Ellison v. Astrue

Filing 23

MEMORANDUM DECISION AND ORDER Petitioner's request for review (Dkt. 1 ) is hereby GRANTED. This matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Decision and Order. re: 1 Petition for Review filed by Tara Ellison. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

TARA J. ELLISON
Case No. CV 13-0065-E-REB
Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
CAROLYN W. COLVIN, Commissioner of Social
Security,
Respondent.

Now pending before the Court is Petitioner Tara J. Ellison’s Petition for Review (Dkt. 1),
filed February 8, 2013, seeking review of the Social Security Administration’s final decision to
deny her disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having
carefully reviewed the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On June 29, 2009, Tara J. Ellison (“Petitioner”) applied for Social Security Disability
Insurance Benefits, alleging a disability onset date of November 19, 2008, when she was 35
years old. AR 150. Petitioner’s claim was initially denied and, again, denied on reconsideration.
AR 70, 72. Petitioner timely filed a Request for Hearing before an Administrative Law Judge
(“ALJ”). On August 4, 2011, ALJ Robert J. Labrum held a hearing at which time Petitioner,
represented by attorney Ronald Miller, appeared and testified. AR 38-68. Vocational expert
Terri Marshall and claimant’s husband, Chet Morris, appeared and testified as well. Id. At the

MEMORANDUM DECISION AND ORDER - 1

time of the hearing, Petitioner had past relevant work as a cashier. AR 32.
On September 16, 2011, the ALJ issued a decision, denying Petitioner’s claims, finding
that Petitioner was not disabled within the meaning of the Social Security Act. AR 23-33.
Petitioner timely requested review from the Appeals Council on September 30, 2011. AR 19.
The Appeals Council then denied review on November 9, 2012 (AR 3-5) rendering the ALJ’s
decision the Commissioner’s final decision. Plaintiff now seeks judicial review of the
Commissioner’s decision to deny benefits. Petitioner contends the ALJ erred in assessing
whether Petitioner’s residual functional capacity precluded past relevant work, improperly
rejected medical evidence from the treating physician and examining physician, and failed to
give legally sufficient reasons for rejecting Petitioner’s testimony.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health,
Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less

MEMORANDUM DECISION AND ORDER - 2

than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony,
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel.
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), and drawing inferences logically
flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the
evidence is susceptible to more than one rational interpretation in a disability proceeding, the
reviewing court may not substitute its judgment or interpretation of the record for that of the
ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a

MEMORANDUM DECISION AND ORDER - 3

sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,
disability benefits are denied, regardless of how severe her physical/mental impairments are and
regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ
found that Petitioner had not engaged in SGA after November 19, 2008, the alleged onset date.
AR 25.
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.

MEMORANDUM DECISION AND ORDER - 4

If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ found that Petitioner had the following severe impairments: attention deficit hyper activity
disorder (ADHD), bipolar disorder, generalized anxiety disorder, syncopal episodes of unknown
etiology. AR 25.
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an
impairment (or combination of impairments) that meets or medically equals a listed impairment
AR 26.
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity is sufficient for the claimant to perform past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional
capacity is her ability to do physical and mental work activities on a sustained basis despite
limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s
past relevant work is work performed within the last 15 years or 15 years prior to the date that
disability must be established; also, the work must have lasted long enough for the claimant to
learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b),

MEMORANDUM DECISION AND ORDER - 5

404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual
functional capacity to perform a full range of work at all exertional levels but with the following
nonexertional limitations: can never climb ladders, ropes or scaffolds; can not tolerate exposure
to hazards such as machinery and unprotected heights; can make only simple work-related
judgments and decisions; and can understand, remember and carry out only short and simple
instructions. AR 27-32. The ALJ also determined that Petitioner was capable of performing past
relevant work as a cashier and, therefore, not disabled. AR 32.
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th
Cir. 1993). If the claimant is able to do other work, he is not disabled; if the claimant is not able
to do other work and meets the duration requirement, he is disabled. Because the ALJ found
Petitioner not disabled at step four, he did not need to address step five. AR 33-34.
B.

Analysis
1.

Petitioner Credibility

The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
The ALJ’s findings must be supported by specific, cogent reasons. The reasons an ALJ gives for
rejecting a claimant’s testimony must be supported by substantial evidence in the record.
Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999).

