Herlickman v. Saul

• Court: District Court, S.D. California
• Decided: March 29, 2021
• Docket: 3:19-cv-02446-AGS
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 BARRY H., Case No.: 3:19-cv-2446-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTIONS (ECF 15 & 18) 5 v. 6 Andrew M. SAUL, Commissioner of Social Security, 7

8 Defendant. 9 10 This case turns on the meaning of “hazards.” A judge denied plaintiff’s 11 Social Security disability-benefits application, concluding that he could still work as an 12 electronics technician, but that he must avoid “hazards . . . such as unprotected heights 13 and/or dangerous machinery.” But the Labor Department defines “hazards” as including 14 “electrical shock,” and plaintiff argues that he cannot resume his electronics trade without 15 encountering that danger. The government responds that the judge merely restricted 16 plaintiff from certain hazards: “unprotected heights and/or dangerous machinery.” This 17 Court must decide which reading prevails. 18 BACKGROUND 19 In 1989 and 2001, plaintiff Barry H. was involved in accidents that left him with 20 back, neck, and shoulder issues. (AR 23, 44, 52, 254.) He returned to his work as an 21 electronics technician but was laid off in 2015. (AR 23-24, 254.) The next year he sought 22 disability benefits due to worsening pain. (AR 17, 25, 254.) 23 An Administrative Law Judge confirmed that Barry had severe “degenerative disc 24 disease of the cervical and lumbar spine.” (AR 20.) Among other things, the ALJ found 25 that Barry was restricted to “light work,” that he couldn’t “climb ladders, ropes, and 26 scaffolds,” and that he “must avoid concentrated exposure to hazards in the workplace such 27 as unprotected heights and/or dangerous machinery.” (AR 22, 24.) 28 1 With these limitations in mind, the ALJ turned to a vocational expert. The expert 2 testified that—even with the proposed hazards restriction—Barry could do “his past work 3 as it is generally performed in the national economy.” (AR 26, 55-56.) The expert further 4 testified that his opinion was consistent with the description of an electronics technician in 5 the Labor Department’s Dictionary of Occupational Titles, a compendium of American 6 vocational data and requirements. (AR 55-56.) So the ALJ determined that Barry could 7 resume his electronics-technician job with some limitations. (AR 25-26.) The ALJ then 8 denied Barry’s disability-benefits application and never ascertained whether he could do 9 other jobs. (AR 26.) 10 STANDARD OF REVIEW 11 The Social Security Administration’s “denial of benefits” may be set aside “when 12 the ALJ’s findings are based on legal error or are not supported by substantial evidence in 13 the record as a whole.” Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 14 (9th Cir. 2000); see also 42 U.S.C. § 405(g). When “the evidence is susceptible to more 15 than one rational interpretation,” a court must defer to the ALJ. See Vasquez v. Astrue, 16 572 F.3d 586, 591 (9th Cir. 2008) (citation omitted). Even when the ALJ errs, “we must 17 affirm if the error is harmless.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). 18 DISCUSSION 19 Barry contends that the vocational expert’s testimony contradicted the Dictionary of 20 Occupational Titles and that the ALJ failed to address the discrepancy. 21 A. The Dictionary and the Vocational Expert’s Testimony 22 In its disability determinations, the “Social Security Administration relies primarily 23 on the Dictionary of Occupational Titles for information about the requirements of work 24 in the national economy.” Buck v. Berryhill, 869 F.3d 1040, 1051 n.3 (9th Cir. 2017). 25 Whenever a vocational expert’s testimony is in “obvious or apparent” conflict with the 26 Dictionary, the ALJ must “sua sponte investigate and resolve the conflict.” Ford v. Saul, 27 950 F.3d 1141, 1160 (9th Cir. 2020). To decide whether such a conflict exists here, the 28 Court must first determine what the ALJ meant by the term “hazards.” 1 1. Hazards 2 A supplement to the Dictionary defines “hazards” to include “moving mechanical 3 parts of equipment, tools, or machinery; electrical shock; working in high, exposed places; 4 exposure to radiation; working with explosives; and exposure to toxic, caustic chemicals.” 