McQuade v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: July 7, 2023
• Docket: 2:22-cv-01655
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JONATHAN M., 8 Plaintiff, CASE NO. C22-1655-BAT 9 v. ORDER AFFIRMING THE 10 COMMISSIONER AND DISMISSING COMMISSIONER OF SOCIAL SECURITY, THE CASE 11 Defendant. 12

13 Plaintiff appeals the ALJ’s decision finding her not disabled. Dkt. 17. She contends new 14 evidence she presented to the appeals council shows “simple, routine 1 to 4 step tasks” is an 15 “inconsistent” limitation that renders the residual functional capacity (RFC ) determination and 16 VE’s testimony invalid. Plaintiff also contends the ALJ erred in finding she is not disabled 17 absent substance abuse. For the reasons below, the Court AFFIRMS the Commissioner’s final 18 decision and DISMISSES the case with prejudice. 19 DISCUSSION 20 A. The ALJ’s RFC and Hypothetical Question to the VE 21 Plaintiff contends the ALJ’s RFC determination, and the hypothetical question posed to 22 the VE contain an inconsistency that nullifies the ALJ’s step-five findings. The ALJ found 23 Plaintiff has the RFC to perform “simple, routine 1 to 4 step tasks,” Tr. 47, and subsequently 1 asked the VE, based upon this limitation, about Plaintiff’s past work. Tr. 94. The VE testified the 2 “simple routine tasks” limitation would rule out past work, and the “one to four steps would also 3 be problematic.” Id. The VE was then asked whether he “could identify any jobs in the national 4 economy” that would fit the hypothetical. Id.

5 The VE testified “hand packager,” SVP 2; “salvage worker,” SVP 2; and “marker,” SVP 6 2 would fit the hypothetical. Id. Plaintiff’s lawyer questioned the VE whether Plaintiff could 7 perform the jobs identified if: (a) she had to punch “a time clock” and had no freedom to pick 8 and choose her own schedule; and (b) she needed to work in isolation with almost no contact 9 with others. Tr. 95-96. Also, Plaintiff questioned the VE about the basis of the number of jobs in 10 the national economy. Tr. 96-97. Plaintiff did not ask the VE whether “simple, routine 1 to 4 step 11 tasks,” present inconsistent limitations or whether the limitations preclude SVP 2 work. 12 After the ALJ issued a decision finding Plaintiff not disabled, Plaintiff sought review in 13 the Appeals Council and submitted new evidence from Dr. Joseph A. Moisen, a vocational 14 expert. Tr. 7-33. Dr. Moisen avers:

15 [T]he RFC to simple routine and 1-4 step is inconsistent and a vocational determination. Jobs that are 3-4 steps are usually semi- 16 skilled or skilled jobs. A limitation to simple routine tasks generally does not allow for detailed work. A job with a reasoning 17 level of 2 requires the ability to do detailed but uninvolved work. No matter how involved work may be at a reasoning level of 2 it is 18 still detailed and beyond the ability of a person limited to simple routine tasks. 19 Tr. 10. Dr. Moisen avers hand packager is in a group of other jobs with 59 matching titles Tr. 11; 20 salvage worker is in a group of 553 matching job titles, and marker is in a group of jobs with 38 21 matching titles. He avers each job requires the use of computers and computer software and the 22 marker job requires preparation of documentation for contracts, transactions or regulatory 23 1 compliance. Id. at 12. Dr. Moisen also opined each job is SVP of 4-6 under O*NET in contrast to 2 SVP of 2 under the DOT. 3 Based upon Dr. Moisen’s declaration, Plaintiff contends the RFC determination and VE 4 testimony are erroneous because a simple routine limitation is not compatible with a 1 to 4 step

5 task limitation, and further because Dr. Moisen opined jobs involving 3-4 steps exceed the 6 “simple routine” limitation, and all SVP 2 jobs “are beyond the ability of a person limited to 7 simple routine tasks.” Tr. 10. The Commissioner disagrees arguing Plaintiff waived the 8 argument and the new evidence does not support reversal. Dkt. 23 at 3-45. 9 Before considering the impact of the new evidence Plaintiff submitted, the Court finds 10 the ALJ did not err in relying upon unchallenged VE testimony that a person limited to simple 11 routine 1 to 4 step task jobs can perform the jobs the VE identified. The VE provided 12 unchallenged testimony that Plaintiff could perform three jobs in the national economy with the 13 limitation at issue, and the Ninth Circuit has not deemed this limitation is per se invalid. 14 Turning to the impact of the new evidence, the Commissioner argues Plaintiff forfeited

