Thomas v. Commissioner Social Security Administration

Filing 23

ORDER: Based on this Order, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the commissioner is REVERSED and the matter is REMANDED for further administrative proceedings. The ALJ should determine whether Plaintiff is entitled to a closed period of disability. Please access entire text by document number hyperlink. Order and Signed on 07/30/2015 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL ALLAN THOMAS,

Plaintiff,

Civ. No. 1:14-CV-00987-CL

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

Defendant.

MARK D. CLARKE, Magistrate Judge.
Plaintiff Michael Allan Thomas ("Plaintiff') seeks judicial review of the final decision of
the Commissioner of the Social Security Administration ("Commissioner") denying his
application for disability benefits. This court has jurisdiction under 42 U.S.C. § 405(g). For the
reason set forth below, the decision is reversed and remanded.
BACKGROUND

Plaintiff was born in 1971. Tr. 28. He has a high school education. Tr. 28. He was
enrolled in special education courses throughout his schooling. Tr. 81 7. Plaintiff began working
on his family's farm at an early age. Tr. 817. He went on to work as a truck driver and, later, as
an equipment operator. Tr. 817.

On August 13, 2009, Plaintiff fell while at work, landing on his right side and back. Tr.
356. He lost consciousness temporarily and suffered a mild to moderate concussion. Tr. 825.
Thereafter, he began to complain of severe headaches, neck pain, back pain, blurred vision,
tingling, dizziness, memory loss, cognitive problems, and nausea. Tr. 236, 393.
Over a year later, in October 2010, Plaintiff felt a "pop" in his head which coincided with
bleeding from his nose and fluids leaking from his ears. Tr. 805. Immediately after the "pop,"
Plaintiff felt as though his mood control, memory, personality, and handwriting returned "back to
normal." Tr. 805. Medical reports confirm that Plaintiff substantially improved in his cognitive
and emotional functioning after the "strange incident." Tr. 71, 811. However, Plaintiff continued
to struggle with anxiety, irritability, depression, chronic pain, cognitive inefficiency, fatigue,
syncopal episodes, weakness, poor dexterity, and impaired motor abilities.
Plaintiff first filed for Title II benefits on January 4, 2010, alleging disability beginning
August 12, 2009. Tr. 13. The Commissioner denied the application initially and on
reconsideration. Tr. 13. On March 2, 2011, Plaintiff filed a second application, again alleging
disability since August 12, 2009. Tr. 13. On May 26, 2011, the Commissioner reopened
Plaintiffs prior application and awarded him benefits for a closed period of mental disability
from August 12, 2009 to April 22, 2011. Tr. 13. On July 26, 2011, Plaintiff submitted a request
for reconsideration of the closed period determination. The Commissioner denied the request and
found Plaintiff not disabled for the entire period from August 12, 2009 through the date of the
determination. Tr. 13. At Plaintiffs request, a hearing was held before Administrative Law
Judge ("ALJ") Robert Kingsley on November 7, 2012. Tr. 12-13. Plaintiff appeared and testified.
Tr. 13. He was represented by counsel. Tr. 13. On March 11, 2013, the ALJ issued a decision

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finding Plaintiff not disabled. Tr. 10. The Appeals Council denied Plaintiffs request for review,
rendering the ALJ's denial the Commissioner's final decision. Tr. 1. This appeal followed.

DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment 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). "Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act."

Keyser v. Comm 'r Soc. Sec. Admin., 648 P.3d 721, 724 (9th Cir. 2011). Each step is potentially
dispositive. 20 C.P.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1.

Is the claimant performing "substantial gainful activity?" 20 C.P.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.P.R. §§404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.P.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.P.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is "severe" if it significantly
limits the claimant's physical or mental ability to do basic work activities.
20· C.P.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted
or must be expected to last for a continuous period of at least 12 months.
20 C.P.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.P.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.

3.

Does the claimant's severe impairment "meet or equal" one or more of the
impairments listed in 20 C.P.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.P.R.§§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

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the listed impairments, the analysis proceeds beyond step three. At that
point, the ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant's "residual functional capacity" ("RFC"). This
is an assessment of work-related activities that the claimant may still
perform on a regular and continuing basis, despite any limitations imposed
by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c);
416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC,
the analysis proceeds to step four.
4.

