Searles v. Colvin

Filing 11

ORDER re 1 Complaint filed by Donald J. Searles - by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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DONALD J. SEARLES,

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Plaintiff,

CASE NO. 2:15-cv-0617 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkt. 8, 9, 10).

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After considering and reviewing the record, the Court concludes that the ALJ
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failed at step five to meet her burden to show that plaintiff could have performed any
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substantial gainful work in the national economy. Although the ALJ found that the
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 vocational expert relied on her professional expertise when she altered her testimony to
2 provide the exact opposite testimony to that initially provided, such a finding is not based
3 on substantial evidence in the record as a whole. Instead, the VE’s subsequent testimony
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which conflicts with the Dictionary of Occupational Titles reveals that she did not base
her contradictory opinion on professional expertise or factual evidence.

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BACKGROUND
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Plaintiff, DONALD. J. SEARLES, was born in 1962 and was 44 years old on the
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alleged date of disability onset of January 1, 2007 (see AR. 241-42, 243-45, 251).
Plaintiff has a high school diploma (AR. 51). Plaintiff has work experience as a fence

11 builder (AR. 78). He took a leave of absence from the fence building job because he was
12 unable to concentrate due to lack of sleep and was getting injured (AR. 78-79). Plaintiff
13 last worked doing day labor putting things in packages, but could not concentrate and
14 was let go (AR. 82-83).
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According to the ALJ, plaintiff has at least the severe impairments of

16 “degenerative changes of the left elbow status/post multiple remote fractures,
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tendinopathy of the right shoulder, attention deficit/hyperactivity disorder
(ADHD), Asperger's syndrome, depressive disorder not otherwise specified (NOS),

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personality disorder NOS, and polysubstance abuse (in reported remission) (20
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CFR 404.1520(c) and 416.920(c))” (AR. 29).
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At the time of the first hearing, plaintiff was staying with friends or in shelters
(AR. 83-85).

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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PROCEDURAL HISTORY

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Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42

3 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
following reconsideration (see AR. 119-22, 124-34). Plaintiff’s requested hearing was

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held before Administrative Law Judge M. J. Adams (“the ALJ”) on October 16, 2012
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(see AR. 71-114), with a supplement hearing held on April 17, 2013 (see AR. 48-70). On
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May 14, 2013, the ALJ issued a written decision in which the ALJ concluded that
plaintiff was not disabled pursuant to the Social Security Act (see AR. 24-47).
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

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12 not the ALJ provided persuasive evidence to support adopting vocational expert (“VE”)
13 testimony which conflicts with the Dictionary of Occupational Titles (“DOT”); and (2)
14 Whether or not the ALJ’s errors support remand for an immediate award (see Dkt. 8, p.
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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
denial of social security benefits if the ALJ's findings are based on legal error or not

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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
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1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
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1999)).

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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DISCUSSION
(1)

Whether or not the ALJ provided persuasive evidence to support
adopting vocational expert (“VE”) testimony which conflicts with the
Dictionary of Occupational Titles (“DOT”).

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Plaintiff does not contest the ALJ’s evaluation of the medical evidence or

6 plaintiff’s credibility (see Dkt. 8, p. 1). Nor does plaintiff contest the ALJ’s formulation
7 of plaintiff’s residual functional capacity (“RFC”) or the ALJ’s finding at step four that
8 plaintiff is unable to perform past relevant work (see id.). The ALJ found that plaintiff
9 had the RFC to:
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perform light work as defined in 20 CFR 404.1567 (b) and 416.967 (b)
except that he cannot climb stairs, ladders, rope, or scaffolding. He has
no limitations in his abilities to balance, stoop, kneel, crouch, or crawl.
He has no manipulative limitation within his right (dominant) upper
extremity. He can never reach overhead with his left (non-dominant)
upper extremity. He can occasionally reach laterally with the left upper
extremity. He can occasionally handle, finger, feel, push, or pull with the
left upper extremity. He should not work at heights or around hazardous
machinery. He can understand, remember, and carry out simple
instructions, consistent with unskilled work (SVP 1 to 2). He can make
judgments on simple work-related decisions and can respond
appropriately to supervision. He has an average ability to perform
sustained work activities (i.e., can maintain attention, concentration,
persistence, and pace) in an ordinary work setting on a regular and
continuing basis (i.e., Eight hours per day, five days per week, or an
equivalent work schedule) within customary tolerances of employers’
rules regarding sick leave and absence. He can work with familiar
coworkers. He can tolerate occasional changes in his work environment,
as well as occasional exposure and interaction with the general public.

