Opinion
For Orlando A Cobb, Plaintiff: Steven G Rosales, LEAD ATTORNEY, Law Office of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Armand D Roth, Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA.
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE AND REMANDING FOR FURTHER PROCEEDINGS
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Cobb challenges the denial of his application for Social Security benefits. On appeal, Plaintiff contends that the Administrative Law Judge (ALJ) failed to state a proper basis for rejecting Plaintiff's testimony regarding his symptoms and condition. Plaintiff also argues that the ALJ impermissibly relied on the vocational expert's testimony regarding Plaintiff's ability to perform available work.
The Court agrees on both grounds. However, because of the nature of the ALJ's errors and the Court's doubts regarding whether Plaintiff is actually disabled, the Court vacates the ALJ's decision and remands the case to the agency for further proceedings.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for disability benefits based on various physical and mental conditions. Although not entirely clear from the record, it appears that the application was for the limited period from the time Plaintiff was laid off in 2011 until he returned to work as a bus driver in 2012.
After an administrative hearing, the ALJ found that Plaintiff's knee and back conditions were " severe impairments" as that term is used under the federal regulations. (AR 18.) The ALJ determined that Plaintiff had the Residual Functional Capacity (RFC) to perform less than a full range of " light work" as defined in 20 C.F.R. § 416.967(b). (AR 19.) The ALJ found that Plaintiff could stand or walk at work for only " two hours out of an eight-hour day." (Id.) The ALJ also included several postural limitations and environmental restrictions. In establishing the RFC, the ALJ found that Plaintiff was not credible in describing his symptoms and limitations. (AR 20-21.)
At the hearing, a vocational expert testified that a person with Plaintiff's RFC could perform several jobs available in the national and local economies. (AR 23, 47-48.) As discussed below, some of those jobs were categorized at the light level and some at the sedentary level of work under federal regulations.
From this, the ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 24.)
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). A court must uphold the ALJ's conclusion even if the evidence in the record " is susceptible to more than one rational interpretation." Ludwig v. Astrue, 681 F.3d 1047, 1052 (9th Cir. 2012) (quotation omitted).
A reviewing court " leave[s] it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). If the evidence " can reasonably support either affirming or reversing the decision, " this Court " may not substitute [its] judgment for that of the Commissioner" or the ALJ. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
IV. DISCUSSION
A. Adverse Credibility Determination (Issue 1)
The Court summarily vacates the ALJ's adverse credibility finding. The Court closely read the section of the ALJ's written decision in which she rejected Plaintiff's believability. (AR 20-21.) The ALJ recited several familiar, boilerplate sentences setting forth the general analysis required to reject a claimant's testimony. As the Ninth Circuit recently observed, " [a]fter making this boilerplate statement, the ALJs typically identify what parts of the claimant's testimony were not credible and why." Treichler, 775 F.3d at 1102 (emphasis added).
Not here, though. The ALJ recited aspects of Plaintiff's testimony and the contents of function reports that he and his wife submitted to the agency. (AR 20.) The ALJ also regurgitated at length the medical findings of various physicians and mental health professionals. (AR 20-22.) But nowhere in the written decision did the ALJ link this material to a " specific, clear, and convincing reason" for disbelieving Plaintiff. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). That's a basic error with the decision.
To be clear, the ALJ certainly could have provided a legitimate reason to support the adverse credibility finding. Plaintiff admitted that he collected unemployment insurance during the period of his alleged disability. This required a statement from the claimant that he was able to work, which can " cast doubt on a claim of disability" and establish a lack of credibility. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). Alternatively, the ALJ could have explained that she disbelieved Plaintiff because he actually was able to return to work as a bus driver. That also may serve as a clear and convincing reason sufficient to support an adverse credibility finding. Bray v. Comm'r of Sec. Sec. Admin, 554 F.3d 1219, 1227 (9th Cir. 2009). Or, the ALJ could have let the world know that she thought Plaintiff lied about his symptoms because he left his last job because he was laid off, not based on his diagnosed ailments. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (claimant admitted " he left his job because he was laid off, rather than because he was injured").
But the Court should not have to guess which of these -- or any other reasons struck the ALJ as significant. The ALJ was obliged to render a clear, non-arbitrary decision capable of appellate review. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). That did not happen in this case, though. Moreover, the government's effort to cobble together reasoning that could have supported the ALJ's decision fails to meet this key requirement. Molina v. Astrue, 674 F.3d 1104, 1120 (9th Cir. 2012) (federal court " may not uphold an agency's decision on a ground not actually relied upon by the agency"). Because of the cursory nature of the ALJ's boilerplate decision, the Court is unable to conclude that the error here was harmless or could have led to a different result. Ludwig, 681 F.3d at 1054. Remand is therefore warranted.