5 Appendix D: Environmental Conditions, Selected Characteristics of Occupations Defined 6 in the Revised Dictionary of Occupational Titles (emphasis added). This definition was 7 also adopted by Social Security Ruling 96-9P. See SSR 96-9P, 1996 WL 374185, at *9 8 (Jul. 2, 1996). And courts routinely rely on this definition in Social Security cases 9 analyzing “hazards.” See, e.g., French v. Berryhill, No. EDCV 17-0566-KS, 2018 WL 10 1322106, at *8 (C.D. Cal. Mar. 13, 2018) (referring to Social Security Ruling 96-9P as “the 11 [Social Security] Commissioner’s own relevant definition of ‘hazards’”); Novoa v. Colvin, 12 No. CV 13-00219-MAN, 2014 WL 3854369, at *7-8 (C.D. Cal. Aug. 6, 2014) (relying on 13 this same definition when the “ALJ did not expand upon his definition of ‘hazard’”); 14 Cranfill v. Colvin, No. 1:10CV925, 2013 WL 1736597, at *8 (M.D.N.C. Apr. 9, 2013) 15 (using Social Security Ruling 96–9p “to define the term ‘hazardous’”). 16 On the other hand, the government maintains that the ALJ did not use the term in its 17 general sense, but instead “identified specific hazards . . . that pertained to Plaintiff.” 18 (ECF 18, at 5.) Barry disagrees, arguing that the phrase “such as” signals that the two 19 specified hazards were “not an all-exhaustive list.” (ECF 19, at 6 (emphasis added).) 20 Courts have confronted this “such as” debate before. For example, in Eddie v. 21 Berryhill, the ALJ restricted claimant from “concentrated exposure to . . . hazards such as 22 dangerous, moving machinery.” No. 5:16-CV-801-D, 2017 WL 4002147, at *7 (E.D.N.C. 23 Aug. 24, 2017) (emphasis added), adopted, 2017 WL 3995813 (E.D.N.C. Sept. 11, 2017). 24 As here, the government argued, “[H]ad the ALJ meant ‘all hazards,’ he would have said 25 so” and thus “the use of ‘such as’ was meant to limit the types of hazards to dangerous, 26 moving machinery.” Id. Relying on Social Security Ruling 96-9P, the Eddie claimant 27 insisted on the full definition of “hazards,” which covers “exposure to toxic, caustic 28 chemicals.” Id. The court sided with claimant because it wasn’t “evident from the ALJ’s 1 decision” why he would place limits on the hazard of “dangerous, moving machinery, but 2 not the other hazards.” Id. And the court noted that “if the ALJ only intended to limit 3 Claimant’s exposure to dangerous, moving machinery, there was no reason to use the 4 broader term hazards.” Id. 5 Other courts considering the “such as” issue agree with Eddie. See Alexey M. K. v. 6 Saul, No. 18-CV-03149-TSH, 2019 WL 3772189, at *8-9 (N.D. Cal. Aug. 12, 2019) 7 (finding that “hazards such as unprotected heights and moving machinery” included 8 “exposure to toxic, caustic chemicals”); Vickers v. Colvin, No. EDCV 12-1445 AJW, 9 2013 WL 3071257, at *6 (C.D. Cal. June 18, 2013) (using the full Social Security 10 definition to analyze “hazards such as machinery and heights”); Peterson v. Astrue, 11 No. CIV. 10-138-JE, 2011 WL 1131495, at *4-5 (D. Or. Mar. 2, 2011) (same), adopted, 12 2011 WL 1114183 (D. Or. Mar. 28, 2011); cf. Cephas v. Colvin, No. CV 15-1121-RGA, 13 2017 WL 384695, at *4, 6 (D. Del. Jan. 26, 2017) (noting that the ALJ explicitly clarified 14 a more limited “hazards” definition by writing “hazards, defined as heights and moving 15 machinery” and that the ALJ spelled out that specific definition for the vocational expert). 16 Barry’s case echoes Eddie, too. Under the government’s reading, six words in the 17 hazards restriction (italicized here for emphasis) serve no purpose: “avoid concentrated 18 exposure to hazards in the workplace such as unprotected heights and/or dangerous 19 machinery.” (AR 22.) Put another way, “if the ALJ only intended to limit Claimant’s 20 exposure to” two dangers, “there was no reason to use the broader term hazards.” See 21 Eddie, 2017 WL 4002147, at *7. Also, the ALJ’s hazards restriction was based on 22 “[c]laimant’s diagnosis of degenerative disc disease, along with his report of pain, 23 radiculopathy and his unsubstantiated complaint of vertigo.”1 (AR 24.) This wide-ranging 24 rationale does not explain why the ALJ would restrict exposure only to heights and 25