21 (AR. 33-34). The Court notes that defendant has misconstrued the record, indicating that
22 it is plaintiff who “asserts” the presence of “non-dominant hand restrictions,” when it is
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1 instead the ALJ who has found that plaintiff had such limitations (see id.; see also Dkt. 9,
2 p. 4).
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Plaintiff contends that the ALJ erred at step five in the written decision by
concluding that there was significant other work in the national economy that plaintiff
could perform, given the referenced RFC (see Dkt. 8, pp. 1-12; AR. 41-42). As noted by

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the Ninth Circuit:
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At step four, claimants have the burden of showing that they can no
longer perform their past relevant work. 20 C.F.R. §§ 404.1520(e) and
416.920(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). Once they
have shown this, the burden at step five shifts to the Secretary to show that,
taking into account a claimant's age, education, and vocational background,
she can perform any substantial gainful work in the national economy. 20
C.F.R. §§ 404.1520(f) and 416.920(f); Moore v. Apfel, 216 F.3d 864, 869
(9th Cir. 2000).
Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001) (citing 20 C.F.R. §§
404.1520(e), (f), 416.920(d), (e), (f); Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000);

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Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)) (internal footnote omitted).
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As an initial matter, the Court notes that when the ALJ first asked the VE whether
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or not an individual with plaintiff’s RFC would be able to perform any other work
existing in the national economy the VE testified that “I would not be able to identify any

19 jobs” (AR. 56-57). The VE testified that the basis for this opinion was that “in sedentary
20 and light work, what you have to offer your employer is the use of your upper
21 extremities, and it’s difficult to handle, reach, feel, push and pull with one hand for two22 thirds of day” (AR. 57). However, after the ALJ responded that “Social Security, in their
23 policy statements, recognizes the capability of a single upper extremity person being able
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ORDER ON PLAINTIFF’S COMPLAINT - 5

1 to perform at least the light and sometimes higher exertional demand,” the VE changed
2 her testimony to render the opposite opinion (see id.). When subsequently asked by
3 plaintiff’s attorney if she had ever read this provision that was referenced by the ALJ, the
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VE testified “I probably have” (AR. 68). When plaintiff’s attorney asked if the VE
remembered if she had read it or not, the VE testified “I don’t” (see id.). When plaintiff’s

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attorney asked the VE if she was aware of the contents of the policy, the VE indicated
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that an administrative law judge made her aware of its contents, further testifying that
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“that’s as aware as I am” (id. (although she appears to have mis-named the ALJ)). The
Court agrees with plaintiff’s contention that these facts render the VE’s subsequent

11 opposite testimony less substantiated and less persuasive. The Court notes that defendant
12 misconstrued the record a second time by indicating that plaintiff alleges “that the ALJ
13 impermissibly ‘led’ the VE to testify in such a way that it precluded an answer VE might
14 otherwise have given” (Dkt. 8, p. 4). However, plaintiff actually argued that the ALJ
15 impermissibly led the VE to testify in such a way that contradicted an answer that the VE
16 already had given, as the VE initially testified that there were no jobs that an individual
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with plaintiff’s RFC could have performed and only changed her testimony after
prompting from the ALJ (AR. 56-57).

