Robles v. Commissioner of Social Security

Filing 19

ORDER reversing agency's denial of benefits and ordering remand signed by Magistrate Judge Barbara A. McAuliffe on 9/20/2018. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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) Case No.: 1:17-cv-00566-BAM
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) ORDER REVERSING AGENCY’S DENIAL OF
) BENEFITS AND ORDERING REMAND
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JOB ROBLES,

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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INTRODUCTION

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Plaintiff Job Robles (“Plaintiff”) seeks judicial review of a final decision of the Commissioner

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of Social Security (“Commissioner”) denying his applications for disability insurance benefits (“DIB”)

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and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act.1 The

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matter is currently before the Court on the parties’ briefs, which were submitted, without oral argument,

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to Magistrate Judge Barbara A. McAuliffe.

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Having considered the parties’ briefs, along with the entire record in this case, the Court finds

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that the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence in

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The parties consented to the jurisdiction of the United States Magistrate Judge. (Docs. 7, 8.)

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the record as a whole and based upon proper legal standards. Accordingly, the ALJ’s decision is

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REVERSED and the case REMANDED for further proceedings consistent with this order.
FACTS AND PRIOR PROCEEDINGS

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In July 2011, Plaintiff filed applications for disability insurance benefits and supplemental

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security income. AR 437-38, 439-47.2 Plaintiff alleged that he became disabled in June 2009, due to

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bone necrosis of the ankle, cognitive difficulties since grade school, and that he was on methadone for

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pain. AR 497. Plaintiff’s application was denied initially and on reconsideration, and Plaintiff requested

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a hearing before an Administrative Law Judge (“ALJ”). AR 228-31, 236-41. ALJ Evangelina P.

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Hernandez held a hearing on May 16, 2013, and the ALJ issued an order denying benefits on May 31,

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2013. AR 14. Plaintiff appealed, and on October 9, 2014, the Appeals Council vacated the May 2013

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decision and remanded the case to an administrative law judge. AR 14. Following remand, ALJ

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Hernandez held two hearings, and issued a second order denying benefits on September 27, 2016. AR

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11-33, 74-84, 85-121. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied,

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making the ALJ’s decision the Commissioner’s final decision. AR 3-5, 10. This appeal followed.

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Relevant Hearing Testimony

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November 24, 2015

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The ALJ held a hearing on November 24, 2015, in Stockton, California. AR 74-84. Plaintiff

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appeared by videoconference and was represented by his attorney, Amanda Foss. Impartial Vocational

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Expert Stephen Schmidt also appeared. AR 76. Following brief questioning, the ALJ elected to send

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Plaintiff for consultative orthopedic and psychological evaluations. AR 83.

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August 15, 2016

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The ALJ held a second hearing on August 15, 2016, in Oakland, California. AR 85-121.

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Plaintiff appeared with his attorney, Adrien Haddad. Impartial Vocational Expert Gerald Belchick also

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appeared. AR 87.

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In response to questions from his attorney, Plaintiff testified that the primary reason he cannot

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work is due to pain in his right foot. Plaintiff injured his ankle in 2003, and he has received medical

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References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.

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treatment and surgery following the injury. The surgery did not help his pain, and on a typical day the

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pain is a 5 out of 10, even with medications. Certain things exacerbate the pain, such as sitting without

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elevating his fee, walking and standing. AR 88-90.

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When asked about his medications, Plaintiff testified that he takes Vitamin D, methadone, high

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blood pressure medication and “nerve pills.” AR 94. The medications cause dizziness and extreme

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drowsiness, and he takes three to four hour naps every day. AR 95-96. Plaintiff believed it was the

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methadone that made him drowsy. He had allergic reactions to other pain medicine, so he had to return

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to taking methadone. AR 102.

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When asked about his personal care by the ALJ, Plaintiff testified that he has problems because

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he has trouble standing. He also no longer makes meals, helps his mother, takes out the garbage or takes

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public transportation. Additionally, he now has trouble getting along with people because of his

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condition. He has trouble thinking and an inability to concentrate. AR 96-99.

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When asked about his abilities, Plaintiff testified that he can probably walk about twenty minutes

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before his foot starts to swell and he feels more pain. He has to stay off of his foot for at least two days

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before the swelling subsides. Plaintiff further testified that he has now developed a cyst in his left ankle

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because of the problem with his right foot. The cyst causes pain. He uses a cane for walking. AR 100-

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03.

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Plaintiff also testified that he usually goes to the doctor once a month for pain medication refills.

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His new doctor also found that Plaintiff suffered from depression. Plaintiff testified that he suffers more

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depression than anxiety. Plaintiff’s doctor stated that if Plaintiff were at work, he could still deal with

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and interact with supervisors, coworkers and the public, but would not be able to do a lot of detailed

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work, just simple one or two. Plaintiff believed this was fair, but also believed that it would be very

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difficult for him to take a bus and try to sustain a job because he cannot think straight and is always

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sleeping and dizzy. AR 104-06.

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Another doctor said that Plaintiff should use his cane for long and uneven terrain. Plaintiff did

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not think that was fair because he needs his cane all the time. Plaintiff also did not agree that he could

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stand and walk for up to two hours in an eight-hour workday or that he could pick up 20 pounds. Plaintiff

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reported that even when walking with his cane, he will feel pain in his right foot and lose his balance.
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He has fallen about five or six times in the last twelve months when walking without a cane. AR 106-

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07.

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When asked about his ability to do a one or two step job sitting down, Plaintiff testified that he

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would need his leg to be elevated. If not elevated, then he would not be able to concentrate because of

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pain. He also would be sleepy and dizzy from the methadone. AR 108-09. Plaintiff further testified

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that he has trouble sleeping due to pain, which would affect his ability to think and concentrate. AR

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109-10.

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Plaintiff also testified that he had been seeing a psychologist, but she retired. Plaintiff was

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contacted about continuing his appointments with a psychologist, but he thought the weather was too

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hot for him to be out waiting for the bus. Plaintiff stated that extreme heat and extreme cold bring out

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pain in his ankle. AR 112.

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Following Plaintiff’s testimony, the ALJ elicited testimony from the Vocational Expert (“VE”)

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Gerald Belchick. The VE testified that Plaintiff’s past work was characterized as deli worker and

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restaurant worker. AR 113-14. The ALJ also asked the VE a series of hypothetical questions. For the

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first hypothetical, the ALJ asked the VE to assume that someone like Plaintiff could do medium work.

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He could stand or walk four hours in an eight-hour workday before needing a ten-minute break, he could

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never climb ladders, ropes or scaffolds, but occasionally climb ramps or stairs and all other postural

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were occasional. He had to avoid concentrated exposure to extreme heat and concentrated exposure to

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extreme cold. His work would be limited to simple as defined in the DOT as SVP levels 1 and 2, routine

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and repetitive tasks. He would need to work in a low stress job defined as having only occasional

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decision-making and occasional changes in the work setting. The VE testified that this person could

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perform Plaintiff’s past relevant work. He also could perform other medium jobs and light jobs.

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Examples at the light level include rental counter clerk, information clerk, and mail clerk. AR 114-16.

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For the second hypothetical, the ALJ asked the VE about a person who could do medium work,

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could never climb ladders, ropes or scaffolds, occasionally could climb ramps or stairs, occasionally

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could balance, frequently could stoop, crouch, kneel and crawl. This person also had to work in jobs

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limited to simple as defined in the DOT as SVP levels 1 and 2, routine and repetitive, needed to work

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in a low stress job as defined as having only occasional decision making, only occasional changes in the
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work setting, and had to avoid concentrated exposure to extreme heat. This person also could walk and

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stand for four hours. The VE testified that this was a sit-stand option, meaning that he could do his work

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while standing and while seated. The VE testified that there were jobs in the economy that this person

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could perform such as cashier II, but this person would not be able to perform Plaintiff’s past work. AR

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116-17.

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For the third hypothetical, the ALJ asked the VE to assume a person of Plaintiff’s age, education

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and work experience who could perform light work. He could stand or walk for four hours and sit for

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six hours, and would need a sit or stand option. He could never climb ladders, ropes, or scaffolds,

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occasionally could climb ramps or stairs, occasionally balance, and frequently could stop, crouch, kneel

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and crawl. He would need to avoid concentrated exposure to extreme cold and concentrated exposure

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to extreme heat. He would be limited to simple work as defined in the DOT as SVP levels 1 and 2,

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routine and repetitive and would need to work in a low stress job defined as having only occasional

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decision making, only occasional change in the work setting. The VE testified that this person could

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not perform Plaintiff’s past work, but he could perform jobs called cashier II. AR 118-19.

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Following the ALJ’s questioning, Plaintiff’s counsel inquired of the VE regarding the cashier II

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jobs. In response, the VE testified that there would not be an option for the hypothetical person to

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elevate one of their feet while sitting. If that person could not elevate the foot and would be off task for

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15% of the time, the VE testified that the person would not be employable. If this person also needed

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any sort of unscheduled breaks, it would be an aberration and not used for an example. AR 119-20.

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Medical Record

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The relevant medical record was reviewed by the Court, and will be referenced below as

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necessary to this Court’s decision.

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The ALJ’s Decision

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Using the Social Security Administration’s five-step sequential evaluation process, the ALJ

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determined that Plaintiff was not disabled under the Social Security Act. AR 14-33. Specifically, the

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ALJ found that Plaintiff had not engaged in any substantial gainful activity since June 24, 2009, his

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alleged onset date. Further, the ALJ identified personality disorder, history of ostechorndritis dessicans

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of the right ankle status post-surgery, degenerative joint disease of the right ankle, obesity, a somatoform
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disorder, mild degenerative disc disease of the lumbar spine and affective disorder as severe

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impairments. AR 17-18. Nonetheless, the ALJ determined that the severity of Plaintiff’s impairments

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did not meet or equal any of the listed impairments. AR 18-21. Based on her review of the entire record,

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the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light

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work, except he could stand for four hours and walk for two hours. He could stand or sit for thirty

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minutes at a time, and sit for three hours. He required the option to sit or stand alternatively at will, but

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would not experience being off task for more than five percent of the work period. He could never

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operate foot controls with the right foot and should never climb ladders, ropes or scaffolding. He could

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occasionally climb ramps and stairs, and occasionally balance. He could frequently stoop, crouch, kneel

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and crawl. He should avoid concentrated exposure to temperature extremes. He also retained the mental

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abilities and attitudes to engage in simple (SVP 1 and 2), routine and repetitive tasks. He also required

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a low stress occupation with at most occasional decision making or changes in the work setting. AR

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21-31. With this RFC, the ALJ found that Plaintiff could not perform any past relevant work, but there

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were other jobs existing in significant numbers in the national economy that he could perform, such as

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cashier. AR 32-33. The ALJ therefore concluded that Plaintiff was not disabled under the Social

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Security Act. AR 37.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision to deny

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benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court

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must determine whether the decision of the Commissioner is supported by substantial evidence. 42

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U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402

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U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n.

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10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be considered,

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weighing both the evidence that supports and the evidence that detracts from the Commissioner’s

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conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making

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findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d

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1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s determination that the claimant
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is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner’s

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findings are supported by substantial evidence. See Sanchez v. Sec’y of Health and Human Servs., 812

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F.2d 509, 510 (9th Cir. 1987).
REVIEW

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In order to qualify for benefits, a claimant must establish that he or she is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which has

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lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §

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1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such

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severity that he or she is not only unable to do his or her previous work, but cannot, considering his or

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her age, education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The

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burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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Plaintiff identifies two alleged errors: (1) the VE testified in apparent conflict with the Dictionary

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of Occupational Titles (“DOT”) with respect to the representative position of cashier; and (2) the ALJ

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failed to articulate specific and legitimate reasons for rejecting Plaintiff’s credibility
DISCUSSION3

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A. VE Testimony

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At step five of the sequential evaluation, the ALJ assessed whether there were other jobs in the

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national economy that Plaintiff could perform based on his age, education, work experience and

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functional abilities. In response to a hypothetical question based on Plaintiff’s age, education, work

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experience and RFC, the VE testified that such an individual would be able to perform the requirements

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of a representative unskilled, exertionally light occupation such as cashier (DICOT 211.462-010). AR

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33, 118-19.

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Plaintiff now asserts that the ALJ erred by failing to reconcile an apparent conflict between his

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RFC to perform simple, routine and repetitive tasks and the Level 3 Reasoning requirements of the

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The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments,
points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to
be construed that the Court did not consider the argument or brief.

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cashier job. Plaintiff is correct that there is an apparent conflict between his RFC limitation to simple,

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routine and repetitive work and the demands of Level 3 Reasoning required by the cashier position.

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Zavalin v. Colvin, 778 F.3d 842, 846-47 (9th Cir. 2015) (holding “there is an apparent conflict between

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the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3

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Reasoning”). “When there is an apparent conflict between the vocational expert’s testimony and the

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DOT—for example, expert testimony that a claimant can perform an occupation involving DOT

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requirements that appear more than the claimant can handle—the ALJ is required to reconcile the

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inconsistency.” Id. at 846 (citing Massachi v. Astrue, 486 F.3d 1149, 1153–54 (9th Cir. 2007)). The

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ALJ must ask the expert to explain the conflict and “then determine whether the vocational expert’s

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explanation for the conflict is reasonable” before relying on the expert’s testimony to reach a disability

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determination. Id. Here, the ALJ did not ask the expert to explain why a person with Plaintiff’s

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limitation to simple, routine and repetitive tasks could nevertheless meet the demands of Level 3

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Reasoning. The ALJ’s failure to inquire about the conflict is error.

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Defendant contends that this error is harmless, noting that “[a]lthough Plaintiff did not finish

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high school, Plaintiff’s treating psychiatrist Dr. Savage concluded that Plaintiff had the intellectual

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ability to achieve at the vocational college level and provided him with information about attending

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college and getting an educational grant,” Plaintiff “had past experience performing reasoning level 2

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work,” and the medical record did not demonstrate that “Plaintiff has reduced reasoning capabilities that

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would prevent him from working as a cashier.” (Doc. No. 18 at pp. 16-17.)

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Defendant’s argument is unavailing. Reasoning Level 3 in the context of cashier jobs means the

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ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or

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diagrammatic form. Deal with problems involving several concrete variables in or from standardized

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situations.” See CASHIER II, DICOT 211.462-010, 1991 WL 671840. According to the record,

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however, the ALJ gave great weight to the opinion of Dr. Les P. Kalman, the consultative psychiatric

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examiner, who determined in December 2015 that Plaintiff could understand, remember and carry out

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simple one and two-step job instructions, but had moderate limitations in the abilities to understand and

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remember complex instructions, carry out complex instructions, and to make judgments on complex

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work-related decision. AR 31, 941. Dr. Kalman also noted that Plaintiff’s medical records included an
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IQ of 90 (AR 937), Plaintiff’s education was limited to 11th grade in special education (AR 938), and

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his mental limitations were based on a learning disorder, along with memory and focus issues (AR 941).

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Thus, Dr. Kalman apparently set simple, routine and repetitive tasks as the highest level of Plaintiff’s

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ability. On this record, the Court cannot conclude that substantial evidence supports the ALJ’s step-five

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finding that Plaintiff could perform the work of cashier, which requires Reasoning Level 3. Massachi,

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486 F.3d at 1154. As a result, this case will be remanded so that the ALJ can address the conflict with

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the VE’s testimony.

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B. The Court Declines to Address Plaintiff’s Remaining Arguments

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Having found that remand is warranted, the Court declines to address Plaintiff’s remaining

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arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to

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the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); see

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also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court

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need not address the other claims plaintiff raises, none of which would provide plaintiff with any further

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relief than granted, and all of which can be addressed on remand.”).

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C. Remand is Required

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The decision whether to remand for further proceedings or order an immediate award of benefits

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is within the Court’s discretion. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When

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no useful purpose would be served by further administrative proceedings, or where the record has been

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fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id.

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at 1179 (“the decision of whether to remand for further proceedings turns upon the likely utility of such

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proceedings”). However, where there are outstanding issues that must be resolved before a

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determination of disability can be made, and it is not clear from the record the ALJ would be required

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to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id.

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Here, there are outstanding issues that must be resolved before a final determination can be made.

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Specifically, the ALJ’s failure to inquire as to the conflict between the VE’s testimony and the DOT

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was error. On remand, the ALJ must take the testimony of a VE to determine whether there are jobs in

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the national economy that Plaintiff is able to perform despite his mental limitations. Although the Court

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understands the importance of expediting disability claims; remanding this case for further
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administrative proceedings will serve a useful purpose in the resolution of this case. Varney v. Sec’y of

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Health & Human Serv., 859 F.2d 1396, 1401 (9th Cir. 1988). The Court therefore concludes that remand

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for further administrative proceedings is appropriate.

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CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s disability determination warrants

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remand. Accordingly, the decision is REVERSED and the case REMANDED to the ALJ for further

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proceedings consistent with this decision. The Clerk of the Court is DIRECTED to enter judgment in

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favor of Plaintiff.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 20, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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