Reilly v. Commissioner Social Security Administration

Filing 18

FINDINGS & RECOMMENDATION - For the reasons stated above, this case should be remanded for an immediate award of benefits pursuant to sentence four of 42 U.S.C. § 405(g). SCHEDULING ORDER: The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due within 14 days. If no objections are filed, review of the Findings and Recommendation will go under advisement that date. Dated this 18th day of November, 2019 by United States Magistrate Judge John V. Acosta. (pjg) Modified filed date on 11/19/2019 (pjg).

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

SEAN PATRICK R. 1

Case No. 3: 18-CV-00460-AC
Plaintiff,

FINDINGS AND
RECOMMENDATION

V.

ANDREW SAUL,
Commissioner of Social Security,
Defendant.

ACOSTA, Magistrate Judge:
Introduction

Plaintiff Sean Patrick Reilly ("Plaintiff') brings this action under the Social Security Act
("SSA"), 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of
Social Security ("Commissioner") denying his claim for Social Security Disability Insurance

1

In the interest of privacy, this Findings and Recommendation uses only the first name
and the initial of the last name of the non-governmental party in this case.
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benefits ("SSDI"). (Tr. of Social Security Administrative R., ECF No. 13 ("Admin. R."), at 22.)2
The Commissioner concedes reversible error and moves the court to remand for additional
administrative proceedings. (Def. Br. and Mot. for Remand, ECF No. 16 ("Def. Br."), at 2.)
Plaintiff opposes additional proceedings and urges the court to remand for a finding of disability
and immediate award of benefits. (Pl. Reply Br., ECF No. 17 ("Pl. Reply"), at 2.)
For the reasons set forth below, Plaintiffs request for remand for finding of disability and
award of benefits should be granted. This case should be remanded pursuant to sentence four of
42 U.S.C. § 405(g) for immediate award of benefits.

Procedural Background
Plaintiff initially filed his claim for SSDI on November 15, 2013, which was denied,
initially on April 9, 2014, and upon reconsideration on November 24, 2014. (Admin. R. at 22.)
Following a written request filed on December 10, 2014, Plaintiff testified before Administrative
Law Judge John Michaelsen ("ALJ") at a hearing held on August 18, 2016. (Id) The ALJ issued
an unfavorable decision on October 11, 2014. (Id) Plaintiff then appealed the decision to the
Appeals Council, but the it denied Plaintiffs request for review on January 17, 2018, making the
ALJ's determination the final decision of the Commissioner. (Id at 1.)

Factual Background
Plaintiff was born in 1978, and though Plaintiff dropped out of high school in his junior
year, he received his GED prior to joining the Army and completed approximately two years of
college following his honorable discharge. (Id at 58, 451.) Prior to Plaintiffs alleged date of
disability, January 11, 2011, Plaintiff worked as a window delivery helper from September of

2

For clarification, the cites to the administrative record correspond to the page number of
the prepared transcript and not to the page number of the individual document.
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2003 to December of 2004, as an order puller in a warehouse from February of 2004 to October
of 2005, and as an enlisted member of the U.S. Army from January of 2006 through January of
2011. (Id. at 160.) During his deployments to Baghdad and Mosul, Plaintiff experienced three
separate improvised explosive device ("IED") attacks as a result of which he incurred physical and
psychological impairments. (Id. at 450-51.) Plaintiff suffered additional physical impairments
related to his service in the Army. (Id. at 252-53.)
In December of 2015, Jonathan Harrison, M.D., ("Dr. Harrison"), examined Plaintiff and
diagnosed him with ulnar neuropathy status post transposition surgery, lumbar arthropathy, and
left hip arthropathy. (Id. at 256.) In October of 2013, Camden Schobert, Staff Psychologist at
Portland Veteran's Affairs Medical Center, ("Schobert"), diagnosed Plaintiff with post-traumatic
stress disorder ("PTSD") and depression. (Id. at 28,263, 305.) Though Plaintiff testified his PTSD
symptoms were present during and after his deployment, beginning as early as 2007, Plaintiff's
earliest diagnosis of PTSD was in March of 2011. (Id. at 45, 260.) Plaintiff received treatment
for his mental health through the Department of Veterans Affairs ("VA"). (Id. at 258-448, 450,
464-513.) Though Plaintiff's treating psychiatrist, Clifford Lynam, M.D., ("Dr. Lynam"), opined
that Plaintiff would miss two or more workdays from a simple, routine job due to his impairments,
the ALJ disregarded only this part of Dr. Lynam's opinion because "Dr. Lynam's statement does
not address the claimant's reports of benefit from his PTSD counseling group or his report of
improved mood after starting Sertraline." (Id. at 32.)
The ALJ's Decision

The ALJ follows a five-step inquiry to determine whether a claimant is disabled under the
SSA. 20 C.F.R. § 416.920. The claimant bears the burden of proof at steps one through four, but
at step five the burden of production shifts to the Commissioner to identify jobs existing in
significant numbers in the national economy that the claimant can perform despite his or her
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residual functional capacity ("RFC"), age, education, and work experience. Tackett v. Apfel, 180
F.3d 1094, 1098-99 (9th Cir. 1999).

