Cummings v. Berryhill
Filing
27
ORDER Granting Plaintiff's Appeal Vacating The Administrative Law Judge's August 26, 2015 Decision, and Granting Plaintiff's Motion For Summary Adjudication re: 17 ."On the basis of the foregoing, Plaintiff's appeal of the Administrative Law Judges August 26, 2015 Decision is HEREBY GRANTED insofar as the ALJ's Decision is VACATED and the case is REMANDED to the ALJ for further proceedings. In light of these rulings, Plaintiff's Motion for Summary Adju dication, filed September 18, 2017, is also GRANTED.There being no remaining issues in this case, the Court DIRECTS the Clerk's Office to enter judgment and close the case on July 16, 2018, unless a motion for reconsideration of this Order is filed not more than 14 days after this Court's written Order is filed. See Local Rule 60.1." Signed by JUDGE LESLIE E. KOBAYASHI on 6/29/2018. (cib, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TRACEE DAWN CUMMINGS,
)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL,
)
)
)
Defendant.
_____________________________ )
CIVIL 17-00186 LEK-RLP
ORDER GRANTING PLAINTIFF’S APPEAL, VACATING
THE ADMINISTRATIVE LAW JUDGE’S AUGUST 26, 2015 DECISION,
AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION
Before the Court is Plaintiff Tracee Dawn Cummings’s
(“Plaintiff”) Complaint – Social Security Appeal (“Complaint”),
filed on April 25, 2017, in which she appeals from Administrative
Law Judge Nancy Lisewski’s (“ALJ”) August 26, 2015 Decision
(“Appeal”).
The ALJ issued the Decision after conducting a
hearing on June 19, 2015.
[Administrative Record (“AR”) at 29.1]
The ALJ ultimately concluded Plaintiff was not disabled, for
purposes of the Social Security Act, from September 1, 2011
through the date of the Decision.
[Decision at 11.]
On September 18, 2017, Plaintiff filed her “Motion for
Summary Adjudication,” which also constitutes her Opening Brief.
[Dkt. no. 17.]
Defendant Nancy A. Berryhill, Acting Commissioner
of Social Security (“the Commissioner”), filed her Answering
1
The Decision, including the Notice of Decision, is AR
pages 26-39. All subsequent citations to the Decision refer to
the page numbers of the Decision itself.
Brief on November 30, 2017, and Plaintiff filed her Reply Brief
on January 4, 2018.
[Dkt. nos. 20, 21.]
argument in this matter on April 9, 2018.
This Court heard oral
Plaintiff’s Appeal is
granted, and the ALJ’s Decision is vacated.
to the ALJ for further proceedings.
The case is remanded
In light of these rulings,
Plaintiff’s Motion for Summary Adjudication is also granted.
BACKGROUND
On April 1, 2013, Plaintiff filed a Title II
application for disability insurance benefits, alleging a
disability beginning September 1, 2011 (“alleged onset date”).
The claim was denied, initially and on reconsideration.
On
August 14, 2014, Plaintiff filed a written request for a hearing.
At the June 19, 2015 hearing, Plaintiff was represented by
Paula Boyer, a non-attorney representative.
Plaintiff,
Deborah Thompson – Plaintiff’s mother, and Ron Joseph Fleck – an
impartial vocational expert (“VE”) – testified at the hearing.
[Decision at 1.]
In the instant appeal, Plaintiff does not dispute the
ALJ’s findings in steps one through three of the five-step
sequential analysis to determine whether a claimant is disabled.
Thus, the ALJ’s findings as to those steps are only briefly
discussed here.
At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since her alleged onset date.
2
[Id.
at 3.]
According to Ms. Thompson, Plaintiff had a nervous
breakdown in 2011.
[Id. at 8.]
At step two, the ALJ found Plaintiff had the following
impairments that were considered severe: obesity; anxiety; and
post-traumatic stress disorder (“PTSD”).
[Id. at 3.]
At step
three, the ALJ found none of Plaintiff’s impairments, either
individually or in combination, met or medically equaled the
severity of one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
[Id.]
At step four, the ALJ found Plaintiff had the residual
functional capacity (“RFC”) “to perform medium work as defined in
20 CFR 404.1567(c) except she is limited to simple, routine work
with no exposure to hazards.”
[Id. at 5 (emphasis omitted).]
The ALJ found this RFC assessment was “supported by evidence of
significantly improved symptoms with medication and [Plaintiff’s]
activities of daily living.”
