Celedon v. Commisioner of Social Security

Filing 28

ORDER Granting Plaintiff's 1 Social Security Appeal and Remanding Action for Further Administrative Proceedings, signed by Magistrate Judge Sandra M. Snyder on 09/11/14. CASE CLOSED. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARYANN CELEDON, 11 12 13 14 15 Case No. 1:13-CV-00449-SMS Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ORDER GRANTING PLAINTIFF'S SOCIAL SECURITY APPEAL AND REMANDING ACTION FOR FURTHER ADMINISTRATIVE PROCEEDINGS (Doc. 1) 16 17 18 Plaintiff Maryann Celedon, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) 19 20 denying her application for disability insurance benefits pursuant to Title II and for supplemental 21 security income (“SSI”) pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) 22 (“the Act”). This action was initially referred to the undersigned pursuant to Local Rule 302(c)(15), 23 and both parties filed their voluntary consent (Docs. 9 & 10) to proceed before a United States 24 Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). The matter is before the Court on 25 the parties‟ cross-briefs, which were submitted without oral argument to the Honorable Sandra M. 26 Snyder, U.S. Magistrate Judge. After a review of the complete record and applicable law, the Court 27 28 will remand for further proceedings. 1 BACKGROUND 1 2 I. Procedural History On December 29, 2009, Plaintiff applied for disability insurance benefits and supplemental 3 4 security income. Plaintiff alleges onset of disability on November 13, 2005. The Commissioner 5 initially denied the claims on April 30, 2010, and upon reconsideration again denied the claims on 6 September 21, 2010. Plaintiff filed a timely request for a hearing on November 17, 2010. 7 On August 26, 2011, represented by counsel, Plaintiff appeared and testified at a video 8 9 hearing presided over by Judson Scott, Administrative Law Judge (“ALJ”). See 20 C.F.R. 404.929 10 et seq. An impartial Vocational Expert (“VE”), Lawrence Hughes, as well as three impartial medical 11 experts, Allan Levin, M.D., Shakil Mohammed, M.D., and John Morse, M.D., also appeared and 12 testified. Time ran short at the first hearing. 13 14 On December 20, 2011, the ALJ presided over a supplemental video hearing. Plaintiff again appeared and testified at the supplemental video hearing, represented by counsel. The VE, Mr. 15 16 17 Hughes, and the three impartial medical experts, Drs. Levin, Mohammed, and Morris, also again appeared and testified. The ALJ denied the application on February 3, 2012. On January 4, 2013, the Appeals 18 19 Council denied review. Plaintiff filed a complaint seeking this Court‟s review on March 27, 2013. 20 II. Administrative Record1 21 A. Plaintiff's Facts and Testimony (August 26, 2011 and December 20, 2011) 22 Plaintiff, born May 13, 1969, lived in a one-story apartment with her companion. Plaintiff 23 24 completed high school, had one year of college, and is able to communicate in English. Plaintiff last 25 worked in 2004 as a telephone operator, and had 20 years of clerical-type experience. At the time of 26 the hearing, Plaintiff was not currently working and had not worked since 2004. 27 Plaintiff does not contest the ALJ‟s findings regarding the medical evidence or the weighing of her credibility. Therefore, the Court summarizes only the disputed vocational evidence. 2 1 28 Plaintiff testified that she had diabetes, fibromyalgia, depression, asthma, irritable bowel 1 2 syndrome, anxiety, arthritis, and pain in her neck, back, and right shoulder. Plaintiff stated that her 3 asthma and diabetes were controlled with medication. As to her psychiatric condition, she testified 4 that she took medications (Zoloft and Xanax), to control her depression and anxiety as prescribed by 5 her physical medicine rehabilitation physician, Bradford Anderson, M.D. However, she was not 6 currently receiving treatment from a psychiatrist. 7 B. Vocational Expert Testimony 8 Lawrence Hughes testified as vocational expert (“VE”). Hughes classified Plaintiff's past 9 10 relevant work as a telephone operator as Specific Vocational Preparation (“SVP”) level 3 – semi- 11 skilled, sedentary exertional level. See DOT Code 235.662-022. Considering the demands of that 12 work, the limitations of Plaintiff‟s Residual Functional Capacity (“RFC”),2 and the Plaintiff‟s entire 13 14 medical-vocational profile, Hughes testified that a similarly capable individual would be able to perform the demands of Plaintiff‟s prior work as it is actually and generally performed. 