Opinion
Civil No.: 6:17-cv-0397-JE
10-03-2018
PAULA B., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Merrill Schneider Schneider Kerr & Robichaux P.O. Box 14490 Portland, OR 97293 Attorney for Plaintiff, Billy J. Williams, U.S. Attorney Janice Hebert, Asst. U.S. Attorney 1000 S.W. 3rd Avenue, Suite 600 Portland, OR 97204 Heather L. Griffith Special Asst. U.S. Attorney Office of the General Counsel Social Security Administration 701 5th Avenue, Suite 2900 M/S 221 A Seattle, WA 98104-7075 Attorneys for Defendant.
FINDINGS AND RECOMMENDATION Merrill Schneider
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff, Billy J. Williams, U.S. Attorney
Janice Hebert, Asst. U.S. Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204 Heather L. Griffith
Special Asst. U.S. Attorney
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221 A
Seattle, WA 98104-7075
Attorneys for Defendant. JELDERKS, Magistrate Judge:
Plaintiff, Paula B., brings this action pursuant to 42 U.S.C. §405(g) seeking judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying her applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). Plaintiff seeks an Order remanding the action to the Social Security Administration ("Agency") for an award of benefits or, in the alternative, remanding for further proceedings.
For the reasons set out below, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.
Procedural Background
Plaintiff was previously denied DIB on June 30, 2005. She protectively filed a new application for DIB on August 31, 2012, alleging disability beginning March 3, 2004. After her claim was denied initially and upon reconsideration, Plaintiff timely requested an administrative hearing.
On March 7, 2014, a hearing was held before Administrative Law Judge ("ALJ") Glenn G. Meyers. Plaintiff appeared unrepresented by counsel. Based on evidence presented at that hearing, the ALJ determined that a supplemental hearing was necessary, which was held on May 8, 2015. Plaintiff was represented by counsel, and Carolyn Kay Wise, a vocational expert ("VE"), testified at the second hearing.
In a decision dated June 23, 2015, ALJ Meyers found Plaintiff was not disabled within the meaning of the Act.
On January 17, 2017, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. In the present action, Plaintiff challenges that decision.
Background
Plaintiff was born in 1957 and was 52 years old on the date she was last insured for DIB. Tr. 117. She completed high school and has past relevant work experience as a bindery worker and technician. Tr. 102, 363. Plaintiff alleges disability due to depression, anxiety, arthritis, left-hand derangement, "status post lumbar hemilaminectomy," and bipolar disorder. Tr. 25, 235.
Disability Analysis
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520. The five-step sequential inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial gainful activity ("SGA"). A claimant engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under step two. 20 C.F.R. § 404.1520(b).
Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have such an impairment is not disabled. If the claimant has a severe impairment, the Commissioner proceeds to evaluate the claimant's case under step three. 20 C.F.R. § 404.1520(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment "meets or equals" one of the presumptively disabling impairments listed in the Agency regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairment does not meet or equal an impairment listed in the regulations, the Commissioner's evaluation of the claimant's case proceeds under step four. 20 C.F.R. § 404.1520(d).
Step Four. The Commissioner determines whether the claimant is able to perform relevant work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the Commissioner's evaluation of the claimant's case proceeds under step five. 20 C.F.R. § 404.1520(f).
Step Five. The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds that the claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that the claimant is able to do. The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant can do, the claimant is not disabled. If the Commissioner does not meet this burden, the claimant is disabled. 20 C.F.R. § 404.1520(g)(1).
At steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show that the claimant can perform jobs that exist in significant numbers in the national economy. Id.
ALJ's Decision
The ALJ began his decision by noting that Plaintiff's date last insured for DIB was December 31, 2009. Tr. 22. He further noted that Plaintiff was previously denied DIB on June 30, 2005. Id. Therefore, in order to be eligible for DIB, Plaintiff was required to establish that she became disabled between July 1, 2005 and December 31, 2009 (the "relevant period"). Id.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity during the relevant period. Tr. 24.
