Opinion
CV-21-00464-TUC-CKJ (MSA)
01-19-2023
Patricia Lynn Caballero, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera United States Magistrate Judge
In 2021, the Commissioner of Social Security Administration (Commissioner) denied Patricia Caballero's applications for social security benefits. Caballero now seeks judicial review of that decision. For the following reasons, the Court will recommend that the Commissioner's decision be reversed, and that this matter be remanded for further proceedings.
Background
I. Procedural History
In 2019, Caballero filed applications for disability insurance benefits and supplemental security income. (AR 701, 708.) The applications were denied initially and on reconsideration. (AR 525, 527, 561, 563.) Caballero requested a hearing before an administrative law judge (ALJ), and a hearing was held in November 2020. (AR 496-524, 654.) After the hearing, the ALJ issued a written decision denying Caballero's applications. (AR 18-30.) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-4.) This lawsuit followed.
II. Plaintiff's Personal and Medical History
Caballero is 47 years old. (See AR 701.) She is obese. (AR 1257.) Although she graduated from high school, she did so through special education classes, and there is evidence indicating that her educational abilities are lower than those of a typical graduate. (AR 890-93.) She previously worked as a school crossing guard. (AR 728.)
Caballero alleges that she is disabled due to depression, anxiety, a history of strokes, and “comprehension dyslexia.” (AR 522, 566.) She alleges that her conditions affect her ability to stand, walk, sit, kneel, and bend, and that she has difficulty with her memory, concentration, and comprehension. (AR 764.) She also alleges that she has blackouts, uses a walker, needs reminders to take care of personal matters and grooming, and takes all day to complete household chores such as laundry and dusting. (AR 759-62.)
III. ALJ Decision
The ALJ followed the five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Caballero had not engaged in substantial gainful activity since her alleged onset date. (AR 21.) At step two, the ALJ found that Caballero had several severe impairments: vascular insult to the brain in combination with hyperlipidemia and hypertension; obesity; depressive disorder; and anxiety disorder. (AR 21.) At step three, the ALJ found that Caballero did not have an impairment or a combination of impairments that met or medically equaled the severity of a listed impairment. (AR 22.) Between steps three and four, the ALJ found that Caballero had the residual functional capacity to perform sedentary work with exertional, mental, and environmental limitations. (AR 23-24.) At step four, the ALJ found that Caballero could not perform her past relevant work. (AR 28.) At step five, the ALJ found that Caballero could adjust to other work in the national economy. (AR 29.) The ALJ therefore concluded that Caballero was not disabled. (AR 29-30.)
The regulations for disability insurance benefits and supplemental security income are substantively identical. For ease of reference, further citations will be only to the former.
Legal Standard
The Commissioner's decision must be affirmed if it is supported by substantial evidence and free of legal error. White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022) (quoting Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). “Substantial evidence . . . is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (alteration in original) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
Discussion
I. The ALJ properly evaluated Caballero's alleged need for a walker.
Caballero argues that the ALJ's decision is internally inconsistent as to her alleged need for a walker. She says the ALJ was “persuaded” by Dr. Jeri Hassman's opinion that her walker is “medically necessary” but, inexplicably, failed to account for that need in the residual functional capacity. This discrepancy, she argues, constitutes reversible error.
This argument is not persuasive. When the ALJ's decision is read in proper context, there is no inconsistency. The ALJ began by summarizing Caballero's appointment with Dr. Hassman, which occurred in December 2019. (AR 26.) As the ALJ noted, at that time, Caballero used a walker to ambulate and was unable to take more than a few steps without it. (AR 26.) The ALJ then summarized treatment notes dated after that appointment. The ALJ noted that Caballero was observed with steady, unassisted ambulation in January, March, June, and August 2020. (AR 26.) The ALJ then found, based on the records from 2020, that Caballero had “improved” to the point that she no longer needed a walker. (AR 26.) The ALJ provided the following remarks:
In this case, the claimant alleged that dizziness, visual disturbance, poor balance and right sided weakness persisted, required the use of a walker, and continued since the alleged onset date. The evidence of record, however, is replete with examples of the claimant's improved condition. Exams in 2020 note no use of a walker and steady gait, as well as full extremity strength. Accordingly, the undersigned finds that evidence about the duration and frequency of the claimant's symptoms, particularly those related to the ability to ambulate, does not support the level of symptomology that the claimant alleged. Based on the exams in 2020 and other evidence detailed in this decision, the assertion that an assistive device was required for ambulation
to perform work activity is rejected.(AR 26 (emphases added).)
