Delmonaco v. Commissioner Social Security Administration

Filing 21

OPINION and ORDER - For the reasons stated, the ALJ's decision was not based on substantial evidence or free of harmful legal error. Therefore, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings. IT IS SO ORDERED. DATED this 23rd day of March, 2018, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANTHONY WILLIAM DELMONACO,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

MARK A. MANNING
Harder, Wells, Baron & Manning, P.C.
474 Willamette Street
Eugene, OR 97401
Attorney for plaintiff
KARLE. OSTERHOUT
Osterhout Berger Disability Law, LLC
521 Cedar Way, Suite 200
Oakmont, PA 15139
Of Attorneys for plaintiff
Pro hac vice
BILLY J. WILLIAMS
United States Attorney
District of Oregon
RENATA GOWIE
Assistant United States Attorney

Case No. 1: 17-cv-00345-AC
OPINION AND ORDER

1000 SW Third Ave., Suite 600
Portland, OR 97201-2902
RYAN LU
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, WA 98104-7075
Of Attorneys for defendant
ACOSTA, Magistrate Judge:
Anthony W. Delmonaco ("plaintiff') seeks judicial review of a final decision by the
Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance
Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II & XVI of the Social
Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant
to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's decision is
reversed and this case remanded for further proceedings.
Procedural Background

Plaintiff applied for DIB and SSI on May 20, 2013 and July 15, 2013, respectively, alleging
disability as of August 9, 2012, due to a01iic aneurysm, vertigo, and back pain. (Tr. 20, 91, 92.) His
applications were denied initially and upon reconsideration. (Tr. 90-94.) A hearing convened on
February 11, 2015, before an Administrative Law Judge ("ALJ"). (Tr. 37-70.) On May 11, 2015,
the ALJ issued a decision finding plaintiff not disabled. (Tr. 17-34.) Plaintiff timely requested
review of the ALJ's decision and, after the Appeals Council denied review, plaintiff filed a
complaint in this court. (Tr. 1-3.)
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Factual Background
Born on April 17, 1961, plaintiff was 51 years old on the alleged onset date of disability and
54 years old on the date of the hearing. (Tr. 72.) Plaintiff earned his GED in 1979. (Tr. 227, 241.)
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards
and the findings are supported by substantial evidence in the record. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh
"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez
v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either
a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 42 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the
Commissioner determines whether a claimant is engaged in "substantial gainful activity;" if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
Page 3 - OPINION AND ORDER

At step two, the Commissioner resolves whether the claimant has a "medically severe
impairmentorcombinationofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner evaluates whether the claimant's impairment meets or
equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to
preclude substantial gainful activity." Id.; 20 C.F.R. § 404.1520(d). If so, the claimant is presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant still can perform "past
relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(£). Ifthe claimant can work, she
is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner.
Yuckert, 482 U.S. at 141.

At step five, the Commissioner must establish that the claimant can perform other work
existing in significant numbers in the national or local economy.

Id. at 142; 20 C.F.R. §

404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §
404.1566.
The ALJ's Findings

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since the
alleged onset date. (Tr. 22.) At step two, the ALJ found plaintiff had the following severe
impairments: "cervical spine, angina, and hypertension." Id.
At step three, the ALJ found that the plaintiff did not have an impairment or combination of
impaitments that met or medically equaled one of a number of impairments that are so severe as to
preclude substantial gainful activity. (Tr. 24.)
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Accordingly, the ALJ continued the sequential evaluation process to determine how
plaintiffs medical limitations affected her ability to work. The ALJ resolved that plaintiff had the
following residual functional capacity ("RFC"):
[He can] perform light work ... with the ability to stand/walk for 6
hours and sit for 2 hours during an 8-hour workday, as well as lift and
carry 20 pounds occasionally and 10 pounds frequently. However, he
is restricted to climbing ladders, ropes, and scaffolds and crawling on
an occasional basis. On a bilateral basis, the claimant can reach
overhead occasionally. The claimant's [RFC] includes the avoidance
of concentrated exposure to extreme cold, vibration, and hazardous
machinery.
(Tr. 24-25.)
At step four, the ALJ found plaintiff was not capable of performing his past relevant work
as a paiis picker or a press operator. (Tr. 28.) At step five, the ALJ found that plaintiff retained the
capacity to perform the following representative occupations: food service worker and tanning salon
attendant. (Tr. 28.) Accordingly, the ALJ concluded instead that plaintiff was not disabled under
the Act. (Tr. 29.)
· Discussion

