Fritz v. Commissioner Social Security Administration
Filing
19
OPINION AND ORDER. Signed on 05/13/2015 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BERNITA L. FRITZ
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
MERRILL SCHNEIDER
Schneider, Kerr & Gibney
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
MARTHA A. BODEN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:14-cv-00888-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Bernita Fritz seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
her
application for Disability Insurance Benefits (DIB) under Title II
of the Social Security Act, 42 U.S.C §§ 401-403, and Supplemental
Security Income (SSI) disability benefits under Title XVI of the
Social
Security Act,
42
U.S.C.
§§
1381-1383f.
This
Court
has
jurisdiction pursuant to 42 U.S.C. § 405(g) and 1383(c) (3). For the
reasons
that
follow,
this
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.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for DIB and SSI on
December 21, 2010, alleging disability beginning November 6, 2009,
due
to
bipolar
disorder.
Plaintiff
meets
the
insured
status
requirements for a DIB application through December 31, 2014.
Plaintiff's
claims
were
denied
initially
upon
and
reconsideration. Plaintiff filed a request for a hearing before an
administrative law judge (ALJ). An ALJ held a hearing on November
28,
2012,
at
which
plaintiff
appeared
with
her
attorney
and
testified. A vocational expert, Thomas P. Weiford, also appeared at
the second hearing and testified.
issued
an
unfavorable
decision.
On January 24,
The
Appeals
2013,
Council
the ALJ
denied
plaintiff's request for review, and therefore, the ALJ's decision
2 - OPINION AND ORDER
became the
final
decision of the
Commissioner for purposes of
review.
Born in 1963, plaintiff was 50 years old on the date of the
ALJ's unfavorable decision. Plaintiff has a ninth grade education
and obtained her General Education Degree (GED) . Plaintiff has past
relevant
work
as
a
certified nursing
assistant
(CNA)
and
gas
station attendant.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
process for determining whether a person is disabled.
Yuckert,
482 U.S. 137, 140 (1987); 20 C.F.R.
§
sequential
Bowen v.
416.920. Each step
is potentially dispositive. The claimant bears the burden of proof
at steps one through four.
Admin., 574 F.3d 685,
Valentine v.
689 (9th Cir. 2009);
Commissioner Soc.
Sec.
Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to
the Commissioner to show that the claimant can do other work which
exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161
(9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since November 6, 2009. At step two,
the ALJ found that plaintiff had the following severe impairments:
affective/bipolar disorder and breathing difficulty. At step three,
the
ALJ
found
that
plaintiff's
impairment
or
combination
of
impairments, did not meet or medically equal a listed impairment.
3 - OPINION AND ORDER
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform less than a full range of light work as defined in
20 C.F.R. § 404.1567(b) with additional limitations. Plaintiff can
lift and carry 20 pounds occasionally and ten pounds frequently,
can stand and walk in two-hour intervals for a total of eight hours
per day, and has no restrictions in sitting. Plaintiff is also able
to remember, understand, and carry out instructions and tasks that
are
generally
required
by occupations
with
a
skill
vocational
preparation (SVP)of 1 to 3.
At step four, the ALJ found that plaintiff is able to perform
her past work as a gas station attendant.
Accordingly,
the ALJ
concluded that plaintiff has not been under a disability under the
Social Security Act from November 6, 2009, through the date of the
decision.
ISSUES ON REVIEW
On appeal
to this court,
errors were committed:
plaintiff contends the
following
(1) the ALJ erred in evaluating the medical
opinion of nonexamining physician, Sandra Lundblad, Psy.D;
ALJ failed to properly evaluate plaintiff's RFC;
(2) the
(3) the ALJ erred
in evaluating lay testimony; and (4) based on these errors, the ALJ
erred in finding plaintiff can perform her past work at Step Four.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the
Commissioner
applied
4 - OPINION AND ORDER
the
proper
legal
standards
and
the
findings are supported by substantial evidence in the record.
U.S.C.
§
405(g); Berry v.
Astrue,
622 F.3d 1228,
1231
42
(9th Cir.
2010). "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill,
698
F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at
690. The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Martinez v. Heckler, 807
F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld,
even
if the
evidence
is
susceptible
to more
than
one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,
359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court
may
not
substitute
its
judgment
for
that
of
the
Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001).
