Little v. Berryhill

Filing 12

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

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 COLLEEN LITTLE, NO. C17-0143RSL 9 Plaintiff, 10 11 12 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Defendant. 13 14 Plaintiff Colleen Little appeals the final decision of the Commissioner of the Social 15 Security Administration (“Commissioner”), which denied her applications for Disability 16 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 17 of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an 18 administrative law judge (“ALJ”). For the reasons set forth below, the Commissioner’s 19 decision is hereby REVERSED and REMANDED. 20 I. 21 FACTS AND PROCEDURAL HISTORY Plaintiff is a 59-year-old woman with a bachelor’s degree. Administrative Record 22 (“AR”) at 191, 214. Her past work experience was as a realtor, social media trainer, campaign 23 // 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 1 1 executive, and bus driver. AR at 215. Plaintiff was last gainfully employed in June of 2014. 2 AR at 213. 3 Plaintiff protectively filed applications for DIB and SSI on June 21, 2014. AR at 18. 4 Plaintiff asserted that she was disabled due to atrial flutter, episodic memory loss, panic 5 attacks, insomnia, anxiety, bipolar disorder, attention deficit hyperactivity disorder, depression, 6 and hypertension. AR at 213. 7 The Commissioner denied plaintiff’s claims initially and on reconsideration. AR at 18. 8 Plaintiff requested a hearing, which took place on March 29, 2016. Id. On July 14, 2016, the 9 ALJ issued a decision finding that plaintiff was not disabled based on her finding that plaintiff 10 could perform specific jobs existing in significant numbers in the national economy. AR at 11 18-29. Plaintiff’s request for review by the Appeals Council was denied on July 15, 2016 (AR 12 at 1-6), making the ALJ’s ruling the “final decision” of the Commissioner as that term is 13 defined by 42 U.S.C. § 405(g). On February 2, 2017, plaintiff timely filed the present action 14 challenging the Commissioner’s decision. Dkt. No. 3. 15 16 II. STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 17 social security benefits when the ALJ’s findings are based on legal error or not supported by 18 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th 19 Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is 20 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 21 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 22 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 2 1 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a 2 whole, it may neither reweigh the evidence nor substitute its judgment for that of the 3 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 4 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 5 must be upheld. Id. III. 6 EVALUATING DISABILITY As the claimant, Ms. Little bears the burden of proving that she is disabled within the 7 8 meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 9 1999). The Act defines disability as the “inability to engage in any substantial gainful activity” 10 due to a physical or mental impairment which has lasted, or is expected to last, for a 11 continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A 12 claimant is disabled under the Act only if her impairments are of such severity that she is 13 unable to do her previous work, and cannot, considering her age, education, and work 14 experience, engage in any other substantial gainful activity existing in the national economy. 15 42 U.S.C. § 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). 16 The Commissioner has established a five-step sequential evaluation process for 17 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. 18 §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. 19 At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at 20 any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step 21 one asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. 22 // 23 // 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 3 1 §§ 404.1520(b), 416.920(b). 1 If she is, disability benefits are denied. If she is not, the 2 Commissioner proceeds to step two. At step two, the claimant must establish that she has one 3 or more medically severe impairments, or combination of impairments, that limit her physical 4 or mental ability to do basic work activities. If the claimant does not have such impairments, 5 she is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe 6 impairment, the Commissioner moves to step three to determine whether the impairment meets 7 or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 8 416.920(d). A claimant whose impairment meets or equals one of the listings for the required 9 12-month duration requirement is disabled. Id. 10 When the claimant’s impairment neither meets nor equals one of the impairments listed 11 in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s 12 residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the 13 Commissioner evaluates the physical and mental demands of the claimant’s past relevant work 14 to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If 15 the claimant is able to perform her past relevant work, she is not disabled; if the opposite is 16 true, then the burden shifts to the Commissioner at step five to show that the claimant can 17 perform other work that exists in significant numbers in the national economy, taking into 18 consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R. 19 §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the 20 claimant is unable to perform other work, then the claimant is found disabled and benefits may 21 be awarded. 22 23 1 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. 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 4 IV. 1 DECISION BELOW 2 On July 14, 2016, the ALJ issued a decision finding the following: 3 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). 4. 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). 7. 