Opinion
For Javier Avelino Contreras, 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, 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, LEAD ATTORNEY, Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA.
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
ALEXANDER F. MacKINNON, UNITED STATES MAGISTRATE JUDGE.
The two disputed issues in the Joint Stipulation (" Jt Stip") are (1) whether the Administrative Law Judge (" ALJ") made a proper adverse credibility determination with respect to plaintiff's subjective symptom testimony and (2) whether the ALJ properly determined that plaintiff could perform alternative work in light of the ALJ's assessment of residual functional capacity. (Jt Stip at 4-5.) The Court now rules as follows with respect to these issues.
The decision in this case is being made on the basis of the pleadings, the administrative record (" AR"), and the Joint Stipulation filed by the parties.
I. The ALJ's Adverse Credibility Finding Provided Clear and Convincing Reasons That Were Supported by Substantial Evidence .
An ALJ's assessment of pain severity and claimant credibility is entitled to " great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc). An ALJ may consider a variety of factors ordinarily used in assessing credibility. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).
Here, plaintiff alleged that he was disabled because of lower lumbar injury, knee problems, hypertension, diabetes, high cholesterol, and a liver infection. (AR 13, 37, 51.) At the administrative hearing, he testified about his limitations, employment history, and daily activities. The ALJ summarized plaintiff's testimony as follows:
In testimony, the claimant alleged he was unable to work because of chronic back pain aggravated by lifting, bending, twisting, reaching overhead, climbing stairs, and prolonged sitting, standing, and walking. He asserted he frequently shifted positions to alleviate pain, could sit for 20 to 30 minutes at a time, and could stand or walk for 15 to 20 minutes at a time. He reported waking up frequently during the night due to pain. He contended that on one occasion about six months prior to the hearing, pain prevented him from getting out of bed for three days. He reported a remote history of arthroscopic knee surgery and indicated he had recurrent knee pain. He asserted he took prescribed pain medication three times daily. He indicated he had difficulty lifting his leg high enough to get into the shower but was able to bathe himself by sitting on the edge of the tub. He reported he needed some assistance with personal care that required bending or twisting. He denied doing housework, shopping, or laundry, though he confirmed he was able to drive. He reported daily activities of watching television, napping, and alternating between sitting, standing, and walking. (AR 15.)
The ALJ determined that plaintiff suffered from severe impairments of " degenerative joint disease of the bilateral knees, degenerative disk disease, and obesity." (AR 13.) However, the ALJ also found that " [plaintiff's] statements concerning the intensity, persistence and limiting effects of [his alleged] symptoms are not fully credible." (AR 15.) In support of this adverse credibility determination, the ALJ proffered four reasons. (AR 15-16.)
One reason proffered by the ALJ was that the plaintiff acknowledged receiving unemployment compensation after the alleged onset date of his disability and was receiving unemployment at the time of the administrative hearing. (AR 29-30.) Plaintiff has not rebutted this reason in the Joint Stipulation, other than to say he did not want to receive unemployment. (Jt Stip at 11.) Yet to obtain unemployment compensation, plaintiff also admitted he signed a form stating he was " willing and able to work full time." (AR 29.) That plaintiff held himself out as being available for full-time work is inconsistent with his disability claim and supports the finding of diminished credibility. See Carmickle v. Comm'r, 533 F.3d 1155, 1161-62 (9th Cir. 2008); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988).
A second and related reason set out by the ALJ was that plaintiff had intermittently worked after the alleged onset date of his disability. (AR 15.) Plaintiff worked in 2008 (off and on), 2009, 2011 (for 12 months), and 2012 (for 2 months). (AR 26-27.) His jobs included foreman, building guard and in-home caretaker. While plaintiff's need to earn a living is certainly a strong countervailing factor, the law provides that the performance of other work in the pertinent time period is a permissible reason in support of the ALJ's credibility determination. See Bray v. Comm'r of SSA, 554 F.3d 1219, 1227 (9th Cir. 2009).
Third, the ALJ noted that the medical evidence of record showed that plaintiff had " sought only sporadic treatment, which undermines the credibility of his allegations." (AR 16.) See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (in assessing credibility, the ALJ may properly rely on unexplained or inadequately explained failure to seek treatment). The ALJ reviewed all of the medical files submitted by plaintiff and found it to be " scant medical evidence." (AR 16, 230-67.) Plaintiff had lost his health insurance, but he was aware of lowincome clinics offered by the City of L.A. and the L.A. County/USC Medical Center. (AR 35.) Nevertheless, the record contained few instances of plaintiff receiving, or attempting to receive, treatment for his alleged symptoms (AR 16), and plaintiff has not attempted to address or explain his minimal treatment.
The fourth reason proffered by the ALJ for her credibility finding was that the objective medical evidence did not support the symptom severity and functional limitations alleged by plaintiff. The ALJ identified substantial evidence from medical records showing plaintiff's symptoms and physical limitations were not as great as he claimed. As the ALJ cited in her decision, plaintiff's degenerative joint disease in his knees led to only occasional complaints of knee pain. In response, plaintiff received conservative treatment via pain medication (Motrin) and advice that he should exercise and lose weight. (AR 257.) As to plaintiff's back pain, a physical examination reported lumbar tenderness to palpitation, but the straight leg test was negative. (AR 237.) Plaintiff also had a normal range of motion. (AR 237.) Plaintiff received conservative treatment of pain medication for his back pain, and it was reported that massages made his back better. (AR 237.) An MRI was performed three years after plaintiff's last insured date. (AR 265-67.) That scan showed degenerative disk disease, specifically disk bulges (but no herniation); mild to moderate stenosis at L5-S1, L4-5, and L3-4; and mild stenosis at L3-4. (AR 265-67.)