DISCUSSION
I.
The ALJ Erred in Evaluating Dr. Lundblad's Opinion
"The opinion of an examining physician is entitled to greater
weight than the opinion of a nonexamining physician." Lester v.
Chater,
81
F.3d
821,
830-32
(9th
Cir.
1995).
A nonexamining
physician is one who neither examines no treats the claimant. Id.
at 830. "The opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of the
5 - OPINION AND ORDER
opinion of either an examining physician or a treating physician."
Id.
at
831.
A nonexamining physician's
opinion
can constitute
substantial evidence if it is supported by other evidence in the
record. Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595,
600-01 (9th Cir. 1999). Moreover, the "report of a nonexamining,
nontreating physician
need
not
be
discounted
when
it
'is
not
contradicted by all other evidence in the record.'" Andrews v.
Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
An ALJ may reject the testimony of an examining physician, in
favor
of
a
nonexamining
physician
by
providing
specific
and
legitimate reasons supported by substantial evidence in the record.
Tonapetyan v.
Halter,
242 F. 3d 1144,
1148 (9th Cir.
2001).
When
evaluating conflicting opinions, an ALJ is not required to accept
an opinion that is not supported by clinical findings, or is brief
or conclusory. Id. at 1149.
Plaintiff argues that the ALJ erred in evaluating the opinion
of
nonexamining
physician,
Sandra
Lundblad,
Psy.D.
Plaintiff
contends that the ALJ failed to provide specific and legitimate
reasons for rejecting Dr. Lundblad's opinion. I agree.
In
a
June
1,
2011
Psychiatric
Review
Technique
(PRT)
assessment, Dr. Lundblad assessed plaintiff with a mild restriction
in
activities
of
daily
living
and
moderate
difficulties
in
maintaining social functioning and concentration, persistence, and
pace. Tr.
104-105. In a June 1, 2011 Mental RFC assessment,
6 - OPINION AND ORDER
Dr.
Lundblad
opined
remembering,
that
and
plaintiff
carrying out
is
capable
short,
of
simple
understanding,
routine
tasks
and
instructions. Tr. 106-107. Dr; Lundblad also opined that plaintiff
should
avoid
frequent
public
contact
and
frequent
one-on-one
contact with coworkers due to her mental health symptoms. Tr. 107.
Dr. Lundblad's opinion is uncontradicted in the medical record.
In the decision, the ALJ gave Dr. Lundblad's opinion "little
weight" because:
(1) the opinion is inconsistent with plaintiff's
work activity as
a
gas
station attendant;
and
(2)
the medical
evidence does not show that plaintiff's symptoms have deteriorated
since her previous work activity.
The ALJ cited specifically to
plaintiff's hearing testimony and stated that plaintiff testified
that she was fired from her gas station attendant job at Gateway
because
of
an
equipment
malfunction,
not
due
to
her
mental
impairments. Having carefully reviewed the record, I conclude that
the ALJ's reasoning falls short.
1
Contrary to the ALJ's finding, Dr. Lundblad's opinion is not
inconsistent with plaintiff's ability to perform past work as a gas
station attendant. "If your work is done under special conditions,
we may find that it does not show that you have the ability to do
substantial
gainful
activity
Examples
of
conditions that may relate to your impairment include
1
the
special
( 1) you
The Ninth Circuit has not ruled on whether the clear and
convincing standard applies to an ALJ's rejection of an
uncontradicted nonexamining physician's opinion.
7 - OPINION AND ORDER
required special assistance from other employees in performing your
work . .
(6) you were given the opportunity to work despite your
impairment
because
of
family
relationship."
20
C. F. R.
§§
404 .1573 (c), 416. 973 (c).
In this case, plaintiff worked for Gateway gas station from
August 2008 until November 2009, but plaintiff indicated that her
family operated the Gateway. Tr. 61, 224. In fact, her family tried
to train plaintiff to run a cash register but she was unable to
learn this
job duty;
her family modified plaintiff's duties to
simply allow her to pump gas. Tr. 53-54. Plaintiff testified that
if she received cash from a customer, she would take the money to
the cashier,
who would give her the correct change.
Id.
