Dillon v. Saul

• Court: District Court, D. Nevada
• Decided: March 24, 2021
• Docket: 3:20-cv-00294
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 SHAUN ROY DILLON, 3:20-cv-00294-CLB 5 Plaintiff, 6 v. ORDER 7 ANDREW SAUL,

8 Defendant. 9

10 11 This case involves the judicial review of an administrative action by the 12 Commissioner of Social Security (“Commissioner”) denying Shaun Dillon’s (“Dillon”) 13 application for disability insurance benefits and supplemental security income pursuant to 14 Titles II and XVI of the Social Security Act. Currently pending before the court is Dillon’s 15 motion for reversal and/or remand. (ECF No. 17.) In this motion, Dillon seeks the reversal 16 of the administrative decision and remand for an award of benefits. (Id.) The 17 Commissioner filed a response and cross-motion to remand (ECF Nos. 21, 22), and Dillon 18 filed a reply (ECF No. 23). The parties agree the case should be reversed and remanded, 19 but disagree on whether the court should remand for further administrative proceedings 20 or for payment of benefits. Having reviewed the pleadings, transcripts, and the 21 Administrative Record (“AR”), the court concludes the Commissioner failed to carry the 22 burden of production that Dillon could perform other types of substantially gainful work in 23 the national economy. Therefore, the court grants Dillon’s motion for reversal and remand 24 for an award of benefits (ECF No. 17) and denies the Commissioner’s motion for remand 25 for further proceedings (ECF No 21). 26 /// 27 /// 28 /// 1 I. STANDARDS OF REVIEW 2 A. Judicial Standard of Review 3 This court’s review of administrative decisions in social security disability benefits 4 cases is governed by 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 5 (9th Cir. 2002). Section 405(g) provides that “[a]ny individual, after any final decision of 6 the Commissioner of Social Security made after a hearing to which he was a party, 7 irrespective of the amount in controversy, may obtain a review of such decision by a civil 8 action ... brought in the district court of the United States for the judicial district in which 9 the plaintiff resides.” The court may enter, “upon the pleadings and transcript of the record, 10 a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 11 Security, with or without remanding the cause for a rehearing.” Id. 12 The court must affirm an Administrative Law Judge’s (“ALJ”) determination if it is 13 based on proper legal standards and the findings are supported by substantial evidence 14 in the record. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 15 see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any 16 fact, if supported by substantial evidence, shall be conclusive”). “Substantial evidence is 17 more than a mere scintilla but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 18 1211, 1214 n.1 (9th Cir. 2005) (internal quotation marks and citation omitted). “It means 19 such relevant evidence as a reasonable mind might accept as adequate to support a 20 conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 21 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 22 L.Ed. 126 (1938)); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 23 To determine whether substantial evidence exists, the court must look at the 24 administrative record as a whole, weighing both the evidence that supports and 25 undermines the ALJ’s decision. Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995) 26 (citation omitted). Under the substantial evidence test, a court must uphold the 27 Commissioner’s findings if they are supported by inferences reasonably drawn from the 28 record. Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 1 “However, if evidence is susceptible of more than one rational interpretation, the decision 2 of the ALJ must be upheld.” Orteza, 50 F.3d at 749 (citation omitted). The ALJ alone is 3 responsible for determining credibility and for resolving ambiguities. Meanel v. Apfel, 172 4 F.3d 1111, 1113 (9th Cir. 1999). 5 It is incumbent on the ALJ to make specific findings so that the court does not 6 speculate as to the basis of the findings when determining if substantial evidence supports 7 the Commissioner’s decision. The ALJ’s findings should be as comprehensive and 8 analytical as feasible and, where appropriate, should include a statement of subordinate 9 factual foundations on which the ultimate factual conclusions are based, so that a 10 reviewing court may know the basis for the decision. See Gonzalez v. Sullivan, 914 F.2d 11 1197, 1200 (9th Cir. 1990). 