Opinion
CV-23-00871-PHX-SMB (ESW)
05-08-2024
Thomas Shear, Plaintiff, v. Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Thomas Shear's (“Plaintiff”) appeal of the Social Security Administration's (“Social Security”) denial of his application for disability insurance benefits. The Court has jurisdiction to decide this appeal pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing.
After reviewing the Administrative Record (“A.R.”) and the parties' briefing (Docs. 14, 16, 17), the undersigned finds that the Administrative Law Judge's (“ALJ”) decision is free from harmful legal error. For the reasons explained in Section II below, it is recommended that the decision be affirmed.
I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act (the “Act”) provides for disability insurance benefits to those who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits based on an alleged disability, the claimant must show that he or she suffers from a medically determinable physical or mental impairment that prohibits him or her from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). The claimant must also show that the impairment is expected to cause death or last for a continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. § 404.1520(a). The claimant has the burden of proof regarding the first four steps:
Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
Step One : Is the claimant engaged in “substantial gainful activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to Step Two.
Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe impairment is one which significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied at this step. Otherwise, the ALJ proceeds to Step Three.
Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity? 20 C.F.R. § 404.1520(d).
If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step of the analysis.
Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? If not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. § 404.1520(f). Otherwise, the ALJ proceeds to the last step.
If the analysis proceeds to the final question, the burden of proof shifts to the Commissioner:
Parra, 481 F.3d at 746.
Step Five: Can the claimant perform other work in the national economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only if he or she is unable to perform other work. 20 C.F.R. § 404.1520(g). Social Security is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's residual functional capacity, age, education, and work experience. Id.
B. Standard of Review Applicable to ALJ's Determination
The Court must affirm an ALJ's decision if it is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Morgan v. Comm'r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ's decision. This doctrine provides that an ALJ's decision need not be remanded or reversed if it is clear from the record that the error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error “does not negate the validity of the ALJ's ultimate conclusion”) (citations omitted).
II. DISCUSSION
A. Procedural Background
On December 27, 2021, Plaintiff applied for disability insurance benefits. (A.R. 178-79). Plaintiff's past relevant work includes infantry weapons crew member, water softener installer, customer service representative, and claims adjuster. (A.R. 49). Plaintiff's application alleged that on July 7, 2021, Plaintiff became limited in his ability to work due to anxiety, post-traumatic stress disorder, traumatic brain injury, depression, degenerative arthritis of the spine, stenosis, cervical strain, chronic pain, radiculopathy/lower extremities and sleep apnea. (A.R. 75). Social Security denied the application on April 11, 2022. (A.R. 100-03). On July 18, 2022, upon Plaintiff's request for reconsideration, Social Security affirmed the denial of benefits. (A.R. 111-12). Plaintiff sought further review by an ALJ, who conducted a hearing on January 10, 2023. (A.R. 5674).
In his January 30, 2023 decision, the ALJ found that Plaintiff is not disabled within the meaning of the Social Security Act. (A.R. 39-55). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Social Security Commissioner. (A.R. 1-6). On May 18, 2023, Plaintiff filed a Complaint (Doc. 1) requesting judicial review and reversal of the ALJ's decision.
B. The ALJ's Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since July 7, 2021 (the alleged onset date). (A.R. 41). Neither party disputes this determination.
2. Step Two: Presence of Medically Severe Impairment/Combination of Impairments
The ALJ found that Plaintiff has the following severe impairments: (i) disorder of the spine; (ii) anxiety; (iii) depression; (iv) post-traumatic stress disorder; (v) vertigo; and (vi) migraines. (A.R. 42). This determination is undisputed.
3. Step Three: Presence of Listed Impairment(s)
The ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R. 42-43). Neither party disputes the ALJ's determination at this step.
4. Steps Four and Five: Capacity to Perform Work
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally climb ramps/stairs, but never climb ladders, ropes, or scaffolds. He can occasionally kneel and frequently stoop, kneel, and crawl. The claimant should not be exposed to hazards and no driving on the job. He can perform
simple, routine, and repetitive task and only occasional time around the public and co-workers.(A.R. 44). In light of the assessed RFC and testimony of the Vocational Expert (“VE”) at the administrative hearing, the ALJ concluded that Plaintiff was not capable of performing his past relevant work. (A.R. 49).