At step two, the ALJ found Plaintiff had the following severe impairments: left-hand derangement; status post lumbar hemilaminectomy; diabetes mellitus; depressive disorder; and anxiety disorder. Tr. 25. The ALJ further determined that Plaintiff's "left arm and shoulder injury" and arthritis were non-severe impairments. Id.
At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment as set out in the Listings, 20 C.F.R. Part 404, Subpart P, App. 1. Id.
The ALJ next assessed Plaintiff's residual functional capacity ("RFC"). He found that Plaintiff retained the capacity to perform light work, except she could "perform unskilled, repetitive, routine work . . . occasionally use her dominant left hand to handle, finger, and feel . . . occasionally squat, stoop, crouch, crawl, kneel, and climb ramps and stairs . . . twist from side to side, but no further . . . [and could not] climb ropes, ladders, or scaffolds. Id.
At step four, the ALJ found Plaintiff was unable to perform her past work as a bindery worker and technician. Tr. 29.
At step five, the ALJ found jobs existing in significant numbers in the national economy that Plaintiff could perform, including routing clerk helper and stock checker. Tr. 30-31. Accordingly, the ALJ determined that Plaintiff had not been under a disability within the meaning of the Act. Tr. 31.
Standard of Review
A claimant is disabled if he or she is unable "to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and of establishing that a claimant can perform "other work" at step five of the disability analysis process. Tackett, 180 F.3d at 1098.
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. The Court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, however, even if "the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039-40.
Discussion
Plaintiff contends the ALJ erred by failing to properly evaluate: (1) Plaintiff's subjective symptom testimony; (2) the lay witness testimony of Plaintiff's husband; and (3) whether the jobs identified at step five were consistent with Plaintiff's RFC.
I. Plaintiff's Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Garrison v. Colvin, 759 F.3d 995, 1014-15 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). "The clear and convincing standard is the most demanding required in Social Security cases." Id. at 1015 (citations omitted). Therefore, an ALJ "may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
When evaluating a claimant's subjective symptom testimony, an ALJ must consider the entire record, including the claimant's activities of daily living ("ADLs"); the location, duration, frequency, and intensity of the claimant's pain or other symptoms; medications taken and their effectiveness; treatment other than medication; measures other than treatment used to relieve pain or other symptoms; and "other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms." 20 C.F.R. § 404.1529(c); SSR 96-7p; SSR 16-3p. Findings that are premised exclusively on a claimant's apparent character for truthfulness, rather than the listed factors, may constitute error. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017); see Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (general credibility findings are insufficient) (citations omitted). If substantial evidence supports the ALJ's determination, it may be upheld even if some of the reasons cited by the ALJ are erroneous. Carmickle v. Comm'r of Sec. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008).
At the hearings, Plaintiff testified that she underwent surgery and skin grafts after severely injuring her left hand on the job in 1999. Tr. 84. She was able to return to work with tool and equipment modifications. Id. She otherwise compensated by using her left arm to cradle and hold things in place. Tr. 95. She further alleged that she would miss up to one day of work per month because she had a tendency to "either bolt" or "blow up" when dealing with other people. Tr. 67. Plaintiff was treated for depression and anxiety for over 20 years. Tr. 54. She was afraid of crowds and did not drive often because of her anxiety. Tr. 56. Plaintiff was able to work despite her psychological impairments with use of psychotropic medication. Tr. 97. Her anxiety and depression, however, "completely bottomed-out" after she was terminated from her job in 2004. Tr. 96. Plaintiff felt "amazing" after undergoing back surgery in June 2004, but she indicated at the hearing that she intended to follow up with her primary care physician because her back recently began feeling stiff. Tr. 93-94. Plaintiff did not "really remember" how she felt physically during the relevant time period, but recalled having left-hand pain "off and on" and back pain "sometimes." Tr. 98.