[Id. at 11.]
The ALJ noted Plaintiff’s testimony that: she had
anxiety and difficulty with interpersonal interaction; she does
not leave her home and cannot go to unfamiliar places; and
medication has not helped her symptoms.
However, she testified
that therapy has helped her “in learning ‘to breathe through
panic attacks.’”
[Id. at 5.]
The ALJ found Plaintiff’s
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms,” but Plaintiff’s testimony about
3
“the intensity, persistence and limiting effects of these
symptoms [and her physical symptoms was] not entirely credible.”
[Id. at 5-6.]
As to her physical symptoms, Plaintiff asserted she had
a history of back pain, and her weight gain was a significant
contributing factor to the pain.
However, the ALJ found a
February 2013 x-ray and a June 2013 magnetic resonance imaging
scan of Plaintiff’s lumbar spine did not show any abnormalities.
[Id. at 6 (citing Exh. 5F/6-7 & 5 (AR at 381-82 & 380)).2]
Thus,
the objective evidence did “not support the degree of back pain
alleged by [Plaintiff] and indicate[d] that her pain is the
result of obesity.”
[Id.]
Further, the ALJ noted Plaintiff’s
“plan of diet and exercise . . . resulted in positive gains.”
After telling Christopher Russell, R. PA-C,3 in
[Id.]
January 2015 she believed the increase in her back pain was due
to weight gain, and that her goal was to lose one hundred pounds
in a year, Plaintiff reported losing twenty pounds by April 2015
by dieting, using a treadmill, and doing yoga.
[Id. at 6, 8
(citing Exh. 14F/63 & 32 (AR at 688 & 657)).4]
The ALJ ruled
2
Exhibit 5F consists of “Progress Reports, Radiology & Lab
Result Reports” from the West Hawaii Community Health Center
(“WHCHC”). [List of Exhibits, AR at 44.]
3
“RPA-C” refers to Registered Physician Assistant Certified.
4
Exhibit 14F is the “Medical Evidence of Record” from
(continued...)
4
that inconsistencies in the record undermined Plaintiff’s
credibility about the severity of her condition.
For example, in
June 2015, Plaintiff told Patricia Patrick, M.D., she would
require back surgery within three years, but such a
recommendation did not appear in Plaintiff’s records, and the
statement was inconsistent with the imaging results.
(citing Exh. 11F/4 (AR at 565)).5]
[Id. at 8
Further, Plaintiff’s weight
loss activities contradicted the reports that she did not want to
be active during the day.
[Id.]
The ALJ therefore found
Plaintiff was “far more active than alleged,” and a restriction
that she not “be exposed to hazards in the workplace” would be
enough to “prevent any mishaps while working due to her alleged
pain.”
[Id. at 6.]
As to Plaintiff’s psychological symptoms, the ALJ noted
Plaintiff began experiencing anxiety, without medication, while
she was still employed.
In July 2011, Plaintiff reported
anxiety, stress, and increased pressure at work.
She was
diagnosed with general anxiety and was prescribed Wellbutrin and
hydroxyzine.
[Id. (citing Exh. 1F/42-43 (AR at 343-44)).6]
4
(...continued)
WHCHC, which the ALJ received after the hearing.
Exhibits, AR at 44.]
[List of
5
Exhibit 11F is Dr. Patrick’s progress notes for October 2,
2014 to June 11, 2015. [List of Exhibits, AR at 44.]
6
Exhibit 1F consists of records from office visits and
(continued...)
5
Further, the ALJ found the record belied Plaintiff’s claim that
medication was ineffective.
In February 2013, Plaintiff reported
“Klonopin was ‘very helpful’ in treating her anxiety but [she]
was looking for additional relief.”
(AR at 424)).]
[Id. (quoting Exhibit 5F/49
She was prescribed Celexa, but later, in
February 2013, she was switched to Wellbutrin because of Celexa’s
side effects.
[Id. (citing Exh. 5F/41-44 (AR at 416-19)).]
In
April 2013, Plaintiff was “‘doing well’” on Wellbutrin and was
having fewer panic attacks.
392)).]
[Id. at 7 (citing Exh. 5F/17 (AR at
The ALJ noted that, in September 2013, Plaintiff
reported she had to take Klonopin approximately three to four
times a month, but she was not experiencing panic attacks.
(citing Exh. 7F/6 (AR at 454)).7]
[Id.