The comments about Caballero's “improved condition” in 2020 leave no doubt about the ALJ's findings. The ALJ found that Caballero needed a walker when she saw Dr. Hassman in December 2019, but that she improved throughout 2020 to the point that a walker was no longer necessary. Thus, the ALJ unambiguously “rejected” Caballero's assertion that she needed a walker. (AR 26.) Consistent with that finding, the ALJ omitted that restriction from the residual functional capacity. (See AR 23-24.)
The ALJ's later comments about Dr. Hassman's opinions are not inconsistent. The ALJ summarized the opinions, including that Caballero could perform sedentary work, would need certain exertional and environmental restrictions, and would need a walker. (AR 27.) The ALJ then wrote: “The undersigned is persuaded by this opinion, as it is supported by the examination conducted.” (AR 27 (emphasis added).) The italicized phrase limits the ALJ's finding. That is, the ALJ found that Caballero's condition at the December 2019 appointment supported Dr. Hassman's opinion that a walker was medically necessary at that time. The ALJ did not find, based on Dr. Hassman's opinion, that a walker continued to be medically necessary; as explained above, the ALJ found that Caballero's condition “improved” in 2020. (AR 26.)
Caballero's arguments to the contrary are not convincing. She argues that by relying on the ALJ's express rejection of the walker restriction, the Court is engaging in improper post-hoc rationalization. That is incorrect. The Court is not providing reasoning where there is none; rather, the Court is discerning the ALJ's reasoning by considering the decision in its full context. See Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (rejecting the claimant's interpretation of the ALJ's remarks based on “[t]he context of the ALJ's decision as a whole”).
Caballero next argues that because her walker was prescribed, the ALJ was required to include a walker restriction in the residual functional capacity. She says that “[i]t is not an ALJ's proper role to base a non-disability decision on his or her view that a claimant should not follow prescribed treatment.” Undoubtedly, there are cases where it would be reversible error for the ALJ to reject a prescribed walking device. But Caballero cites no authority supporting the contention that there is a bright-line rule requiring ALJs to always accept a prescribed device. Indeed, that rule would make little sense in this case, where there is no indication that the walker was prescribed as a permanent, lifetime measure, and where the record indicates that Caballero improved to the point that she used her walker only infrequently.
Finally, Caballero argues the ALJ erred in stating that “[e]xams in 2020 note no use of a walker and steady gait, as well as full extremity strength.” (AR 26.) She interprets this statement as meaning that no examination in 2020 showed the use of a walker, and she says this is wrong because she was observed using a walker on two occasions. The Court disagrees with Caballero's interpretation. Before the statement in question, the ALJ provided several specific examples of Caballero not using her walker in 2020. (AR 26.) In context, the ALJ was merely referring back to those examples; the ALJ did not say, or clearly imply, that Caballero never used her walker in 2020.
In sum, there was no inconsistency in the ALJ's findings. The ALJ reasonably evaluated the longitudinal evidence and concluded that Caballero did not need a walker to ambulate. The Court therefore rejects Caballero's claim of error.
II. The ALJ failed to resolve a conflict regarding Caballero's reasoning abilities.
Caballero argues that the vocational expert's testimony conflicts with the Dictionary of Occupational Titles (DOT), and that the ALJ committed reversible error in failing to resolve the conflict. The Court agrees.
After finding that the claimant cannot return to his past work, the ALJ must, at step five, decide whether the claimant can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v). “In making this determination, the ALJ relies on the DOT,” which “describes the requirements for each listed occupation.” Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015) (citations omitted). The ALJ also “relies on the testimony of vocational experts who testify about specific occupations that a claimant can perform in light of his residual functional capacity.” Id. at 846 (citations omitted). “When there is an apparent conflict between the vocational expert's testimony and the DOT-for example, expert testimony that a claimant can perform an occupation involving DOT requirements that appear more than the claimant can handle-the ALJ is required to reconcile the inconsistency.” Id. (citing Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007)).