15 the VE argument by failing to raise it when she appeared before the ALJ and instead raising it for 16 the first time in the Appeals Council. However, because the Appeals Council received, reviewed, 17 and made the new evidence part of the record, the Court rejects the Commissioner’s waiver 18 argument. See White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022) (Presenting new evidence to 19 appeals council is not fatal where the evidence is made part of the record). 20 The Commissioner also argues the new evidence, in any event, does not undermine the 21 ALJ’s decision. The Commissioner argues Terry v. Saul, 998 F.3d 1010 (9th Cir. 2021) is 22 controlling and forecloses reversal. In Terry the ALJ did not include a 6-hour standing and 23 walking limitation in questioning the VE about whether Terry could perform medium work. 1 After the ALJ found Terry not disabled, Terry presented new O*NET evidence to the Appeals 2 Council and argued it showed the jobs identified by the VE required “more than six hours of 3 standing or walking per day.” Id. at 1013. Ostensibly, the new evidence showed the jobs the VE 4 identified impose work demands that exceed “medium” work which limits standing or walking

5 to approximately 6 hours. The Court of Appeals found the new evidence did not “necessarily 6 establish either legal error or lack of substantial evidence to support the ALJ’s disability 7 determination.” Id. 8 The Court of Appeals reasoned the VE’s testimony that Terry could perform certain jobs 9 was based upon her “unchallenged expertise and her reference to the Dictionary of Occupational 10 (DOT) Titles,” and thus substantial evidence supports the ALJ’s determination. Id. The Court of 11 Appeals further noted even if the evidence is susceptible to more than one reasonable 12 interpretation, the Court must defer and uphold the Commissioner’s interpretation. 13 The Court of Appeals in Terry affirmed the Commissioner using the phrase the new 14 evidence “does not necessarily establish legal error or lack of substantial evidence to support the

15 ALJ’s disability determination.” Terry, at 1013 (emphasis added). The phrase suggests that in 16 some cases, the new evidence might necessarily compel reversal. Here, as in Terry, the new 17 evidence does not necessarily establish reversible error. 18 On its face, there is nothing legally or factually deficient about the testimony the VE gave 19 at the hearing before the ALJ. There is no deficiency because the ALJ may rely on VE testimony 20 and DOT information. See e.g. White v. Kijakazi, 44 F.4th at 835 (Uncontradicted VE testimony 21 about job numbers is inherently reliable and ordinarily sufficient to uphold an ALJ’s step-five 22 finding.); Ede v. Commissioner of Social Security, 2023 WL 1972177 at * 2 (E.D. Cal. Feb. 13, 23 2023) (Although the Circuit acknowledges certain criticisms of the DOT, the VE may rely upon 1 the DOT unless the testimony is so feeble and contradicted that it would fail the substantial 2 evidence bar) (citation omitted); see also Kalinch v. Kijakazi, 2023 WL 3505513 at 7 (D. Nevada 3 May 17, 2023). Here, the ALJ relied upon unchallenged VE testimony that relied upon the VE’s 4 expertise, and the DOT and the Court thus cannot say the ALJ’s findings based upon this

5 evidence are incorrect. 6 Because the ALJ properly relied upon the testimony of the VE, Plaintiff’s argument for 7 reversal hinges entirely upon the new evidence presented. Dr. Moisen suggests the DOT is 8 obsolete and based upon O*NET evidence, the hypothetical presented to the VE is “inconsistent” 9 and the jobs identified require the ability to perform SVP 4-6 and ability to use computers and 10 computer software. Dr. Moisen thus opines Plaintiff cannot perform any of the jobs the VE 11 identified. 12 The Court is constrained from simply adopting Dr. Moisen’s opinions to establish the 13 VE’s testimony is so feeble or so contradicted that remand is required. As an initial matter, the 14 Court declines to find any and all new evidence submitted after the ALJ issues a decision that

