Walker v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER: The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. See 16-page opinion and order attached. Signed on 5/9/2014 by Judge Anna J. Brown. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BETHANIE WALKER,
Plaintiff,

3:13-cv-00490-BR
OPINION AND ORDER

v.

CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration, 1
Defendant.

BRUCE W. BREWER
Law Offices of Bruce W. Brewer, PC
P.O. Box 421
West Linn, OR 97068
[phone]
Attorney for Plaintiff

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013.
Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case.
No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 u.s.c. § 405.
1 - OPINION AND ORDER

S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]

Attorneys for Defendant

BROWN, Judge.

Plaintiff Bethanie Walker seeks judicial review

of

a final

decision of the Commissioner of the Social Security
Administration (SSA)

in which she denied Plaintiff's application

for Supplemental Security Income (SSI) payments under Title XVI
of the Social Security Act.
This Court has jurisd{ction to review the Commissioner's
decision pursuant to 42 U.S.C.

§

405(g).

Following a thorough

review of the record, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C.

§

405(g) for further administrative proceedings

consistent with this Opinion and Order.

2 - OPINION AND ORDER

ADMINISTRATIVE HISTORY
Plaintiff filed her application for SSI on December 15,
Tr. 20. 2

2009.

reconsideration.

The application was denied initially and on
An Administrative Law Judge (ALJ) held a

hearing on August 24, 2011.

Tr. 20.

was represented by an attorney.

At the hearing Plaintiff

Plaintiff and a vocational

expert (VE) testified at the hearing.

Tr. 20.

The ALJ issued a decision on September 12, 2011, in which he
found Plaintiff is not entitled to benefits.

Tr. 30.

That

decision became the final decision of the Commissioner on
January 28, 2013, when the Appeals Council denied Plaintiff's
request for review.

Tr. 1.

BACKGROUND
Plaintiff was born on August 7, 1989, and was 22 years old
at the time of the hearing.
school.

Tr. 42.

Tr. 42.

Plaintiff completed high

Plaintiff does not have any past relevant work.

Tr. 28.
Plaintiff alleges disability since August 30, 2009, due to
bipolar disorder, asthma, and protein C deficiency.

Tr. 151.

Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

2

After carefully reviewing the

Citations to the official transcript of record filed by
the Commissioner on August 5, 2013, are referred to as "Tr."
3 - OPINION AND ORDER

medical records, this Court adopts the ALJ's summary of the

See Tr. 22-28.

medical evidence.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability "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."
§

423 (d) (1) (A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

McLeod v. Astrue, 640 F.3d

proper evaluation of the evidence.
881, 885
453,

(9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d

459-60

(9th Cir. 2001)).

The district 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 as a whole.
U.S.C. § 405(g).

See also Brewes v. Comm'r of Soc.

682 F. 3d 1157, 1161

(9th Cir. 2012) .

42

Sec. Adinin.,

Substantial evidence is

"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."
(quoting Valentine v. Comm'r Soc.

4 - OPINION AND ORDER

Molina,

674 F.3d. at 1110-11

Sec. Adinin., 574 F.3d 685,

690

(9th Cir. 2009)).

It is more than a

but less than a preponderance.

Id.

~mere

scintilla" of evidence

(citing Valentine,

574 F.3d

at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.
Commrr of Soc. Sec.,

528 F.3d 1194, 1198

Ryan v.

(9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart,

454 F.3d 1063, 1070 (9th Cir.

2006) .

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
F.3d 721, 724

Keyser v. Commrr of Soc. Sec. Admin., 648

(9th Cir. 2011).

See also Parra v. Astrue, 481

F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
5 - OPINION AND ORDER

§

416.920.

Each step is

potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R.

§

416.920(a) (4) (I).

See also Keyser,

648

F.3d at 724.
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
§

416.920(a) (4) (ii).

See also Keyser,

20 C.F.R.

648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§

416. 920 (a) (4) (iii).