In February 2014, Mr. Russell
noted Plaintiff had begun therapy with Dr. Patrick, and Plaintiff
“was ‘doing very well overall.’”
at 723)).]
[Id. (quoting Exh. 14F/98 (AR
In August 2014, Dr. Patrick noted Plaintiff had no
side effects from her medication.
at 503)).]
[Id. (citing Exh. 10F/14 (AR
In October 2014, Dr. Patrick noted Plaintiff had
stopped medication, but later that month, Dr. Patrick noted
6
(...continued)
follow-up visits from ZoomCare. [List of Exhibits, AR at 43.]
Zoomcare is in Beaverton, Oregon. See, e.g., AR at 302 (A
Summary of your ZoomCare Visit, dated 10/18/10).
7
Exhibit 7F consists of follow-up visit reports, radiology
reports, and a Physical Therapy Discharge Report from WHCHC.
[List of Exhibits, AR at 44.]
6
Plaintiff “was ‘increasingly stable’ with the aid of medication.”
[Id. (citing Exh. 11F/59 (AR at 620)) (quoting Exh. 11F/53 (AR at
614)).]
By the end of October 2014, Dr. Patrick noted Plaintiff
“was ‘using minimal amounts’ of medication to stay ‘stable.’”
[Id. (quoting Exh. 11F/51 (AR at 612)).]
According to the ALJ,
in March 2015, Plaintiff complained of anxiety attacks at times,
but “was doing better overall with the use of Klonopin.”
(citing Exh. 14F/46 (AR at 671)).]
[Id.
The ALJ noted Plaintiff had
“sufficient energy and motivation to exercise for weight loss” –
as evidenced by the loss of twenty pounds in the beginning of
2015 – and found Plaintiff “attempted to minimize her activities
during the hearing.”
[Id.]
Further, in May 2015, Dr. Patrick
noted Plaintiff “had ‘gradually accepted using meds to help
herself.’”
[Id. at 8 (quoting Exh. 13F/3 (AR at 625).]
Thus,
the ALJ found: “If limited to a work environment that involved
only simple, routine work, then then [sic] [Plaintiff] could
maintain focus and would not experience the type of stress that
could exacerbate her otherwise controlled anxiety.”
[Id. at 7-
8.]
As to Plaintiff’s difficulty leaving her home, the ALJ
noted Plaintiff took a vacation to the United Kingdom that lasted
approximately three weeks, although at the hearing Plaintiff
asserted she had some trouble on the flight.
[Id. at 8 (citing
Exh. 7F/4 (AR at 452), Exh. 14F/150 (AR at 775) (notes from
7
health care providers regarding Plaintiff’s statements about
upcoming trip)).]
The ALJ found Plaintiff’s “ability to navigate
airports, complete long flights, and vacation away from her home
for an extended period indicates that her anxiety symptoms are
significantly better controlled than alleged.”
[Id.]
As to Plaintiff’s cognitive functioning, the ALJ found
testing in July 2014 showed Plaintiff’s “cognitive functioning
has not been significantly affected by [her] psychological
condition.”
[Id. (citing Exh. 14F/155-56 (AR at 780-81).]
Plaintiff also reported to Dr. Patrick in December 2014 that she
and a friend were “learning ‘Elfish.’”
[Id. (citing Exh. 11F/37
(AR at 598)).]
Based upon the inconsistencies in the record and the
fact that Plaintiff’s “understanding of her functioning and the
role of medication may not provide the best insight into her
condition” because of her slow acceptance of the role of
medication in her treatment, the ALJ found Plaintiff was “not
fully credible” and gave “little weight” to her “statements
regarding her functioning.”
[Id.]
Plaintiff’s mother, Ms. Thompson, testified Plaintiff
has lived with her since Plaintiff’s nervous breakdown.
[Id.]
According to Ms. Thompson, Plaintiff “behave[s] in a ‘child-like’
manner,” and Ms. Thompson has “no hope” that Plaintiff is capable
of gainful activity.
[Id. at 9.]
8
The ALJ noted “family members
are not medically trained to make exacting clinical observations”
and found that, although Ms. Thompson was “generally credible as
to her observations, her statements [we]re inconsistent with the
medical evidence of record, which does not support [Plaintiff’s]
allegations, and inconsistent with [Plaintiff’s] reported level
of activity throughout the record.”
[Id.]
