Hockett v. Colvin

Filing 18

ORDER Affirming the Commissioner's Decision by Judge Benjamin H. Settle. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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8 REBECCA A. HOCKETT,
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CASE NO. C16-05446 BHS

Plaintiff,

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ORDER AFFIRMING THE
COMMISSIONER’S DECISION

v.

11 CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
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Defendant.
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I. BASIC DATA
Type of Benefits Sought:
(X) Disability Insurance
( ) Supplemental Security Income
Plaintiff’s:
Sex: Female
Age: 61

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Principal Disabilities Alleged by Plaintiff: Sleep apnea, diabetes, high blood pressure,
22 stroke, and back, hip, and neck pain

ORDER - 1

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Principal Previous Work Experience: Receptionist, insurance specialist, and office clerk
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II. PROCEDURAL HISTORY—ADMINISTRATIVE
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Before ALJ Wayne N. Araki:
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Date of Hearing: April 16, 2015; hearing transcript AR 749-81
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Date of Decision: May 28, 2015
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Appears in Record at: AR 668-95
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Summary of Decision:
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The claimant did not engage in substantial gainful activity during the
period from her alleged onset date of disability, January 15, 2009,
through her date last insured, June 30, 2012. Through the date last
insured, the claimant had the following severe impairments: diabetes
mellitus, back disorder, sleep apnea, obesity, and organic mental
disorder. Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.

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Through the date last insured, the claimant had the residual
functional capacity (“RFC”) to perform sedentary work as defined in
20 C.F.R. § 404.1567(a). She could lift and carry ten pounds
occasionally and frequently. She could sit for two-hour intervals.
With brief stretch breaks and normal workplace breaks, she could sit
for a total of eight hours per eight-hour workday. She could stand
and/or walk in five to 15-minute intervals, for a total of two hours
per eight­hour workday. She could occasionally balance, stoop,
kneel, crouch, and climb ramps and stairs. She could not crawl or
climb ladders, ropes, or scaffolds. She could remember, understand,
and carry out simple and detailed tasks, with a specific vocational
preparation (“SVP”) of four or less.

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Through the date last insured, the claimant was capable of
performing past relevant work as a receptionist and a billing clerk.
Therefore, the claimant was not disabled during the period between
her alleged onset date and her date last insured.

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ORDER - 2

1 Before Appeals Council:
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Date of Decision: April 11, 2016

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Appears in Record at: AR 650-54

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Summary of Decision: Declined review

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III. PROCEDURAL HISTORY—THIS COURT

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Jurisdiction based upon: 42 U.S.C. § 405(g)

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Brief on Merits Submitted by (X) Plaintiff (X) Commissioner

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IV. STANDARD OF REVIEW

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

10 denial of Social Security benefits when the ALJ’s findings are based on legal error or not
11 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
12 1211, 1214 n.1 (9th Cir. 2005). “Substantial evidence” is more than a scintilla, less than
13 a preponderance, and is such relevant evidence as a reasonable mind might accept as
14 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
15 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for
16 determining credibility, resolving conflicts in medical testimony, and resolving any other
17 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
18 While the Court is required to examine the record as a whole, it may neither weigh the
19 evidence nor substitute its judgment on factual determinations for that of the ALJ. See
20 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is
21 susceptible to more than one rational interpretation, one of which supports the ALJ’s
22 decision, the ALJ’s conclusion must be upheld.” Id.

ORDER - 3

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V. EVALUATING DISABILITY
The claimant, Rebecca A. Hockett (“Hockett”), bears the burden of proving that

3 she is disabled within the meaning of the Social Security Act (“Act”). Meanel v. Apfel,
4 172 F.3d 1111, 1113 (9th Cir. 1999). The Act defines disability as the “inability to
5 engage in any substantial gainful activity” due to a physical or mental impairment which
6 has lasted, or is expected to last, for a continuous period of not less than twelve months.
7 42 U.S.C. §§ 423(d)(1)(A), 1382c(3)(A). A claimant is disabled under the Act only if her
8 impairments are of such severity that she is unable to do her previous work, and cannot,
9 considering her age, education, and work experience, engage in any other substantial
10 gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also
11 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

13 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R.
14 § 416.920. The claimant bears the burden of proof during steps one through four.
15 Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five,
16 the burden shifts to the Commissioner. Id.
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VI. ISSUE ON APPEAL
1.

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ORDER - 4

Is the ALJ’s step-four finding that Hockett could perform past work free of
legal error and supported by substantial evidence?

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VII. DISCUSSION

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Hockett appeals the Commissioner’s decision denying her disability benefits,

3 arguing that the ALJ erred in finding at step four that she could perform past relevant
4 work. Dkt. 10. The Court finds no harmful error.
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The claimant has the burden to show that she is unable to perform her past

6 relevant work. See Tackett, 180 F.3d at 1098-99. “Although the burden of proof lies
7 with the claimant at step four, the ALJ still has a duty to make the requisite factual
8 findings to support his conclusion.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir.
9 2001). “This requires specific findings” on the part of the ALJ “as to the claimant’s
10 residual functional capacity, the physical and mental demands of the past relevant work,
11 and the relation of the residual functional capacity to the past work.” Id.
12 A.

Detailed Tasks

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First, Hockett argues that the hypothetical question upon which the ALJ relied in

14 making his step-four finding was incomplete because it omitted a limitation to detailed
15 tasks. See Dkt. 10 at 4-6. The Court finds no harmful error.
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The ALJ assessed Hockett with an RFC that included, among several other

17 limitations, a limitation to simple and detailed tasks. See AR 678. However, in finding at
18 step four that Hockett could perform past relevant work as a receptionist and as a billing
19 clerk, the ALJ relied on vocational expert testimony in response to a hypothetical
20 question that omitted any reference to detailed tasks. See AR 686-87, 778. The
21 Commissioner asserts that even if the ALJ was in error by omitting the word “detailed,”
22 any error was harmless. See Dkt. 16 at 4-7.

