1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LUPE T. D.V.,1 Case No. 2:20-cv-00292-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REVERSING AND 14 ANDREW M. SAUL, REMANDING DECISION OF THE 15 Commissioner of Social Security, COMMISSIONER 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for disability insurance benefits. In accordance with the 20 Court’s case management order, the parties have filed briefs addressing the merits of 21 the disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 On January 20, 2016, Plaintiff applied for disability insurance benefits, 24 alleging disability beginning October 28, 2015. Plaintiff’s application was denied. 25 (Administrative Record [“AR”] 73-77.) A hearing took place on May 31, 2018 before 26 27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 1 an Administrative Law Judge (“ALJ”). Plaintiff, who was represented by counsel, 2 and a vocational expert (“VE”) testified at the hearing. (AR 28-61.) 3 In a decision dated June 26, 2018, the ALJ found that Plaintiff suffered from 4 the following severe impairments: degenerative disc disease of the neck and back; 5 migraine headaches; fibromyalgia; and bilateral shoulder impingement.(AR 17.) The 6 ALJ concluded that Plaintiff’s impairments did not meet or equal any listed 7 impairment. Further, the ALJ determined that Plaintiff retained the residual 8 functional capacity (“RFC”) to perform light work with the following restrictions: 9 she can perform postural activities on an occasional basis; she can perform above 10 shoulder work bilaterally on an occasional basis; and she is precluded from 11 unprotected heights or dangerous machinery. (AR 18.) Relying on the testimony of 12 the VE, the ALJ concluded that Plaintiff could perform her past relevant work as a 13 medical case manager as generally performed. (AR 22.) Accordingly, the ALJ 14 concluded that Plaintiff was not disabled. (AR 23.) 15 The Appeals Council subsequently denied Plaintiff’s request for review (AR 16 1-6), rendering the ALJ’s decision the final decision of the Commissioner. 17 DISPUTED ISSUES 18 1. Whether the ALJ erred in relying on the VE’s testimony that Plaintiff 19 could perform past relevant work as a medical case manager. 20 2. Whether the ALJ properly evaluated the medical opinions. 21 3. Whether the ALJ properly rejected Plaintiff’s subjective complaints. 22 STANDARD OF REVIEW 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 24 determine whether the Commissioner’s findings are supported by substantial 25 evidence and whether the proper legal standards were applied. See Treichler v. 26 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 27 evidence means “more than a mere scintilla” but less than a preponderance. See 28 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 3 U.S. at 401. This Court must review the record as a whole, weighing both the 4 evidence that supports and the evidence that detracts from the Commissioner’s 5 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 6 than one rational interpretation, the Commissioner’s decision must be upheld. See 7 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 8 DISCUSSION 9 In the first issue, Plaintiff contends that the ALJ improperly relied upon the 10 VE’s opinion because (a) the occupation identified by the VE does not exist; and 11 (b) Plaintiff did not perform the occupation of case manager for long enough to 12 satisfy the requirement of past relevant work. (ECF No. 16 at 10-13.) 13 Plaintiff worked as a critical care nurse from 1993 to October 2015. (AR 32, 14 194.) Due to pain and other symptoms, she transferred to “case management” in 15 August 2015. As case manager, Plaintiff performed insurance approvals. She 16 admitted patients into the hospital and “typed up everything for insurance purposes.” 17 Plaintiff testified that, as performed, case manager involved sitting for 12-hour shifts. 18 (AR 31-32, 55-56.)2 Plaintiff performed the work of case manager for approximately 19 three months. (AR 31-32.) 