Rosas v. Kijakazi

• Court: District Court, N.D. California
• Decided: March 2, 2022
• Docket: 3:20-cv-06625
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARICELA R.,1 Case No. 20-cv-06625-TSH

8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT

10 KILOLO KIJAKAZI, Re: Dkt. Nos. 24, 37 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Maricela R. moves for summary judgment to reverse the decision of Defendant 15 Kilolo Kijakazi, Acting Commissioner of Social Security, denying her claim for disability benefits 16 under the Social Security Act, 42 U.S.C. § 401 et seq. ECF No. 24. Defendant cross-moves to 17 affirm. ECF No. 37. Pursuant to Civil Local Rule 16-5, the matter is submitted without oral 18 argument. Having reviewed the parties’ positions, the Administrative Record (“AR”), and 19 relevant legal authority, the Court hereby GRANTS Plaintiff’s motion and DENIES Defendant’s 20 cross-motion for the following reasons.2 21 II. PROCEDURAL HISTORY 22 On August 16, 2018, Plaintiff filed an application for disability insurance benefits under 23 Title II of the Social Security Act with a disability onset date of April 17, 2015. AR 205. Plaintiff 24 alleged disability due to back and shoulder problems, chronic pain, left leg pain, bilateral carpal 25

26 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial 27 Conference of the United States. 1 tunnel syndrome, depression, anxiety and panic attacks. AR 109-13, 117-22, 349, 356, 395. The 2 application was initially denied on November 1, 2018 and again on reconsideration on December 3 19, 2018. AR 109-13, 117-22. An Administrative Law Judge (“ALJ”) held a hearing on July 11, 4 2019 and issued an unfavorable decision on November 22, 2019. AR 16-24. The Appeals 5 Council denied Plaintiff’s request for review on July 27, 2020. AR 1-8. Plaintiff now seeks 6 review pursuant to 42 U.S.C. § 405(g). 7 III. ISSUES FOR REVIEW 8 Plaintiff raises four issues on appeal: (1) the ALJ erred at step four in (a) the identification 9 of past relevant work and (b) rejecting the argument that she was illiterate in English and could not 10 perform the general education requirement of the past work as generally performed; (2) the ALJ 11 erred at step two in finding her impairments were non-severe; (3) the ALJ improperly discounted 12 her subjective testimony; and (4) the ALJ erred in assessing the medical opinion evidence. 13 IV. STANDARD OF REVIEW 14 42 U.S.C. § 405(g) provides this Court’s authority to review the Commissioner’s decision 15 to deny disability benefits, but “a federal court’s review of Social Security determinations is quite 16 limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “An ALJ’s disability 17 determination should be upheld unless it contains legal error or is not supported by substantial 18 evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citations omitted). 19 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to 20 support a conclusion.” Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019) 21 (simplified). It means “more than a mere scintilla, but less than a preponderance” of the evidence. 22 Garrison, 759 F.3d at 1009 (citation omitted). 23 The Court “must consider the entire record as a whole, weighing both the evidence that 24 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm 25 simply by isolating a specific quantum of supporting evidence.” Id. (citation omitted). “The ALJ 26 is responsible for determining credibility, resolving conflicts in medical testimony, and for 27 resolving ambiguities.” Id. at 1010 (citation omitted). If “the evidence can reasonably support 1 the ALJ.” Id. (citation omitted). 2 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is 3 harmless. Molina v. Astrue, 674 F.3d 1104, 1111, 1115 (9th Cir. 2012). “[A]n error is harmless 4 so long as there remains substantial evidence supporting the ALJ’s decision and the error does not 5 negate the validity of the ALJ’s ultimate conclusion.” Id. at 1115 (simplified). But “[a] reviewing 6 court may not make independent findings based on the evidence before the ALJ to conclude that 7 the ALJ's error was harmless.” Brown-Hunter, 806 F.3d at 492. The Court is “constrained to 8 review the reasons the ALJ asserts.” Id. (simplified). 9 V. DISCUSSION 10 A. Framework for Determining Whether a Claimant Is Disabled 11 A claimant is considered “disabled” under the Social Security Act if two requirements are 12 met. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the 13 claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of 14 any medically determinable physical or mental impairment which can be expected to result in 15 death or which has lasted or can be expected to last for a continuous period of not less than 12 16 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe 17 enough that the claimant is unable to perform previous work and cannot, based on age, education, 18 and work experience “engage in any other kind of substantial gainful work which exists in the 19 national economy.” Id. § 423(d)(2)(A). 20 The regulations promulgated by the Commissioner of Social Security provide for a five- 21 step sequential analysis to determine whether a Social Security claimant is disabled. 20 C.F.R. § 22 404.1520. The claimant bears the burden of proof at steps one through four. Ford v. Saul, 950 23 F.3d 1141, 1148 (9th Cir. 2020) (citation omitted). 