Masterson v. Colvin

Filing 21

ORDER Adopting 17 Report and Recommendation. Granting 13 Plaintiff's Motion for Summary Judgment. Denying 15 Defendant's Cross-Motion for Summary Judgment. Remanding the Matter for Further Proceedings. Signed by Judge Gonzalo P. Curiel on 08/18/2017. (Certified copy mailed to SSA). (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARLENE ELIZABETH MASTERSON,

Case No.: 3:16-cv-01300-GPC-WVG

Plaintiff,

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v.

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ORDER:

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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(1) ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION;

Defendant.
(2) GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT;

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(3) DENYING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT; AND

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(4) REMANDING THE MATTER
FOR FURTHER PROCEEDINGS

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[ECF Nos. 13, 15, 17.]

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On May 31, 2016, Plaintiff Arlene Elizabeth Masterson (“Plaintiff” or

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“Masterson”) filed a Complaint seeking judicial review of a final decision by Carolyn W.

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Colvin, the Acting Commissioner of the Social Security Administration (“Defendant” or
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“Commissioner”),1 denying Plaintiff’s applications for a period of disability, disability

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insurance benefits (“DIB”), and supplemental security income (“SSI”) on the basis that

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Plaintiff was not disabled. (Dkt. No. 1.)

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The parties filed cross-motions for summary judgment. (Dkt. Nos. 13, 15.) On

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July 11, 2017, Magistrate Judge William V. Gallo issued a report and recommendation

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(“Report”) recommending that the undersigned judge grant Plaintiff’s motion for

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summary judgment, deny Defendant’s cross-motion for summary judgment, and remand

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the matter for further proceedings by the administrative law judge (“ALJ”). (Dkt. No.

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17.) Defendant filed objections to the Report on July 25, 2017, (Dkt. No. 18), and

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Plaintiff filed a response to Defendant’s objections, (Dkt. No. 19-1). Having reviewed

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the parties’ arguments, the record, and the applicable law, the Court ADOPTS the

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Magistrate Judge’s Report.

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LEGAL STANDARD

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I.

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Standard of Review of Magistrate Judge’s Report and Recommendation
The district court’s duties in connection with a Report from a magistrate judge are

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set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district

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court “may accept, reject or modify, in whole or in part, the findings and

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recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court need

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not review de novo those portions of a Report to which neither party objects. See Wang

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v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328

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F.3d 1114, 1121–22 (9th Cir. 2003) (en banc). When no objections to a Report are made,

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the Court may assume the correctness of the magistrate judge’s findings of fact and

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decide the motion on the applicable law. Campbell v. U.S. Dist. Ct. for the N. Dist. of

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California, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215,

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1217 (S.D. Cal. 2001).

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Commissioner Nancy A. Berryhill is substituted for Commissioner Carolyn W. Colvin pursuant to
Federal Rule of Civil Procedure 25(d) and 42 U.S.C. § 405(g).
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II.

Standard of Review of Commissioner’s Final Decision

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Section 205(g) of the Act permits unsuccessful claimants to seek judicial review of

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the Commissioner’s final agency decision. 42 U.S.C. § 405(g). The reviewing court may

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enter a judgment affirming, modifying, or reversing the Commissioner’s decision, and

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may also remand the matter to the Social Security Administrator for further proceedings.

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Id.

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The scope of the reviewing court is limited; it may only “set aside the ALJ’s denial

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of benefits . . . when the ALJ’s findings are based on legal error or are not supported by

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substantial evidence in the record as a whole.” Parra v. Astrue, 481 F.3d 742, 746 (9th

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Cir. 2007) (internal quotations omitted). “‘Substantial evidence’ means more than a mere

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scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Robbins v. SSA, 466 F.3d 880, 882

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(9th Cir. 2006). However, “[e]ven if the evidence is susceptible to more than one rational

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interpretation, [the court] must uphold the ALJ’s findings if they are supported by

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inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111

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(9th Cir. 2012).

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III.