20 The VE identified Plaintiff’s past relevant work as: (1) critical care registered 21 nurse, DOT 075.364-010, SVP-7, skilled, medium, but heavy as actually performed; 22 (2) medical case manager, 075.117-917, SVP-7, skilled, sedentary; and (3) business 23 trainer, DOT 166.227-010, SVP-7, light. (AR 56.) When the ALJ asked if an 24 individual with Plaintiff’s RFC could perform her past relevant work, the VE testified 25 that such an individualcould perform the work of medical case manager and the work 26 of business trainer as generally performed. (AR 57-58.) The ALJ asked the VE if 27 2Elsewhere, Plaintiff described her modified work as an “ambulatory case manager” and indicated 28 1 there was other work within the same functional capacity that the hypothetical 2 individual could perform. The VE responded, “Yes, unskilled, light work,” and 3 identified the occupations of laundry folder, booth cashier, and assembler, with jobs 4 existing in numbers from 50,000 to 140,000 in the national economy. (AR 58.) 5 “At step four of the sequential analysis, the claimant has the burden to prove 6 that he cannot perform his prior relevant work ‘either as actually performed or as 7 generally performed in the national economy.’” Carmickle v. Comm’r, Soc. Sec. 8 Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). “Although the burden 9 of proof lies with the claimant at step four, the ALJ still has a duty to make the 10 requisite factual findings to support his conclusion.” Pinto v. Massanari, 249 F.3d 11 840, 844 (9th Cir. 2001) (citations omitted). A claimant’s former occupation qualifies 12 as past relevant work if it was performed within the last fifteen years, lasted long 13 enough for him or her to learn to do it, and produced enough income to qualify as 14 substantial gainful activity. 20 C.F.R. §§ 404.1560(b)(1), 404.1565(a). 15 Relying on the VE’s testimony, the ALJ determined that Plaintiff’s past 16 relevant work consisted of: (a) critical care registered nurse (DOT 075.364-010), 17 (b) medical case manager (DOT 075.117-910), and (c) business trainer (DOT 18 166.227-010). (AR 22-23.) The ALJ then concluded that Plaintiff could perform her 19 past relevant work as a medical case manager, reasoning as follows: 20 In comparing the claimant’s residual functional capacity with the 21 physical and mental demands of this work, the undersigned finds that the 22 claimant is able to perform the medical case manager position as 23 generally performed. The testimony of the vocational expert is consistent 24 with the DOT, and the undersigned accepts it.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LUPE T. D.V.,1 Case No. 2:20-cv-00292-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REVERSING AND 14 ANDREW M. SAUL, REMANDING DECISION OF THE 15 Commissioner of Social Security, COMMISSIONER 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for disability insurance benefits. In accordance with the 20 Court’s case management order, the parties have filed briefs addressing the merits of 21 the disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 On January 20, 2016, Plaintiff applied for disability insurance benefits, 24 alleging disability beginning October 28, 2015. Plaintiff’s application was denied. 25 (Administrative Record [“AR”] 73-77.) A hearing took place on May 31, 2018 before 26 27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 1 an Administrative Law Judge (“ALJ”). Plaintiff, who was represented by counsel, 2 and a vocational expert (“VE”) testified at the hearing. (AR 28-61.) 3 In a decision dated June 26, 2018, the ALJ found that Plaintiff suffered from 4 the following severe impairments: degenerative disc disease of the neck and back; 5 migraine headaches; fibromyalgia; and bilateral shoulder impingement.(AR 17.) The 6 ALJ concluded that Plaintiff’s impairments did not meet or equal any listed 7 impairment. Further, the ALJ determined that Plaintiff retained the residual 8 functional capacity (“RFC”) to perform light work with the following restrictions: 9 she can perform postural activities on an occasional basis; she can perform above 10 shoulder work bilaterally on an occasional basis; and she is precluded from 11 unprotected heights or dangerous machinery. (AR 18.) Relying on the testimony of 12 the VE, the ALJ concluded that Plaintiff could perform her past relevant work as a 13 medical case manager as generally performed. (AR 22.) Accordingly, the ALJ 14 concluded that Plaintiff was not disabled. (AR 23.) 15 The Appeals Council subsequently denied Plaintiff’s request for review (AR 16 1-6), rendering the ALJ’s decision the final decision of the Commissioner. 17 DISPUTED ISSUES 18 1. Whether the ALJ erred in relying on the VE’s testimony that Plaintiff 19 could perform past relevant work as a medical case manager. 