Reaves v. Commissioner Social Security Administration

Filing 24

OPINION AND ORDER. The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings. See formal OPINION AND ORDER. Signed on 2/24/2016 by Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHERYLL. REAVES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Richard F. McGinty
McGinty & Belcher, PC
P.O. Box 12806
Salem, Oregon 97309
Attorney for plaintiff
Billy J. Williams
Janice E. Hebeit
U.S. Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Franco L. Becia
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, Washington 98104
Attorneys for defendant

Page 1 - OPINION AND ORDER

Case No. 6:14-cv-01154-AA
OPINION AND ORDER

AIKEN, Judge:
Plaintiff Che1yl L. Reaves brings this action pursuant to the Social Security Act ("the Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner. The
Commissioner denied plaintiffs application for Title XVI Supplemental Security Income ("SSI")
disability benefits under the Act. For the reasons explained below, the decision is reversed and this
case is remanded for further proceedings.

BACKGROUND
On April 20, 2011, plaintiff applied for SSI benefits, alleging disability beginning Janumy
8, 2006. 1 Tr. 630. Plaintiffs claim was denied initially and on reconsideration, after which plaintiff
filed a written request for a hearing. Tr. 539. Plaintiff appeared and testified at the hearing on June
28, 2012. Tr. 539. The ALJ found plaintiff not disabled and capable ofperfonning both past work
and other work existing in the national economy. Tr. 539, 548-50. The Appeals Council denied
plaintiffs request for review, rendering the ALJ's findings the final agency decision. Tr. 528.
Plaintiff filed this appeal on October 5, 2015.
Born on December 14, 1961, plaintiffwas forty-four years on the alleged disability onset date
and fifty years old at the time of the hearing. Tr. 630, 1063. Plaintiff completed the tenth grade. Tr.
1066. Her previous jobs include service station attendant, fast food worker, cabinet maker, and care

1

The administrative law judge ("ALJ") incorrectly stated in his decision that the
application date was April 4, 2011, and the alleged disability onset date was August 11, 2002. Tr.
539. The application summary sent to plaintiff by the Social Security Administration states she
applied for SSI benefits on April 20, 2011 and her disability allegedly began on January 8, 2006.
Tr. 630. While the ALJ erred in his statement of the application and disability onset dates, this
error was hmmless because the ALJ still considered the entire alleged disability period. See Stout
v. Comm 'r, Soc Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an ell'or is harmless "where
the mistake was nonprejudicial to the claimant or i1Televant to the ALJ's ultimate disability
conclusion").
Page 2 - OPINION AND ORDER

provider. Tr. 1098. Plaintiff alleges she suffers from regular mood swings, poor mem01y, distraction,
overwhelm, loud ringing in her ears, difficulty sitting still for more than twenty minutes, and
occasional meltdowns. Tr. 1080, 1086-91.
STANDARD

A court must affitm the Commissioner's decision if it is based on proper legal standards and
the findings are supp01ied by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498,
501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and quotations marks omitted). A couti must weigh

"both the evidence that supports and detracts from the [ALJ' s] conclusion." Martinez v. Heckler, 807
F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the ALJ's
interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The initial burden ofproofrests upon the plaintiff to establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff must demonstrate she is
"unable 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A).
"The [Commissioner] has established a five-step sequential evaluation process for
determining whether a person is disabled." Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.

§ 416.920. First, the ALJ determines whether a plaintiff is engaged in "substantial gainful activity."
Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). Ifso, the plaintiff is not disabled.