15 The ALJ posed the following hypothetical (“the First Hypothetical”) to the VE: 16 I‟d like you to assume a hypothetical individual . . . who has the same age, education, and experience as the claimant does, who has the capacity to engage in work at the light exertion level, which would permit the lifting and carrying of up to 10 pounds frequently and up to 20 pounds occasionally with the use of . . . both arms and hands together. However, if the right major arm is used by itself, it would be limited to 10 pounds, up to 10 pounds frequently, and 10 pounds occasionally. The hypothetical person has the capacity to sit, stand, and walk in each posture for up to six hours out of an eight-hour day, however, with a sit-stand option at will for comfort. Posturals are all occasional, except there would be a preclusion from climbing of ladders, ropes, and scaffolds, or crawling. There would be no overhead reaching or work with the right upper extremity. The hypothetical person is precluded from heavy grasping or gripping or torqueing with either hands [sic]. There would be no work at unprotected heights or around hazardous, moving machinery. There would also be no concentrated exposure to dust, gases, or fumes. The hypothetical person requires reasonable access to a bathroom and would also be able to have up to one added unscheduled break per 17 18 19 20 21 22 23 24 25 26 27 28 2 A claimant's “residual functional capacity” is what a claimant can still do despite her limitations. 20 C.F.R. § 404.1545(a). Where those limitations are physical, the Commissioner “considers [the claimant's] ability to do various physical activities” walking, standing, lifting, carrying, pushing, pulling, reaching, handling and “evaluates other physical functions” to determine the claimant's “residual functional capacity for work activity on a regular and continuing basis.” 20 C.F.R. § 404.1545(b). 3 4 day of up to 20 minutes in addition to the three regular breaks during the regular workday. Mental limitations would be the capacity to engage in simple, repetitive one- to three-step tasks; may have frequent contact with coworkers and supervisors; may have occasional public contact; may engage in normal-stress work. And finally, the hypothetical person may be . . . off task up to five to ten percent of the workday on a presumptive basis due to the combination of pain or prescription side effects. With that residual functional capacity . . . is the hypothetical person able to do any of the claimant‟s past work? 5 Before responding, Hughes asked the ALJ to clarify whether this hypothetical individual 1 2 3 6 7 would require a daily unscheduled 20-minute break. The ALJ confirmed that she would. On that basis, Hughes opined that the individual from the first hypothetical would be “unemployable in the 8 9 mainstream.” The VE further testified that a similarly capable individual in a telephone operator 10 position “could not . . . sit/stand at will. She could change position frequently. But if it has to be 11 absolutely at will and she has to be able to perform her job standing, then she could not return to the 12 switchboard job.” 13 14 After reviewing his notes, the ALJ posed a second hypothetical (“the Second Hypothetical”), removing the option for the individual to sit or stand at will, instead requiring the individual‟s ability 15 to change positions frequently for comfort. The VE testified that this hypothetical individual would 16 17 be able to perform the telephone operator position if her unscheduled breaks were approximately 18 five minutes. The VE stated that if the hypothetical RFC limitations required multiple 20-minute 19 unscheduled breaks, then the individual would not be able to perform the telephone operator 20 position. The VE opined that the bright line for employability was an unscheduled twice-daily break 21 22 for a maximum of ten (10) minutes, a duration which, if exceeded, would render the hypothetical individual unemployable. 23 The ALJ posed a third hypothetical, modifying the relevant potential work to “unskilled.”3 24 25 The VE responded that notwithstanding that change, his determination would still hinge on the 26 3 27 28 “Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, we consider jobs unskilled if the primary work duties are handling, feeding, and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or 4 1 duration of any required unscheduled breaks. The VE referenced the Plaintiff‟s application in which 2 she admitted having transferable skills such as experience with clerical duties, filing, writing, 3 operating switchboards, a year of college, and 20-years of clerical type experience. With her 4 transferable skills, the VE opined that additional jobs existed in the national economy which a 5 similarly capable individual could perform. The VE testified that an individual with Plaintiff‟s RFC 6 could perform any sedentary, semi-skilled4 job with an SVP of 3, such as “appointment clerk” (DOT 7 code 237.367-010), with 45,000 jobs available nationally and 4- to 5,000 in California. 8 9 The VE also testified that the hypothetical individual could perform any unskilled, sedentary 10 level job with an SVP of 2, such as “document preparer” (DOT code 249.587-018), with 23,000 11 positions nationally and 2,000 in California, as well as “addresser” (DOT code 209.587-010), with 12 over 16,000 positions nationally and approximately 1,600 in California. 