20 C.F.R.

See also Keyser, 648 F. 3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments) .
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's residual functional capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§

416.920(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

"A

'regular and continuing basis' means 8 hours a day, for 5 days a

6 - OPINION AND ORDER

week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm'r of Soc.

Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597, 603

(9th Cir. 1989)).

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.

An improper evaluation

of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
See also Keyser,

20 C.F.R.

§

416.920(a) (4) (iv).

648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
Keyser,

20 C.F.R.

648 F.3d at 724-25.

§

416.920(a) (4) (v).

See also

Here the burden shifts to the

Commissioner to show 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).

The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set

7 - OPINION AND ORDER

forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R.

§

416.920(g) (1).

ALJ' S FINDINGS

At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since December 15, 2009, her
application date.

Tr. 22.

At Step Two the ALJ found Plaintiff has the severe
impairments of protein C deficiency with deep-vein thrombosis,
asthma, and borderline personality disorder.

Tr. 22.

At Step Three the ALJ found Plaintiff's impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 24.

The ALJ found Plaintiff has the RFC to

perform light work except
all postural limitations are limited to frequently,
except only occasional climbing of ramps and stairs,
and never climbing of ropes, ladders, and scaffolds.
[Plaintiff] should avoid concentrated exposure to
environmental irritants and hazards.
She can perform
simple repetitive tasks, and can occasionally perform
detailed and complicated tasks.
She is limited to
occasional contact with supervisors, coworkers, and the
public.
She needs to be able to move about on a
regular basis where she would be walking most of the
time.
Tr. 25.
At Step Four the ALJ concluded Plaintiff does not have any
past relevant work.

8 - OPINION AND ORDER

Tr. 28.

At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy such as mail
clerk, courier, and security guard.

Tr. 29.

Accordingly, the

ALJ found Plaintiff is not disabled and, therefor, is not
entitled to benefits.

DISCUSSION

Plaintiff contends the ALJ erred (1) by improperly rejecting
the lay-witness statement of Creston Hendrickson and (2) by
providing an inadequate hypothetical to the VE and relying on the
erroneous testimony of the VE.
I.

Lay-Witness Statement

Plaintiff contends the ALJ erred when he rejected the
written statement of lay-witness Creston Hendrickson.
When determining whether a claimant is disabled, the ALJ
must consider lay-witness testimony concerning a claimant's
limitations and ability to work.

Molina,

674 F.3d at 1114.

If

the ALJ discounts the testimony of lay witnesses, he "must give
reasons that are germane to each witness."
v. Chater, 100 F.3d 1462, 1467
Lesterr 81 F.3d at 834

Id.

(9th Cir. 1996)).

(quoting Nguyen
See also

(improperly rejected lay-witness testimony

is credited as a matter of law).
Germane reasons for discrediting a witness's testimony
include inconsistency with the medical evidence and the fact that
9 - OPINION AND ORDER

the testimony "generally repeat[s]" the properly discredited
testimony of a claimant.
12 18

( 9th Cir . 2 0 0 5 ) .

Bayliss v. Barnhart, 427 F.3d 1211,

See also Williams v. Astrue, 493 F. App'x

8 6 6 ( 9th Cir . 2 0 12 )
On January 1, 2010, Hendrickson stated in a Third Party
Function Report that he is Plaintiff's boyfriend, has known
Plaintiff for two years, lives with her, and spends every day
with her.

Tr. 180.

Hendrickson stated he has to help Plaintiff

put on her pants, shave, and bathe.

Tr. 181.

Hendrickson also

stated Plaintiff does laundry, cleans, shops, reads, watches
television, writes, and visits her father.

Tr. 182-84.

Hendrickson explained Plaintiff has difficulty getting along with
others because she is bipolar and gets angry quickly.

Tr. 184.

Hendrickson also stated Plaintiff sits or lays down often and her
leg hurts most of the time, particularly when she stands for long
periods of time.

