Little v. Berryhill

Filing 12

ORDER Reversing and Remanding for Further Administrative Proceedings, signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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COLLEEN LITTLE,

NO. C17-0143RSL

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Plaintiff,

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

ORDER REVERSING AND
REMANDING FOR FURTHER
ADMINISTRATIVE
PROCEEDINGS

Defendant.

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Plaintiff Colleen Little appeals the final decision of the Commissioner of the Social

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Security Administration (“Commissioner”), which denied her applications for Disability

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Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI

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of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an

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administrative law judge (“ALJ”). For the reasons set forth below, the Commissioner’s

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decision is hereby REVERSED and REMANDED.

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I.

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FACTS AND PROCEDURAL HISTORY

Plaintiff is a 59-year-old woman with a bachelor’s degree. Administrative Record

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(“AR”) at 191, 214. Her past work experience was as a realtor, social media trainer, campaign

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executive, and bus driver. AR at 215. Plaintiff was last gainfully employed in June of 2014.

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AR at 213.

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Plaintiff protectively filed applications for DIB and SSI on June 21, 2014. AR at 18.

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Plaintiff asserted that she was disabled due to atrial flutter, episodic memory loss, panic

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attacks, insomnia, anxiety, bipolar disorder, attention deficit hyperactivity disorder, depression,

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and hypertension. AR at 213.

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The Commissioner denied plaintiff’s claims initially and on reconsideration. AR at 18.

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Plaintiff requested a hearing, which took place on March 29, 2016. Id. On July 14, 2016, the

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ALJ issued a decision finding that plaintiff was not disabled based on her finding that plaintiff

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could perform specific jobs existing in significant numbers in the national economy. AR at

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18-29. Plaintiff’s request for review by the Appeals Council was denied on July 15, 2016 (AR

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at 1-6), making the ALJ’s ruling the “final decision” of the Commissioner as that term is

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defined by 42 U.S.C. § 405(g). On February 2, 2017, plaintiff timely filed the present action

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challenging the Commissioner’s decision. Dkt. No. 3.

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II.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of

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social security benefits when the ALJ’s findings are based on legal error or not supported by

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substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th

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Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is

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such 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); Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in

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medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala,

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53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a

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whole, it may neither reweigh the evidence nor substitute its judgment for that of the

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Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is

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susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that

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must be upheld. Id.
III.

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EVALUATING DISABILITY

As the claimant, Ms. Little bears the burden of proving that she is disabled within the

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meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.

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1999). The Act defines disability as the “inability to engage in any substantial gainful activity”

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due to a physical or mental impairment which has lasted, or is expected to last, for a

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continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A

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claimant is disabled under the Act only if her impairments are of such severity that she is

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unable to do her previous work, and cannot, considering her age, education, and work

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experience, engage in any other substantial gainful activity existing in the national economy.

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42 U.S.C. § 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

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The Commissioner has established a five-step sequential evaluation process for

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determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R.

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§§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four.

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At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at

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any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step

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one asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R.

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§§ 404.1520(b), 416.920(b). 1 If she is, disability benefits are denied. If she is not, the

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Commissioner proceeds to step two. At step two, the claimant must establish that she has one

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or more medically severe impairments, or combination of impairments, that limit her physical

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or mental ability to do basic work activities. If the claimant does not have such impairments,

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she is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe

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impairment, the Commissioner moves to step three to determine whether the impairment meets

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or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d),

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416.920(d). A claimant whose impairment meets or equals one of the listings for the required

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12-month duration requirement is disabled. Id.

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When the claimant’s impairment neither meets nor equals one of the impairments listed

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in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s

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residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the

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Commissioner evaluates the physical and mental demands of the claimant’s past relevant work

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to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If

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the claimant is able to perform her past relevant work, she is not disabled; if the opposite is

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true, then the burden shifts to the Commissioner at step five to show that the claimant can

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perform other work that exists in significant numbers in the national economy, taking into

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consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R.

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§§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the

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claimant is unable to perform other work, then the claimant is found disabled and benefits may

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be awarded.

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Substantial gainful activity is work activity that is both substantial, i.e., involves
significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R.
§ 404.1572.

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IV.

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DECISION BELOW

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On July 14, 2016, the ALJ issued a decision finding the following:

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1.

The claimant has not engaged in substantial gainful activity since June
19, 2014, the alleged onset date (20 C.F.R. §§ 404.1571 et seq. and
416.971 et seq.).

2.

The claimant has the following severe impairments: heart
disease/disorder, hypertension, bipolar disorder, and attention deficit
disorder (20 C.F.R. §§ 404.1520(c) and 416.920(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals 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, 404.1526, 416.920(d), 416.925 and
416.926).

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The claimant has the RFC to perform medium work as defined in 20
C.F.R. §§ 404.1567(c) and 416.967(c) except she can lift or carry 50
pounds occasionally and 25 pounds frequently; she can sit, stand, and
walk for six hours each in an eight-hour workday; she can perform all
postural movements except she can occasionally climb ladders, ropes,
and scaffolds; she must avoid concentrated exposure to extreme heat,
humidity, pulmonary irritants, and hazards (such as heights and
dangerous moving machinery); she has sufficient concentration to
understand, remember, and carry out complex and detailed tasks; she
can maintain concentration, persistence, and pace in two- hour
increments throughout an eight-hour workday; she can have
superficial and occasional contact with the general public (superficial
means she can refer the public to others to resolve their
demands/requests but does not need to resolve those demands/requests
herself); and she can adapt to workplace changes, as may be required
for complex and detailed tasks.

5.

The claimant is unable to perform any past relevant work (20 C.F.R.
§§ 404.1565 and 416.965).