13 14 In a fourth hypothetical, Plaintiff‟s counsel asked the VE to add to the RFC in the First Hypothetical the following moderate impairments: ability to perform simple and repetitive tasks; 15 16 17 ability to maintain a work pace appropriate to the given workload; ability to perform complex or varied tasks; ability to relate to other people beyond giving and receiving instructions; ability to 18 influence people; ability to make generalizations, evaluations, or decisions without immediate 19 supervision; ability to accept and carry out responsibility for direction, control, and planning. The 20 VE testified that where an individual would be moderately unable to perform these functions “for up 21 22 23 24 25 26 27 28 machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled work.” SSR 83-10. 4 “Semiskilled work is work which needs some skills but does not require doing the more complex work duties. Semiskilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, material, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work. A job may be classified as semiskilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.” See Social Security Ruling 83-10; Social Security Regulations §§ 404.1568, 416.968. 5 1 2 3 to 30% of each day,” such an RFC would preclude the hypothetical individual from working in the national economy. Counsel then proposed a fifth hypothetical with the following modifications to the First 4 Hypothetical: that the individual could only occasionally reach, grasp, grip, and torque with her right 5 hand; was limited to lifting five pounds with her right upper extremity; and was moderately to 6 7 severely impaired in her concentration, persistence, and pace. The VE testified that this hypothetical individual would not be able to perform Plaintiff‟s prior work or any other job available in the 8 9 10 national economy. Counsel proposed a sixth hypothetical with the following modifications to the first 11 hypothetical: the individual would have to be able to go to the bathroom three to five times during an 12 eight-hour workday, totaling a required 75 minutes of unscheduled breaks per day. The VE testified 13 14 that such requirements would preclude work. Counsel proposed a seventh hypothetical with the following modifications to the first 15 16 17 18 19 hypothetical: the individual would require two unscheduled 30-minutes breaks to lie down, totaling a required 60 minutes of unscheduled breaks per day. The VE testified that such requirements would also render the hypothetical individual non-employable. Counsel proposed an eighth hypothetical with the following modifications to the first 20 hypothetical: the individual would miss at least three workdays per month, possibly more, due to 21 doctor‟s appointments and/or emergency visits to the doctor. The VE testified that this hypothetical 22 person would be precluded from working in the national economy. 23 24 25 LEGAL STANDARD Congress has provided a limited scope of judicial review of the Commissioner‟s decision to 26 deny benefits under the Act. The record as a whole must be considered, weighing both the evidence 27 that supports and that which detracts from the Commissioner‟s decision. Lingenfelter v. Astrue, 504 28 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). In weighing the 6 1 evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., 2 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). If the ALJ applied the proper legal 3 standards and the ALJ‟s findings are supported by substantial evidence, this Court must uphold the 4 ALJ‟s determination that the claimant is not disabled. See, e.g., Ukolov v. Barnhart, 420 F.3d 1002, 5 104 (9th Cir. 2005); see also 42 U.S.C. § 405(g). Substantial evidence means “more than a mere 6 7 scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1998 (9th Cir. 2008). It is “such relevant evidence as a reasonable mind might accept as adequate to support a 8 9 conclusion.” Burch, 400 F.3d at 679. Where the evidence as a whole can support either outcome, 10 the Court may not substitute its judgment for the ALJ‟s, rather, the ALJ‟s conclusion must be 11 upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 12 13 14 DISCUSSION An individual is considered disabled for purposes of disability benefits if she is unable to engage in any substantial, gainful activity by reason of any medically determinable physical or 15 16 17 mental impairment that can be expected to result in death or that has lasted, or can be expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a) 18 (3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). The 19 impairment or impairments must result from anatomical, physiological, or psychological 20 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic 21 techniques and must be of such severity that the claimant is not only unable to do his previous work 22 but cannot, considering his age, education, and work experience, engage in any other kind of 23 24 25 26 substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D). To encourage uniformity in decision making, the Commissioner has promulgated regulations 27 prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§ 28 404.1520 (a)-(f); 416.920 (a)-(f). In the first-step analysis, the ALJ must determine whether the 7 1 claimant is currently engaged in substantial gainful activity. 20 C .F.R. §§ 404.1520(b), 416.920(b). 