Ferguson v. Commissioner Social Security Administration
Filing
23
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. IT IS SO ORDERED. Signed on 4/16/19 by Judge Anna J. Brown. See attached order for details. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOANNA LYNN F.,1
Plaintiff,
3:18-cv-00395-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
RYAN LU
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2034
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Joanna Lynn F. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's applications for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act.
This Court has
jurisdiction to review the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS this matter for further
administrative proceedings.
ADMINISTRATIVE HISTORY
On July 15, 2013, Plaintiff protectively filed her
2 - OPINION AND ORDER
application for DIB benefits.
Tr. 16, 232.2
disability onset date of October 4, 2011.
Plaintiff alleges a
Tr. 16, 232.
Plaintiff=s application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held
hearings on April 16, 2016, and September 6, 2016.
45-96.
Tr. 16,
Plaintiff and vocational experts (VE) testified at both
hearings.
Plaintiff was also represented by an attorney at both
hearings.
On December 5, 2016, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 16-39.
Appeals Council.
Plaintiff requested review by the
On January 9, 2018, the Appeals Council denied
Plaintiff=s request to review the ALJ=s decision, and the ALJ=s
decision became the final decision of the Commissioner.
Tr. 1-3.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On March 6, 2018, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner=s decision.
BACKGROUND
Plaintiff was born on December 14, 1966.
Tr. 37, 232.
Citations to the official transcript of record filed by
the Commissioner on August 10, 2018, are referred to as "Tr."
2
3 - OPINION AND ORDER
Plaintiff was 44 years old on her alleged disability onset date.
Plaintiff has at least a high-school education.
Tr. 37, 51.
Plaintiff has past relevant work experience as a grocery-store
baker, grocery-store cashier, and a quarry weigh-master.
Tr. 36, 51-53.
Plaintiff alleges disability due to extreme back and joint
pain, diabetes, heart condition, blood disorder, cellulitis,
depression, and high blood pressure.
Tr. 98-99.
Except as noted, Plaintiff does not challenge the ALJ=s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ=s summary of the
medical evidence.
See Tr. 25-36.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110
To meet this burden, a claimant must
demonstrate her inability Ato 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.@
U.S.C. § 423(d)(1)(A).
4 - OPINION AND ORDER
42
The ALJ must develop the record when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
McLeod v. Astrue,
640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,
276 F.3d 453, 459B60 (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).
42
See also Brewes v. Comm=r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
Arelevant evidence that a reasonable mind might accept as
adequate to support a conclusion.@
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm=r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of
evidence] but less than a preponderance.
Id. (citing Valentine,
574 F.3d at 690).
The ALJ is responsible for evaluating a claimant=s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591
The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).
Ryan v. Comm=r of Soc. Sec., 528 F.3d 1194, 1198 (9th
Even when the evidence is susceptible to more than
5 - OPINION AND ORDER
one rational interpretation, the court must uphold the
Commissioner=s findings if they are supported by inferences
reasonably drawn from the record.
1047, 1051 (9th Cir. 2012).
Ludwig v. Astrue, 681 F.3d
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
At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity (SGA).
20 C.F.R. § 404.1520(a)(4)(i).
See
also Keyser v. Comm=r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
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.
§ 404.1509, 404.1520(a)(4)(ii).
20 C.F.R.
See also Keyser, 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
6 - OPINION AND ORDER
severe as to preclude substantial gainful activity.
§ 404.1520(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.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
AA
>regular and continuing basis= means 8 hours a day, for 5 days a
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)).
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.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
7 - OPINION AND ORDER
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
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 (or
the grids) set 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. §§ 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since October 4, 2011, Plaintiff=s
alleged disability onset date.
Tr. 18.
At Step Two the ALJ found Plaintiff has the severe
impairments of "lumbar spondylosis; right sacroiliitis; mild
bilateral hip osteoarthritis; left carpometacarpal (CMC) joint
osteoarthritis, status-post surgical repair; right third trigger
finger; history of right peroneal tendonitis; ischemic heart
disease; history of coronary artery disease, status-post stent
8 - OPINION AND ORDER
times two; [and] diabetes mellitus."
Tr. 18.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 23.
