Mary E. Brown v. Nancy A. Berryhill
Filing
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MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). See order for complete details. (hr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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) No. CV 17-2738-AS
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) MEMORANDUM OPINION
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) AND ORDER OF REMAND
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MARY E. BROWN,
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Plaintiff,
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v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
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Defendant.
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Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY
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ORDERED
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action consistent with this Opinion.
that
this
matter
is
remanded
for
further
administrative
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I.
PROCEEDINGS
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On April 10, 2017, Plaintiff filed a Complaint seeking review of
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the denial of her applications for Disability Insurance Benefits and
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Supplemental Security Income.
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have
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consented
to
proceed
(Docket Entry No. 1).
before
1
the
undersigned
The parties
United
States
1
Magistrate Judge.
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Defendant
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(“AR”).
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filed
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respective positions regarding Plaintiff’s claims.
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19).
filed
(Docket Entry Nos. 13-14).
an
Answer
along
with
(Docket Entry Nos. 15-16).
a
Joint
Stipulation
the
On September 5, 2017,
Administrative
Record
On December 6, 2017, the parties
(“Joint
Stip.”),
setting
forth
their
(Docket Entry No.
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The Court has taken this matter under submission without oral
argument.
See C.D. Cal. L.R. 7-15.
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II.
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
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On July 22, 2013, Plaintiff, formerly employed as a nurse’s aide
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and a food service worker (AR 159, 175-76), filed applications for
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Disability
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alleging a disability onset date of May 17, 2013.
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The Commissioner denied Plaintiff’s applications on January 15, 2014.
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(AR 91-96).
Insurance
Benefits
and
Supplemental
Security
Income,
(AR 134, 136).
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On July 6, 2015, Plaintiff, represented by counsel, testified at
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a hearing before Administrative Law Judge (“ALJ”) Sally Reason. (AR
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34-53).
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June Hagen. (See AR 53-56).
The ALJ also heard testimony from vocational expert (“VE”)
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On
August
10,
2015,
(See AR 13-24).
the
ALJ
denied
Plaintiff’s
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applications.
Applying the five-step sequential
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process, the ALJ found at step one that Plaintiff has not engaged in
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substantial gainful activity since May 17, 2013, the alleged onset
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1
date.
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of
3
impairments.1
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Plaintiff does not have an impairment or combination of impairments
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that meet or medically equal the severity of any of the listings
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(AR 15).
back
At step two, the ALJ found that Plaintiff’s history
strain
and
major
(AR 15).
depressive
disorder
are
a
severe
At step three, the ALJ determined that
enumerated in the regulations.
(AR 16).
The ALJ determined that
Plaintiff has the Residual Functional Capacity (“RFC”)2 to perform
medium work3 with the following limitations: “occasionally stoop and
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climb; and limited to frequent contact with the public, coworkers,
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and
supervisors.”
(AR
17).
At
step
four,
the
ALJ
found
that
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Plaintiff is unable to perform her past relevant work as a “CNA/nurse
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aide.”
(AR 22).
At step five, the ALJ, relying on the VE’s hearing
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testimony,
found
that
Plaintiff,
with
her
age,
education,
work
experience and RFC, could perform the following representative jobs
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existing
in
significant
numbers
in
the
national
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Helper” (Dictionary of Occupational Titles (“DOT”) 317.687-010) and
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“Hand Packager” (DOT 920.587-018).
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determined that Plaintiff was not under a disability as defined by
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the Social Security Act, from May 17, 2013, through the date of the
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decision.
(AR 24).
economy:
“Cook
Accordingly, the ALJ
(Id.).
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The
ALJ
found
Plaintiff’s
history
of
left
plantar
fasciitis, atypical chest pain, and hyperthyroidism to be non-severe.
(AR 16).
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A Residual Functional Capacity is what a claimant can still
do despite existing exertional and nonexertional limitations. See 20
C.F.R. § 404.1545(a)(1).
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“Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25
pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c).
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The Appeals Council denied Plaintiff’s request for review on
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February 9, 2017. (AR 1–3). Plaintiff now seeks judicial review of
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the
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Commissioner.
ALJ’s
decision,
which
stands
as
the
final
decision
of
the
42 U.S.C. §§ 405(g), 1383(c).
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III.
STANDARD OF REVIEW
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This Court reviews the Administration’s decision to determine if
it is free of legal error and supported by substantial evidence.
See
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Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).
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evidence”
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preponderance.
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2014).
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“a court must consider the record as a whole, weighing both evidence
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that supports and evidence that detracts from the [Commissioner’s]
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conclusion.”
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2001) (internal quotation omitted).