Can the claimant perform his or her "past relevant work" with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F .R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant's RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1.999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national
economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

I I I
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THE ALJ'S FINDINGS

The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not
engaged in substantial gainful activity since his alleged onset date of August 12, 2009. Tr. 15. At
step two, the ALJ found Plaintiff had the following severe impairments: status-post traumatic
brain injury with poor balance, seizures, and headaches; adjustment disorder; somatoform
disorder; learning disorder; anxiety disorder; affective disorder; and degenerative disc disease.
Tr. 15. At step three, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or medically equaled any listed impairments. Tr. 16. Next, the ALJ
assessed Plaintiffs residual functional capacity ("RFC"). He determined Plaintiff could perform
light work subject to the following limitations: he cannot climb ladders, ropes, or scaffolds, but
can occasionally climb ramps and stairs; he can occasionally balance, stoop, kneel, crouch, and
crawl, but must avoid concentrated exposure to wetness, noise, vibration, and even moderate
exposure to hazards like machinery and heights; he can perform simple routine tasks; he can
tolerate only occasional and superficial interaction with co-workers and the general public. Tr.
18. At step four, the ALJ found Plaintiff was not capable of performing his past relevant work as
an equipment operator or truck driver. Tr. 28. However, considering Plaintiffs age, education,
experience, and RFC, the ALJ determined Plaintiff was capable of performing jobs that exist in
significant numbers in the national economy, including housekeeper/cleaner, small products
assembler, and agricultural sorter. Tr. 28-29. Therefore, the ALJ concluded Plaintiff was not
disabled, as defined by the Social Security Act, through the date of his decision. Tr. 29.
STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see

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also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means
"more than a mere scintilla, but less than a preponderance." Bray v. Comm 'r, 554 F.3d 1219,
1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Id.
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982). Variable interpretations of the evidence are insignificant if the Commissioner's
interpretation is a rational reading of the record, and this court may not substitute its judgment
for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a
reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a 'specific quantum of supporting evidence."' Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
Even where findings are supported by substantial evidence, "the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a
judgment affirming, modifying, or reversing the decision of the Commissioner, with or without
remanding the case for a rehearing.
DISCUSSION
Plaintiff asserts the ALJ erred by: (1) finding Plaintiffs hearing loss and chronic pain
disorder were not severe impairments, (2) discrediting Plaintiffs testimony, (3) rejecting the
opinions of medical providers who treated and examined Plaintiff, (4) failing to account for all

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medical opmwns and impairments, including chronic pam, m Plaintiffs RFC, (5) posmg
hypotheticals to the vocational expert that did not incorporate all of Plaintiffs severe
impairments, and (6) failing to evaluate whether Plaintiff was entitled to a closed period of
disability. The Court considers each alleged error in tum.

I.

The ALJ Properly Identified Plaintiff's Severe Impairments.
Plaintiff contends the ALJ failed to identify Plaintiffs hearing loss and chronic pain

disorder as severe impairments at step two of the sequential process. A severe impairment is one
that significantly limits the claimant's physical or mental ability to do basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). "Basic work activities" are the "abilities and aptitudes
necessary to do most jobs." 20 C.F.R. § 404.1521(b) Pursuant to the Commissioner's
regulations, an ALJ can classify a claimant's impairment as "non-severe" only if evidence
establishes it as a "slight abnormality that has no more than a minimal effect on an individual's
ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). Thus, to move beyond
step two, a claimant must establish that his impairment creates more than a minimal effect on his
ability to do basic work activities. See Carmickle v. Commissioner, 533 F.3d 1155, 1164-65 (9th
Cir. 2008) (the ALJ did not error in concluding the plaintiffs carpal tunnel syndrome was not
severe because the record did not establish any work-related limitations resulting from it).
The medical record does not establish how, if at all, Plaintiffs hearing loss impacted his
ability to work. Plaintiffs testimony indicates the effects of the impairment are minimal.
Plaintiff said that he had "just a little bit" of hearing loss in his left ear and, overall, he could
"hear pretty good." Tr. 60-61. He represented that he had no difficulty tracking the ALJ. Tr. 60.
In light of these affirmative statements, the ALJ reasonably concluded Plaintiffs hearing loss no
more than minimally affected his functioning and thus was not a severe impairment. Tr. 16.

