Barker v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 7, 2019
• Docket: 3:18-cv-08136
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Bradley Barker, No. CV-18-08136-PCT-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 INTRODUCTION 16 Plaintiff Bradley Barker (“Barker”) seeks review under 42 U.S.C. § 405(g) of the 17 final decision of the Commissioner of Social Security (“Commissioner”), which denied his 18 application for disability benefits. For the following reasons, the Court finds that the 19 administrative law judge’s (“ALJ”) decision was based on reversible legal error and 20 remands for further proceedings. 21 Barker alleges he became disabled in March 2010. (A.R. 39, 179.) In May 2014, 22 Barker filed an application for disability benefits. (A.R. 179-85.) After this claim was 23 denied (A.R. 121-24, 126-27), Barker filed a written request for a hearing. (A.R. 128.) On 24 January 20, 2017, Barker appeared and testified at a video hearing at which an impartial 25 vocational expert also appeared and testified by telephone. (A.R. 33-90.) On June 12, 26 2017, the ALJ issued a decision that Barker was not disabled within the meaning of the 27 Social Security Act. (A.R. 12-32.) The ALJ’s decision became the Commissioner’s final 28 decision when the Appeals Council denied Barker’s request for review. (A.R. 1-6.) 1 LEGAL STANDARD 2 The Court addresses only the issues raised by the claimant in the appeal from the 3 ALJ’s decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is 4 responsible for determining credibility, resolving conflicts in medical testimony, and 5 resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as 6 amended on reh’g (Aug. 9, 2001). The Court should uphold the ALJ’s decision “unless it 7 contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 8 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than 9 a preponderance.” Id. Put another way, “[i]t is such relevant evidence as a reasonable 10 mind might accept as adequate to support a conclusion.” Id. (citation omitted). The Court 11 should uphold the ALJ’s decision “[w]here evidence is susceptible to more than one 12 rational interpretation,” but the Court “must consider the entire record as a whole and may 13 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (citations 14 and internal quotation marks omitted). 15 “[H]armless error principles apply in the Social Security Act context.” Molina v. 16 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ’s error is harmless where it is 17 inconsequential to the ultimate nondisability determination.” Id. (citations and internal 18 quotation marks omitted). The Court must “look at the record as a whole to determine 19 whether the error alters the outcome of the case.” Id. Importantly, however, the Court may 20 not uphold an ALJ’s decision on a ground not actually relied on by the ALJ. Id. at 1121. 21 To determine whether a claimant is disabled for purposes of the Social Security Act, 22 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 23 burden of proof on the first four steps, and the burden shifts to the Commissioner at step 24 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 25 determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. 26 § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step 27 two, the ALJ determines whether the claimant has a “severe” medically determinable 28 physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled 1 and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 2 impairment or combination of impairments meets or medically equals an impairment listed 3 in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If so, the 4 claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 5 At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and 6 determines whether the claimant is capable of performing past relevant work. Id. 7 § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, 8 the ALJ proceeds to the fifth and final step, where he determines whether the claimant can 9 perform any other work based on the claimant’s RFC, age, education, and work experience. 10 Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 11 disabled. 