ORDER - 5

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A plaintiff has the burden of establishing that an error resulted in actual harm.

2 See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party
3 claiming error to demonstrate not only the error, but also that it affected his ‘substantial
4 rights,’ which is to say, not merely his procedural rights.”) (citing Shinseki v. Sanders,
5 556 U.S. 396, 407-09 (2009)). The Commissioner argues that Hockett’s substantial
6 rights were not affected because an ability to perform detailed tasks is not inconsistent
7 with the requirements of a receptionist. See Dkt. 16 at 4-6.
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According to the Dictionary of Occupational Titles (“DOT”), the job of

9 receptionist involves reasoning development level 3, described as follows: “Apply
10 commonsense understanding to carry out instructions furnished in written, oral, or
11 diagrammatic form. Deal with problems involving several concrete variables in or from
12 standardized situations.” DOT, App. C(III), available at 1991 WL 688702. Hockett
13 argues that detailed tasks are not consistent with the plain language of reasoning level 3.
14 See Dkt. 10 at 6. Hockett notes that the requirements for reasoning level 2 include the
15 ability to “carry out detailed but uninvolved written or oral instructions.” See id. (citing
16 DOT, App. C(III). However, that the description of reasoning level 2 uses the term
17 “detailed” is not proof that reasoning level 3 is inconsistent with or requires more than
18 the ability to perform detailed tasks. The plain language of reasoning level 3 describes,
19 though in different words, the ability to perform detailed tasks. The Court finds no
20 inconsistency between Hockett’s RFC and the requirements of the job of receptionist.
21 Therefore, Hockett does not meet her burden of proving that the ALJ’s error of omitting
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ORDER - 6

1 the limitation to detailed tasks from the hypothetical question to the vocational expert
2 affected her substantial rights.
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Hockett also argues that this Court finding that the ability to perform detailed tasks

4 is not inconsistent with the requirements of a receptionist would constitute an improper
5 acceptance of a post-hoc rationalization. See Dkt. 17 at 2. However, harmful error
6 analysis is appropriate and in fact required of this Court. See Molina v. Astrue, 674 F.3d
7 1104, 1115, 1118 (9th Cir. 2012). A plaintiff fails to meet her burden of proof that an
8 error is harmful when an omitted limitation does not prevent her from performing the
9 jobs identified by the vocational expert and ALJ. See Stubbs-Danielson v. Astrue, 539
10 F.3d 1169, 1174 (9th Cir. 2008). Here, Hockett failed to meet her burden of proving that
11 she is unable to perform her past relevant work.
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Stretch Breaks

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Hockett next argues that the vocational expert’s testimony that Hockett could

14 perform the job of receptionist with stretch breaks as needed was in conflict with the
15 DOT and that the ALJ erred by failing to obtain a reasonable explanation for that conflict.
16 See Dkt. 10 at 6-11. The Court finds no harmful error.
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The ALJ assessed Hockett with an RFC that limited Hockett to sitting for two-

18 hour intervals for a total of eight hours in an eight-hour workday with normal breaks and
19 the ability to take additional brief stretch breaks. See AR 678. The ALJ asked the
20 vocational expert if a person with these limitations could perform the job of receptionist,
21 and the vocational expert replied that a person could. See AR 778, 780.
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ORDER - 7

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An ALJ must ask the vocational expert “if the evidence he or she has provided

2 conflicts with information provided in the DOT,” and if an apparent conflict exists, the
3 ALJ must “obtain a reasonable explanation.” Social Security Ruling (“SSR”) 00-4p,
4 available at 2000 WL 1898704, at *4. Here, the ALJ failed to ask about any apparent
5 conflicts after the vocational expert clarified his testimony regarding the ability to take
6 stretch breaks as needed. See AR 780-81. However, failure to adhere to that procedure is
7 harmless where no conflict exists between the vocational expert’s testimony and the
8 DOT. See Massachi v. Astrue, 486 F.3d 1149, 1154 n. 19 (9th Cir. 2007). The DOT is
9 silent regarding whether the job of receptionist allows stretch breaks as needed. See DOT
10 #237.367-038, available at 1991 WL 672192. No conflict exists, then, between the DOT
11 and the vocational expert’s testimony; the vocational expert’s testimony simply went into
12 more detail than the DOT. Therefore, Hockett has not met her burden of proving that the
13 ALJ’s error in failing to ask about apparent conflicts affected her substantial rights. See
14 Ludwig, 681 F.3d at 1054.
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Composite Job Rule

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Hockett also argues that the ALJ erred by finding that Hockett could perform the

17 job of receptionist as generally performed because SSR 82-61 forbids such a finding
18 where a claimant’s past relevant work is a composite of two or more separate jobs. See
19 Dkt. 10 at 13-14. The Court disagrees.
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Hockett argues that she worked only 60 percent of the workday as a receptionist,

21 so her job was a composite job. See id. at 14. However, Hockett actually testified, and
22 the ALJ found, that the majority of her work as a receptionist involved taking incoming

ORDER - 8

1 phone calls and a minority of her work as a receptionist involved data entry, drafting
2 reports, faxing, copying, and distributing files. See AR 687, 703-04. All of those duties
3 fall under the DOT’s description of receptionist work. See DOT #237.367-038.
4 Therefore, Hockett’s work was not a composite job, and SSR 82-61 did not apply. The
5 ALJ did not err in finding that Hockett could perform her past work as a receptionist as
6 generally performed.
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VIII. ORDER

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Therefore, it is hereby ORDERED that the Commissioner’s final decision is

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Dated this 19th day of January, 2017.

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 9