26 27 1 The government would confine the ALJ’s rationale for this restriction to Barry’s “radiculopathy (nerve pain) and claims of vertigo.” (ECF 18, at 4.) This reading would 28 1 machinery, while excluding electrical shocks. Thus, the Court concludes that the ALJ 2 wanted claimant “to avoid concentrated exposure to any hazards” and that heights and 3 machinery were “but [two] example[s].” See Eddie, 2017 WL 4002147, at *7 (emphasis 4 added). So Barry’s hazards restriction includes avoiding electrical shocks. 5 2. Vocational Expert’s Testimony 6 This electrical-shocks restriction brings into sharp relief the conflict between the 7 vocational expert’s testimony and the Dictionary of Occupational Titles. According to the 8 Dictionary, an electronics technician is exposed to electric shock “[o]ccasionally” or “up 9 to 1/3 of the time.” 003.161-014 Electronics Technician, Dictionary of Occupational Titles. 10 Although Barry must avoid such shocks, the expert testified that Barry could still work as 11 an electronics technician as defined in the Dictionary. (See AR 55-56.) This is an 12 obvious—or at least apparent—contradiction, which triggered “the ALJ’s duty to develop 13 the record” and “resolve the conflict.” See Ford, 950 F.3d at 1160. The ALJ erred “in 14 failing to reconcile this apparent conflict.” Zavalin, 778 F.3d at 847. 15 B. Harmless-Error Review 16 Is this error harmless? “[T]he burden of showing that an error is harmful normally 17 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 18 396, 409 (2009). In Social Security appeals, claimants must therefore show that any errors 19 raise a “substantial likelihood of prejudice.” Ludwig v. Astrue, 681 F.3d 1047, 1054 20 (9th Cir. 2012). But “[i]f prejudice is obvious,” claimant “need not demonstrate anything 21 further.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 969 (9th Cir. 2015). 22 The prejudice is obvious. Absent the error, the ALJ likely would have gone on to 23 see if Barry could perform other jobs. That inquiry might easily have led to a disability 24 finding. Yet neither the ALJ nor the vocational expert ever reached this issue. (See AR 54- 25 57.) If the ALJ had found that Barry tolerates medium or heavy work, perhaps we could 26 assume that Barry could do other jobs, rendering the error here harmless. The ALJ instead 27 decided that Barry is limited to “light work” with several other restrictions. (AR 22.) Given 28 his advanced age—Barry was 65 on the date last insured (AR 17, 61)—these limitations 1 significant doubt on his general employability. See, e.g., Maxwell v. Saul, 971 F.3d 2 || 1128, 1131 (9th Cir. 2020) (holding that claimants must be found “disabled” if they are at 3 || least age 55, restricted to “light work,” cannot perform their “past relevant work,” and lack 4 ||readily transferable skills to a “significant range of... work’’). 5 ||C. Remedy 6 Barry seeks an immediate payment of benefits. (ECF 15-1, at 6.) When “the record 7 ||has been developed fully and further administrative proceedings would serve no useful 8 || purpose, the district court should remand for an immediate award of benefits.” Strauss v. 9 || Comm of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (citation omitted). 10 || But “[rJemand for further administrative proceedings is appropriate if enhancement of the 11 ||record would be useful.” /d. In this case, the ALJ never inquired if Barry had “transferrable 12 || skills” or whether “those skills are readily transferrable to a significant range of work.” See 13 || Walker-Earnest v. Comm’r of Soc. Sec. Admin., No. CV-16-00642-TUC-EJM, 2017 WL 14 ||/4675523, at *7n.3 (D. Ariz. Oct. 18, 2017). This case is remanded to answer those 15 || questions, which will resolve whether Barry is disabled. 16 CONCLUSION 17 Thus, plaintiff Barry’s summary-judgment motion is granted in part, and defendant’s 18 |/cross-motion for summary judgment is denied. The case is remanded for further 19 || proceedings. 20 REVERSED and REMANDED. 21 || Dated: March 29, 2021 22 < | j 23 Hon. Andrew G. Schopler United States Magistrate Judge 24 25 26 27 28