Thornbrugh v. Commissioner Social Security Administration
Filing
27
Opinion and Order - The Commissioner's decision is AFFIRMED. Signed on 3/27/2018 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONALD THORNBRUGH,
Plaintiff,
Case No. 3:16-cv-1872-SI
OPINION AND ORDER
v.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.
Bruce W. Brewer, P.O. Box 421, West Linn, OR 97068. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Jordan D. Goddard, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Donald Thornbrugh (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his applications
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”),
and Supplemental Security Income (“SSI”) under Title XVI of the Act. For the following
reasons, the Commissioner’s decision is AFFIRMED.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district 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
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 of Soc. Sec.
Admin., 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. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). 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. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[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) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff filed an application for DIB on December 11, 2012. AR 219. He then filed an
application for SSI on December 14, 2012. AR 221. In both applications, Plaintiff alleged he
became disabled as of August 31, 2009. AR 219, 221. Born in 1960, Plaintiff was 49 years old at
PAGE 2 – OPINION AND ORDER
the alleged disability onset date and was 54 years old at the time of the hearing. AR 219. He left
high school in the ninth or tenth grade and later attended GED courses when he was 19 years old;
however, he did not obtain a degree. AR 39, 283. 380. Plaintiff had past relevant work as a sheet
metal laborer, sheet metal machine operator, and “grinder.” AR 53, 273. He alleged disability
due to personality disorder and chronic pain. AR 282.
The Commissioner denied Plaintiff’s applications initially and upon reconsideration, and
he requested a hearing before an Administrative Law Judge (“ALJ”). AR 155, 159, 165, 168,
171. On March 9, 2015, a hearing was held before ALJ Jo Hoenninger, at which Plaintiff, his
counsel, Vocational Expert (“VE”) Gary Jesky, and Plaintiff’s sister Kimberly Kerbs, were
present. AR 32-66. The ALJ found Plaintiff not disabled in a decision dated April 22, 2015.
AR 9-24. The Appeals Council denied Plaintiff’s subsequent request for review on July 19,
2016, making the ALJ’s decision the final decision of the Commissioner. AR 1-3; see also 20
C.F.R. § 422.210(a). Plaintiff seeks judicial review of that decision.
B. The Sequential 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 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
PAGE 3 – OPINION AND ORDER
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.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.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.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.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.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.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. 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.
PAGE 4 – OPINION AND ORDER
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; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. 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.” Id.; 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.
C. The ALJ’s Decision
The ALJ performed the sequential analysis, as noted above. The ALJ began her opinion
by noting Plaintiff met the insured status requirements of the Act through December 31, 2014.
AR 12. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since
August 31, 2009, the alleged disability onset date. Id. At step two, the ALJ found Plaintiff had
the following severe impairments: borderline intellectual functioning, affective disorders, and
personality disorders. Id. The ALJ found Plaintiff’s pneumonia, bronchitis, gastroesophagel
reflux disease, hematochezia, Barret’s esophagus, gastric polyps, left shoulder fracture, and
respiratory impairment were non-severe medically determinable impairments. AR 12-13. The
ALJ also found Plaintiff’s alleged post-traumatic stress disorder was not a medically
determinable impairment. At step three, the ALJ found Plaintiff did not have an impairment or
PAGE 5 – OPINION AND ORDER
combination of impairments that met or equaled one of the specific impairments listed in the
regulations. AR 13.
The ALJ next determined Plaintiff’s RFC and found that he could perform a full range of
work at all exertional levels, with the following non-exertional limitations: he could understand
and remember simple instructions; he had sufficient concentration, persistence, and pace to
complete simple, routine tasks for a normal workday and workweek with normal breaks; he
could make simple work related decisions; he should have only occasional contact with the
general public and co-workers; and he could accept supervision. AR 15. At step four, the ALJ
found Plaintiff could perform his past relevant work as a sheet metal laborer. AR 24. The ALJ
ended the sequential analysis at step four and concluded that Plaintiff was not disabled from
August 31, 2009, through the date of the decision, April 22, 2015. Id.