At step two, the ALJ evaluates whether the plaintiff has a "medically severe impaiiment or

Page 3 - OPINION AND ORDER

combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c). If the plaintiff
does not have a severe impai1ment or combination of impairments, she is not disabled.
At step three, the ALJ determines whether the plaintiffs impairments, either singly or in
combination, meet or equal "one of a number oflisted impairments that the [ALJ] acknowledges are
so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §
416.920(d) (list of impairments in Appendix 1). If so, the plaintiff is presumptively disabled; if not,
the ALJ proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the ALJ resolves whether the plaintiff can still perfo1m "past relevant work."
20 C.F.R. § 416.920(f). If the plaintiff can work, she is not disabled; if she cannot perform past
relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141-42. At step five, the
ALJ must establish the plaintiff can perforn1 other work existing in significant numbers in the local
and national economy. Id.; 20 C.F.R. § 416.920(g). If the Commissioner meets this burden, the
plaintiff is not disabled. 20 C.F.R. § 416.966(b).
ADMINISTRATIVE LAW JUDGE'S FINDINGS
At step one, the ALJ found the plaintiff had not engaged in substantial gainful activity since
the application date and had no earnings since 2002. Tr. 541. At step two, the ALJ found plaintiff
had several severe impairments: post-concussion syndrome; status post frontal craniotomy (postbrain surge1y symptoms); hist01y of meningitis; tinnitis (ringing in the ears); adjustment disorder
with mixed anxiety and depressive mood; polysubstance abuse; and personality disorder. Tr. 541.
At step three, the ALJ found plaintiffs combination of symptoms did not meet or medically equal
the severity of impairments listed in Appendix 1. Tr. 542. At step four, the ALJ found plaintiff had
the residual functional capacity ("RFC") to perform a full range of work at all exertional levels,

Page 4 - OPINION AND ORDER

subject to the following nonexertional limitations: "no climbing of ladders, ropes, and scaffolds;
avoid even moderate exposure to noise and hazards (such as heights and dangerous equipment);
perfonn only simple, repetitive work; and limited to occasional public and co-worker interaction."
Tr. 543. The ALJ also found plaintiff was not disabled because she had the RFC to perfo1m past
work as a care provider. Tr. 548. At step five, the ALJ alternatively found plaintiff had the RFC to
perform other work existing in significant numbers in the local and national economy as a mail sorter
and as an office helper. Tr. 549.
DISCUSSION
Plaintiff asserts the ALJ made four errors when he found plaintiff not disabled. First, plaintiff
argues the ALJ erred by discrediting plaintiffs testimony. Second, plaintiff contends the ALJ erred
when he evaluated the medical evidence presented by Dr. Tihanyi, Nurse Harlan, and Dr. Kruger.
Third, plaintiff challenges the ALJ's decision on the ground that he failed to fully credit the
observations of lay witnesses Chris Curtis and Cecil Reaves. Finally, plaintiff avers the ALJ erred
because the ALJ's findings about work plaintiff could perform were not supported by substantial
evidence.
l

Plaintiff's Credibility
Plaintiff argues the ALJ erred when he did not find her fully credible because the ALJ' s only

reason for discrediting her testimony was her mental health symptoms have been stable with
medication and therapy. Plaintiff contends this reason is not suppo1ted by substantial evidence and
is not sufficiently specific because the ALJ did not identify which testimony was credible and which
testimony was undem1ined.
The ALJ must consider a plaintiffs symptom testimony, including testimony regarding

Page 5 - OPINION AND ORDER

workplace limitations. 20 C.F.R. § 416.929. The ALJ is responsible for evaluating the credibility of
that testimony. Andrews v. Sha/ala, 53 F.3d 1035, 1039 (9th Cir. 1995). "[T]he ALJ must identify
what testimony is not credible and what evidence undennines the [plaintiffs] complaints." Reddick
v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998). Unless affitmative evidence exists showing the

plaintiff is malingering, the ALJ must present clear and convincing reasons for rejecting the
plaintiffs testimony.2 Burch, 400 F.3d at 680.
The ALJ presented clear and convincing reasons for rejecting plaintiffs testimony. First, the
ALJ found plaintiffs activities of daily living ("AD Ls") were inconsistent with the alleged severity
of her limitations. Tr. 544. Plaintiff gardens, shops, cooks, cleans, does laundry, feeds her pets, and
takes a yearly camping trip to Crater Lake. Tr. 544. Second, the ALJ found inconsistency between
plaintiffs statements and her conduct. Tr. 544. Plaintiff stated she does not use drugs, but tested
positive for marijuana and methamphetamine in 2008. Tr. 544-45. Third, the ALJ found plaintiffhad
improved with medication. Tr. 545. Plaintiff made improvements in focus, depression, task
accomplishment by taking her medication. Tr. 545. Finally, the ALJ found plaintiffs work history
was limited. Tr. 544. Plaintiffs longest job tenure was three years as a part-time cabinet maker and
plaintiff stopped working in 2001, before the alleged disability onset date. Tr. 544. These are clear
and convincing reasons to discredit plaintiffs testimony. See Tommaselfi v. As/rue, 533 F.3d 1035,
1039-40 (9th Cir. 2008) (discussing inconsistencies between alleged symptoms and ADLs,

