Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff filed a complaint on June 23, 2014, seeking review of the Commissioner's denial of disability benefits. Plaintiff filed a motion for summary judgment on December 1, 2014. Defendant filed a motion for summary judgment on December 22, 2014. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order, " filed June 24, 2014.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, who has no past relevant work history, asserts disability based on his mental limitations (Administrative Record ("A.R.") 42, 90, 119, 181). The Administrative Law Judge ("ALJ") evaluated the medical record and heard testimony from Plaintiff, a medical expert and a vocational expert (A.R. 21-318, 321-505). The ALJ found Plaintiff has severe mental limitations (A.R. 28-42).
In determining Plaintiff's residual functional capacity, the ALJ gave "great weight" to the opinions of Dr. Ahmad Riahinejad, a consultative examining psychologist (A.R. 41; see also A.R. 29, 31-33, 40). Dr. Riahinejad assessed Plaintiff's I.Q. as 72 and opined that Plaintiff could "understand, remember and carry out simple and repetitive instructions" (A.R. 475-76). Accordingly, the ALJ found Plaintiff is restricted to "work involving simple, repetitive tasks" (A.R. 40). Although Dr. Riahinejad also opined that Plaintiff "would have significant difficulty understanding, remembering and carrying out complex and detailed instructions, " the ALJ made no express finding regarding Plaintiff's ability or inability to understand, remember or carry out detailed instructions (A.R. 24-44, 476). The ALJ did expressly find that Plaintiff has "moderate limitations in maintaining concentration, persistence and pace" (A.R. 41).
The ALJ posed two hypothetical questions to the vocational expert (A.R. 73-74). The first hypothetical question assumed that a person's sole work-related limitation was a limitation to work involving simple, repetitive tasks (A.R. 73). In response to this question, the vocational expert identified two jobs a person so limited supposedly could perform: "dining room attendant" and "prop attendant" (A.R. 73-74). According to the Dictionary of Occupational Titles ("DOT"), the job of "dining room attendant" requires Reasoning Level 2 and the job of "prop attendant" requires Reasoning Level 3. See DOT 311.677-018, 962.684-022). Reasoning Level 2 requires an ability "to carry out detailed but uninvolved written or oral instructions." See DOT Appendix C; Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997). Reasoning Level 3, which requires an ability to "[d]eal with problems involving several concrete variables, " involves a greater reasoning capacity than Reasoning Level 2. See DOT Appendix C; Titus v. Callahan, 133 F.3d 561, 563 (8th Cir. 1997). The ALJ did not ask the vocational expert whether the vocational expert's testimony was consistent with the information contained in the DOT (A.R. 73-83).
The ALJ's second hypothetical question added a functional limitation based on a restricted ability to maintain attention and concentration (A.R. 74). This second question assumed an inability to maintain attention and concentration for more than 80% of the work day (id.). The vocational expert responded that, with the addition of this limitation, there would be no jobs performable (id.).
The ALJ found Plaintiff not disabled (A.R. 43). The ALJ relied on the vocational expert's testimony to prove the existence of jobs Plaintiff purportedly can perform (id.). The Appeals Council denied review (A.R. 5-7).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
DISCUSSION
After a severely impaired claimant demonstrates he or she has no past relevant work history "the burden shifts to the [Administration] to show that there are other jobs in the economy that the claimant can nonetheless perform." Dionne v. Heckler, 585 F.Supp. 1055, 1059 (D. Me. 1984) (citations and quotations omitted); accord Smith v. Colvin, 554 Fed.App'x 568, 569 (9th Cir. 2014); Malin for Malin v. Sullivan, 1991 WL 243825, *1 (E.D. Pa. Nov. 14, 1991); see also Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (burden shifts similarly where claimant demonstrates inability to perform past relevant work). As discussed below, the Court is unable to conclude on the present record that the Administration properly carried this burden. Therefore, remand is appropriate.
Where a hypothetical question fails to "set out all of the claimant's impairments, " the vocational expert's answers to the question cannot constitute substantial evidence to support the ALJ's decision. See, e.g., DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); Gamer v. Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984); see also Social Security Ruling 96-8p (in assessing residual functional capacity, the ALJ must consider all limitations imposed by all impairments, even non-severe impairments; "the limitations due to such a not severe' single impairment may prevent an individual from performing past relevant work..."); 20 C.F.R. § 404.1545(e) ("we will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity"); accord Carmickle v. Commissioner, 533 F.3d at 1164. In the present case, it is uncertain whether the hypothetical question on which the ALJ relied included all of Plaintiff's work-related impairments. The ALJ expressly found Plaintiff had moderate limitations in maintaining concentration, persistence and pace (A.R. 41). It may be that the ALJ intended the "simple, repetitive" work restriction to account for these deficiencies. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (on particular facts, ALJ's restriction to "simple, routine, repetitive sedentary work, requiring no interaction with the public" adequately accounted for restrictions related to concentration, persistence or pace). It also may be, however, that the ALJ's second hypothetical question represented an attempt to account for Plaintiff's deficiencies in maintaining concentration, persistence and pace. In response to the second hypothetical question, the vocational expert testified that no performable jobs existed.
