the] VE’s experience 27 and knowledge.” Id. at 29. 28 1 As defendant argues, Zavalin does not resolve the dispute here. See D. 2 Mem. at 1-2. In Zavalin, the ALJ failed to identify any conflict between the VE’s 3 testimony and the DOT, and thus failed to resolve the inconsistency. 778 F.3d at 4 846-48. Here, as defendant notes, the ALJ inquired into the conflict and solicited 5 an explanation from the VE. D. Mem. at 2. But this merely shifts the inquiry to 6 whether the ALJ correctly relied on the VE’s experience and knowledge in 7 reconciling the conflict. 8 There is limited caselaw about what constitutes “a reasonable explanation 9 for the apparent conflict.” Overman, 546 F.3d at 463 (quoting SSR 00-4p)); see 10 Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (noting that to avoid 11 unnecessary appeals, “an ALJ should ordinarily ask the VE to explain in some 12 detail why there is no conflict between the DOT and the applicant’s RFC”). SSR 13 00-4p provides two examples of a reasonable explanation that would justify 14 deviating from the DOT: (1) when evidence from a VE includes information not 15 listed in the DOT; and (2) when a VE is able to provide more specific information 16 about a job or occupation than the DOT. See also Massachi, 640 F.3d 1153, n.17 17 (examples of reasonable explanations from deviating from the DOT include that 18 “the Dictionary does not provide information about all occupations, information 19 about a particular job not listed in the Dictionary may be available elsewhere, and 20 the general descriptions in the Dictionary may not apply to specific situations.”). 21 Here, the VE’s explanation relied on two grounds – that the document 22 preparer job was “unskilled work” and “[t]he reasoning level three is equated in 23 [the VE’s] view at a level that is at the elementary school level.” AR at 58. But 24 neither of these resolves the conflict between plaintiff’s limitation to simple, 25 routine tasks, and the reasoning level required of the document preparer job. 26 First, the VE explains the document preparer job is unskilled; however, a 27 job’s skill level and reasoning level are distinct categories. See Meissl, 403 F. 28 1 Supp. 2d at 983 (“A job’s [Specific Vocational Preparation (“SVP”)] is focused on 2 ‘the amount of lapsed time’ it takes for a typical worker to learn the job’s 3 duties. . . A job’s reasoning level, by contrast, gauges the minimal ability a worker 4 needs to complete the job’s tasks themselves.”). The DOT classifies the job of 5 document preparer as having an SVP rating of two, which corresponds to 6 “unskilled” work. DOT 249.587-018; SSR 00-4p (“[U]nskilled work corresponds 7 to an SVP of 1-2.”). But the DOT also classifies the document preparer job as 8 having reasoning level three. DOT 249.587-018. Accordingly, the fact that the 9 document preparer job is “unskilled” does not resolve the apparent conflict. 10 Second, the VE stated he views reasoning level three as elementary school 11 level, but this explains nothing. There is no strict correlation between reasoning 12 level and education. See Zavalin, 778 F.3d at 847 (“Contrary to the 13 Commissioner’s claim, the DOT specifically defines GED reasoning levels to 14 include ‘informal’ as well as ‘formal’ education that is required for ‘satisfactory 15 job performance’. . . Thus, there is no rigid correlation between reasoning levels 16 and the amount of education that a claimant has completed.”). More to the point, 17 however the VE views reasoning level three does not address whether a job 18 requiring reasoning level three can be performed by someone limited to simple, 19 routine tasks. The VE offered no testimony that, for example, based on his 20 experience, the particular job of document preparer involves no more than simple, 21 routine tasks. Thus, the apparent conflict recognized by the Ninth Circuit in 22 Zavalin was left unresolved here. 23 The ALJ consequently erred in relying on the VE’s testimony that plaintiff 24 could work as a document preparer. Neither of the reasons provided by the VE 25 explain how plaintiff would be able to perform a job with a reasoning level 26 apparently inconsistent with her RFC. And apart from citing the VE’s experience 27 and knowledge, the ALJ provided no additional reasoning in his hearing decision. 