The ALJ found Plaintiff has the RFC to
perform light work with the following limitations:
can lift up
to 20 pounds occasionally and 10 pounds frequently; can sit,
stand, and walk for six hours in an eight-hour workday; cannot
climb ladders, ropes, or scaffolds; can occasionally climb ramps
and stairs; can occasionally stoop, crouch, crawl, and kneel;
can occasionally handle (grasp or grip) objects with her left
hand without limitation; can frequently handle objects with her
right hand without limitation; and can understand, remember, and
follow simple instructions consistent with work classified at
the Specific Vocational Preparation (SVP) level of 2.
Tr. 23-
24.
At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.
Tr. 36.
At Step Five the ALJ found Plaintiff can perform other jobs
that exist in the national economy such as telemarketer, usher,
and furniture-rental consultant.
Tr. 38.
found Plaintiff is not disabled.
Tr. 38.
9 - OPINION AND ORDER
Accordingly, the ALJ
DISCUSSION
Plaintiff contends the ALJ erred when she (1) failed to
provide clear and convincing reasons for rejecting the opinions
of Tatsuro Ogisu, M.D., an examining physician, and Gregory
Cole, Ph.D., an examining psychologist, and (2) failed at Step
Five to identify substantial evidence in the record that shows
Plaintiff could perform other work in the national economy.
I.
The ALJ did not provide clear and convincing reasons for
disregarding the opinions of Drs. Ogisu and Cole.
Plaintiff contends the ALJ failed to provide clear and
convincing reasons for rejecting the opinions of Drs. Ogisu and
Cole regarding Plaintiff's limitations.
A.
Standards
AIn disability benefits cases . . . physicians may
render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability C the claimant's ability to
perform work.@
2014).
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
AIn conjunction with the relevant regulations, [courts]
have . . . developed standards that guide [the] analysis of an
ALJ's weighing of medical evidence.@
Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Specifically, the
court must Adistinguish among the opinions of three types of
physicians:
(1) those who treat the claimant (treating
10 - OPINION AND ORDER
physicians); (2) those who examine but do not treat the claimant
(examining physicians); and (3) those who neither examine nor
treat the claimant (nonexamining physicians).@
F.3d at 1012.
Garrison, 759
AAs a general rule, more weight should be given to
the opinion of a treating source than to the opinion of doctors
who do not treat the claimant.@
Id.
Although the opinion of a
treating physician is entitled to greater weight than that of an
examining physician, the opinion of an examining physician is
entitled to greater weight than that of a nonexamining
physician.
Ryan, 528 F.3d at 1198.
AThe weight afforded a
nonexamining physician's testimony depends >on the degree to
which [he] provide[s] supporting explanations for [his]
opinions.=@
Id. (quoting 20 C.F.R. § 404.1527(d)(3)).
AIf a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence.@
Id.
Even when contradicted,
a treating or examining physician's opinion is still owed
deference and will often be Aentitled to the greatest weight
. . . even if it does not meet the test for controlling weight.@
Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007).
An ALJ can
satisfy the Asubstantial evidence@ requirement by Asetting out a
11 - OPINION AND ORDER
detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and
making findings.@
Reddick, 157 F.3d at 725.
more than state conclusions.
AThe ALJ must do
He must set forth his own
interpretations and explain why they, rather than the doctors',
are correct.@
B.
Id. (citation omitted).
Analysis
1.
Dr. Ogisu's opinion regarding Plaintiff's
standing/walking limitations.
On January 28, 2014, Dr. Ogisu performed a
consultative examination of Plaintiff at the request of the ALJ.
Tr. 60-61, 365-69.
Dr. Ogisu found, among other things, that
Plaintiff could sit, stand, and walk "up to at least half the
time but less than 6 hours" in an eight-hour workday.
Tr. 369.
He also indicated Plaintiff is capable of "standing and walking
combined for up to less than 6 hours."
Tr. 369.
The ALJ assessed Plaintiff's RFC for light work
and concluded Plaintiff can "sit, stand, and walk 6 hours each
in an 8-hour workday."
Tr. 23.
The ALJ gave "some weight" to
Dr. Ogisu's opinion, "but only to the extent that it was
consistent with the overall evidence of record."
Tr. 35.
ALJ also stated Dr. Ogisu's opinion regarding Plaintiff's
limitations was based on Plaintiff's "unusual clinical
12 - OPINION AND ORDER
The
presentation during her examination, which was notably
inconsistent with her presentation to other treating and
examining clinicians"; was "inconsistent with his own clinical
findings"; and was "inconsistent with the [Plaintiff's] reported
activities."
Tr. 35.
a.
Dr. Ogisu's opinion is supported by other
evidence in the record.