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In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including consideration of claimant’s reputation for truthfulness and inconsistencies
in claimant’s testimony, or between claimant’s testimony and conduct, as well as claimant’s
daily activities, claimant’s work record and testimony from physicians and third parties
concerning the nature, severity and effect of the symptoms of which claimant complains.
Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ may consider:
location, duration and frequency of symptoms; factors that precipitate and aggravate those
symptoms; amount and side effects of medications; and treatment measures taken by claimant to
alleviate those symptoms. See Soc. Sec. Ruling (SSR) 96-7p.
In assessing Petitioner’s credibility, the ALJ stated that her “allegations are somewhat
out-of-proportion to the medical findings, and generally not compatible or reasonably consistent
with the medical evidence of record and all other evidence - and therefore not fully persuasive.”
AR 29. The ALJ did not find Petitioner to be malingering but rather found that “she can perform
at higher levels than she states, or perceives she can.” Id. The ALJ specifically noted that while
Petitioner complained of chronic fatigue and digestive problems, there is no diagnosis of chronic
fatigue syndrome or irritable bowel syndrome in the record. Additionally, her syncopal
episodes were never observed and never medically diagnosed. The ALJ also found that
Petitioner’s mental limitations were minimized with treatment and that her lower GAF1 ratings
came during times of situational and familial stressors, or when she was not receiving treatment.

1

GAF stands for Global Assessment of Functioning and is a numeric scale used by
mental health clinicians and physicians to subjectively rate the social, occupational, and
psychological functioning of adults. The scale is presented and described in the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV-TR) published by the American Psychiatric
Association.
MEMORANDUM DECISION AND ORDER - 7

Id.
Petitioner challenges the ALJ’s credibility determination and argues that the ALJ relies
on boilerplate language that has been rejected by several courts as being insufficient and that
“lack of objective medical evidence” is always a legally insufficient reason for an adverse
credibility determination.
The Court disagrees with Petitioner’s characterization of the ALJ’s credibility
determination. The ALJ did not rely solely on “lack of objective medical evidence.” He
acknowledged that there was no diagnosis of chronic fatigue syndrome or irritable bowel
syndrome in the record. Consideration of a physician’s testimony or treatment notes regarding
the nature of symptoms of which Petitioner complains is a proper credibility consideration.
Petitioner complains of chronic fatigue and digestive problems and the ALJ noted that while
these symptoms have been noted by physicians, there has been no diagnosis of either disorder.
AR 25-26. Another proper consideration is physician’s testimony on the severity and effect of
Petitioner’s symptoms. The ALJ identified differences between GAF ratings that occurred in
close proximity and noted that certain familial stressors seemed to account for these differences
and these same stressors often aggravated and intensified Petitioner’s functional limitations. AR
29. The ALJ also noted that Petitioner’s symptoms seemed less severe with she was compliant
with psychiatric treatment. Treatment measures are another proper factor to consider. AR 29.
Additionally, although included in an earlier section of the ALJ’s decision, the ALJ
discusses Petitioner’s activities of daily living and finds she only has “mild restrictions,” noting
that she’s able to care for personal needs and perform multiple household tasks, including
cleaning, laundry, shopping and caring for her husband and children. AR 26.

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As the trier of fact, the ALJ is in the best position to make credibility determinations and,
for this reason, his determinations are entitled to great weight. Anderson v. Sullivan, 914 F.2d
1121, 1124 (9th Cir. 1990). The ALJ made the proper considerations when assessing
Petitioner’s credibility; he considered inconsistencies in her testimony and conduct, her daily
activities, her work record and evidence from physicians. Where, as here, there is substantial
evidence in the record to support the ALJ’s credibility finding, the Court will not engage in
second-guessing. Thomas v. Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). In other words, if the
evidence can support either outcome, the Court may not substitute its judgment for that of the
ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
2.

Medical Evidence

Petitioner takes issue with the ALJ’s consideration and rejection of the treating opinion
from Dr. Ronald Zohner and the examining opinion of Dr. Baldree.
Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1)
those who treat the claimant (treating physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither examine nor treat the claimant
(nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir. 1995). Generally,
more weight is accorded to the opinion of a treating source than to nontreating physicians.
Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). In turn, an examining physician’s opinion
is entitled to greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan,
908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984). If the
treating physician’s opinion is not contradicted by another doctor, it may be rejected only for
“clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If the