Determination of Disability

For purposes of the Social Security Act, a claimant is disabled if she is unable “to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42

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U.S.C. § 423(d)(1)(A). In order to determine whether a claimant meets this definition,

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the ALJ employs a five-step sequential evaluation. 20 C.F.R. § 416.920(a); Molina, 674

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F.3d at 1110. If the ALJ determines that a claimant is either disabled or not disabled at a

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step in the process, the ALJ does not continue on to the next step. See 20 C.F.R.

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§ 416.920(a)(4); Bray v. Comm’r of SSA, 554 F.3d 1219, 1222 (9th Cir. 2009). In brief,

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the ALJ considers whether the claimant is disabled by determining: (1) whether the

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claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe,
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medically determinable physical or mental impairment or combination of impairments

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that has lasted for more than 12 months; (3) whether the impairment “meets or equals”

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one of the listings in the regulations; (4) whether, given the claimant’s residual functional

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capacity (“RFC”), the claimant can still do his or her “past relevant work”; and (5)

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whether the claimant “can make an adjustment to other work.” 20 C.F.R. § 416.920(a).

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Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s

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RFC. See 20 C.F.R. § 416.920(e); Bray, 554 F.3d at 1222–23; Garrison v. Colvin, 759

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F.3d 995, 1011 (9th Cir. 2014). The burden of proof is on the claimant at steps one

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through four but shifts to the Commissioner at step five. Bray, 554 F.3d at 1222.

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DISCUSSION
Defendant objects to the Magistrate Judge’s Report on three grounds.2 (Dkt. No.

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18.) Each is discussed in turn below.

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I.

Waiver of the Substantial Gainful Activity (“SGA”) Issue

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Plaintiff argued to the Appeals Council that the ALJ erred in finding that her past

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work was performed at the level of substantial gainful activity, as her past work did not

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meet the minimum monthly earnings thresholds to qualify as such. (Dkt. No. 17 at 15–

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16.) The Magistrate Judge concluded that although Plaintiff failed to raise the SGA issue

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before the ALJ, Plaintiff ultimately did not waive the issue, because she presented it to

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the Appeals Council when she sought review of the ALJ’s decision. (Id. at 17–18.)

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Defendant relies upon Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999), to argue that

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Plaintiff waived the SGA issue by failing to raise it in front of the ALJ in the first

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instance. (Dkt. No. 18 at 2–4.) In Meanel, the claimant “relie[d] on new statistics that

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she admittedly failed to raise at both her hearing before the ALJ and the Appeals

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Council.” 172 F.3d at 1115 (emphasis added). The Ninth Circuit observed that “[t]he

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No objections were made to the remainder of the Magistrate Judge’s Report. Accordingly, the Court
limits its discussion to Defendant’s three objections. See Reyna-Tapia, 328 F.3d at 1121–22. The
Magistrate Judge’s description of the proceedings below are incorporated by reference. (See Dkt. No.
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ALJ, rather than this Court, was in the optimal position to resolve the conflict between

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Meanel’s new evidence and the statistical evidence provided by the VE.” Id.

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Accordingly, the Ninth Circuit held that, “at least when claimants are represented by

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counsel, they must raise all issues and evidence at their administrative hearings in order

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to preserve them on appeal.” Id.

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Meanel is distinguishable. First, the claimant in Meanel failed to raise the new

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statistical evidence at her hearing before either the ALJ or the Appeals Council. See 172

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F.3d at 1115. Meanel’s holding requires represented claimants to “raise all issues and

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evidence at their administrative hearings in order to preserve them on appeal.” Id. The

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holding does not, however, specify which level of the administrative process is the

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terminus for purposes of waiver. See id. Second, recent Ninth Circuit authority disfavors

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Defendant’s position. See Lamear v. Berryhill, No. 15-35088, 2017 WL 3254930, at *4

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(9th Cir. Aug. 1, 2017) (publication forthcoming). In Lamear, the Ninth Circuit rejected

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the Commissioner’s argument that claimant’s counsel waived an issue by failing to raise

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it during the hearing in front of the ALJ. See id. The Ninth Circuit distinguished Meanel,

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noting that “[u]nlike the claimant in Meanel, Lamear raised this issue to the Appeals

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Council.” Id.

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The Court OVERRULES Defendant’s first objection.
II.