2 If not, in the second step, the ALJ must determine whether the claimant has a severe impairment or a 3 combination of impairments significantly limiting her from performing basic work activities. Id. 4 §§ 404.1520(c), 416.920(c). If so, in the third step, the ALJ must determine whether the claimant 5 has a severe impairment or combination of impairments that meets or equals the requirements of the 6 Listing of Impairments, 20 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in 7 the fourth step, the ALJ must determine whether the claimant has sufficient RFC, despite the 8 9 impairment or various limitations to perform his past work. Id. §§ 404.1520(f), 416.920(f). If not, 10 in step five, the burden shifts to the Commissioner to show that the claimant can perform other work 11 that exists in significant numbers in the national economy. Id. §§ 404.1520(g), 416.920(g). If a 12 claimant is found to be disabled or not disabled at any step in the sequence, there is no need to 13 14 consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999); 20 C.F.R. §§ 404 .1520, 416.920. 15 16 17 In the five-step sequential review process to determine whether a claimant qualifies as disabled, the burden of proof is on the claimant at steps one through four, but shifts to the 18 Commissioner at step five. See Tackett, 180 F.3d at 1099. If the ALJ determines that a claimant is 19 either disabled or not disabled at any step in the process, the ALJ does not continue on to the next 20 step. See 20 C.F.R. § 416.920(a)(4). 21 The first step is not at issue. Both Plaintiff and the Commissioner agree that Plaintiff is not 22 currently performing substantial gainful work. See 20 C.F.R. § 416.920(a)(4)(i). At steps two and 23 24 three, the ALJ found that Plaintiff‟s reactive obstructive airway disease, tendonitis and full tear of 25 the rotator cuff, degenerative disc disease of the cervical spine, disc bulge of L5-S1, chronic pain 26 syndrome, gastritis, irritable bowel syndrome, gastroesophageal reflux disease, and depressive 27 disorder not otherwise specified (20 CFR 404.1520(c) and 416.920(c)) were severe impairments, but 28 that none of these impairments alone or in any combination met or medically equaled the severity of 8 1 an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 2 404.1525, 404.1526, 416.920(d), 416.925, 416.926. Plaintiff does not challenge the ALJ‟s 3 construction of her RFC. Therefore, steps two and three are not at issue. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 As an intermediate step between steps three and four, the ALJ must assess the claimant's RFC. See 20 C.F.R. § 416.920(e). The ALJ stated Plaintiff‟s RFC in this way: I find that the claimant has the residual functional capacity to perform a range of light work as defined in 20CFR 404.1567(b) and 416967(b) and SSR 83-10 specifically as follows: the claimant can [lift] and/or carry 20 pounds occasionally and 10 pounds frequently with the use of both arms and hands together; she can [lift] and/or carry up to 10 pounds if she is just using her right arm and hand; she can sit, stand and/or walk for six hours out of an eight-hour workday with the ability to change positions at will for comfort; she is precluded from crawling or climbing ladders, ropes, and scaffolds; she can perform all other postural activities occasionally; she is restricted from performing overhead reaching or work with the right upper extremity; she is precluded from heavy grasping, gripping, or troqing [sic] with either hand; she is prohibited from working at unprotected heights or around hazardous moving machinery; she is restricted from concentrated exposure to dust, gases, or fumes; she requires reasonable access to a restroom; she is permitted to have one additional unscheduled break per day that is under 10 minutes in addition to the three regular breaks during a regular workday; she is limited to performing simple repetitive one to three step tasks; she can have frequent contact with co-workers and supervisors; she can have occasional contact with the general public; she can engage in normal stress work; and she may be off task up to five to 10 percent of the workday on a presumptive basis due to the combination of pain or prescription side effects. Plaintiff does not contest the ALJ‟s construction of her RFC. At step four, the ALJ must determine whether, in light of the claimant‟s RFC, she can return 19 20 to substantial gainful activity performed in the past. 20 C.F.R. § 404.1520(e). Here, the ALJ 21 determined that Plaintiff was capable of returning to her past relevant work as a telephone operator, 22 thus is not disabled. Plaintiff challenges the step-four findings and conclusion. 