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Despite finding the impairment non-severe, the ALJ explicitly considered its effect in
combination with Plaintiffs severe impairments as required by 42 U.S.C. § 423(d)(2)(b) ("[T]he
Commissioner of Social Security shall consider the combined effect of all of the individual's
impairments without regard to whether any such impairment, if considered separately, would be
of such severity."). Tr. 16.
The ALJ did not discuss Plaintiffs chronic pam disorder in his step two analysis.
However, the ALJ identified somatoform disorder as a severe impairment. Tr. 15. Defendant
asserts, and Plaintiff does not refute, that at the time of the decision, the American Psychiatric
Association classified pain disorder as a somatoform disorder. De f.'s Br., at 9. Therefore,
although the ALJ did not mention Plaintiffs chronic pain by name, it appears that he properly
considered the condition. Indeed, he classified it as severe. The Court finds no error in the ALJ' s
step two analysis.

II.

The ALJ Validly Discounted Plaintifrs Testimony.
Plaintiff argues the ALJ improperly discredited his testimony. When gauging a claimant's

credibility, an ALJ must engage in a two-step process. 20 C.P.R. §§ 404.1529, 416.929. First,
the ALJ must determine whether there is objective medical evidence of an underlying
impairment that could reasonably be expected to produce some degree of symptoms. Smolen v.
Chafer, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if such evidence exists, unless the ALJ

makes a finding of malingering, the ALJ must give clear and convincing reasons for discrediting
the claimant's testimony regarding the severity of the symptoms. !d. at 1284. Clear and
convincing reasons for rejecting a claimant's testimony "include conflicting medical evidence[;]
effective medical treatment[;] medical noncompliance[;] inconsistencies in the claimant's
testimony or between her testimony and her conduct[;] daily activities inconsistent with the

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alleged symptoms[;] and testimony from physicians and third parties about the nature, severity[,]
and effect of the symptoms complained of." Bowers v. Astrue, No. 6:11-cv-583-SI, 2012 WL
2401642, at *9 (D. Or. June 25, 2012). An ALJ may also consider (1) "ordinary techniques of
credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant that appears less than candid[,]"
and (2) "unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course oftreatment[.]" Smolen, 80 F.3d at 1284. A general assertion that the Plaintiff
is not credible is insufficient. The ALJ must identify what testimony is not credible and what
evidence undermines the claimant's allegations. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.
1993). If the ALJ's credibility finding is supported by substantial evidence in the record, this
Court may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
2002).
Here, the ALJ found Plaintiffs impairments could reasonably be expected to cause some
of his alleged symptoms. However, he found Plaintiffs statements regarding the intensity,
persistence, and limiting effects of his sympto.ms were "not entirely credible." Tr. 19. Because
the ALJ did not expressly find Plaintiff to be a malingerer, his reasons for rejecting Plaintiffs
testimony must be clear and convincing. Hunter v. Astrue, 874 F.Supp.2d 902, 912 (9th Cir.
20 12). Plaintiff argues they are neither.
First, although he did not definitively find Plaintiff to be a malingerer, the ALJ noted
"[rn]ultiple treatment providers indicated that [Plaintiffs] behavior was indicative of false or
exaggerated presentation, undermining the reliability of [Plaintiffs] allegations." Tr. 23. In late
2009, Dr. Edwin Hill, a psychologist, questioned the validity of Plaintiffs test results. He said "it
was very doubtful that "[Plaintiff] was putting forth his best efforts at all times." Tr. 819, 828.

