UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON CASE NO. 3:20-cv-6192-RSM Plaintiff, v. ORDER REVERSING AND REMANDING DEFENDANT’S ACTING COMMISSIONER OF DECISION TO DENY BENEFITS SOCIAL SECURITY, Defendant.
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of defendant’s denial of plaintiff’s applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). This matter is fully briefed. See Dkts. 17-19. Both sides agree that plaintiff has severe difficulties, including the severe impairments of degenerative joint disease of the right ankle, status post right ankle surgeries; obesity; bipolar disorder; major depressive disorder; and, anxiety disorder. AR 1201. Even the Commissioner concluded that after April 30, 2020, plaintiff is disabled. However, for the preceding seven years, it is unclear whether plaintiff was under a disability: The ALJ’s finding at Step 5, where the ALJ carries the Commissioner’s burden, that plaintiff could perform three jobs in the national economy despite absenteeism of once a month is based on equivocal testimony by the vocational expert. Because this reliance on equivocal testimony means the ALJ’s ultimate determination is not based on substantial evidence, and because this error is not harmless, this matter must be reversed.
On March 3, 2015 and May 11, 2015, plaintiff filed applications for DIB and SSI, respectively, alleging disability as of July 10, 2013, later amended via representative to December 8, 2013. See Administrative Record, Dkt. 15, (“AR”), p. 1198-99. The applications were denied upon initial administrative review and on reconsideration. See AR 1198. Multiple hearings were held before Administrative Law Judge (“ALJ”) Tom L. Morris in 2016, 2017 and 2018, allowing plaintiff to obtain a representative and get her evidence properly into the record. See AR 1319-1412. In a decision dated January 31, 2018, ALJ Morris determined plaintiff to be not disabled. See AR 1266-87. Plaintiff’s request for review of ALJ Morris’s decision was
denied by the Appeals Council, and, following a reversal and remand from the federal District Court on October 21, 2019, AR 1302-13, yet another hearing was held on July 13, 2020 before ALJ Glenn G. Meyers (“the ALJ”). AR 1234-65. The ALJ awarded benefits effective May 1, 2020, but found plaintiff not disabled for the period from December 8, 2013 to April 30, 2020, see AR 1198-1233, making the ALJ’s decision the final decision of the Commissioner of Social Security (“Commissioner”). See AR 1198-1233; 20 C.F.R. § 404.981, § 416.1481. Plaintiff’s appeal revolves around the ALJ’s finding that plaintiff was not disabled for the period from December 8, 2013 to April 30, 2020. In her Opening Brief, plaintiff maintains the ALJ erred by: (1) failing to bear the burden of establishing that there are jobs existing in significant numbers in the economy from December 8, 2013 to April 30, 2020 that plaintiff could have performed; (2) rejecting the medical opinion evidence from Dr. Pierce and the opinion of Ms. Anita LaRae, MS, MEd, LMHC; and, (3) failing to give germane reasons for rejecting plaintiff’s statements. Open, Dkt. 17, p. 1. Defendant contends there is no harmful legal error. Defendant’s Response Brief, (“Response”), Dkt. 18.
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social security benefits if the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such “‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).
I. Whether the ALJ failed to bear the burden of establishing that there are jobs existing in significant numbers in the economy in December 8, 2013 to April 30, 2020 that plaintiff could have performed.