20 2. Whether the ALJ properly evaluated the medical opinions. 21 3. Whether the ALJ properly rejected Plaintiff’s subjective complaints. 22 STANDARD OF REVIEW 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 24 determine whether the Commissioner’s findings are supported by substantial 25 evidence and whether the proper legal standards were applied. See Treichler v. 26 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 27 evidence means “more than a mere scintilla” but less than a preponderance. See 28 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 3 U.S. at 401. This Court must review the record as a whole, weighing both the 4 evidence that supports and the evidence that detracts from the Commissioner’s 5 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 6 than one rational interpretation, the Commissioner’s decision must be upheld. See 7 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 8 DISCUSSION 9 In the first issue, Plaintiff contends that the ALJ improperly relied upon the 10 VE’s opinion because (a) the occupation identified by the VE does not exist; and 11 (b) Plaintiff did not perform the occupation of case manager for long enough to 12 satisfy the requirement of past relevant work. (ECF No. 16 at 10-13.) 13 Plaintiff worked as a critical care nurse from 1993 to October 2015. (AR 32, 14 194.) Due to pain and other symptoms, she transferred to “case management” in 15 August 2015. As case manager, Plaintiff performed insurance approvals. She 16 admitted patients into the hospital and “typed up everything for insurance purposes.” 17 Plaintiff testified that, as performed, case manager involved sitting for 12-hour shifts. 18 (AR 31-32, 55-56.)2 Plaintiff performed the work of case manager for approximately 19 three months. (AR 31-32.) 20 The VE identified Plaintiff’s past relevant work as: (1) critical care registered 21 nurse, DOT 075.364-010, SVP-7, skilled, medium, but heavy as actually performed; 22 (2) medical case manager, 075.117-917, SVP-7, skilled, sedentary; and (3) business 23 trainer, DOT 166.227-010, SVP-7, light. (AR 56.) When the ALJ asked if an 24 individual with Plaintiff’s RFC could perform her past relevant work, the VE testified 25 that such an individualcould perform the work of medical case manager and the work 26 of business trainer as generally performed. (AR 57-58.) The ALJ asked the VE if 27 2Elsewhere, Plaintiff described her modified work as an “ambulatory case manager” and indicated 28 1 there was other work within the same functional capacity that the hypothetical 2 individual could perform. The VE responded, “Yes, unskilled, light work,” and 3 identified the occupations of laundry folder, booth cashier, and assembler, with jobs 4 existing in numbers from 50,000 to 140,000 in the national economy. (AR 58.) 5 “At step four of the sequential analysis, the claimant has the burden to prove 6 that he cannot perform his prior relevant work ‘either as actually performed or as 7 generally performed in the national economy.’” Carmickle v. Comm’r, Soc. Sec. 8 Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). “Although the burden 9 of proof lies with the claimant at step four, the ALJ still has a duty to make the 10 requisite factual findings to support his conclusion.” Pinto v. Massanari, 249 F.3d 11 840, 844 (9th Cir. 2001) (citations omitted). A claimant’s former occupation qualifies 12 as past relevant work if it was performed within the last fifteen years, lasted long 13 enough for him or her to learn to do it, and produced enough income to qualify as 14 substantial gainful activity. 20 C.F.R. §§ 404.1560(b)(1), 404.1565(a). 15 Relying on the VE’s testimony, the ALJ determined that Plaintiff’s past 16 relevant work consisted of: (a) critical care registered nurse (DOT 075.364-010), 17 (b) medical case manager (DOT 075.117-910), and (c) business trainer (DOT 18 166.227-010). (AR 22-23.) The ALJ then concluded that Plaintiff could perform her 19 past relevant work as a medical case manager, reasoning as follows: 20 In comparing the claimant’s residual functional capacity with the 21 physical and mental demands of this work, the undersigned finds that the 22 claimant is able to perform the medical case manager position as 23 generally performed. The testimony of the vocational expert is consistent 24 with the DOT, and the undersigned accepts it. Accordingly, the claimant 25 is able to perform the medical case manager position as generally 26 performed. 