The ALJ therefore
declined to give significant weight to Ms. Thompson’s statements
that were inconsistent with the medical record.
[Id.]
The ALJ also gave “very little weight” to Plaintiff’s
global assessment of functioning (“GAF”) scores of forty-five.8
[Id. (citing Exh. 5F/60, 63, 67, 69 (AR at 435, 438, 442, 444);
Exh. 6F/1 (AR at 447)).9]
The ALJ noted GAF scores “are an
attempt to rate symptoms or functioning,” but “[i]n this case, it
8
The GAF Scale measures “the clinician’s judgment of the
individual’s overall level of functioning” as to “psychological,
social, and occupational functioning,” but not “impairment in
functioning due to physical (or environmental) limitations.”
American Psychiatric Association, Diagnostic & Statistical Manual
of Mental Disorders (4th ed. Text Revision 2000) (“DSM-IV-TR”) at
32. The GAF Scale ranges from 0-100. A score between 41-50
represents “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).” Id. at 34 (emphases
omitted). However, the GAF scale has been replaced by another
global measure of disability. See American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders
(5th ed. 2013) (“DSM-V”) at 16.
9
Exhibit 6F is a report on Plaintiff’s mental status, dated
August 9, 2013, by Cynthia Galiano, LMFT. [List of Exhibits, AR
at 44.] “LMFT” refers to “Licensed Marriage and Family
Therapist.”
9
is not evident from a review of the scores in the record which of
these the respective clinicians were rating.”
[Id. (citing
Diagnostic and Statistical Manual of Mental Disorders at 32 (4th
ed. 1994)).]
Further, to the extent the GAF scores were based
upon Plaintiff’s statements about her ability to perform basic
work activities, the scores were “of little value” because
Plaintiff’s “statements about her functioning [we]re less than
fully credible.”
[Id.]
The ALJ also noted “the GAF scale ‘does
not have a direct correlation to the severity requirements in our
mental disorders listings.”
[Id. (citing 65 Fed. Reg. 50,746 at
50,764-50,765 (August 21, 2000) (discussing comments to 20 C.F.R.
pt. 404, subpt. P, app. 1, Listing 12.00D)).]
The ALJ gave “little weight” to Ms. Galiano’s opinion
that, “‘[d]ue to the severity of the depression and the frequency
of panic attacks [Plaintiff] would not be able to work or
maintain regular employment at this time in her life.’”
9-10 (quoting Exh. 6F/2 (AR at 448)).]
[Id. at
The ALJ found
Ms. Galiano’s opinion was not sufficiently supported, was
influenced by Plaintiff’s subjective complaints, and was
inconsistent with the record before the ALJ.
[Id. at 9.]
The ALJ noted “Dr. Patrick opined that [Plaintiff] had
at least marked limitations in cognitive and social factors.”
[Id. at 10 (citing Exh. 13F/2-3 (AR at 624-25)).]
The ALJ gave
this opinion “little weight” for the same reasons as with
10
Ms. Galiano’s opinion.
In particular, the ALJ noted Dr. Patrick
accepted Plaintiff’s statement about needing back surgery within
three years without questioning it.
[Id. (citing Exh. 11F/4 (AR
at 565)).]
The ALJ also considered the opinions of the state
agency consultants and gave them “[g]reat weight . . . because
they [we]re generally consistent with the overall record.”
at 10-11.]
[Id.
Harold Hase, Ph.D., opined that, from September 1 to
December 31, 2011, Plaintiff had: no restrictions on her
activities of daily living; mild difficulties in maintaining
social functioning; mild difficulties in maintaining
concentration, persistence, or pace; and no repeated, extended
episodes of decompensation.
76-86) at 2A/5).10]
[Id. at 10 (citing Exh. 2A (AR at
He also opined that, from January 1, 2013 to
January 1, 2014, Plaintiff had or would have: mild restrictions
on her activities of daily living; moderate difficulties in
maintaining social functioning; mild difficulties in maintaining
concentration, persistence, or pace; and no repeated, extended
episodes of decompensation.
[Id. (citing Exh. 2A/6).]
Further,
he opined Plaintiff would “improve with treatment, but have some
residual weakness in dealing with others due to anxiety.”
10
[Id.
Exhibit 2A is Plaintiff’s Initial Disability
Determination Explanation (“Initial DDE”), dated July 24, 2013.
[List of Exhibits, AR at 40.] Certain parts of the Initial DDE
have their own signature lines.