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However, Dr. Hill refrained from labeling Plaintiff as a malingerer because Plaintiff did not
complain much about his impairments which would be unusual for someone attempting to
amplify his symptoms. Tr. 826-27. At a later appointment, Dr. Hill noted Plaintiff "put forth a
good effort at all times." Tr. 805. "There was no evidence for feigned cognitive dysfunction or
malingering." Tr. 809. In May 2010, Dr. Paul Nutter, an examining provider, noted
inconsistencies between Plaintiffs apparent symptoms and what would be expected from his
medical records. Tr. 713. Dr. Nutter opined such irregularities may indicate Plaintiff is
attempting "to present himself as more disabled than possible." Tr. 713. However, the doctor
qualified that "it is hard to tell withjust one visit." Tr. 713. He also noted that many of Plaintiffs
symptoms are not under his volitional control. Tr. 713. In June 2011, Dr. Larry Snodgrass, an
examining provider, performed tests on Plaintiff. Tr. 1104. One of Plaintiffs scores was below
the mean score for a severely brain-damaged individual. Tr. 1104. Dr. Snodgrass noted "[t]his
performance indicates to me a rather poor effort and is more indicative of exaggerated
symptoms." Tr. 1104. He concluded malingering was "probable." Tr. 1104.
Each of the providers discussed above articulated some uncertainty in his/her analysis of
the legitimacy of Plaintiffs presentation. Based on this ambiguity, the ALJ rightly refrained
from definitively labeling Plaintiff as a malingerer. This does not mean, however, that the ALJ
could not consider the providers' comments in his credibility analysis. The Court finds the ALJ
reasonably weighed the fact that multiple providers expressed concern that Plaintiff was
exaggerating his condition against Plaintiffs credibility. See Chaudhry v. Astrue, 688 F.3d 661,
671 (9th Cir. 2012).
As additional reasons for discrediting Plaintiff, the ALJ found the "treatment record does
not fully corroborate [Plaintiffs] testimony" and that Plaintiffs "claims of debilitated

Page 10 - ORDER

functioning are not consistent with contemporaneous reports of actual functioning." Tr. 19. The
ALJ reasonably found Plaintiffs "dramatic improvements in numerous areas of functioning" to
be inconsistent with his allegations of disability. Tr. 21, 809. After Plaintiffs condition oddly
improved in late 2010, providers opined he might be able to return to work, albeit in a different
capacity than his prior employment. Tr. 1142, 1161-64, 1281. Indeed, in 2011, Plaintiff reported
that his former employer offered him a position in the sales department. Tr. 22, 1067. Plaintiff
stated that he was considering accepting the position but would prefer to return to his prior
position working with heavy equipment. Tr. 22, 1067. The ALJ did not err in weighing this
evidence of improvement and employability against Plaintiffs credibility. See Bowers, 2012 WL
2401642, at *9.
III.

The ALJ Reasonably Weighed the Medical Evidence.

When assessing an ALJ' s treatment of medical evidence, the Ninth Circuit distinguishes
between treating, examining, and non-examining physicians. In general, an ALJ must accord
greater weight to a treating physician than a non-treating physician and to an examining
physician than a non-examining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.
2014). "If a treating physician's opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence ·in
[the] case record, [it will be given] controlling weight." Orn v. Astrue, 495 F.3d 625, 631 (9th
Cir. 2007) (internal quotations omitted) (alterations in original). To reject the uncontroverted
opinion of a treating or examining physician, the ALJ must present clear and convincing reasons.
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining physician's

opinion is contradicted by another physician's opinion, it may be rejected by specific and

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legitimate reasons. ld When evaluating conflicting opinions, an ALJ is not required to accept an
opinion that is brief, conclusory, or unsupported by clinical findings. Jd
Here, both parties agree the provider opinions at issue were contradicted and thus the
ALJ was obligated to satisfy the lesser "specific and legitimate" standard. Plaintiff argues the
ALJ failed to meet it. In particular, Plaintiff asserts the ALJ cherry-picked portions of opinions
that supported his finding of no disability and overlooked parts that suggested the opposite. An
ALJ must consider all medical opinion evidence. 20 C.F.R. § 404.1527(b). While an ALJ is not
bound by medical opinions on the ultimate question of disability, he must provide specific and
legitimate reasons for rejecting them. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
In Tommasetti, the Ninth Circuit explained that an ALJ "can meet this burden by setting out a
detailed and thorough summary of the facts and conflicting clinical evidence, stating [his]
interpretation thereof, and making findings." ld (citing Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).
The ALJ complied with this standard. His decision includes a comprehensive discussion
of the medical evidence and his analysis thereof. Moreover, the ALJ supplied specific and
legitimate reasons, supported by substantial evidence, for assigning reduced weight to certain
opinions. He reasonably assigned lesser weight to providers' opinions on topics outside of their
specializations. Tr. 27; McCawley v. Astrue, 423 F.App'x 687, 689 (9th Cir. 2011). Because the
ALJ properly discredited Plaintiff, it was appropriate for him to discount providers' opinions to
the extent they were based on Plaintiff's self-reports. Tr. 27; Tommasetti, 533 F.3d at 1041 (An
ALJ may reject a treating physician's opinion if it is largely based on self-reports of a claimant
who has been properly discredited.). Moreover, the ALJ identified many inconsistencies within
and between medical opinions. ALJ s are responsible for sorting through ambiguities and