. Plaintiff argues that the ALJ: (1) failed to identify suitable other work at step five of the
sequential evaluation process; and (2) erroneously failed to address post-hearing objections to the
VE's testimony.
I. Step Five: Other Work

Plaintiff asserts the ALJ etTed in identifying the jobs of"tanning salon attendant" and "food
service worker" because the ALJ failed to reconcile the apparent conflict between the DOT listed
requirements for the jobs and plaintiffs RFC. At step five of the sequential evaluation process, "the
Commissioner has the burden to identify specific jobs existing in substantial numbers in the national
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economy that a claimant can perform despite his identified limitations." Rounds v. Comm 'r Soc. Sec.
Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (quoting Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.
2015)) (internal brackets and quotation marks omitted); see also 20 C.F.R. §§ 404.1520(g),
416.920(g). "When there is an apparent conflict between the vocational expert's testimony and the
DOT - for example, expert testimony that a claimant can perform an occupation involving DOT
requirements that appear more than the claimant can handle - the ALJ is required to reconcile the
inconsistency." Zavalin, 778 F.3d at 846 (citingMassachai v. Astrue, 486 F.3d 1149, 1153-54 (9th
Cir. 2007)). Under SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), "the ALJ has an affirmative duty
to ask the expert to explain the conflict and then determine whether the [VE's] explanation forthe
conflict is reasonable before relying on the expert's testimony .... " Rounds, 807 F.3d at 1002
(citation and internal quotation marks omitted). The Commissioner concedes that the ALJ' s finding
as to "tanning salon attendant" was not supported by substantial evidence, but contends that the error
was harmless because plaintiffs RFC comports with the DOT' s requirements for "food service
worker." See Def. 's Br. 4-5. The court disagrees.
Plaintiff argues that because his RFC limits him to only occasional overhead reaching, it
conflicts with the DOT, which specifies that "food service worker" requires frequent reaching.'
Because the DOT does not distinguish between overhead reaching and reaching in general, courts
in the Ninth Circuit were divided on the issue of whether there was a potential inconsistency between
VE testimony that a job could be preformed by a claimant who was limited to occasional overhead
reaching, and a DOT description requiring frequent reaching. See, e.g., Lee v. Astrue, No. 6: 12-cv-