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can support either affirming or reversing the ALJ’s conclusion, [a
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court]
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Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
is
more
than
a
mere
scintilla,
but
“Substantial
less
than
a
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
To determine whether substantial evidence supports a finding,
may
Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
not
substitute
[its]
As a result, “[i]f the evidence
judgment
for
that
of
the
ALJ.”
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IV.
DISCUSSION
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Plaintiff contends that the ALJ erred in “silently” rejecting
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limitations opined by non-examining state agency consultant Douglas
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Robbins, Ph.D., by failing to discuss Dr. Robbins’s opinion.
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Stip. at 4-7, 10-11).
(Joint
After consideration of the parties’ arguments
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and the record as a whole, the Court finds that Plaintiff’s claim
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warrants remand for further consideration.
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A.
The ALJ Failed To Consider Dr. Robbins’s Opinion
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The
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Commissioner’s
Regulations
provide
that
ALJs
“are
not
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required to adopt” agency medical consultants’ opinions, “but they
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must consider this evidence . . . because [the Administration’s]
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Federal
or
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highly
qualified
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evaluation.”
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Ruling 96-6p, 1996 WL 374180 (July 2, 1996) (an ALJ may not ignore
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the opinions of a consultative examiner, and must explain the weight
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accorded
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404.1527(e), 416.927(e).
State
agency
and
medical
or
experts
psychological
in
Social
consultants
Security
are
disability
20 C.F.R. § 404.1513a(b)(1); see also Social Security
to
such
opinions
in
their
decision);
20
C.F.R.
§§
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Dr. Robbins reviewed Plaintiff’s medical records and opined, on
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November 8, 2013, that Plaintiff is “[n]ot significantly limited” in
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her ability to understand, remember and carry out “very short and
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simple instructions,” and she “is able to understand, remember, and
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follow simple 1-2 step procedures.”
(AR 68, 83).
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that
limited”
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understand, remember and carry out “detailed instructions.”
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83).
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attention/concentration for 2 hr periods to complete simple tasks”
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and
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afforded breaks/rest periods.”
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Plaintiff
Plaintiff
He
“would
is
further
be
is
able
“[m]oderately
opined
to
that
work
“[m]oderately
an
Plaintiff
8-hr
day
in
“is
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in
her
able
utilizing
(AR 68-69, 83).
limited”
Dr. Robbins stated
her
ability
to
all
to
(AR 68,
maintain
regularly
He also stated that
ability
to
interact
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appropriately
with
the
general
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infrequent/casual interactions with co-workers, supervisors, and the
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public.”
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environment should be of a supportive nature.”
(AR 69, 84).
public,
but
she
“can
tolerate
He noted that Plaintiff’s “[s]upervisory
(AR 69, 84).
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In
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her
decision,
the
ALJ
failed
to
mention
or
address
Dr.
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Robbins’s psychological assessment.
The ALJ’s RFC did not include
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any mental or social limitations other than “frequent contact with
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the public, coworkers, and supervisors.”
(AR 17).
Moreover, the ALJ
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gave “little weight” to the only other mental assessment in the
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record, that of psychiatric consultative examiner Gurmanjot Bhullar,
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M.D., (AR 22), who found no mental or social limitations.
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22).
(AR 421-
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Defendant contends that the ALJ did not “reject” Dr. Robbins’s
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opinion, in part because the opinion “does not preclude complex work,
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but rather notes moderate limitations in that area and affirms that
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Plaintiff
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further claims that Dr. Robbins’s opinion is consistent with the jobs
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that the ALJ found Plaintiff capable of performing.
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Therefore, Defendant asserts that the ALJ’s failure to address the
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opinion is not reversible error.
can
do
simple
work.”
(Joint
Stip.
at
9).
Defendant
(Id. at 9-10).
(Id.).
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The Court disagrees.
Dr. Robbins effectively limited Plaintiff
to “simple 1-2 step procedures.”4
(AR 68, 83).
Both of the jobs
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Specifically, when asked to “[e]xplain in narrative form the
presence and degree of specific understanding and memory capacities
and/or limitations,” Dr. Robbins wrote that Plaintiff “is able to
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that the ALJ found Plaintiff capable of performing – “Cook Helper”
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(DOT 317.687-010) and “Hand Packager” (DOT 920.587-018) — require
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Level
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understanding to carry out detailed but uninvolved written or oral
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instructions.”
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Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir.
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2015), the Ninth Circuit held that a limitation to “one- and two-step
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tasks” conflicts with the demands of Level Two reasoning.5
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Circuit noted that this conflict “is brought into relief by the close
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similarity between [a limitation to one- and two-step tasks] and
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Level One reasoning,” which “requires a person to apply ‘commonsense
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understanding to carry out simple one- or two-step instructions.’”