DISCUSSION
Plaintiff argues the ALJ erred by: (A) rejecting the medical opinion of James Bryan,
Ph.D., and (B) finding Plaintiff was able to return to his past work as a sheet metal laborer at step
four of the sequential analysis. The Court addresses each argument in turn.
A. Medical Opinion of James Bryan, Ph.D.
Plaintiff first argues that the ALJ erred by giving limited weight to the opinion of
examining psychologist Dr. Bryan. The ALJ is responsible for resolving conflicts in the medical
record, including conflicts among physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth
Circuit distinguishes between the opinions of three types of physicians: treating physicians,
examining physicians, and non-examining physicians. Generally, “a treating physician’s opinion
carries more weight than an examining physician’s, and an examining physician’s opinion
carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202
(9th Cir. 2001). If a treating physician’s opinion is supported by medically acceptable techniques
PAGE 6 – OPINION AND ORDER
and is not inconsistent with other substantial evidence in the record, the treating physician’s
opinion is given controlling weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s
opinion that is not contradicted by the opinion of another physician can be rejected only for
“clear and convincing” reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
2008). If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ
must provide “specific and legitimate reasons” for discrediting the treating doctor’s opinion. Id.
In addition, the ALJ generally must accord greater weight to the opinion of an examining
physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the
opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502,
506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another
physician’s opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the
examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may
reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating
physician when he gives specific, legitimate reasons for doing so, and those reasons are
supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995),
as amended (Oct. 23, 1995).
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, and inconsistency with a claimant’s daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43. An
ALJ effectively rejects an opinion when he or she ignores it. See Smolen v. Chater, 80 F.3d 1273,
1286 (9th Cir. 1996).
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Dr. Bryan conducted a neuropsychological evaluation of Plaintiff on September 7, 2012.
AR 375-88. Dr. Bryan noted that Plaintiff was open and talkative, although he was moderately
irritable and had an “aggressive attitude in his description of past conflicts;” he tracked interview
and test instructions without difficulty; his psychomotor pace was moderately accelerated; and
his thought processes were “logical, coherent, and well-organized.” AR 381. On testing, Plaintiff
scores ranged from extremely low to average, indicating “generally borderline functions.”
AR 385. Dr. Bryan diagnosed Plaintiff as having a moderate level of major depression and
borderline intellectual functioning with paranoid and borderline personality features. AR 386.
Dr. Bryan also noted cannabis abuse. Id.
Dr. Bryan concluded that Plaintiff was unable to sustain employment because he could
not meet “minimum competitive standards” in the abilities to: understand and remember
instructions; sustain concentration, attention, and persistence; and engage in appropriate social
interaction. AR 387. Specifically, Dr. Bryan found Plaintiff’s literacy and verbal comprehension
difficulties would impede his ability to learn new instructions, his borderline working memory
and processing speed would interfere with learning and pace, and the “magnitude of [Plaintiff’s]
depression would impede his ability to follow through with virtually any employment tasks.”
AR 387-88. The doctor also found, however, that Plaintiff could work part-time in a “specialized
‘niche’ environment, with little social contact, little requirement of verbal or literacy skills, and
minimal contact with supervisor[s].” AR 387. Finally, Dr. Bryan “strongly recommended” that
Plaintiff seek mental health treatment, including individual counseling and medication
management. AR 388.
Dr. Bryan’s opinion was contradicted by the opinions of Donna Wicher, Ph.D., and
Shawn Johnston, Ph.D.; therefore, the ALJ needed to provide specific and legitimate reasons for
PAGE 8 – OPINION AND ORDER
giving less weight to Dr. Bryan’s opinion. AR 369-73, 391-95; see also Lester, 81 F.3d at 830.