At the hearing, the VE testified that based on Plaintiff's RFC, Plaintiff would be able to perform the requirements of representative occupations such as office helper, routing clerk, and laundry worker. (A.R. 50). The ALJ found that the VE's testimony was consistent with the information in the Dictionary of Occupational Titles (“DOT”) and that the jobs identified by the VE existed in significant numbers in the national economy. After considering the VE's testimony, Plaintiff's age, education, work experience, and RFC, the ALJ determined that Plaintiff was capable of making a successful adjustment to other work and was therefore not disabled. (A.R. 50-51). Plaintiff asserts that in reaching this conclusion, the ALJ erred by (i) failing to resolve apparent conflicts between the VE's testimony and the DOT and (ii) failing to provide sufficient reasons for partially rejecting the opinion of the examining psychologist, James Huddleston, PhD. (Doc. 14 at 4-7).
C. Plaintiff's Challenge to the ALJ's Determination at Step Five
At step-five of the evaluation process, the Commissioner has the burden to demonstrate that the claimant can perform work that exists in “significant numbers” in the national or regional economy, taking into account the claimant's RFC, age, education, and work experience. Lockwood v. Comm'r Soc. Sec., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy that burden either through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2. Id.
At the administrative hearing, the ALJ asked the VE to consider a hypothetical individual with the same RFC, age, education, and work experience as Plaintiff. (A.R. 71). The VE testified that such an individual remained capable of performing work and cited the representative occupations of office helper (DOT 239.567-010), routing clerk (DOT 222.687-022), and laundry worker (DOT 302.685-010). (A.R. 72). The ALJ determined that the VE's testimony is consistent with the information contained in the DOT. (A.R. 50).
The DOT is a “resource compiled by the Department of Labor that details the specific requirements for different occupations, guides the analysis.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). “If the expert's opinion that the applicant is able to work conflicts with, or seems to conflict with, the requirements listed in the [DOT], then the ALJ must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant is disabled.” Id. (SSR 00-4P, 2000 WL 1898704, at *2. “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. This means that the testimony must be at odds with the [DOT's] listing of job requirements that are essential, integral, or expected.” Id. at 808. Tasks that are not “essential, integral, or expected parts of a job are less likely to qualify as apparent conflicts that the ALJ must ask about.” Id.
Here, Plaintiff argues that the ALJ erred at step five by finding that he could perform the jobs of office helper and routing clerk despite his limitation to only “occasional time around the public and co-workers.”(Doc. 14 at 5).
Defendant concedes that the laundry worker job may be precluded by the ALJ's restriction against exposure to hazards. (Doc. 16 at 2). Defendant is correct that any error in determining that Plaintiff could perform the laundry worker job is harmless if the ALJ properly found that Plaintiff could perform the officer helper and routing clerk jobs. (Id. at 3). Accordingly, this Report and Recommendation focuses on the office helper and routing clerk positions.
The DOT measures the degree of interaction with people in each job type on a scale of one to eight: (1) mentoring, (2) negotiating, (3) instructing, (3) supervising, (4) diverting, (5) persuading, (6) speaking-signaling, (7) serving, and (8) taking instructions-helping. DOT, App. B - Explanation of Data, People, and Things, 1991 WL 688701 (1991).
“General office helpers can expect to perform the lowest three functions: speakingsignaling (level six), serving (level seven) and taking instructions-helping (level eight).” Kane v. Saul, No. 3:18CV746 (HEH), 2019 WL 7562760, at *15 (E.D. Va. Aug. 20, 2019). Speaking-signaling (level six) “is nearly the lowest rating possible for interacting with people[.]” Howell v. Astrue, No. CV 10-1241 LFG/CG, 2012 WL 13081662, at *20 (D.N.M. Mar. 20, 2012) (citations omitted).