MEMORANDUM DECISION AND ORDER - 9

treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the
treating physician’s opinion without providing “specific and legitimate reasons” supported by
substantial evidence in the record for doing so. Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir.1983).
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and
not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th
Cir. 1992). Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical
condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
1989). If the record as a whole does not support the physician’s opinion, the ALJ may reject that
opinion. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in
the record that may not support the physician’s opinion include clinical findings from
examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the
claimant’s daily activities. Id.; Bayliss v. Barnhart, 427 F.3d at 1216; Connett v. Barnhart, 340
F.3d 871 (9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).
As to Dr. Baldree’s opinion, the ALJ stated that he gave his opinion “very little weight.”
AR 31. The ALJ noted that Dr. Baldree’s opinion “strayed outside his area of expertise” because
as a psychologist, he was not qualified to make assessments of her employability based on her
self-reports of syncopal episodes. Id. The ALJ also noted that Dr. Baldree failed to explain how
Petitioner’s bipolar symptoms would have resulted in her termination from work, had she not
quit due to her physical complaints. The ALJ found Dr. Baldree’s opinions poorly supported by
his own examination of Petitioner. Id.
Because Dr. Baldree’s opinion is contradicted by other physician’s opinions, the ALJ

MEMORANDUM DECISION AND ORDER - 10

may reject it for “specific and legitimate reasons.” An ALJ may reject a physician’s opinion if it
is based to a large extent on Petitioner’s self-reports that have been properly discounted as non
credible. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008.) The majority of Dr.
Baldree’s report is a recitation of Plaintiff’s description of her mental health symptoms and her
syncopal episodes. Dr. Baldree’s opinion that Plaintiff’s “occupational prognosis” was poor was
based in large part on the self-reported syncopal episodes. When a physician relies on
Petitioner’s subjective complaints, which the ALJ properly discounted in an adverse credibility
determination, that is a legally sufficient reason on which the ALJ could properly rely to accord
less weight to Dr. Baldree’s opinion.
Additionally, Plaintiff’s possible neurological disorder, that leads to the syncopal
episodes, was not in Dr. Baldree’s area of expertise as a psychologist. See Holohan v.
Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001). A physician’s opinion may be entitled to
little or no weight when it relates to a matter beyond his or her area of specialization. Id. at
1203, n. 2. See also 20 C.F.R. § 416.927(c)(5). That neurology is not Dr. Baldree’s area of
expertise is certainly a factor that the ALJ can properly consider in affording less weight to that
portion of his opinion. Further, an ALJ is not bound to a physician’s opinion on the ultimate
issue of disability. Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989). The Court finds that
the ALJ gave proper consideration in affording Dr. Baldree’s opinion little weight.
With regard to Dr. Zohner’s opinion, the ALJ stated he gave it “persuasive weight” but
noted that his opinion seemed to be influenced by Petitioner’s current familial stressors and that
“in the absence of her family related stress, there is nothing in Dr. Zohner’s evaluation that
would suggest that the claimant’s mental functional capacity is any more restricted than” the

MEMORANDUM DECISION AND ORDER - 11

residual functional capacity. AR 31.
Dr. Zohner saw Petitioner on December 15, 2010 for “Pharmacological Management.”
AR 511. He also conducted a Diagnostic Evaluation. AR 526-30. In this evaluation, Dr.
Zohner assessed a GAF of 45. AR 530. He noted that Petitioner’s “primary concern evolves
around stressors created by constant turmoil with her son.” AR 529.
The ALJ did not reject Dr. Zohner’s opinion. He gave it persuasive weight. The ALJ did
find that Dr. Zohner’s GAF rating of 45 was due to Petitioner’s limitations caused by her
familial stressors. The ALJ found that without these familial stressors, Dr. Zohner’s evaluation
would not support a GAF of 45. The ALJ also noted that Petitioner was assessed with a higher
GAF, of 65, earlier in December 2010 by Shawna Tobin, LCSW, when assessing a treatment
plan for Petitioner. AR 31; see AR 523.
The ALJ provided legitimate and specific reasons for not agreeing with the totality of Dr.
Zohner’s opinion on Petitioner’s limitations. The ALJ noted that the evidence did not support
such a limitation on function as assessed by Dr. Zohner, noted conflicting medical evidence,
including a conflicting GAF from the same time period as Dr. Zohner’s assessment. Conflicting
medical opinions and conflicts in a physician’s own notes are specific and legitimate reasons for
rejecting a contradicted treating physician’s opinion. See Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1195 (9th Cir. 2004).
3.

