Craig v. Commissioner Social Security Administration

Filing 13

OPINION AND ORDER: The Commissioner's decision is REVERSED AND REMANDED for further proceedings and this appeal is dismissed. Signed on 5/16/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

Case No. 6: 17-cv-00994-AA
OPINION AND ORDER

ROZANNE CRAIG,
Plaintiff,
v.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

AIKEN, Judge:
Plaintiff Rozanne Craig brings this action pursuant to the Social Security Act, 42 U.S.C.

§ 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security
("Commissioner"). The Commissioner denied plaintiffs applications for Disability Insurance
Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set f01th below,
the Commissioner's decision is reversed and remanded for farther proceedings.
BACKGROUND

In October 2012, plaintiff applied for DIB and SSL She alleged disability beginning
June 30, 2012, due to a herniated disc in her neck, carpal tunnel syndrome, spinal stenosis,

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deterioration of her bones, and rheumatoid arthritis. Plaintiffs applications were denied initially
and upon reconsideration. On December 16, 2015, plaintiff appeared at a hearing before an ALJ.
On February 8, 2016, the ALJ issued a decision finding plaintiff not disabled. After the Appeals
Council denied review, plaintiff filed a complaint in this Comi.
STANDARD OF REVIEW

The district court must affitm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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 suppo1i a conclusion." Gutierrez v. Comm'r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that suppo1is and the evidence that detracts from the ALJ' s conclusion." Mayes v.
1vfassanari, 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 comi may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the claimant must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
dete1minable physical or mental impahment which can be expected ... to last for a continuous
period of not less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).

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The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4);
id. § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful
activity" since the alleged disability onset date. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id
§§ 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff suffers from the severe impahment
of degenerative disc disease. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c).
The ALJ considered evidence in the record related to plaintiffs asthma, mihritis, carpal tunnel
syndrome, depression, and anxiety, but found those impairments were not severe because none
of them more than minimally limited plaintiffs ability to work.
At step tluee, the ALJ dete1mined plaintiffs impairments, whether considered singly or
in combination, did not meet or equal "one of the listed impahments" that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity. Tr. 23; see also 20 C.F.R.
§§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d). The ALJ found plaintiff retained the
residual functional capacity ("RFC") to "perform light work as defined in 20 C.F.R. [§§]
404. l 567(b) and 416.967(b)[,]" with an additional limitation to no more than "occasional
handling and fingering bilaterally." Tr. 23; see also 20 C.F.R. § 404.1520(e); id. § 416.920(e).
At step four, the ALJ concluded plaintiff could not perfo1m her past relevant work as a
caregiver or horticulturist because those jobs require more than light exertional work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), (f); id §§ 416.920(a)(4)(iv). At step five, the ALJ found plaintiff could
perform other jobs existing in significant numbers in the national economy, such as photo
finishing inspector, hand packaging inspector, and addressing machine operator. 20 C.F .R. §§
404.1520(a)(4)(v), (g)(l); id. §§ 416.920(a)(4)(v), (g)(l). Accordingly, the ALJ found plaintiff
not disabled and denied her applications for benefits.

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DISCUSSION

The scope of this appeal is natTow. Plaintiff raises a single allegation of etTor: she
contends the Commissioner did not meet her burden, at step five, to identify jobs that did not
exceed plaintiffs RFC.

The ALJ found plaintiff had the RFC to perform light duty work

requiring no more than occasional handling and fingering. According to the descriptions in the
Dictionary of Occupational Titles ("DOT"), all tln·ee jobs identified by the ALJ at step five
require fi'equent handling and fingering.

The Commissioner concedes etTor because the

requirements of the jobs identified at step five are obviously inconsistent with plaintiffs RFC
and the ALJ did not expressly acknowledge that conflict or ask the VE to resolve it. See
Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (stating that, when there is an apparent

inconsistency between the DOT and the VE's testimony, the ALJ "must ask the expert to
reconcile the conflict before relying on the expert to decide if the claimant is disabled")
(emphasis added). The parties' only dispute is whether that etTor was harmless.
"[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability
determination." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (internal quotation marks
omitted). As the party alleging error, it is plaintiffs burden to show that the error prejudiced her.
lvfcLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). When the record is ambiguous such that

there is a "substantial likelihood of prejudice," remand is appropriate. Id "By contrast, when
harmlessness is clear and not a borderline question, remand for reconsideration is not
appropriate." Id. (internal quotation marks omitted).
The DOT is "a resource compiled by the Department of Labor that details the specific
requirements for different occupations[.]"