11
(citing Exh. 2A/9).]
The ALJ found that, based on the findings
by Thomas Christianson, M.D., regarding Plaintiff’s RFC at the
time of the Initial DDE, Plaintiff “could perform the full range
of medium work.”
[Id. at 11 (citing Exh. 2A/7-8).]
D. Lam, Ph.D., found that, in June 2014, Plaintiff had:
mild restrictions on her activities of daily living; moderate
difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence, or pace;
and no repeated, extended episodes of decompensation.
(citing Exh. 5A (AR at 89-102) at 5A/7-8).11]
[Id. at 10
He opined
Plaintiff
could understand, remember, and carry out simple
and detailed instructions; [s]he could attend,
perform, and complete simple tasks with reasonable
pace and persistence; she could behave
appropriately and interact with coworkers and
supervisors, with limited social contact; she
could adapt to routine changes in a low-demand
stetting [sic], avoid hazards, and set goals.
[Id. (citing Exh. 5A/11-12).]
In the Reconsideration DDE,
N. Shibuya, M.D., made the same limitations findings
Dr. Christianson made.
[Id. (citing Exh. 5A/9-10).]
The ALJ
also noted Dr. Hase and Dr. Lam formed these opinions even
without the benefit of evidence of Plaintiff’s improvement with
medication and her ability to exercise and lose weight.
11
[Id.]
Exhibit 5A is Plaintiff’s DDE on reconsideration
(“Reconsideration DDE”), dated June 10, 2014. [List of Exhibits,
AR at 40.] Certain parts of the Reconsideration DDE have their
own signature lines.
12
The ALJ noted Plaintiff had past relevant work as: “an
Administrative Clerk, DOT #219.362-010, SVP 4, and light”;12 and
“an Information Clerk, DOT #237.367-022, SVP 4, and sedentary.”
[Id. at 11.]
Based on the VE’s opinion that someone with the RFC
found by the ALJ could preform either occupation, the ALJ found
Plaintiff was capable of performing either occupation, as she
actually performed them previously or as they are generally
performed.
[Id.]
address step five.
In light of these findings, the ALJ did not
The ALJ ultimately concluded Plaintiff was
not disabled for purposes of the Social Security Act from the
alleged onset date through the date of the Decision.
[Id.]
In the instant Appeal, Plaintiff argues the ALJ erred
in: 1) failing to incorporate Plaintiff’s severe mental
impairments, i.e., anxiety and PTSD, in Plaintiff’s RFC;
2) finding – based on suspect VE testimony – Plaintiff could
perform her past relevant work, which was semi-skilled, even
though Plaintiff was limited to simple, routine work; and
3) finding Plaintiff could perform her past relevant work, both
12
“SVP” refers to “specific vocational preparation.” See
20 C.F.R. § 404.1568(a). SVP is “the amount of lapsed time
required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average
performance in a specific job-worker situation.” U.S. Dep’t of
Labor, Dictionary of Occupational Titles (“DOT”) at App’x C Components of the Definition Trailer (4th ed., rev. 1991). A
level four SVP is “[o]ver 3 months up to and including 6 months.”
Id.
13
of which were Reasoning Level 4 jobs, when a person limited to
simple, routine work cannot perform a Reasoning Level 3 job.
While the Commissioner contests Plaintiff’s first
argument, the Commissioner concedes the ALJ erred in finding that
Plaintiff could perform her past relevant work as an
administrative clerk and an information clerk.
Both occupations
are semi-skilled and require Reasoning Level four and, although
such occupations – as they are described in the DOT – would be
inconsistent with Plaintiff’s limitations, the ALJ failed to
obtain an explanation for the apparent conflict.
Brief at 10-11.]
[Answering
However, the Commissioner contends the errors
were harmless because: Plaintiff failed to prove that she is
unable to perform her past relevant work as a counter attendant;
and, even if there was an error in the ALJ’s step four analysis,
Plaintiff would still be considered not disabled at step five,
based on the Medical-Vocational Guidelines (“Grids”).
STANDARD
I.
Review of Social Security Decisions
The Ninth Circuit conducts a de novo review of a
district court’s order in a social security appeal.
Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Thus, in reviewing the Commissioner’s decision, this Court
applies the same standards the Ninth Circuit applies.
14
A court will only disturb the Commissioner’s decision
if it is not supported by substantial evidence or if it is based
on legal error.
Id.
“Substantial evidence is more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.