VE Testimony and the DOT
Plaintiff contends there is a conflict between the vocational expert’s (VE) testimony at

the hearing and the Dictionary of Occupational Titles (DOT). At step three, the ALJ determined
Petitioner’s RFC and included the following limitation: she can “only make simple work-related

MEMORANDUM DECISION AND ORDER - 12

judgments and decisions” and “understand, remember and carry out only short and simple
instructions.”2 AR 27. The ALJ then concluded, at step four, that Petitioner could return to her
past relevant work as a cashier (DOT Cashier II, 211.462-010, SVP 2). AR 32. Petitioner
contends the ALJ erred in reaching that conclusion, arguing that she cannot return to her past
relevant work as a “cashier II” because cashier II requires “Level 3 reasoning ” which exceeds
the scope of her RFC. More specifically, Petitioner contends Level 3 reasoning is beyond her
limitations (as assessed by the ALJ) as being able to make only “simple work-related judgments”
and understanding, carrying out and remembering only “short and simple instructions.”
The reasoning level attributed to a particular job “gauges the minimal ability a worker
needs to complete the job’s tasks themselves.” Meissl v. Barnhart, 403 F. Supp. 2d 981, 983
(C.D. Cal. 2005). In the DOT, reasoning development is one of three divisions comprising the
General Educational Development (“GED”) Scale. Within that division are six levels of
reasoning development. DOT, Appx. C.3 Level 3, implicated here, presumes that the claimant is
able to “apply commonsense understanding to carry out instructions furnished in written, oral, or
diagrammatic form. Deal with problems involving several concrete variables in or from
standardized situations.” Id.
Petitioner is correct that the occupation of cashier II in the DOT requires “Level 3
reasoning.” DOT, Cashier II (211.462-010)4 An ALJ must ask a VE if his or her testimony is
consistent with the occupational information found in the DOT. Massachi v. Astrue, 486 F.3d
2

The restrictions listed in the RFC are the same as contained in the ALJ’s first
hypothetical to the VE. See AR 62.
3

4

Available at http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.
Available at http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.

MEMORANDUM DECISION AND ORDER - 13

1149, 1153 (9th Cir. 2007). If a conflict exists, the VE must provide an explanation and the ALJ
must decide whether the VE’s explanation for the conflict is reasonable and whether a basis
exists for relying on the expert rather than the DOT. Id. See also SSR 00-4p.
It is not clear that the ALJ was mistaken in his handling of this issue, despite Petitioner’s
strident claim that the ALJ was patently wrong. There is a split among circuit courts on whether
a limitation to simple, repetitive or routine tasks is compatible with the performance of jobs with
Level 3 reasoning as defined in the DOT. Cf. Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th
Cir. 2005) (job with DOT Level 3 reasoning was not suitable for a claimant whose RFC limited
her to “simple and routine work tasks”) with Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)
(a claimant limited to “simple” work could perform job with reasoning level 3) and Renfrow v.
Astrue, 496 F.3d 918, 920-21 (8th Cir. 2007) (a claimant with inability to do “complex technical
work” was not precluded from jobs with reasoning Level 3.)) The Ninth Circuit appeals court
has yet to address this question directly; however, a number of district court decisions within the
Ninth Circuit hold that an RFC limitation to “simple, routine” tasks or “simple, repetitive” tasks
is inconsistent with Level 3 reasoning. See Gottschalk v. Colvin, 2014 WL 1745000, *5 (D. Or.
May 1, 2014) (collecting cases).
However, when it comes to how the Level 3 reasoning standard should apply when a
claimant is limited to “simple work-related judgment” or “short, simple instructions,” there are
divergent views and no clear circuit guidance. For example, in one case in which the ALJ had
limited petitioner to “simple tasks,” the reviewing court reasoned that “[g]iven the significant
case law within [the Ninth] Circuit that questions whether a claimant limited to simple, repetitive
work is capable of performing jobs with a Reasoning Level of 3, the Court [would] not reach a

MEMORANDUM DECISION AND ORDER - 14

different conclusion simply because Plaintiff’s RFC does not include a limitation to repetitive
work.” Funches v. Astrue, 2011 WL 1497068, at *5 (E.D. Cal. Apr. 19, 2011) (emphasis added).
The Funches court also emphasized that even though the ALJ’s decision stated that the
testimony of the vocational expert was consistent with the DOT, there was “no indication in
either the testimony or the interrogatories...that the ALJ asked the VE whether a conflict existed”
and therefore the court could not determine whether the ALJ’s finding was supported by
substantial evidence. Id. at *6 (emphasis added). The court remanded for the ALJ to “obtain a
reasonable explanation from the VE for the conflict between her testimony and the DOT.” Id.
In contrast, in Signavong v. Astrue, the RFC limited the claimant to only simple work,
and the ALJ twice confirmed by questions that the VE’s testimony was consistent with the DOT.
Further, in confirming the plaintiff could perform jobs with a Level 3 reasoning, the VE
specifically noted that the ALJ had not limited the plaintiff to “repetitive work.” 2011 WL
5075609, at *8 (C.D. Cal. Oct. 25, 2011). Hence, the VE made a distinction between simple
work, and simple, repetitive work. Id. The Signavong court found there was no conflict in the
claimant’s limitation to simple tasks with his ability to perform jobs requiring Level 3 reasoning.
Id. Even if there was a conflict, the court said that the VE “provided persuasive testimony to
support her conclusion” that plaintiff could perform the job. Id.
In another analogous case, Hite v. Colvin. 2014 WL 1364922 (C.D. Cal. April 7, 2014),
the ALJ limited Petitioner to “simple tasks with simple-worked related judgments.” The court
found that, “[a]lthough the VE in this case did not further elaborate on his representation that his
testimony was consistent with the DOT, his testimony raised no apparent conflict between
Plaintiff’s limitation to simple tasks and his ability to perform these particular level three