The ALJ found Dr. Ogisu's opinion that Plaintiff
could only sit, stand, and walk for four to six hours a day was
inconsistent with other evidence in the record.
The ALJ did
not cite to any evidence in the record that contradicted
Dr. Ogisu's opinion.
In fact, the Court finds the record
supports Dr. Ogisu's opinion.
In February 2014 Martin Kehrli, M.D., a stateagency consultant, opined Plaintiff could stand and/or walk for
a total of two hours in an eight-hour workday.
Tr. 105.
In
July 2014 Neal Berner, M.D., another state-agency consultant,
opined Plaintiff could stand and/or walk for a total of four
hours in an eight-hour workday.
Tr. 117.
In May 2016 Raymond
Nolan, M.D., an examining physician, indicated Plaintiff "should
be able to stand and/or walk less than two hours" in an eighthour workday.
Tr. 640.
In summary, Dr. Berner imposed
limitations at least equal to Dr. Ogisu's opinion regarding
13 - OPINION AND ORDER
Plaintiff's ability to stand and/or to walk, and Drs. Kehrli and
Nolan imposed greater limitations than Dr. Ogisu on Plaintiff's
ability to stand and/or to walk.
Thus, the Court finds each of
these doctors imposed limitations on Plaintiff's ability to walk
and/or to stand that are greater than the limitations found by
the ALJ.
Based on this record the Court finds Dr. Ogisu's
opinion that Plaintiff was limited to standing and to walking
combined for up to six hours was consistent with some of the
medical evidence in the record, and the ALJ's opinion that
Plaintiff could stand and/or walk for six hours in an eight-hour
workday is not supported by substantial evidence in the record.
b.
Dr. Ogisu's Examination of Plaintiff.
The ALJ also stated Dr. Ogisu's opinion regarding
Plaintiff's limitations was based on Plaintiff's "unusual
clinical presentation during her examination, which was notably
inconsistent with her presentation to other treating and
examining clinicians."
Tr. 640.
Dr. Ogisu indicated:
With toe walking, [Plaintiff] is unable to stay
up on the right side. Heel walking is done a few
steps at a time due to unsteadiness. She
complains of lower back pain. Tandem walking is
moderately unsteady and results in a loss of
balance every few steps.
Tr. 367.
To support his conclusion, the ALJ cited a July 2015
14 - OPINION AND ORDER
emergency-room record indicating Plaintiff "routinely ambulated
with a normal, steady, unassisted gate."
Tr. 35, 602.
A
nurse's note for that visit reflected Plaintiff walked "to and
from restroom, steady gait, tolerated well."
Tr. 606.
A single
incident showing Plaintiff was able to walk to the restroom,
however, does not provide clear and convincing support for the
ALJ's conclusion.
c.
Dr. Ogisu's Clinical Findings.
The ALJ also stated Dr. Ogisu's opinion was
"inconsistent with his own clinical findings."
Tr. 35.
The ALJ
relied on Dr. Ogisu's observation that Plaintiff did not have
any difficulty getting on and off the examination table or
moving between sitting, standing, and supine positions.
Tr. 35,
366.
Dr. Ogisu's opinion of Plaintiff's limitations,
however, was not based solely on Plaintiff's ability to get on
and off an examination table, but instead was based on his
objective examination and assessment of Plaintiff's entire
condition.
Tr. 366-68.
d.
Plaintiff's Activities.
Finally, the ALJ stated Dr. Ogisu's opinion was
"inconsistent with the [Plaintiff's] reported activities that
15 - OPINION AND ORDER
she took care of her two grandchildren, who were under age 7,
every day for a full 18-month period until March 2015."
Tr. 35.
There is not any evidence in the record, however, to show that
Plaintiff was required to stand or to walk in excess of the
limitations assessed by Dr. Ogisu in order to care for her
grandchildren.
"The critical differences between activities of
daily living and activities in a full-time job are that a person
has more flexibility in scheduling the former than the latter,
can get help from other persons, and is not held to a minimum
standard of performance, as she would be by an employer."
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014).
In summary, on this record the Court concludes the ALJ
erred when he rejected Dr. Ogisu's opinion regarding Plaintiff's
standing and/or walking limitations because the ALJ did not
provide legally sufficient reasons supported by substantial
evidence in the record for doing so.
2.
Dr. Cole's Opinion Regarding Plaintiff's Social
Limitations.
On May 19, 2016, Dr. Cole performed a
consultative psychological examination of Plaintiff.
35.