15 contradicts the testimony of a VE automatically requires reversal. Rather, the Court examines 16 whether the ALJ’s decision is undermined by new evidence on a “case-case-basis taking into 17 consideration all features of vocational expert’s testimony as well as the rest of the 18 administrative record. termination is supported by substantial evidence.” White v. Kijakazi, 44 19 F.4th at 835 (citation omitted). 20 Applying this approach, the Court notes adopting Dr. Moisen’s opinions would require 21 the Court to categorically find the DOT is so obsolete that it cannot be the basis of VE testimony 22 in this case, or ostensibly any other case. This is an untenable approach because the Ninth Circuit 23 has indicated although the “DOT system upon which the SSA allows VEs to rely” is outdated, 1 “we have characterized uncontradicted VE job-numbers testimony as “inherently reliable” and 2 “ordinarily sufficient by itself to support an ALJ's step-five finding.” Id. The Court thus cannot 3 say Dr. Moisen’s opinions render the VE’s testimony so “feeble” that remand is necessary in 4 Plaintiff’s case or in all other cases in which the VE relied upon the DOT.

5 The Court also finds the new evidence contradicts the VE’s testimony but not in a 6 manner that necessarily requires reversal. The Ninth Circuit in Kilpatrick v. Kijakazi, 35 F.4th 7 1187, 1193 (9th Cir. 2022) noted inconsistent new evidence does “not create a categorical 8 obligation” that requires the Commissioner to resolve the inconsistency. In Kilpatrick, the 9 claimant presented new evidence after the ALJ held the hearing but before the ALJ issued a 10 decision. The Court applied the “significant probative evidence standard” in analyzing whether 11 the ALJ erred, noting that while this standard was not applied “by name in Buck” that “specific 12 articulation of the governing legal standard was unnecessary because the competing job numbers 13 in that case easily qualified as significant probative evidence” where “the claimant’s attorneys 14 used the same computer software as the VE and yet generated vastly different job figures.” Id. at

15 1194 (citation omitted). The Court in Kilpatrick observed that unlike “Buck, Kilpatrick’s attorney 16 did not replicate the VE’s methodology and thus it is “not surprising Kilpatrick’s different 17 approach led to different results.” Id. The Kilpatrick Court accordingly rejected the claimant’s 18 argument and affirmed the ALJ. 19 Although Kilpatrick concerned whether the ALJ erred in failing to address post-hearing 20 new evidence presented to the ALJ, the Court finds its analysis applies here. The Ninth Circuit 21 appears to have determined reversible error when new VE evidence using the same data and 22 methodology is “too striking to ignore.” Hence in Buck v. Berryhill, 869 F.3d 1040, 1051 (9th 23 Cir. 2017) the Court reversed where new evidence using same the same software showed great a 1 discrepancy in the number of jobs in the national economy. Similarly, the Court in White v. 2 Kijakazi, 44 F.4th at 837 reversed where the claimant presented new evidence contradicting the 3 VE testimony about the number of jobs in the national economy using the same data source and 4 methodology relied by the SSA at the hearing (the DOT and SkillTRAN)).

5 However, the Ninth Circuit has declined to find reversible error when new VE evidence 6 is presented that relies upon a new methodology. As noted above, the Court in Kilpatrick 7 rejected new evidence that did not replicate the VE’s methodology noting how this type of 8 evidence stands in contrast to the new evidence submitted in Buck. Additionally, as noted above, 9 the Court in Terry v. Saul, 998 F.3d at 1013, declined to find new O*NET evidence necessarily 10 established legal error or lack of substantial evidence. Plaintiff’s new evidence is similar to the 11 new evidence at issue in Kilpatrick and Saul; accordingly, consistent with these decisions, the 12 Court concludes the new evidence does not necessarily undermine the ALJ’s decision. 13 The Court further notes new evidence, based upon the same data and methods used by the 14 VE, that contradicts the number of jobs that exist in the national economy is quantifiable