Gutierrez, 844 F.3d at 807.

Agency guidance

explains that "[o]ccupational evidence provided by a VE ... generally should be consistent with

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the occupational information supplied by the DOT." SSR 00-4P, 2000 WL 1898704, *2 (2000).
When there is a conflict, "[n]either the DOT nor the VE ... evidence automatically 'trumps[.]"'

Id

Instead, the ALJ must "resolve the conflict by determining if' the VE has provided a

reasonable explanation for deviating from the job description in the DOT. Id The guidance
further states that a VE's deviation from a DOT description may be justified if the VE has
specialized knowledge about the way a pmiicular job is actually performed. The Ninth Circuit
recently emphasized that, when there is an apparent conflict relevant to the step five analysis, "an
ALJ should ordinarily ask the VE to explain in some detail why there is no conflict between the
DOT and the applicant's RFC." Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017)
(emphasis added).
The relevant colloquy between the ALJ and the VE in this case proceeded as follows:
ALJ: All right, so there's no jobs at the light level with occasional handling and
fingering?
VE:

I don't have transfenable skills or anything here.

ALJ:

Yeah. Yeah, looking at unskilled work.

VE: Yeah, at unskilled. Give you a couple of examples that do cut down on
the use of the hands, so it's lesser. Let me-let me give you a couple of examples
here. In the photofinishing business, they have a person who is inspecting the
photofinishing. It's an unskilled position. It's more visual. The DOT is at
976.685-014. This work has an SVP level of2. It is classified as unskilled. The
state of Oregon is listing about 2, 100 positions. The national economy is at
278,000. Also, Your Honor, there's work as an inspector of-let me find this one
here. It would be an inspector of small-small products.
ALJ:

An inspector hand packager?

VE: Of-in hand packaging. The DOT for an inspection of hand packaging,
this is in what they call the plastics, so the packaging is done and then there's this
person that inspects that packaging by content and how they're placed and so
forth. It's simple and routine work. It's under the DOT of 559.687-074. The
SVP level is 2. It's classified as unskilled, and it is a light duty job. In the state

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of Oregon, 2, 100 positions at the unskilled and light level. About-looks like
about 230,000 in the national economy at that unskilled and light level.
ALJ:

Okay.

VE: There's an addressing machine operator that doesn't have repetitive
handling. The DOT is at 208.582-010. This work is unskilled. The SVP level is
2. It's classified as a light duty position. In Oregon, 2,800 positions. The
national economy, looks like about 310,000 in the latest figures that I have on that
occupation, Your Honor. These are representative. They cettainly cut down on
the use of the hands because they have this element of one of the key duties of the
job would be more visual.
Tr. 60-61.

Following two additional hypotheticals umelated to fingering and handling

limitations, the ALJ asked
ALJ:

... [H]as your testimony been consistent with the DOT?

VE:

Yes.

ALJ:

Does the DOT address all of the limitations in these questions.

VE: Not all of the limitations in the hypotheticals. That is based on my field
experience, understanding of the jobs, having done job analysis, employer visits
and many years of field work, Your Honor.
Tr. 63.
It is possible to infer, from the po1tions of the hearing transcript above, that the VE was
using her field experience to identify jobs that require only occasional handling and fingering
notwithstanding the DOT' s statement that those jobs require frequent handling and fingering.
But because neither the ALJ nor the VE expressly noted the conflict between the DOT and
plaintiffs RFC, that is not the only plausible reading of the record. It may be, instead, that the
VE was simply identifying the light-work jobs that required relatively less handling and
fingering than other light level jobs, and that the demands of those jobs neve1theless exceed
plaintiffs RFC because they require more than occasional handling and fingering. The VE's
general statement that she made some judgments based on her field experience rather than on the
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DOT in cases where the DOT did not address a ce1iain limitation in the ALJ' s hypotheticals does
not resolve the ambiguity because the DOT contains a specific limitation for handling/fingering
for each of the jobs identified. I cannot determine on the cutTent record whether the step five
error was harmless. Accordingly, remand is necessary.

CONCLUSION
The Commissioner's decision is REVERSED AND REMANDED for fmiher
proceedings and this appeal is dismissed.
IT IS SO ORDERED.
Dated this

I{,,~ f~~y of May 2018.

Ann Aiken
United States District Judge

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