Each step is potentially dispositive.

20 C.F.R. §

416.920(a)(4).
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity
since Plaintiffs alleged onset date of January 11, 2011, through his date last insured of December
31, 2015. (Admin. R. 24.) At step two, the ALJ determined Plaintiff had the following severe
impairments: (1) anxiety, (2) PTSD, (3) depression, (4) obesity, and (5) left ulnar pain secondary
to history of left ulnar nerve transposition procedure. (Id.) At step three, the ALJ found Plaintiff
did not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525 and 404.1526). (Id.) Between steps three and four, the ALJ rejected
the VA's disability determination, partially rejected Dr. Lynman's opinion that Plaintiff would
need "additional breaks [and would miss] two or more days of work per month[,]" and found
Plaintiff to have the following RFC:
[The] capacity to perform medium work as defined in 20 CFR 404.1567(c) except
the claimant is limited to no more than frequent stooping, climbing, kneeling,
crouching, and crawling. He is limited to no more than occasional handling,
fingering, or feeling with his left upper extremity. He would need to avoid exposure
to unprotected heights, moving machinery, and similar hazards. He is limited to
simple, repetitive, routine tasks requiring no contact with the public.
(Id. at 26, 32, 33.) At step four, the ALJ found Plaintiff unable to perform any past relevant work.
(Id. at 33.)

At the fifth step, the ALJ relied on the testimony of a vocational expert ("VE") to help
determine the extent to which Plaintiffs limitations affect his ability to obtain gainful employment.
(Id. at 34.) At the August 18, 2016, hearing, the ALJ questioned the VE regarding a hypothetical

claimant with Plaintiffs RFC as discussed above. (Id. at 54-56.) In response to the ALJ's
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hypothetical question, the VE "testified that given all of these factors the individual would have
been able to perform the requirements ofrepresentative occupations such as page (D.O.T. 353.367022), with 5,300 jobs nationally; ironer (D.O.T. 590.685-042), with 1,600 jobs nationally; and
burner (D.O.T. 573.685-038), with 355." (Id.) The VE also testified that each of the listed jobs
within the range of light work. (Id.) The ALJ inquired if the VE's testimony was "consistent with
the information in the Dictionary of Occupational Titles ("DOT"), to which the VE responded
affirmatively. (Id.) The ALJ found, pursuant to SSR 00-4p, the VE's testimony to be consistent
with the DOT and that Plaintiff was not disabled as he could perform other work that existed in
significant numbers in the national economy. (Id.)
When the ALJ asked the VE if occupations with "more robust numbers" could be
identified, the VE responded no further occupations were identified due to the added limitation of
no contact with the public.

(Id.)

In response to the ALJ' s question regarding unscheduled

absences, the VE testified that if an entry-level employee missed two or more days, the employee
was usually terminated. (Id. at 56.) The ALJ gave Plaintiffs counsel opportunity to question the
VE, but Plaintiffs counsel declined. (Id.)

Standard of Review
The court reviews the Commissioner's decision to ensure proper legal standards were
applied and the findings of fact are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If there is
reversible error, then the court has discretion to remand an administrative decision for corrective
proceedings or to reverse or modify the decision without remanding the case for further
proceedings.

42 U.S.C. § 405(g); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).

Generally, when a court reverses an administrative decision, "the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation." Benecke v.
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Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002);
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Moisa v. Barnhart, 367 F.3d 882,

886-87 (9th Cir. 2004)). A remand for an award of benefits is appropriate when no useful purpose
would be served by further administrative proceedings and the record has been thoroughly
developed. Treichler v. Comm 'r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014).
Discussion