If the medical evidence fails to establish that the claimant can perform simple work notwithstanding moderate limitations in mental functioning, a restriction to simple work does not properly account for these moderate limitations. See, e.g., Brink v. Commissioner, 343 Fed.App'x 211, 212 (9th Cir. Aug. 18, 2009) (distinguishing Stubbs-Danielson; "The medical testimony in Stubbs-Danielson, however, did not establish any limitations in concentration, persistence or pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that [the claimant] does have difficulties with concentration, persistence, or pace"); see also Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1986); Feltis v. Astrue, 2012 WL 2684994, at *4 (E.D. Cal. July 6, 2012); Lim v. Astrue, 2011 WL 3813100, at *7 (E.D. Cal. Aug. 29, 2011); Bentancourt v. Astrue, 2010 WL 4916604, at *3 (C.D. Cal. Nov. 27, 2010).
Additionally, the ALJ's first hypothetical question omitted mention of any moderate difficulty in understanding, remembering and carrying out detailed instructions, a difficulty the ALJ appeared to accept from Dr. Riahinejad's opinion. This omission may have been particularly material because, according to the DOT, the only jobs identified by the vocational expert required a reasoning capacity sufficient to carry out detailed instructions. See King v. Colvin, 2013 WL 693003, at *9-10 (C.D. Cal. Feb. 25, 2013) (remand required where ALJ's hypothetical question included a restriction to "simple, repetitive tasks" but omitted mention of an existing difficulty in following "detailed instructions, " and the only jobs the vocational expert identified required Reasoning Level 2).
Beyond the possible inadequacies in the hypothetical questions, the ALJ's questioning of the vocational expert also violated Social Security Ruling 00-4p.
Social Security rulings are "binding on ALJs." Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990); see 20 C.F.R. § 422.408.
Social Security Ruling 00-4p provides:
Occupational evidence provided by a [vocational expert] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between [vocational expert] evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the [vocational expert] evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire on the record, as to whether or not there is such consistency.... When a VE or VS provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT.
"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 [DOT]." Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); see Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) ("an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation").
In the present case, the ALJ erred by failing to "inquire, on the record, as to whether or not" the vocational expert's testimony was consistent with the information in the DOT. See SSR 00-4p. Whether this error was material depends on whether there existed "an apparent unresolved conflict" between the vocational expert's testimony and the DOT. See id.
There clearly existed an apparent conflict as to the job of "prop attendant." See, e.g., Carney v. Astrue, 2010 WL 5060488, at *4-5 (C.D. Cal. Dec. 6, 2010) (Reasoning Level 3 jobs are plainly unsuitable for persons limited to "simple repetitive tasks"). Some cases also discern a conflict between a restriction to "simple" work and jobs (such as "dining room attendant") requiring Level 2 reasoning. See, e.g., Bridges v. Astrue, 2012 WL 6115062, at *12-13 (D. Or. Nov. 14, 2012), adopted, 2012 WL 6112449 (D. Or. Dec. 10, 2012); Skeens v. Astrue, 903 F.Supp.2d 1200, 1210-11 (W.D. Wash. 2012); Sims v. Astrue, 599 F.Supp.2d 988, 1007 (N.D. Ind. 2009); Allen v. Barnhart, 2003 WL 22159050, at *10 (N.D. Cal. Aug. 28, 2003); see also Cooper v. Barnhart, 2004 WL 2381515, at *4 (N.D. Okla. Oct. 15, 2004) (court observed that the Reasoning Level 2 terminology "detailed but uninvolved" "is not entirely clear as to whether it would be similar to simple and repetitive tasks, or if the tasks which are detailed but uninvolved' would be more complex").
Other cases refuse to discern any such conflict. See, e.g., Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); Broussard v. Colvin, 2013 WL 5370592, at *5 (E.D. N.C. Sept. 24, 2013); Taylor v. Astrue, 2012 WL 6062046, at *5-6 (C.D. Cal. Dec. 4, 2012); Thompkins v. Astrue, 2010 WL 5071193, at *11 (N.D. Ill.Dec. 6, 2010); Tudino v. Barnhart, 2008 WL 4161443, at *11 (S.D. Cal. Sept. 5, 2008); Meissl v. Barnhart, 403 F.Supp.2d 981, 985 (C.D. Cal. 2005); Flaherty v. Halter, 182 F.Supp.2d 824, 850-51 (D. Minn. 2001).
Moreover, as previously discussed, the ALJ's acceptance of Dr. Riahinejad's opinion appeared to acknowledge Plaintiff's inability to follow "detailed" instructions. At a minimum, therefore, the existing record is ambiguous and requires clarification, both with respect to Plaintiff's work-related abilities and with respect to the existence of jobs Plaintiff might be able to perform. See Treichler v. Commissioner, 2014 WL 7332774, at *11 (9th Cir. Dec. 24, 2014) ("Where, as in this case, an ALJ makes a legal error, but the record is uncertain or ambiguous, the proper approach is to remand the case to the agency"); see also Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ("[W]e are wary of speculating about the basis of the ALJ's conclusion....").
Because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors, remand is appropriate. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Treichler v. Commissioner, 2014 WL 7332774, at *8 n.5 (remand for further administrative proceedings is the proper remedy "in all but the rarest cases"); Skeens v. Astrue, 903 F.Supp.2d at 1215 ("Upon remand, the ALJ should either make further findings regarding Plaintiff's ability to perform reasoning level 2 jobs, or obtain further [vocational expert] testimony regarding alternative occupations that Plaintiff could perform").
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's and Defendant's motions for summary judgment; and (3) directing that Judgment be entered reversing in part the decision of the Commissioner and remanding the matter for further administrative action consistent with this Report and Recommendation.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. "[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled." See Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014).