Plaintiff averred that she could have worked between July 2005 and December 2009 if she had a job that permitted her to "get up when [she] needed to move because of the stiffness" in her back. Tr. 99. Plaintiff vaguely asserted that whether she was "capable or not" of using her left hand depended on the task. Id. When asked for examples, Plaintiff stated that she was able to fish using a left-handed reel and padded glove, and drive with her left hand while using the right hand as needed "for safety." Id. When questioned by the ALJ about a disabled hunting and fishing permit she applied for in 2006, Plaintiff stated that she had not gone fishing or hunting since 1993. Tr. 84. She later testified that she did go fishing and hunting with her husband after she was injured in 1999, but stopped after "a couple years" because she was "not interested in the fishing or hunting." Tr. 99-100. She then stated that she could not even recall if she in fact went hunting or fishing around the time she applied for a license in 2006, and guessed that she might have sought the license so she could accompany her husband while hunting or to obtain additional game harvest tags. Tr. 100. Plaintiff concluded her hearing testimony by alleging she had problems with her memory. Id.
In a function report submitted to the Agency in September 2012, Plaintiff detailed that she felt suicidal when having "manic lows," had unpredictable mood swings due to bipolar disorder, and dropped things often and had problems standing due to arthritis. Tr. 245. She stated that her left hand was painful, "very sensitive," and she could not make a fist with it. Id. She was unable to make a fist with her right hand as well due to arthritis and a "twisted" thumb. Id. She cleaned her house for two to three hours a week, picked up after her husband, did dishes, read books, and played computer games. Tr. 246, 248. Plaintiff stated in one section of her function report that she could not cook, but in another section she stated that she could follow instructions "pretty good" when she tried to cook. Compare Tr. 246, with Tr. 250. Similarly, she stated she was unable go shopping due to panic attacks, but later alleged that she was able to shop for household items when needed. Compare Tr. 247, with Tr. 248.
Plaintiff further detailed that she required reminders from her husband to take showers, take her medications, and do household chores. Tr. 247-48. She was able to drive and go out alone depending on how she felt that day, but being around too many people made her "panic or feel lost." Tr. 248. Plaintiff's mind wandered occasionally, causing her to forget what she was doing or lose track of something she put down. Tr. 249. She had problems getting along with authority figures, family members, and neighbors. Tr. 250. She quit bowling in 2000 because it was too painful. Id. She could lift ten pounds for short periods of time and walk for a mile before needing to stop and rest. Id. Finally, Plaintiff alleged she thought she "had PTSD when [she] lost [her] job," handled stress and changes in routine poorly, and became upset for no discernible reason. Tr. 251.
The ALJ gave several reasons for finding Plaintiff's symptom testimony "only partially credible." Tr. 27. Regarding Plaintiff's allegations of back pain, the ALJ noted that Plaintiff underwent a "left microhemilaminectomy" for the excision of a herniated disk at L4-5 in June 2004. Tr. 590. By December 2004, Dr. Patricia Wheeler noted that Plaintiff's back surgery was successful, although Plaintiff was feeling a "different pain" than before. Tr. 599. However, at her next appointment in March 2005, Plaintiff did not complain of any issues with her back. Tr. 603. As the ALJ noted, despite Plaintiff's allegations of severe back pain, "there we[re] no treatment records related to [Plaintiff]'s back between July 1, 2005 and December 31, 2009." Tr. 28. Nonetheless, the ALJ found Plaintiff's allegations of back pain credible to some extent because "one would expect lasting changes to stem from such a surgery." Tr. 28. However, to the extent the ALJ did not credit Plaintiff's testimony, he did not err because an "ALJ may properly rely on unexplained or inadequately explained failure to seek treatment" in assessing a claimant's pain allegations. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)) (internal quotation marks omitted).
The ALJ next found Plaintiff's alleged limitations stemming from her left-hand impairment and back pain were undermined by her attempt to obtain a hunting and fishing license in 2006. Tr. 27, 632. An ALJ may discount a claimant's testimony if it is inconsistent with the claimant's ADLs, or if the claimant's participation in everyday activities indicates capacities that are transferrable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Molina, 674 F.3d at 1112-13. A claimant, however, need not be utterly incapacitated to receive disability benefits, and sporadic completion of minimal activities is insufficient to support a negative credibility finding. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also Reddick, 157 F.3d at 722 (requiring the level of activity to be inconsistent with the claimant's alleged limitations to be relevant to his or her credibility).
