Opinion
CV-23-00036-TUC-JAS (LCK)
02-20-2024
Joel Arthur Schluter, Plaintiff, v. Martin O'Malley,[1] Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins, United States Magistrate Judge
Plaintiff Joel Schluter filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before the Court are Plaintiff's Opening Brief, Defendant's Answering Brief, and Plaintiff's Reply. (Docs. 17, 23,24.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for award of benefits.
FACTUAL AND PROCEDURAL HISTORY
Schluter filed an initial application for Disability Insurance Benefits (DIB) in November 2006, which was denied. (Administrative Record (AR) 117, 189.) He filed a second application for DIB in November 2007, alleging disability from October 24, 2005. (AR 443.) Later, he amended his alleged onset date to November 30, 2006. (AR 37-39.) Schluter was born in May 1969, making him 36 years of age at the amended alleged onset date of his disability. (AR 227.) Schluter stopped working in 2005 when he was medically discharged from the Air Force. (AR 2849.) He worked as a military fueler from 1989 to 2000, and then served in administrative duty until discharge. (AR 2875.) Schluter's disability insurance status expired on December 31, 2010. (AR 125, 2813.)
The first three ALJ decisions on Schluter's claim (AR 123-32, 144-52, 166-75) were remanded by the Appeals Council for readjudication (AR 138-39, 159-61, 185-87). The Appeals Council denied review of a fourth ALJ decision finding Schluter not disabled. (AR 1, 15-25.) That decision was appealed to this Court, and the Court remanded the decision for further administrative proceedings. Schluter v. Berryhill, No. CV-18-0473-RM (JR), 2020 WL 1557773 (Mar. 10, 2020), report and recommendation adopted, 2020 WL 1552839 (D. Ariz. Apr. 1, 2020).
The administrative decision currently subject to review by this Court was issued by an ALJ on November 10, 2020 (AR 2810-34), after an October 2020 hearing (AR 28442884). The ALJ determined Plaintiff had severe impairments of degenerative disc disease, osteoarthritis, degenerative joint disease, chronic pain syndrome, obesity, and depression. (AR 2813.) The ALJ concluded Plaintiff had the Residual Functional Capacity (RFC) to perform sedentary work subject to the following limitations: standing or walking for 2 hours; sitting for 6 hours; never climbing ladders, crouching, crawling, or performing assembly line work; frequent lifting/carrying of less than 10 pounds; only occasional lifting/carrying of 10 pounds, climbing stairs, balancing, stooping, kneeling, and overhead bilateral reaching; only occasional exposure to temperature extremes, vibration, moving machinery, and unprotected heights; only occasional understanding, remembering, and carrying out of complex and detailed job instructions; and work must be low production demand. (AR 2814-15.) The ALJ concluded at Step Five, based on the testimony of a vocational expert (VE), that Schluter could perform work available in significant numbers in the national economy, such as addresser, order clerk, and operator. (AR 2833.) The Appeals Council denied review of the ALJ's decision. (AR 2748.)
In this decision, the ALJ adjudicated the period from October 24, 2005, Petitioner's original alleged onset date. (AR 2811 & n.1, 2813.) She did not use his amended onset date of November 30, 2006. (Id.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; and (2) has a severe physical or mental impairment; and (3) the impairment meets or equals the requirements of a listed impairment; or (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. § 404.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Schluter alleges the ALJ committed three errors: (1) failed to carry the Commissioner's burden to find him not disabled at Step Five; (2) failed to provide sufficient reasons for rejecting part of Dr. Cohen's medical opinion; and (3) failed to give great weight to the Veterans Administration's unemployability rating. Defendant concedes the ALJ erred in evaluating Dr. Cohen's medical opinion (Claim 2). (Doc. 23 at 4.) Specifically, the ALJ gave great weight to Dr. Cohen's opinion but, in the RFC, failed to account for the doctor's opinion that Schluter could perform only simple, repetitive tasks. (Id. at 4-5.) Schluter requests a remand for award of benefits based on Claims 1 and 3, while Defendant contends that remand for further proceedings is the proper remedy based on the Claim 2 error related to Dr. Cohen's opinion. The Court finds that this case is most expeditiously resolved on Claim 1.
Claim 1
Schluter argues that the ALJ failed to identify a significant number ofjobs he could perform in the national economy, thereby failing to carry the Commissioner's burden at Step Five. See Hoopai, 499 F.3d at 1074. Schluter contends that he was clearly disabled at Step Five on the existing record, and he requests a remand for benefits. (Doc. 17 at 13, 24.) Defendant did not respond to Schluter's arguments on Claim 1, failing to refute his contention that the ALJ erred in making her Step Five findings.