Under the DOT, there are six reasoning levels. Reasoning Levels 1 through 3 are relevant here:
Level 3: Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.
Level 2: Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.
Level 1: Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.DOT, App. C, 1991 WL 688702.
The ALJ limited Caballero to “simple, unskilled work” involving one- to three-step tasks. (AR 23-24, 522-23.) This circuit has found that a restriction to one- and two-step tasks is consistent with Reasoning Level 1. Rounds v. Comm r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015). Another circuit has found that a restriction to one- to three-step tasks is consistent with Reasoning Level 2. Surprise v. Saul, 968 F.3d 658, 662-63 (7th Cir. 2020). Under these authorities, Caballero is at most capable of performing work involving Reasoning Level 2.
The vocational expert testified, and the ALJ found, that Caballero could perform work as an order clerk, document preparer, and touch-up screener. (AR 29, 520-23.) The order clerk and document preparer jobs require Reasoning Level 3. DOT 209.567-014, 1991 WL 671794 (order clerk); DOT 249.587-018, 1991 WL 672349 (document preparer). Therefore, the vocational expert's testimony apparently conflicts with the job requirements set forth in the DOT. See Rounds, 807 F.3d at 1003-04 (reaching a similar conclusion on similar facts). The ALJ did not identify this conflict and thus did not ask the vocational expert if the conflict could be resolved. This was error. See SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (stating that an ALJ may not rely on expert testimony that conflicts with the DOT until the conflict is resolved).
The Court finds that the error was not harmless. A step-five error as to one job may be harmless if the vocational expert identifies another job that the claimant can perform, and that other job exists in significant numbers in the national economy. De Rivera v. Berryhill, 710 Fed.Appx. 768, 768-69 (9th Cir. 2018). Here, the vocational expert testified that a person with Caballero's abilities could also perform work as a touch-up screener, and that there were 5,800 such jobs available nationally. (AR 520.) This is an insufficient number of jobs. See Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (calling 25,000 jobs a “close call”); De Rivera, 710 Fed.Appx. at 769 (holding that 5,500 jobs were insufficient to establish harmless error).
The ALJ misstated the vocational expert's testimony and wrote that there were 58,000 jobs available nationally. (AR 29.)
The Commissioner argues that the ALJ's error was harmless because “[n]othing in the record suggests that [Caballero] was actually limited to one to three step tasks,” and because “there is persuasive evidence that [she] remained able to perform reasoning level 3 jobs.” However, none of the evidence highlighted by the Commissioner convincingly shows that Caballero can perform work involving Reasoning Level 3. The Commissioner first points out that Caballero formerly worked as a dog bather, which involves Reasoning Level 3. However, Caballero performed that job for only one hour per day and last performed it in 2011-about ten years before the ALJ's decision. (AR 721, 891.) The Commissioner also points out that, in December 2020, test results indicated that Caballero had a “mild” to “moderate” impairment in her activities of daily living. (AR 108-10.) The Court disagrees that Caballero's impaired functioning shows she can perform Reasoning Level 3 work, especially since some of her test answers indicate that she struggled with ordinary tasks. (See AR 109 (“Husband manages money due to difficulty with numbers.”; “Often relied on husband and others to step in and provide support or rescue” when confronting “basic problems of daily living.”).)
Moreover, the Ninth Circuit has rejected the Commissioner's position in similar circumstances. In Rounds, the ALJ “expressly limited [the claimant] to ‘one to two step tasks,'” which was inconsistent with the Reasoning Level 2 jobs identified by the vocational expert. 807 F.3d at 1003-04. As there was “no explanation in the record as to why the [vocational expert] or the ALJ may have believed that . . . specific limitation . . . should not be taken at face value,” the court found that “the record d[id] not support a conclusion that the ALJ's failure to resolve t[he] apparent conflict was harmless error.” Id. at 1004. The same is true here: the ALJ expressly limited Caballero to tasks involving one to three steps, and there is no indication that the ALJ believed she was actually capable of more than that. As such, the record does not support a finding of harmless error.