15 evidence. This type of new evidence did not require the Ninth Circuit in Buck or White to engage 16 in weighing the quality of the new evidence because the difference in the job numbers, alone and 17 on their face, created a contradiction “too striking to ignore.” Further the difference in the job 18 numbers was not based upon a new methodology that required new weighing or evaluation. This 19 is significant because a federal court that reviews the Commissioner’s final decision under 42 20 U.S.C. § 405(g) normally cannot reweigh evidence or engage in new fact finding. The Buck and 21 White decisions abide by this rule in that no weighing or fact finding was necessary. In contrast, 22 the new evidence Plaintiff presents is not quantifiable evidence and instead requires the Court to 23 engage in new fact finding and weigh an entirely new methodology in order to determine 1 whether the new methodology is valid and supported, and if so “necessarily” contradicts the VE 2 testimony and thus undermines the ALJ’s decision. The Court declines to engage in new fact 3 finding and to weigh, ab initio, new evidence because it is inappropriate to do so in this appeal. 4 In short, the Court finds the ALJ’s initial step-five finding is free of legal error and

5 supported by substantial evidence. The Court declines to make new factual findings on appeal in 6 the first instance that the new evidence, which relies upon new data and a new methodology, 7 renders the ALJ’s findings invalid. The Court notes that if the VE had testified that under the 8 DOT and O*NET Plaintiff could perform the jobs identified, the new evidence, would be akin to 9 the evidence presented in Buck and White, and reversal might be appropriate. But, this did not 10 occur here and the Court accordingly declines to reverse the ALJ’s decision based upon 11 Plaintiff’s argument the new evidence she presented establishes simple and routine tasks and 1-4 12 step instructions are inconsistent and thus invalid limitations. 13 B. Drug Abuse and Alcoholism (DAA) Analysis 14 The ALJ conducted a DAA analysis to determine whether Plaintiff’s disabling symptoms

15 remain absent use of drugs or alcohol. 20 C.F.R. §§ 404.1535, 416.935. The DAA analysis 16 requires the ALJ to identify disability under the five-step procedure and then conduct a DAA 17 analysis to determine whether substance abuse is material to disability. Bustamante v. 18 Massanari, 262 F.3d 949, 955 (9th Cir. 2001). If the remaining limitations without DAA would 19 still be disabling, then the claimant’s drug addiction or alcoholism are not contributing factors 20 material to disability. But, if the remaining limitations are not be disabling without DAA, then 21 the claimant’s substance abuse is material and benefits must be denied. Parra v. Astrue, 481 F.3d 22 742, 747–48 (9th Cir. 2007). Plaintiff bears the burden of proving that DAA is not a contributing 23 factor material to disability. Id. at 748. Insufficient evidence as to the issue of materiality cannot 1 satisfy a plaintiff's burden of proving his substance use is not a material factor. Id. 749–50. If a 2 plaintiff cannot establish that his DAA is not material, then the ALJ repeats the five-step 3 sequential evaluation process for determining whether plaintiff is disabled, absent the limiting 4 effects of DAA. Id. at 747–50.

5 Plaintiff does not challenge the entirety of the ALJ’s DAA analysis and instead argues the 6 ALJ erred by finding if she stopped using marijuana she would not be disabled. Plaintiff 7 contends her mental health limitations improved without the use of marijuana but not to the point 8 of “non-disability.” Dkt. 17 at 8. In support, she argues in May 2019 she went to the emergency 9 room and was diagnoses with suicidal ideation, engaging in disturbing behavior, and that 10 cannabis was detected on her drug screen. Id. (citing Tr. 437-53). In June 2019, Plaintiff attended 11 treatment and presented with rapid speech, depression, and made a call about her childhood and 12 feeling depressed. Id. (citing TR. 492). 13 In October 2019, Plaintiff was assessed and reported she stopped using marijuana two 14 weeks earlier and was feeling suicidal. Id. (citing Tr. 471). In November 2019, Plaintiff was