2

While affirmative evidence of malingering exists in the record and is discussed
elsewhere in the ALJ's decision, Tr. 542, 546, the ALJ did not expressly discuss the evidence of
malingering when he discredited plaintiffs testimony. See Tr. 544-45. Because this Court is
"constrained to review the reasons the ALJ asserts," Connett v. Barnhart, 340 F.3d 871, 874 (9th
Cir. 2003), this Court will review the ALJ's reasons for discrediting plaintiffs testimony under
the clear and convincing standard.
Page 6 - OPINION AND ORDER

inconsistencies in the plaintiffs testimony or between the plaintiffs testimony and conduct, effective
medical treatment, and limited work history as clear and convincing reasons for an adverse
credibility finding).

II

Medical Opinion Evidence
Plaintiff fmiher contends the ALJ erred because he did not properly evaluate the medical

evidence provided by Dr. Tihanyi, Nurse Harlan, and Dr. Kruger. Dr. Tihanyi and Nurse Harlan were
plaintiffs treating physician and nurse practitioner. Tr. 545-46, 1037. The treating relationship began
in 2004. Tr. 546, 103 7. Dr Tihanyi and Nurse Harlan wrote aj oint statement ("Statement"), in which
they opined plaintiff "is unable to function in a work situation" because "[s]he has impairment of
cognitive functioning, limited short term memory, poor focus and concentration, and is very
disorganized.'' Tr. 1011. The Statement was supported with Nurse Harlan's treating notes. See Tr.
1012-27. Dr. Tihanyi and Nurse Harlan also signed and completed an attorney-supplied
questionnaire ("Questionnaire") in June 2012. Tr. 1037-40.
Plaintiff asserts the ALJ erred when he gave little weight to the opinions expressed by Dr.
Tihanyi and Nurse Harlan in the Statement. Because Dr. Tihanyi is plaintiffs treating physician, her
opinion is generally given deference. Morgan v. Comm 'r ofSoc. Sec. Adm in., 169 F .3d 595, 600 (9th
Cir. 1999). "However, the opinion of the treating physician is not necessarily conclusive as to either
the physical condition or the ultimate issue of disability." Id. If the treating physician's opinion is
uncontrove1ied, the ALJ must provide clear and convincing reasons for rejecting it. Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). However, ifthe treating physician's opinion conflicts
with another medical opinion, the ALJ may reject the treating physician's opinion in favor of a
conflicting opinion "ifthe ALJ makes 'findings setting fmth specific, legitimate reasons for doing

Page 7 - OPINION AND ORDER

so that are based on substantial evidence in the record."' Id. (quoting Afaga/lanes v. Bm11en, 881 F .2d
747, 751 (9th Cir. 1989)). Conflict between evidence of ADLs and the treating physician's opinion
of the plaintiffs limitations is a specific and legitimate reason to reject a treating physician's opinion
in favor of another medical opinion. See Rollins v. }dassanari, 261 F.3d 853, 856 (9th Cir. 2001);