While
plaintiff was able to work at Gateway for at least a year,
the
evidence demonstrates that she performed this work under "special
conditions;" plaintiff cannot independently perform this type of
work.
The ALJ focused on a statement out of context from plaintiff's
hearing testimony to support his conclusion that plaintiff could
sufficiently perform her past work as a gas station attendant. At
the hearing,
plaintiff testified that stress played a factor in
being fired from her three jobs as a gas station attendant. Tr. 37,
224. With respect to the Gateway job, plaintiff testified that "I
was kind of busy.
There was like four or five cars there,
heard a bunch of honking
8 - OPINION AND ORDER
and I
. I turned around, and there was like
30 gallons of gas on the ground." Tr. 37. Although the ALJ focused
on
the
gas
spill
immediately
preceding
her
firing,
plaintiff
further testified that her employer told her she "wasn't cut out
for" the job. Tr. 60.
Moreover, the record shows plaintiff had difficulty with her
other two gas station attendant jobs, which were performed without
accommodations.
For example, at the Jackson Foods gas station in
2008, plaintiff testified that she was fired for missing too many
days from work due to her mental symptoms. Tr.
39, 224.
In 2010,
plaintiff worked for one month as a gas station attendant at the 76
station before being fired for being too slow on the job. Tr. 52,
224. Plaintiff further testified to the "stress of keeping up with
all the cars . . . I would get to the point where I couldn't think,
and I couldn't run the [cash register)." Tr. 48. Thus, I conclude
that
the
ALJ's
determination
that
Dr.
Lundblad's
opinion
is
inconsistent with plaintiff's prior work as a gas station attendant
is not supported by substantial evidence, and therefore, does not
provide a
specific and legitimate basis to reject her opinion.
Molina v. Astrue,
674 F.3d 1104, 1113 (9th Cir. 2012).
Next, the ALJ discredited Dr. Lundblad's opinion on the basis
that the medical record did not demonstrate a
deterioration in
plaintiff's mental functioning since being fired from her job at
Gateway. I wholly disagree. For example, in January 2008, plaintiff
was hospitalized for three days after attempting to commit suicide
9 - OPINION AND ORDER
,
by overdosing on Lithium and Zyprexa.
Tr.
280.
Upon admission,
plaintiff was assessed with a Global Assessment
score
of
30. 2
In
August
2009,
plaintiff's
Function
treatment
(GAF)
provider
prescribed an increase in her Lithium dosage from 600 mg to 900 mg
to
reduce
active
bipolar
symptoms.
Tr.
307.
In
January
2010,
plaintiff was hospitalized for a day due to mental health symptoms,
including anxiety and paranoia. Tr. 365.
Contrary to the ALJ's assertion, occasional treatment notes
documenting
improvement
and
stability
do
not
entirely
negate
plaintiff's functional limitations from her bipolar disorder. "The
very nature of bipolar disorder is that people with the disease
experience fluctuations in their symptoms, so any single notation
that a patient is feeling better or has had a 'good day' does not
imply that the condition has been treated." Garrison v. Colvin, 759
F.3d
995,
n.23
'cherry-pick'
benefits").
(9th Cir.
from
2014) ("the ALJ was
[treatment
For example,
notes)
to
not
support
primary care physician,
permitted to
a
denial
of
Stephanie Cha,
M.D., noted that although plaintiff reported her mood as stable in
July 2009, Dr. Cha indicated that plaintiff endorsed symptoms of
paranoia and presented with a flat affect. Tr. 384-85. In September
2
A GAF of 21-30 indicates behavior that is considerably
influenced by delusions or hallucinations or serious impairment
in communication or judgment (e.g. sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation) or an inability
to function in almost all areas (such as staying in bed all day) .
Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV)
pp. 31-34 (4th ed. 2000).
10 - OPINION AND ORDER
2009,
plaintiff
reported
problems
with
sleeping,
symptoms
of
paranoia, and passive suicidal ideation. Tr. 387. Dr. Cha noted a
flat
affect
and
linear
thought
process.
treatment notes are consistent with Dr.
Tr.
388.
Dr.
Cha's
Lundblad's opinion that
plaintiff is limited to simple routine tasks.