Plaintiff argues the ALJ's reasoning falls short of the clear and convincing standard because her "attempt to get a disabled persons hunting license was evidence that she could not hunt or fish without assistance." Pl.'s Br. 11 (doc. 12). Specifically, Plaintiff notes Dr. Wheeler documented that Plaintiff was unable to hold a fishing rod or rifle with her left hand due to her past injury. Tr. 632-33. Plaintiff also contends that her attempts to hunt and fish after injuring her left hand were unsuccessful because she "could not do that." Pl.'s Reply 5 (doc. 19) (citing Tr. 99). Plaintiff's argument is unpersuasive for several reasons. First, Dr. Wheeler's noted limitation is inconsistent with Plaintiff's testimony that she was in fact able to use a fishing rod with a left-handed reel and a padded glove. Tr. 99. Second, Plaintiff mischaracterizes her testimony. Although Plaintiff stated that she stopped hunting and fishing because she "could not do that," she later clarified that unlike her husband, she simply was "not interested in the fishing or hunting." Tr. 99-100. Third, Plaintiff's ability to hunt and fish, even with assistance, indicates that she was capable of performing tasks requiring the use of her left hand. See Orn, 495 F.3d at 639. Finally, the ALJ found Plaintiff's alleged limitations somewhat credible, as evinced by the RFC limiting Plaintiff to only occasional use of her left hand. Tr. 26. Accordingly, the ALJ did not err.
Notably, Plaintiff does not assert what specific limitation the ALJ should have found beyond that already included in the RFC. To be sure, if Plaintiff is arguing that her left-hand impairment precludes any use of her left hand, Plaintiff's attempted hunting and fishing activities do not support such a contention. Accordingly, even if the ALJ erred in relying on Plaintiff's attempts at hunting and fishing, which he did not, that error would have been harmless. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009) (the party appealing the ALJ's decision bears the burden of establishing harm); see also Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (claimant bears the burden of proof at steps one through four).
The ALJ further found Plaintiff's described activities of daily living were "not limited to the extent one would expect, given [Plaintiff's] complaints of disabling symptoms and limitations." Tr. 28. Specifically, the ALJ noted that Plaintiff reported she could put dishes in the dishwasher, read when her concentration allowed, clean up after her husband, accompany her husband places, drive, care for her cat, vacuum, wipe down dirty things, lift up to ten pounds, and walk up to one mile. Id. For the first time in her Reply, Plaintiff asserts the ALJ erred because Plaintiff's reported activities "did not rise to the level of activities that are transferrable to a work setting." Pl.'s Reply 6 (doc. 19). The Court, however, will "review only issues which are argued specifically and distinctly in a party's opening brief." Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (citation omitted). Moreover, the Court "will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim." Id. Absent any meaningful argument to the contrary, the Court finds the ALJ's reliance on Plaintiff's daily activities was a clear and convincing reason, supported by substantial evidence, for not crediting the full extent of Plaintiff's symptom testimony.
The ALJ next found Plaintiff's testimony about her mental health symptoms less than entirely credible because Plaintiff testified that "she had a long-standing history of depression and anxiety," but was able to work for many years despite those impairments. Tr. 27. An ALJ may properly discount a claimant's symptom testimony concerning impairments that have "remained constant for a number of years," but "ha[ve] not prevented her from working over that time." Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (citation omitted). Plaintiff argues the ALJ erred because her "mental state continued to deteriorate after her last employment" in 2004. Pl.'s Br. 13 (doc. 12). However, Plaintiff's treatment records dated well after her date last insured do not support that contention. Pl.'s Br. 13 (doc. 12); see also Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1461 & n. 4 (9th Cir. 1995) (observing that a "long line of cases" has established that a claimant must establish disability as of the date last insured, and that "any deterioration in her condition subsequent to that time is, of course, irrelevant"). During the relevant period, Plaintiff sought only intermittent treatment for her psychological impairments and was prescribed various medications over that time. Tr. 28, see, e.g., Tr. 456, 459, 462, 465. By May 2009, Dr. Wheeler noted that Plaintiff's depression was stable and kept her on the same dose of Cymbalta and Xanax. Tr. 492. As the Commissioner notes, "no provider opined that [Plaintiff] was unable to work during the relevant period." Def.'s Br. 6 (doc. 18). Accordingly, the ALJ's finding was clear, convincing, and supported by substantial evidence.