24 At step one, the ALJ must determine if the claimant is presently engaged in a “substantial 25 gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), defined as “work done for pay or profit that 26 involves significant mental or physical activities.” Ford, 950 F.3d at 1148 (internal quotations and 27 citation omitted). Here, the ALJ determined Plaintiff had not performed substantial gainful 1 At step two, the ALJ decides whether the claimant’s impairment or combination of 2 impairments is “severe,” 20 C.F.R. § 404.1520(a)(4)(ii), “meaning that it significantly limits the 3 claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 4 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant is not disabled. 5 20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe 6 impairments: degenerative disc disease of the lumbar/cervical spine and degenerative joint disease 7 of the left shoulder. AR 19. 8 At step three, the ALJ evaluates whether the claimant has an impairment or combination of 9 impairments that meets or equals an impairment in the “Listing of Impairments” (referred to as the 10 “listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings 11 describe impairments that are considered “to be severe enough to prevent an individual from doing 12 any gainful activity.” Id. § 404.1525(a). Each impairment is described in terms of “the objective 13 medical and other findings needed to satisfy the criteria of that listing.” Id. § 404.1525(c)(3). 14 “For a claimant to show that his impairment matches a listing, it must meet all of the specified 15 medical criteria. An impairment that manifests only some of those criteria, no matter how 16 severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnote omitted). If a 17 claimant’s impairment either meets the listed criteria for the diagnosis or is medically equivalent 18 to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering 19 age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined Plaintiff 20 did not have an impairment or combination of impairments that meets the listings. AR 20. 21 If the claimant does not meet or equal a listing, the ALJ proceeds to step four and assesses 22 the claimant’s residual functional capacity (“RFC”), defined as the most the claimant can still do 23 despite their imitations (20 C.F.R. § 404.1545(a)(1)), and determines whether they are able to 24 perform past relevant work, defined as “work that [the claimant has] done within the past 15 years, 25 that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do 26 it.” 20 C.F.R. § 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant can 27 perform past relevant work, the claimant is not disabled. Id. § 404.1520(f). Here, the ALJ 1 perform light work as defined in 20 CFR 404.1567(b) except she can lift and carry 20 pounds occasionally and 10 pounds frequently, sit 6 2 hours in an 8-hour workday, stand 6 hours in an 8-hour workday and walk 6 hours in an 8-hour workday. She can push and pull as much as 3 she can lift and carry. She can occasionally reach overhead and occasionally balance. The claimant’s time off-task may 4 accommodated with normal breaks. 5 AR 20. Based on this RFC, the ALJ determined Plaintiff could perform past relevant work as a 6 Social Services Aide. AR 23. As such, the ALJ determined Plaintiff has not been under a 7 disability from April 17, 2015, through the date of the decision, and therefore did not reach the 8 fifth step of the framework. Id. 9 B. Step Four 10 Plaintiff testified that she completed eleven years of school in Mexico and attended 11 approximately three or four months of English classes. AR 41. She described her past job as a 12 “health educator” at La Clinica de la Raza, where she “worked with a companion who is college 13 educated; we taught classes in different environments. Part of my responsibility is to bring with 14 me all the materials for the class. I also had to buy the snacks coffee, sweet breads, and other 15 things for the meetings.” AR 46. Plaintiff testified to spending four hours in the office, and then 16 four hours doing outreach and moving around and giving the classes. Id. She had “a table and a 17 box that has wheels on it” for transporting the materials for the classes. AR 47. When the ALJ 18 asked if she would “actually go up to the front of the class and conduct classes as a, as a teacher 19 would,” Plaintiff responded: “I did basic things like present the speaker, to set up the room, and to 20 take attendance.” Id. 21 Plaintiff also described her duties also as “[s]ometimes we have large groups and in that 22 case I’ll take a large coffee maker that will make 50 cups of coffee. I have to fill that very heavy 23 pot with water. I’ve already been to the store to buy the coffee, the sweet bread, the milk, 24 everything we need. At other times there’s smaller groups, maybe 25 people, we have a smaller 25 coffee pot but it’s still heavy. Afterwards, there’ll be leftover and I’ll have to take the coffee pot 26 and throw it out -- throw coffee out. I think all together, with the materials and the -everything 27 else, it weighed around 30 pounds. And then it was more when we had to carry the table.” AR 1 Plaintiff testified that she remained on the job two years after the motor vehicle accident 2 that caused her severe injuries, but she eventually needed help: “I needed help with that, in the last 3 two years to do those things because of my shoulders and my arms.” AR 49. She testified that her 4 job was essentially created for her after she had been a volunteer at the clinic, and that she was the 5 first person ever hired by the Clinica as a health educator. AR 55. 