Strong v. Colvin

Filing 16

ORDER Reversing and Remanding Defendant's Decision to Deny Benefits by Judge Theresa L Fricke. (TW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOHNNY JAMES STRONG,
Case No. 2:16-cv-01693-TLF

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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

ORDER REVERSING AND
REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS

Defendants.

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Plaintiff Johnny James Strong has brought this matter for judicial review of the

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Commissioner’s denial of his applications for disability insurance and supplemental security

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income (SSI) benefits. The parties have consented to have this matter heard by the undersigned

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Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13.

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Because the ALJ erred in determining that Mr. Strong could perform his past relevant work, the

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Court finds that the Commissioner’s decision to deny benefits should be reversed, and that this

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matter should be remanded for further administrative proceedings.

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FACTUAL AND PROCEDURAL HISTORY
On January 30, 2012, Mr. Strong filed an application for disability insurance benefits and

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another one for SSI benefits, alleging in both applications that he became disabled beginning

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September 30, 2011. Dkt. 9, Administrative Record (AR) 153. His applications were denied on

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initial administrative review and on reconsideration. Id. A hearing was held on June 24, 2013,

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 1

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before an administrative law judge (ALJ), at which Mr. Strong appeared and testified as did a

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vocational expert. AR 52-79.

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In a decision dated July 22, 2013, the ALJ found that Mr. Strong could perform his past

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relevant work and therefore that he was not disabled. AR 153-61. On February 6, 2015, the

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Appeals Council granted Mr. Strong’s request for review, vacated the ALJ’s decision, and

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remanded the matter for further administrative proceedings. AR 168-70.

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On remand, a second hearing was held before the same ALJ, at which Mr. Strong

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appeared and testified, as did a different vocational expert. AR 80-113. In a decision dated June

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29, 2015, the ALJ again found Mr. Strong could perform his past relevant work, and therefore

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that he was not disabled. AR 18-29. Mr. Strong’s request for review was denied by the Appeals

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Council on September 9, 2016, making the ALJ’s decision the Commissioner’s final decision.

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The plaintiff then appealed in a complaint filed with this Court on November 2, 2016. AR 1; Dkt.

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3; 20 C.F.R. § 404.981, § 416.1481.

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Mr. Strong seeks reversal of the ALJ’s decision and remand for further administrative

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proceedings, arguing the ALJ erred: (1) in discounting Mr. Strong’s credibility concerning his

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symptoms and limitations; and (2) in finding Mr. Strong could perform his past relevant work.

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For the reasons set forth below, the Court agrees the ALJ erred in finding Mr. Strong could

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perform his past relevant work, and therefore finds this matter should be remanded for further

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administrative proceedings on that basis.

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DISCUSSION
The Commissioner’s determination that a claimant is not disabled must be upheld if the

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“proper legal standards” have been applied, and the “substantial evidence in the record as a

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whole supports” that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986);

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see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v.

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 2

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Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991). “A decision supported by substantial

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evidence nevertheless will be set aside if the proper legal standards were not applied in weighing

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the evidence and making the decision.” Carr, 772 F.Supp. at 525 (citing Brawner v. Sec’y of

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Health and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is “such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at

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1193.

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The Commissioner’s findings will be upheld “if supported by inferences reasonably
drawn from the record.” Batson, 359 F.3d at 1193. Substantial evidence requires the Court to

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determine whether the Commissioner’s determination is “supported by more than a scintilla of

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evidence, although less than a preponderance of the evidence is required.” Sorenson v.

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Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence admits of more than one

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rational interpretation,” that decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). That is, “[w]here there is conflicting evidence sufficient to support either outcome,”

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the Court “must affirm the decision actually made.” Allen, 749 F.2d at 579 (quoting Rhinehart v.

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Finch, 438 F.2d 920, 921 (9th Cir. 1971)).

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The Commissioner employs a five-step “sequential evaluation process” to determine

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whether a claimant is disabled. 20 C.F.R. § 404.1520, § 416.920. If the claimant is found

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disabled or not disabled at any particular step thereof, the disability determination is made at that

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step, and the sequential evaluation process ends. See id. At step four of that process, the ALJ

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found Mr. Strong could perform his past relevant work as a house officer and an airline security

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representative, both as Mr. Strong actually performed them and as they are generally performed.

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AR 28. Mr. Strong argues the ALJ erred in doing so. The Court agrees.

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 3

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Although Mr. Strong worked as a cruise ship screener, the vocational expert classified

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that past job as airline security representative. AR 106, 324. Airline security representative is

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described by the Dictionary of Occupational Titles (DOT) as light work, which involves lifting

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no more than 20 pounds occasionally, and 10 pounds frequently. DOT 372.667-010, 1991 WL

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673094; 20 C.F.R. § 404.1567(b); 20 C.F.R. § 416.967(b). The ALJ also limited Mr. Strong to

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light work. AR 23.