In discussing Plaintiff's left-hand impairment, the ALJ noted that after undergoing surgery and physical therapy, Plaintiff's treatment providers detailed that she was capable of grasping and pulling heavy objects weighing 50 pounds, should exercise care when climbing ladders, had decreased grip strength on the left side compared to the right side, and was capable of performing most activities of daily living and her work tasks. Tr. 27, 560, 834. The ALJ found that although those opinions were issued before the relevant period, "one would expect that the injury would only improve and symptoms would decrease after the impairment was treated." Tr. 27.
In arguing for her preferred interpretation of the record, Plaintiff notes that in the months after her injury, Dr. Edwin Austin opined that Plaintiff would likely have "some permanent disability" and would be prone to "possible early arthritis due to the severe crush injury." Tr. 517, 524. Plaintiff next notes that she complained of left-hand pain to Dr. Wheeler in March 2005 and April 2007. Tr. 450, 466. In 2014, Plaintiff was noted to have decreased grip strength, and Dr. Laura Rung opined that Plaintiff "had a marked reduction in the ability to use the hand for fine manipulation." Tr. 800, 834. Thus, argues Plaintiff, "[t]he ALJ's expectation that [P]laintiff's hand condition would only continue to [im]prove was disproven by substantial evidence through the relevant period of consideration and thereafter." Pl.'s Br. 12 (doc. 12). The two medical records—dated five years after Plaintiff's date last insured—are of little probative value as to the condition of Plaintiff's left-hand impairment during the relevant period. Flaten, 44 F.3d at 1461 & n. 4. Moreover, Plaintiff's two complaints of pain in her left hand during the relevant period do not demonstrate that she was more impaired than the ALJ found warranted by limiting her to only occasional use of her left hand in the RFC. Although Dr. Erwin opined that Plaintiff could be prone to arthritis and stiffness at a later time, the record does not support Plaintiff's contention that such problems manifested and rendered her disabled prior to her date last insured. Because the ALJ's findings regarding Plaintiff's symptom testimony were based on a rational reading of substantial record evidence, the Court should uphold the ALJ's determination.
II. Lay Witness Testimony
Lay testimony describing a claimant's apparent symptoms and activities is competent evidence which must be considered by an ALJ. Molina, 675 F.3d at 1114 (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1995)). The ALJ must provide "germane" reasons for rejecting such evidence. Dodrill, 12 F.3d at 919.
The ALJ gave little weight to the third-party function report provided by Plaintiff's husband, Charles B., because his statements "merely corroborate[d] the testimony of the claimant regarding the severity and nature of h[er] symptoms." Tr. 29. An ALJ may discredit lay witness testimony when such testimony is substantially similar to a claimant's properly discredited symptom testimony. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Plaintiff argues the ALJ's "reason is not germane, because it is not supported by a comparison of the two reports." Pl.'s Br. 14 (doc. 12). In so stating, however, Plaintiff fails to argue with any specificity what differences there are between her testimony and her husband's function report to necessitate such a comparison. Nor does Plaintiff identify what allegations made by her husband were erroneously discredited by the ALJ. In fact, Plaintiff even concedes that "the two reports identify similar limitations." Id. The Court finds there is no meaningful difference between Plaintiff's function report and her husband's third-party function report. Accordingly, the ALJ's reason for discrediting the lay witness testimony was sufficiently germane and supported by substantial evidence. The Court should uphold the ALJ's determination.