The Commissioner concedes the ALJ erred in not resolving the discrepancy between the
VE's testimony and the DOT. Accordingly, the question before the court is whether further
administrative proceedings or immediate award of SSDI benefits is appropriate on remand.
Plaintiff assigns error to the ALJ's finding of significant number of jobs in the national
economy, arguing the total of 7,255 jobs does not constitute a significant number. (PL Opening
Br., ECF No. 14 ("Pl. Br."), at 5.) Alternatively, Plaintiff argues his limitation to no more than
simple, routine, repetitive tasks is inconsistent with the page position, requiring a reasoning level
of three, and thus, reduces the number of jobs Plaintiff is able to perform to 1,955, which would
also not constitute a significant number of jobs. (Pl. Br. at 5 n. l.) Though the Commissioner
concedes the ALJ erred, the Commissioner argues the ALJ' s error requires remand for further
administrative proceedings because the ALJ has the affirmative duty to resolve conflicts between
the VE's testimony and the DOT. (Def. Br. at 2-3.) In response, Plaintiff argues that remand
should be for an immediate award of benefits because the record is complete and new vocational
testimony would serve no useful purpose. (Pl. Reply at 1-2.) For the reasons stated below, the
court agrees with Plaintiff.
The Ninth Circuit has held that remand should be for award of benefits only in "rare
circumstances ... where no useful purpose would be served by further administrative proceedings
and the record has been thoroughly developed." Treichler, 775 F.3d at 1100 (citations omitted)
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(internal quotations omitted). In determining what constitutes a "rare circumstance" warranting
departure from the ordinary remand rule, the Ninth Circuit created the Varney rule, also referred
to as the "credit-as-true" rule. Id.
The credit-as-true rule requires three inquiries. First, the court determines whether the
"ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion." Id. at 1100-01. Second, if the ALJ has erred, the court determines
whether: (1) the "record has been fully developed;" (2) "there are outstanding issues that must be
resolved before a determination of disability can be made;" and (3) "further administrative
proceedings would be useful." Id. at 1101 (citations omitted) (internal quotations omitted).
Further administrative proceedings are useful when the record has not been fully developed and
there are conflicts or ambiguities in the record necessary of resolution. Id. Third, if there are no
outstanding issues and further proceedings would not be useful, the court treats the improperly
discredited evidence as true and determines whether the whole record supports a finding of
disability. Id. If so, the district court has the discretion to remand for immediate award of benefits.
Id. at 1101-02.

However, the credit-as-true rule is not the sole analytical framework for deciding whether
to remand for award of benefits. Compare Rustamova v. Colvin, 111 F. Supp. 3d 1156, 1163 (D.
Or. 2015) (holding that application of the credit-as-true rule was not required to remand for award
of benefits when the record was complete, further VE testimony regarding employment in
significant numbers would serve no useful purpose, there was no conflicting medical evidence,
and the Commissioner had failed to meet their burden at step five of the sequential analysis); with
lvfcGary v. Astrue, 442 F. App'x 337, 339 (9th Cir. 2011) (holding that credit-as-true rule did not
apply and remand for further proceedings was appropriate when plaintiff argued that the rule was

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applicable but did not point to improperly discredited evidence and only identified the ALJ' s error
in determining plaintiffs RFC). Indeed, the court has discretion to modify or reverse a decision
by the Commissioner "with or without remanding the cause for a hearing." Garrison v. Colvin,
759 F.3d 995, 1019 (9th Cir. 2014) (emphasis in original) (quoting 42 U.S.C. § 405(g)).
Though the credit-as-true rule does not apply when parties do not argue that certain medical
or testimony evidence was improperly discredited, remand for award of benefits is still appropriate
when the Commissioner has failed to carry his burden at step five of the sequential process by not
identifying a significant number of jobs in the economy that a claimant could perform. See

McGary, 442 F. App'x at 339 (holding the credit-as-true rule does not apply when the legal error
consisted of the ALJ incorrectly assessing claimant's RFC, in tum incorrectly assessing claimant's
ability to perform other jobs in significant numbers); see also Claussen v. Berryhill, No. 6: 17-CV00258-AA, 2018 WL 2222718, at *7 n.2 (D. Or. May 15, 2018) (noting the credit-as-true rule does
not apply when the error is only at step five of the ALJ' s analysis and there is no discredited
evidence to credit as true); but compare Rustamova, 111 F. Supp. 3d at 1165 (stating the claimant
is disabled and entitled to benefits when the Commissioner fails to show there are jobs in
significant numbers the claimant can perform); and Clester v. Apfel, 70 F. Supp. 2d 985, 993 (S.D.
Iowa 1999) (holding that Commissioner failed to carry its burden at step five by not establishing
work in significant numbers that plaintiff could perform, and "remand to take additional evidence
would only delay the receipt of benefits to which [p]laintiff is clearly entitled"); and Field v.

