Opinion
For Jeffrey S. Briggs, Plaintiff: Steven G Rosales, LEAD ATTORNEY, Law Office of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Tova D Wolking, LEAD ATTORNEY, U.S. Attorney's Office, Social Security Administration, San Francisco, CA.
MEMORANDUM OPINION AND ORDER
ROZELLA A. OLIVER, UNITED STATES MAGISTRATE JUDGE.
I .
INTRODUCTION
Jeffrey Scott Briggs (" Plaintiff") challenges the Commissioner's denial of his protectively filed applications for a period of disability and disability insurance benefits and supplemental security income following an administrative law judge's (" ALJ") decision that Plaintiff was not under a disability within the meaning of the Social Security Act. Administrative Record (" AR") 24, 35. For the reasons below, the decision of the Commissioner is REVERSED and this action is REMANDED for further proceedings consistent with this Order.
II .
BACKGROUND
On October 2, 2007, Plaintiff protectively applied for a period of disability and disability insurance benefits and supplemental security income. AR 24. Both applications alleged disability beginning January 18, 2006 (his alleged onset date (" AOD")) due to HIV and related complications. Id. Plaintiff's claims were denied initially on January 15, 2008, and upon reconsideration on October 9, 2008. Id. Plaintiff thereafter filed a written request for hearing, which was held on August 9, 2010. Id. Represented by counsel, Plaintiff testified at that hearing, along with an impartial medical expert and impartial vocational expert (" VE"). Id.
On September 22, 2010, the ALJ found Plaintiff had the residual functional capacity (" RFC") to meet the demands of his past work as an executive assistant in property management, as actually performed and as it is generally performed in the national economy, and was thus not disabled. Id. On November 19, 2010, Plaintiff filed a request for review of the ALJ's decision. Id. The Appeals Council granted his request and, on September 19, 2012, vacated the ALJ's decision and remanded the matter for further administrative proceedings. Id.
Pursuant to the Appeals Council's directive, a supplemental hearing was held on April 10, 2013. Id. at 25. Plaintiff testified at that supplemental hearing (as did a new medical expert and VE) and was, counsel. Id. On November 20, 2012, however, the ALJ again found that Plaintiff was not disabled pursuant to the Social Security Act. AR 35. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. AR 5-7. Plaintiff filed the instant action in this Court on December 17, 2014. Dkt. No. 1.
The ALJ followed a five-step sequential evaluation process to assess whether Plaintiff was disabled. 20 C.F.R. § § 404.1520, 416.920; see also Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the AOD. AR 27. At step two, the ALJ found the medical evidence established that Plaintiff had the following severe impairments: HIV; " depression with major depressive symptoms; anxiety disorder, not otherwise specified; and psychological reaction to physical condition." Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments " that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." Id. at 27-28.
At step four, the ALJ found that Plaintiff possessed the RFC to " perform light work ... except: he must be allowed to change position briefly for one to three minutes every hour; can climb stairs occasionally; can occasionally bend, balance, stoop, kneel, crouch or crawl; cannot climb ladders, ropes or scaffolds; cannot work at unprotected heights; is limited to moderately complex tasks in a non-public work setting; and cannot perform high production, quota, or rapid assembly line work." Id. at 28. Based on his RFC, the ALJ found that Plaintiff was not able to perform his past relevant work. Id. at 33. At step five, however, the ALJ found that there were " jobs that exist in significant numbers in the national economy that" Plaintiff could perform, and thus determined that Plaintiff was not disabled. Id. at 33, 35.
III .
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. A court must affirm an ALJ's findings of fact if they are supported by substantial evidence, and if the proper legal standards were applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). Substantial evidence is more than a mere scintilla but less than a preponderance. Id. at 459. It is relevant evidence that a reasonable person might accept as adequate to support a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Inferences drawn from the record may serve as substantial evidence, but only when reasonably drawn. See Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
To determine whether substantial evidence supports a finding, the Court must consider the record as a whole, weighing evidence that supports and detracts from the ALJ's conclusion. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). " 'Where evidence is susceptible to more than one rational interpretation, ' the ALJ's decision should be upheld." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). If evidence can reasonably support either affirming or reversing the ALJ's finding, the reviewing court may not substitute its judgment for that of the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The Court may review only the reasons stated in the ALJ's decision, and may not affirm on a ground on which the ALJ did not rely. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the Commissioner's decision based on harmless error, which exists only when it is " clear from the record that an ALJ's error was 'inconsequential to the ... nondisability determination.'" Robbins, 466 F.3d at 885 (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)).
IV .