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resolving conflicts in medical testimony. Magallanes, 881 F.2d at 750. The ALJ acted
reasonably in doing so. Plaintiffs case has confounded multiple health care providers. Dr.
Sharon Underwood stated that she was left "scratching [her] head" regarding Plaintiffs ability to
work after she "read all the available records from a multitude of sources." Tr. 332. Dr. Luther
Frerichs concurred, saying "I have been more confused with [Plaintiff] than 99 percent of my
patients." Tr. 332. Dr. Edwin Hill noted Plaintiffs pattern of errors in testing was "strange and
difficult to understand." Tr. 820. The providers' medical opinions reflect that confusion. They
are varied and, in places, contradictory. Far from cherry-picking medical evidence as Plaintiff
alleges, the ALJ recognized these disparities, thoroughly reviewed the evidence before him, and
set forth specific reasons for his weight assignments. Because relevant evidence adequately
supports the ALJ' s assessment of conflicting medical evidence, the Court will not engage in
second-guessing. ld.
IV.

The ALJ's RFC Assessment Adequately Addressed Plaintiff's Limitations.
Plaintiff contends the ALJ' s RFC assessment was erroneous because it did not include

limitations addressing Plaintiffs learning disorder, headaches, or pain. The Ninth Circuit has
held an RFC assessment adequately captures a claimant's restrictions if it is consistent with
concrete limitations in the medical record. Rogers v. Comm 'r of Soc. Sec. Admin., 490 F.App'x
15, 18 (9th Cir. 2012). The ALJ need not prepare a function-by-function analysis of those
limitations that the ALJ finds not credible or unsupported by the record. Bayliss, 427 F.3d at
1217.
Plaintiff notes that, while the ALJ found Plaintiffs learning disorder to be a severe
impairment, he did not incorporate a credited doctor's opinions regarding Plaintiffs need for
repetition into the RFC. Tr. 18, 25, 656. The Commissioner responds this limitation was

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sufficiently addressed through the requirement that Plaintiff perform only "simple routine
tasks[.]" Tr. 18. Recently, in Zavalin v. Colvin, 778 F.3d 842,

8~7

(9th Cir. 2015), the Ninth

Circuit used the terms "simple, routine tasks" and "simple, repetitive tasks" interchangeably. It
noted a claimant's limitations to "simple, routine tasks" was at odds with an ALl's assessment of
his

reasoning

abilities

because

"it

may

be

difficult

for

a

person

limited

to

simple, repetitive tasks" to follow abstract instructions. I d. (emphasis added). The Court agrees
with the Commissioner that the ALJ's restriction to "simple routine tasks" sufficiently addresses
Plaintiffs learning difficulties documented on the record.
As for Plaintiff's headaches and pain, Plaintiff does not cite to evidence of physical
limitations stemming from these impairments beyond those already listed in his RFC. Without
more specific information on how these conditions hinder Plaintiff, the Court declines to find the
ALJ failed to account for Plaintiffs limitations. See Valentine v. Comm 'r Soc. Sec. Admin., 574
F.3d 685, 692 n.2 (9th Cir. 2009) ("We reject any invitation to find that the ALJ failed to account
for Valentine's injuries in some unspecified way."). In conclusion, the Court affirms the ALJ's
RFC determination because it is supported by substantial evidence. Bayliss, 427 F.3d at 1217.
V.