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There additionally is the issue of the acknowledged conflict between the DOT and
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the VE’s testimony.
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When there is a conflict between the testimony of the vocational expert
(“VE”) and the Dictionary of Occupational Titles (“DOT”) regarding work that an

24 individual with a particular RFC can perform, “the ALJ must then determine

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 whether the vocational expert's explanation for the conflict is reasonable and
2 whether a basis exists for relying on the expert rather than the Dictionary of
3 Occupational Titles.” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007)
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(footnotes omitted). However, “an ALJ may rely on expert testimony which
contradicts the DOT, but only insofar as the record contains persuasive evidence

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to support the deviation.” Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
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Here, the ALJ found that the VE’s testimony was inconsistent with the
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information in the DOT (see AR. 42). The Court agrees with this finding by the ALJ and
notes plaintiff’s argument that “it is clear that the DOT contemplates bimanual dexterity

11 for the jobs cited given the ‘things’ code includes all work functions involving things
12 pursuant to the DOT coding,” including that “an individual worker would be required to
13 interact with things to (0) set up; (1) perform precision work; (2) operate and control
14 items; (3) drive and operate items; (4) manipulate items; (5) tend to things; (6) feed and
15 off bear items; and (7) handle items" (Opening Brief, Dkt. 8, p. 10). The Court notes that
16 the VE testified that all of the identified jobs require frequent reaching and handling
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according to the DOT (AR. 59) and the ALJ found that plaintiff could only occasionally
reach laterally and occasionally handle with the non-dominant extremity (AR. 33-34).

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The Court also notes that defendant for a third time has misconstrued the record,
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characterizing plaintiff’s argument as “the VE’s testimony . . . . was unreliable
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because it allegedly conflicted with the Dictionary of Occupational Titles (DOT)” (see
Response, Dkt. 9, p. 5). However, it is not plaintiff who “alleges” that the VE’s testimony

24 conflicts with the DOT, it is the ALJ who found that the VE’s “testimony has deviated

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 from the information contained in the Dictionary of Occupational Titles (DOT) . . . .”
2 (AR. 42).
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After noting the deviation between the DOT and the VE testimony, the ALJ found
that the VE had "adequately described her reasons for these deviations" (AR. 42). The
ALJ found that although the VE at the April 2013 hearing "acknowledged that the DOT

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did not denote unilateral or dominant/non-dominant manipulative requirements, [the VE]
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expressed that her opinions regarding these limitations and requirements were based on
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her professional experience with these jobs" (id.). However, this finding is not based on
substantial evidence in the record as a whole regarding all of the identified jobs as

11 discussed further below.
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Following questioning from plaintiff’s attorney, the VE explicitly testified that she

13 never had observed the job as a price marker as a vocational expert, but only “just out and
14 about in the general public” (AR. 60). Therefore, the ALJ’s finding that the VE testified
15 that she was expressing “her opinions regarding the[] limitations and requirements []
16 based on her professional experience" is not supported by substantial evidence in the
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record (see AR. 42, 60). The Court finds persuasive plaintiff’s argument that the VE’s
“observations of this job in the general public which are not formed in her capacity as an

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expert did not lend support to her testimony [that] plaintiff can perform the job of price
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maker with one hand” (Dkt. 8, pp. 6-7). The Court concludes that the ALJ’s findings
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regarding this position as a price marker are not supported by substantial evidence in the
record as a whole. In addition, the Court concludes that “the record [does not] contain[]

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1 persuasive evidence to support the deviation” from the DOT by the ALJ regarding this
2 first identified job. Johnson, supra, 60 F.3d at 1435.
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The VE also opined that there were two other jobs that an individual with
plaintiff’s RFC potentially could perform, including cafeteria attendant and
housekeeper/cleaner (see id.). First, regarding the cafeteria attendant job, the Court notes

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that the VE testified that she could not remember the last time that she observed this job
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in her professional capacity (AR. 61). This fact lends support to plaintiff’s argument that
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the VE was not relying on her professional expertise when providing her second,
contradictory opinion that one with plaintiff’s RFC could perform this job. According to

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Carries trays from food counters to tables for cafeteria patrons. Carries
dirty dishes to the kitchen. Wipes tables and seats with dampened cloth.
Sets tables with clean linens, sugar bowls, and condiments. May wrap
clean silver in napkins. May circulate among diners and serve coffee and
be designated Coffee Server, Cafeteria or Restaurant (hotel and rest.).

