Opinion
For Susan E Williamson, Plaintiff: William M Kuntz, LEAD ATTORNEY, William M Kuntz PLC, Riverside, CA.
For Carolyn W Colvin, Acting Comissioner of Social Security Administration, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA, Timothy R Bolin, SAUSA - Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA.
DECISION AND ORDER
CARLA M. WOEHRLE, United States Magistrate Judge.
PROCEEDINGS
On March 14, 2014, Susan E. Williamson (" Plaintiff") filed a Complaint seeking review of the Commissioner's denial of her application for supplemental security income. Thereafter, the parties filed a Consent to Proceed Before United States Magistrate Judge Carla Woehrle. On October 17, 2014, Defendant filed an Answer to the Complaint. On December 12, 2014, the parties filed their Joint Stipulation.
As discussed below, the Court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.
BACKGROUND
On October 23, 2009, Plaintiff filed an application for supplemental security income. (Administrative Record [" AR" ] at 114-20.) Plaintiff alleged that, beginning on April 1, 2009, she was disabled due to scoliosis, arthritis in her back, depression, and anxiety. (AR at 57, 114.) An administrative law judge (" ALJ") conducted a hearing on July 18, 2011. (AR at 25-45.) The ALJ denied benefits in a decision dated August 11, 2011. (AR at 8-24.) Plaintiff then filed a civil action in this court (case no. EDCV 12-364-CW). On January 10, 2013, that matter was remanded so the ALJ could reconsider the effects of Plaintiff's depression and headaches. (AR at 332-45.)
On remand, the ALJ conducted a second hearing. (AR at 351-77.) Plaintiff appeared with her counsel and testified. (AR at 355-73.) A vocational expert (" VE") also testified. (AR at 373-75.) In a decision dated November 22, 2013, the ALJ again denied benefits. (AR at 316-27.) The ALJ found that Plaintiff suffers from the following " severe" impairments: " mild lumbar level scoliosis with mild lumbar facet degenerative joint disease; mild osteoarthritis of the lower cervical spine; headaches and migraines; and generalized anxiety disorder, with depression." (AR at 321.) Nevertheless, the ALJ concluded that Plaintiff has the residual functional capacity to perform " light work... except she can stand and/or walk for six hours out of an eight-hour workday but not more than an hour at a time and she can sit for six hours out of an eight-hour workday but not more than an hour at a time; at the end of the hour she must be allowed to change position for a couple of minutes; she can occasionally bend, stoop, crouch, and kneel but never crawl; she can occasionally balance; occasionally climb ladders, ropes and scaffolds; she must avoid concentrated exposure to vibration; she can occasionally operate foot pedals with either foot; limited to simple and routine work; and she would be expected to miss work 1-2 days a month due to headaches or migraines." (AR at 324.) The ALJ determined that Plaintiff could perform her past relevant work as a mail clerk. (AR at 326.) Consequently, the ALJ concluded that Plaintiff was not disabled pursuant to the Social Security Act. (AR at 327.)
PLAINTIFF'S CONTENTIONS
The parties' Joint Stipulation sets out the following disputed issues:
1. Whether the ALJ properly evaluated Plaintiff's credibility; and
2. Whether the ALJ properly determined at step four of the sequential evaluation that Plaintiff could perform her past work as a mail clerk.
As discussed below, the Court finds that Issue Two is dispositive.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). In other words, it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401.
In determining whether substantial evidence supports the ALJ's findings, the Court must review the record as a whole and consider " both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[s]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). " If the evidence can reasonably support either affirming or reversing, " the Court " may not substitute its judgment" for that of the ALJ, and the ALJ's decision must be upheld. Id. at 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
DISCUSSION
A. The Sequential Evaluation
To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).
Disability claims are evaluated using a five-step test. See 20 C.F.R. § § 404.1520, 416.920. At step one, the ALJ determines if the claimant is engaging in " substantial gainful activity." 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is found not disabled. If he is not, the ALJ proceeds to step two.
At step two, the ALJ determines whether the claimant has a " severe" impairment or combination of impairments. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is " severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). If the claimant does not have a " severe" impairment or combination of impairments, disability benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairment or combination of impairments is " severe, " the ALJ proceeds to step three.
At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or equals an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. 20 C.F.R. § § 404.1520(a)(4)(iii), 416. 920(a)(4)(iii). If so, the claimant is automatically determined disabled. See 20 C.F.R. § § 404.1520(d), 416.920(d). If not, the ALJ proceeds to step four.
At step four, the ALJ must assess the claimant's residual functional capacity (" RFC"). The RFC is the " most [one] can still do despite [his or her] limitations" and represents an assessment " based on all the relevant evidence." 20 C.F.R. § § 404.1545(a)(1), 416.945(a)(1). The ALJ then must determine whether the claimant's RFC is sufficient for the claimant to perform past relevant work. 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the claimant is not disabled. If the claimant is no longer capable of past relevant work, the ALJ proceeds to step five. See 20 C.F.R. § § 404.1520(f), 416.920(f).