The ALJ first found Plaintiff’s ability to “work successfully from 1998 to 2009 despite [his]
limitations” suggested his limited cognitive and social functioning were not disabling. AR 20.
Plaintiff argues the ALJ erroneously assumed Plaintiff’s impairments went unchanged after he
stopped working in 2009. As the ALJ noted, however, the medical record demonstrated Plaintiff
“likely had a learning disorder all of his life.” AR 18; see also AR 370 (Plaintiff reported he was
in special education classes due to a learning disorder), 379-80 (Plaintiff stated he was placed in
special education classes and needed his mother’s help with filling out job applications), 393
(special education classes). Moreover, Plaintiff’s sister, Ms. Kerbs, testified that Plaintiff had
anger issues “since he was a kid,” yet as the ALJ noted, Plaintiff was able to work for 21 years
“with only two episodes of conflict with others.” AR 64, 20; see also AR 370, 377, 380, 391.
Accordingly, Plaintiff’s demonstrated ability to work for a significant number of years despite
his impairments was a sufficiently specific and legitimate reason for the ALJ to give less weight
to the cognitive and social functioning limitations diagnosed by Dr. Bryan. See Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Gregory v. Bowen, 844 F.2d 664, 667 (9th
Cir. 1988).1
Plaintiff next argues that the ALJ failed to account for Dr. Bryan’s opinion that Plaintiff’s
depression would preclude him from working. The ALJ, however, found Dr. Bryan’s assessment
of Plaintiff’s psychological impairments was undermined by Plaintiff’s effective mental health
treatment. AR 20. At the time of Dr. Bryan’s September 2012 evaluation, Plaintiff was not
taking any medication to treat his psychological symptoms. AR 380. Noting this, Dr. Bryan
1
Notably, the VE also testified that Plaintiff could perform his past work as a sheet metal
laborer, as well as other jobs existing in the national economy, even if he was limited to jobs that
did not require him to “read, write or do math as a work function.” AR 57.
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“strongly recommended” Plaintiff seek “both individual counseling and medication
management.” AR 388. Despite that recommendation, Plaintiff stated he would not take any
medication during a June 2013 intake assessment with Clackamas County Behavioral Health.
AR 401; see also AR 479. After Plaintiff started taking psychotropic medications in late 2014,
however, he reported improvement with his anger and depression. AR 20 (citing AR 451-53).
Additionally, Plaintiff testified at the hearing that his medications effectively treated his
symptoms and did not present any adverse side effects. AR 44. Accordingly, the fact that
Dr. Bryan’s opined limitations were based on Plaintiff’s symptoms before he started receiving
effective mental health treatment was a specific and legitimate reason for the ALJ to give limited
weight to Dr. Bryan’s opinion. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006
(9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for [disability] benefits.”); see also 20 C.F.R.
§§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv) (noting the efficacy of a claimant’s medication is a
relevant factor for an ALJ to consider when evaluating medical opinions).
The ALJ also found that Dr. Bryan’s opinion that Plaintiff was unable to engage in
appropriate social interaction was inconsistent with the observations of Plaintiff’s treating and
examining physicians, who noted that Plaintiff “was generally friendly, pleasant and
cooperative.” AR 20 (citing AR 371, 394, 404). The ALJ further determined that the severity of
Plaintiff’s social functioning limitation as diagnosed by Dr. Bryan was inconsistent with
Plaintiff’s reports “that he enjoyed talking to kids that visited him.” Id. (citing AR 398, 401). At
one point, Plaintiff even reported that high school students visited him so regularly that the
management of the complex where Plaintiff resided took issue with it. AR 401. These findings
were sufficiently specific and legitimate reasons for the ALJ to give less weight to Dr. Bryan’s
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opinion. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (noting
that the ALJ’s reliance on medical evidence documenting that the claimant was socially
appropriate at examinations and medical appointments was a sufficient basis for giving less
weight to a treating psychiatrist’s opinion); Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir.