15 http://www.occupationalinfo.org/31/311677010.html (last visited 9/15/2015).
16 Plaintiff notes that the VE indicated that dishes, silverware, and glasses can be lifted with
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one hand, with an assist from the left hand when necessary (Dkt. 8, p. 8 (citing AR. 5960)). When asked by plaintiff’s attorney how she was drawing the conclusion that the job

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of cafeteria attendant can be done with only the occasional use of the non-dominant upper
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extremity, the VE testified that this opinion was based on the “weights of the items to be
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handled . . . . Don’t require two hands to lift” (AR. 66). The Court finds persuasive
plaintiff’s indication that this opinion “Ignor[es] that the person likely would be handling

24 more than one individual plate, glass or piece of silverware . . . .” (Dkt. 8, p. 8). As the

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 DOT indicates that the job of cafeteria attendant involves carrying “dirty dishes to the
2 kitchen,” and not carrying a dirty dish, one at a time, the Court agrees with the finding by
3 the ALJ that the VE’s testimony regarding the duties of a cafeteria attendant is
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inconsistent with the DOT. The VE’s opinion that carrying dirty dishes to the kitchen can
be accomplished with only the occasional use of the non-dominant extremity because

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each individual dish to be carried has a small weight is inconsistent with the practical
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implication from the DOT that a cafeteria attendant would be carrying many dishes at a
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time. The same rationale applies regarding the carrying of trays: Although it may be
feasible to carry one tray at a time with only the occasional assist from the non-dominant

11 arm, it is not easy to ascertain how a cafeteria worker would carry multiple trays at a time
12 with only the occasional assist from the non-dominant arm. Again, the DOT indicates
13 that a cafeteria carries “trays,” not carries a tray one at a time.
14 http://www.occupationalinfo.org/31/311677010.html (last visited 9/15/2015). In addition,
15 the DOT indicates that a cafeteria worker carries trays from food counters to tables for
16 patrons, suggesting that the trays may have food on them when carried to the tables,
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making them even more difficult to maneuver with one hand. See id.
The Court also notes that when plaintiff’s attorney asked the VE if the DOT is

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referring to bilateral use when it references reaching, handling and fingering, the VE
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testified: “I really haven’t explored that, so I can’t answer that with any certainty” (AR.
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61). Furthermore, when the VE was asked how much slower a person would be if they
had the restrictions noted in the RFC regarding the non-dominant arm, the VE testified

24 that the difference would be less than five percent (AR. 67-68). When asked what the

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 opinion of only a five percent slowing was based on, the VE indicated that it was based
2 on “just my opinion, I don’t have anything factual” (AR. 68).
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For the reasons discussed, and based on the record as a whole, the Court concludes
that the VE’s testimony is not adequately based on professional expertise but is in large
part based on unsupported conjecture with the lack of “anything factual” to back it up

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(see id.). The Court also concludes that the VE’s testimony is inconsistent with the DOT,
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as found by the ALJ, and that the record does not “contain persuasive evidence to support
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the deviation” by the ALJ from the DOT regarding this second identified job. See
Johnson, supra, 60 F.3d at 1435.
Finally, regarding the job of housekeeper/cleaner, the VE testified that she last

12 observed this job in her professional capacity on May 10, 2012 and that this was the only
13 time she observed that position within the previous 12 months (AR. 61). The VE also
14 testified that she only observed one housekeeper for less than an hour (AR. 62). Although
15 the VE also testified that she additionally conducted a labor market survey for the
16 housekeeper position, she indicated that her survey did not specifically address the issue
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of using the non-dominant extremity only occasionally (see id.). The VE opined that the
housekeeper position could be performed with only the occasional use of the non-

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dominant extremity (AR. 63), but when asked what experience supported this opinion
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regarding a specific task that a housekeeper must perform, (pushing a cart), the VE
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responded “I don’t know” (AR. 64). In addition, even though the VE indicated that a
housekeeper/cleaner “cleans rooms and halls in commercial establishments []; may sort,