III. Step Five
At step five of the sequential analysis, the burden of proof rests with the Commissioner to establish whether other work exists in the national economy that an individual of the claimant's age, education, work experience, and RFC is able to perform. See 20 C.F.R. § 404.1520(g); Tackett, 180 F.3d at 1099. In making this finding, an ALJ relies "primarily" on the Dictionary of Occupational Titles ("DOT") for information about the requirements of other work in the national economy. SSR 00-04p, at *2. An ALJ may also rely on a VE as a source of occupational evidence. Id. In posing hypothetical questions to the VE to determine if other work exists that a claimant can perform, an ALJ must include all of the claimant's functional limitations which are supported by substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Furthermore, an ALJ has an affirmative duty to resolve any obvious or apparent conflicts between the DOT and VE testimony. See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007); Lamear v. Berryhill, 365 F.3d 1201, 1205 (9th Cir. 2017); SSR 00-04p, at *4. However, "[n]either the DOT nor the VE . . . automatically 'trumps' when there is a conflict," and the ALJ "must resolve the conflict by determining if the explanation given by the VE . . . is reasonable and provides a basis for relying on the VE . . . rather than on the DOT." SSR 00-4p, at *2.
This includes the DOT's companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles. See, U.S. Dep't of Labor, SCO (U.S. Emp. And Training Admin., 1993).
When asked by Plaintiff's attorney whether Plaintiff's left-hand limitation would prevent her from keeping up with the production requirements of the representative occupations, the VE responded that "routing clerks are looking at documents[,] checking schedules and so forth," and "the stock checker has similar duties." Tr. 104. The VE stated that the jobs she identified were not categorized as "steady production" because "production quotas [we]re not existent in th[o]se two jobs." Id. She stated that she took "into consideration the more occasional use of the dominant hand." Id. The ALJ found there was no conflict between the VE's testimony and the DOT. Tr. 31.
Plaintiff correctly notes that the representative occupations identified by the VE require frequent handling and fingering per the DOT, which is inconsistent with Plaintiff's RFC limiting her to only occasional handling and fingering with the left hand. Compare DOT 222.687-022 (routing clerk), available at 1991 WL 672133, and DOT 299.667-014 (stock checker), available at 1991 WL 672642, with Tr. 26. Thus, argues Plaintiff, the ALJ's step five finding is unsupported by substantial evidence because the ALJ failed to resolve the conflict between the DOT and the VE's testimony. The Court agrees. The ALJ erred in the first instance by entirely failing to inquire of the VE whether her testimony was consistent with the DOT. See SSR 00-4p, at *4; Massachi, 486 F.3d at 1152-53; Tr. 100-104. Nonetheless, such a "procedural error" can be harmless if the VE provides "sufficient support for her conclusion so as to justify any potential conflicts." Massachi, 486 F.3d at 1154 n. 19.
The Commissioner argues there was no conflict for the ALJ to resolve because in order "for a difference between an expert's testimony and the [DOT]'s listings to be fairly characterized as a conflict, it must be obvious or apparent [and] at odds with the [DOT]'s listing of job requirements that are essential, integral, or expected." Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). The Commissioner asserts "[t]here is nothing in the DOT to indicate that the occupations required frequent handling and fingering that could not be done with Plaintiff's right hand." Def.'s Br. 8-9 (doc. 18). Moreover, the Commissioner contends that the VE's assertion that she considered the occasional use of the left hand in identifying the occupations was a reasonable explanation for the ALJ to rely on in finding there was no conflict. Id. at 9. The Commissioner's argument is unpersuasive for several reasons.
As noted above, the Ninth Circuit in Gutierrez held that for a difference between the VE's testimony and the DOT to be fairly characterized as a conflict, the difference must be "obvious or apparent," which means the conflicting aspect of a job is "essential, integral, or expected." Gutierrez, 844 F.3d at 808. The court concluded that the ALJ did not err by failing to ask the VE to resolve why a limitation for overhead reaching did not conflict with a cashier job that required frequent reaching. Id. The court reasoned that overhead reaching was not an "essential, integral, or expected" part of the cashier job as defined in the DOT and thus there was no "obvious or apparent" conflict. Id. In so finding, the Ninth Circuit considered it common knowledge that a cashier job did not involve reaching overhead, as compared to a stock clerk job, which would require overhead reaching. Id. (stating "anyone who's made a trip to the corner grocery store knows that while a clerk stocking shelves has to reach overhead frequently, the typical cashier never has to"). However, in a subsequent case with facts nearly identical to those here, the Ninth Circuit noted that "'[t]he requirement for an ALJ to ask follow up questions is fact-dependent,' and the more obscure the job, the less likely common experience will dictate the result. To avoid unnecessary appeals, an ALJ should ordinarily ask the VE to explain in some detail why there is no conflict between the DOT and the applicant's RFC." Lamear, 865 F.3d at 1205 (quoting Gutierrez, 844 F.3d at 808) (internal cite omitted).