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)). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 5 1 AR at 18-29. V. 2 The issue on appeal is whether the ALJ erred in making step-five findings that were 3 4 ISSUE ON APPEAL inconsistent with the RFC. Dkt. 9 at 1. VI. 5 DISCUSSION Plaintiff argues that the ALJ erred by identifying jobs at step five that plaintiff could 6 7 perform that were inconsistent with the RFC assessed by the ALJ. See Dkt. 9 at 3-6. The Court 8 agrees. 9 If a claimant cannot perform her past relevant work, the ALJ must show at step five of 10 the sequential evaluation process that there are a significant number of jobs in the national 11 economy that the claimant is able to perform. See Tackett, 180 F.3d at 1098-99; 20 C.F.R. 12 §§ 404.1520(d), (e), 416.920(d), (e). The ALJ can show this through the testimony of a 13 vocational expert. See Tackett, 180 F.3d at 1100-1101; Osenbrock v. Apfel, 240 F.3d 1157, 14 1162 (9th Cir. 2000). An ALJ’s findings will be upheld if the weight of the medical evidence 15 supports the hypothetical posed by the ALJ to the vocational expert. See Martinez v. Heckler, 16 807 F.2d 771, 774 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 17 The vocational expert’s testimony therefore must be reliable in light of the medical evidence to 18 qualify as substantial evidence. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 19 The ALJ has the affirmative responsibility to ask the vocational expert about possible 20 conflicts between her testimony and information in the Dictionary of Occupational Titles 21 (“DOT”), and its companion publication, the Selected Characteristics of Occupations (“SCO”). 22 See Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704. Before relying on evidence 23 obtained from a vocational expert to support a finding of not disabled, the ALJ is required to 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 6 1 elicit a reasonable explanation for any discrepancy with the DOT. See id. at *1. The ALJ also 2 must explain in her decision how the discrepancy or conflict was resolved. See id. at *4. To be 3 characterized as a discrepancy, however, the conflict must be obvious or apparent, meaning 4 that the vocational expert’s testimony must be at odds with the DOT’s listing of duties that are 5 essential, integral, or expected for performing that job. See Gutierrez v. Colvin, 844 F.3d 804, 6 808 (9th Cir. 2016). 7 Here, the ALJ found at step five that plaintiff could perform the jobs of hand packager 8 and hospital cleaner. AR at 28. The RFC stated that plaintiff must avoid “concentrated” 9 exposure to pulmonary irritants and humidity. See AR at 22. The vocational expert testified 10 that plaintiff could perform the jobs of hand packager and hospital cleaner with the RFC 11 assessed. See AR at 73-74. The vocational expert stated that his testimony was consistent with 12 the DOT and SCO. See AR at 74. The job of hand packager requires “frequent” exposure to 13 atmospheric conditions. See SCO, available at, at 316, last 14 visited 08/07/2017 (“HAND PACKAGER,” DOT 920.587-018). The job of hospital cleaner 15 requires “frequent” exposure to wet or humid conditions. See id. at 132 (“HOSPITAL 16 CLEANER,” DOT 323.687-010). Plaintiff argues that the ALJ did not properly explain this 17 apparent conflict. See Dkt. 9 at 3-6. The Commissioner argues that that the alleged conflict is 18 not obvious or apparent, so the ALJ was entitled to rely on the vocational expert’s statement 19 that his testimony was consistent with the DOT in finding that plaintiff was not disabled. See 20 Dkt. 10 at 4-6. 21 It is unclear whether the use of “concentrated exposure” in the RFC refers to the 22 frequency of the exposure, the duration of the exposure, or the strength of the pulmonary 23 irritants or humidity. However, the Court infers that, without further explanation, an employee 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 7 1 who cannot tolerate concentrated exposure to pulmonary irritants or humidity cannot 2 reasonably work jobs that require frequent exposure to atmospheric conditions or wet or humid 3 conditions. The Commissioner argues that a common-sense reading of the job description 4 would indicate that a hand packager would only be exposed to atmospheric conditions that 5 affect the skin, rather than pulmonary irritants. See Dkt. 10 at 5-6. However, the job 6 description includes cleaning packaging containers, filling containers with product, and gluing 7 containers closed, which could reasonably involve pulmonary irritatants. See DOT 920.587- 8 018. Similarly, the Commissioner argues that a hospital cleaner would be exposed to wet 9 conditions but not humid conditions. See Dkt. 10 at 4-5. However, the job description includes 10 cleaning tubs and showers, mopping, and washing walls and windows, which could reasonably 11 create humid conditions. See DOT 323.687-010. Therefore, the Court cannot definitively infer 12 that vocational expert’s testimony did not conflict with the expected duties of these jobs. The 13 ALJ erred by failing to explain this apparent conflict. 14 Generally, when the Court reverses an ALJ’s decision, “the proper course, except in 15 rare circumstances, is to remand to the agency for additional investigation or explanation.” 16 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Plaintiff requests 17 that the matter be remanded for further administrative proceedings. See Dkt. 9 at 6. 18 Accordingly, the Court remands this case only for further testimony on whether plaintiff can 19 perform the jobs listed by the ALJ or other jobs existing in significant numbers in the national 20 economy under the RFC assessed. 21 22 23 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 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 8 1 2 this matter is REMANDED for further proceedings not inconsistent with this Order. Dated this 23rd day of August, 2017. 3 A 4 Robert S. Lasnik United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 9

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