15 evaluated by Dr. Pratt. She reported ceasing marijuana use in September with several relapses. 16 She presented with odd thinking patterns and perception. The doctor noted Plaintiff’s symptoms 17 are less severe without marijuana use but do not go into remission. Id at 9 (citing Tr. 544-45). 18 In May 2020, Plaintiff reported suicidal ideation and anxiety despite no reported 19 marijuana use. Id. (citing Tr. 675-80). In September 2020, Plaintiff claimed her mental illness 20 was like a “cult leader” and in October she reported feeling she was anxious about failing again. 21 Tr. 1141. 22 Plaintiff contends the record is thus contrary to the ALJ’s determination that her mental 23 health improved to the point of non-disability without marijuana use. Id. Plaintiff acknowledges 1 her symptoms “waxed and waned” but submits this is not a basis to conclude her remaining 2 limitations are not disabling. 3 The Commissioner contends although the ALJ found substance addiction disorder is 4 severe at step two, the ALJ correctly found Plaintiff cannot perform gainful work if her

5 marijuana use is considered with her other impairments but can perform gainful work if her 6 marijuana use is not included. The Commissioner argues the record supports the ALJ’s 7 determination. The Commissioner contends the ALJ correctly found marijuana caused Plaintiff 8 to be delusional, that she was using marijuana when she went to the emergency room and the 9 record plainly shows marijuana affected Plaintiff’s concentration, focus and impulse control. 10 The Commissioner notes the severity of these symptoms diminished when Plaintiff was 11 not using marijuana. The Commissioner notes Plaintiff reported to Dr. Daniel Pratt, Psy.D. her 12 delusions were “less severe” when she abstained from marijuana and the doctor noted 13 overelaborate speech and anxious mood but many other “normal” behaviors. The Commissioner 14 also contends the ALJ’s finding is free of error because Plaintiff could handle “self-care

15 independently” and was able to go places, articulate and had appropriate grooming. The 16 Commissioner further contends the ALJ discounted Plaintiff’s testimony about her mental 17 symptoms, and Plaintiff has not challenged the ALJ’s determination. 18 And lastly, the Commissioner argues Plaintiff fails to show her co-occurring mental 19 disorders are disabling without marijuana use or that the ALJ impermissibly “cherry-picked” and 20 thus disregarded how mental symptoms can wax and wane. The Commissioner contends Plaintiff 21 thus argues for her own interpretation of the evidence rather than showing the ALJ’s 22 interpretation is unreasonable or unsupported. 23 1 While the record is susceptible to more than one reasonable interpretation, the Court 2 cannot say the ALJ’s interpretation regarding DAA is unreasonable. The ALJ noted Plaintiff 3 indicated she had cannabis induced symptoms in 2006-2008; Her doctors told her schizoaffective 4 disorder can be exacerbated by cannabis use; Plaintiff was positive for THC when she had police

5 interaction and went to the ER in May 2019; When Plaintiff complained of concentration and 6 impulse problems she was using marijuana; And that until late October or November 2019 7 Plaintiff indicated her substance use was substantial. Tr. 48. The ALJ noted in 2019, Plaintiff had 8 a three-week contract as a web developer and although it is unclear why the contract terminated, 9 Plaintiff thinks it was because she could not work at the expected pace. Tr. 52. 10 The ALJ also noted Plaintiff started working full-time in 2021. Id. The ALJ reviewed the 11 record and noted Plaintiff’s treatment records show minimal psychiatric observations and are 12 inconsistent with allegations of disabling mental health symptoms. Tr. 53. The ALJ noted during 13 the height of Plaintiff’s marijuana use, Plaintiff struggled but when she reduced or stopped using 14 marijuana, she made good progress in treatment with reduced symptoms. Id.

15 The ALJ further found Plaintiff’s mental status exams show she does not have disabling 16 mental health problems as shown by Dr. Pratt’s findings. Tr. 53-54. The ALJ observed the 17 severity of Plaintiff’s mental symptoms are situational with heightened symptoms occurring 18 when she had marital, financial or loss of a relative. Id at 54. 19 While Plaintiff disagrees as to whether the ALJ’s interpretation the above record supports 20 the ALJ’s DAA determination, the Court cannot say the ALJ’s determination is unreasonable or 21 not supported by the record. The Court is thus constrained from overturning the ALJ’s 22 determination and accordingly affirms the ALJ’s DAA findings. 23 1 For the foregoing reasons, the Commissioner’s decision is AFFIRMED, and this case is 2 DISMISSED with prejudice. 3 DATED this 7th day of July, 2023. 4 A

5 BRIAN A. TSUCHIDA United States Magistrate Judge 6

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