III. Any error as to Caballero's educational abilities was harmless.
At step five, the ALJ found that Caballero “has at least a high school education.” (AR 28.) Caballero argues this finding is not supported by substantial evidence, as the record overwhelmingly demonstrates that her educational abilities are below those of a high school graduate. Assuming the ALJ erred in this regard, Caballero has failed to establish that the error was harmful. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (stating that “the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination”).
When determining whether a claimant can adjust to other work, the ALJ must evaluate the claimant's education (among other factors). 20 C.F.R. § 404.1520(a)(4)(v). The Social Security Administration recognizes four categories of education:
(1) Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
(2) Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at ¶ 6th grade level or less is a marginal education.
(3) Limited education. Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.
(4) High school education and above. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at ¶ 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.Id. § 404.1564(b).
Unless there is evidence to the contrary, the ALJ will categorize a claimant based on the last numerical grade completed. Id. Here, Caballero identifies evidence indicating that although she graduated with a high school diploma, her educational abilities are lower than those required for a “high school education.” (See AR 522 (in 2020, Caballero testified that she has a reading disability); AR 890-93 (in 2007, Caballero reported finishing high school through special education classes, and testing showed that she had borderline intellectual functioning and reading, spelling, and arithmetic skills at “about [a] third grade level”).) The Commissioner responds that other evidence shows it was reasonable for the ALJ to rely on Caballero's numerical grade level (e.g., Caballero read and completed numerous forms in connection with her application for benefits).
If Caballero's evidence is accepted as true, she is in the “marginal education” category. That is, her educational abilities are “at a 6th grade level or less” but greater than the abilities of those in the “illiteracy” category. 20 C.F.R. § 404.1564(b). Those who have a marginal education generally have the skills necessary to do “simple, unskilled types of jobs.” Id. Here, the vocational expert testified that someone who is limited to “simple, unskilled work” can work as an order clerk, document preparer, and touch-up screener. (AR 522-23.) Thus, the ALJ's alleged error did not affect the vocational expert's testimony. See Knight v. Comm'r of Soc. Sec., 783 Fed.Appx. 962, 966 (11th Cir. 2019) (overstating the claimant's education was harmless error because even if the claimant “had only a marginal education, the [vocational expert] identified only unskilled jobs for which a marginal education is sufficient”).
Caballero passingly argues that the alleged error was harmful because the jobs identified by the vocational expert require Language Level 2, and her educational abilities place her at Language Level 1. The DOT defines Language Level 2 as follows:
Reading: Passive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words per minute. Read adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation.
Read instructions for assembling model cars and airplanes.
Writing: Write compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs.
Speaking: Speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses.DOT, App. C, 1991 WL 688702.
Caballero offers no explanation why her language abilities are lower than this standard. Furthermore, the record does not appear to support that proposition. Caballero apparently was able to read the application forms, as she gave clear written answers to most questions (despite frequent spelling errors). (See AR 759-65, 823-30.) She also gave clear verbal answers during her administrative hearing. (See AR 501-10.) In the absence of any explanation, Caballero has failed to establish harmful error.
The fact that Caballero has language abilities does not undermine the conclusion that the ALJ erred with respect to her reasoning abilities. The ability to read instructions does not equate to the ability to understand, remember, and carry out those instructions.
IV. This case should be remanded for further proceedings.
When the Commissioner errs, the Court normally should remand back to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (citing Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). The Court may remand for an immediate award of benefits, however, if three conditions are met: (1) the ALJ improperly rejected the claimant's testimony or a medical opinion, (2) there are no important issues outstanding, and further proceedings would not otherwise be useful, and (3) the claimant would necessarily be found disabled if the improperly rejected evidence is credited as true. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
The ALJ's error in this case-failing to resolve a conflict between expert testimony and the DOT-is not analogous to the improper rejection of evidence. Therefore, the first condition is not satisfied. The second condition also is not satisfied. Further proceedings would be useful so that the ALJ can, at the least, resolve the conflict and determine whether Caballero can adjust to work as an order clerk or document preparer. Therefore, IT IS RECOMMENDED that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for a new hearing and decision.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-21-00464-TUC-CKJ.