2014) (noting that an ALJ may reject a medical opinion to the extent it is inconsistent with a
claimant’s daily activities).
Plaintiff asserts that the ALJ never relied on Plaintiff’s improvement with medication as a
basis for rejecting Dr. Bryan’s opinion, nor did the ALJ rely on instances when Plaintiff was
noted as being pleasant and cooperative by his medical sources as a basis for discounting
Dr. Bryan’s opinion. Thus, argues Plaintiff, those reasons are impermissible post-hoc
justifications being offered by the Commissioner. Plaintiff’s argument fails.
After thoroughly summarizing Dr. Bryan’s examination and report of Plaintiff’s
limitations, the ALJ, over the course of two paragraphs, detailed her reasons for giving
Dr. Bryan’s opinion limited weight. AR 19-20. The rationalizations Plaintiff complains are posthoc justifications were discussed by the ALJ in the second paragraph, immediately preceding the
ALJ’s discussion of Dr. John Ellison’s April 2013 physical evaluation. AR 20. Although the ALJ
did not specifically mention Dr. Bryan by name in the second paragraph, she expressly discussed
the limitations Dr. Bryan put forward in his report. Id. Read in context, the ALJ’s reasoning is
easily discernible. Molina v. Astrue, 674 F. 3d 1104, 1121 (9th Cir. 2012) (“Even when an
agency explains its decision with less than ideal clarity, [a reviewing court] must uphold it if the
agency’s path may reasonably be discerned.” (quotation marks omitted)); see also Antonin
Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)
(“Context is a primary determinant of meaning”). In sum, because the ALJ’s reasons for
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rejecting Dr. Bryan’s opinion were specific, legitimate, and based on substantial evidence in the
record, the ALJ did not err in giving limited weight to Dr. Bryan’s opinion.
B. The ALJ’s Step Four Findings
The ALJ found Plaintiff not disabled because he was capable of returning to his past
relevant work as a sheet metal laborer. AR 24. At step four of the sequential analysis, the ALJ
must determine whether a claimant is capable of performing his or her past relevant work by
comparing the claimant’s RFC with the physical and mental demands of the claimant’s past
work. 20 C.F.R. §§ 404.1560(b), 416.960(b). In determining the requirements of a particular
position, the ALJ may refer to a claimant’s past work as he actually performed it, 20 C.F.R.
§§ 404.1565(b); 416.965(b), or the ALJ may take administrative notice of generic job
descriptions contained in the Dictionary of Occupational Titles (“DOT”). See Social Security
Ruling (“SSR”) 82-61, available at 1982 WL 31387, at *1-2. Typically, the claimant is the
primary source of information about his or her past relevant work. SSR 82-62, available at 1982
WL 31386, at *3. A VE, however, “may offer relevant evidence . . . concerning the physical and
mental demands of a claimant’s past relevant work, either as the claimant actually performed it
or as generally performed in the national economy.” 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2).
“Such evidence may be helpful in supplementing or evaluating the accuracy of the claimant’s
description of his past work.” Id.
Plaintiff first argues that the ALJ’s step four finding was erroneous because Plaintiff
never actually worked as a sheet metal laborer. This assertion is belied by the record. In a prior
application for disability benefits that Plaintiff filed in April 2010, he listed “sheet metal laborer”
as his only past work. AR 240-41. In the current application, he listed the same position as a
“lead person,” but gave no description beyond that. AR 275. At the hearing, the VE asked
Plaintiff to clarify his reported work as a sheet metal laborer because Plaintiff also reported that
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he used tools and equipment in that position. AR 51. In response, Plaintiff described that he
moved parts around as a “material handler” and operated various machines to fabricate parts, but
“not at first.” AR 51-52. Based on Plaintiff’s testimony, the VE stated “it sounds like he started
off as a laborer which is heavy, unskilled, SVP2 2, but then ended up operating equipment in
sheet metal which is heavy, skilled, SVP 6.” AR 53 (footnote added). The ALJ then asked the
VE whether a hypothetical individual with Plaintiff’s RFC could return to Plaintiff’s past
relevant work, to which the VE responded that only Plaintiff’s past work as a sheet metal laborer
was suitable, both as Plaintiff performed it, and as the job is generally performed. AR 56.