2012) (citation and internal quotation marks omitted).
In
reviewing a decision by the Commissioner, a district court must
consider the entire record as a whole.
Id.
Where the inferences
reasonably drawn from the record would support either affirmance
or reversal, the district court may not substitute its judgment
for the ALJ’s.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th
To ensure a court does not substitute its judgment
for the ALJ’s, it must “‘leave it to the ALJ to determine
credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record.’”
Brown-Hunter v. Colvin, 806 F.3d
487, 492 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1098).
II.
Five-Step Analysis
The following analysis applies in cases involving
review of the denial of social security disability benefits.
For purposes of the Social Security Act, a
claimant is disabled if the claimant is unable “to
engage in any substantial gainful activity by
reason of any medically determinable physical or
mental impairment which can be expected to 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). In order to
15
determine whether a claimant meets this
definition, the ALJ employs a five-step sequential
evaluation. Parra v. Astrue, 481 F.3d 742, 746
(9th Cir. 2007); 20 C.F.R. §§ 404.1520(a),
416.920(a). In brief, the ALJ considers whether a
claimant is disabled by determining: (1) whether
the claimant is “doing substantial gainful
activity”; (2) whether the claimant has a “severe
medically determinable physical or mental
impairment” or combination of impairments that has
lasted for more than 12 months; (3) whether the
impairment “meets or equals” one of the listings
in the regulations; (4) whether, given the
claimant’s “residual functional capacity,” the
claimant can still do his or her “past relevant
work”; and (5) whether the claimant “can make an
adjustment to other work.” 20 C.F.R.
§§ 404.1520(a), 416.920(a). The claimant bears
the burden of proof at steps one through four.
Parra, 481 F.3d at 746.
Molina, 674 F.3d at 1110.
If the analysis reaches step five, the
burden shifts to the Commissioner to prove the claimant can
perform other work.
Garrison v. Colvin, 759 F.3d 995, 1011 (9th
Cir. 2014).
DISCUSSION
I.
Harmless Error
Because the Commissioner has conceded ALJ erred by
concluding Plaintiff could perform her past relevant work as
either an administrative clerk or an information clerk, this
Court first addresses the Commissioner’s argument that any error
was harmless.
“An error is harmless if it is inconsequential to the
ultimate nondisability determination, or ‘if the agency’s path
may reasonably be discerned,’ even if the agency ‘explains its
16
decision with less than ideal clarity.’”
Treichler, 775 F.3d at
1099 (some citations and quotation marks omitted) (quoting Alaska
Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 497, 124 S. Ct.
983, 157 L. Ed. 2d 967 (2004)). “‘[T]he burden of showing that an
error is harmful normally falls upon the party attacking the
agency’s determination.’”
Molina, 674 F.3d at 1111 (alteration
in Molina) (quoting Shinseki v. Sanders, 556 U.S. 396, 409, 129
S. Ct. 1696, 173 L. Ed. 2d 532 (2009)).
A.
Step Four Analysis
The ALJ found Plaintiff was “capable of performing past
relevant work in either of the following two occupations” –
administrative clerk or information clerk.
(emphasis added).]
[Decision at 10
The Commissioner contends this erroneous
ruling was harmless because the VE testified a hypothetical
individual with the same limitations Plaintiff had could work as
a counter attendant.
[Answering Brief at 11.]
Plaintiff worked
as a barista and a manager at Borders, but the VE did not
consider the manager position to be past relevant work because
Plaintiff did not “perform long enough as a manager.”13
of 6/19/15 Hrg., AR at 72.]
[Trans.
The DOT equivalent of that position
would be a coffee shop counter attendant, code number
13
“Past relevant work is work that you have done within the
past 15 years, that was substantial gainful activity, and that
lasted long enough for you to learn to do it.” 20 C.F.R.
§ 404.1560(b)(1).
17
311.477-014.
It is an unskilled, SVP 2 occupation that requires
light exertion.
[Id.]
In response to a hypothetical person of
the same age, education, and work background as Plaintiff, who is
limited to medium work that is simple and routine and does not
involve exposure to hazards, the VE responded, “I believe the
counter attendant would work.”
[Id. at 72-73.]
The Commissioner argues that, because Plaintiff had to
burden to prove she was unable to perform all of her past
relevant work and she did not offer any evidence she was unable
to perform the counter attendant position, Plaintiff would still
be deemed not disabled at step four, even without the ALJ’s
error.