12 BACKGROUND 13 At step one, the ALJ found Barker met the insured status requirements of the Social 14 Security Act through December 31, 2014 and had not engaged in substantial gainful 15 activity since March 15, 2010, the alleged onset date. (A.R. 17.) At step two, the ALJ 16 found that Barker had the following severe impairments: deep vein thrombosis (“DVT”), 17 migraine headaches, and obesity. (Id.) The ALJ also found Barker had the following non- 18 severe impairments: degenerative joint disease, obstructive sleep apnea, pancreatitis, 19 Peterson’s internal hernia, status-post laparoscopic reduction and repair status-post gastric 20 bypass, hypertension, eczema, jejunal ulcer, hypercoagulable state on Coumadin, and 21 anemia. (A.R. 18.) At step three, the ALJ determined that Barker did not have an 22 impairment or combination of impairments that met or medically equaled the severity of a 23 listed impairment. (A.R. 20.) At step four, the ALJ found that Barker “had the residual 24 functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except 25 he can perform only simple, routine tasks secondary to decreased attention and 26 concentration due to headaches.” (A.R. 21.) The ALJ further found that Barker was unable 27 to perform any past relevant work. (A.R. 24.) At step five, the ALJ found that, 28 “considering [Barker’s] age, education, work experience, and residual functional capacity, 1 there were jobs that existed in significant numbers in the national economy that [Barker] 2 could have performed,” including document preparer, call-out operator, and escort vehicle 3 driver. (A.R. 24-25.) 4 Barker argues the ALJ’s decision is defective for three reasons: (1) the ALJ erred in 5 rejecting his symptom testimony; (2) the ALJ erred in weighing treating physician Valerie 6 Guernsey’s opinions; and (3) the ALJ erred in his step-five determination. (Doc. 13.) 7 As explained below, the Court agrees that the ALJ erred in rejecting Barker’s 8 symptom testimony and weighing Dr. Guernsey’s opinions and declines to rule regarding 9 the third alleged error. 10 I. Whether the ALJ Erred in Rejecting Barker’s Symptom Testimony 11 A. Legal Standard 12 “In assessing the credibility of a claimant’s testimony regarding subjective pain or 13 the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina, 674 F.3d at 14 1112. “First, the ALJ must determine whether there is objective medical evidence of an 15 underlying impairment which could reasonably be expected to produce the pain or other 16 symptoms alleged.” Id. (citations and internal quotation marks omitted). The ALJ found 17 that Barker had satisfied this first step. (A.R. 21 [“[T]he undersigned finds that the 18 claimant’s medically determinable impairments could reasonably be expected to cause the 19 alleged symptoms . . . .”].) 20 If the first step is satisfied, and “there is no evidence of malingering, then the ALJ 21 must give specific, clear and convincing reasons in order to reject the claimant’s testimony 22 about the severity of the symptoms.” Molina, 674 F.3d at 1112 (citations and internal 23 quotation marks omitted). Such testimony can’t be rejected simply because it can’t be 24 verified by objective medical evidence. 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject 25 your statements about the intensity and persistence of your pain or other symptoms or about 26 the effect your symptoms have on your ability to work solely because the available 27 objective medical evidence does not substantiate your statements.”). Here, the ALJ did not 28 find there was evidence of malingering, so he was required to provide “specific, clear and 1 convincing reasons” to reject Barker’s testimony. 2 “A finding that a claimant’s testimony is not credible must be sufficiently specific 3 to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on 4 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 5 pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation and quotation 6 marks omitted). “General findings are insufficient; rather, the ALJ must identify what 7 testimony is not credible and what evidence undermines the claimant’s complaints.” 8 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citation omitted); see also Holohan 9 v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify 10 the testimony she or he finds not to be credible and must explain what evidence undermines 11 the testimony.”). 12 B. Barker’s Testimony 13 Barker testified that his DVT causes pain and exhaustion. (A.R. 53.) He 14 experiences leg pain daily for a few hours at a time, and it can reach up to a seven or eight 15 out of ten on the pain scale. (A.R. 53-54.) He also experiences pain in his hands every 16 few days, which can also reach up to a seven or eight out of ten. (A.R. 55.) With respect 17 to exhaustion, he testified that he has to take frequent breaks and elevate his legs while 18 performing basic tasks. (A.R. 54-55.) He testified that he only walks around for about 45 19 minutes per day and can only sit without his legs elevated for about 45 minutes per day. 20 (A.R. 57-58.) He claimed he has to elevate his legs for 30 minutes each hour. (A.R. 61.) 21 He also testified that his obesity exacerbates the pain and exhaustion. (A.R. 58-59.) 22 Barker further testified during the hearing that “since 2010” he gets migraines three 23 to four times a week. (A.R. 56.) These last for a couple hours at a time and usually require 24 him to lie in bed with no light or sound and to use a cold compress on his head or neck. 25 (A.R. 56-57.) 