6 The vocational expert identified Plaintiff’s past relevant work as a Social Services Aide, 7 Dictionary of Occupational Titles3 (“DOT”) 195.367-034, with a Specific Vocational Profile4 8 (“SVP”) of 6. AR 63. Although the aide position is classified as “Light Work,”5 DOT 195.367- 9 034, 1991 WL 671601 (Jan. 1, 2016), the expert testified that Plaintiff could not perform her past 10 work “as actually performed” because she performed it at the “medium” level of exertion. AR 63. 11 The expert also testified that there would be no transferable skills to other occupations at the light 12 level. Id. However, in response to the ALJ’s hypothetical question based on the ability to perform 13 light work, the expert testified that the job could be performed “as generally performed” since it 14 was a light job. Id. 15 The ALJ found Plaintiff could perform her past relevant work as a “Social Services Aide,” 16 relying on the vocational expert’s testimony in reaching his decision. AR 23. 17

18 3 The Dictionary of Occupational Titles by the United States Department of Labor, Employment & Training Administration, may be relied upon “in evaluating whether the claimant is able to 19 perform work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements and may be a primary source of 20 information for the ALJ or Commissioner. 20 C.F.R. § 404.1566(d)(1). The “best source for how a job is generally performed is usually the Dictionary of Occupational Titles.” Pinto v. 21 Massanari, 249 F.3d 840, 846 (9th Cir. 2001). 4 “The DOT lists an SVP time for each described occupation. Using the skill level definitions in 22 20 C.F.R. §§ 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.” 23 Social Security Ruling 00-4p. 5 “Light Work - Exerting up to 20 pounds of force occasionally (Occasionally: activity or 24 condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force 25 constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight 26 lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but 27 entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a 1 Plaintiff argues her actual job duties as described in her testimony do not match up with 2 the Social Services Aide position, particularly those duties which were performed at the medium 3 exertion level exertion. Pl.’s Mot. at 6-7. She notes that she described her job on the Adult 4 Disability Report as: “Will go to different schools, fairs, and churches and put up a booth on the 5 streets to enroll in Obamacare and MediCal. Heaviest weight lifted 50 lbs. Frequently lifted less 6 than 10 lbs.” Id. at 6 (citing AR 351). Plaintiff argues her previous position should have been 7 classified as a “composite job,” and that the classification of past relevant work was erroneous 8 because it is at a skill level beyond how she performed her job. Id. at 7-8. 9 According to the Social Security Administration Program Operations Manual System 10 (“POMS”), “composite jobs have significant elements of two or more occupations and as such, 11 have no counterpart in the DOT.” POMS § 25005.020(B).6 If the ALJ “can accurately describe 12 the main duties of [past relevant work] only by considering multiple DOT occupations, the 13 claimant may have performed a composite job.” Id.; see also Morgan v. Berryhill, 2017 WL 14 2628094, at *3 (W.D. Wash. June 19, 2017) (the ALJ only needs to evaluate past relevant work as 15 a “composite job” where the “composite job[ ] ha[s] significant elements of two or more 16 occupations and as such, ha[s] no counterpart in the DOT.”); SSR 82-61 (“[C]omposite jobs have 17 significant elements of two or more occupations and, as such, have no counterpart in the DOT.”). 18 Further, the POMS instructs that when comparing a claimant’s RFC to a composite job as the 19 claimant performed it, an ALJ may only find the claimant capable of performing the past relevant 20 work if she can perform all parts of the job. POMS § 25005.020(B) 21 Here, it is unclear how the ALJ determined Plaintiff’s prior work falls under the category 22 of Social Services Aide. As a preliminary matter, the ALJ determined that Plaintiff retained the 23 RFC to perform light work, including carrying 20 pounds occasionally and 10 pounds frequently. 24

25 6 Available at https://secure.ssa.gov/poms.nsf/lnx/0425005020. According to the Supreme Court, “the rulings, interpretations and opinion of the Administrator under this Act, while not controlling 26 upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & 27 Co., 323 U.S. 134, 140 (1994). Although the Court was discussing a different agency, the opinions 1 AR 20. While a Social Services Aide is classified as light work and fits under this category, the 2 vocational expert testified, and the ALJ acknowledged, that Plaintiff testified she lifted up to 30 3 pounds, which would fall under medium work. AR 23, 63. While the ALJ notes the vocational 4 expert “testified that an individual with the same limitations as the claimant could perform the 5 position as generally performed,” AR 23, he does not explain how Plaintiff could return to her past 6 relevant work, which consisted of medium level exertion, by classifying it as a position at the light 7 exertion level. 