Moreover, a February 1, 2011 consultative examination by Jane
Starbird,
Ph.D.,
Starbird noted a
further
supports
blunted affect
Dr.
with
Lundblad' s
opinion.
inappropriate
speech
Dr.
and
variable concentration. Dr. Starbird also noted that plaintiff was
able to repeat digits, unable to perform serial seven calculations,
and presented with moderate to poor social skills. Tr.
406.
Dr.
Starbird noted that plaintiff reported being fired from her three
gas station jobs because she became paranoid and confused, which is
consistent
with
her
hearing
testimony. 3 Tr.
405.
Dr.
Starbird
diagnosed bipolar disorder I and alcohol dependence and opined that
plaintiff's presentation, self-report, and medical record are all
consistent.
findings
Tr.
407.
"some weight"
The
ALJ
because
gave
"her
Dr.
Starbird' s
finding
that
examination
claimant
has
difficulties with memory and concentration is consistent with her
examination results." Tr. 24. Dr. Lundblad's opinion is consistent
with Dr. Starbird's comprehensive examination. The ALJ's decision
3
Plaintiff does not challenge the ALJ's negative credibility
assessment. Nevertheless, I reviewed the ALJ's rationale and find
that he failed to provide clear and convincing reasons, supported
by substantial evidence, to discredit plaintiff's testimony.
11 - OPINION AND ORDER
to give "some weight" to Dr. Starbird' s examination findings is
inconsistent with his decision to give "little weight" to Dr.
Lundblad's
opinion,
which
findings.
Accordingly,
relies
the
ALJ
primarily
on
improperly
Dr.
Starbird's
discredited
Dr.
Lundblad's opinion on the basis that the medical record did not
show a worsening of symptoms.
In short,
the ALJ failed to cite specific and legitimate
reasons, supported by substantial evidence to discount the opinion
of Dr. Lundblad; therefore, the ALJ has erred.
II.
The ALJ Erred in Assessing Plaintiff's RFC
An
ALJ' s
supported
by
consistent
testimony.
RFC
need
substantial
with
the
only
incorporate
evidence
restrictions
in
the
credible
record
identified
Stubbs-Danielson v. Astrue,
in
limitations
and must
the
539 F.3d 1169,
be
medical
1174
(9th
Cir. 2008); see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005) (the ALJ is
limitations
in
only required to
the
RFC;
identify specific,
"[p]reparing
a
credible
function-by-function
analysis for medical conditions or impairments that the ALJ found
neither credible nor supported by the record.is unnecessary").
In determining the RFC,
the ALJ must consider limitations
imposed by all of the claimant's impairments, even those that are
not severe,
and evaluate "all of the relevant medical and other
evidence," including the claimant's testimony. SSR 96-8p, available
at 1996 WL 374184.
The RFC assessment is "a function-by-function
12 - OPINION AND ORDER
assessment based on all of the relevant evidence of an individual's
ability to do work-related activities." Id.
Plaintiff argues that the ALJ failed to provide an RFC that is
a
function-by-function
assessment
of
plaintiff's
mental
limitations. Plaintiff also argues that the ALJ erred in failing to
incorporate his finding of a moderate limitation in maintaining
concentration,
persistence,
and
pace
into
the
RFC
finding.
Plaintiff is correct.
"The
time
[Dictionary of Occupational Titles
for
each
definitions
in
described
20
CFR
occupation.
404.1568
and
(DOT)]
Using
the
416.968,
lists a SVP
skill
level
unskilled
work
corresponds to an SVP of 1-2; semi-skilled work corresponds to an
SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the
DOT." SSR 00-4p, available at 2000 WL 1898704 at *3.
In finding that plaintiff can remember, understand, and carry
out instructions and tasks generally required by occupations with
an SVP of one to three, the ALJ failed to provide an assessment of
plaintiff's
disorder.
functional
SVP
levels
limitations
are
generally
resulting
from
discussed .in
her
bipolar
relation
to
vocational assessment of the disability process at steps four and
five and refers to the time it takes to learn a particular job. The
ALJ failed
to express plaintiff's mental
ability to perform work-related activities.
13 - OPINION AND ORDER
RFC
in terms
of her
As plaintiff argues, the ALJ also failed to incorporate his
finding of a moderate limitation in maintaining concentration,
persistence, and pace into the RFC finding.
