Leir v. Commissioner Social Security Administration
Filing
18
OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED for further proceedings to determine whether there are other jobs available in significant numbers in the national economy that plaintiff can perform. Signed on 12/5/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
LISA L., 1
Case No. 3:17-cv-01874-AA
OPINION AND ORDER
Plaintiff,
V.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
AIKEN, District Judge:
Plaintiff Lisa L. brings this action pmsuant to the Social Security Act ("Act"), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the Commissioner of Social Secmity
("Commissioner"). The Commissioner denied plaintiffs application for Supplemental Security
Income and Disability Insurance Benefits on October 14, 2014. For the reasons set forth below,
the Commissioner's decision is REVERSED and REMANDED for further proceedings.
I II
I! I
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party or parties in this case. Where applicable, this opinion uses
the same designation for a non-governmental party's immediate family member.
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BACKGROUND
Plaintiff was bom on October 2, 1967. She completed school through the 8th grade and
previously worked as an accounts receivable clerk, billing clerk, and housecleaner. Plaintiff was
five feet tall and weighed two hundred and sixty-seven pounds at the time of her application.
On August 27, 2012, plaintiff filed for Title 11 Disability Insurance Benefits ("DIB") and
Title XVI Supplemental Security Income ("SSI"). In her applications, plaintiff alleged disability
beginning June 2, 2003. She alleged that she was disabled by a combination of physical and mental
impairments, including personality disorder, major depressive disorder, bi-polar disorder, chronic
pain, hypertension, obesity, fibromyalgia, degenerative disc disease, lumbar disc disease, irritable
bowel syndrome, peripheral nemopathy, pedal edema, breast abscess, bell's palsy, obstructive
sleep apnea, panic disorder, and dysthymic disorder.
Her claims were denied initially on December 4, 2012. They were denied upon
reconsideration on March 3, 2013. On May I, 2013, plaintiff filed a written request for hearing
before an Administrative Law Judge ("ALJ"). An administrative hearing was held on September
8, 2014, where plaintiff was represented by counsel. Plaintiff and vocational expert ("VE") offered
testimony. The ALJ rendered an unfavorable decision on October 14, 2014. The decision was
appealed to the Appeals Council, and on March I, 2016 the Appeals Council remanded the case
for further deliberation under the new and material evidence provision of the regulations (20 C.F.R.
§§ 404.970, 416.1470). After a supplemental hearing on September 21, 2016, the same ALJ issued
a second unfavorable decision finding plaintiff not disabled under the Act on December 8, 2016.
On February 9, 2017, Plaintiff requested Appeals Council review of the ALJ's second decision.
On September 20, 2017, the Appeals Council denied plaintiffs request for review, and the ALJ's
decision was made final. Thereafter, plaintiff filed a timely complaint in this court.
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STANDARD OF REVIEW
The district court must affirm the ALJ's decision unless it contains legal error or is not
supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing
Stout v. Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors
are not grounds for reversal. Stout v. Comm 'r, Soc. Sec. Adm in., 454 F.3d 1050, 1054 (9th Cir.
2006) (citing Burch v. Barnhart, 400 F.3d 676,679 (9th Cir. 2005)). "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." Gutierrez v. Co111111'r of Soc. Sec., 740
F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The court must
evaluate the complete record and weigh "both the evidence that supports and the evidence that
detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If
the evidence is subject to more than one interpretation but the Commissioner's decision is rational,
the Commissioner must be affirmed because "the court may not substitute its judgment for that of
the Commissioner." Edlundv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION
The initial burden of proof rests upon the plaintiff to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff 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).
To determine whether a claimant is disabled, an ALJ is required to employ a five-step
sequential analysis, determining: "(l) whether the claimant is 'doing substantial gainful activity';
(2) whether the claimant has a 'severe medically determinable physical or mental impairment' or
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combination of impairments that has lasted for more than 12 months; (3) whether the impairment
'meets or equals' one of the listings in the regulations; (4) whether, given the claimant's 'residual
functional capacity,' the claimant can still do his or her 'past relevant work' and (5) whether the
claimant 'can make an adjustment to other work."' 1\10/ina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).