The undersigned is not persuaded by Plaintiff's argument that there is a meaningful distinction between “time around” and “interaction with” others in this case. The DOT rates the interaction demands of both the office helper and routing clerk positions as “not significant.” DOT 239.567-010, 1991 WL 672232; DOT 222.687-022, 1991 WL 672133. Courts have found that jobs requiring only a “not significant” degree of interaction, like office helper, are consistent with RFCs limiting a claimant to occasional or limited contact with others. See, e.g., Kane, 2019 WL 7562760, at *15; Barela v. Astrue, No. CV-09-01773-PHX-FJM, 2010 WL 5013829, at *6 (D. Ariz. Dec. 3, 2010) (claimant retained RFC to perform a job with “limited contact with co-workers” and finding that there “is nothing in the DOT provisions for [the office helper] position indicating that more than limited coworker conduct is required. In fact, [the] position[ ] rate[s] interaction with people as ‘not significant' and list the skills of talking and hearing as occasional or not present.”) (citations omitted); Robinson v. Comm'r of Soc. Sec. Admin., No. CV-22-00070-PHX-DGC, 2022 WL 9833906, at *9 (D. Ariz. Oct. 17, 2022) (rejecting plaintiff's argument that the plain language of the office helper position exceeds her RFC limitation of interacting with coworkers occasionally); Miller v. Saul, No. 5:19-CV-120, 2020 WL 4458468, at *5 (W.D. N.C. July 9, 2020) (“[T]here is no indication that [the office helper] occupation requires sustained and critical conversations with the public or more than occasional interaction with supervisors and coworkers. Accordingly, no apparent conflict exists between the VE's testimony and the DOT's description of Office Helper.”).
Finding the above cases persuasive, the undersigned concludes that the ALJ's limitation of Plaintiff to “occasional time around the public and co-workers” is not inconsistent with the social demands of the office helper and routing clerk positions as described in the DOT.
Plaintiff also contends that the office helper and routing clerk jobs conflict with the ALJ's limitation to avoid exposure to hazards. In support of this argument, Plaintiff cites Social Security Ruling (“SSR”) 96-9p. However, the portion of SSR 96-9p cited by Plaintiff pertains to the impact of visual limitations on the ability to perform sedentary work:
If a visual limitation prevents an individual from seeing the small objects involved in most sedentary unskilled work, or if an individual is not able to avoid ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or approaching people or vehicles, there will be a significant erosion of the sedentary occupational base.SSR 96-9P, 1996 WL 374185, at *8 (emphasis added). Plaintiff does not have visual limitations.
SSR 96-9p states that the “‘hazards' defined in the [Selected Characteristics of Occupations] . . . include: moving mechanical parts of equipment, tools, or machinery; electrical shock; working in high, exposed places; exposure to radiation; working with explosives; and exposure to toxic, caustic chemicals.” SSR 96-9P, 1996 WL 374185, at *9. Courts have relied on this definition in Social Security cases analyzing “hazards.” See, e.g., French v. Berryhill, No. EDCV 17-0566-KS, 2018 WL 1322106, at *8 (C.D. Cal. Mar. 13, 2018) (referring to Social Security Ruling 96-9P as “the [Social Security] Commissioner's own relevant definition of ‘hazards'”); Novoa v. Colvin, No. CV 13-00219-MAN, 2014 WL 3854369, at *7-8 (C.D. Cal. Aug. 6, 2014) (relying on SSR 96-9p's definition of hazards when the “ALJ did not expand upon his definition of ‘hazard'”); Cranfill v. Colvin, No. 1:10CV925, 2013 WL 1736597, at *8 (M.D. N.C. Apr. 9, 2013) (using SSR 96-9p “to define the term ‘hazardous'”).
Here, the DOT provides that the office helper and routing clerk jobs do not involve moving mechanical parts, electric shocks, high exposed places, radiation, explosives, toxic caustic chemicals, or other environmental conditions. DICOT 239.567-010, 1991 WL 672232; DICOT 222.687-022, 1991 WL 672133. The undersigned finds that the ALJ reasonably determined that the VE's testimony that Plaintiff could perform the office helper and routing clerk positions is consistent with the DOT and Plaintiff's assessed RFC. See, e.g., James B. v. O'Malley, No. 1:22CV1103, 2024 WL 920722, at *6-7 (M.D. N.C. Mar. 4, 2024) (finding no apparent conflict between RFC limitations regarding hazards like moving machinery and jobs of order taker and linen worker where DOT descriptions provided that moving mechanical parts and other hazards were “not present” in those positions); Carter v. Kijakazi, No. 3:20-cv-00672, 2021 WL 4931724, at *6 (S.D. W.Va. Sept. 30, 2021) (finding no apparent conflict where the RFC included a restriction to no “hazards such as moving machinery,” but the DOT specifically provided that the job of nut and bolt assembler does not present hazards involving moving mechanical parts despite references to using machinery in the job description); Stover v. Berryhill, No. 5:19-CV-00062, 2019 WL 2895023, at *10 (S.D. W.Va. June 6, 2019) (finding no error where the plaintiff argued that the “assembler” job requires the use of machines, such as an arbor press, punch press, tap spot welding or riveters and the RFC specifically provided that plaintiff was to avoid moving machinery, but the DOT also provided that “moving mechanical parts” were “not present” in this position); Maxwell v. Saul, No. 1:18-cv-00894-GSA, 2019 WL 3546837, at *5 (E.D. Ca. Aug. 5, 2019) (holding no inconsistency between RFC providing plaintiff should not be exposed to hazards such as “moving machinery” and dishwasher and laundry worker jobs where the DOT provided that hazard of moving mechanical parts was not present in either occupation).