26 In his pain questionnaire, Barker stated he has “stabbing migraine headaches,” 27 “radiating pain in [his] arms,” and “shooting pains in his hands [and] feet.” (A.R. 255.) 28 He claimed he could stand/walk for 10 to 15 minutes and sit for 20 to 30 minutes before 1 experiencing pain. (Id.) 2 C. Analysis 3 The ALJ concluded that Barker’s “statements concerning the intensity, persistence 4 and limiting effects of these symptoms are not entirely consistent with the medical evidence 5 and other evidence in the record in the record for the reasons explained in this decision.” 6 (A.R. 21.) 7 As an initial (and dispositive) matter, the ALJ’s assertion that he rejected Barker’s 8 symptom testimony “for the reasons explained in this decision” is inaccurate—the ALJ 9 never once in his decision explicitly addressed Barker’s symptom testimony. Thus, just as 10 in Brown-Hunter, the ALJ erred in “fail[ing] to identify the testimony []he found not 11 credible.” 806 F.3d at 494. 12 The Commissioner disagrees that the ALJ’s opinion is devoid of reasoning on this 13 key point, arguing that “[t]he ALJ summarized Barker’s allegations” and “discounted” 14 these allegations because they “were inconsistent with objective medical findings.” (Doc. 15 17 at 3-4.) With all due respect to the Commissioner, this is not true. The Court has 16 carefully reviewed the ALJ’s decision multiple times and is unable to find any mention of 17 Barker’s specific testimony concerning his symptoms. Tellingly, the Commissioner’s brief 18 does not cite any part of the ALJ’s decision in which the ALJ was supposedly summarizing 19 and discounting Barker’s specific allegations. Burrell v. Colvin, 775 F.3d at 1138-39 (“The 20 government argues that Claimant’s testimony that she has, on average, one or two 21 headaches a week conflicts with the medical record. As an initial matter, the ALJ never 22 connected the medical record to Claimant’s testimony about her headaches. Although the 23 ALJ made findings . . . concerning Claimant’s treatment for headaches, he never stated that 24 he rested his adverse credibility determination on those findings. For that reason alone, we 25 reject the government’s argument that the history of treatment for headaches is a specific, 26 clear, and convincing reason to support the credibility finding.”). As noted, the Court may 27 not uphold an ALJ’s decision on a ground not actually relied on by the ALJ. Molina, 674 28 F.3d at 1121; Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) 1 (noting that court must “review the ALJ’s decision based on the reasoning and factual 2 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 3 adjudicator may have been thinking”); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 4 2001) (“[W]e cannot affirm the decision of an agency on a ground that the agency did not 5 invoke in making its decision. Thus, if the Commissioner’s contention invites this Court 6 to affirm the denial of benefits on a ground not invoked by the Commissioner in denying 7 the benefits originally, then we must decline.”) (citing SEC v. Chenery Corp., 332 U.S. 8 194, 196 (1947)). 9 Moreover, “providing a summary of medical evidence in support of a residual 10 functional capacity finding is not the same as providing clear and convincing reasons for 11 finding the claimant’s symptom testimony not credible.” Brown-Hunter, 806 F.3d at 494. 12 Here, the ALJ concluded “the medical records overall do not indicate the [DVT] would 13 result in greater exertional restrictions than provided for in the claimant’s residual 14 functional capacity” and then cited one medical record from July 17, 2012, indicating 15 “[t]here is good augmentation and compression from the common femoral through 16 popliteal veins bilaterally,” “[d]oppler spectral waveform have an unremarkable venous 17 pattern,” “[n]ormal study,” and “[t]here is no evidence of DVT.” (A.R. 21-22.) Yet the 18 ALJ also acknowledged Barker had been hospitalized for his DVT in 2010 and credited a 19 July 31, 2012 record indicating that Barker would require lifelong anticoagulation due to 20 recurring DVT. (A.R. 21.) The ALJ’s summary of the medical record regarding the DVT 21 cannot be said to constitute a clear and convincing reason for rejecting Barker’s testimony, 22 given that it still remains unclear on what basis the ALJ was rejecting Barker’s testimony 23 that his DVT requires him to elevate his legs 30 minutes out of every hour. (A.R. 61) 24 Accordingly, the ALJ erred by not providing specific, clear, and convincing reasons 25 for rejecting Barker’s symptom testimony. That error was not harmless because the 26 vocational expert testified that “[t]here would be no work for [a] person” who had to elevate 27 his legs for 30 minutes out of every hour. (A.R. 83.)