1

The parties agree that "food service worker" corresponds to the DOT' s listing for "cafeteria
attendant." DOT 311.677-010, available at 1991WL683304; see also Selected Characteristics
of Occupations Defined in the Revised Dictionary of Occupational Titles, Appendix C (1993).
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00084-SI, 2013 WL 1296071, at *11 n.5 (D. Or. Mar. 28, 2013) (collecting cases).
In 2016, however, the Ninth Circuit seemingly resolved the issue, explaining that, "[w]hile
'reaching' connotes the ability to extend one's hands and arms 'in any direction,'not every job that
involves reaching requires the ability to reach overhead." Gutierrez v. Colvin, 844 F.3d 804, 808
(9th Cir. 2016); see also SSR 85-15, 1985 WL 56857, at *l. The Ninth Circuit determined that
because "frequent reaching" does not necessarily correlate to "overhead reaching," it was required
"to determine whether overhead reaching is such a common and obvious part of cashiering that the
ALJ should have recognized a conflict and questioned the expert more closely" before concluding
the claimant could work as a cashier. Id. at 807 (emphasis in original). The comi concluded that
because "anyone who's made a trip to the corner grocery store knows that while a clerk stocking
shelves has to reach overhead frequently, a typical cashier never has to." Id. at 808. Apparently the
comi's deduction was sufficient to constitute substantial evidence, as it held that it was so
uncommon for cashiers to reach overhead that the ALJ was not required to solicit more specific
explanations from the VE. Id. Rather, reasoned the court, "[t]he requirement for an ALJ to ask
follow-up questions is fact-dependent," such that an ALJ must ask follow-up questions only if the
VE's testimony "is either obviously or apparently contrary to the [DOT], but the obligation does
extend to unlikely situations or circumstances." Id.
The Ninth Circuit recently revisited GutierrezinLamearv. Berryhill, 865F.3d1201 (9th Cir.
2017). In Lamear, the question was whether a worker who was limited to one-handed handling,
fingering, and feeling could perform jobs that required frequent handling, feeling, and fingering. Id.
at 1205-06. The Ninth Circuit concluded that it was "likely and foreseeable" that use of both hands
would be needed to effectively perform the "essential, integral, or expected" tasks in each of the jobs
Page 7 - OPINION AND ORDER

the ALJ had identified. Id
Accordingly, the question here is whether the job of "food service worker" is one where,
based on common experience, it is likely and foreseeable that more than occasional overhead
reaching would be required.

Gutierrez, 844 F.3d at 807; Lamear, 865 F.3d at 1205. The

Commissioner argues that frequent overhead reaching is not a common or obvious activity in this
context based on the description in the DOT:
Carries tray from food counters to tables for cafeteria patrons.
Carries dirty dishes to kitchen. Wipes tables and seats with
dampened cloth. Sets tables with clean linens, sugar bowls, and
condiments. May wrap clean silver in napkins. May circulate among
diners and serve coffee and be designated Coffee Server, Cafeteria or
Restaurant.
DOT 311.677-01 O; see Def.' s Br. at 7. The Commissioner contends the DOT summary demonstrates
that food service workers do not engage in more than occasional overhead reaching, but the passage
cited above makes no reference to reaching whatsoever, despite the undisputed fact that the DOT
elsewhere indicates that the job requires "frequent reaching." Indeed, the DOT does not address
overhead reaching at all, even for jobs that require frequent or constant overhead reaching, so the
DOT passage cited provides no guidance for determining the extent overhead reaching may be
required for a food service worker.
Plaintiff asserts that the "common experience" test articulated in Lamear suggests the ALJ
erred. Specifically, contends plaintiff, the job of food service worker requires an employee to spend
at least part of the workday in the kitchen, which presumably would entail some degree of overhead
reaching for pots, pans, dishes, or other supplies from storage shelving. PL 's Reply at 5. The court
agrees with plaintiffs premise. Although none of the activities listed in the DOT definition
necessarily require overhead lifting, it is common for kitchens to be arranged in such a manner that
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items regularly used by a food service worker - trays, dishes, linens, silverware, and other supplies
- could require overhead reaching to remove from and return to storage spaces.
Consistent with this observation, other courts within the Ninth Circuit have found, in light
of Gutierrez, a potential conflict between an RFC limitation to occasional overhead reaching and
jobs which the DOT defines as requiring frequent reaching. See, e.g., Cochrane v. Berryhill, No.
3:16-cv-01194-HZ, 260 F.Supp.3d. 1317, 1335-36 (D. Or. May 18, 2017) (finding potential conflict
between counter clerk job requiring "occasional reaching" and RFC limitation prohibiting all
overheadreaching);Menesesv. Berryhill, No. ED CV 16-1061-PLA, available at2017 WL 598759,
at *9 (C.D. Cal. Feb. 14, 2017) (finding potential conflict between sales clerk position which
required stocking shelves and RFC limiting overhead reaching). Notably, at least one case in the
District of Oregon has been remanded because of the potential conflict between an RFC with an
occasional overhead reaching limitation, and the frequent reaching requirement of the position
analogous to food service worker, the same job at issue here. See Ricker v. Colvin, No. 6:12-cv00664-CL, 2013 WL 3944424, at *7 (D. Or. July 20, 2013). These cases demonstrate that Gutierrez
does not foreclose the possibility that a givenj ob' s frequent reaching requirement involves more than
occasional overhead reaching. See also Moore v. Colvin, 769 F.3d 987, 989-90 (8th Cir. 2014)
(remanding based on potential conflict between cafeteria attendant job and RFC for occasional
overhead reaching).
Moreover, Gutierrez is distinguishable from the facts of this case. In Gutierrez, the ALJ
specifically asked the VE ifthe VE's opinion was consistent with the DOT, and the VE confitmed
that it was, despite the claimant's overhead lifting restriction. Gutierrez, 844 F.3d at 807. Here, in
contrast, although the VE indicated he was aware of the overhead reaching limitation and identified
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the job of food service worker, the ALJ did not confirm whether the VE's testimony was consistent
with the DOT, and both appear to have been unaware of the potential conflict. See (Tr. 29, 66-67.) 2
The ALJ's failure to follow-up was error: "ifthe expert's opinion that the applicant is able to work
conflicts with, or seems to conflict with, the requirements listed in the [DOT], then the ALJ must ask
the expert to reconcile the conflict before relying on the expert to decide ifthe claimant is disabled."