[Answering Brief at 11-12.]
The Commissioner is correct
that Plaintiff had the burden of proof as to step four.
Para, 481 F.3d at 746.
See
The Commissioner is also correct that, to
be found disabled at step four, Plaintiff had to prove she was
incapable of performing all of her past relevant work.
See 20
C.F.R. § 404.1560(c)(1) (“If we find that your residual
functional capacity does not enable you to do any of your past
relevant work . . . we will use the same residual functional
capacity assessment when we decide if you can adjust to any other
work.” (emphasis added)); Tsosie v. Berryhill, 717 F. App’x 680,
683 (9th Cir. 2017) (“‘Where an individual cannot perform any of
his earlier jobs, but only one or more tasks associated with
those jobs,’ he cannot return to his past relevant work.”
18
(emphasis added) (quoting Valencia v. Heckler, 751 F.2d 1082,
1087 (9th Cir. 1985))).
Arguably, the VE’s testimony, considered together with
the other evidence in the record, could have supported a finding
that Plaintiff was able to perform her past relevant work as a
counter attendant, which would have required a step four ruling
that she was not disabled.
However, the ALJ’s step four ruling
was not based on Plaintiff’s ability to perform the counter
attendant position.
Not only does the Decision not mention the
counter attendant position, the ALJ expressly found Plaintiff
could perform two of the occupations in her past relevant work –
the administrative clerk and the information clerk.
11.]
[Decision at
This is not merely a situation where the ALJ’s “path may
reasonably be discerned, even if [the ALJ] explains its decision
with less than ideal clarity.”
See Treichler, 775 F.3d at 1099
(citations and internal quotation marks omitted).
The Ninth
Circuit has also stated:
Although we can affirm the judgment of a district
court on any ground supported by the record, Downs
v. Hoyt, 232 F.3d 1031, 1036 (9th Cir. 2000), we
cannot affirm the decision of an agency on a
ground that the agency did not invoke in making
its decision, SEC v. Chenery Corp., 332 U.S. 194,
196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947). Thus,
if the Commissioner’s contention invites this
Court to affirm the denial of benefits on a ground
not invoked by the Commissioner in denying the
benefits originally, then we must decline.
19
Pinto v. Massanari, 249 F.3d 840, 847–48 (9th Cir. 2001)
(emphasis added).
Further, the Ninth Circuit’s
“precedents have been cautious about when harmless
error should be found.” Marsh v. Colvin, 792 F.3d
1170, 1173 (9th Cir. 2015). Ever mindful of our
duty not to substitute our own discretion for that
of the agency, we have emphasized that “the
decision on disability rests with the ALJ and the
Commissioner of the Social Security Administration
in the first instance, not with a district court.”
Id. at 1173. . . .
A reviewing court may not make independent
findings based on the evidence before the ALJ to
conclude that the ALJ’s error was harmless.
[Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050,
1054 (9th Cir. 2006)]; see also Marsh, 792 F.3d at
1172 (a district court may not find harmless error
by “affirm[ing] the agency on a ground not invoked
by the ALJ”). Rather, “[w]e are constrained to
review the reasons the ALJ asserts.” Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). . . .
Brown-Hunter, 806 F.3d at 492 (some alterations in Brown-Hunter)
(emphasis added).
The Commissioner argues that, in Matthews v. Shalala,
10 F.3d 678, 681 (9th Cir. 1993), the Ninth Circuit held there
was “harmless error where the ALJ did not consider the claimant’s
inability to perform one past relevant job because the claimant
had not shown an inability to perform his other past relevant
work.”
[Answering Brief at 11.]
However, the issue in Matthews
was whether “the ALJ erred by improperly excluding from the
vocational expert’s consideration a hypothetical including the
staying in one position limitation.”
Circuit stated:
20
10 F.3d at 681.
The Ninth
other reliable evidence existed in support of the
ALJ’s findings. First, Matthews’ own testimony
that the receiving clerk/inspector position
required a combination of both sitting and
standing is highly probative. Second, the ALJ,
relying on medical evidence, found Matthews’ pain
complaints to be not credible. Although Matthews
argues that the ALJ ignored the staying in one
position limitation in deciding whether he could
return to work, we think it more likely that the
ALJ, having considered this limitation, dismissed
its applicability to the receiving clerk/inspector
work after considering the other evidence.