28 1 II. Whether the ALJ Erred in Weighing Treating Physician Guernsey’s Opinions 2 A. Legal Standard 3 Although “[t]he ALJ must consider all medical opinion evidence,” Tommasetti v. 4 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), there is a hierarchy among the sources of 5 medical opinions. Those who have treated a claimant are treating physicians, those who 6 examined but did not treat the claimant are examining physicians, and those who neither 7 examined nor treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 8 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion 9 of a treating source than to the opinion of doctors who did not treat the claimant.” Id. This 10 is because treating physicians have the advantage of in-person interaction and typically a 11 longer history of treatment than a claimant’s other doctors, and their “subjective judgments 12 . . . are important, and properly play a part in their medical evaluations.” Embrey v. Bowen, 13 849 F.2d 418, 422 (9th Cir. 1988). See also 20 C.F.R. § 404.1527(c)(2) (“Generally, we 14 give more weight to medical opinions from your treating sources, since these sources are 15 likely to be the medical professionals most able to provide a detailed, longitudinal picture 16 of your medical impairment(s) and may bring a unique perspective to the medical evidence 17 that cannot be obtained from the objective medical findings alone or from reports of 18 individual examinations, such as consultative examinations or brief hospitalizations.”). 19 Given this hierarchy and a treating physician’s position at the top if it, an ALJ may 20 reject uncontroverted evidence from that source “only for ‘clear and convincing’ reasons.” 21 Lester, 81 F.3d at 830. Also, “[e]ven if the treating doctor’s opinion is contradicted by 22 another doctor, the [ALJ] may not reject this opinion without providing ‘specific and 23 legitimate reasons’ supported by substantial evidence in the record for so doing.” Id. 24 (citation omitted). Where “the opinion of a nontreating source is based on independent 25 clinical findings that differ from those of the treating physician, the opinion of the 26 nontreating physician may itself be substantial evidence.” Andrews v. Shalala, 53 F.3d 27 1035, 1041 (9th Cir. 1995). An ALJ can satisfy his burden of providing specific and 28 legitimate reasons “by setting out a detailed and thorough summary of the facts and 1 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 2 Magallanes v. Bowen, 881 F.2d 747, 751–55 (9th Cir. 1989); see also Embrey, 849 F.2d at 3 421–22 (“The ALJ must do more than offer his conclusions. He must set forth his own 4 interpretations and explain why they, rather than the doctors’, are correct.”). 5 B. Relevant Medical Opinions 6 There are two opinions by Dr. Guernsey in the record. The first was completed in 7 December 2015 (A.R. 833-39) and the second was completed in March 2017 (A.R. 1080- 8 86). In both, Dr. Guernsey diagnosed Barker with major depressive disorder, post- 9 traumatic stress disorder, and ADHD. (A.R. 833, 1080.) Both contain the same limitations, 10 including extreme limitations in “maintain[ing] attention for two hour segment,” 11 “perform[ing] at a consistent pace without an unreasonable number and length of rest 12 periods” “deal[ing] with normal work stress,” “understand[ing] and remember[ing] 13 detailed instructions,” and “deal[ing] with stress of semiskilled and skilled work.” (A.R. 14 836-37, 1083-84.) Also, in both, Dr. Guernsey found that Barker’s impairments or 15 treatments would cause him to be absent from work more than three times per month (A.R. 16 835, 1082). In the December 2015 opinion, Dr. Guernsey indicated that Barker’s condition 17 had lasted for 12 months, and in response to the question, “[d]oes this assessment cover 18 from 3/15/2010 through the present,” Dr. Guernsey stated she “ha[d] only known [Barker] 19 for 4 months but he supplied historical [information].” (A.R. 833, 839.) In the May 2017 20 opinion, in response to the question whether the assessment covered May 4, 2011 through 21 the present, Dr. Guernsey stated, “[it] is reasonable and likely that the patient suffered from 22 his mental health conditions for many years, likely before the date referenced in records.” 