23 24 25 At step five, the Commissioner must establish that the claimant is capable of performing substantial gainful work. The ALJ presented the above RFC to the VE, who then considered whether an individual burdened with the stated limitations could obtain gainful work in the national 26 economy. The VE testified that Plaintiff could not only return to gainful work in her former capacity 27 28 as a telephone operator, but that she had transferable skills and could transition to work as an 9 1 2 3 appointment clerk, document preparer, or addressor. Accordingly, the ALJ determined that Plaintiff is not disabled. Plaintiff also challenges the step-five findings and conclusion. Plaintiff first challenges the ALJ‟s decision alleging that the ALJ‟s step four finding was 4 erroneous because it was based on vocational expert (VE) testimony that deviated from the 5 Dictionary of Occupational Titles (“DOT”) and the ALJ did not obtain a reasonable explanation 6 7 from the VE for the deviation. Second, Plaintiff argues that the ALJ‟s step-five finding was erroneous because the VE testified that a hypothetical individual with Plaintiff‟s RFC – which 8 9 Plaintiff seems to read as including a sit or stand at will requirement – would be precluded from 10 work, including the three identified alternative occupations. Therefore, Plaintiff argues, the ALJ‟s 11 nondisability determination is not supported by substantial evidence. 12 13 14 The Commissioner counters that the ALJ‟s step-four finding and conclusion is supported by substantial evidence because the VE testified that a hypothetical individual with Plaintiff‟s RFC could perform her prior work. The Commissioner also contends that the ALJ‟s RFC finding did not 15 16 17 include a sit/stand at will requirement, but only that Plaintiff requires changing positions for comfort. On that basis, the Commissioner argues that the ALJ‟s step-four determination was supported by 18 substantial support, was not erroneous, and a step-five analysis is unnecessary. Even so, in a step- 19 five inquiry, the Commissioner contends that Plaintiff‟s age, education and previous work 20 experience direct a finding of not disabled under the Medical-Vocational Guidelines (also known as 21 “the grids”) and, notwithstanding Plaintiff‟s limitations, the VE identified alternative jobs that 22 Plaintiff could perform that exist in significant numbers in the national economy. Therefore, the 23 24 25 26 Commissioner contends that even if the step-four findings and conclusion were in error, it was harmless error because the ALJ‟s step-five findings and conclusion were properly made. For the reasons below, the Court finds that although the ALJ‟s construction of Plaintiff‟s 27 RFC did not include a sit/stand at will requirement, substantial evidence does not support the ALJ‟s 28 findings and conclusion at step four and five. 10 A. Step-Four Analysis (Past Relevant Work) 1 At step four of the sequential analysis, the ALJ relied on the VE‟s testimony to conclude that 2 3 Plaintiff was capable of performing her past relevant work as a telephone operator (also referred to 4 as switchboard operator), as well as other sedentary work that was limited to simple, repetitive tasks. 5 6 7 Plaintiff asserts that the ALJ‟s step-four finding was erroneous because the DOT is silent about whether a person performing a telephone operator job has the ability to sit/stand at will, therefore when the VE testified as to Plaintiff‟s ability to perform her prior position in consideration 8 9 of that requirement, his testimony deviated from the DOT without justification. Plaintiff contends 10 that because the ALJ did not obtain a reasonable explanation from the VE for the discrepancy from 11 the DOT, the ALJ‟s step-four finding lacks the support of substantial evidence. Plaintiff further 12 contends that the ALJ‟s nondisability determination was in conflict with the VE‟s testimony that a 13 sit/stand at will requirement would preclude an individual with Plaintiff‟s RFC from working. 14 The Commissioner argues that the ALJ did not err at step four because the ALJ‟s 15 16 17 18 construction of the RFC did not include a sit/stand requirement. Thus, the Commissioner contends, because the VE‟s testimony is not in conflict with the DOT it serves as sufficient support for the ALJ‟s findings and nondisability determination. The record reflects that at step four, the ALJ relied on the VE‟s testimony that the telephone 19 20 21 operator position has an SVP of 3 and that a similarly capable person with Plaintiff‟s RFC could perform such a semi-skilled, sedentary position. See DOT 235.662-022; see also SSR 00-4p (an SVP 22 of 3 corresponds to semi-skilled work). The VE testified that the telephone operator position was 23 24 25 considered sedentary.5 See DOT Code 235.662-022. The ALJ posed several hypotheticals to the VE. In the Second Hypothetical, the ALJ explicitly modified the First Hypothetical, supra, removed 26 27 28 5 To determine the physical exertion requirements of work in the national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and very heavy. See Code of Federal Regulations § 404.1567. 