Tr. 180, 185.

The ALJ considered Hendrickson's statement that Plaintiff
"is able to clean the apartment; takes the dog out; washes the
laundry; and, shops for groceries."

Tr. 28.

The ALJ concluded

these statements suggest Plaintiff is not as limited as she
contends.

Tr. 28.

As Plaintiff points out, however, the ALJ did not give
specific reasons for rejecting Hendrickson's statements regarding
the limiting effects of Plaintiff's alleged impairments.

10- OPINION AND ORDER

The

Court notes, nonetheless, that Hendrickson's statements as to
Plaintiff's limitations generally repeat Plaintiff's testimony,
which the ALJ rejected in part because her "daily activities
suggest a level of functioning greater than what she has alleged
in her application and testimony."

Tr. 27.

The Court also notes

Plaintiff did not object to the ALJ's finding that Plaintiff was
not entirely credible as to the limiting effects of her alleged
symptoms, and, therefore, in effect, Plaintiff concedes such a
finding was proper.

Tr. 27.

Although the ALJ did not provide specific reasons germane to
Hendrickson for disregarding his statement in part, the Court
concludes such error was harmless because Hendrickson's testimony
generally repeated Plaintiff's properly discredited testimony.
II.

VE Testimony

Plaintiff contends the ALJ erred (1) by giving the VE an
inadequate hypothetical and (2) by failing to elicit an
explanation from the VE as to the conflict between the Dictionary
of Occupational Titles (DOT) and the VE's testimony that
Plaintiff is capable of performing the job of security guard.
A.

Hypothetical to the VE

Plaintiff contends the ALJ provided an inadequate
hypothetical to the VE because the ALJ misstated the limitation
from Plaintiff's RFC that Plaintiff "needs to be able to move
about on a regular basis where she would be walking most of the

11- OPINION AND ORDER

time."

Tr. 25 (emphasis added) . 3

The Court agrees.

In his

hypothetical to the VE, the ALJ instead stated the individual
would need to "be able to move on a pretty regular basis for
[sic] walk and up and down and she's not sitting or standing in

place all day," and "I'm not talking about her being able to
walk, move around, not stand still, not where she's walking most
of the day."

Tr. 59 (emphasis added).

The ALJ's hypothetical to

the VE that the individual would not be walking most of the day
directly contradicts Plaintiff's RFC that requires she walk "most
of the time."

Tr. 25.

Accordingly, the Court concludes the ALJ erred by providing
a hypothetical to the VE that was inconsistent with Plaintiff's
RFC.
B.

Conflict with the DOT

Plaintiff also contends the ALJ erred by relying on the VE's
testimony that Plaintiff could perform the job of security guard,
which diverged from the DOT without explanation.
The DOT is presumptively authoritative regarding job
classifications, but the presumption is rebuttable.
Shalala,

60 F.3d 1428, 1435 (9th Cir. 1995).

3

Johnson v.

"[A]n ALJ may rely

Plaintiff also contends the ALJ failed to include in the
hypothetical a restriction that Plaintiff is unable to drive
because she does not have a driver's license.
The Court does not
find this argument persuasive because the record reflects
Plaintiff's failure to obtain a driver's license is not due to
any of her alleged medical impairments.
See Tr. 61.
12- OPINION AND ORDER

on expert testimony which contradicts the DOT, but only insofar
as the record contains persuasive evidence to support the
deviation."

Id.

Thus, before he may rely on the VE's testimony,

an ALJ "must first determine whether a conflict exists."
Massachi v. Astrue, 486 F.3d 1149, 1153 (2007).

In accordance

with SSR 00-4p, the ALJ must, in other words, ask the VE whether
his testimony is consistent with the DOT.

Id. at 1152-53.

If

"there is an apparent unresolved conflict between VE .
evidence and the DOT, the [ALJ] must elicit a reasonable
explanation for the conflict."