Whether or not the ALJ erred in not including all
of Matthews’ limitations in a hypothetical is thus
irrelevant given the other reliable evidence. Any
error would have been harmless. See Curry v.
Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990).
Id.
The harmless error analysis in Matthews therefore does not
support the Commissioner’s position in this case – that a
reviewing court can affirm an erroneous past relevant work ruling
based on the claimant’s ability to perform other past relevant
work which was not addressed in the ALJ’s decision.
The
Commissioner’s argument that the ALJ’s erroneous step four
analysis is harmless because Plaintiff failed to prove she was
incapable of performing her past relevant work as a counter
attendant is rejected.
B.
Step Five Analysis
The Commissioner also argues the ALJ’s error in the
step four analysis was harmless because Plaintiff would have been
found not disabled at step five, based on the Grids.
Brief at 12-13.]
[Answering
The Commissioner argues that, in Tommasetti v.
Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008), the Ninth Circuit
21
found the “error at step four harmless because the claimant was
not disabled at step five.”
[Id. at 13.]
However, in that case,
the Ninth Circuit stated:
Although the ALJ’s step four determination
constitutes error, it is harmless error in light
of the ALJ’s alternative finding at step five. At
step five, the ALJ concluded that, assuming
Tommasetti could not perform past work, he could
still perform other work in the national and local
economies that existed in significant
numbers. . . .
Tommasetti, 533 F.3d at 1042 (emphasis added); see also, e.g.,
Davenport v. Colvin, 608 F. App’x 480, 482 (9th Cir. 2015) (“Any
error in the ALJ’s step-four determination that Davenport was
able to perform past relevant work is harmless in light of the
ALJ’s alternative step-five decision, which was supported by
substantial evidence.” (citing Tommasetti v. Astrue, 533 F.3d
1035, 1042 (9th Cir. 2008))).
Unlike in Tommasetti, the ALJ did not set forth an
alternate step five analysis after ruling at step four that
Plaintiff was not disabled.
See Decision at 11.
This Court
therefore cannot conclude the ALJ’s error at step four was
harmless based on a step five analysis.
To do so would be to
affirm the ALJ’s Decision based on an improper post hoc
rationalization.
See Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1225-26 (9th Cir. 2009) (“Long-standing principles of
administrative law require us to review the ALJ’s decision based
on the reasoning and factual findings offered by the ALJ – not
22
post hoc rationalizations that attempt to intuit what the
adjudicator may have been thinking.” (some citations omitted)
(citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575,
91 L. Ed. 1995 (1947))).
The Commissioner’s step five argument
is rejected, and this Court concludes that the ALJ’s error at
step four was not harmless.
Plaintiff’s Appeal is granted, and the ALJ’s Decision
vacated, as to the step four past relevant work analysis.
The
case is remanded to the ALJ for further proceedings.
II.
Residual Functional Capacity
To the extent the Decision addresses whether Plaintiff
was disabled from her alleged onset date through the date of the
Decision and this Court has remanded the case for further
proceedings, the evidence the parties may present during those
proceedings “‘may well prove enlightening’ in light of the
passage of time.”
See Treichler, 775 F.3d at 1101 (quoting
I.N.S. v. Orlando Ventura, 537 U.S. 12, 18, 123 S. Ct. 353
(2002)).
Because that evidence may be relevant to the RFC
analysis, this Court declines to address Plaintiff’s argument
that the ALJ erred in failing to incorporate her severe mental
impairments into her RFC.
CONCLUSION
On the basis of the foregoing, Plaintiff’s appeal of
the Administrative Law Judge’s August 26, 2015 Decision is HEREBY
23
GRANTED insofar as the ALJ’s Decision is VACATED and the case is
REMANDED to the ALJ for further proceedings.
In light of these
rulings, Plaintiff’s “Motion for Summary Adjudication,” filed
September 18, 2017, is also GRANTED.
There being no remaining issues in this case, the Court
DIRECTS the Clerk’s Office to enter judgment and close the case
on July 16, 2018, unless a motion for reconsideration of this
Order is filed not more than 14 days after this Court’s written
Order is filed.
See Local Rule 60.1.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 29, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
TRACEE DAWN CUMMINGS VS. NANCY A. BERRYHILL; CIVIL 17-00186 LEKRLP; ORDER GRANTING PLAINTIFF’S APPEAL, VACATING THE
ADMINISTRATIVE LAW JUDGE’S AUGUST 26, 2015 DECISION, AND GRANTING
PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION
24
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