DISCUSSION
Plaintiff contends that the ALJ erred at step five of the sequential evaluation process because he did not make appropriate inquiries into the VE's testimony. See Memorandum in Support of Complaint (" Pl. Memo.") at 5. Specifically, Plaintiff contends that, as defined by the Dictionary of Occupational Titles (" DOT"), the two jobs identified by the VE ( i.e., mail clerk and office helper, see AR 93) as jobs Plaintiff could perform were inconsistent with the RFC assessment, particularly, the requirement that he " be allowed to change position briefly for one to three minutes every hour[.]" Id. at 28; Pl. Memo. at 5.
ALJ's routinely rely on the DOT in evaluating whether the claimant can perform other work in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); see also 20 C.F.R. § § 404.1566(d)(1), 416.966(d)(1) (DOT is source of reliable job information). The DOT is the rebuttable presumptive authority on job classification. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
At step five, the Commissioner must demonstrate that a claimant can perform other work existing in significant numbers in the national economy. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). The Commissioner can meet that burden by VE testimony or " by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." Id. However, an ALJ may not rely on a VE's testimony as to specific job requirements unless he has asked whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). If it does, the ALJ must " determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational Titles." Id. at 1153 (emphasis in original).
Here, the ALJ presented the VE with a hypothetical person sharing the same general RFC as Plaintiff, but did not ask the VE if his testimony conflicted with the DOT. AR 92-96. In her decision, the ALJ states that she determined that the VE's testimony was consistent with the information contained in the DOT. Id. at 34. But that pronouncement does not satisfy SSR 00-4p, which states " that the [ALJ] ' will ask' the vocational expert 'if the evidence he or she has provided' is consistent with the [DOT] and obtain a reasonable explanation for any apparent conflict." Massachi, 486 F.3d at 1152-53. Thus, the ALJ had an affirmative responsibility to ask about any possible conflict between the VE's testimony and DOT descriptions, and erred by not doing so. SSR 00-4p, Id. at *4. That notwithstanding, remand is not necessary if the error was harmless, i.e., if no conflict existed or if the VE provided enough evidence to support his conclusion. Massachi, 486 F.3d at 1154 n.19.
" The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted).
Here, as noted above, the VE identified two jobs Plaintiff could perform with his RFC limitations, including the limitation that Plaintiff " [m]ust be able to change position briefly one to three minutes every hour[.]" AR 92; see also Pl. Memo. at 5 (" Pertinent to the issue is the ALJ's finding that [Plaintiff] must alternate positions one to three minutes every hour."). The first job is mail clerk. DOT No. 209.687-026, available at http://www.oalj.dol.gov/libdot.htm. The second is officer helper. DOT No. 239.567-010, available at http://www.oalj.dol.gov/libdot.htm.
Both parties agree that the DOT is silent as to the " pertinent" limitation here. Pl. Memo. at 6 (" The DOT does not discuss the availability of a sit/stand option.") (citation omitted); Memorandum in Support of Defendant's Answer (" Def. Memo.) at 6 (" Plaintiff is correct that the DOT does not speak directly to a 'sit-stand option.'") (emphasis in original); see also Strain v. Colvin, 2014 WL 2472312, at *2 (C.D. Cal. June 2, 2014) (DOT does not address sit/stand options). The parties disagree, however, as to the implication of that silence. Plaintiff argues " that where an expert opines on an issue about which the DOT is silent, a conflict exists[.]" Pl. Memo. at 7 (citing Valenzuela v. Astrue, 2009 WL 1537876, at *3 (N.D. Cal. June 2, 2009)). Defendant in turn argues that " there is no 'apparent unresolved conflict' between the ability to 'change position briefly for one to three minutes every hour' and the job duties of a mail clerk or office helper[.]" Def. Memo. at 7.
The Ninth Circuit has not addressed whether an apparent conflict arises when the DOT is silent as to a specific physical requirement. Colvin v. Colvin, 2015 WL 4366050, at *6 (C.D. Cal. July 16, 2015). District courts in the circuit are split on the issue. Compare Strain, 2014 WL 2472312, at *1 (no apparent conflict between the DOT and a sit/stand option), Gilmour v. Colvin, 2014 WL 3749458, at *8 (E.D. Cal. July 29, 2014) (same), McBride v. Comm'r of Soc. Sec., 2014 WL 788685, at *8 (E.D. Cal. Feb. 25, 2014) (same), Harvey v. Astrue, 2010 WL 2836817, at *14 (N.D. Cal. July 16, 2010) (same), with Lorigo v. Colvin, 2014 WL 1577317, at *11 (E.D. Cal. Apr. 18, 2014) (testimony encapsulating " sit/stand option automatically deviated from the DOT"), Valenzuela v. Astrue, 2009 WL 1537876, at *3 (N.D. Cal. June 2, 2009) (finding potential conflict between VE testimony and a sit/stand option; remanding because ALJ did not ask if testimony was consistent with DOT), Brown v. Astrue, 2012 WL 4092434, at *5-6 (E.D. Cal. Sept. 17, 2012) (same).