SSR 00-4p.

See also Massachir

486 F.3d at 1153-54.
"The DOT lists a specific vocational preparation (SVP) time
for each described occupation."

SSR 00-4p.

Unskilled work

corresponds to an SVP of 1-2 and semi-skilled work corresponds to
an SVP of 3-4 in the DOT.

Id.

Plaintiff contends the VE's

testimony that Plaintiff could perform the job of a security
guard (DOT 372.667-038)

4

conflicted with the DOT in light of the

fact that the job of security guard has an SVP of 3 and Plaintiff
is only capable of performing unskilled work (i.e., jobs with an
SVP of 1-2).

Plaintiff contends, therefore, the ALJ erred

because he did not elicit testimony from the VE to resolve this
apparent conflict.

The Court agrees.

4

The Court notes the official title of the occupation that
corresponds with DOT 372.667-038 is "merchant patroller," but an
alternate title is "security guard."
13- OPINION AND ORDER

The record reflects the ALJ concluded "transferability of
job skills is not an issue because [Plaintiff] does not have past
relevant work."

Tr. 28.

SSR 82-41 provides:

Transferability of skills is an issue only when an
individual's impairment(s), though severe, does not
meet or equal the criteria in the Listing of
Impairments in Appendix 1 of the regulations but does
prevent the performance of past relevant work (PRW),
and that work has been determined to be skilled or
semiskilled. ( PRW is defined in regulations sections
404.1565 and 416.965.) When the table rules in Appendix
2 are applicable to a case, transferability will be
decisive in the conclusion of 'disabled' or 'not
disabled' in only a relatively few instances because,
even if it is determined that there are no transferable
skills, a finding of "not disabled" may be based on the
ability to do unskilled work.
Here the ALJ concluded Plaintiff did not have transferrable
job skills.

She is limited, therefore, to performing only

unskilled work and is precluded from performing a semi-skilled
job that has an SVP 3 such as security guard.

The ALJ did not

identify this apparent conflict between the DOT and the VE's
testimony and did not elicit testimony from the VE explaining
this conflict at the hearing.
Accordingly, the Court concludes the ALJ erred when he
relied on the part of the VE's testimony that conflicts with the
DOT.

REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
14- OPINION AND ORDER

The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
Sec. Adrnin.,

See, e.g., Brewes v. Comm'r Soc.

682 F.3d 1157, 1164

(9th Cir. 2012).

The court may

"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."

Id.

(quoting Smolen v. Chater,

80 F.3d

12 7 3 , 12 9 2 ( 9th Cir . 19 9 6 ) ) .
The Ninth Circuit has established a three-part test for
determining when evidence should be credited and an immediate
award of benefits directed.
Adrnin.,

635 F.3d 1135, 1138

Strauss v.

Comm'r of Soc.

(9th Cir. 2011).

Sec.

The court should

grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, ( 2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.
Harman v. Apfel, 211 F.3d 1172, 1178 n.2

See, e.g.,

(9th Cir. 2000).

Because the ALJ posed an inadequate hypothetical to the VE
by misstating Plaintiff's limitations and did not require an
explanation about the conflict between the VE's testimony and the
15- OPINION AND ORDER

DOT, this Court cannot determine whether the VE's testimony was
reliable.

See Massachi,

486 F.3d at 1154.

Thus, the Court

"cannot determine whether substantial evidence supports the ALJ's
finding" that the claimant can perform other work, and, as a
result, this matter must be remanded.

See id.

Accordingly, because the Court has determined the ALJ erred
with respect to the hypothetical he posed to the VE and in his
reliance on the VE's testimony that conflicts with the DOT, the
Court remands this matter for further administrative proceedings
consistent with this Opinion and Order.

CONCLUSION

For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C.

§

405(g) for further administrative proceedings

consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this

~

_j__

16- OPINION AND ORDER

day of May, 2014.