Plaintiff contends that the ALJ erred by failing to bear the burden of establishing that there are jobs existing in significant numbers in the economy from December 8, 2013 to April 30, 2020 that plaintiff could have performed. Open, Dkt. 17, p. 1. Defendant contends there is no harmful legal error. Response, Dkt. 18. If an ALJ reaches the final step in the sequential analysis, the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); see also Bowen v. Yuckert, 482 U.S. 137, 140, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). The ALJ’s Step 5 finding, like all findings under review by this Court, must be supported by substantial evidence in the overall record to be affirmed. See Bayliss, supra, 427 F.3d at 1214 n.1 (citing Tidwell, 161 F.3d at 601). Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). Regarding inconsistencies at Step 5, the Social Security has a Ruling regarding such matters: [B]efore relying on VE or VS evidence to support a disability determination or decision, our adjudicators must: - Identify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs or VSs and information in the Dictionary of Occupational Titles (DOT)… and [e]xplain in the determination or decision how any conflict that has been identified was resolved. Social Security Ruling 00-4p, 2000 SSR LEXIS 8 at *1 (2000). Although "Social Security Rulings do not have the force of law, [n]evertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations." See Quang Van Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989) (citing Paxton v. Sec. HHS, 856 F.2d 1352, 1356 (9th Cir. 1988)) (internal citation and footnote omitted). As stated by the Ninth Circuit, "we defer to Social Security Rulings unless they are plainly erroneous or inconsistent with the [Social Security] Act or regulations." Id. (citing Chevron USA, Inc. v. NRDC, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); Paxton, supra, 856 F.2d at 1356). Here, requiring ALJs to resolve on the record inconsistencies in the final determinative step at which the Administration carries the burden as it relates to relevant Vocational Expert (“VE”) testimony on which the ultimate determination largely relies, is not plainly erroneous or inconsistent with the Act or regulations. See id. At Step 5, as noted by the Ninth Circuit, there exist “two ways for the Commissioner to meet the burden of showing that there is other work in
‘significant numbers’ in the national economy that claimant can perform: (a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines [‘the Guidelines’].” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (citations omitted). The Guidelines did not cover the situation herein, as determined by the ALJ, see AR 1222, rendering the ALJ’s reliance on the VE at Step 5 determinative. See, Tackett, 180 F.3d at 1101. Therefore, based on this record and for the reasons just stated, the Court concludes that any inconsistencies regarding relevant VE testimony at Step 5 as it pertains to plaintiff's ability to perform relevant jobs must be resolved by the ALJ, and any such resolution on the record must be supported by substantial evidence in the record as a whole. See id.; Bayliss, supra, 427
F.3d at 1214 n.1 (citing Tidwell, 161 F.3d at 601). In this matter, at the final step, Step 5, of the sequential Social Security Disability evaluation process, the ALJ found that prior to May 1, 2020, considering plaintiff’s “age, education, work experience, and residual functional capacity [“RFC”], there were jobs that existed in significant numbers in the national economy that [she] could have performed.” AR 1222 (citing 20 CFR 404.1569, 401.1569a, 416.969, and 416.969a). In making this determination, the ALJ found that the direction/framework provided by the medical-vocational guidelines was insufficient. See id. Therefore, in order to determine the effect of all of plaintiff’s limitations on plaintiff’s ability to perform other work existing in the national economy, the ALJ “asked the [VE] whether jobs exist in the national economy for an individual with [plaintiff’s] age, education, work experience, and [RFC].” AR 1223. The ALJ then relied on the testimony from the VE when making the Step 5 determination that plaintiff “was capable of making a successful adjustment to other work that existed in significant numbers in the national economy” for the time at issue herein. Id.
When relying on the testimony from the VE at Step 5, the ALJ included the following discussion in the written decision: Although the Dictionary of Occupational Titles (DOT) categorizes these 3 jobs that the vocational expert identifies as sedentary work and the DOT does not define whether these jobs would allow for off-task time of 15% at work and absence from work at one time per month, the [VE] testifies that, based on her education, professional experience, and training, the 3 sedentary jobs that she identifies would accommodate an individual with [plaintiff’s] [RFC] and vocational factors. The deviation is resolved in the conflict is therefore harmless. Apart from what as noted above, the vocational expert’s testimony is consistent with that in the DOT.
AR 1223. Whether these findings are based on substantial evidence determines this matter. As discussed herein, see infra, the Court concludes that two of the ALJ’s findings are without substantial evidence and are not based on sufficient relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The two findings failing this test are (1) the VE testifies that the jobs she identifies “would accommodate an individual with [plaintiff’s] [RFC] and vocational factors[; and, (2) the] deviation is resolved and the conflict is therefore harmless.” AR 1223. Because these findings are not supported by substantial evidence, this matter must be reversed. The question presented to the Court regarding the adequacy of the ALJ’s Step 5 determination is whether the ALJ’s finding that the jobs identified by the VE “would accommodate an individual with [plaintiff’s] [RFC] and vocational factors” is based on substantial evidence. At plaintiff’s Administrative hearing, the ALJ presented to the VE a hypothetical individual with plaintiff’s vocational factors and her RFC, as the RFC was determined by the ALJ in the written decision. AR 1262. After adopting the VE’s testimony that such an individual would be unable to do plaintiff’s past relevant work into the written decision
at Step 4, the ALJ asked the VE if the hypothetical individual with plaintiff’s RFC and vocational factors could perform any other work existing in the national economy. AR 1263. The VE testified that such a hypothetical individual would have been able to perform three specific jobs. See id. The ALJ asked the VE if there was any inconsistency between the identified jobs being ones such an individual could perform and the information in the Dictionary of Occupational Titles (“DOT”), regarding what such an individual could perform, and the VE answered in the affirmative, further specifying that the VE used her own “education, experience and training [when addressing] the questions regarding the interaction with co-workers or supervisors as well as the off task behavior and absenteeism.” AR 1263.