At the fifth and final step, the ALJ determines whether, considering claimant's RFC, age, education, and work experience, the claimant is able to perform other work that is available in significant numbers in the national economy. 20 C.F.R. § § 404.1520(a)(4)(v), 416.920(a)(4)(v). If he is, the claimant is not disabled. If he is not, the claimant is disabled and entitled to benefits. Id.
Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are nonadversarial and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n. 3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner at step five. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520, 416.920.
B. The ALJ's Step Four Determination
Plaintiff contends that the ALJ erred at step four of the sequential analysis when he concluded that Plaintiff could perform her past relevant work as a mail clerk. Specifically, Plaintiff notes that the ALJ's RFC determination limited her to simple and routine work. However, the job of mail clerk, as described in the Dictionary of Occupational Titles (" DOT"), requires a " level three" reasoning ability. Plaintiff contends that a limitation to simple and routine work is inconsistent with a " level 3" reasoning requirement. (Joint Stip. at 11-13.)
At step four of the sequential evaluation, the ALJ must determine whether the claimant's RFC allows her to return to her past relevant work. Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996); 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant bears the burden of establishing that she can no longer perform her past work. Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). To support a step four finding that the claimant is capable of performing past relevant work, the ALJ is required to make adequate findings regarding the claimant's residual functional capacity, and the physical and mental demands of her past work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001); 20 C.F.R. § § 404.1520(e), 416.920(e); Social Security Ruling (" SSR") 82-62, 1982 WL 31386, at *4. A claimant is considered to be " not disabled" if she retains the residual functional capacity to perform: (1) " [t]he actual functional demands and job duties of a particular past relevant job; " or (2) " [t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy." SSR 82-61, 1982 WL 31387, at *2; see Pinto, 249 F.3d at 844-45.
In this case, the record does not support the ALJ's finding that Plaintiff retained the ability to perform her former work as a mail clerk, as it was actually performed or as it is generally performed in the national economy.
1. Past Relevant Work as Actually Performed
To evaluate the demands of a claimant's past relevant work as it was actually performed, the ALJ may look to the claimant's vocational report form or to the claimant's own testimony. Pinto, 249 F.3d at 845; see also SSR 82-61, 1982 WL 31387, at *2; SSR 82-41, 1982 WL 31389, at *4. A claimant is typically the primary source for determining how a job was actually performed. See SSR 82-62, 1982 WL 31386, at *3.
Here, the ALJ was required to compare Plaintiff's RFC, which included a limitation to " simple and routine work, " with the physical and mental demands of Plaintiff's past relevant work as a mail clerk. However, it is unclear from the record whether the tasks that Plaintiff was required to perform in this past job were " simple and routine." Specifically, Plaintiff described her job duties as follows: run errands to other hospitals, deliver medications, deliver mail, sort incoming and outgoing mail, use a computer, make identification badges, and send faxes. (AR at 42-43, 129.) Indeed, these tasks appear to be more than simple and routine. Furthermore, nothing was introduced into the record to contradict Plaintiff's description of this past relevant work, and the ALJ did not make any adverse findings regarding Plaintiff's description of the job. Accordingly, the record does not contain sufficient evidence to support the ALJ's conclusion that Plaintiff could return to her past work as a mail clerk, as that job was actually performed. See Pinto, 249 F.3d at 844-45.
The Court notes that these tasks are similar to the job duties of a mail clerk as described in the DOT. See DOT 209.687-026, 1991 WL 671813 (1991) (noting that duties of a mail clerk may include, among other things, sorting incoming and outgoing mail). It appears that the DOT considers these tasks to be more than simple and routine. Specifically, the job of mail clerk, as described in the DOT, requires a level 3 reasoning requirement (Id.), and, as discussed in the next section, a level 3 reasoning requirement is inconsistent with a limitation to simple and routine work.
In the Joint Stipulation, Plaintiff also argues that she cannot return to her past job as a mail clerk because it required her to walk eight hours per day, and the ALJ's RFC finding limits her to walking/standing for no more than six hours per day. (Joint Stip. at 12.) In support, Plaintiff points to her vocational report form, in which she specified that her past job as a mail clerk required her to walk for eight hours per day and stand for two hours per day. (See AR at 129.) Plaintiff's argument, however, is without merit. At the first administrative hearing on July 18, 2011, Plaintiff testified that, at her job as a mail clerk, she sat for a total of five hours out of the eight-hour workday. (AR at 42-43.) This evidence is sufficient to support the conclusion that Plaintiff's standing and walking limitations would not preclude her from performing this past job.