A person can be found disabled only if his impairments are so severe that he cannot perform any “substantial gainful work which exists in the national economy,” which “means work which exists in significant numbers . . . in several regions of the country.” 42 U.S.C. § 423(d)(2)(A); Beltran v. Astrue, 700 F.3d 386, 388-89 (9th Cir. 2012) (citing Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999)). At Step Five, the ALJ determined there were a significant number of jobs in the national economy that Schluter could perform based on his age, education, work experience, and RFC. In reliance on a VE's testimony, she identified three “representative” occupations: 20,000 jobs nationally as an Addresser (Dictionary of Occupational Titles (DOT) No. 209.587-010), 17,000 jobs nationally as an Order Clerk (DOT No. 209.587-014), and 18,000 jobs nationally as an Operator (DOT No. 239.687-014). The VE identified each of those jobs as sedentary, unskilled, and with a Specific Vocational Preparation (SVP) of 2. (AR 2833.) Schluter argues that none of these occupations represent a significant number of jobs in the national economy that he could perform.
In Claims 2 and 3, Schluter challenged the RFC found by the ALJ. For purposes of Claim 1, however, Schluter contends the ALJ erred at Step Five using the RFC set forth in her decision. (Doc. 17 at 8 n.5.)
First, the VE testified, and the ALJ found, that Schluter could perform the position of “Order Clerk,” identified as DOT No. 209.587-014. (AR 2833, 2877.) That DOT number, however, corresponds to the position of “Credit-card Clerk” and is an SVP of 3. The VE testified that Schluter could perform unskilled, SVP 2 jobs, not a job at an SVP level of 3. (AR 2876-77.) Because the job identified by DOT No. 209.587-014 is outside Schluter's capability based on the testimony of the VE, the ALJ could not rely upon it at Step Five.
It appears likely that the VE intended to identify DOT No. 209.567-014, which is labeled “Order Clerk, food and beverage” and has an assigned SVP of 2. However, because the VE did not testify to this, and the ALJ did not make such a finding, this Court cannot rely upon thatjob category to uphold the ALJ's finding at Step Five. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.") (citing Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). Also, it is unknown whether the VE believed there were 17,000 of those positions available nationally, or some other lesser or greater unspecified number. Additionally, the position of Order Clerk, DOT No. 209.567-014, is classified as a reasoning level of3, which requires the claimant to be able to carry out detailed and involved, or complex, instructions. See Luchsinger v. Kijakazi, No. 22-55599, 2023 WL 3735568, at *1 (9th Cir. May 31, 2023). That reasoning level conflicts with the RFC found by the ALJ, which limited Schluter to only occasionally carrying out complex instructions. (AR 2815.) Even if the Court were to evaluate the Order Clerk position that the VE may have intended to cite, there is not sufficient evidence Schluter could perform the job or how many such positions exist.
Next, the ALJ identified the positions of Addresser and Operator. “Addresser” is defined in the DOT as a person that “[a]ddresses by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items.” (Doc. 17, Ex. A at 2.) The DOT number identified for the operator position is for that of a “Tube Operator,” defined as a person that “[r]eceives and routes messages through pneumatic-tube system . . ..” (Id. at 9.) Common sense tells us that neither of these jobs exist in significant numbers in the national economy of the 21st century. The Commissioner has conceded that the occupation of “addresser clerk” is obsolete. Luchsinger v. Kijakazi, No. 22-55599, 2023 WL 3735568, at *1 (9th Cir. May 31, 2023); see also Jeffrey A. B. v. Saul, No. CV 20-00936-AS, 2021 WL 2826432, at *7 (C.D. Cal. July 7, 2021) (noting that the Commissioner acknowledged the position of Addresser “may have diminished over time.”). Other courts have recognized these jobs as obsolete and not existing in significant numbers in the national economy. See Milner v. Kijakazi, No. CV 20-1016 KK, 2022 WL 1125402, at *11 (D. N.M. Apr. 15, 2022) (collecting cases, noting that these job descriptions had not been updated since 1977, and holding that “a reasonable mind could not accept the VE's testimony as adequate to support the conclusion that significant numbers of addresser and tube operator positions exist in the national economy.”); Skinner v. Berryhill, No. CV 17-3795-PLA, 2018 WL 1631275, at *5-6 & n.6 (C.D. Cal. Apr. 2, 2018) (finding there was not substantial evidence supporting the ALJ's Step Five finding because a reasonable mind would not accept that there were over 10,000 addresser positions in the national economy in 2015); Tillman v. Astrue, No. 1:08-CV-43-MP-GRJ, 2011 WL 3748816, at *9 (July 18, 2011) (noting that the VE testified, in 2009, that the position of tube operator had become obsolete), report and recommendation adopted, 2011 WL 3797526 (N.D. Fla. Aug. 24, 2011). Additionally, in an Occupational and Medical Vocational Claims Review Study (May 2011), at 7, conducted by the Social Security Administration, the authors acknowledged that the positions of Addresser and Tube Operator likely did not exist in significant numbers. The Court finds there is not substantial evidence to support the ALJ's finding that there are 20,000 Addresser positions or 18,000 Tube Operator positions nationally.
https://www.ssa.gov/oidap/Documents/PRESENTATION--TRAPANI%20AND%20HARKIN--OIDAP%2005-04-11.pdf.
There is not substantial evidence to support the ALJ's Step Five finding that there are a total of at least 55,000 jobs available nationally based on Schluter's RFC as found by the ALJ. To the contrary, there is not substantial evidence supporting the ALJ's Step Five finding as to ANY jobs available nationally. Zero jobs are not sufficient to support a Step Five finding of non-disability. See Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (finding it is a “close call” whether 25,000 jobs nationally qualify as a significant number of jobs for a Step Five finding). For these reasons, the Court must reverse the ALJ's decision.
Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for "additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). This Court retains discretion, however, to remand for immediate payment of benefits. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014).
The Court finds this is a case in which the discretion to award benefits should be exercised. The Ninth Circuit recognizes that the flexibility to remand for the award of benefits operates as both a “prophylactic measure,” to ensure the Commissioner carefully assesses the relevant evidence, and as an equitable remedy when there is concern regarding the length of time the application has been pending. Treichler, 775 F.3d at 1100 (citing Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1398-99 (9th Cir. 1988) (noting the passing of five years since the claimant filed her application)); see also Halde v. Saul, No. 2:19-CV-01247-EJY, 2020 WL 4470445, at *11 (D. Nev. Aug. 3, 2020) (remanding for payment of benefits for a second error at Step Five based, in part, on the passing of more than six years since the claimant's application was filed). The number of times this case has been returned to an ALJ for readjudication and the years that have passed since Schluter filed the application is unprecedented in the undersigned's experience. Schluter filed the current DIB application in 2007, and it is now 2024. His last insured date was December 2010, over 13 years ago. If this Court were to direct the ALJ to undertake further administrative proceedings, Schluter could be left waiting for a final adjudication more than 20 years past the date he originally alleged that he became disabled.
Because the Court has determined that Plaintiff is entitled to an award of benefits based on the resolution of Claim 1, the Court does not reach Claims 2 and 3.
And, unfortunately, the Court has little confidence that, if allowed a sixth go-around, Schluter's application would be adjudicated without error. In an effort to obtain a well-founded decision, the Appeals Council has remanded the case to a different ALJ twice, meaning the 2020 decision was rendered by the third ALJ assigned to Schluter's case. Schluter met his burden at Steps One through Four, despite the Commissioner's acknowledgement that the third ALJ erred in her 2020 decision. Schluter also met his burden at Steps One through Four in the four prior administrative adjudications, despite error by the ALJ in each of those proceedings. (AR 23, 131, 151, 174.) Before this Court, the Commissioner chose not to even defend the ALJ's most recent Step Five findings.
The Ninth Circuit has found a remand for the award of benefits appropriate for a Step Five error, under much less egregious circumstances. See Smith v. Colvin, 554 Fed.Appx. 568, 569 (9th Cir. 2014) (finding the Commissioner did not meet his burden at Step Five to demonstrate the availability in the national economy of substantial work because the hypothetical upon which the VE relied did not incorporate all the claimant's limitations). Other courts also have held that remand for award of benefits is allowed and may be appropriate when an ALJ errs at Step Five. See Jones v. Astrue, 650 F.3d 772, 777 (D.C. Cir. 2011); Talbot v. Heckler, 814 F.2d 1456, 1466 (10th Cir. 1987); Rustamova v. Colvin, 111 F.Supp.3d 1156, 1165-66 (D. Or. 2015) (collecting cases from other circuits and remanding for award of benefits because ALJ had twice failed to carry burden at Step Five); Jennifer L. v. Saul, No. C19-6088-MAT, 2020 WL 3839617, at *3 (W.D. Wash. July 7, 2020) (remanding for benefits when the ALJ failed to make a legally sufficient Step Five ruling because the less than 15,000 jobs she identified were not a “significant” number); Floyd P. v. Saul, No. 1:19-CV-03015-MKD, 2020 WL 3619518, at *11-12 (E.D. Wash. Mar. 23, 2020) (collecting cases and remanding for an award of benefits based on Commissioner's second failure to meet his burden at Step Five); Davis v. Barnhart, 377 F.Supp.2d 1160, 1164 (N.D. Ala. 2005) (finding claimant disabled because Commissioner failed to carry burden at Step Five); cf. Glass v. Barnhart, 163 Fed.Appx. 470, 473 (9th Cir. 2006) (awarding benefits because ALJ failed to prove claimant could perform a significant number ofjobs when he erroneously determined claimant could perform prior work at Step Four).
The extraordinary length of time Schluter's application has been pending, and the recurrent errors in the administrative process, warrant an award of benefits. As one court stated, “[w]hen the Commissioner had a full and fair opportunity to develop the record and meet her burden at Step 5, there is no reason for the court to remand for further factfinding.” Field v. Chater, 920 F.Supp. 240, 243 (D. Me. 1995). Allowing the ALJ another opportunity to evaluate Step Five would be unjust because it would allow a “‘heads we win; tails, let's play again' system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citing Moisa, 367 F.3d at 887 (noting that the “Commissioner, having lost this appeal, should not have another opportunity . . . any more than Moisa, had he lost, should have an opportunity for remand and further proceedings”)). Finally, and contrary to Defendant's argument, the Court does not have serious doubt that Schluter is disabled.
RECOMMENDATION
The Magistrate Judge recommends that the District Court remand this matter for the award of benefits. Any party may serve and file written objections within ten (10) days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within ten (10) days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-23-00036-TUC-JAS.