The Court finds any similarity between Gutierrez and the case at bar starts and ends with the fact that in both cases the ALJ failed to ask the VE if there was a conflict. Contrary to Gutierrez, however, the Court "cannot say that, based on common experience, it is likely and foreseeable that [a routing clerk or stock checker] with limitations on h[er] ability to 'handle, finger, and feel with the left hand' could perform h[er] duties." Id. In fact, "[t]he DOT's lengthy descriptions for these jobs suggest that it is likely and foreseeable that using both hands would be necessary to perform 'essential, integral, or expected' tasks in an acceptable and efficient manner." Id. For example, a routing clerk "[s]orts bundles, boxes, or lots of articles for delivery . . . [p]laces or stacks articles in bins . . . [and] may sort sacks of mail." DOT 222.687-022, available at 1991 WL 672133. A stock checker "[g]athers and counts garments . . . refastens belts, buttons, and zippers on garments . . . [and] may sew on missing and loose buttons, hooks, and loops." DOT 299.667-014, available at 1991 WL 672642. Accordingly, the Commissioner's assertion that nothing in the DOT indicates Plaintiff could not complete those tasks with the use of only her right hand is unpersuasive.
Furthermore, the VE's testimony that she considered the more occasional use of the non-dominant hand was no explanation at all. Tr. 104. Indeed, the VE's response fell well short of the "reasonable explanation for the conflict" that an ALJ "must elicit . . . before relying on the VE . . . to support a determination or decision about whether the claimant is disabled." SSR 00-4p, at *2 (emphasis added). Instead, "[t]he VE's explanation[] for this testimony w[as] brief and, so far as the record reveals, involved uninformed guesswork about the nature of the specified occupations. Such speculative explanations are insufficient to reconcile the conflict." Coleman v. Astrue, 423 F. App'x 754, 756 (9th Cir. 2011) (citing Tommasetti, 533 F.3d at 1042). Even assuming for the sake of argument that the VE's explanation was sufficient, it is entirely unclear whether the ALJ actually relied on the VE's testimony to find there was no conflict. Tr. 30-31; Massachi, 486 F.3d at 1153 ("The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the Dictionary of Occupational Titles.").
Plaintiff's counsel inaccurately cites Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1008 (9th Cir. 2015), for the above quoted language. Pl.'s Br. 8 (doc. 12); Pl.'s Reply 3-4 (doc. 19). As cited herein, the Ninth Circuit stated this proposition in Coleman—not Rounds. Coleman, 423 F. App'x at 756.
Finally, the Lamear court rejected the Commissioner's argument "that the handling, fingering, and reaching requirements are unilateral since the DOT does not expressly state that they demand both hands." Lamear, 865 F.3d at 1206. The Ninth Circuit found "[t]hat argument assumes away the question of whether those requirements necessitate both hands." Id. Because this Court "cannot determine from this record, the DOT, or [its] common experience whether the jobs in question require both hands,"—a finding that is determinative of whether plaintiff was capable of performing the identified occupations—the ALJ's step-five finding was not supported by substantial evidence and constitutes harmful error. Id. Accordingly, the Court should "remand to the Commissioner so that the ALJ may hear further testimony from the VE and comply with SSR 00-4p." Pl.'s Reply 4 (doc. 19).
Because Plaintiff has only requested remand for further proceedings in regards to the ALJ's error at step five, the Court need not address Plaintiff's request for an immediate payment of benefits made in her previously discussed arguments. --------
Conclusion
For the reasons set forth above, the Commissioner's decision should be REVERSED and this action should be REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for further administrative proceedings consistent with this Findings and Recommendation.
Scheduling Order
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due October 17, 2018. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 3rd day of October, 2018.
/s/ John Jelderks
John Jelderks
U.S. Magistrate Judge