11 1 2 the sit/stand option, and substituted the requirement that the individual be able to change positions frequently for comfort. When presented with the Second Hypothetical, the VE testified that an individual with the 3 4 same age, education, experience, and physical capabilities as Plaintiff would be able to perform 5 Plaintiff‟s past work as a telephone operator. Notwithstanding Plaintiff‟s mischaracterization of the 6 7 ALJ‟s construction of Plaintiff‟s RFC – which in plain language does not include a sit/stand option6 – the ALJ has “an affirmative responsibility” to ask about any possible conflict between the 8 9 vocational expert‟s evidence and information provided in the Dictionary of Occupational Titles 10 (“DOT”). Masachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); see also SSR 00-4p. The Ninth 11 Circuit, citing Social Security Ruling 00-4p, has stated that the ALJ‟s affirmative responsibility to 12 inquire about a possible deviation is triggered when a vocational expert provides evidence about the 13 14 requirements of a job or occupation. Masachi, 486 F.3d at 1152. The DOT defines the telephone operator job is as follows: 15 Operates cord or cordless switchboard to relay incoming, outgoing, and interoffice calls: Pushes switch keys on cordless switchboard to make connections and relay calls. Plugs cord of cord type equipment into switchboard jacks to make connections and relay calls. May supply information to callers and record messages. May keep record of calls placed and toll charges. May perform clerical duties, such as typing, proofreading, and sorting mail. May operate system of bells or buzzers to call individuals in establishment to phone. May receive visitors, obtain name and nature of business, and schedule appointments [RECEPTIONIST (clerical) 237.367-038]. 16 17 18 19 20 21 See DOT Code 235.662-022. Parsing the VE‟s testimony, the Court finds that the VE gave no testimony modifying the 22 23 DOT‟s job requirements. Indeed, in response to the ALJ‟s hypothetical which listed a similar set of 24 limitations to the ALJ‟s ultimate construction of Plaintiff‟s RFC, the VE referenced the specific 25 26 DOT code for telephone operator and made no modifications. The DOT description of the job requirements demonstrates that these include tasks such as receiving visitors, sorting mail, using the 27 The ALJ determined that the Plaintiff “can sit, stand and/or walk for six hours out of an eight-hour workday with the ability to change positions at will for comfort.” 12 6 28 1 typewriter, and other clerical duties. The DOT‟s description is implicitly consistent with the VE‟s 2 proposition that the hypothetical individual has the minimal degree of choice that would allow an 3 individual to make physical movements from task to task without guidance about how to do so 4 “frequently” with comfort. 5 6 7 However, the distinction between “at will” and “frequently” is meaningful. The VE testified that a similarly capable individual with the same physical capabilities as described in hypothetical two would be able to perform Plaintiff‟s prior work as it is generally performed according to the 8 9 DOT. But his testimony was based on a hypothetical that merely allowed Plaintiff to “frequently” 10 change positions, not to do so “at will” as included in the ALJ‟s final construction of Plaintiff‟s 11 RFC. The VE testified that a similarly capable individual could “frequently” change positions, but 12 he emphasized that “if it has to be absolutely at will and she has to be able to perform her job 13 standing, then she could not return to the switchboard job.” The ALJ did not elicit any other 14 information about an individual‟s degree of choice as to movement “at will” on the job. And the VE 15 16 17 offered no testimony as to whether a similarly capable individual would have the necessary autonomy to change positions “at will” in a telephone operator position as it is generally performed. 18 The DOT is likewise silent. Therefore, the Court cannot conclude that the ALJ‟s step-four findings 19 and conclusion are based on substantial evidence if no such evidence exists, (see, e.g., Bayliss v. 20 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005), and the ALJ did not ask the VE for a justification for 21 this potential conflict (see Massachi, 486 F.3d at 1152). 22 The Court concludes that because the hypothetical posed to the VE did not contain all of the 23 24 limitations that the ALJ ultimately found credible, the ALJ‟s reliance on the VE‟s testimony, in the 25 absence of other evidence or justification for an apparent conflict, does not provide reasonably 26 substantial support. 27 28 The Court‟s inquiry does not end there. The weight of authority in this circuit, including in this district, has concluded that a limitation to simple, repetitive tasks is inconsistent with the DOT‟s 13 1 description of jobs requiring GED reasoning Level 3. Espinoza v. Astrue, No. 5:12-cv-00544-OP, 2 2013 WL 327889, at *3 (C.D. Cal. Jan. 29, 2013) (recognizing that the Ninth Circuit has not 3 addressed the issue directly, but "the weight of authority in this Circuit holds that a limitation to 4 simple, repetitive or routine tasks is incompatible with a reasoning level of 3"); Kim v. Colvin CV 5 13-01841-JEM, 2013 WL 6670335, at *8 (C.D.Cal. Dec. 18, 2013) (same); Gonzales v. Astrue, 6 1:10-CV-01330-SKO, 2012 WL 2064947 (E.D. Cal. June 7, 2012) (same); Torrez v. Astrue, No. 7 1:09-cv-00626-JLT, 2010 WL 2555847, at *8 (E.D. Cal. June 21, 2010) (finding DOT precludes 8 9 claimant limited to simple repetitive tasks from performing jobs that requiring Level 3 reasoning 10 based upon weight of authority in this circuit); Grimes v. Astrue, No. EDCV 09–2208–JEM, 2011 11 WL 164537, at *4 (C.D.Cal. Jan. 18, 2011) (limitation for simple, repetitive tasks not consistent with 12 jobs requiring Level 3 reasoning); Pak v. Astrue, No. EDCV 08–714–OP, 2009 WL 2151361, at *7 13 14 (C.D.Cal. July 14, 2009) (reasoning level 3 conflicts with prescribed limitation that claimant can perform simple, routine tasks); Squire v. Astrue, No. EDCV 06–1324–RC, 2008 WL 2537129, at * 5 15 16 17 18 (C.D.Cal., Jun. 24, 2008) (Reasoning level 3 inconsistent with simple, repetitive work). Tudino v. Barnhart, 2008 WL 4161443, at *11 (S.D. Cal. Sept. 5, 2008) ("Level-two reasoning appears to be the breaking point for those individuals limited to performing only simple repetitive tasks."). 19 Telephone operator is such a job. The position is considered Reasoning Level 3. The VE 20 testified that Plaintiff, or a similarly capable individual, could perform the telephone operator job 21 despite the ALJ‟s construction of Plaintiff‟s RFC in the hypothetical limiting her “to performing 22 simple repetitive one to three step tasks.” The ALJ should have requested a justification for this 23 24 apparent conflict with the DOT in the VE‟s testimony. See Masachi, 486 F.3d at 1152. 25 B. Step-FiveAnalysis (Other Potential Jobs Plaintiff Could Perform) 26 An ALJ‟s error in accepting VE testimony without requesting justification for its deviation 27 from the DOT is harmless if in a proper step-five analysis an ALJ concludes that there are a 28 significant number of other jobs a Plaintiff would be able to perform. Accordingly, if after 14 1 reviewing the record the Court finds that evidence demonstrates that there are a significant number 2 of jobs that Plaintiff can perform either at the local or national level, it must affirm the ALJ‟s 3 decision. Beltran v. Astrue, 700 F. 3d 386, 390 (9th Cir. 2012). 4 5 6 Here, the ALJ concluded that a significant number of unskilled jobs existed in the economy which an individual with Plaintiff‟s limitations could perform. Unskilled work is that which requires little or no judgment to do simple duties that can be learned on the job in a short period of time and 7 needs little specific vocational preparation. See 20 C.F.R. § 416.968(a); see also SSR 83-10. The 8 9 basic mental demands of unskilled work include the ability to understand, carry out, and remember 10 simple instructions. SSR 85-15. The ALJ determined that Plaintiff could perform a range of 11 sedentary work, with a limitation to simple, repetitive tasks. The Ninth Circuit has not directly 12 addressed the issue, although many district courts including this one have found that the grids are 13 14 applicable at step five because a person restricted to simple, repetitive tasks can perform unskilled work. See e.g. Beaupre v. Astrue, 2012 WL 1435032 (E.D. Cal. Apr. 25, 2012) at *11-12 15 16 17 (concluding that claimant‟s restriction to simple repetitive tasks and entry level work “was not sufficiently severe to warrant departure from the grids”); Ramsey v. Astrue, 2012 WL 5499900 (E.D. 18 Cal. Nov. 13, 2012) at *6 (affirming the ALJ‟s reliance on the grids because the claimant‟s RFC for 19 simple repetitive tasks that do not involve more than occasional interaction with the public was 20 “consistent with unskilled work”); Sam v. Astrue, 2010 WL 496718 (E.D. Cal. Dec. 1, 2010) at *11 21 (affirming the ALJ‟s reliance on the grids where Plaintiff was limited to simple, repetitive tasks 22 because “[t]he ability to perform simple, repetitive tasks is consistent with unskilled work”); Tapia v. 23 24 Colvin, 2014 WL 4655829 (C.D. Cal. Feb. 4, 2014) at *4 (collecting cases). 25 Plaintiff does not challenge the ALJ‟s properly drawn conclusion that Plaintiff has the RFC 26 to perform simple, repetitive tasks consistent with SVP Level 2 work. The ALJ relied on the VE‟s 27 testimony to substantiate his conclusion that Plaintiff could perform the positions of “appointment 28 clerk” (DOT 237.367-010) with a Reasoning Level 3 and SVP Level 3; “document preparer” (DOT 15 1 249.587-018) with a Reasoning Level 3 and SVP Level 2; and “addresser” (DOT 209.587-010) with 2 a Reasoning Level 2 and SVP Level 2. Like “telephone operator,” both “appointment clerk” and 3 “document preparer” have a Reasoning Level of 2, which conflicts with the ALJ‟s construction of 4 Plaintiff‟s RFC that she is limited to performing only simple repetitive tasks. 5 6 7 As a result, only one potential job remains which could serve to support the notion that a significant number of jobs existed in the nationally economy that Plaintiff could perform, and about which the VE also testified. The VE testified that the “addresser” job is an unskilled, sedentary 8 9 10 11 position with 16,000 jobs nationally and 1,600 in California, and that a similar unskilled job “allows for shifting position or standing or walking now and again, that sort of thing.” However, the DOT is silent on an individual‟s functional autonomy. The DOT description of 12 “addresser” is as follows, “Addresses by hand or typewriter, envelopes, cards, advertising literature, 13 packages, and similar items for mailing. May sort mail.” DOT 209.587-010. The DOT‟s 14 description of the “addresser” position is not implicitly consistent with the proposition that an 15 16 17 18 19 20 21 22 individual has the degree of choice to move “at will” for comfort as the job is generally performed. Considering that issue, the Court finds Social Security Ruling 83-12 instructive: Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a [vocational expert] should be consulted to clarify the implications for the occupational base. SSR 83-12. Although the ALJ‟s final construction of Plaintiff‟s RFC does not include a sit/stand “at will” option, its plain language limits Plaintiff to those jobs where she can change positions “at will.” If 23 24 unskilled jobs are so particularly structured, the question remains whether the “addresser” position as 25 generally performed is so restrictive as to also disallow the frequent changes of position “at will” 26 required by Plaintiff‟s RFC. However, the ALJ failed to ask the VE to elaborate as to this distinction 27 as it relates to the “addresser” position. The ALJ also failed to ask the VE to justify this possible 28 conflict with the DOT. See SSR 00-4p. If the ALJ does not comply with SSR 00-4p, the ALJ may 16 1 not rely on a vocational expert‟s testimony regarding the requirements of a particular job. Id. (when 2 a VE offers evidence about requirements of a particular job, the ALJ has an affirmative duty to ask 3 whether the VE‟s testimony conflicts with the DOT); see also Massachi, 486 F.3d at 1152. 4 5 6 Therefore, the Court finds that despite the “addresser” position‟s appropriate Reasoning Level, the ALJ failed to fully develop the record to support his finding that a substantial number of jobs existed that could be performed by an individual with Plaintiff‟s limitations. See Stout v. 7 Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054–55 (9th Cir. 2006). On this basis, the Court 8 9 concludes that the ALJ erred in his step-five analysis. 10 C. Harmless Error 11 To determine whether this is harmless error, a court evaluates whether the error could “alter 12 the outcome of the case.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[A]n error is 13 harmless so long as there remains substantial evidence supporting the ALJ‟s decision and the error 14 „does not negate the validity of the ALJ‟s ultimate conclusion.‟”) (quoting Batson v. Comm’r of Soc. 15 16 17 Sec., 359 F.3d 1190, 1197 (9th Cir. 2004)). A reviewing court must consider “an estimation of the likelihood that the result would have been different.” Id. at 1055 (finding that “[t]he ALJ‟s decision, 18 and the record of [claimant‟s] contradictions, make it plain that the ALJ would have reached the 19 same conclusion” as to disability if the ALJ had not erroneously considered ex parte evidence). 20 21 The failure to inquire about an inconsistency with the DOT may be considered harmless if there is no conflict or if the VE‟s testimony provides sufficient support to justify any potential 22 conflict. Massachi, 486 F.3d at 1154 n. 19 (failure to follow SSR 00–4p would have been harmless if 23 24 there had been no conflict between the opinion and DOT) (citing Johnson v. Shalala, 60 F.3d 1428, 25 1435 (9th Cir. 1995)). “In order for an ALJ to accept [VE] testimony that contradicts the [DOT], the 26 record must contain „persuasive evidence to support the deviation.‟ ” Pinto v. Massanari, 249 F.3d 27 840, 846 (9th Cir. 2001) (quoting Johnson, 60 F.3d at 1435). 28 17 1 The Court finds that there is no clear evidence that conflict does not exist between the VE‟s 2 testimony and the DOT. Moreover, the ALJ did not ask for, and the VE did not volunteer, 3 persuasive evidence to support a deviation from the DOT, if any. 4 5 6 As the VE‟s testimony does not show that Plaintiff could perform work that existed in substantial numbers in the national economy and the ALJ‟s determination lacks other support, the Court finds that the ALJ erred in his step-five analysis because it was not supported by substantial 7 evidence. The Court concludes that this error was not harmless because it was potentially 8 9 consequential to the ultimate nondisability determination. CONCLUSION AND ORDER 10 11 12 13 14 Upon a careful review of the full record, the Court is unconvinced that Plaintiff is disabled. Yet, however reluctantly, the Court must remand because of the woefully inadequate record. The Court concludes that the record is not fully developed to provide substantial evidence to support the ALJ‟s nondisability determination. Accordingly, 15 16 17 IT IS HEREBY ORDERED: 1. pursuant to sentence four of 42 U.S.C. § 405(g), that the matter is REMANDED for further proceedings consistent with this decision; and, 18 19 2. the Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Mary Ann 20 Celedon and against Defendant, Carolyn Colvin, Acting Commissioner of Social 21 Security. 22 23 24 25 IT IS SO ORDERED. Dated: September 11, 2014 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 18

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