Fisher v. Astrue, 429 F. App'x 649, 652 (9th Cir. 2011).
Because the Statement conflicts with other medical evidence,3 the ALJ only needed to
provide a specific and legitimate reason for giving Dr. Tihanyi' s opinion little weight. The ALJ gave
Dr. Tihanyi's opinion little weight because "the [plaintiffs] [ADLs] show that she is far more
functional than described in these written opinions." Tr. 545. As previously noted, plaintiff shops,
cooks, cleans, does laundry, feeds her pets, and gardens. Tr. 542, 544. As of April 2009, plaintiff also
babysat her grandson twenty-four hours per week. Tr. 542, 544. The ALJ rationally concluded these
AD Ls show plaintiff is far more functional than described by Dr. Tihanyi. Therefore, the ALJ did
not err by giving Dr. Tinhanyi' s opinion in the Statement little weight because he provided a specific
and legitimate reason suppotted by substantial evidence. 4

3

The Statement opines that plaintiff "is unable to function in a work situation" because
"[s]he has impairment of cognitive functioning, limited shot1 term memoty, poor focus and
concentration, and is very disorganized." Tr. 1011. In contrast, examining physician Dr. Kruger
found plaintiff had a full-scale IQ of85 (low average), could perform basic arithmetic, had intact
memoty, showed good attention on repetitive and routine tasks, and had fair abstraction ability.
Tr. 546.
4

To reject Nurse Harlan's opinion, the ALJ only needed to provide a getmane reason.
Nurse practitioners are considered "other sources" of medical evidence. 20 C.F.R. § 416.913(d).
"The ALJ may discount testimony from[] 'other sources' ifthe ALJ 'gives reasons getmane to
each witness for doing so."' }1!0/ina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting
Turner v. Comm 'r ofSoc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)).The ALJ's specific and
legitimate reason for rejecting the Statement necessarily satisfies the less demanding germane
reason standard. Therefore, the ALJ also did not err when he gave Nurse Harlan's opinion little
weight.
Page 8 - OPINION AND ORDER

Plaintiff also argues the ALJ did not review the Questionnaire and, therefore, did not provide
a legally sufficient reason to discredit its contents. To the contraiy, the ALJ expressly discussed the
Questionnaire in his decision. Tr. 546. The ALJ gave the Questionnaire little weight because Nurse
Harlan's "treating notes do not support the limitations on lifting" and because plaintiffs AD Ls and
other examining physicians' opinions did not support the limitations indicated in the Questionnaire.
Tr. 546. These reasons are specific, legitimate, and supported by substantial evidence in the record. 5
The ALJ did not ell' by giving the Questionnaire little weight.
Finally, plaintiff asserts the ALJ incorrectly gave Dr. Kruger's opinion significant weight.
Dr. Kruger was an examining physician. Tr. 546, 860-67. Dr. Kruger administered several tests in
his examination ofplaintiff, including the Test ofMemmy Malingering and the Structured Inventmy
of Malingered Symptomatology. Tr. 546, 860, 865. The ALJ gave Dr. Kruger's opinion significant
weight because it was "based on comprehensive testing and evaluation, and it [was] consistent with
the [plaintiffs] reported [ADLs]." Tr. 546.
Plaintiff contends the ALJ ell'ed when he gave Dr. Kruger's opinion significant weight
because Dr. Kruger's opinion was internally inconsistent and ambiguous. Specifically, plaintiff
argues the ALJ needed to resolve the conflict between Dr. Kruger's opinion plaintiff may have
exaggerated her symptoms, his finding plaintiff answered truthfully in other instances, and his
diagnosis of plaintiff based on her responses. However, there is no internal conflict in Dr. Kruger's
testimony. The possibility of malingering does not mean plaintiff answered untruthfully in all other

'Because it is unclear from the record whether Dr. Tihanyi or Nurse Harlan completed the
Questionnaire, it is questionable whether the ALJ needed to provide a specific and legitimate
reason for giving the Questionnaire little weight, or only a germane reason. The distinction,
however, is inconsequential here because the ALJ's reasons satisfy both standards.
Page 9 - OPINION AND ORDER

instances or that her responses were invalid for diagnosis. Dr. Kruger advised caution in reviewing
plaintiffs statements; he did not disregard her responses entirely. The ALJ did not err by giving Dr.
Kruger's opinion significant weight.