23 (A.R. 1086.) 24 The ALJ stated he was giving Dr. Guernsey’s opinions “little weight” because “Dr. 25 Guernsey did not begin treating the claimant until September 2015, well after the 26 claimant’s December 31, 2014 date last insured.” (A.R. 19.) The ALJ noted that Dr. 27 Guernsey had diagnosed Barker with depression and post-traumatic stress disorder but did 28 not mention any of Dr. Guernsey’s other findings. (Id.) 1 The ALJ stated that he afforded “greater weight” to the opinions of the state agency 2 consultants and consultative examiner, but in that section of the decision he only cited the 3 opinion of the consultative examiner, Dr. Daniel M. Chatel, Ph.D. (A.R. 20.) Dr. Chatel 4 examined Barker in September 2014, found that Barker met the “DSM-5 diagnostic criteria 5 for Depression Not Otherwise Specified,” but also found that “the severity of [his] mental 6 health symptoms is mild overall and appears to be reasonably well controlled by his 7 antidepressant.” (A.R. 584-85.) Dr. Chatel further found that “[t]here is no evidence on 8 examination to support [Barker’s] allegation of memory loss,” and the “results of the . . . 9 evaluation indicate that [Barker’s] mild mental health symptoms alone do not preclude his 10 participation in substantial employment activities.” (Id.) 11 C. Analysis 12 Barker argues the ALJ violated Smith v. Bowen, 849 F.2d 1222 (9th Cir. 1988), by 13 disregarding Dr. Guernsey’s opinions based on the timing of when she examined him (i.e., 14 after the date he was last insured). (Doc. 13 at 11-13.) In Smith, the Ninth Circuit held 15 that “reports containing observations made after the period for disability are relevant to 16 assess the claimant’s disability” and that such reports “should not be disregarded solely on 17 [the] basis” that they were “rendered retrospectively.” 849 F.2d at 1225. See also Turner 18 v. Comm’r of Soc. Sec., 613 F.3d 1217, 1228-29 (9th Cir. 2010) (“While the ALJ must 19 consider only impairments (and limitations and restrictions therefrom) that Turner had 20 prior to the [date last insured], evidence post-dating the [date last insured] is probative of 21 Turner’s pre-[date last insured] disability.”). In response, the Commissioner cites Macri v. 22 Chater, 93 F.3d 540 (9th Cir. 1996) (Doc. 17 at 8-10), in which the Ninth Circuit stated 23 that “[t]he opinion of a psychiatrist who examines the claimant after the expiration of his 24 disability insured status . . . is entitled to less weight than the opinion of a psychiatrist who 25 completed a contemporaneous exam.” 93 F.3d at 545. 26 The Court does not view Smith and Macri as being in conflict with each other. Smith 27 holds that an ALJ can’t entirely disregard a treating physician’s opinions merely because 28 they were rendered retrospectively, while Macri holds that a retrospective opinion is 1 entitled to less weight than a contemporaneous one. These two lines of reasoning are easy 2 to synthesize—although there may be a thumb on the scale in favor of opinions flowing 3 from contemporaneous exams, an ALJ still must carefully consider retrospectively- 4 rendered opinions and can’t disregard them based solely on when they were rendered. Cf. 5 Nerurkar v. Astrue, 2010 WL 2569157, *5 n.4 (W.D. Wash. 2010), report and 6 recommendation adopted, 2010 WL 2569063 (W.D. Wash. 2010) (finding that Macri “did 7 not state that the opinion of a psychiatrist who examines the claimant after the expiration 8 of his disability insured status is entitled to no weight at all”). 