6.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
C.F.R. §§ 404.1560(c), 404.1566, 416.960(c), and 416.966).

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The claimant has not been under a disability, as defined in the Social
Security Act, from June 19, 2014, through the date of the decision (20
C.F.R. §§ 404.1520(g) and 416.920(g)).

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AR at 18-29.
V.

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The issue on appeal is whether the ALJ erred in making step-five findings that were

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ISSUE ON APPEAL

inconsistent with the RFC. Dkt. 9 at 1.
VI.

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DISCUSSION

Plaintiff argues that the ALJ erred by identifying jobs at step five that plaintiff could

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perform that were inconsistent with the RFC assessed by the ALJ. See Dkt. 9 at 3-6. The Court

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agrees.

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If a claimant cannot perform her past relevant work, the ALJ must show at step five of

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the sequential evaluation process that there are a significant number of jobs in the national

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economy that the claimant is able to perform. See Tackett, 180 F.3d at 1098-99; 20 C.F.R.

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§§ 404.1520(d), (e), 416.920(d), (e). The ALJ can show this through the testimony of a

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vocational expert. See Tackett, 180 F.3d at 1100-1101; Osenbrock v. Apfel, 240 F.3d 1157,

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1162 (9th Cir. 2000). An ALJ’s findings will be upheld if the weight of the medical evidence

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supports the hypothetical posed by the ALJ to the vocational expert. See Martinez v. Heckler,

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807 F.2d 771, 774 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).

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The vocational expert’s testimony therefore must be reliable in light of the medical evidence to

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qualify as substantial evidence. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).

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The ALJ has the affirmative responsibility to ask the vocational expert about possible

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conflicts between her testimony and information in the Dictionary of Occupational Titles

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(“DOT”), and its companion publication, the Selected Characteristics of Occupations (“SCO”).

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See Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704. Before relying on evidence

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obtained from a vocational expert to support a finding of not disabled, the ALJ is required to

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elicit a reasonable explanation for any discrepancy with the DOT. See id. at *1. The ALJ also

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must explain in her decision how the discrepancy or conflict was resolved. See id. at *4. To be

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characterized as a discrepancy, however, the conflict must be obvious or apparent, meaning

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that the vocational expert’s testimony must be at odds with the DOT’s listing of duties that are

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essential, integral, or expected for performing that job. See Gutierrez v. Colvin, 844 F.3d 804,

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808 (9th Cir. 2016).

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Here, the ALJ found at step five that plaintiff could perform the jobs of hand packager

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and hospital cleaner. AR at 28. The RFC stated that plaintiff must avoid “concentrated”

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exposure to pulmonary irritants and humidity. See AR at 22. The vocational expert testified

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that plaintiff could perform the jobs of hand packager and hospital cleaner with the RFC

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assessed. See AR at 73-74. The vocational expert stated that his testimony was consistent with

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the DOT and SCO. See AR at 74. The job of hand packager requires “frequent” exposure to

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atmospheric conditions. See SCO, available at http://www.nosscr.org/sco/sco.pdf, at 316, last

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visited 08/07/2017 (“HAND PACKAGER,” DOT 920.587-018). The job of hospital cleaner

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requires “frequent” exposure to wet or humid conditions. See id. at 132 (“HOSPITAL

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CLEANER,” DOT 323.687-010). Plaintiff argues that the ALJ did not properly explain this

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apparent conflict. See Dkt. 9 at 3-6. The Commissioner argues that that the alleged conflict is

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not obvious or apparent, so the ALJ was entitled to rely on the vocational expert’s statement

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that his testimony was consistent with the DOT in finding that plaintiff was not disabled. See

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Dkt. 10 at 4-6.

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It is unclear whether the use of “concentrated exposure” in the RFC refers to the

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frequency of the exposure, the duration of the exposure, or the strength of the pulmonary

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irritants or humidity. However, the Court infers that, without further explanation, an employee

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who cannot tolerate concentrated exposure to pulmonary irritants or humidity cannot

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reasonably work jobs that require frequent exposure to atmospheric conditions or wet or humid

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conditions. The Commissioner argues that a common-sense reading of the job description

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would indicate that a hand packager would only be exposed to atmospheric conditions that

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affect the skin, rather than pulmonary irritants. See Dkt. 10 at 5-6. However, the job

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description includes cleaning packaging containers, filling containers with product, and gluing

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containers closed, which could reasonably involve pulmonary irritatants. See DOT 920.587-

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018. Similarly, the Commissioner argues that a hospital cleaner would be exposed to wet

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conditions but not humid conditions. See Dkt. 10 at 4-5. However, the job description includes

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cleaning tubs and showers, mopping, and washing walls and windows, which could reasonably

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create humid conditions. See DOT 323.687-010. Therefore, the Court cannot definitively infer

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that vocational expert’s testimony did not conflict with the expected duties of these jobs. The

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ALJ erred by failing to explain this apparent conflict.

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Generally, when the Court reverses an ALJ’s decision, “the proper course, except in

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rare circumstances, is to remand to the agency for additional investigation or explanation.”

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Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Plaintiff requests

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that the matter be remanded for further administrative proceedings. See Dkt. 9 at 6.

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Accordingly, the Court remands this case only for further testimony on whether plaintiff can

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perform the jobs listed by the ALJ or other jobs existing in significant numbers in the national

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economy under the RFC assessed.

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VII.

CONCLUSION

For the foregoing reasons, the Court finds that the ALJ erred by failing to follow the
Court’s order and develop the record. The decision of the Commissioner is REVERSED, and

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this matter is REMANDED for further proceedings not inconsistent with this Order.

Dated this 23rd day of August, 2017.

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A

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Robert S. Lasnik
United States District Judge

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