At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity"
since the alleged onset elate of June 2, 2003. Tr. 20. At step two, the ALT found that plaintiff had
severe impairments of "a bipolar disorder with depression and anxiety; post-traumatic stress
disorder[]; a personality disorder; a history of polysubstance abuse, in remission; sleep apnea;
Bell's palsy; fibromyalgia; degenerative disc disease; venous stasis; urinary incontinence; obesity;
migraine headaches; and chronic obstructive pulmonary disease[.]" Tr. 20-21. At step three, the
ALJ found that plaintiff did not have an impairment or combination of impairments that met or
medically equaled the requirements of a listed impairment. Tr. 21-23.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §
404.1520(e); § 416.920(e). The ALJ found that plaintiff
has the [RFC] to lift and carry 10 pounds frequently and 20 pounds occasionally.
She can sit about six hours in an eight-hour workday. She can stand and walk about
four hours in an eight-hour workday. She can occasionally climb ramps and stairs.
She can never climb ladders, ropes, or scaffolds. She can occasionally balance,
stoop, kneel, crouch and crawl. She needs to alternate between sitting and standing
about every hour but the change in position would be brief (less than five minutes)
and she could remain at the workstation and remain productive. She needs a
bathroom break for about five minutes every hour and work within 200 feet from a
restroom facility. She should avoid concentrated exposure to fumes, odors, dusts,
gases and other pulmonary irritants. She can do simple, routine work with
occasional contact with supervisors and coworkers, but no public contact.
Tr. 23. At step four, the ALJ found plaintiff"unable to perform any past relevant work." Tr. 28.
At step five, the ALJ considered plaintiffs age, education, work experience, and RFC and found
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there were other jobs existing in significant numbers in the national economy that plaintiff could
perform, including addressing clerk and document preparer. Accordingly, the ALT found that
plaintiff was not disabled under the Act.
DISCUSSION
Plaintiff contends that the ALJ committed reversible error at step five because (1) he
mistakenly included the job of document preparer in the RFC even though that job required a
higher level of reasoning than that which plaintiff retains and (2) the remaining job of addressing
clerk does not ex.isl in significant number in the national economy to support an ALJ's finding that
plaintiff was not disabled.
I.
Plaintiff's RFC and Reasoning Level
Plaintiff argues that the job of document preparer which the ALJ found to be appropriate
for her is inconsistent with her assessed RFC. The Commissioner concedes that the ALJ erred but
argues that the error was harmless.
I agree that the ALJ erred. The Ninth Circuit has held that there is "an apparent conflict
between the residual functional capacity to perform simple, repetitive tasks, and the demands of
Level 3 Reasoning." Zavalin v. Colvin, 778 F.3d 842,847 (9th Cir. 2015). The ALJ found plaintiff
was limited to "simple, routine work" in his RFC assessment. But, the document preparer's
reasoning requirement is classified as Level 3 in the Dictionary of Occupational Titles ("DOT").
DOT 249.587-018, 1991 WL 672349.
That classification requires the ability to "[a]pply
commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic
form [and to] [d]eal with problems involving several concrete variables in or from standardized
situations," which is much more taxing than engaging in simple and routine work. Id. There is,
then, a conflict between the RFC assessment and the reasoning requirements of a document
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preparer. Although further clarification could have resolved this tension, the ALJ did not elicit
additional explanation from the VE. Therefore, I find that document preparer jobs cannot be
considered in the total number of available jobs for plaintiff in the national economy and cannot
support the ALJ's non-disability finding at step five.
When a district court finds that the ALJ erred in his analysis, the next question is whether
such an error was harmless. See Garrison, 759 F.3d at I 009. The core issue on appeal is whether
appropriate jobs exist in significant number to support the ALJ's non-disability determination.
Therefore, if a significant number of appropriate jobs still exist in the national economy even
without considering the document preparer job, the AL.T's error is harmless and his decision will
be affirmed. Stout, 454 F.3d at 1054.
II.