Apparent Conflict Between the Vocational Expert’s (“VE’s”) Testimony
and Dictionary of Occupational Titles (“DOT”)

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“In determining whether an applicant is entitled to disability benefits, an ALJ may

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consult a series of sources, including a [vocational expert (“VE”)] and the [Dictionary of

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Occupational Titles (“DOT”)].” Lamear, 2017 WL 3254930, at *2. “If the expert’s

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opinion that the applicant is able to work conflicts with, or seems to conflict with, the

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requirements listed in the Dictionary, then the ALJ must ask the expert to reconcile the

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conflict before relying on the expert to decide if the claimant is disabled.” Gutierrez v.

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Colvin, 844 F.3d 804, 807 (9th Cir. 2016). The conflict must be “obvious or apparent.”

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Id. at 808.
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The Magistrate Judge concluded that the ALJ erred at step five by failing to ask the

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VE to reconcile the apparent conflict between the VE’s testimony and the overhead

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reaching requirements detailed in the DOT. (Dkt. No. 17 at 21–25.) Specifically,

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Plaintiff’s RFC limited her to reaching overheard with her right arm on only an

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occasional basis, or up to one-third of the day. (See id. at 23.) Despite this limitation, the

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VE identified three jobs—mail clerk, small parts assembler, and garment folder—that

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required frequent or constant reaching under the DOT. (See id. (DOT notes that mail

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clerks and small parts assemblers perform frequent reaching between one-third to two-

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thirds of the time, and that garment folders perform constant reaching two-thirds of the

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time or more).) Problematically, the definition of reaching entails extending the hands

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and arms in any direction, which Plaintiff cannot do with her right arm. (See id.) The

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VE’s testimony exceeded Plaintiff’s RFC and created an apparent conflict with the

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requirements listed in the DOT.

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Relying on Gutierrez v. Colvin, 844 F.3d 804 (9th Cir. 2016), Defendant argues

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that there was no apparent conflict between the VE’s testimony and the DOT. (Dkt. No.

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18 at 4–7.) At issue in Gutierrez was “whether overhead reaching is such a common and

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obvious part of cashiering that the ALJ should have recognized a conflict and questioned

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the expert more closely before concluding that Ms. Gutierrez could work as a cashier.”

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Gutierrez, 844 F.3d at 807. Specifically,

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the applicant could not reach above shoulder level with her right arm. The VE
opined that she could work as a cashier, and the ALJ did not specifically question
the VE about how the applicant could do this in light of her inability to reach
overhead with her right arm. The applicant in Gutierrez . . . argued that the ALJ
should have recognized a conflict between the DOT and the VE’s testimony, and
questioned the VE more closely.

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Lamear, 2017 WL 3254930, at *3 (citing Gutierrez, 844 F.3d at 807). Notwithstanding
the above, the Ninth Circuit “held there was no error because, based on common
experience, it is ‘unlikely and unforeseeable’ that a cashier would need to reach

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overhead, and even more rare for one to need to reach overhead with both arms.” Id.

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(citing Gutierrez, 844 F.3d at 808–09 & 809 n.2).
Lamear is again instructive. In Lamear, the Ninth Circuit emphasized that “‘[t]he

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requirement for an ALJ to ask follow up questions is fact-dependent,’ and the more

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obscure the job, the less likely common experience will dictate the result.” Id. at *3

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(quoting Gutierrez, 844 F.3d at 808). Further, “[t]o avoid unnecessary appeals, an ALJ

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should ordinarily ask the VE to explain in some detail why there is no conflict between

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the DOT and the applicant’s RFC.” Id. In Lamear,

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The VE opined that an individual with Lamear’s limitations, which included being
able only “occasionally” to handle, finger, and reach overhead with his left, nondominant hand and arm, but with no limitations on his right side, . . . could still
work as an office helper, mail clerk, or parking lot cashier, even though the DOT
states that these jobs require “frequent” handling, fingering, and reaching.

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Id.