28 1 See AR at 29. Accordingly, neither the hearing decision nor the VE’s testimony at 2 the hearing provide a reasonable explanation that would justify deviating from the 3 DOT. 4 B. The ALJ’s Error Was Harmless 5 Defendant argues the error, if any, was harmless because plaintiff’s 6 argument relates only to the job of document preparer. See D. Mem. at 2-3. The 7 court agrees. 8 The VE identified two additional jobs requiring only reasoning level two 9 that plaintiff could perform – touchup screener, which has 13,000 positions in the 10 national economy, and addresser, which has 8,100 positions in the national 11 economy. AR at 58. Accordingly, there are more than 21,000 jobs that plaintiff 12 could still perform in the national economy even if plaintiff’s limitation to simple, 13 routine tasks precludes the job of document preparer. Plaintiff argues 21,100 jobs 14 in the national economy is not a significant number of jobs, and reversal and 15 remand are required so that the ALJ can complete the five-step sequential 16 evaluation process. P. Mem. at 11-12. 17 There is no “bright-line” rule in the Ninth Circuit for determining what 18 constitutes a “significant number” of jobs. Gutierrez v. Comm’r of Soc. Sec., 740 19 F.3d 519, 528 (9th Cir. 2014). Courts have found it “instructive” to compare cases 20 in this inquiry. See Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The 21 Ninth Circuit has held that 1,000 to 1,500 positions regionally is a significant 22 number of jobs (see Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999); Barker 23 v. Sec’y of Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989)), and 24 25,000 positions nationally is a significant number of jobs. See Gutierrez, 740 25 F.3d at 529. If either the number of regional jobs or the number of national jobs is 26 found to be significant, the court must uphold the ALJ’s decision. 42 U.S.C. 27 § 423(d)(2)(A); Beltran, 700 F.3d at 389-90. 28 1 Whether 21,100 jobs in the national economy is “significant” is not entirely 2 settled, yet the relevant caselaw indicates it is. The parties cite various cases in 3 which courts have attempted to determine what constitutes a sufficient number of 4 jobs regionally or nationally. See, e.g., Burtenshaw v. Berryhill, 2018 WL 550590, 5 at *2 (C.D. Cal. Jan. 23, 2018) (6,500 jobs in the national economy not a 6 significant number); Valencia v. Astrue, 2013 WL 1209353, at *18 (N.D. Cal. Mar. 7 25, 2013) (14,082 national jobs and 114 regional jobs not significant); Evans v. 8 Colvin, 2014 WL 3845046, at *1 (C.D. Cal. Aug. 4, 2014), aff’d, 672 Fed. Appx. 9 771 (9th Cir. 2017) (6,200 national jobs and 600 regional jobs significant); 10 Hoffman v. Astrue, 2010 WL 1138340, at *15 (W.D. Wash. Feb. 8, 2010) (9,000 11 national jobs and 150 regional jobs significant). 12 As plaintiff notes, the Ninth Circuit held in Gutierrez that 25,000 national 13 jobs was significant, but that the question was a “close call.” 740 F.3d at 529. Yet 14 the difference between 21,100 jobs and 25,000 jobs does not seem material such 15 that it would shift the close call the other way. Further, the Ninth Circuit recently 16 affirmed a decision in which 6,200 national jobs and 600 regional jobs was a 17 significant number of jobs. See Evans, 2014 WL 3845046, at *1. The Eighth 18 Circuit has also held that 10,000 national jobs is significant. See Johnson v. 19 Chater, 108 F.3d 178, 180 (8th Cir. 1997). On balance, the court finds the 20 existence of 21,100 jobs in the national economy does not fall into the category of 21 isolated jobs existing in very limited numbers. See 20 C.F.R. § 416.966(b) 22 (“Isolated jobs that exist only in very limited numbers in relatively few locations 23 outside of the region where you live are not considered work which exists in the 24 national economy.”). 25 In sum, although the ALJ erred in accepting the VE’s testimony about one 26 job that plaintiff could perform, there is substantial evidence to support the ALJ’s 27 28 11 1 || finding that plaintiff could perform other jobs in significant numbers in the 2 || national economy. Consequently, the ALJ’s error at step five was harmless. 3 V. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that Judgment shall be entered 6 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 7 || this action with prejudice. ep 9 || DATED: November 30, 2020 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 12