Whether Appropriate Jobs Exist in Significant Number for Plaint/[( in the National
Economy
Plaintiff argues that addressing clerk jobs have been eliminated by computers and,
presumably, this means that the actual job figure is less than the 11,084 cited by the VE. She also
argues that 11,084 addressing clerk jobs does not meet the significant number standard. The
Commissioner first argues that the ALJ found 11,084 addressing clerk jobs to exist in the national
economy and that this is enough to meet the "significant number" requirement for purposes of
disability analysis. Alternatively, the Commissioner argues that even if the number of addressing
clerk jobs doesn't meet the significant number standard, that the 17,390 production assembler jobs
that the VE identified, but which the ALJ mistakenly left out of his opinion, coupled with the
addressing clerk jobs meets the significant number standard.
A. Whether the ALJ Erred in Crediting 11,084 Addressing Clerk Jobs
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ALJs are responsible for making credibility determinations, resolving evidentiary conflicts,
and resolving ambiguities. Garrison, 759 F.3d at 1009 (quoting Andrews v. Shala/a, 53 F.3d 1035,
1039 (9th Cir. 1995)). I must uphold an ALJ's determination absent harmful error and if supported
by substantial evidence.
Id.
Even if evidence exists to support more than one rational
interpretation, the Court is bound to uphold the ALJ's interpretation. Edlund, 253 F.3d at 1156.
Plaintiff argues that the job of addressing clerk no longer exists in significant numbers, and
that the 11,084-figure cited by the VE is presumably inaccurate. Plaintiff points to an exchange at
her hearing between the ALJ and the VE where the VE stated that he was planning to survey the
labor market to determine whether addressing clerk jobs had been eliminated because of
computers.
I find plaintiff's argument unpersuasive.
The ALJ found the VE's testimony
supportive of the conclusion that addressing clerk jobs are still validated job because the VE
testified that a recent study suggests that addressing clerk jobs still exist. Plaintiff takes no issue
with the VE's qualifications or with the study relied on by the VE. Absent more, I must conclude
that the ALJ's decision to credit the VE's testimony is sound and supported by substantial
evidence. Gutierrez, 740 F.3d at 522 (citation and internal quotation marks omitted).
B. Whether 11,084 Jobs 1Weets the Significant Number Standard
The Ninth Circuit has not created "a bright-line rule for what constitutes a 'significant
number' of jobs." Beltran v. Astrue, 700 F.3d 386,389 (9th Cir. 2012) (amend. Nov. 14, 2012).
While 1,680 jobs was not a significant number in Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir.
2012) (amend. Nov. 14, 2012), 25,000 jobs in the national economy was a significant number in
Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014).
While Gutierrez
acknowledged that the Eighth Circuit Court of Appeals has found 10,000 jobs in the national
economy to be a significant number in Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997), and
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seemingly in an approving manner, it has yet to endorse a number below 25,000 with respect to
the significant number standard. Gutierrez, 740 F.3d at 529. Indeed, a subsequently unpublished
Ninth Circuit decision that interpreted Gutierrez rejected 10,000 as a significant number.
Randazzo v. Berryhill, 725 F.App'x. 446,446 (9th Cir. 2017).
Here, the Court finds that 11,084 jobs does not meet the significant number standard. The
court in Gutierrez found that 25,000 jobs in the national economy meets the significant number
standard but even that presented a "close call." Gutierrez, 740 F.3d at 529. Randazzo later rejected
10,000 jobs in the national economy as meeting the significant number standard. Randazzo, 725
F.App'x. at 446. Other recent Ninth Circuit cases are consistent with this understanding and have
not held anything below 25,000 to be significant. See, e.g., Lemauga v. BenJ1hil/, 686 F.App'x.
420,422 n.2 (9th Cir. 2017) ("We note that this court has never found [12,600] to be significant.").
While 11,084 jobs may have been significant under precedent for other circuit courts, see, e.g.,
Johnson, 108 F.3d at 180; see also Taski/a v. Comm'r of Soc. Sec., 819 F.3d 902,905 (6th Cir.
2016) (6,000 national jobs significant), Randazzo is the clearest indication of where the Ninth
Circuit sees the numerical floor for what constitutes a significant number of national jobs. That
number is at or around 25,000. Because 11,084 jobs is well below that threshold, I agree with
plaintiff that this not a significant number.