Tr. 626-
Dr. Cole's examination was specifically requested by the
ALJ "because there's nothing in the record from a treating
source discussing psychological function."
16 - OPINION AND ORDER
Tr. 50, 60-61.
Dr.
Cole reviewed Plaintiff's medical records and diagnosed
Plaintiff with Major Depressive Disorder (MDD), recurrent
episode-severe; Post-Traumatic Stress Disorder (PTSD), without
dissociative symptoms; and Panic Disorder.
Tr. 630, 634.
In
the Medical Source Statement for the examination, Dr. Cole
indicated Plaintiff would be moderately impaired in all types of
social interactions and would be markedly impaired in responding
appropriately to "usual" work situations.
Tr. 628.
The ALJ did not include any limitations in his
evaluation of Plaintiff's RFC related to Plaintiff's
interactions with others in the workplace even though he gave
Dr. Cole's opinion "some weight."
Tr. 24,35.
The ALJ pointed
out that Dr. Cole's examination was performed approximately five
months after Plaintiff's date last insured, that Plaintiff's
self-reported symptoms described to Dr. Cole were not reported
to other treating providers or supported by other evidence in
the record, and that Dr. Cole's assessment is inconsistent with
his own clinical examination that showed Plaintiff had average
immediate memory capability and above average delayed memory
ability.
Tr. 21-22, 35.
The ALJ did not identify any
inconsistency between Dr. Cole's assessed social limitations and
his clinical findings.
17 - OPINION AND ORDER
The record, however, supports Dr. Cole's opinion
regarding Plaintiff's interpersonal limitations.
For example, a
medical report in January 2015 notes Plaintiff became angry at a
medical assistant, yelled at her, and threatened her because
Plaintiff thought the medical assistant was "smirking" at her.
Tr. 542.
In July 2015 Plaintiff also received a referral for a
mental-health assessment based on her tearful and anxious
behavior during an emergency-room visit.
Tr. 606.
Plaintiff
later received a mental-health assessment, which indicated a
history of depression and anxiety due to the effects of past
trauma and included a diagnosis of MDD and PTSD at that time.
Tr. 608-10, 612.
These records support Dr. Cole's assessment of
Plaintiff's mental-health limitations.
Based on this record the Court concludes the ALJ erred
when she rejected Dr. Cole's opinion regarding Plaintiff's
mental-health limitations because the ALJ did not provide
legally sufficient reasons supported by substantial evidence in
the record for doing so.
II.
The ALJ erred at Step Five when she determined Plaintiff
could perform other work.
Plaintiff contends the ALJ erred at Step Five when she
failed to identify substantial evidence in the record to show
that Plaintiff could perform other work.
18 - OPINION AND ORDER
A.
Standards
As noted, if the Commissioner reaches Step Five,
she must determine whether the claimant is able to do other
work that exists in the national economy.
§ 404.1520(a)(4)(v).
20 C.F.R.
See also Keyser, 648 F.3d at 724-25.
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 MedicalVocational Guidelines (or the grids) set 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.
B.
20 C.F.R. §§ 404.1520(g)(1).
Analysis
1.
The ALJ's Hypotheticals Posed to the VE.
The ALJ posed hypotheticals to the VE at the
second hearing.
The first hypothetical was based only on the
physical limitations assessed in Plaintiff's RFC and did not
include any limitation that Plaintiff only "can understand,
remember, and carry out simple instructions consistent with work
classified at SVP level 2."
19 - OPINION AND ORDER
Tr. 24, 86-87.
The VE testified a
person with the physical limitations identified by the ALJ could
not perform Plaintiff's past work.
Tr. 87.
The VE, however,
testified there were three jobs consistent with the ALJ's
hypothetical:
consultant.
telemarketer, usher, and furniture-rental
Tr. 88.
The ALJ added to her second hypothetical a
limitation for occasional handling, fingering, and feeling.
Tr. 90.
The VE testified such a limitation would eliminate the
telemarketer occupation, but it would allow work as a
surveillance-system monitor and an election worker.
Tr. 90-91.
In her third hypothetical the ALJ included the
limitation to "understand, remember and carry out simple
instructions in a setting that did not require public contact,
[and] did not require teamwork."
Tr. 91.
The VE testified a
person with this additional limitation would be able to perform
only the surveillance-system monitor occupation.
Tr. 91.
The
VE, however, specifically excluded the occupations of
telemarketer, usher, and furniture rental-consultant based on
the "no public contact" limitation.
Tr. 92.