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Id.
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reasoning,
which
entails
“[a]pply[ing]
commonsense
DOT 317.687-010, 920.587-018 (emphasis added).
In
The Ninth
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Accordingly, the ALJ erred in failing to address or otherwise
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account
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“simple 1-2 step procedures,” and such error was not harmless.6
See,
understand, remember, and follow simple 1-2 step procedures.”
68, 83).
(AR
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for
Dr.
Robbins’s
opinion,
including
the
limitation
to
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This is distinct from a limitation to “simple tasks.” Courts
have found that a person who is limited merely to “simple tasks” can
perform jobs that require Level 2 reasoning.
See, e.g., Abrew v.
Astrue, 303 F. App’x 567, 569 (9th Cir. 2008) (finding “no conflict
between the ALJ's step five determination that [the claimant] could
complete only simple tasks and the [VE’s] testimony that [the
claimant] could do jobs that [require] ‘Reasoning Level 2’”); Meissl
v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (finding that
plaintiff's ability to perform “simple tasks . . . that had some
element of repetitiveness to them” indicated a reasoning level of 2).
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Dr. Robbins’s assessment of Plaintiff’s social limitations
also differs from the RFC, as Defendant acknowledges.
(See Joint
Stip. at 9).
Dr. Robbins opined that Plaintiff “can tolerate
infrequent/casual interactions with co-workers, supervisors, and the
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e.g., Cardoza v. Astrue, 2011 WL 1211469, at *1 (C.D. Cal. Mar. 29,
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2011) (finding that the ALJ erred “because he failed to explain why
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he implicitly rejected the opinion of . . . one of the State agency
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medical
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impairment limited her to performing one and two-step repetitive work
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tasks”); Garcia v. Colvin, 2016 WL 6304626, at *6 (C.D. Cal. Oct. 27,
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2016) (“[T]the ALJ’s simple, repetitive tasks RFC limitation is . . .
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plainly inconsistent with [the state agency reviewing psychologist’s]
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‘easy 1, 2 step directions’ limitation which the ALJ decision never
and
psychological
consultants,
that
plaintiff’s
mental
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mentions.
The ALJ necessarily rejected the latter limitation without
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any explanation as required by Social Security regulations.”); Wilson
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v. Colvin, 2017 WL 1861839, at *6 (N.D. Cal. May 9, 2017) (“Following
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Rounds, a number of district courts in this Circuit have reversed ALJ
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decisions imposing a ‘simple, repetitive tasks’ RFC limit where the
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ALJs fail to address and distinguish conclusions by doctors that
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claimants
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cases)).
can
perform
one-and-two
step
instructions.”
(collecting
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B.
Remand Is Warranted
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The decision whether to remand for further proceedings or order
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an
immediate
award
of
benefits
is
within
the
district
court’s
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public,” and the “[s]upervisory environment should be of a supportive
nature.”
(AR 69, 84 (emphasis added)).
The ALJ found only that
Plaintiff is “limited to frequent contact with the public, coworkers,
and supervisors.”
(AR 17 (emphasis added)).
The jobs of “Cook
Helper” and “Hand Packager” require a level of interaction that is
“not significant,” (DOT 317.687-010, 920.587-018), but it is unclear
whether the nature of that interaction would conflict with Dr.
Robbins’s assessment.
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discretion.
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Where no useful purpose would be served by further administrative
3
proceedings, or where the record has been fully developed, it is
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appropriate to exercise this discretion to direct an immediate award
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of benefits.
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further
7
proceedings.”).
8
case
9
Commissioner’s errors, remand is appropriate.
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Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).
Id. at 1179 (“[T]he decision of whether to remand for
proceedings
suggest
turns
upon
the
likely
utility
of
such
However, where, as here, the circumstances of the
that
further
administrative
review
could
remedy the
McLeod v. Astrue, 640
F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81.
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Since the ALJ failed to specifically address or otherwise
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account for Dr. Robbins’s opinion, it is unclear whether the ALJ
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properly considered the opinion in assessing Plaintiff’s RFC.
Even
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if
into
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account, the record does not affirmatively establish that Plaintiff
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the
ALJ
is disabled.
ALJ
can
properly
credits
or
takes
Dr.
Robbins’s
opinion
The Court remands for further proceedings so that the
consider
Dr.
Robbins’s
opinion,
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resolve any other issues, as necessary.
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//
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//
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//
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as
well
as
address
and
V.
1
ORDER
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For the foregoing reasons, the decision of the Administrative
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Law Judge is VACATED, and the matter is REMANDED, without benefits,
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for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).
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LET JUDGMENT BE ENTERED ACCORDINGLY.
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DATED: February 7, 2018
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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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