Ill

Lay Witness Testimony
Plaintiff avers the ALJ en-ed because he did not properly evaluate the evidence from lay

witnesses Chris Curtis and Cecil Reaves. Plaintiff contends the ALJ should have fully credited their
testimony because the ALJ considered both witnesses' statements "credible to the extent they are
based on personal observations" and did not otherwise indicate the weight accorded to their
testimony. Tr. 547-48.
"Lay testimony as to a [plaintiffs] symptoms is competent evidence that an ALJ must take
into account." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2011) (citing Nguyen v. Chafer, 100 F.3d
1462, 1467 (9th Cir. 1996)). "If the ALJ wishes to discount the testimony of the lay witnesses, he
must give reasons that are germane to each witness." Dodrill v. Shala/a, 12 F.3d 915, 919 (9th Cir.
1993).
The ALJ gave germane reasons for discounting the testimony of Mr. Curtis and Mr. Reaves.
The ALJ discounted Mr. Curtis' testimony because the ADLs Mr. Curtis described show plaintiff
is not as limited as alleged. Tr. 547. The ALJ discounted Mr. Reaves' testimony for similar reasons.
Tr. 548. Inconsistency with ADLs is a germane reason to discount lay witness testimony. See March
v. Comm 'r ofSoc. Sec. Adm in., 462 F. App'x 671, 672 (9th Cir. 2011). Because he provided reasons
germane to each witness, the ALJ did not err in discounting the lay witness testimony.
JV.

Past Work and Other Work Existing in the Economy
Finally, Plaintiff asserts the ALJ erred because the ALJ's conclusions regarding the work she

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could perform were inconsistent with her limitations. When determining the work the plaintiff could
perform, the ALJ must determine the plaintiffs RFC, "a summary of what the [plaintiff! is capable
of doing." Valentine v. Comm 'r Soc. Sec. Adm in., 574 F.3d 685, 689 (9th Cir. 2009). Based on the
RFC, the ALJ then evaluates the work the plaintiff could perfonn. Zavalin v. Colvin, 778 F.3d 842,
846 (9th Cir. 2015). The ALJ routinely relies on the Dictionaiy of Occupational Titles ("DOT") in
this evaluation. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT gives each job a
General Educational Development score; one component of that score is Reasoning Development.

Dictionmy ofOccupational Titles app. C §III (4th ed. 1991 ), 1991 WL 688702. The ALJ may also
consider vocational expeti ("VE") testimony when he evaluates what work the plaintiff could
perfo1m. Zavalin, 778 F.3d at 846.
Reasoning Development is divided into six levels. Dictionary of Occupational Titles app.
C § III, 1991 WL 688702. Level One Reasoning requires the plaintiff to "[a]pply commonsense
understanding to cany out simple one- or two-step instructions." Id. Level Two Reasoning requires
the plaintiff to"[a ]pply commonsense understanding to carry out detailed but uninvolved written or
oral instructions." Id. Level Three Reasoning requires the plaintiff to "[a]pply commonsense
understanding to cany out instructions furnished in written, oral, or diagrammatic fomi." Id.
The ALJ found plaintiff had the RFC to perform:
[A] full range of work at all exe1iional levels, but with the following nonexe1iional
limitations: no climbing of ladders, ropes, and scaffolds; avoid even moderate
exposure to noise and hazards (such as heights and dangerous equipment);pe1for111
only simple, repetitive work; and limited to occasional public and co-worker
interaction.
Tr. 543 (emphasis added). The ALJ concluded plaintiff could perform past relevant work as a care
provider (DOT 354.377-014) and other work existing in the national economy as a mail smier (DOT

Page 11 - OPINION AND ORDER

209.687-026) and office helper (DOT 239.567-010). Tr. 548-49. The care provider and mail s01ier
jobs require Level Three Reasoning. Dictionwy of Occupational Titles§ 209.687-026, 1991 WL
671813 (mail clerk); id.§ 354.377-014, 1991WL672933 (home attendant). The office helper job
requires Level Two Reasoning. Id. § 239.567-010, 1991 WL 672232 (office helper). Plaintiff
contends her limitations restrict her to Reasoning Level One work. Therefore, plaintiff argues the
ALJ ened when he concluded plaintiff could perform past Reasoning Level Three work and other
work existing in the local and national economy that requires Level Two or Level Three Reasoning.