Guiterrez, 844 F.3d at 807 (citing SSR 00-4p, 2000 WL 1898704, at *2 (2000)) (emphasis added);
see also Lamear, 865 F.3d at 1206 (citing Zavalin, 778 F.3d at 846).
Based on the record, the Commissioner has failed to carry the step-five burden to establish
plaintiff can perform other work in the national economy. Yuckert, 482 U.S. at 142. Therefore, the
case must be remanded so the ALJ can ask a VE to reconcile the job's frequent reaching requirement
with plaintiffs overhead reaching limitation.
II. Post-Hearing Objections to VE Testimony
Plaintiff also argues that the ALJ erred by failing to acknowledge or rule on Plaintiffs written
objections to the VE's testimony, which were submitted post-hearing but before the ALJ published
his decision. Pl.'s Br. 6-8; see Tr. 300-306. Plaintiffs contends the ALJ's failure to address the
post-hearing objections violated fundamental principles of Social Security Act jurisprudence,
including conducting a non-adversarial proceeding, basing the step five finding on probative
vocational information, and complying with the agency's Hearings, Appeals, and Litigation Law
Manual ("HALLEX").
Specifically, plaintiff argues that by declining to respond to his objections, the ALJ did not

2

Although in her decision the ALJ purpmied to determine the VE' s testimony was consistent with
the DOT, the hearing transcript demonstrates that this was never done. Compare (Tr. 29) with (Tr.
63-70).
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allow plaintiff "to present evidence and to confront evidence against him." PL' s Reply at 2. Plaintiff
quotes 5 U.S.C. 556(d) in support: "A party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may
be required for afull and true disclosure of the facts." See also Goldbergv. Kelly, 397 U.S. 254, 270
(1970) ("Welfare recipients must therefore be given an opportunity to confront and cross-examine
the witnesses relied on by the department."). Plaintiff further argues that the ALJ's failure to rule
on the post-hearing objections violated his right to a "full and fair" hearing, based on the ALJ's
obligation to "investigate the facts and develop arguments both for an against granting benefits."