12 B. Standards Applicable to Disability Evaluation Process 13 In determining disability, the ALJ, considers a five-step sequential evaluation 14 process. The burden rests upon the claimant through the first four steps of this five-step 15 process to prove disability, and if the claimant is successful at each of the first four levels, 16 the burden shifts to the Commissioner at step five. Roberts v. Shalala, 66 F.3d 179, 182 17 (9th Cir. 1995). First, the claimant must prove he is not currently engaged in substantial 18 gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant 19 must prove his impairment is “severe” in that it “significantly limits his physical or mental 20 ability to do basic work activities….” 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three 21 the ALJ must conclude the claimant is disabled if he proves that his impairments meet or 22 are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart 23 P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 24 416.926. Prior to considering step four, the ALJ must first determine the individual’s 25 residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is 26 a function-by-function assessment of the individual’s ability to do physical and mental 27 work-related activities on a sustained basis despite limitations from impairments. SSR 96- 28 8p. At step four, the claimant bears the burden of proving he or she is incapable of meeting 1 the physical and mental demands of their past relevant work. 20 C.F.R. §§ 404.1520(f), 2 416.920(f). If the claimant is successful at all four of the preceding steps, the burden shifts 3 to the Commissioner to prove, considering claimant’s residual functional capacity, age, 4 education, and past work experience, that he or she is capable of performing other work. 5 20 C.F.R. §§ 404.1520(g), 416.920(g). The Commissioner is responsible for providing 6 evidence that demonstrates that other work exists in significant numbers in the national 7 economy that the individual can do. Lockwood v. Comm’r, Soc. Sec. Admin., 616 F.3d 8 1068, 1071 (9th Cir. 2010). 9 II. CASE BACKGROUND 10 A. Procedural History 11 Dillon applied for disability insurance benefits (“DIB”) and supplemental security 12 income (“SSI”) on May 9, 2013 with an alleged disability onset date of March 1, 2013. 13 (Administrative Record (“AR”) 230-36, 237-42.) The Commissioner denied the claim on 14 October 15, 2013 (AR 140-44), and upon reconsideration (AR 152-57, 158-63). Dillon 15 subsequently requested an administrative hearing on August 27, 2014. (AR 166-168.) 16 Dillon appeared at a hearing before an ALJ on November 13, 2015. (AR 39-76.) Dillon 17 received an unfavorable decision on February 26, 2016. (AR 16-38.) Dillon requested an 18 Appeals Council review of the decision on (AR 228-29) and was denied review on August 19 1, 2017 (AR 1-9), whereupon the ALJ’s decision became the final decision of the 20 Commissioner. 21 Dillon then filed a civil action, and the court reversed and remanded the claim, 22 finding the ALJ failed to consider the prescribed use of a cane, and failed to state clear 23 and convincing reasons for finding Dillon’s testimony uncredible regarding sitting 24 limitations. Dillon v. Berryhill, 3:17-CV-00597-LRH-WGC, 2018 WL 3521403 (D. Nev. 25 June 18, 2018), report and recommendation adopted, 2018 WL 3518456 (D. Nev. July 19, 26 2018) (“Dillon I”). This court decided it need not reach the issue regarding the 27 obsolescence of work as an addresser. (AR 965-66.) 28 1 On remand, a hearing was conducted on February 5, 2020 (AR 883-930), and the 2 ALJ gave an unfavorable decision on March 4, 2020, whereupon Dillon did not file an 3 exception. (AR 883-930.) As a result, the decision of the ALJ became the final decision 4 of the Commissioner on May 3, 2020, and Dillon filed a complaint for judicial review on 5 May 19, 2020. (ECF No. 1.) 6 B. ALJ’s Decision 7 In the written decision, the ALJ followed the five-step sequential evaluation process 8 set forth in 20 C.F.R. §§ 404.1520 and 416.920. (AR 850-82.) Ultimately, the ALJ 9 disagreed that Dillon had been disabled from March 21, 2002, through the date of the 10 decision. (AR 855.) The ALJ held that Dillon was unable to perform past relevant work 11 as a construction worker, but based on Dillon’s RFC, age, education, and/ work 12 experience, he could perform a significant number of other jobs in the national economy. 