The undersigned does not find that the ALJ committed reversible error in making the step five determination.
D. The ALJ's Evaluation of the Opinions of James Huddleston, PhD
1. Legal Standards
For disability claims filed after March 27, 2017, revised Social Security Administration regulations apply to the ALJ's consideration of the medical evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions), 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5844 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The revised regulations provide that Social Security “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's own] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Thus, the new regulations require an ALJ to apply the same factors to all medical sources when considering medical opinions. As the Ninth Circuit has explained, the revised Social Security regulations abrogate prior precedents requiring an ALJ to provide “specific and legitimate reasons supported by substantial evidence in the record” for rejecting the opinion of a treating physician. Woods v. Kijakazi, 32 F.4th 785, 788-92 (9th Cir. 2022).
Instead, “[w]hen a medical source provides one or more medical opinions or prior administrative medical findings, [Social Security] will consider those medical opinions or prior administrative medical findings from that medical source together using” the following factors: (i) supportability; (ii) consistency; (iii) relationship with the claimant; (iv) specialization; [and] (v) other factors that “tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 404.1520c(a), (c)(1)-(5). As set forth in Section 404.1520c(a), the “most important factors” Social Security considers when evaluating “the persuasiveness of medical opinions and prior administrative medical findings are supportability . . . and consistency[.]”
Regarding the supportability factor, the regulations provide that the “more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). As to the consistency factor, the “more consistent a medical opinion(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
Section 404.1520c(b)(2) provides that Social Security “will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.” Social Security “may, but [is] not required to, explain how [it] considered the [other remaining factors],” except when deciding among differing yet equally persuasive opinions or findings on the same issue. 20 C.F.R. § 404.1520c(b)(2)-(3).
2. Analysis
On March 28, 2022, James Huddleston, PhD conducted a psychological evaluation of Plaintiff. (A.R. 365-71). Dr. Huddleston opined that Plaintiff
suffers from a generalized anxiety disorder with panic attacks, as well as trauma symptoms. He possesses good social and communicative abilities and is capable of getting along with others. He will struggle in environments that require extensive contact with others, and direct conflict or stress may trigger a panic attack. He will function best in an environment that allows him to work alone or with minimal social contact.(A.R. 371). The ALJ found Dr. Huddleston's opinions “generally persuasive, insofar as it [is] consistent with the residual functional capacity assessed herein as it is support by the claimant's mental health treatment and counseling as discussed herein.” (A.R. 48).
Plaintiff argues that the ALJ “failed to give a single reason based on consistency or supportability to reject Dr. Huddleston's limitation to working alone or with minimal social contact.” (Doc. 14 at 5). However, Dr. Huddleston did not expressly limit Plaintiff to “minimal” contact as a strict functional restriction. Rather, he stated that Plaintiff “will function best in an environment that allows him to work alone or with minimal social contact.” (A.R. 371) (emphasis added). Moreover, Dr. Huddleston did not define “minimal.”
It is the ALJ's responsibility to resolve ambiguities and conflicts in the record. See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (“ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities”). When evidence is subject to more than one rational interpretation, the ALJ's conclusion must be upheld if supported by substantial evidence. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
After the parties' briefing and the record, the undersigned finds that the ALJ's limitation of Plaintiff to “occasional time around the public and coworkers” reflects a reasonable interpretation of Dr. Huddleston's opinions. The undersigned does not find that the AL J committed reversible error with respect to explaining how Dr. Huddleston's opinions were considered.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court affirm the decision of the Commissioner of Social Security.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.