Sims v. Apfel, 530 U.S. 103, 110 (2000).
Plaintiff contends that the principles of Social Security adjudication mentioned above are
codified by HALLEX I-2-5-55 (2015), which purportedly states that an ALJ is obligated to "rule on
the objection and discuss any ruling in the decision." Pl. 's Br. at 6-7. However, review of the
HALLEX reveals that the cun-ent version ofl-2-5-55 does not require an ALJ to rule on objections
made after the hearing. The full text of the provision cun-ently reads:
When an [ALJ] obtains a [VE] opinion during a hearing, the ALJ will
generally explain why the VE is present before his or her opening
statement. See [HALLEX] I-2-6-50. For detailed instructions on
obtaining VE testimony at a hearing, see [HALLEX] I-2-6-74. For
more information about opening statements, see [HALLEX] I-2-6-52.
HALLEX I-2-5-55, 1994 WL 637383. While one of the provisions to which I-2-5-55 refers states
that an ALJ must rule on any objections during the hearing in the ALJ' s written decision, it is silent
as to post-hearing objections. See HALLEX I-2-6-74, 1993 WL 751902.
However, it appears the prior version ofHALLEX I-2-5-55 included a provision regarding
post-hearing objections to VE testimony. See Moffit v. Berryhill, No. 17-4015-JWL, 2018 WL
Page 11 - OPINION AND ORDER

276770, at *4 (D. Kan. Jan. 3, 2018). Plaintiffs counsel in Moffit directed the District of Kansas
comi to the same source to which plaintiff now directs this court: an unpublished Ninth Circuit
order issued by the Court's mediator, Parker v. Colvin, available at 2015 U.S. App. LEXIS 21390,
at *3 (9th Cir. Mar. 12, 2015) (Westlaw citation unavailable). Parker involved a stipulated motion
for remand, and included numerous items for the ALJ to reconsider. Among those items was a
quotation attributed to HALLEX I-2-5-5 5: "if a claimant raises an objection about the VE' s opinion,
the ALJ must rule on the objection and discuss any ruling in the decision." Id. Therefore, although
neither Moffit nor Parker are binding precedent, it appears the prior version ofHALLEX I-2-5-55
was applicable at the time of the ALJ's May 11, 2015 decision. Moffit, 2018 WL 276770, at *4. 3
The Commissioner contends that HALLEX "has no legal force and is not binding," and cites
several cases in support. Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000); see also Lockwood v.
Comm 'r Soc. Sec. Adm in., 616 F .3d 1068, 1069-70 (9th Cir. 2010) ("HALLEX does not impose

judicially enforceable duties on either the ALJ or this comi"); Roberts v. Comm 'r of the Soc. Sec.
Admin., 644 F.3d 931, 933 (9th Cir. 2011) ("we do not review allegations of non-compliance with

[HALLEX] provisions") (citation omitted). Plaintiff responds that although Lockwood reiterated that
the agency's internal guidance publications are not necessarily binding on comis, they are
nonetheless "entitled to respect" to the extent that those interpretations "have the power to persuade."
Lockwood, 616 F.3d at 1073 (quoting Christensen v. Harris Cnty., 529 U.S. 576, 578 (2000)). In
Lockwood, the Ninth Circuit was not persuaded to follow the Program Operations Manual System

("POMS"), in large part because the provision at issue was not applicable at the time of the ALJ's

3

The previous version ofHALLEX I-2-5-55 is available online at:
https://web.archive.org/web/20150923080051/http://www.ssa.gov:80/0P_Home/hallex/I-02/I-25-55.html (last visited Feb. 6, 2018).
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decision. See id. Here, in contrast, it appears the ALJ was obligated to respond to post-hearing
objections based on the version of HALLEX that was then applicable. As such, the court is
persuaded that the ALJ erred in failing to rule on those objections, and the error was harmful for the
reasons set fotih in Section I, supra.
Conclusion

For the reasons stated above, the ALJ' s decision was not based on substantial evidence or
free of harmful legal error. Therefore, the Commissioner's decision is REVERSED and this case
is REMANDED for further proceedings.
IT IS SO ORDERED.

~--1 ~J&f

DATED thi:y'
--f='.=- of March 2018.

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