27 (AR 23.) 28 1 While the ALJ relied on the occupation of medical case manager with DOT 2 code 075.117-910, the VEtestified to the occupation of case managerwith DOT code 3 075.117-917. (AR 56.) There is no dispute that DOT code cited by the VE does not 4 exist. (See ECF No. 23 at 2-3.) Because the VE’s testimony was not consistent with 5 the DOT, it could not support the ALJ’s determination that Plaintiff could perform 6 her past work. SeeSanchez v. Berryhill, 2017 WL 5508515, at *7 (C.D. Cal. Nov. 16, 7 2017) (where VE identified a nonexistent DOT job code, VE’s testimony did not 8 constitute substantial evidence supporting the ALJ’s step four finding); see generally 9 Massachi v. Astrue, 486 F.3d 1149, 1154 (9th Cir. 2007) (in order to constitute 10 substantial evidence supporting ALJ’s decision, a VE’s testimony must not conflict 11 with DOT; if VE’s testimony conflicts with DOT, the ALJ must resolve it).3 12 The Commissioner concedes that the ALJ committed error in this regard, but 13 contends that the error was harmless because the VE’s testimony identifies other 14 occupations that Plaintiff could perform. (ECF No. 23 at 2-3.) 15 An error at step four may be found harmless when the ALJ makes an 16 alternative step five finding that the claimant is capable of performing other work in 17 the national economy.See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir.2008). 18 Here, however, the ALJ ended his analysis at step four and did not make a finding 19 that Plaintiff was capable of performing other jobs that existed in the national 20 economy consistent with her RFC. (AR 23.) In support of the harmless error 21 argument, the Commissioner points to the VE’s testimony identifying other jobs 22 Plaintiff could perform and the ALJ’s “acceptance” of the VE’s testimony. (See ECF 23 No. 23 at 3.) Essentially, the Commissioner invites the Court to infer that the ALJ 24 3In addition, it appears that the conclusion that Plaintiff’s performance of the case manager job for 25 three months constituted “past relevant work” is not supported by substantial evidence. The VE described the occupation of medical case manager as having an SVP 7, which requires at least two 26 years of education, training, or experience. Considering that Plaintiff discontinued the job after three months due to her impairments, her stint as a medical case manager is properly characterized 27 as “an unsuccessful work attempt” that did not amount to “substantial gainful activity.” As such, it cannot be considered “past relevant work.” See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 28 1 would have adopted the VE’s opinion and found Plaintiff not disabled at step five. 2 The Court declines to do so. 3 The parties do not cite, nor has the Court found, any Ninth Circuit decision 4 addressing the application of harmless error where, as here, a VE’s testimony might 5 support a step five finding of non-disability, but the ALJ did not make such a finding. 6 SeeThornbrugh v. Berryhill, 2018 WL 1509162, at *7 (D. Or. Mar. 27, 2018)(noting 7 that the Ninth Circuit has not resolved the issue). District courts in this Circuit have 8 reached different conclusions about whether a step four error may be harmless when 9 the ALJ did not proceed to step five. Some have refused to apply harmless error, 10 regardless of evidence indicating that the plaintiff’s disability claim would have 11 ultimately failed at step five. See, e.g., Smith v. Colvin, 2015 WL 276727, at *3 (C.D. 12 Cal. Jan. 22, 2015); Sheehan v. Colvin, 2014 WL 3828396, at *7 (D. Ariz. Aug. 4, 13 2014); Glover v. Astrue, 2011 WL 1230045, at *9 (D. Or. Mar. 10, 2011), report and 14 recommendation adopted, 2011 WL 1212233 (D. Or. Mar. 30, 2011); see also 15 Carolyn Braddock Townsend v. Colvin, 2015 WL 6673677, at *9 (C.D. Cal. Oct. 30, 16 2015). Others, by contrast, have relied upon a VE’s testimony that the claimant is 17 capable of performing other work in the economy to fill the gap left by an ALJ’s 18 failure to make an explicit step five finding. See Summers v. Astrue, 2011 WL 19 1211860, at *3 (C.D. Cal. Mar. 30, 2011); Hadnot v. Astrue, 2008 WL 5048428, at 20 *11–12 (N.D. Cal. Nov. 25, 2008), aff’d on other grounds, 371 Fed. Appx. 875 (9th 21 Cir. 2010); Cowan v. Astrue, 2008 WL 2761684, at *10 (N.D. Cal. July 14, 2008). 