Barreto v. Berryhill

Filing 24

REPORT AND RECOMMENDATION (AGS): The Court recommends that plaintiff's summary judgment motion (ECF No. 15 ) be granted, defendant's summary judgment motion (ECF No. 21 ) be denied, and the case be remanded. Any objection to is due by August 22, 2019. A party may respond to any objection within 14 days of receiving it. Signed by Magistrate Judge Andrew G. Schopler on 08/08/2019.(mxa)

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NOT FOR PUBLICATION

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARIA B.,

Case No.: 18-cv-0755-BEN-AGS
Plaintiff,

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v.

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REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS

Andrew M. SAUL, Commissioner of
Social Security,

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Defendant.

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In rejecting a Social Security disability benefits application, an Administrative Law

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Judge pointed to three suitable jobs for this vision-impaired plaintiff. But she lacks the

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required reasoning skill for two of those jobs. And the third involves distinguishing colors,

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a real problem for her. Because this Court doubts that she can do any of the identified work,

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the case should be reversed and remanded.

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BACKGROUND

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Plaintiff Maria B. applied for disability benefits based on her impaired vision and

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other health issues. (AR 21-22.) At Step Two of the five-step disability evaluation process,

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the ALJ concluded that Maria had several “severe” conditions, including multiple sclerosis

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and migraine headaches. (AR 21.) But the judge found that her vision problems were not

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“severe” and thereafter did not consider them. (AR 21-22.) At Step Four, the judge found

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that Maria was only able to do “light work” and further restricted her to “one and two step
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routine tasks.” (AR 24.) Based on these limitations, a vocational expert testified that Maria

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could find work as a “garment bagger,” “inspection and hand packer,” or “survey worker.”

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(AR 28.) So, at Step Five, the ALJ concluded that she was employable and not disabled.

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DISCUSSION

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On appeal, Maria argues that she cannot perform any of these proposed occupations.

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She claims that the ALJ erred in analyzing her employability by: (1) improperly ignoring

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the effect of her lost color vision, and (2) failing to reconcile her “one and two step routine

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tasks” limitation with the identified jobs. (ECF No. 15, at 12, 15.)

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A.

Step Two: Severity of Vision Impairment

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Before reaching the issue of employability, the Court must first resolve whether

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Maria’s vision problems were “severe.” At Step Two, the claimant has the burden of

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showing “a medically severe impairment or combination of impairments.” Bowen v.

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Yuckert, 482 U.S. 137, 140-41, 146 n.5 (1987). That burden is slight. The Step Two

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severity inquiry is a “de minimis screening device used to dispose of groundless claims,”

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and an ALJ may only find an impairment to be non-severe if that conclusion is “clearly

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established by medical evidence.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)

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(alterations omitted).

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Although the ALJ ruled that Maria’s visual impairment was non-severe, the medical

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evidence establishes the opposite. The ALJ focused entirely on Maria’s visual acuity, not

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her deteriorating ability to distinguish colors. (See AR 22 (“20/40 on the right; 20/30 on

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the left,” with correction).) In fact, the ALJ identified no evidence to suggest Maria’s color-

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vision deficits were manageable. On the other hand, the administrative record is replete

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with evidence of her color-vision troubles. (See, e.g., AR 55 (“she has a hard time seeing

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colors”); AR 61 (“color changes in vision in both eyes”); AR 70 (“deficiency, acquired

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color vision OS [left side]”); AR 348 (“has lost color vision in the left eye”); AR 355

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(“[decreased] color vision red looks grey”); AR 502 (“losing color perception in her eyes

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due to M.S.”); see also AR 37, 40, 44, 51, 63, 65, 356, 360, 436, 489.)

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This mountain of color-vision evidence is more than enough to meet the de minimis

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Step Two severity threshold. Thus, Maria’s color-vision impairment is “severe,” and the

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Social Security Administration erred by holding otherwise.1

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B.

Step Five: Capacity for Other Work

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This Step Two error infected the Step Five analysis, when the ALJ failed to account

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for Maria’s severe color-vision deficiency in analyzing the jobs she could handle. And the

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ALJ’s Step Five errors were not confined to the color-vision issue.

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At Step Five, the ALJ “has the burden ‘to identify specific jobs existing in substantial

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numbers in the national economy that [a] claimant can perform despite [her] identified

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limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). To that end, the ALJ

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looks to the Department of Labor’s Dictionary of Occupational Titles, which sets forth the

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physical and educational prerequisites for various jobs. Id. at 846.

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When a vocational expert testifies that a claimant “can perform an occupation

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involving [Dictionary] requirements that appear more than the claimant can handle,” the

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ALJ must “reconcile the inconsistency.” Zavalin, 778 F.3d at 846. “For a difference

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between an expert’s testimony and the Dictionary’s listings to be fairly characterized as a

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conflict, it must be obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir.

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2016). In other words, “the testimony must be at odds with the Dictionary’s listing of job

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requirements that are essential, integral, or expected.” Id. If the ALJ fails to resolve such a

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conflict, the resulting “gap in the record” may require reversal. Zavalin, 778 F.3d at 846.