1. Past Relevant Work as Generally Performed
When determining how a job is generally performed, the ALJ can rely on the descriptions given by the Dictionary of Occupational Titles (" DOT"). SSR 00-4p, 2000 WL 1898704, at *2; see also Pinto, 249 F.3d at 845-46. The ALJ may also rely on the testimony of a vocational expert, who can assess the claimant's limitations and identify any existing jobs that the claimant can perform. Tackett, 180 F.3d at 1100-01. However, if the ALJ relies on a VE's testimony that contradicts the DOT, the record must contain " persuasive evidence to support the deviation." Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). The ALJ may not rely on a VE's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT, and, if so, the ALJ must obtain a reasonable explanation for the deviation. Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007); S.S.R. 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). The ALJ's failure to inquire, however, can be harmless error where there is no actual conflict, or if the VE provided sufficient support to justify any variation from the DOT. Massachi, 486 F.3d at 1154 n.19. An example of a conflict between the DOT and a VE's testimony is when the DOT's description of a job includes activities a claimant is precluded from doing, and the VE nonetheless testifies that the claimant would be able to perform that job. Tommasetti v. Astrue, 533 F.3d 1035, 1042-43 (9th Cir. 2008) (finding a divergence from the DOT when the VE testified a claimant limited to " sedentary" level work could perform a job described as " light").
In this case, the ALJ asked the vocational expert at the September 26, 2013 administrative hearing whether a hypothetical individual with Plaintiff's limitations could perform Plaintiff's past relevant work. (AR at 374-75.) The vocational expert testified that such a person could perform Plaintiff's past relevant work as a mail clerk, as described in the DOT. (AR at 375.) The vocational expert further testified that her testimony was consistent with the DOT. (AR at 373.) Accordingly, based on the vocational expert's testimony, the ALJ determined that Plaintiff could perform her past relevant work as a mail clerk. (AR at 326.)
Notwithstanding the vocational expert's testimony, the Court finds that the limitation to simple and routine work is not compatible with the performance of jobs with a level three reasoning requirement. See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (" [T]here is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning."); see also Poole v. Colvin, 2014 WL 2439985, at *4 (C.D. Cal. May 29, 2014) (" [A] potential conflict exists between the ALJ's determination that plaintiff can perform simple, routine tasks and his finding that plaintiff can perform [her past relevant work] which, according to the DOT, requires level three reasoning - a conflict which the vocational expert neither identified nor explained.")
Moreover, the ALJ failed to adduce persuasive evidence to support the deviation. Such evidence may include, for example, information not listed in the DOT but available from other reliable publications, information obtained directly from employers, or information from the vocational expert's experience in job placement or career counseling. See SSR 00-4p, 2000 WL 1898704, at *2. No such evidence was presented here. Although the VE testified without elaboration that a person limited to simple and routine work could perform the job of mail clerk, this brief and conclusory testimony did not constitute persuasive evidence. See Tommasetti, 533 F.3d at 1042 (VE's brief testimony that a person limited to sedentary work could perform an occupation classified by the DOT as light, purportedly because the occupation " is performed in a variety of ways in the national economy, " did not constitute persuasive evidence). Rather, the record was unclear as to the basis for the VE's testimony, and the ALJ therefore erred by relying on it without any explanation. See 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."); see also Pinto, 249 F.3d at 847 (where a VE's testimony conflicts with the DOT, " the ALJ must definitively explain this deviation").
In sum, the ALJ's step four determination that Plaintiff could perform her past relevant work as a mail clerk as it was actually performed and as it is generally performed in the national economy is not supported by substantial evidence. Therefore, remand is warranted on this claim.
C. Remand is Required to Remedy the Defects in the ALJ's Decision
The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 (decision whether to remand for further proceedings turns upon their likely utility). However, where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. In this case, as discussed above, the ALJ erred in failing to obtain any explanation or persuasive evidence to justify the VE's deviation from the DOT; the record accordingly does not contain substantial evidence supporting the ALJ's step four determination that Plaintiff can perform her past relevant work. Remand for further administrative proceedings is appropriate to address the inconsistency and properly complete the sequential evaluation.
In the Joint Stipulation, Plaintiff also argues that the ALJ failed to properly assess her credibility. To the extent that Plaintiff is arguing that the Court must credit her testimony as true and remand for the calculation of benefits, the Court rejects the argument because the record as a whole creates serious doubt as to whether Plaintiff is, in fact, disabled. See Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014); see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014). The objective medical evidence does not support Plaintiff's allegations of disabling symptoms. Plaintiff claims that she suffers from back pain, but an MRI of her lumbar spine revealed only mild findings. (AR at 311.) Plaintiff also alleges that she suffers debilitating migraines nine days out of the month. (AR at 359.) But it does not appear that she reported this to her medical providers, and her level of treatment is not consistent with her allegedly disabling symptoms. Accordingly, a remand for payment of benefits is not an appropriate remedy in this case. See Burrell, 775 F.3d at 1141; Treichler, 775 F.3d at 1103-04.
ORDER Accordingly, IT IS ORDERED that:
1. The decision of the Commissioner is REVERSED.
2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.
3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.
JUDGMENT
IT IS ADJUDGED that this action is remanded to defendant for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) and consistent with the accompanying Decision and Order.