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Mr. Strong reported that as a cruise ship screener that he “would have to pick up luggage

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at hotels and carry” it, and that the heaviest weight he lifted was 50 pounds. AR 322, 324. Mr.

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Strong further reported that he had to place and carry baggage for passengers, and place and lift

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it on and off of x-ray devices. AR 322. In addition, Mr. Strong reported he spent a total of three

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to four hours per day handling, grabbing, or grasping large objects. AR 322, 324. Thus, it is not

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at all clear that lifting more than 20 pounds “was not a regular customary part of his job” as the

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ALJ found. AR 28.

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The Commissioner argues the ALJ may have erred in finding Mr. Strong performed the

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job of cruise ship screener as it was actually performed, but Mr. Strong could still perform that

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job as it is generally performed. As Mr. Strong points out, though, the vocational expert testified

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that although he had not seen the lifting of luggage typically being done in performing the airline

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security representative, he had been on a cruise and had seen screeners lifting luggage. AR 109.

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Thus, from the vocational expert’s personal experience, he had seen that cruise screener job done

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differently. Id.

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Accordingly, the vocational expert appears to have at least acknowledged the possibility

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that the job of cruise ship screener may typically involve the lifting of luggage, which certainly

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can weigh far more than 20 pounds as Mr. Strong reported. Id. While this is far from conclusive

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 4

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testimony, at the very least there appears to be a conflict between the DOT and the vocational

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expert’s testimony. The ALJ has the affirmative responsibility to ask the vocational expert about

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possible conflicts between his or her testimony and information in the DOT. Haddock v. Apfel,

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196 F.3d 1084, 1091 (10th Cir. 1999); SSR 00-4p, 2000 WL 1898704, at *1. The ALJ also must

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explain how the discrepancy or conflict was resolved. SSR 00-4p, 2000 WL 189704, at *4. The

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ALJ did not do so here, and that was error.

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Mr. Strong also reported working in a hotel security position, which required him to pick

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up luggage at hotels. AR 321. He reported that the heaviest weight he lifted was 50 pounds, and

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that he handled, grabbed, or grasped big objects up to four hours each day. Id. Mr. Strong further

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testified that he was lifting luggage in this position, and that he was making beds at night and

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assisting with hotel guests. AR 103. The vocational expert at the second hearing testified that this

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job was a house officer job, which the DOT classifies as light work. AR 106; DOT 376.367-018,

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1991 WL 673173.

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Here too, having to lift luggage that weigh up to 50 pounds is odds with what light work

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entails. Further, even if it is unclear as to exactly how much of the time Mr. Strong was required

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to lift that amount, again at the very least there is an apparent conflict between the record and the

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vocational expert’s testimony, not to mention the DOT. The ALJ’s failure to address and resolve

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that conflict was error as well.

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The vocational expert also testified that making beds and carrying luggage are not duties

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of the house officer position, and thus would constitute a separate job. AR 109. As the Ninth

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Circuit has pointed out, “[i]t is error for the ALJ to classify an occupation ‘according to the least

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demanding function.’” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir.

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2008) (quoting Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1995)). Again, it is unclear

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 5

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how much time Mr. Strong spent on these tasks, although as just noted he reported spending up

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to half the day handling, grabbing, or grasping big objects. If it is the case that Mr. Strong spent

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at least that much time carrying luggage or performing other tasks beyond that required by the

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house officer position, it is likely that the ALJ erred in finding he could perform this past work as

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well. Stacy v. Colvin, 825 F.3d 563, 570 (9th Cir. 2016) (pointing out that in past cases where the

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least demanding aspect of a claimant’s past job is something that is performed less than half the

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time, it has found the ALJ erred in equating it with a full time job).

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The Court may remand “either for additional evidence and findings or to award benefits.”
Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court reverses an

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ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for

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additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)

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(citations omitted). Thus, it is “the unusual case in which it is clear from the record that the

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claimant is unable to perform gainful employment in the national economy,” that “remand for an

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immediate award of benefits is appropriate.” Id.

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Benefits may be awarded where “the record has been fully developed” and “further

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administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v.

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Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

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(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the
claimant’s] evidence, (2) there are no outstanding issues that must be resolved
before a determination of disability can be made, and (3) it is clear from the
record that the ALJ would be required to find the claimant disabled were such
evidence credited.

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Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002).

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Because issues still remain in regard to Mr. Strong’s ability to perform his past relevant work,

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remand for further consideration of that issue is warranted.

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 6

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CONCLUSION
Based on the foregoing discussion, the Court finds the ALJ improperly determined Mr.

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Strong to be not disabled. Accordingly, the Commissioner’s decision to deny benefits hereby is

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REVERSED and this matter is REMANDED for further administrative proceedings.

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Dated this 22nd day of June, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER REVERSING AND REMANDING DEFENDANT’S
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