22 This Court agrees with those courts concluding harmless error does not apply 23 in circumstances like those presented here. To begin with, it is well settled that the 24 Court may not uphold an ALJ’s decision on a ground not actually relied on by the 25 ALJ. See Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). Application of this 26 rule is particularly pertinenthere,in light of the fact that at step five, the burden shifts 27 to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). 28 Furthermore, contrary to the Commissioner’s suggestion, the ALJ did not purport to 1 “accept” all of the VE’s opinions. Indeed, the ALJ’s decision does not mention, let 2 alone adopt, the VE’s testimony about Plaintiff’s ability to perform any occupation 3 other than the medical case manager occupation. (See AR 22-23.) Accordingly, the 4 Court declines to affirm the ALJ’s decision by reaching its own independent finding 5 that Plaintiff can perform alternative occupations existing in the national economy. 6 See, e.g., Smith, 2015 WL 276727, at *3; Sheehan, 2014 WL 3828396, at *7; Glover, 7 2011 WL 1230045, at *9;see also Garcia v. Colvin, 2013 WL 3321509, at *11 (N.D. 8 Ill. June 28, 2013) (rejecting Commissioner’s argument that the ALJ’s step four 9 finding was harmless error given the VE’s testimony that the plaintiff could perform 10 other work in the national economy, stating that “the ALJ did not make a step five 11 finding and we cannot simply ‘fill that gap’”) (quotingGetch v. Astrue, 539 F.3d 473, 12 481 (7th Cir. 2008)). 13 Finally, the Commissioner’s conclusory reference to the VE’s testimony that 14 Plaintiff could perform her prior relevant work as business trainer as generally 15 performed fails for the same reason. Not only did the ALJ fail to find that Plaintiff 16 could perform work as a business trainer, he did not even address the VE’s testimony 17 in this regard. (See AR 22-23.) 18 REMEDY 19 Ninth Circuit case law “precludes a district court from remanding a case for an 20 award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808 21 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 22 determine that the ALJ made a legal error, such as failing to provide legally sufficient 23 reasons for rejecting evidence. If the court finds such an error, it must next review 24 the record as a whole and determine whether it is fully developed, is free from 25 conflicts and ambiguities, and all essential factual issues have been resolved.” 26 Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted). 27 Although the Court has found error as discussed above, the record on the whole 28 is not fully developed, and factual issues remain outstanding. The issues concerning 1 || Plaintiff's alleged disability “should be resolved through further proceedings on an 2 || open record before a proper disability determination can be made by the ALJ in the 3 || first instance.” See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see 4 || also Treichler, 775 F.3d at 1101 (remand for award of benefits is inappropriate where 5 || “there is conflicting evidence, and not all essential factual issues have been 6 || resolved’) (citation omitted); Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 7 || 1135, 1138 (9th Cir. 2011) (same where the record does not clearly demonstrate the 8 || claimant is disabled within the meaning of the Social Security Act). Accordingly, the 9 || appropriate remedy is a remand for further administrative proceedings pursuant to 10 || sentence four of 42 U.S.C. § 405(g).4 11 Having found that remand is warranted, the Court declines to address 12 || Plaintiff’s remaining arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 13 || 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to 14 || reach [plaintiff's] alternative ground for remand.”); see also Augustine ex rel. 15 || Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court 16 || need not address the other claims plaintiff raises, none of which would provide 17 || plaintiff with any further relief than granted, and all of which can be addressed on 18 || remand.”). 19 IT IS THEREFORE ORDERED that Judgment be entered reversing the 20 || decision of the Commissioner of Social Security and remanding this matter for 21 || further administrative proceedings consistent with this opinion. 22 23 || DATED: 10/26/2020 (dy Wi 24 35 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 26 27 28 ll « Itis not the Court's intent to limit the scope of the remand,