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1. Garment Bagger―Color Vision Requirements

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The vocational expert testified that Maria could work as a “garment bagger”

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(AR 28), which requires the use of color vision “occasionally.” See Bagger (Garment;

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In fairness to the ALJ, some of the color-vision evidence was added to the record
later, during the Appeals Council’s review. (See AR 37-70.) Nonetheless, when new
evidence is included before the Appeals Council, “that evidence becomes part of the
administrative record,” and the district court “must consider [it] when reviewing the
Commissioner’s final decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157,
1163 (9th Cir. 2012).
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Laundry & Rel.), 920.687-018, Dictionary of Occupational Titles, 1991 WL 687965

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(Jan. 1, 2016). The ALJ failed to resolve the conflict between this job prerequisite and

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Maria’s apparently disqualifying color-vision impairment, which was error.

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2. Survey Worker and Hand Packager―Reasoning Requirements

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Maria complains that the ALJ also failed to reconcile the conflict between her limited

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reasoning ability and the other two jobs picked for her―“survey worker” and “inspection

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and hand packager.” The Commissioner does not argue otherwise, with good reason. The

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ALJ restricted Maria to “one and two step routine tasks” (AR 24), which corresponds to

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Level 1 reasoning, the lowest level. Appendix C – Components of the Definition Trailer,

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Dictionary of Occupational Titles, 1991 WL 688702 (G.P.O) (Jan. 1, 2016). By contrast,

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both these jobs require more complex reasoning skills. See Inspection and Hand Packager

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(Plastic Prod.), 559.687-074, Dictionary of Occupational Titles, 1991 WL 683797 (Jan. 1,

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2016) (inspection and hand packager: Level 2 reasoning); Survey Worker (Clerical)

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Alternate Titles: Interviewer; Merchandising Representative; 205.367-054, Dictionary of

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Occupational Titles, 1991 WL 671725 (Jan. 1, 2016) (survey worker: Level 3 reasoning).

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See generally Appendix C – Components of the Definition Trailer, Dictionary of

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Occupational Titles, 1991 WL 688702 (G.P.O) (Jan. 1, 2016) (explaining the various

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reasoning levels).

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So, the ALJ erred by failing to resolve the apparent conflict between Maria’s

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minimal reasoning skills and the higher reasoning requirements of these two jobs. See

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Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015) (finding reversible

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error when the “ALJ did not recognize the apparent conflict” between the claimant’s

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“Level One reasoning” limitation to “one to two step tasks” and the vocational expert’s

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testimony that claimant could handle jobs requiring “Level Two reasoning”); Zavalin, 778

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F.3d at 847 (finding reversible error for “failing to reconcile [the] apparent conflict” when

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the ALJ “did not ask the expert to explain why a person with Zavalin’s [Level 2 reasoning]

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limitation could nevertheless meet the demands of Level 3 Reasoning” in the identified

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jobs).
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C.

Harmless Error Analysis

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An ALJ’s error is harmless when it is “inconsequential to the ultimate nondisability

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determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

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The only possible harmless-error argument here would be that garment baggers’

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“occasional” color-vision duties do not occur frequently enough for Maria’s impairments

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to be disqualifying. The Social Security Administration defines the term “occasionally” as

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“from very little up to one-third of the time, and would generally total no more than about

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2 hours of an 8-hour workday.” SSR 96-9P (S.S.A.), 1996 WL 374185, at *3 (July 2, 1996).

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Since a garment bagger may need to distinguish colors up to a third of the time, this Court

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cannot deem harmless the ALJ’s failure to meaningfully grapple with Maria’s eye

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problems.

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D.

Remedy

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Because the ALJ’s errors prevent this Court from relying on any of the identified

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jobs, the Court must decide “whether to remand . . . for additional evidence, or simply to

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award benefits.” See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). Courts

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generally remand for calculation of benefits when: (1) the record is “fully developed”;

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(2) the ALJ failed to provide “legally sufficient reasons for rejecting evidence”; and

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(3) crediting the rejected evidence as true, the ALJ would be required to find the claimant

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disabled. Id. at 682-83. But when “the record as a whole creates serious doubt as to whether

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the claimant is, in fact, disabled,” the court should remand for further proceedings.

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Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). “If additional proceedings can

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remedy defects in the original administrative proceeding, a social security case should be

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remanded for further proceedings.” Trevizo, 871 F.3d at 682 (alterations and quotation

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marks omitted).

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The record here is fully developed, and the ALJ committed procedural error. Yet

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even crediting all the color-vision evidence as true, the ALJ would not necessarily have to

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find Maria disabled. The vocational expert never addressed the effect of Maria’s color-

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vision limitation on her ability to find work. “In cases where the testimony of the vocational
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expert has failed to address a claimant’s limitations as established by improperly

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discredited evidence, we consistently have remanded for further proceedings rather than

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payment of benefits.” Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). The Court

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sees no reason to depart from that practice now, so further proceedings are in order.

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CONCLUSION

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The Court recommends that Maria B.’s summary judgment motion (ECF No. 15) be

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GRANTED, defendant’s cross-motion for summary judgment (ECF No. 21) be DENIED,

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and the case be remanded for further proceedings. The parties must file any objections to

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this report by August 22, 2019. See 28 U.S.C. § 636(b). A party may respond to any

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objection within 14 days of receiving it. Fed. R. Civ. P. 72(b)(2).

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Dated: August 8, 2019

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