13 (Id.) 14 In making this determination, the ALJ started at step one. Here, the ALJ found 15 Dillon had not engaged in substantial gainful activity March 21, 2002. (AR 856.) At step 16 two, the ALJ found Dillon had the following severe impairments: back disorder, seizure 17 disorder, neck disorder, chronic pain syndrome, hip disorder, morbid obesity, and 18 depression. (AR 857.) At step three, the ALJ found Dillon did not have an impairment or 19 combination of impairments that either met or medically equaled the severity of those 20 impairments listed in 20 C.F.R. Part 404, Subpart P, Appx. 1; 20 C.F.R. §§ 404.1520(d), 21 404.1525, 404.1526. (Id.) 22 Next, the ALJ determined Dillon had an RFC to perform sedentary work as defined 23 by 20 C.F.R. §§ 404.1567(h) and 416.967(h) except: 24 [Dillion] needs a cane to ambulate and he could never operate foot controls. He could occasionally climb ramps and stairs, but never climb ladders, ropes 25 or scaffolds. He could occasionally stoop, crouch and balance, but never kneel or crawl. He could occasionally be exposed to vibration, but never be 26 exposed to temperature extremes, wetness, high humidity, and atmospheric 27 irritants, such as dust, odors, fumes and gases. He could never work at exposed heights, but could occasionally work around moving machinery. He 28 1 could perform routine and repetitive work and he would be off task 5 percent of the workday. 2 3 (AR 858-59.) At step four, based on this RFC, the ALJ found that Dillon would be incapable of 4 performing past relevant as a construction worker in the national economy, which was 5 given an exertion level of heavy.1 (AR 867.) 6 At step five, the ALJ, accepted testimony of the vocational expert (“VE”) and, found 7 that an individual of Dillon’s age, education, work experience, and residual functional 8 capacity could perform work in the national economy. Specifically, the ALJ determined 9 Dillon could perform the work of: (1) bench hand representing 8,000 jobs in the nation; (2) 10 a cutter-and-paster representing 11,000 jobs in the nation; and (3) a table worker 11 representing 1,100 jobs in the nation. (AR 868-69.) Accordingly, the ALJ held that Dillon 12 had not been under a disability since March 21, 2002 and denied his claim. (Id.) 13 III. ISSUE 14 Dillon and the Commissioner agree the case should be remanded based on the 15 inadequacy of the ALJ’s step five analysis. Accordingly, the court will only address 16 whether remand for further proceedings or for an award of benefits is proper. 17 IV. DISCUSSION 18 A. Remand for Further Award of Benefits 19 Both Dillon and the Commissioner agree that remand is appropriate in this case. 20 (See ECF Nos. 17, 21.) “The decision whether to remand a case for additional evidence, 21 or simply to award benefits is within the discretion of the court.” Sprague v. Bowen, 812 22 F.2d 1226, 1232 (9th Cir. 1987); Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985); see 23 also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (amended Feb. 5, 2016) 24 (“The only issue on appeal is whether the district court abused its discretion in remanding 25 26 27 1 Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§ 404.1567(d), 28 1 for further proceedings instead of remanding for benefits.”); Terry v. Sullivan, 903 F.2d 2 1273, 1280 (9th Cir. 1990) (noting that the court has the “discretion to remand so that the 3 Secretary may further develop the record”). 4 Our case law precludes a district court from remanding a case for an award of 5 benefits unless certain prerequisites are met. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th 6 Cir. 2014) (discussing Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014). A district court 7 may remand a case to an ALJ with instructions to award benefits only where all three 8 prongs of the credit-as-true test are met. Garrison, 759 F.3d at 1020. Under that test, (1) 9 the record must be fully developed, such that further administrative proceedings would 10 serve no purpose; (2) the ALJ must have failed to articulate legally sufficient reasons for 11 rejecting medical opinion evidence or claimant's testimony; and (3) if on remand the 12 rejected evidence were credited as true, the ALJ would be required to find the claimant 13 disabled. Id. Even in the “rare circumstances” where the test is satisfied, a court may find 14 that remand for further proceedings is appropriate. Treichler v. Comm'r of Soc. Sec. 15 Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). 16 First, the court finds the record has been fully developed and further administrative 17 proceedings would serve no useful purpose. The matter has already been remanded once 18 after the court held the Commissioner failed to carry his burden at step five of the 19 sequential evaluation process. Dillon v. Berryhill, 3:17-CV-00597-LRH-WGC, 2018 WL 20 3521403 at * 10 (D. Nev. June 18, 2018), report and recommendation adopted, 2018 WL 21 3518456 (D. Nev. July 19, 2018). In the case at bar, the ALJ was put on notice during the 22 administrative hearing by Dillon’s counsel that 20,100 jobs nationally were not a significant 23 number to justify a finding of non-disability. (AR 929.) Ninth Circuit precedent is clear that 24 when an ALJ finds fewer than 25,000 in the national economy, he must provide an 25 explanation as to its sufficiency. See Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 26 519, 527-29 (9th Cir. 2014). Therefore, the ALJ had sufficient opportunity to inquire upon 27 the vocational expert whether there were additional occupations in the national economy 28 or to provide an explanation as to why this number of positions would be sufficient. 