Based on Plaintiff's age, education, vocational
background, and RFC, the ALJ concluded Plaintiff could perform
other work that existed in significant numbers in the national
20 - OPINION AND ORDER
economy.
Tr. 37-38.
Specifically, the ALJ found Plaintiff
could perform the occupations of telemarketer, usher, and
furniture-rental consultant.
2.
Tr. 38.
The ALJ Erred in Her Hypotheticals to the VE.
The Court has concluded the ALJ erred when she
evaluated Plaintiff's RFC and disregarded Dr. Cole's opinion
regarding Plaintiff's limitations as to social interaction and
public contact.
The ALJ, therefore, erred when she determined
Plaintiff could perform the jobs of telemarketer, usher, and
furniture-rental consultant, which are jobs the VE testified
Plaintiff would not be able to perform if she had limitations as
to social interaction and public contact.
Plaintiff also contends the "simple instruction"
limitation included in Plaintiff's RFC is in conflict with
Reasoning Level 3 required for each of the positions identified
by the ALJ except the usher occupation.
Plaintiff relies on the
Ninth Circuit's holding in Zavalin v. Colvin that there is "an
apparent conflict between the RFC to perform simple, repetitive
tasks, and the demands of Level 3 reasoning."
(9th Cir. 2015).
778 F.3d 842, 847
Nevertheless, the Commissioner contends any
error was harmless because "at least two of the occupations
identified by the [VE] did not require more than SVP 2 level
21 - OPINION AND ORDER
work."
The Commissioner, however, compares apples to oranges.
As a California district court has noted, Reasoning Level and
SVP are separate vocational considerations:
Other courts decided that, contrary to the
Commissioner's argument here, the SVP level in a
DOT listing indicating unskilled work, does not
address whether a job entails only simple,
repetitive tasks. See, e.g., Lucy v. Chater, 113
F.3d 905, 909 (8th Cir.1997); Cooper v. Barnhart,
2004 WL 2381515, at *4 (N.D. Okla. Oct.15, 2004);
Hall v. Barnhart, 2004 WL 1896969, at *3 (D. Me.
Aug. 25, 2004). A job's SVP is focused on “the
amount of lapsed time” it takes for a typical
worker to learn the job's duties. DOT at 1009.
A job's reasoning level, by contrast, gauges the
minimal ability a worker needs to complete the
job's tasks themselves. As one court noted, “SVP
ratings speak to the issue of the level of
vocational preparation necessary to perform the
job, not directly to the issue of a job's
simplicity, which appears to be more squarely
addressed by the GED [reasoning level] ratings.”
Hall–Grover v. Barnhart, 2004 WL 1529283, at *4
(D. Me. April 30, 2004).
Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005).
In this case the VE testified each of the
occupations identified by the ALJ, including surveillance-system
monitor and elections worker, had an SVP of 2 and the positions
were consistent with the RFC assessed by the ALJ.
Although the
ALJ included the "simple instructions" limitation in the third
hypothetical, it appears the VE's response that a person could
perform only the surveillance-system monitor occupation was
22 - OPINION AND ORDER
based on the limitation of "no public contact."
There was not,
however, any discussion by the ALJ or the VE regarding the
required Reasoning Level for each of the occupations identified.
Accordingly, in light of the Ninth Circuit's
decision in Zavalin and because Reasoning Levels do not equate
to SVPs, it is unclear whether a person with a limitation as to
"simple instructions" could perform occupations identified by
the ALJ that have a Reasoning Level of 3.
Based on this record the Court concludes the ALJ erred
at Step Five when she found Plaintiff could perform the
occupations of telemarketer, usher, and furniture-rental
consultant.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of
benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
Id. at 1179.
The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
23 - OPINION AND ORDER
serve no useful purpose."
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
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.
Id. at 1178
n.2.
As noted, the Court concludes the ALJ failed to provide
legally sufficient reasons supported by substantial evidence in
the record for disregarding the opinion of Dr. Cole as to
Plaintiff's social limitations.
The ALJ also failed to include
such limitations in her assessment of Plaintiff's RFC, failed to
include such limitations when she posed her hypotheticals to the
VE and when she determined Plaintiff could perform certain work
in the economy, and failed to address the Reasoning Level
24 - OPINION AND ORDER
requirements of each occupation that she determined Plaintiff
could perform.
The Court, therefore, remands this matter to the ALJ 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.
IT IS SO ORDERED.
DATED this 16th day of April, 2019.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
25 - OPINION AND ORDER
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