24 count, or carry linens; pushes a cart; makes beds; [and] replenishes supplies, such as

ORDER ON PLAINTIFF’S COMPLAINT - 11

1 glasses,” the VE also testified that the housekeeper/cleaner that she observed in her
2 professional capacity actually used both arms when making the beds (AR. 63). As
3 making beds is a regular duty of a housekeeper/cleaner, and as the VE testified that her
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only professional expertise from observing this job suggested that this task requires two
hands, it would appear that the VE’s professional expertise demonstrates that both upper

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extremities would need to be utilized more than occasionally in this position (see id.).
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Similarly, the VE testified that the housekeeper/cleaner that she observed used
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both hands when replacing the toilet paper (AR. 64-65). Regarding cleaning the
bathroom, the VE testified that although the housekeeper/cleaner that she observed

11 “mainly” cleaned the tub shower and toilet with one hand, she was “leaning on the other
12 hand” (AR. 65). Although the housekeeper/cleaner who was observed dusted one13 handed, vacuumed one-handed, and replaced supplies one-handed, “carrying was done,
14 mainly, two-handed” (AR. 65-66). Although the job duties of a housekeeper/cleaner also
15 entails putting dirty laundry into the cart and taking it down to the laundry room, the VE
16 testified that she did not observe that particular task (AR. 66). The Court concludes that
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substantial evidence in the record as a whole does not support the VE’s opinion or the
ALJ’s finding that the housekeeper/cleaner position can be performed by an individual

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who only has occasional use of the non-dominant extremity, such as plaintiff. The VE’s
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testimony regarding her professional experience with respect to this position
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demonstrates that it entails more than the occasional use of the non-dominant upper
extremity. The Court also concludes that the record does not “contain persuasive

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1 evidence to support the deviation” by the ALJ from the DOT regarding this last identified
2 job. See Johnson, supra, 60 F.3d at 1435.
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While it is not necessary for the VE to observe personally the performance of
every job that is identified as a potential alternative source of employment, it remains the
ALJ’s burden to support any such conclusion with substantial evidence. The Court

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concludes that the ALJ did not meet her burden at step five “to show that. . . . [plaintiff
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could] perform any substantial gainful work in the national economy.” Pinto, supra, 249
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F.3d at 844-45 (citing 20 C.F.R. §§ 404.1520(e), (f), 416.920(d), (e), (f); Moore, supra,
216 F.3d at 869; Clem, supra, 894 F.2d at 330) (internal footnote omitted). The Court

11 also concludes that this error is not harmless because if plaintiff could not have
12 performed the identified jobs, and no other jobs can be identified that one with plaintiff’s
13 RFC could have performed, then plaintiff should have been found disabled at step five.
14 Marsh v. Colvin, 792 F.3d 1170, 2015 U.S. App. LEXIS 11920 at *7-*8 (9th Cir. July 10,
15 2015) (citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050,
16 1055-56 (9th Cir. 2006)).
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(2)

Whether or not the ALJ’s errors support remand for an immediate
award.

The Court already has concluded that the ALJ erred at step five when considering

20 the VE’s testimony, see supra, section 1. However, the Court also concludes that
21 testimony from a vocational expert with specific expertise regarding limitations to
22 occasional use with the non-dominant upper extremity would serve a useful purpose.
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Therefore, the Court concludes that this matter should be reversed for further

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1 administrative proceedings as opposed to reversed with a direction to award benefits. See
2 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014)
3 (citations omitted) (remand with a direction to award benefits is not appropriate if
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“further administrative proceedings would be useful”).

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CONCLUSION

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Based on the stated reasons and the relevant record, the Court ORDERS that this
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matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
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405(g) to the Acting Commissioner for further consideration consistent with this order.
JUDGMENT should be for plaintiff and the case should be closed.
Dated this 29th day of September, 2015.

A

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J. Richard Creatura
United States Magistrate Judge

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