A.

Simple, Repetitive Work Limitation and Reasoning Level Two and Three Work

The ALJ considered and relied on VE testimony in finding Reasoning Level Two and Three
work compatible with plaintiffs simple, repetitive work limitation. See Tr. 549, 1098-1110. While
the ALJ may consider VE testimony in evaluating the work the plaintiff could perform, "[w ]hen
there is an apparent conflict between the vocational expert's testimony and the DOT[,] ... the ALJ
is required to reconcile the inconsistency." Zavalin, 778 F.3d at 846 (citing i'vfassachi v. Astrue, 486
F.3d 1149, 1154 (9th Cir. 2007)); see also SSR 00-4p, 2000 WL 1898704, *2 (Dec. 4, 2000). The
ALJ may rely on VE testimony that contradicts the DOT, but only ifthe record contains persuasive
evidence to supp01i the deviation. Johnson v. Shala/a, 60 F.3d 1428, 1436 (9th Cir. 1995).
The ALJ erred when he found Reasoning Level Three work compatible with plaintiffs
simple, repetitive work limitation. As the Ninth Circuit recently held, "there is an apparent conflict
between the [RFC] to perform simple, repetitive tasks, and the demands of Level 3 Reasoning."

Zavalin, 778 F.3d at 847. In Zavalin, the couti held that the ALJ ened by failing to reconcile this
apparent conflict when the ALJ "failed to recognize [the] inconsistency" and "did not ask the [VE]
to explain." Id. The same facts exist here: The ALJ did not recognize or ask the VE to explain the

Page 12 - OPINION AND ORDER

inconsistency between plaintiffs simple, repetitive work limitation and the Reasoning Level Three
work recommended by the VE. See Tr. 1098-1110. Because the ALJ failed to reconcile this
inconsistency, the ALJ erred when he relied on the VE's testimony to find plaintiffs RFC
compatible with Reasoning Level Three work as a care provider and as a mail s01ter.
In contrast, the ALJ did not err when he found Reasoning Level Two work compatible with
plaintiffs simple, repetitive work limitation. As this Court previously held, "Reasoning Level 2 jobs
are not inconsistent with simple, routine work." Gilbert v. Colvin, 2015 WL 1478441, *7 (D. Or.
Mar. 31, 2015); see also Chalmers v. Colvin, 2014 WL 5488908, *9 (D. Or. Oct. 28, 2014). The
Ninth Circuit alluded to the same finding in Zavalin and has expressly stated it in unpublished
memoranda. Zavalin, 778 F.3d at 847;Abrewv. Astrue, 303 F. App'x 567, 569 (9th Cir. 2008); Lara

v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008). Because there is no apparent conflict between
Reasoning Level Two work and plaintiffs simple, repetitive work limitation, the ALJ did not need
to seek further explanation from the VE. Instead, the ALJ could and did rely on the VE's affirmation
that his testimony was consistent with the DOT. Tr. 1100. Therefore, while the ALJ ened when he
found Reasoning Level Three work compatible with the simple, repetitive work limitation in
plaintiffs RFC, he did not en when he found Reasoning Level Two work compatible with that
limitation. The ALJ's error eliminates the care provider and mail sorter jobs from the list of jobs
plaintiff could perform; the only remaining job is the Reasoning Level Two officer helper job.

B.