8 Because the record indicates Plaintiff performed her past relevant work at the medium 9 exertion level, but the ALJ determined Plaintiff’s RFC remained at the light exertion level, it 10 appears the ALJ erred in concluding that she retained the RFC to perform the requirements of her 11 past work. The ALJ’s error prevented him from proceeding to step five—whether Plaintiff is able 12 to do any other work considering her RFC, age, education, and work experience. The Court also 13 concludes that the error is not harmless error. As noted above, the Ninth Circuit has “recognized 14 that harmless error principles apply in the Social Security Act context.” Molina, 674 F.3d at 1115 15 (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (collecting cases)). 16 The Ninth Circuit noted that “in each case we look at the record as a whole to determine [if] the 17 error alters the outcome of the case.” Id. The court also noted that the Ninth Circuit has “adhered 18 to the general principle that an ALJ’s error is harmless where it is ‘inconsequential to the ultimate 19 non-disability determination.’” Id. (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 20 1155, 1162 (9th Cir. 2008)) (other citations omitted). Courts must review cases “‘without regard 21 to errors’ that do not affect the parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinsheki v. 22 Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111) (codification of the harmless error 23 rule)). 24 Here, the ALJ concluded that Plaintiff was not disabled pursuant to the Social Security Act 25 because he found she could perform past relevant work as a Social Services Aide. AR. 23. 26 However, as identified by the vocational expert, the position of Social Services Aide consists of 27 light work, while Plaintiff testified she worked as a health educator and performed medium work. 1 Plaintiff could perform the position as generally performed, an ALJ is not permitted to evaluate a 2 composite job at the part of step four considering work “as generally performed in the national 3 economy.” POMS DI § 25005.020(B). Because the ALJ erred in this regard, Plaintiff does not 4 have past relevant work as generally performed, and this finding is not based on substantial 5 evidence in the record as a whole. See Morgan, 2017 WL 2628094, at *3 (ALJ erred in finding 6 Plaintiff could perform past relevant work where actual past work as a composite of two or more 7 separate occupations, but ALJ determined at step four she was able to perform the work “as 8 generally performed in the national economy.”). Accordingly, this matter should be reversed and 9 remanded. 10 C. Remaining Arguments 11 Although Plaintiff raises additional arguments, the Court has already concluded that this 12 matter should be reversed and remanded. Because this analysis likely impacts other portions of 13 the ALJ’s decision, the other issues raised by Plaintiff will not be considered here. However, the 14 Agency should be mindful to consider those issues as part of its reconsideration on remand. 15 D. Remedy 16 The remaining question is whether to remand for further administrative proceedings or for 17 the immediate payment of benefits under the credit-as-true doctrine. “When the ALJ denies 18 benefits and the court finds error, the court ordinarily must remand to the agency for further 19 proceedings before directing an award of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th 20 Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). 21 However, under the credit-as-true rule, the Court may order an immediate award of benefits if 22 three conditions are met. First, the Court asks, “whether the ‘ALJ failed to provide legally 23 sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.’” Id. 24 (quoting Garrison, 759 F.3d at 1020). Second, the Court must “determine whether there are 25 outstanding issues that must be resolved before a disability determination can be made, . . . and 26 whether further administrative proceedings would be useful.” Id. (citations and internal quotation 27 marks omitted). Third, the Court then “credit[s] the discredited testimony as true for the purpose 1 (citing Treichler, 775 F.3d at 1101). 2 It is only “rare circumstances that result in a direct award of benefits” and “only when the 3 record clearly contradicted an ALJ’s conclusory findings and no substantial evidence within the 4 || record supported the reasons provided by the ALJ for denial of benefits.” Jd. at 1047. Further, 5 even when all three criteria are met, whether to make a direct award of benefits or remand for 6 || further proceedings is within the district court’s discretion. Jd. at 1045 (citing Treichler, 775 F.3d 7 at 1101). While all three credit-as-true factors may be met, the record as a whole could still leave 8 doubts as to whether the claimant is actually disabled. Trevizo v. Berryhill, 871 F.3d 664, 683 9 n.11 (9th Cir. 2017). In such instances, remand for further development of the record is 10 || warranted. Id. 11 Here, the ALJ failed to fully and fairly develop the record when evaluating Plaintiffs 12 disability claim, but it is not clear that the ALJ would be required to find Plaintiff disabled. 13 Accordingly, remand for further proceedings is appropriate. 14 VI. CONCLUSION 15 For the reasons stated above, the Court GRANTS Plaintiff's motion, DENIES a 16 Defendant’s cross-motion, and REVERSES the ALJ’s decision. This matter is REMANDED for 3 17 further administrative proceedings consistent with this order. The Court shall enter a separate 18 || judgment, after which the Clerk of Court shall terminate the case. 19 IT IS SO ORDERED. 20 21 Dated: March 2, 2022 22 7 LU \ - | THOMAS S. HIXSON 23 United States Magistrate Judge 24 25 26 27 28