At the September 21, 2016 administrative hearing, the VE testified that the someone with
plaintiff's RFC could also perform work as a production assembler. The VE noted that "it is a
light-rated job with an SVP: 2 [and] there are 17,390 in the national economy." Tr. 68. The ALJ,
however, did not address this job in his written decision. Rather, the ALJ only relied on the
previously discussed positions of addressing clerk and document preparer.
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The Commissioner argues that even if 11,084 addressing clerk jobs does not meet the
significant number standard, the addressing clerk jobs plus the 17,390 production assembler jobs
that the VE testified to but the ALJ did not opine on would total 28,474 jobs and would be a
significant number.
The fact that production assembler was not cited by the ALJ, the
Commissioner argues, is harmless error and so the Commissioner invites this Court to fill the gap
by citing persuasive authority from this district that acknowledges the gap filling approach taken
by other districts yet finds no need to gap fill in that case. Thombrugh v. BenJ1hil/, 2018 WL
1509162, at *7 (D. Or. Mar. 27, 2018).
I decline this invitation. Courts "are constrained to review the reasons the ALJ asserts."
Connell v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). This rule stems from the separation of
powers concerns outlined in S.E.C. v. Chenery Corp., 332 U.S. 194 (1947), where the Supreme
Court explained that courts empowered to review administrative decisions may not affirm
administrative actions by substituting their own consideration of a proper basis for affinnance;
they must review agency action "solely by the grounds invoked by the agency." Chenery, 332
U.S. at 196. Contrary action would "propel the court into the domain which Congress has set aside
exclusively for the administrative agency." Id. Other circuits have cited Chene1J1 for a similar
proposition in social security cases. See, e.g., Allen v. Bamharl, 357 F.3d 1140, 1145 (10th Cir.
2004) ("to the extent a harmless-error determination rests on legal or evidentiary matters not
considered by the ALJ, it risks violating the general rule against post hoc justification of
administrative action recognized in SEC v. Che11e1y[.]").
The ALJ did not address whether production assembler would be appropriate for plaintiff.
The transcript indicates that plaintiff needs hourly bathroom breaks and a reasonable ALJ could
conclude that production assembler jobs may not be conducive to plaintiffs medical condition.
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The ALJ, then, may not have found the job of production assembler to be consistent with his RFC
determination. As plaintiff correctly notes, the ALJ determined that plaintiff could only conduct
"simple routine work" but production assemblers are required to carry out "detailed but
uninvolved" instructions. DOT 706.687-010, 1991 WL 679074. Because the Ninth Circuit has
found that a limitation to "simple" tasks excludes performance of work that requires "detailed"
instructions, the ALJ may have thought that the job of production assembler was unsuitable for
Plaintiff. See Rounds v. Co111111'r ofSoc. Sec., 807 F.3d 996, 1003 (9th Cir. 2015) (remanding the
case to the ALJ because he failed to resolve a conflict between his RFC determination of "simple
one-or two-step instructions" and the demands of jobs that require understanding of "detailed
instructions" under Level Two reasoning). Given these alternate interpretations, there is reason to
believe that omitting the production assembler job was not an unintentional error by the ALJ. I
cannot substitute my judgement for that of the AL.T. Edlund, 253 F.3d at 1156. Therefore, because
it is not addressed in his written decision, I cannot assume that the ALJ would have found the job
of production assembler suitable for plaintiff if that job was addressed in his opinion.
Since the number of production assembler jobs around the country cannot be included in
the total number of jobs available to plaintiff, I am left to only consider the number of available
addressing clerk jobs. The ALJ found that 11,084 addressing jobs exist in the national economy.
This number does not meet the standard for jobs existing in significant numbers in the national
economy. Therefore, I find that the ALJ committed harmful error. On remand, the ALJ should
gather new testimony on whether there are jobs available in significant numbers in the national
economy that plaintiff could perform.
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CONCLUSION
The Commissioner's decision is REVERSED and REMANDED for further proceedings
to determine whether there are other jobs available in significant numbers in the national economy
that plaintiff can perform.
IT IS SO ORDERED.
L-·-
Dated this ___i2_ day of December, 2018.
Ann Aiken
United States District Judge
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