9 It is unclear whether the ALJ properly applied these principles in Barker’s case. On 10 the one hand, the ALJ’s use of the phrases “little weight” and “greater weight” suggests he 11 may have been simply giving more weight to Dr. Chatel’s opinions due to their 12 contemporaneous nature—an approach that is permitted by Macri. On the other hand, the 13 sole reason proffered by the ALJ for discounting Dr. Guernsey’s opinions was timing— 14 the ALJ did not, for example, mention any of Dr. Guernsey’s specific findings or purport 15 to explain why they were unworthy of credence. (A.R. 19 [“Dr. Guernsey did not begin 16 treating the claimant until September 2015, well after the claimant’s December 31, 2014 17 last date insured. Accordingly, little weight is afforded to the statements as th[ey] post- 18 date the adjudicatory period at issue.”].) And under Smith, it is impermissible to reject 19 such opinions based solely on timing. 20 The Commissioner offers other reasons the ALJ could have rejected Dr. Guernsey’s 21 opinions, asserting that (1) Dr. Guernsey’s opinions “did not accurately reflect Barker’s 22 condition on or before December 31, 2014” because by September 2015, “Barker had 23 experienced substantial worsening of his mental symptoms” and (2) Dr. Guernsey’s 24 “conclusion [that Barker’s condition had lasted for 12 months] was not based on any 25 objective criteria, but on Barker’s self-reported history of his symptoms, which the ALJ 26 found not credible.” (Doc. 17 at 8-10.) This approach is unavailing because, as with the 27 issue discussed above, the Court may not uphold an ALJ’s decision on a ground not 28 actually relied on by the ALJ. Molina, 674 F.3d at 1121; Bray, 554 F.3d at 1225; Pinto, 1 249 F.3d at 847-48. 2 Accordingly, the ALJ erred by rejecting Dr. Guernsey’s opinion without providing 3 specific and legitimate reasons that are supported by substantial evidence. That error was 4 not harmless because Dr. Guernsey found that Barker’s impairments or treatments would 5 cause him to be absent from work more than three times per month (A.R. 835, 1082) and 6 the vocational expert testified that “[t]here would be no work for [a] person” who would 7 be absent from work more than three days per month (A.R. 83-84). 8 III. Whether the ALJ Erred at Step Five 9 At step five, the ALJ found that, “considering [Barker’s] age, education, work 10 experience, and residual functional capacity, there were jobs that existed in significant 11 numbers in the national economy that [Barker] could have performed,” including document 12 preparer, call-out operator, and escort vehicle driver. (A.R. 24-25.) 13 Barker argues the ALJ erred at step five for two reasons: (1) the ALJ found he was 14 limited to performing simple, routine tasks, so he was not capable of performing two of the 15 three jobs the ALJ identified (document preparer and call-out operator) because they 16 require Level 3 reasoning; and (2) the remaining job (escort vehicle driver) does not exist 17 in significant enough numbers in the national economy. (Doc. 13 at 5-9.) 18 The Commissioner responds that (1) “[t]he occupations the ALJ identified at step 19 five are consistent with Barker’s cognitive ability” and (2) “even if this Court finds an 20 apparent conflict regarding Barker’s residual functional capacity and the two jobs requiring 21 Level 3 Reasoning, substantial evidence still supports the ALJ’s step five finding because 22 the ALJ found Barker could work as an escort vehicle driver, which required only Level 2 23 reasoning,” the vocational expert testified that there are approximately 20,300 escort driver 24 positions in the national economy, and “the Commissioner submits 20,300 is a significant 25 number of jobs in the national economy.” (Doc. 17 at 10-14.) 26 At step five, “the Commissioner has the burden to identify specific jobs existing in 27 substantial numbers in the national economy that [a] claimant can perform despite [his] 28 identified limitations.