One- to Two-Step Task Limitation and Reasoning Level Two Work

Even though the ALJ did not err in finding Reasoning Level Two work compatible with the
simple, repetitive work limitation, the ALJ erred when he concluded plaintiff could perform the
Reasoning Level Two office helper job. The ALJ erred because his determination was based on an

Page 13 - OPINION AND ORDER

incomplete RFC finding. In dete1mining plaintiffs RFC, the ALJ relied in part on the opinion of Dr.
Herny, a disability services psychological consultant. See Tr.547. Dr. Herny opined in his assessment
that plaintiff was limited to performing simple one- to two-step tasks. Tr. 547, 566. While the ALJ
gave Dr. Hemy' s opinion significant weight, the ALJ did not include the one- to two-step task
limitation in plaintiffs RFC. Tr. 543, 547. Instead, the ALJ included the simple, repetitive work
limitation. Tr. 54 3. The ALJ did not state in his decision why he included the simple, repetitive work
limitation in plaintiffs RFC instead of the one- to two-step task limitation. See Tr. 547.
A plaintiffs RFC must include all limitations and restrictions. Valentine, 574 F.3d at 690.
When reviewing opinion evidence for an RFC determination, the ALJ "must consider findings and
other opinions of State agency medical and psychological consultants." 20 C.F.R. § 416.927(e)(2)(I).
"Unless a treating source's opinion is given controlling weight, the [ALJ] must explain in the
decision the weight given to the opinions of a State agency medical or psychological consultant ..

. ."Id. § 416.927(e)(2)(ii). "RFC assessments by State agency medical or psychological consultants
. . . are to be considered and addressed in the [ALJ' s] decision as medical opinions from
nonexamining sources." SSR 96-6p, 1996 WL 374180, *4 (July 2, 1996). "If the RFC assessment
conflicts with an opinion from a medical source, the [ALJ] must explain why the opinion was not
adopted." SSR 96-Sp, 1996 WL 374184, *7 (July 2, 1996).
The ALJ implicitly rejected the one- to two-step limitation when he omitted it from plaintiffs
RFC. The ALJ erred when he failed to explain why he rejected that portion of Dr. Berny's opinion. 6

6

The District Court for the Central District of California faced a substantially similar set
of facts and likewise found the ALJ erred. See Cardoza v. Astrue, 2011WL1211469, *1 (C.D.
Cal. Mar. 29, 2011) ("the Court concurs with plaintiff that the ALJ erred in his RFC
determination because he failed to explain why he implicitly rejected the opinion of [] one of the
Page 14- OPINION AND ORDER

This error is not harmless. The difference between a simple, repetitive work limitation and a oneto two-step task limitation is significant: while there is no apparent conflict between a simple,
repetitive work limitation and the demands of Level Two Reasoning, Gilbert, 2015 WL 1478441,
at *7, there is an apparent conflict between Level Two Reasoning and a one- to two-step task
limitation, Rounds v. Comm 'r Soc. Sec. Adm in., 807 F.3d 996, 1003 (9th Cir. 2015). If the ALJ fails
to reconcile the apparent conflict between the demands of Level Two Reasoning and a one- to twostep task limitation, the court cannot determine whether the ALJ's step five findings are supported
by substantial evidence. Id at 1004.
Because the ALJ excluded the one- to two-step task limitation from plaintiffs RFC without
explanation and neither recognized nor explained the conflict between the limitation and Level Two
Reasoning, this Comt carmot determine whether the office helper job is a viable option. Therefore,
this Court remands the Commissioner's decision for fmther proceedings. See Taylor v. Comm 'r of
Soc. Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) ("Remand for further proceedings is

appropriate where there are outstanding issues that must be resolved before a disability determination
can be made, and it is not clear from the record that the ALJ would be required to find the [plaintiff]
disabled if all the evidence were properly evaluated."). Before a disability determination can be
made, the ALJ must resolve whether plaintiffs RFC should include a one- to two-step task limitation
or a simple, repetitive work limitation. If plaintiffs RFC should include a one- to two-step
limitation, the ALJ also must reconcile the apparent conflict between the limitation and the
Reasoning Level Two officer helper job, or find Reasoning Level One work plaintiff can perform

State agency medical and psychological consultants").
Page 15 - OPINION AND ORDER

given the other nonexetiional limitations in her RFC, to meet his step five burden of proof.
CONCLUSION

The Commissioner's decision is REVERSED and this case is REMANDED for further
proceedings.
IT IS SO ORDERED.
Dated

this~ofFebrnmy 2016.

AnnAiken
United States District Judge

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