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The Ninth Circuit distinguished Gutierrez:

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Contrary to the facts in Gutierrez, we cannot say that, based on common
experience, it is likely and foreseeable that an office helper, mail clerk, or parking
lot cashier with limitations on his ability to “handle, finger and feel with the left
hand” could perform his duties. The DOT’s lengthy descriptions for these jobs
strongly suggest that it is likely and foreseeable that using both hands would be
necessary to perform “essential, integral, or expected” tasks in an acceptable and
efficient manner. . . . Moreover, all three jobs require workers to “frequently”
engage in handling, fingering, and reaching, which means that these types of
activities could be necessary for as much as two-thirds of the workday. Absent
anything in the record to explain this apparent discrepancy, we must reverse and
remand so the ALJ can ask the VE to reconcile these jobs with Lamear’s left hand
limitations.

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Id.
Here, the positions of mail clerk, small parts assembler, and garment folder, while
not obscure, are not so commonplace that “common experience” can easily resolve the
conflict. As in Lamear, common experience does not dictate that it is likely and
foreseeable that a mail clerk, small parts assembler, or garment folder with limitations on
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her ability to reach overhead with her right arm could perform her duties. This is

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particularly true where all three jobs require workers to frequently or constantly engage

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in reaching—indeed, reaching may be necessary for up to two-thirds of the workday for

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mail clerks and small parts assemblers, and for up to the entire workday for garment

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folders.

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Moreover, Defendant’s argument that Plaintiff’s left arm was not similarly limited

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as her right arm does not answer the question of whether the DOT’s reaching

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requirements are unilateral or bilateral, “an issue that has divided many courts.” Lamear,

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2017 WL 3254930, at *3. Here, as in Lamear, the Court “cannot determine from this

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record, the DOT, or . . . . common experience whether the jobs in question require both

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[arms], so we cannot say the ALJ’s failure to inquire was harmless.” Id.; see also

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Pearson v. Colvin, 810 F.3d 204, 211 (4th Cir. 2015) (“Although we could guess what

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these occupations require in reality, it is the purview of the ALJ to elicit an explanation

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from the expert as to whether these occupations do, in fact, require frequent bilateral

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overhead reaching.”).

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The Court OVERRULES Defendant’s second objection.

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III.

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Dr. Kotha’s Report and Basis for Remand

Defendant objects that the Magistrate Judge erroneously recommended remanding

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the matter based on Dr. Kotha’s assessment. (Dkt. No. 18 at 7–9.) It is plain, however,

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that the Magistrate Judge did not base his recommendation on Dr. Kotha’s report.3 (See

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Dkt. No. 17 at 25–30.) Rather, remand was recommended on account of the ALJ’s

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failure to develop the record in two areas—the SGA factors and the apparent conflict

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It is undisputed that “the administrative record includes evidence submitted to and considered by the
Appeals Council,” as “[t]he Commissioner’s regulations permit claimants to submit new and material
evidence to the Appeals Council and require the Council to consider that evidence in determining
whether to review the ALJ’s decision, so long as the evidence relates to the period on or before the
ALJ’s decision.” Brewes v. Comm’r of SSA, 682 F.3d 1157, 1162 (9th Cir. 2012) (citing 20 C.F.R. §
404.970(b)).
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between the VE’s testimony and the DOT. (See id.) The Report explicitly recommends

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that the ALJ should also consider Dr. Kotha’s assessment on remand. (See id. at 27.)

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Further, the Report does not conclude that Dr. Kotha’s assessment disturbs the

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substantial evidence supporting the ALJ’s decision. (See id. at 29.) Rather, the Report

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notes that while questions of reliability or credibility may affect Dr. Kotha’s report, the

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ALJ, not the Court, is ultimately in the best position to resolve these evidentiary concerns

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and determine the full significance—if any—of Dr. Kotha’s report on the ALJ’s own

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RFC findings. (See id.)

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The Court OVERRULES Defendant’s third objection.

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CONCLUSION
For the foregoing reasons, the Court OVERRULES Defendant’s objections and

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ADOPTS the Magistrate Judge’s Report and Recommendation. (Dkt. No. 17.) The

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Court GRANTS Plaintiff’s motion for summary judgment, (Dkt. No. 13), DENIES

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Defendant’s cross-motion for summary judgment, (Dkt. No. 15), and REMANDS the

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matter for further proceedings by the ALJ.

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IT IS SO ORDERED.
Dated: August 18, 2017

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