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (citation and 1 internal quotation marks omitted). “The ALJ first assesses a claimant’s ‘residual functional 2 capacity,’ defined as the most that a claimant can do despite ‘physical and mental 3 limitations’ caused by his impairments and related symptoms.” Id. (quoting 20 C.F.R. 4 § 416.945(a)(1)). “The ALJ then considers potential occupations that the claimant may be 5 able to perform.” Id. To do so, “the ALJ relies on the DOT, which is the SSA’s ‘primary 6 source of reliable job information’ regarding jobs that exist in the national economy.” Id. 7 at 845-46 (citations omitted). “The DOT describes the requirements for each listed 8 occupation, including the necessary General Educational Development (‘GED’) levels; 9 that is, ‘aspects of education (formal and informal) . . . required of the worker for 10 satisfactory job performance.’” Id. at 846 (quoting DOT, App. C, 1991 WL 688702 (4th 11 ed. 1991)). The GED levels range from Level 1 to Level 6 and include “the reasoning 12 ability required to perform the job.” Id. The ALJ also “relies on the testimony of 13 vocational experts who testify about specific occupations that a claimant can perform in 14 light of his residual functional capacity” and concludes step five by “determin[ing] 15 whether, given the claimant’s [residual functional capacity], age, education, and work 16 experience, he actually can find some work in the national economy.” Id. (citation and 17 internal quotation marks omitted). 18 “When there is an apparent conflict between the vocational expert’s testimony and 19 the DOT. . . the ALJ is required to reconcile the inconsistency.” Id. “The ALJ must ask 20 the expert to explain the conflict and then determine whether the vocational expert’s 21 explanation for the conflict is reasonable before relying on the expert’s testimony to reach 22 a disability determination.” Id. (citation and internal quotation marks omitted). 23 In Zavalin, the Ninth Circuit “h[e]ld that there is an apparent conflict between the 24 residual functional capacity to perform simple, repetitive tasks, and the demands of Level 25 3 Reasoning.” Id. at 847.1 It further held that “the ALJ erred in failing to reconcile this 26 apparent conflict” by “fail[ing] to recognize an inconsistency” and therefore “not ask[ing]

27 1 Although the Zavilin court used the phrase “simple, repetitive tasks” in its holding, the court elsewhere used the phrases “simple, routine, or repetitive work” and “simple, 28 routine tasks,” 778 F.3d at 845-46, suggesting that the holding applies where an ALJ uses any combination of those words in an RFC. 1 the expert to explain why a person with Zavalin’s limitation could nevertheless meet the 2 demands of Level 3 Reasoning.” Id. 3 Here, in response to the ALJ’s hypothetical involving an individual “limited to the 4 performance of only simple, routine tasks,” the vocational expert testified that such an 5 individual could perform the jobs of document preparer (DOT 249.587-018), call-out 6 operator (DOT 237.367-014), and escort vehicle driver (DOT 919.663-022). In his 7 decision, the ALJ then included the limitation of “simple, routine tasks” in Barker’s RFC 8 and found Barker could perform the three jobs the vocational expert had identified. (A.R. 9 21, 25.) Yet, both document preparer and call-out operator require Level 3 reasoning. 10 Document Preparer, DOT 249.587-018, available at 1991 WL 672349; Call-Out 11 Operator, DOT 237.367-014, available at 1991 WL 672186. Per Zavilin, there is an 12 apparent conflict between Barker’s RFC and the reasoning demands of the jobs of 13 document preparer and call-out operator. The ALJ, thus, erred in failing to reconcile this 14 conflict by asking the vocational expert to “explain why a person with [Barker’s] limitation 15 could nevertheless meet the demands of Level 3 Reasoning.” Zavilin, 778 F.3d at 847. 16 And because the ALJ did not recognize the conflict, he did not otherwise resolve it in his 17 decision. 18 The Court next considers whether the ALJ’s error is harmless, given that the ALJ 19 identified a third job Barker does not dispute he is capable of performing—escort vehicle 20 driver—for which 20,300 jobs exist in the national economy. (A.R. 25, 82-83.) Under the 21 Social Security Act:

22 [A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is 23 not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial 24 gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a 25 specific job vacancy exists for him, or whether he would be hired if he applied for work. 26 42 U.S.C. § 1382c(a)(3)(B). “[W]ork which exists in the national economy” is defined as 27 “work which exists in significant numbers either in the region where such individual lives 28 or in several regions of the country.” Id. The accompanying regulations indicate that 1 “[i]solated jobs that exist only in very limited numbers in relatively few locations outside 2 of the region where you live are not considered work which exists in the national 3 economy.” 20 C.F.R. § 416.966(b). 4 On one end of the spectrum, the Ninth Circuit has held that 25,000 jobs in several 5 regions of the economy “presents a close call” but ultimately “represents a significant 6 number of jobs,” thus satisfying 42 U.S.C. § 1382c(a)(3)(B). Gutierrez v. Comm’r of Soc. 7 Sec., 740 F.3d 519, 529 (9th Cir. 2014). On the other end, the Ninth Circuit has held that 8 1,680 jobs in several regions does not satisfy the statute. Beltran v. Astrue, 700 F.3d 386, 9 390-91 (9th Cir. 2012). Given that the Court is remanding for further proceedings, and the 10 RFC may be different after the ALJ appropriately considers all the evidence, the Court will 11 decline to rule at this time whether 20,300 jobs is significant. Lyons v. Comm’r of Soc. 12 Sec. Admin., 2018 WL 3688985, *2 (D. Ariz. 2018) (“[T]he Court concludes that the wiser 13 course of action is to permit the ALJ in the first instance to weigh in on whether 15,789 is 14 a significant number of jobs.”). 15 IV. Scope of Remand 16 “When the ALJ denies benefits and the court finds error, the court ordinarily must 17 remand to the agency for further proceedings before directing an award of benefits.” Leon 18 v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). This applies particularly “[i]f additional 19 proceedings can remedy defects in the original administrative proceeding.” Garrison v. 20 Colvin, 759 F.3d 995, 1019 (9th Cir. 2014) (citation omitted). But there is an exception to 21 this rule, known as the “credit-as-true” rule, under which the court may remand with 22 instructions to calculate and award benefits. For this rule to apply, a three-part test must 23 be satisfied:

24 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 25 legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were 26 credited as true, the ALJ would be required to find the claimant disabled on remand. 27 Id. at 1020. Importantly, however, courts are required “to remand for further proceedings 28 1 || when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of 2 || the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 3|| 759 F.3d at 1021 (citation omitted). 4 Here, although Barker requested remand for an award of benefits, he did not address || why or how he could satisfy the credit-as-true rule. (Doc. 13 at 18.) The Court declines to 6|| remand for an award of benefits because further administrative proceedings would 7\| arguably serve a useful purpose and because the record as a whole “creates serious doubt || that [Barker] is, in fact disabled.” Garrison, 759 F.3d at 1021. The ALJ cited various medical records and medical opinions in support of his RFC finding, and upon remand, it 10 || may be possible for the ALJ to use this same evidence to properly consider and reject |} Barker’s symptom testimony and Dr. Guernsey’s opinions. 12 Accordingly, IT IS ORDERED that the final decision of the Commissioner of 13 || Social Security is vacated, and this case is remanded for further proceedings consistent □□ with this opinion. The Clerk shall enter judgment accordingly and terminate this case. 15 Dated this 7th day of August, 2019. 16 17 Pe 18 fue 19 United States District Judge 20 21 22 23 24 25 26 27 28

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