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reasoning jobs necessitating further inquiry from the ALJ.” Id. at *4 (emphasis in original). The
court affirmed the ALJ’s decision. Id.
Additionally, not all district courts that have addressed the question of the reasoning level
required to perform simple, repetitive tasks have found an incompatibility with Level 3
reasoning occupations. See, e.g., Dahl v. Astrue, 2011 WL 2836660, at *4 (C.D. Cal. July 18,
2011) (noting that Level 3 reasoning incorporates dealing with problems in standardized
situations, necessarily implying some level of routine or repetition inherent in Level 3 jobs);
Koonz v. Astrue, 2010 WL 3339388, at *9 (S.D. Cal. July 26, 2010) (“[T]here is no conflict
between simple repetitive work and reasoning levels of 2 and 3 that the DOT assigns to the hand
packager and linen attendant jobs.”)
Hence, on these facts, there is a path to affirming the ALJ on this issue, and to do so
would also be consistent with SSR 00-4p, as the ALJ here explicitly asked the VE if her
testimony was “consistent with the DOT.” AR 62. The VE testified it was. Id. However, as a
matter of meeting the best practice in such circumstances, on the facts of this case, where there is
potentially an unanswered question, even if unintentionally overlooked, the ALJ should do more
to explore whether a conflict exists. This can be done by simply inquiring more fully of the VE
to gain an explanation as to why there is no conflict, or, if there is no reasonable explanation
from the VE, to incorporate that information in reaching the ultimate decision. As the Petitioner
emphasizes, the U.S. Supreme Court has recognized that “Social Security proceedings are
inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and develop the
arguments both for and against granting benefits . . .” Sims v. Apfel, 530 U.S. 103, 111 (2000).
Accordingly, “[i]t is the obligation of the ALJ to determine whether the expert’s

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testimony deviates from the Dictionary of Occupational Titles and whether there is a reasonable
explanation for any deviation.” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007.) When
there is an unresolved conflict between the VE testimony and the DOT, the ALJ must elicit a
reasonable explanation before relying on the VE. SSR 00-4p.
There may be no actual conflict between Petitioner’s limitations in her RFC and the
Level 3 reasoning required by the cashier II position. However, on the record before the Court,
when considered under relevant law, the Court cannot conclusively make that determination.
Rather, the case should be remanded to the ALJ for further consideration of this specific issue,
that is whether the Plaintiff’s RFC limitation to making only “simple work-related judgments”
and understanding, carrying out and remembering only “short and simple instructions” precludes
her from performing the cashier II position which requires Level 3 reasoning. Then, based upon
whatever determination is drawn from such further inquiry, the ALJ should issue a further and
final decision, incorporating such information into the final ruling.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. rel. Vincent, 739 F.2d
at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational
interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation
for that of the ALJ. Key, 754 F.2d at 1549.
As a whole, the Court found the ALJ’s decision very well-reasoned and well-supported.
The Court’s concern rather is whether the record, and law, support the finding that Petitioner can
perform a job that requires Level 3 reasoning given her residual functional capacity limitations.

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This is not to say that this Court conclusively finds that Petitioner is disabled. Relatedly, it is not
for this Court to resolve the question of whether Petitioner can perform her past relevant work as
cashier II.
Rather, the Court finds the record needs further development as to whether there is a
conflict between the vocational expert’s testimony and Dictionary of Occupational Titles and if
so, how that conflict is reasonably resolved. As recognized by the Supreme Court, it is the
ALJ’s duty to develop the record in this regard and therefore, the Court finds it best to remand
this case for further consideration of this issue.
V. ORDER
Based on the foregoing, Petitioner’s request for review (Dkt. 1) is hereby GRANTED.
This matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with this Memorandum Decision and Order. See Melkonyan v. Sullivan, 501 U.S. 89,
99-100 (1991).

DATED: September 29, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

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