B. Vocational Expert Testimony and Grid Applicability (Issue 2)
When the ALJ set Plaintiff's RFC -- in a range below the full range of light work and above the level of sedentary work -- the vocational expert identified several light and sedentary jobs that Plaintiff could potentially hold. (AR 47-48.) The expert stated that her opinion about those jobs was consistent with the Labor Department's Dictionary of Titles. Plaintiff contends that the expert was wrong about his ability to perform the light work positions given the limitations in the RFC. From there, Plaintiff argues that the ALJ was required to find Plaintiff disabled by reference to the Grids as required under Ninth Circuit law.
The government does not defend the expert's evaluation regarding the light work jobs -- and tells the Court that it " need not examine" that issue -- because it believes that the expert's identification of sedentary jobs is sufficient to support the denial of disability benefits. (Docket # 17 at 28.) With the government's concession in mind, the situation that the ALJ analyzed becomes this: the ALJ established a less-than-full-light-work RFC for Plaintiff under which the vocational expert identified only sedentary jobs that Plaintiff could perform.
That was exactly the scenario presented in Distasio v. Shalala, 47 F.3d 348 (9th Cir. 1995). In Distasio, the ALJ concluded that the claimant " was capable of light work, but with limitations. The vocational expert testified that Distasio could only perform what she believed were sedentary jobs." Id. at 349. The expert's testimony regarding the actual, sedentary level of the claimant's ability to work " belied the ALJ's finding" that the claimant was able to perform more strenuous work. Id. The Ninth Circuit concluded that insufficient evidence supported the conclusion that the claimant had an RFC between the light and sedentary classifications. From this, the court determined that the Grids required a disability finding based on the plaintiff's true sedentary work limits, age, and educational and skill levels, and remanded for the award of benefits. Id.; see also Durkee v. Astrue, No. CV 11-6564 PLA, 2012 WL 3150587 at *5 (C.D. Cal. 2012) (" If the VE only testified regarding sedentary jobs, the ALJ was required to consult the sedentary grid.") (citing Distasio); Donald v. Colvin, No. ED CV 13-1334 JEM, 2014 WL 3105026 at *7 (C.D. Cal. 2014) (Distasio controls outcome when expert testifies that claimant capable of performing only sedentary jobs).
Distasio dictates the result here. The ALJ presented the vocational expert with a light-minus / sedentary-plus RFC (terms taken from the Distasio decision). However, the expert was unable to legitimately identify a light work job that Plaintiff could perform. As a result, the nominal less-than-light work RFC effectively became a sedentary rating, which required the ALJ to consult the sedentary grid due to Plaintiff's age, etc. The government's argument -- Plaintiff could hold the sedentary jobs that the expert identified, so he's employable and not disabled -- ignores the direct holding of Distasio and its progeny. Indeed, the government did not even address Distasio in its brief to the Court.
By identifying only sedentary jobs for Plaintiff, the vocational expert undercut the ALJ's light work RFC finding. Plaintiff was entitled to have the agency apply the Grids in his circumstance. Remand is necessary for proper evaluation of Plaintiff's claim.
C. Remedy
The choice of whether to remand for further administrative proceedings with the agency or for an award of benefits is within the discretion of the Court. Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000); Burt v. Colvin, __ Fed.Appx. __, 2015 WL 2374169 (9th Cir. 2015) (same).
The Court will remand for an award of benefits in " rare circumstances, where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed." Treichler, 775 F.3d at 1100. Such a circumstance may occur when an ALJ improperly rejects the testimony of a claimant or opinion of a treating physician and, crediting that testimony as true, the agency is required to find that the claimant is disabled. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Alternatively, remand on an " open record" is appropriate when there is " serious doubt as to whether Claimant is, in fact, disabled" and unemployable under agency regulations. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
This case brings together: (a) an ALJ's ill-articulated adverse credibility determination; (b) a vocational expert's unsupportable opinion regarding employability; and (c) a claimant's disability application for a limited period bookended by employment at reasonably vigorous jobs. The ALJ's error weighs toward a remand for benefits, while the expert's mistake and the failure to consult the Grids shade toward further proceedings. Looming over all of this, though, is the Court's " serious doubt" regarding Plaintiff's disability claim. Burrell, 775 F.3d at 1141. Remand for rehearing carries the day.
V. CONCLUSION
Based on the errors identified in the ALJ's written decision, the Court REMANDS this case to the agency for further proceedings.
IT IS SO ORDERED.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is VACATED, and the matter is REMANDED to the Social Security Administration for further proceedings consistent with the Court's Order.