The ALJ Committed Harmless Error in his Hypotheticals to the Vocational Expert.
Plaintiff argues the ALJ posed faulty hypotheticals to the Vocational Expert ("VE"),

resulting in an inaccurate assessment of Plaintiff's employability. At step five, the Commissioner
is responsible for determining whether a significant number of jobs exist in the national economy
that the claimant can perform. Lockwood v. Comm 'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010). To satisfy this burden, the Commissioner may call aVE to testify regarding what
jobs the claimant may do and the availability of those jobs in the national economy. Tackett v.
Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). When posing a hypothetical question to aVE, the

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ALJ must include all of the claimant's impairments. !d. "The ALJ' s depiction of the claimant's
disability must be accurate, detailed, and supported by the medical record." !d.
At the hearing, the ALJ posed a hypothetical question to the VE that included the
following limitation: "avoid even moderate exposure to hazards[.]" Tr. 62. In his decision, the
ALJ altered the limitation to read: "avoid . . . even moderate exposure to hazards such as
machinery and heights[.]" Tr. 18 (emphasis added). The Commissioner concedes this addition
constitutes legal error because the VE did not consider these examples and thus found Plaintiff
capable of performing jobs that involve the use of machinery: small products assembler and
agricultural sorter. However, the Commissioner argues the error was harmless because the expert
also found Plaintiff could work as a housekeeper/cleaner, which does not conflict with the
limitation. Though it is only one job category, it includes thousands of jobs performable by
Plaintiff within his state. The VE testified there are approximately 150,000 housekeeping
positions nationally and 2,500 in the State of Washington. Tr. 63. Thus, the VE's uncontroverted
opinion that Plaintiff could work as a housekeeper/cleaner constitutes substantial evidence that
there are a significant number of positions in the economy that Plaintiff could fill. In light of this
evidence, the Court finds the ALJ' s error to be harmless. Batson v. Comm 'r of Soc. Sec. Admin.,
359 F.3d 1190, 1197 (9th Cir. 2004) (An ALJ's error is harmless where substantial evidence
remains to support his ultimate conclusion).
VI.

It is Not Clear Whether the ALJ Properly Evaluated Plaintiff's Eligibility for a
Closed Period of Disability Benefits.
On May 26, 2011, the Commissioner awarded Plaintiff benefits for a closed period of

time: from August 12, 2009 to April 22, 2011. Tr. 13, 87. However, in September 2011, the
Commissioner reopened and revised it decision, finding Plaintiff not disabled for the entire
period from August 12, 2009 through the date of the determination. Tr. 13, 87, 105-07. Plaintiff
Page 15- ORDER

requested and received a hearing on October 4, 2011. The ALJ who presided over that hearingwhose decision is the basis of the present appeal -

concluded Plaintiff was not disabled from

August 12, 2009 though the date of the decision.
Plaintiff argues the ALJ failed to evaluate his eligibility for benefits during the previously
recognized closed window of time. Under 20 C.F.R. §§ 404.316 and 404.1594, the
Commissioner may award disability benefits on a continuing basis or for a finite period. Here, it
is not clear whether the ALJ considered both options. Several discrepancies confuse the record.
At the hearing, the ALJ recognized the closed period as though it were still in effect and
confirmed with Plaintiff that he had "appealed solely the unrecognized part." Tr. 41. There is no
mention of the fact that the Commissioner had already revised that decision. Moreover, at the
hearing, the ALJ noted Plaintiff had been arguably disabled for a closed period. He commented
that Plaintiff "had severe symptoms after [his] injury, but they started going away and by
February of 2011, at least, [Plaintiff was] able to return to work." Tr. 48. Plaintiffs medical
records support this comment. It appears that Plaintiffs impairments were most severe during
the time between his initial injury and the later "pop" in his head. However, the ALJ's written
decision does not include any analysis focused on this possible window of qualifying time.
The Commissioner now theorizes that the ALJ may have declined to award benefits for a
closed period because of Plaintiffs possible malingering. However, this Court's review is
confined to reasons provided by the ALJ in the disability determination. It "may not affirm the
ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).
I I I
I I I

Page 16- ORDER

In the absence of any documented discussion of the issue, the Court cannot verify whether it was
properly considered. Remand is appropriate.

ORDER
Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision
of the Commissioner is REVERSED and the matter is REMANDED for further administrative
proceedings. The ALJ should determine whether Plaintiff is entitled to a closed period of
disability.
D. ATE Dthis

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D. CLARKE

United States Magistrate Judge

Page 17 - ORDER

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