Plaintiff argues that his testimony illustrates that he worked exclusively as a sheet metal
equipment operator, and the VE misconstrued Plaintiff’s description of the tasks he performed
while training to become an equipment operator as evidence that he also worked as a sheet metal
laborer. The Court deems this argument waived because Plaintiff’s counsel cross-examined the
VE at the hearing, yet counsel did not mention, let alone challenge the VE’s classification of
Plaintiff’s past relevant work. AR 58-59; Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999),
as amended (June 22, 1999) (“[W]hen claimants are represented by counsel, they must raise all
issues and evidence at their administrative hearings in order to preserve them on appeal”).
Moreover, the Court declines to adopt Plaintiff’s preferred interpretation of the evidence, as
variable interpretations of the evidence are insignificant when the ALJ’s interpretation is rational
and based on substantial evidence. Batson, 359 F.3d at 1193. Thus, the ALJ did not err in finding
Plaintiff worked as a sheet metal laborer.
Plaintiff next argues that even if he did work as a sheet metal laborer, the ALJ’s step four
finding was unsupported because Plaintiff’s RFC is incompatible with the sheet metal laborer
2
Specific Vocational Preparation.
PAGE 13 – OPINION AND ORDER
position. As Plaintiff notes, the VE testified that “sheet metal laborer” requires a SVP level of
two, whereas the DOT designates an SVP level of three. Compare AR 53, with DOT 509.687026, available at 1991 WL 673712. Plaintiff argues that an SVP level three job is semi-skilled,
the ALJ limited Plaintiff only to unskilled jobs, and thus Plaintiff could not perform the sheet
metal laborer position. Plaintiff’s argument is unavailing for two reasons. First, there was no
conflict between Plaintiff’s RFC and the DOT. Contrary to Plaintiff’s assertion, the ALJ did not
find that Plaintiff was limited to unskilled jobs; rather, the ALJ limited him to carrying out only
“simple, routine tasks.” AR 15. A limitation to simple, routine tasks implicates General
Educational Development (“GED”) levels identified in the DOT, Zavalin v. Colvin, 778 F.3d
842, 847 (9th Cir. 2015), whereas SVP levels indicate the amount of time it takes the “typical
worker to learn the techniques, acquire the information, and develop the facility needed for
average performance in a specific job-worker situation.” DOT, App. C, § II, available at 1991
WL 688702.3 In Zavalin, the Ninth Circuit held that “there is an apparent conflict between the
[RFC] to perform simple, repetitive tasks, and the demands of [GED] Level 3 Reasoning.” Id.
The Court further noted that a GED level of two was more consistent with a limitation to simple,
repetitive, and routine tasks. Id. Here, the DOT assigns a GED level of two to the sheet metal
laborer position. See DOT 509.687-026. Therefore, there was no apparent conflict between
Plaintiff’s RFC and the sheet metal laborer position as classified by the DOT.
Second, even assuming, arguendo, that the ALJ’s failure to correct the VE’s divergence
from the DOT was error, it was harmless. “At step four, a claimant has the burden to prove that
3
A GED level of two requires the ability to “[a]pply commonsense understanding to
carry out detailed but uninvolved written or oral instructions. Deal with problems involving a
few concrete variables in or from standardized situations.” A GED level of three requires the
ability to “[a]pply commonsense understanding to carry out instructions furnished in written,
oral, or diagrammatic form. Deal with problems involving several concrete variables in or from
standardized situations.” DOT, App. C, § III.