The Court notes here that the ALJ satisfied one part of the duty regarding inconsistencies between the DOT and the VE’s testimony regarding identified jobs. According to the Ninth Circuit, an ALJ may not “rely on a vocational expert’s testimony regarding the requirements of a particular job without first inquiring whether or not the testimony conflicts with the Dictionary of Occupational Titles [DOT].” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citing Social Security Ruling, SSR 00-4p, available at 2000 SSR LEXIS 8). However, the Ninth Circuit court also referenced the fact that “SSR 00–4p . . . . provides that the adjudicator “will ask” the vocational expert ‘if the evidence he or she has provided’ is consistent with the Dictionary of Occupational Titles and obtain a reasonable explanation for any apparent conflict.” Id. at 1152- 53 (footnote omitted). Here, the relevant inquiry becomes did the ALJ obtain “a reasonable explanation for [the] apparent conflict.” See id. After the ALJ elicited relevant testimony from the VE upon which the ALJ relied in his written decision, plaintiff’s attorney asked the VE specifically about the testimony about one being able to maintain competitive employment with plaintiff’s RFC, specifically, her limitation
to being “absent from work one time per month.” AR 1264; see also AR 1262 (“who will be absent from work one time per month . . .”). Regarding such absenteeism, the VE testified that “Chronic absenteeism is a problem in any work usually, however, an employer can typically tolerate one time per month or one time every other month without termination of employment.” AR 1264. This response is inconsistent with the previous unequivocal testimony by the VE that one with absenteeism of one time per month could maintain competitive employment in the three identified jobs. Compare id. with AR 1263. As argued by plaintiff, the “vocational expert testified that some employers will tolerate one day of absenteeism per month but that others, if absenteeism will be persistent, will tolerate absenteeism only one day every other month.” Open,
Dkt. 17, p. 3 (citing AR 1264). Indeed, this portion of the VE’s testimony clearly indicates that some employers will not tolerate the absenteeism the ALJ found that plaintiff suffered from as reflected in plaintiff’s RFC. The Court therefore finds persuasive plaintiff’s argument that the VE “did not provide job numbers for how many of the jobs she named would accept one day a month of absenteeism and how many would not[:] Therefore, the ALJ has not met his burden of establishing jobs existing in significant numbers in the economy.” Id. The Court does not find persuasive defendant’s counter argument that “the VE’s testimony, including the job numbers provided, was in response to a hypothetical individual who would specifically be absent once per month.” Response, Dkt. 18, pp. 3-4. This would entail giving no credence to the same VE’s subsequent testimony that her earlier testimony applied only to some employers. See AR 1264. The Court is not persuaded that the ALJ met his burden to clarify the inconsistency by relying on VE testimony that was internally inconsistent. See AR 1263-64. The ALJ’s reliance on one portion of the VE testimony, while ignoring this other portion, provided minutes later, is not such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). Based on the relevant record, the Court concludes that, when confronted with a conflict between the DOT and the VE’s testimony regarding jobs one with plaintiff’s RFC and vocational history could perform, the ALJ failed adequately to “obtain a reasonable explanation for any apparent conflict.” Massachi, supra, 486 F.3d at 1152-53 (citing Social Security Ruling, SSR 00- 4p, available at 2000 SSR LEXIS 8) (footnote omitted). Defendant also argues “even assuming arguendo that only half of the employers would tolerate only one absence every other month, over 35,000 national jobs would remain, which is
significant in the Ninth Circuit.” Response, Dkt. 18, p. 4. However, regarding defendant’s translation of the VE’s equivocal testimony into a specific number of “half of the employers,” the Court finds persuasive plaintiff’s argument “this number was created by [] defendant out of thin air and does not correspond to any objective sourcing or finding.” Reply, Dkt. 18, p. 2. Indeed, the Court notes that there is no reflection in the record of how many employers would tolerate one day per month of absenteeism versus one day every other month. See AR 1264. On the contrary, and as noted by plaintiff, “the VE specifically stated that chronic absenteeism is a problem in ANY work, therefore there is no reason whatsoever to assume that half of the employers would tolerate a day per month of absenteeism.” Reply, Dkt. 19, p. 2. At Step 5, the ALJ carries the burden to demonstrate that there are significant jobs in the national economy that a claimant could have performed when finding that said claimant therefore was not under a disability. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); see also Bowen v. Yuckert, 482 U.S. 137, 140, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If the ALJ relies on VE testimony at step 5, and the VE’s testimony is inconsistent with the DOT,
the ALJ must “obtain a reasonable explanation for any apparent conflict.” Massachi, supra, 486 F.3d at 1152-53 (citing Social Security Ruling, SSR 00-4p, available at 2000 SSR LEXIS 8) (footnote omitted). Here, based on a review of the record as a whole, as discussed above, see supra, the Court concludes that the ALJ did not obtain a reasonable explanation for the conflict between the VE’s testimony and the DOT that given plaintiff’s absenteeism of one day per month there were jobs in the national economy that she could have performed in significant numbers. The Court concludes that the ALJ failed to meet the Commissioner’s burden at Step 5. The ALJ’s finding that plaintiff can perform all three of those jobs and that significant number of them are not eroded by her absenteeism is not based on such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). II. Whether the ALJ’s error is harmless.