In assessing whether
plaintiff's impairment meets or equals a listing at Step Three, the
ALJ found that plaintiff's bipolar disorder results in a moderate
limitation
in maintaining concentration,
persistence,
and pace
(CPP). Tr. 20. The ALJ's RFC restriction to semi-skilled' work does
not adequately reflect a moderate limitation in CPP because such a
limitation generally corresponds to an RFC restriction to simple
repetitive tasks or unskilled work as indicated by the medical
record.
See
properly
Stubbs-Danielson,
translated
a
539
moderate
F.3d
at
limitation
1173
in
(holding
ALJ
concentration,
persistence, or pace into a RFC limitation to simple tasks); Sabin
v. Astrue, 337 Fed. Appx. 617, 621 (9th Cir. 2009) ("the end result
of
[plaintiff's] moderate difficulties as to
[CPP]
was that she
could do simple and repetitive tasks on a consistent basis").
Here, the record does not support a limitation to semi-skilled
work.
All
of
the
medical
opinions
and evidence
plaintiff is more limited than the ALJ' s
finding.
indicate
that
As discussed
above, Dr. Lundblad's opinion that plaintiff is limited to short,
simple routine tasks is supported by substantial evidence in the
record,
and the ALJ failed to provide
4
specific and legitimate
Here, the ALJ's finding that plaintiff is capable of
performing SVP three level jobs is essentially a limitation to
semi-skilled work. See SSR 00-4p.
14 - OPINION AND ORDER
reasons
for
rejecting her opinion.
examination findings
also support
plaintiff's mental limitations.
Dr.
Dr.
Dr.
consistent with the February 17,
Lundblad' s
Lundblad' s
Dr.
consultative
assessment of
opinion is also
2011 mental RFC assessment of
non examining physician Megan Nicoloff,
sure,
Starbird' s
Psy. D.
Tr.
Lundblad's opinion is uncontradicted,
82-84.
To be
and there is no
medical opinion in the record opining that plaintiff is capable of
performing semi-skilled work.
Furthermore, it appears that the only support for the ALJ's
RFC
is
plaintiff's
alleged
attendant at Gateway. 5 Tr.
ability
24.
to
work
as
a
gas
station
However, as discussed previously,
plaintiff's ability to perform this past job is not consistent with
an
ability
to
perform
semi-skilled
jobs
because
the
job
was
performed under special conditions.
In sum,
because the ALJ's RFC finding is not supported by
substantial evidence in the record, I conclude that the ALJ erred
in evaluating plaintiff's RFC.
III. Lay Witness Testimony
Lay witness testimony as to how a claimant's symptoms affect
his ability to work is competent evidence, which the ALJ must take
into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009);
Stout,
454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100
5
The VE testified that plaintiff's past work as a gas
station attendant has an SVP of three. Tr. 75.
15 - OPINION AND ORDER
F.3d 1462, 1467 (9th Cir. 1996). The ALJ is required to account for
competent lay witness testimony,
and if it is rejected,
provide
germane reasons for doing so. Valentine, 574 F.3d at 694.
In a
January 22,
2011
Third
Party
Function Report,
David
Yegge, plaintiff's former manager at the 76 gas station, noted that
plaintiff was unable to use the cash register for simple gas sales
and always
required assistance.
Tr.
240.
Mr.
Yegge noted that
plaintiff had difficulty keeping up with customer volume at the gas
station.
Id.
Mr. Yegge testified that he has known plaintiff for
ten years and noted that plaintiff has not been able to keep a job
during that time.
Tr.
241.
Mr.
Yegge also noted that he is not
convinced that plaintiff takes her medication on a regular basis.
Tr.
242.
Mr.
Yegge further noted that plaintiff has difficulty
socializing with other people and had difficulty getting along with
coworkers. Tr. 245.
In the instant action, plaintiff argues that the ALJ erred in
evaluating the lay testimony of Mr. Yegge. I agree.
In the decision, the ALJ gave Mr. Yegge's testimony "little
weight" because his statements that plaintiff was unable to "keep
up at work is contrary to her ongoing work activity, which ended
only due to problems with the equipment." Tr.
24.