1 Additionally, this case is similar to a recent case from this district, Halde v. Saul, 2 2020 WL 4470445 (D. Nev. August 3, 2020). In Halde, the court held a remand for benefits 3 was appropriate, opining the Commissioner should not have another opportunity to show 4 that the claimant was not credible any more than the claimant should have another 5 opportunity to remand should he have lost. Id. at *11. Remand for further proceedings is 6 only appropriate where further development of the record is warranted. Garrison, 759 7 F.3d at 1021. However, this case has already been remanded once, Dillon’s medical 8 maladies are well documented, and further exposition would not aid an ALJ in his analysis. 9 The second prong of the credit-as-true test is also satisfied, as the ALJ failed to 10 provide any legally sufficient reason supported by substantial evidence that Dillon could 11 perform other work in the national economy. (AR 856-69.) The ALJ was noticed at the 12 hearing that the number of jobs was at issue was only 20,100 based on the three positions 13 identified by the vocational expert. (AR 929.) However, the ALJ failed to provide any 14 reasons in his opinion why he accepted 20,100 jobs as sufficient to support a finding of 15 non-disability – even after Dillon’s counsel pointed out that this was an insufficient number 16 to satisfy the finding of disability. (AR 868-69, 929.) 17 Lastly, the third prong of the credit-as-true test is also satisfied because if the 18 evidence at step five, that there were only 20,100 jobs in the national economy were 19 credited as true, the ALJ would be required to find Dillon disabled on remand. (AR 869, 20 929.) Furthermore, both parties agree that the occupation of cutter-and-paster should be 21 removed because it is likely obsolete. (ECF Nos. 17 at 14-18; 23 at 3.) Removing cutter- 22 and-paster leaves only 9,100 jobs in the national economy which is far below the 25,000- 23 job threshold. See Gutierrez, 740 F.3d at 529; see also Randazzo v. Berryhill, 725 Fed. 24 Appx. 446, 448 (9th Cir. 2017) (unpublished) (10,000 jobs was insufficient); Lemauga v. 25 Berryhill, 686 Fed. Appx. 420, 422 (9th Cir. 2017) (12,600 jobs was insufficient); Johnson 26 v. Berryhill, 2019 WL 21923113, at *3 (D. Nev. May 21, 2019) (23,271 jobs was per se 27 insufficient). The effect of removing cutter-and-paster therefore confirms the third element 28 1 of the credit-as-true test is met, and further supports the implication that an award of 2 benefits is appropriate. 3 The standard for a remand for benefits is one of discretion by the court and is only 4 appropriate in rare and exceptional cases. Sprague, 812 F.2d at 1232. However, the 5 Commissioner does not get unlimited opportunities to correct harmful error at the cost of 6 the claimant. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 7 2014) (an award of benefits is appropriate where equitable concerns about the length of 8 time since claimant filed application justifies prophylactic action). In Treichler, the Ninth 9 Circuit has specifically endorsed departing from the ordinary remand rule as a 10 “prophylactic measure” to justify “equitable concerns about the length of time that had 11 elapsed since the claimant had filed her application.” Treichler, 775 F.3d at1100 (9th Cir. 12 2014). In Vasquez v. Astrue, the Ninth Circuit has applied the credit-as-true test due to a 13 claimant's advanced age and “severe delay” of seven years in her application. Vasquez v. 14 Astrue, 572 F.3d 586, 593-94 (9th Cir. 2009). Although Dillon is not necessarily at an 15 advanced age, nearly eight years have elapsed since Dillon first applied for benefits in 16 May 2031. Given this substantial delay, the Commissioner has had ample opportunity in 17 that time to present availing reasons for a denial of benefits, if such a denial were 18 appropriate. Therefore, the court finds this case presents such an exceptional 19 circumstance that the credit-as-true test should be applied. Therefore, the record directs 20 a finding that Dillon is disabled and directs an award of benefits. 21 V. CONCLUSION 22 Based on the foregoing, IT IS THEREFORE ORDERED that Dillon’s motion for 23 remand for an award of benefits (ECF No. 17) is GRANTED, and the Commissioner’s 24 cross-motion to remand for further proceedings (ECF No. 21) is DENIED; 25 IT IS FURTHER ORDERED that this case be REMANDED for an award of benefits; 26 and, 27 28 1 IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT 2 || accordingly and CLOSE this case. 3 DATED: March 24, 2021 »

9 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28