Defendant cites Hirschy v. Comm'r of Soc. Sec., 2012 WL 996527, at *11 (E.D. Cal. Mar. 23, 2012) (which found that because " the DOT does not address the issue of a sit/stand option ... there is no apparent conflict as to that limitation"), to support her position. However, Hirschy differs from this case in a key respect. In Hirschy, while the ALJ never asked the VE whether his testimony was consistent with the skills stated in the DOT for the positions identified, " the VE addressed the sit/stand option, effectively eliminating 80 percent of the available jobs for the position of cashier, and half of the available jobs for the position of mail clerk, but noting no significant erosion in available jobs for the position of office helper." Id. Given that, the court found that, " to the extent there is potential for conflict between the VE's testimony and the DOT, ... the VE's testimony [is] sufficient to account for any inconsistency." Id.; see also, e.g., Colvin, 2015 WL 4366050, at *5 (finding no " 'apparent' conflict when the DOT is silent about a particular mental or physical requirement[, ]" but noting that the VE testified that her opinion was consistent with the DOT); Gilmour, 2014 WL 3749458, at *8 (finding the " record demonstrate[d] the VE considered the effect of a stand/sit option at Step Five. Indeed, Plaintiff's limitation to a sit/stand option figured prominently in the VE's testimony and in the ALJ's decision[, ]" and earlier noting that " [t]he ALJ asked the VE if her testimony was consistent with the definitions in the DOT, and the VE affirmed that it was"); Herrera v. Colvin, 2014 WL 3572227, at *9 (C.D. Cal. July 21, 2014) (finding that " [w]ith respect to the jobs identified by the VE ..., the DOT is silent as to whether they can accommodate a sit/stand option[, ]" but that the VE supplemented the DOT by " stat[ing] she was 'contemplating sitting and standing at will, '" and " render[ing] an expert opinion on the lack of occupational erosion caused by the sit/stand option as to" two jobs identified as jobs the plaintiff could perform with his limitations).
Here, by contrast, the VE never directly addressed the limitation that Plaintiff must be able to change position briefly for one to three minutes every hour. Rather, after the ALJ described a hypothetical individual possessing the same general RFC as Plaintiff, the VE stated only that such an individual would not be able to perform Plaintiff's past relevant work, but could perform the duties of a mail clerk or office helper. AR 92-93. In responding to the ALJ's second hypothetical, the VE noted a 50 percent erosion of the " other jobs" identified as jobs Plaintiff could perform with the modified RFC. Id. at 93-94. However, the ALJ's second hypothetical changed only the length of time that the hypothetical individual could sit, stand, and walk, not the requirement that they change positions one to three minutes every hour. Id. at 93. In fact, the DOT was not mentioned at all until Plaintiff's counsel questioned the VE regarding his data source for the number of jobs identified. AR 95. Thus, the facts of this case appear aligned with the cases where remand was ordered. See, e.g., Valenzuela, 2009 WL 1537876, at *1-4 (noting that the " ALJ did not explicitly inquire whether ... the VE's testimony conflicted with information provided in the DOT[; ]" finding that, since " the ALJ failed to comply with SSR 00-4p, in resolving a potential conflict, " the court could not determine if the ALJ properly relied on the VE's testimony or if substantial evidence supported the ALJ's step five finding; and remanding so that the ALJ could perform the appropriate SSR 00-4p, inquiries).
Upon questioning by the ALJ, the VE identified relevant DOT job codes, but did not mention the DOT by name until Plaintiff's counsel's questions. See AR 92-95.
In sum, the Court cannot determine on this record " whether the ALJ properly relied on [the VE's] testimony" or " whether substantial evidence supports the ALJ's step-five finding that [Plaintiff] could perform other work." Massachi, 486 F.3d at 1154. On remand, the ALJ should determine from VE testimony, with the requisite SSR 00-4p, inquiries, whether Plaintiff can fulfill the requirements of the identified jobs given his limitations; particularly, the limitation that he must be able to change position briefly for one to three minutes every hour.
V .
CONCLUSION
IT IS ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter for further proceedings consistent with this Order.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.
JUDGMENT OF REMAND
In accordance with the Memorandum Opinion and Order filed concurrently herewith, IT IS ORDERED AND ADJUDGED that the decision of the Commissioner of Social Security is reversed and the matter is remanded to the Commissioner for further proceedings consistent with the Memorandum Opinion.