The ALJ also
erroneously identified Mr. Yegge as plaintiff's boyfriend rather
than work manager. Id. The Commissioner concedes that the ALJ erred
in misidentifying Mr. Yegge but argues that it is harmless and that
16 - OPINION AND ORDER
the
ALJ
provided
a
germane
reason
for
rejecting
Mr.
Yegge' s
testimony. I disagree.
Contrary to the ALJ's finding, Mr. Yegge's testimony is not
inconsistent with plaintiff's work at the 76 gas station. Plaintiff
worked at this gas station for only a month before being fired. Tr.
52, 224. At the hearing, plaintiff testified that she kept making
mistakes with the cash register and had difficulty handling the
stress associated with serving the high volume of cars at the gas
station. Tr. 48.
Plaintiff also testified that she would require
assistance from her manager, Mr. Yegge to fix her mistakes and help
her keep up with the stream of customers.
Consistent with Mr.
Yegge's testimony, plaintiff testified that she was fired from her
job at the 76 station because she was too slow. Tr. 52. In fact, as
discussed
above,
plaintiff
testified
to
significant
maintaining her past three gas station jobs,
problems
including handling
high volume of customers and an inability to work a cash register.
Thus, Mr. Yegge's testimony is supported by plaintiff's testimony
that
she
had
difficulty
performing
her
job
as
a
gas
station
attendant.
Accordingly,
I
conclude
that
the
ALJ has
not
provided a
germane reason for discrediting Mr. Yegge's testimony. See Stout,
454 F.3d at 1053 (ALJ's failure to address and provide a germane
reason for rejecting lay testimony is not harmless).
17 - OPINION AND ORDER
IV.
Step Four
At step four, the claimant has the burden to show she can no
longer perform her past relevant work. 20 C.F.R.
§§
404.1520(e),
416.920(e). However, the ALJ must still provide factual findings to
support his step four conclusion. Pinto v. Massanari, 249 F.3d 840,
844
{9th Cir.
2001).
"This requires specific findings as to the
claimant's residual functional capacity,
the physical and mental
demands of the past relevant work, and the relation of the residual
functional capacity to the past work." Id. at 845. At steps four
and five, the ALJ can rely on VE testimony in determining whether
a claimant can perform his past relevant work or other work in the
national economy. See Johnson v. Shalala, 60 F.3d 1428, 1436 {9th
Cir.
1995)
(holding
that
the
ALJ
properly
relied
on
expert
testimony to find claimant could perform two jobs identified by the
VE).
Plaintiff also briefly argued that because the ALJ erred in
assessing plaintiff's
RFC,
the ALJ' s
Step
Four
finding
is
not
supported by substantial evidence. Plaintiff specifically contends
that she cannot perform her past relevant work because it is semiskilled. I agree.
At the hearing, the ALJ asked the VE to identify plaintiff's
past relevant work. The VE testified that the most analogous job in
the DOT to plaintiff's work as a gas station attendant is at the
medium level with an SVP of 3. Dictionary of Occupational Titles,
18 - OPINION AND ORDER
§
915.467-010. Tr. 75. The VE noted that plaintiff did not perform
the auto repair duties of the job as it is listed in the DOT:
the Department of Labor categorizes the work as a fuel
attendant as medium, but then indicates that .
[is
for] individuals that do lubrication and do many other
activities. So there's not one DOT that is consistent
with that, light - - it's my opinion that the work would
be categorized in the light category.
Tr. 75
Although the DOT indicates that plaintiff's past work is generally
performed at the medium level,
the VE testified that plaintiff's
past relevant work is performed at the light level. Id. The ALJ did
not
pose
a
hypothetical
to
the
VE
incorporating
all
of
the
limitations of the RFC finding to determine whether plaintiff could
perform her past relevant work. The ALJ also failed to inquire as
to whether the VE's testimony was consistent with the DOT. 6
In the decision, the ALJ found that plaintiff could perform
her past relevant work as a gas station attendant. Specifically,
the ALJ noted that "in comparing the claimant's residual functional
capacity with the physical and mental demands of this work, I find
that the claimant is able to perform it as actually performed . .
6
After review of the hearing testimony, it appears that the
VE's testimony conflicts with the DOT, but the VE did not testify
as to this conflict. The VE also did not provide a sufficient
explanation for the deviation from the DOT. See Massachi v.
Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (holding that
because the ALJ failed to ask the VE about possible conflicts
with the DOT, court cannot determine if ALJ properly relied on
VE' s testimony) .
19 - OPINION AND ORDER
. I note that she performed this job after her alleged onset date,
and her work did not end due to her impairments." Tr. 24.
The ALJ's finding that plaintiff can perform her past work as
a gas station attendant is not supported. As discussed above, the
ALJ erred in finding that plaintiff is capable of performing semiskilled work,
limited
in
ignoring two medical opinions that found her more
terms
of
mental
functioning.
The
VE
classified
plaintiff's past work as a gas station attendant with a SVP level
of three or semi-skilled work. Tr. 75. Accordingly, because the ALJ
erred in evaluating plaintiff's RFC, the ALJ's Step Four finding is
not supported by substantial evidence.
IV.
Credit-as-True
After finding the ALJ erred, this court has the discretion to
remand
for
further
benefits.
Vasquez
Harman v.
Apfel,
v.
proceedings
Astrue,
or
for
immediate
572 F.3d 586,
211 F.3d 1172,
1178
593
(9th Cir.
payment
(9th Cir.
of
2009);
2000). The issue
turns on the utility of further proceedings. A remand for an award
of benefits is appropriate where there is no useful purpose to be
served
by
further
proceedings
or
where
the
record
is
fully
developed. Vasquez, 572 F.3d at 593.
The
Ninth Circuit
has
established
a
three-part
test
"for
determining when evidence should be credited and an immediate award
of benefits directed." Harman, 211 F.3d at 1178. The court should
grant an immediate award of benefits when:
20 - OPINION AND ORDER
( 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.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has discretion whether to credit the evidence. Connett v. Barnhart,
340 F.3d 873,
876
(9th Cir.
2003).
The reviewing court should
decline to credit testimony when "outstanding issues" remain. Luna
v.
Astrue,
623 F. 3d 1032,
1035
(9th Cir.
2010).
Moreover,
"[a)
claimant is not entitled to benefits under the statute unless the
claimant is, in fact, disabled, no matter how egregious the ALJ's
errors may be." Strauss v. Commissioner of the Soc. Sec. Admin.,
635 F.3d 1135, 1138 (9th Cir. 2011).
On this record,
I conclude that outstanding issues must be
resolved before a final determination of disability can be made.
The ALJ erred in evaluating Dr. Lundblad's opinion and assessing
plaintiff's
RFC.
As
previously discussed,
the
record does
not
support a limitation to semi-skilled work. Even if Dr. Lundblad's
opinion was credited as true,
this opinion does not support an
overall finding of disability. Dr. Lundblad opined that plaintiff
could
understand
instructions.
and
With a
perform
short
simple
routine
limitation to unskilled work,
tasks
and
there is a
possibility that plaintiff could still perform other work at step
21 - OPINION AND ORDER
five.
Because the ALJ found plaintiff not disabled at step four,
the ALJ did not reach the step five question of whether plaintiff
is capable of performing other work that exists in significant
numbers in the national economy.
Additionally, the ALJ also erred in evaluating lay testimony
and in assessing plaintiff's credibility. These unresolved issues
are best addressed by the ALJ. Thus, I decline to award immediate
award of benefits because the record as a whole creates serious
doubt as to whether plaintiff is, in fact,
disabled. Garrison v.
Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
Based on the foregoing,
I exercise discretion under Connett
and conclude a remand for further proceedings is required to permit
the ALJ to further evaluate Dr. Lundblad's opinion; further assess
plaintiff's RFC; reevaluate plaintiff's credibility; and evaluate
whether plaintiff is capable of performing other work that exists
in significant numbers in the national economy, with assistance of
a vocational expert if necessary.
22 - OPINION AND ORDER
CONCLUSION
For
decision
the
reasons
denying
stated
benefits
to
above,
the
plaintiff
Commissioner's
is
REVERSED
final
and
this
proceeding is REMANDED pursuant to sentence four of 42 U.S.C.
§
405 (g)
for further administrative proceedings consistent with
this opinion.
IT IS SO ORDERED.
DATED this
__L3_
day of May, 2015.
Malcolm F. Marsh
United States District Judge
23 - OPINION AND ORDER
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