The Ninth Circuit has “long recognized that harmless error principles apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). An error is harmless if it is “‘inconsequential to the ultimate non[-]disability determination.’” Molina, 674 F.3d at 1117 (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). Here, the Court has concluded that the ALJ erred by failing to resolve an inconsistency between the VE’s testimony and the DOT regarding whether plaintiff could perform work existing in significant numbers in the national economy given her absenteeism of once per month, see supra, Section I. As noted previously, regarding such absenteeism, the VE testified that “Chronic absenteeism is a problem in any work usually, however, an employer can typically
tolerate one time per month or one time every other month without termination of employment.” AR 1264. The “or” makes the ALJ’s implied finding that a significant number of employers would tolerate one time per month versus one time every other month an independent finding by the ALJ not based on any testimony from the VE and not based on the DOT. Therefore, the ALJ’s finding at Step 5 is not based on substantial evidence, as found in Section I. In addition, it reflects that based on the current record, the factual situation just as easily could be that when only counting the number of employers who would tolerate one time per month of absenteeism, there would not have been a significant number of jobs that plaintiff could have performed during the relevant period of time. Such factual situation would render plaintiff disabled for her
entire claimed period and demonstrates that the error is not harmless. Therefore, this matter must be reversed and remanded for further administrative consideration. III. Whether the ALJ erred when reviewing medical opinion evidence from Dr. Wendy Pierce, MD and the opinion of Anita LaRae, MS, MEd, LMHC.
The Court already has concluded that the ALJ erred at Step 5 and that this matter should be reversed and remanded for further consideration, see supra, Sections I and II. In addition, some of plaintiff’s arguments regarding medical evidence and the other evidence provided from Ms. LaRae are persuasive. See Open, Dkt. 17, pp. 13-14. For example, plaintiff’s argument that the ALJ failed to explain adequately the rejection of the opinion from Dr. Pierce that plaintiff only could work half-time is persuasive. See id. at 13. Despite the relatively detailed and thorough summary of the evidence, the rejection of this specific opinion appears to be based on the ALJ’s differing interpretation of the medical evidence from the treating physician who gathered much of that evidence. See AR 1215. Therefore, the medical evidence noted should be assessed anew following remand.
IV. Whether the ALJ erred by failing to give appropriate rationale for failing to credit fully plaintiff’s allegations.
The Court already has concluded that the ALJ commit harmful error at Step 5, see supra, Sections I and II; that some of the medical evidence should be reviewed anew, see supra, Section III; and, that this matter should be reversed and remanded for further consideration, see supra, Sections I-II. In addition, a determination of a claimant’s credibility relies in part on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c). Therefore, plaintiff’s credibility should be assessed anew following remand of this matter. V. Should this Court reverse with a direction to award benefits or for further Administrative proceedings
Generally, when the Social Security Administration does not determine a claimant’s application properly, “‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put forth a “test for determining when [improperly rejected] evidence should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). Plaintiff has made little effort to convince the Court that this matter should be remanded with a direction to award benefits. See Open, Dkt. 17, p. 14 (“If benefits are not paid outright this case should be remanded for a de novo hearing”). As part of the test for remanding for benefits, after determining the presence of a harmful error, the Court turns “to the question whether further administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citations omitted). According to the Ninth Circuit, “[in] evaluating this issue, we consider [if] the record as a whole is free from conflicts, ambiguities, or
gaps, [if] all factual issues have been resolved, and [if] the claimant’s entitlement to benefits is clear under the applicable legal rules. Id. Here, the Court concludes that the record is not free from ambiguities, all factual issues have not been resolved, and plaintiff’s entitlement to benefits for the period prior to April 30, 2020, is not clear given the applicable legal rules. See id. As discussed, see supra, Sections I and II, it is not clear if plaintiff could have performed the jobs identified by the VE at Step 5, nor is it clear that the RFC captures all of plaintiff’s limitations, see supra, Sections III and IV. Therefore, this matter shall be reversed and remanded for further administrative proceedings, not with a direction from this Court to award benefits.
Based on the foregoing reasons, the Court hereby concludes the ALJ improperly concluded plaintiff was not disabled. Accordingly, defendant’s decision to deny benefits is reversed and this matter is remanded for further administrative proceedings in accordance with the findings contained herein.
Dated this 22nd day of July, 2021. A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE