Pamela J. Williams v. Carolyn W. Colvin

Filing 21

ORDER by Judge Maria-Elena James granting 14 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. Remanding case to Commissioner for further proceedings. (mejlc3, COURT STAFF) (Filed on 4/19/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAMELA J. WILLIAMS, Case No. 14-cv-02924-MEJ Plaintiff, 8 ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 9 10 NANCY A. BERRYHILL, Re: Dkt. Nos. 14, 17 Defendant. United States District Court Northern District of California 11 12 13 14 INTRODUCTION Plaintiff Pamela J. Williams (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), 15 seeking judicial review of a final decision of Defendant Nancy A. Berryhill (“Defendant”), the 16 Acting Commissioner of Social Security, denying Plaintiff’s claim for disability benefits. Pending 17 before the Court are the parties’ cross-motions for summary judgment. Mot., Dkt. No. 14; Opp’n, 18 Dkt. No. 17. The matter was reassigned to the undersigned on March 6, 2017. Dkt. No. 20. 19 Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral 20 argument. Having carefully reviewed the parties’ positions, the Administrative Record (“AR”), 21 and the relevant legal authority, the Court hereby GRANTS Plaintiff’s motion and DENIES 22 Defendant’s cross-motion for the reasons set forth below. 23 24 BACKGROUND Between 1980 and December 2008, Plaintiff worked as a customer service representative 25 for a telecommunications company. AR 178. For 7.5 hours of her work-day, she sat at a desk; for 26 0.5 hours of her work-day, she walked. AR 179. Her work consisted of handling 100-125 callers 27 per day; she placed customer orders, created customer contracts, and handled billing issues. Id. 28 She alleges she became disabled as of January 2011; she was 49 years old. AR 15, 169. SOCIAL SECURITY ADMINISTRATION PROCEEDINGS 1 In January 2011, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability 2 3 beginning on January 14, 2011. AR 169. After the Social Security Administration (“SSA”) 4 denied Plaintiff’s claim initially and on reconsideration, Plaintiff requested a hearing before an 5 Administrative Law Judge (“ALJ”). AR 102, 108, 113. ALJ Regina Sleater conducted an initial 6 hearing on August 12, 2012, but continued the hearing to allow Plaintiff to obtain representation. 7 See AR 27-44. During the January 17, 2013 supplemental hearing, Plaintiff testified in person and 8 was represented by counsel, Patrick Kelly; the ALJ also heard additional medical expert testimony 9 from Shakil Mohammed, M.D., and testimony from Vocational Expert (“VE”) James Westman. AR 45-93. 11 United States District Court Northern District of California 10 A. Plaintiff’s Testimony A rheumatologist diagnosed Plaintiff with fibromyalgia in 2003. AR 58-59. Plaintiff saw 12 13 her rheumatologist, Dr. Claudia Kuzis, “off and on” from that time through November 2012; she 14 also saw Dr. Cheung for treatment. AR 59-61. Every six months, Plaintiff’s symptoms would 15 flare up and she would take two to three weeks off from work to recuperate. AR 70-71. She did 16 not take medications for her fibromyalgia while she was working, but at the time of the January 17 17th hearing, she was taking Cymbalta and had discontinued taking Gabapentin. AR 69-70. Plaintiff stopped working in 2009, after her employer closed the location where she had 18 19 worked and she chose to take an early retirement package. AR 57-58, 76. Since she stopped 20 working, her condition has progressively worsened: while she used to have a flare-up every six 21 months, since 2010 or 2011, she has been in constant pain. AR 76. She spends most of her day in 22 bed, as constant siting exacerbates her symptoms. AR 75, 77. Some days she will go to the 23 market to shop for light groceries; sometimes her husband will take her out to eat. AR 75. 24 Sometimes she makes breakfast for her husband. AR 75. 25 B. 26 27 28 Vocational Expert’s Testimony VE Westman testified Plaintiff’s past relevant work was “quite straight forward,” as she had “a long continued work history for a telecommunication utility.” AR 81. She worked as a 2 1 customer service representative, which the Dictionary of Occupational Titles (“DOT”) defines as a 2 sedentary position, skilled, with a Skilled Vocational Preparation (“SVP”) level of 5. AR 81. He 3 further testified that “based on the claimant’s description” on page 3 of Exhibit 2E (Plaintiff’s 4 Disability Report), Plaintiff performed the job consistent with the DOT. Id. 5 As is relevant here, the VE testified that a person of Plaintiff’s age, education, and vocational background who can stand and walk for six out of eight hours and sit for six out of 7 eight hours could perform Plaintiff’s past work. AR 82. The same person who needed to change 8 positions for a minute every 15 minutes while seated, without needing to leave the workplace and 9 without “necessary have to be not working if there is something to do that could be done standing” 10 could also perform Plaintiff’s past work. AR 83-84 (Plaintiff could still perform her past relevant 11 United States District Court Northern District of California 6 work under that hypothetical “as long as she could still stand up for that one minute time frame, 12 still communicate with the customer by having the telephone headset.”). A person who could 13 stand and walk for four out of eight hours instead of the six hours posed in the first hypothetical 14 could still work as a customer service representative, even if she were off-task due to pain for less 15 than ten percent of the time, as long as her being off-task was interspersed throughout the day. 16 AR 84-85. If that person were off-task for ten percent or more of the time, however, there would 17 be “pretty substantial erosion” of that position. AR 85. 18 Plaintiff’s counsel attempted to pose another hypothetical based on the Residual Function 19 Capacity (“RFC”) questionnaire submitted by orthopedic consultative examiner Dr. Lara 20 Salamacha, M.D. AR 88, 272-74. He asked the VE whether an individual could work as a 21 customer service representative if she could “stand and walk for at least two hours in the morning 22 and two hours in the afternoon up to six hours total in an eight hour day in thirty minute intervals 23 with five minute rest between intervals,” and “no restrictions on sitting with position changes 24 allowed for five to ten minutes per hour for comfort.” AR 88-89. But the ALJ and Plaintiff’s 25 counsel could not agree on what the orthopedist had meant by “five minute breaks.” AR 88-89. 26 The ALJ assumed the individual would be sitting down but working, with the ability to shift 27 positions sitting five to ten minutes per hour for comfort; counsel assumed “rest” “would mean not 28 3 1 working.” AR 89-92. The issue was not resolved: as the ALJ and counsel agreed, “[i]t is open to 2 question.” AR 92. The VE testified that an individual who was off-task for five minutes at every 3 thirty minute interval, as Plaintiff interpreted “five minute rest breaks[,]” would have “too much 4 time off work.” AR 91. 5 C. The ALJ’s Findings The regulations promulgated by the Commissioner of Social Security provide for a five- 6 7 step sequential analysis to determine whether a Social Security claimant is disabled.1 20 C.F.R. § 8 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or 9 negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential 11 United States District Court Northern District of California 10 inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r 12 Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the 13 Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. 14 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 15 The ALJ must first determine whether the claimant is performing “substantial gainful 16 activity,” which would mandate that the claimant be found not disabled regardless of medical 17 condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ 18 determined that Plaintiff had not performed substantial gainful activity since January 14, 2011.2 19 AR 15. At step two, the ALJ must determine, based on medical findings, whether the claimant has 20 21 a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 22 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 23 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe 24 25 26 27 28 1 Disability is “the inability to engage in any substantial gainful activity” because of a medical impairment which can result in death or “which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 2 Neither the ALJ nor the parties address Plaintiff’s work-related activities, if any, between the time she stopped working in 2009 and the alleged onset date. 4 1 impairments: obesity, fibromyalgia, low back pain/sciatica, and mild carpal tunnel syndrome. AR 2 15. The ALJ found Plaintiff’s depression was non-severe. AR 15-17. 3 If the ALJ determines that the claimant has a severe impairment, the process proceeds to 4 the third step, where the ALJ must determine whether the claimant has an impairment or 5 combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. 6 P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s 7 impairment either meets the listed criteria for the diagnosis or is medically equivalent to the 8 criteria of the diagnosis, she is conclusively presumed to be disabled, without considering age, 9 education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff 10 United States District Court Northern District of California 11 did not have an impairment or combination of impairments that meets the listings. AR 17. Before proceeding to step four, the ALJ must determine the claimant’s RFC. 20 C.F.R. § 12 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical 13 limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing 14 an individual’s RFC, the ALJ must consider all of the claimant’s medically determinable 15 impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 16 404.1545(e). Here, the ALJ determined that Plaintiff has the RFC to perform “light work” with 17 some limitations, including (as relevant to this Motion), standing and/or walking 6 hours in an 8- 18 hour workday, sitting for 6 hours in an 8-hour workday, and she “must change positions if sitting 19 every fifteen minutes for about one minute.” AR 17. 20 The fourth step of the evaluation process requires that the ALJ determine whether the 21 claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 22 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial 23 gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 24 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not 25 disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the VE indicated Plaintiff’s past relevant work 26 was a customer service representative, which is identified as a sedentary, skilled occupation with a 27 SVP level of 5, both as generally performed pursuant to the DOT and as actually performed by 28 5 1 Plaintiff. AR 21. Based on the testimony of the VE, the ALJ determined Plaintiff could perform 2 past relevant work as actually and generally performed, and thus was not disabled. AR 21. Based on the ALJ’s finding at step four, the ALJ did not proceed to the fifth step of the 3 4 analysis. 5 D. 6 ALJ’s Decision and Plaintiff’s Appeal On April 12, 2013, the ALJ issued an unfavorable decision finding that Plaintiff was not 7 disabled. AR 10-26. Plaintiff submitted additional evidence to the Appeals Council and requested 8 review. This decision became final when the Appeals Council declined to review it on April 23, 9 2014. AR 1-8. Having exhausted all administrative remedies, Plaintiff commenced this action for 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judicial review pursuant to 42 U.S.C. § 405(g). On December 10, 2014, Plaintiff filed the present Motion for Summary Judgment. See Mot. On February 2, 2015, Defendant filed a Cross-Motion for Summary Judgment. See Opp’n. LEGAL STANDARD This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a scintilla but less than a preponderance” of evidence that “a reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The court must consider the administrative record as a whole, weighing the evidence that both supports and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). However, “where the evidence is susceptible to more than one rational interpretation,” the court must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Determinations of credibility, resolution of conflicts in medical testimony, and all other ambiguities are to be resolved by the ALJ. Id. Additionally, the harmless error rule applies where substantial evidence otherwise supports 6 1 the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not 2 reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 3 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 4 (9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party 5 attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 6 (2009)). DISCUSSION 7 The parties only contest one issue, namely, whether two of the ALJ’s findings at Step Four 8 9 of the sequential evaluation analysis were supported by substantial evidence: that Plaintiff could perform the job of customer service representative as she had actually performed it; and that 11 United States District Court Northern District of California 10 Plaintiff could perform the job of a customer service representative as it was performed in the 12 general economy. See Mot. 13 A. 14 As Actually Performed The ALJ found Plaintiff had the RFC to sit for 6 hours in an 8-hour day, and to stand 15 and/or walk for 6 hours in an 8-hour work day. Based on this RFC, the ALJ found Plaintiff could 16 perform the position of a customer service representative as she had previously performed it. 17 Plaintiff argues the second finding is not supported by Plaintiff’s testimony or other substantial 18 evidence because there is no evidence Plaintiff sat for only 6 hours a day. Mot. at 5-7. On the 19 contrary, the evidence establishes Plaintiff sat for at least 7.5 hours a day. AR 179. Although 20 Defendant “does not concede” the ALJ erred, she fails to oppose the issue on the merits. See 21 Opp’n at 3. Instead, Defendant contends this argument is irrelevant because there is substantial 22 evidence supporting the ALJ’s finding that Plaintiff could perform her customer service position 23 as it is generally performed in the national economy. Id. 24 The Court finds Plaintiff’s argument is well-taken: there is no evidence in the record that 25 would allow the ALJ to find Plaintiff actually performed her customer service position while 26 seated for only 6 hours in an 8-hour day. The VE testified Plaintiff performed her position 27 “consistent with the DOT” based on Plaintiff’s Disability Report. See AR 81 (citing AR 179). In 28 7 1 that Report, Plaintiff indicates she worked seated at a desk between 7.5 and 8 hours a day. AR 2 179. The ALJ accordingly erred in determining an individual who could sit for no more than 6 3 hours a day could perform the job of customer service representative as Plaintiff actually 4 performed the position. 5 B. As Generally Performed Plaintiff also argues the ALJ’s finding that Plaintiff could perform her prior occupation as 6 7 a customer service representative as it is generally performed in the national economy was not 8 supported by substantial evidence. 1. 9 Consistency of VE’s Testimony with DOT Plaintiff argues the ALJ did not comply with SSR-004p3 because she did not affirmatively 10 United States District Court Northern District of California 11 ask the VE whether his testimony was consistent with the DOT. Mot. at 8-9. When a VE 12 “provides evidence about the requirements of a job or occupation, the adjudicator has an 13 affirmative responsibility to ask about any possible conflict between that [VE] . . . evidence and 14 information provided in the [DOT]” and obtain a reasonable explanation for any apparent conflict. 15 SSR 00-4p. Here, the ALJ did not ask the VE about any possible conflict with the DOT. AR 81- 16 93. Defendant concedes the ALJ “perhaps . . . procedurally erred by not explicitly asking” the VE 17 whether his testimony was consistent with the DOT, but responds that any error was harmless, 18 because Plaintiff cannot identify any conflict between the DOT and the testimony. Opp’n at 3. Plaintiff in fact does identify a conflict with the DOT. The VE testified the DOT classifies 19 20 customer representative positions as “sedentary.” AR 80-81 (“Her job as performed fits nicely 21 within the DOT description of customer service representative.”).4 The SSA defines “sedentary” 22 23 24 25 26 27 28 3 Social Security Regulations “represent precedent final opinions and orders and statements of policy and interpretations of the SSA. [They] reflect the official interpretation of the SSA and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. [They] do not carry the force of law, but they are binding on ALJs nonetheless.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citations, internal quotation marks, and alterations omitted). 4 The VE also testified Plaintiff performed her work consistent with the DOT based on her representation in her Disability Report that she sat between 7.5 and 8 hours in a regular workday. See AR 81, 179. 8 1 work as that which requires a person to remain in a seated position uninterrupted for 2-hour 2 intervals. Mot. at 9; see also Reply at 4 (citing SSR 96-9p & SSR 83-12). For example, SSR 96- 3 9p explains in relevant part that 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. “Occasionally” means occurring from very little up to one- third of the time, and would generally total no more than about 2 hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday. . . . * * * Sitting: In order to perform a full range of sedentary work, an individual must be able to remain in a seated position for approximately 6 hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon break at approximately 2-hour intervals. If an individual is unable to sit for a total of 6 hours in an 8-hour work day, the unskilled sedentary occupational base will be eroded. The extent of the limitation should be considered in determining whether the individual has the ability to make an adjustment to other work. See Alternate sitting and standing below. The fact that an individual cannot do the sitting required to perform the full range of sedentary work does not necessarily mean that he or she cannot perform other work at a higher exertional level. In unusual cases, some individuals will be able to stand and walk longer than they are able to sit. If an individual is able to stand and walk for approximately 6 hours in an 8-hour workday (and meets the other requirements for light work), there may be a significant number of light jobs in the national economy that he or she can do even if there are not a significant number of sedentary jobs. Alternate sitting and standing: An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual’s need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work. 1996 WL 374185, at *3, 6-7 (1996) (emphasis added). 27 28 9 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 SSR 83-12 also addresses sitting and sedentary work, and notes persons who must alternate periods of sitting with standing or walking may not be capable of sedentary work: In some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work. (Persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform a defined range of work.) There are some jobs in the national economy--typically professional and managerial ones--in which a person can sit or stand with a degree of choice. If an individual had such a job and is still capable of performing it, or is capable of transferring work skills to such jobs, he or she would not be found disabled. However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. 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 VS should be consulted to clarify the implications for the occupational base. 1983 WL 31253, at *4 (emphasis added). Plaintiff argues a conflict with the DOT exists because the ALJ found Plaintiff “must 18 change positions if sitting every fifteen minutes for about one minute”—a requirement that 19 conflicts with the SSA’s definition of sedentary work. Mot. at 9; see also Reply at 4. Defendant 20 concedes the DOT does not define what “changing positions every fifteen minutes for about one 21 minute” means, but contends that “[c]hanging positions if sitting every fifteen minutes for about 22 one minute is, on its face, not inconsistent with how one can posture, sitting, when speaking to 23 others on the telephone. Common knowledge tells us that it is perfectly consistent with how one 24 can posture, sitting, when speaking to others on the telephone.” Opp’n at 4. 25 First, Defendant’s argument is unsupported by the record. In posing her second 26 hypothetical to the VE, the ALJ added the limitation that the individual needed to change positions 27 every 15 minutes after she noticed Plaintiff had to get up every fifteen minutes during the hearing. 28 10 1 AR 82 (“I’ve been noticing you have to get up every 15 minutes.”). The ALJ specified the change 2 of positions means an individual “doesn’t have to leave the work place, and doesn’t necessarily 3 have to be not working if there is something to do that could be done standing.” AR 83-84 4 (emphasis added). The VE repeated the hypothetical, clarifying that “[t]he—every 15 minutes—if 5 that one minute could still be rising with one having a headset on then the job could still remain. . . 6 . as long as she could still stand up for that one minute time frame.” AR 84. While the ALJ does 7 not define what is meant by “changing positions” when listing Plaintiff’s RFC in her written 8 decision, the Court cannot accept Defendant’s post hoc rationalization that the ALJ decided to 9 redefine the phrase from the manner in which she had used it during the hearing. See Bray, 554 F.3d at 1225 (“Long-standing principles of administrative law require us to review the ALJ’s 11 United States District Court Northern District of California 10 decision based on the reasoning and factual findings offered by the ALJ—not post hoc 12 rationalizations that attempt to intuit what the adjudicator may have been thinking”).5 Second, the Court cannot find that the failure to identify or explain the conflict between the 13 14 DOT and the VE’s testimony was harmless. The VE testified that customer service 15 representatives could stand one minute every fifteen minutes: “as long as she could still stand up 16 for that one minute time frame, still communicate with the customer by having the telephone 17 headset, which is, I believe, universal nowadays for these customer service reps.” AR 84 18 (emphasis added). His testimony regarding the “universal use of headsets” and the option to sit or 19 stand at will for customer service representatives was brief and speculative; it neither 20 acknowledged nor addressed the conflict with the DOT’s definition of a sedentary position. 21 “[D]istrict court cases from this district have held that a VE’s testimony that a plaintiff who 22 needed a sit/stand option could perform a certain job, where the DOT description did not explicitly 23 provide for a sit/stand option, and the VE did not sufficiently explain the conflict, created 24 reversible error.” Edwards v. Astrue, 2013 WL 1891764, at *8 (N.D. Cal. May 6, 2013) (citing 25 26 27 28 5 This is all the more so given that it would require this Court to find the ALJ did not meet her duty under SSR 96-9p of being “specific as to the frequency of the individual’s need to alternate sitting and standing” in her RFC assessment. 11 1 cases). In Edwards, the 2 [p]laintiff needed a sit/stand option, and although the VE testified that [p]laintiff could perform “light” jobs, the DOT descriptions for those jobs do not discuss the ability to sit or stand at will. This creates an apparent conflict between the VE’s testimony and the DOT. The VE’s testimony did not provide sufficient support for his conclusion so as to justify the conflict. . . . He did not explicitly state that he actually knew that the jobs provided a sit/stand option. Nor did he explain why he thought that half of the jobs did provide a sit/stand option, or explain what data or evidence his opinion was based on. By using the word “think,” the VE implied that his opinion regarding the sit/stand option was nothing more than guesswork or speculation. 3 4 5 6 7 8 9 Id. at *8. VE Westman used the words “I believe” in the same manner the VE in Edwards used “think,” failed to explicitly state he knew that customer service representatives could perform their 10 job while standing for one out of every fifteen minutes, and failed to show he had data or evidence United States District Court Northern District of California 11 to support this opinion. The failure to reconcile the VE’s testimony with the DOT was not 12 harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) (error for ALJ to offer 13 14 “her own speculative explanation to rebut the DOT’s presumptive exertion requirement” and to defer to VE’s “brief and indefinite testimony” and VE’s “personal knowledge and experience as 15 superseding the DOT to the extent that the light exertion label was related to any standing/walking 16 requirements”); Lewis v. Colvin, 2013 WL 5719538, at *1, *8-10 (W.D. Wash. Oct. 21, 2013) 17 (adopting report and recommendation to reverse and remand case for further proceedings where 18 (1) ALJ did not comply with duty to inquire about possible conflicts with DOT; (2) VE’s 19 testimony that jobs were consistent with restriction to one hour of sitting, standing or walking 20 because clerical nature of jobs allowed for sit/stand option appeared to conflict with DOT 21 definition of such work requiring an ability to sit for 2-hour periods; (3) VE did not testify whether 22 jobs upon which ALJ relied were consistent with one-hour limitation ALJ imposed or DOT 23 definition requiring ability to sit for 2-hours; and (4) ALJ failed to acknowledge apparent conflict 24 and explain how she resolved it in decision, simply asserting the testimony was consistent with the 25 DOT). 26 The Court cannot find the ALJ’s failure to reconcile the VE’s testimony with the DOT was 27 28 12 1 harmless. Although the ALJ in her decision asserts the VE’s testimony is consistent (AR 21), the 2 Court finds there is an apparent conflict between the requirement that Plaintiff needs to stand up 3 for one out of every fifteen minutes, and the DOT’s requirement that persons engaged in sedentary 4 occupations need to sit uninterrupted for two hours at a time. 5 2. Time Spent Away from Workstation 6 Plaintiff also argues the ALJ erred because she did not ask the VE whether an individual 7 could work as a customer service representative if she were away from her workstation for 1.5 8 hours per day. Mot. at 10-13. Although Defendant does not respond to this argument (see 9 Opp’n), the Court finds no error here. 10 The VE testified a customer service representative could stand at her workstation one United States District Court Northern District of California 11 minute every fifteen minutes (AR 84), which Plaintiff calculates to 32 minutes per 8-hour 12 workday. Because she can only sit a total of 6 hours, Plaintiff argues that “[f]or the remaining one 13 and a half hours of standing and/or walking[, the representative] is necessarily away from the 14 workstation.” Mot. at 12. That argument is not supported by the VE’s testimony or the ALJ’s 15 decision. On the contrary, the VE testified he thought that headsets were “universal nowadays for 16 these customer service reps” and that Plaintiff could continue to perform her work and speak to 17 customers using such a headset while standing. AR 84. The transcript of the January 2013 18 hearing shows the ALJ discussed sitting postural limitations; standing one minute periods where 19 Plaintiff would continue to work; sitting; and being off-task for different periods of times (less 20 than ten percent of the time, or ten percent or more of the time). But the ALJ never posed a 21 hypothetical where Plaintiff would be “away from the workstation” for any length of time. See 22 AR 82-92. The ALJ does not assume anywhere in her decision that Plaintiff will be away from 23 her desk for 1.5 hours. See AR 17-21. 24 CONCLUSION 25 For these reasons, the Court GRANTS Plaintiff’s Motion for Summary Judgment, 26 DENIES Defendant’s Cross-Motion for Summary Judgment, and REVERSES the ALJ’s 27 decision. This case is REMANDED for further administrative proceedings in accordance with 28 13 1 this Order, including but not limited to the issue of whether an individual who must stand one 2 minute out of every fifteen and who can only sit for six hours in a work day can perform the work 3 of a customer service representative. 4 The Court will enter a separate judgment in accordance with Rule 54. 5 IT IS SO ORDERED. 6 7 8 9 Dated: April 19, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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