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he cannot perform his past relevant work ‘either as actually performed or as generally performed
in the national economy.’” Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (quoting Lewis v.
Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). Plaintiff’s reliance on the DOT addresses how
the sheet metal laborer position is generally performed. Pinto v. Massanari, 249 F.3d 840, 845
(9th Cir. 2001) (“[T]he best source for how a job is generally performed is usually the [DOT].”).
The VE, however, also testified that Plaintiff was capable of returning to that job as he actually
performed it. See AR 56. “ALJs may use either the ‘actually performed test’ or the ‘generally
performed test’ when evaluating a claimant’s ability to perform past work.” Stacy, 825 F.3d
at 569 (quoting SSR 82-61).4 Thus, even if the ALJ erred in finding that Plaintiff was able to
return his past work as described in the DOT, that error would be rendered harmless by the
ALJ’s finding that Plaintiff was capable of returning to his past work as he actually performed it.
See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (“A decision of the
ALJ will not be reversed for errors that are harmless.” (quoting Burch, 400 F.3d at 679).
C. Step Five Argument
The Commissioner argues that the ALJ’s decision should be upheld even if the ALJ erred
at step four, arguing that any step four error would be harmless because there is evidence to
support a finding at step five that Plaintiff could perform other work existing in significant
numbers in the national economy. The Commissioner points to the VE’s testimony that Plaintiff
was capable of performing the representative occupations of janitor and laundry worker, of
which there were greater than two million positions in the nation. AR 57. Thus, the
Commissioner asserts that the Court should affirm the ALJ’s finding that Plaintiff was not
4
In Stacy, the Ninth Circuit observed that the “‘generally performed test’ is designed for
situations where a claimant’s past job was especially demanding when compared with industry
standards.” Stacy, 825 F.3d at 569 (citation omitted).
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disabled because the VE’s identification of other significant work was based on Plaintiff’s
properly determined RFC, and directs a finding of not disabled at step five.
An ALJ’s error at step four may be found harmless when the ALJ makes an alternative
step five finding that the claimant is capable of performing other work in the national economy
and is therefore not disabled. Tommasetti, 533 F.3d at 1042; see also 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Here, however, the ALJ did not proceed to step five after
finding Plaintiff not disabled at step four.
A reviewing court “may not uphold an agency’s decision on a ground not actually relied
on by the agency.” Molina, 674 F.3d at 1121 (citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)). Based on this well-settled principle of administrative law, some district courts in this
circuit have declined to find an ALJ’s error at step four harmless when the ALJ did not proceed
to step five, despite clear evidence that the plaintiff’s claim would have ultimately failed at step
five. See, e.g., Carolyn Braddock Townsend v. Colvin, 2015 WL 6673677, at *9 (C.D. Cal.
Oct. 30, 2015); Smith v. Colvin, 2015 WL 276727, at *3 (C.D. Cal. Jan. 22, 2015). Other district
courts, however, based on a VE’s testimony that the claimant is capable of adapting to other
work in the economy, have filled the gap left by an ALJ who failed to make an explicit step five
finding. See Summers v. Astrue, 2011 WL 1211860, at *3 (C.D. Cal. Mar. 30, 2011); Hadnot v.
Astrue, 2008 WL 5048428, at *11-12 (N.D. Cal. Nov. 25, 2008), aff’d on other grounds, 371 F.
App’x 875 (9th Cir. 2010); Cowan v. Astrue, 2008 WL 2761684, at *10 (N.D. Cal. July 14,
2008). The Ninth Circuit has not addressed this issue.
Although this argument by the Commissioner raises interesting issues, the Court has
determined that the ALJ did not err at step four. Thus, the Court does not reach the question of
PAGE 16 – OPINION AND ORDER
whether it has the authority to make a step a five finding and whether any claimed error at step
four would have been harmless because Plaintiff would have been found disabled at step five.
CONCLUSION
The Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 27th day of March, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 17 – OPINION AND ORDER
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