Chafer, 920 F. Supp. 240, 243 (D. Me. 1995) (stating "[w]hen the Commissioner had a full and
fair opportunity to develop the record and meet her burden at Step [five], there is no reason for the
court to remand for further factfinding."); and Davis v. Barnhart, 377 F. Supp. 2d 1160, 1164
(N.D. Ala. 2005) (holding that the Commissioner failed to carry her burden at step five when the

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ALJ relied on VE testimony not supported by substantial evidence and thus, the claimant was
disabled and entitled to benefits).
The Commissioner is correct to concede that the ALJ erred in not resolving the conflict
between the VE's testimony and the DOT, and to observe that this error, under Ninth Circuit case
law, warrants further administrative proceedings. See Zavalin v. Colvin, 778 F.3d 842, 848 (9th
Cir. 2015) (holding that further proceedings were necessary when the ALJ failed to question the
VE regarding the discrepancy between the reasoning level of the job provided by the VE and the
claimant's limitation of simple and repetitive work); see also Rounds v. Comm 'r Soc. Sec. Adm in.,
807 F .3 d 996, 1004 (9th Cir. 2015) (holding remand for further proceedings was necessary because
ALJ did not resolve the apparent conflict between the VE's testimony, claimant's RFC, and the
DOT and that, on remand, the ALJ needed to provide a reasonable explanation justifying reliance
on the VE's testimony); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (stating
SSR 00-4p provides that an ALJ has an affirmative duty to question the VE regarding any conflicts
between their testimony and the DOT and to provide a reasonable explanation for relying on the
VE's testimony ifthere is a conflict).
Further proceedings, however, would serve only to delay the benefits Plaintiff is entitled
to receive. If this court were to remand for further proceedings, as the Commissioner argues, the
purpose of those proceedings would be to obtain an explanation for the ALJ's reliance on the VE's
testimony, an unnecessary exercise in light of the VE's testimony that the no public contact
limitation restricted Plaintiff to only those jobs identified. Even if the ALJ could provide a
reasonable explanation for having relied on the VE' s testimony, this court has held that the number
of jobs the VE provided- 7,255 -would not constitute a significant number of jobs in the national
economy. See Cindy F. v. Berryhill, 367 F. Supp. 3d 1195, 1220 (D. Or. 2019) (finding 7,400 jobs

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in the national economy did not constitute significant number of jobs); see also Lisa L. v. Comm 'r
of Soc. Sec., No. 3:17-CV-01874-AA, 2018 WL 6334996, at *4 (D. Or. Dec. 5, 2018) (finding

11,084 jobs did not constitute significant number of jobs in the national economy); see also
Watkins v. Comm 'r Soc. Sec. Admin., No. 6:15-CV-01539-MA, 2016 WL 4445467, at *7 (D. Or.

Aug. 22, 2016) (finding same with 11,000 jobs).
Additionally, the Commissioner argues the "error in the VE's testimony" - that the job of
page, which requires a reasoning level of three, does not comport with Plaintiffs RFC, which
requires a reasoning level of two - renders all of the VE's testimony suspect and requires further
administrative proceedings to resolve the defect. (Def. Br. at 4.) The Commissioner provides no
legal support, nor has the court found a case, that states such an error makes suspect the entirety
of the VE's testimony and requires new testimony. Rather, SSR 00-4p speaks to the ALJ's
affirmative duty to resolve such conflicts, but it does not speak to whether the VE's testimony
requires new testimony because of the conflict. See SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000)
(stating "[w]hen vocational evidence provided by a VE or VS is not consistent with information
in the DOT, the adjudicator must resolve this conflict before relying on the VE or VS evidence to
support a determination or decision that the individual is or is not disabled ... [and] must explain
the resolution of the conflict irrespective of how the conflict was identified.").
Though the VE could possibly provide further evidence of other jobs with more "robust
numbers" it is unlikely because, according to the VE, Plaintiffs limitation of no public contact
narrows the jobs Plaintiff can perform to only those identified. Thus; the VE testimony in this
record would not support a determination that Plaintiff is not disabled even if the ALJ provided a
reasonable explanation for his reliance on that testimony. Moreover, though it is the ALJ's
affirmative duty to develop the record and reconcile any conflicts between the VE's testimony and

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the DOT, the Commissioner failed to carry his burden at the fifth step of the analysis by not
establishing a significant number of jobs in the national economy that Plaintiff could perform.
Consequently, the ALJ would be required to find Plaintiff disabled irrespective of the apparent
conflict between Plaintiffs RFC and the reasoning level of the page position. Further proceedings
would be of no useful purpose and, because there no other outstanding issues in the record, Plaintiff
is disabled under the SSA. Accordingly, this court recommends this case be remanded for an
immediate award of benefits.
Recommendation

For the reasons stated above, this case should be remanded for an immediate award of
benefits pursuant to sentence four of 42 U.S.C. § 405(g).
Scheduling Order

The above Findings and Recommendation are referred to a United States District Judge for
review. Objections, if any, are due within 14 days. If no objections are filed, review of the
Findings and Recommendation will go under advisement that date.
A party may respond to another party's objections within 14 days after the objections are
filed.

If objections are filed, review of the Findings and Recommendation will go under

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advisement upon receipt of the response, or on the latest date for filing a response.
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