Although there is evidence of continuing back pain and structural back issues in the medical record, the Court finds that the overall evidence of less severe symptoms and functional limitations--and a course of conservative treatment--provided a legally sufficient reason on which the ALJ could properly rely in making an adverse credibility determination. See, e.g., Molina, 674 F.3d at 1113 (ALJ properly rejected claimant's testimony in part because it was inconsistent with medical evidence in the record); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (claimant's response to conservative treatment undermined his reports of disabling symptoms); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support for the claimant's subjective complaints); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on lack of objective evidence to support claimant's subjective complaints); Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (claimant's testimony belied by objective medical findings). The Court cannot second guess the ALJ's credibility finding on the basis that the evidence could also have been interpreted more favorably to Plaintiff. Tommasetti, 533 F.3d at 1039.
II. The ALJ Erred in Failing to Resolve the DOT .
The ALJ presented to the vocational expert a hypothetical person who was 49 years old, had a 12th grade education, was literate, could speak English, and had the following residual functional capacity:
He can lift and/or carry 10 pounds frequently, 20 pounds occasionally. He can stand and/or walk four hours out of an eight-hour workday. He can sit six hours out of an eight-hour day with the ability to stand and stretch every hour, estimated to take one to three minutes per hour . He can occasionally kneel, crouch, crawl, bend, and stoop. He can occasionally climb stairs. He cannot climb ladders, ropes or scaffolds. No work at unprotected heights, no jobs requiring balance, no concentrated exposure to vibration, and only occasional work overhead. (AR 48, emphasis added.)
In response, and based on his familiarity with the Dictionary of Occupational Titles (DOT), the vocational expert identified three jobs within the classification of light work that such a person could do: cashier II, assembler of small products, and assembler of electrical accessories. (AR 48-49.) For each job, the vocational expert reduced the number of available regional and national jobs " to allow for the reduced standing/walking." (AR 48-49.) The expert, however, did not address the impact of the reduced sitting limitation--which in the hypothetical required a one to three minute break from sitting during each hour. The ALJ relied on the testimony of the vocational expert exclusively in concluding that there were jobs in the national economy that plaintiff could have performed, specifically the three types of light work identified by the vocational expert during his testimony. (AR 17-18.) The ALJ's decision did not address or resolve the fact that the DOT did not include the hourly sit/stretch limitation.
Defendant contends that a DOT conflict did not arise here because the DOT does not explicitly address a worker's need to stand and stretch every hour for one to three minutes. (Jt Stip at 23.) The Court disagrees that the DOT's silence as to this limitation is dispositive, and finds persuasive the decisions of Ninth Circuit courts finding that such limitations, even if not specifically addressed by the DOT, can create an apparent conflict with the DOT. See, e.g., Manes v. Astrue, 267 F.App'x 586, 588 (9th Cir. 2008); Coleman v. Astrue, 423 F.App'x 754, 756 (9th Cir. 2011); Valenzuela v. Astrue, 2009 WL 1537876, at *3 (N.D. Cal. Jun. 2, 2009); see also Buckner-Larkin v. Astrue, 450 F.App'x 626, 628 (9th Cir. 2011) (assuming apparent conflict existed based on a person's need for a sit-stand option, but finding the conflict resolved by expert testimony based on labor market surveys, experience and research).
Social Security Ruling 00-4p, 2000 WL 1898704, specifically addresses the responsibilities of an ALJ with regard to vocational expert (VE) testimony. It provides that, before relying on VE testing to support a disability determination or decision, the ALJ must " [i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT) . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved." The ALJ has an " affirmative responsibility to ask about any possible conflict between that VE . . . evidence and information provided in the DOT, " and, if the " evidence appears to conflict with the DOT, the [ALJ] will obtain a reasonable explanation for the apparent conflict." Id. " [T]he ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational Titles." Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). Failure to do so is reversible error. Id.; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001); Light v. Social Sec. Admin., 119 F.3d 789, 793-94 (9th Cir. 1997).
Here, the ALJ prefaced her questioning of the vocational expert by stating: " Please testify according the Dictionary of Occupational Titles or explain why you're not testifying according to the Dictionary of Occupational Titles and state what your testimony is based upon." (AR 47.) The vocational expert did explain that he decreased the available jobs for " reduced standing/walking" in the hypothetical and that this decrease was based only on his " own experience." (AR 48-49.) The ALJ did not ask about the impact of the deviation in sitting and the requirement for stretching every hour; the vocational expert did not address that deviation; and there is no evidence in the record or reference in the ALJ's decision as to how the sitting/stretching deviation from the DOT was accounted for, if at all. This was error. The Commissioner argues that the requirements of SSR 00-4p and Massachi are satisfied by the vocational expert's terse reference to his " own experience" as a basis for job erosion. (Jt Stip at 24.) Yet the expert gave that testimony specifically regarding " reduced standing/walking" and not the sit/stretch limitation now at issue. (AR 48-49.) Moreover, the expert's conclusory reference to his " own experience" without more, is only " brief and indefinite testimony" of the type that Ninth Circuit has found to be insufficient to support a vocational expert's deviation from the DOT. See Tommasetti, 533 F.3d at 1042.
The Court further concludes that the error was not harmless. There was an apparent conflict with the DOT, yet no persuasive basis was provided for the vocational expert's deviation. As result, it is not possible to determine that substantial evidence supports the conclusion plaintiff could perform other work. See Massachi v. Astrue, 486 F.3d 1149, 1153-54, n.19 (9th Cir. 2007). Accordingly, reversal of the ALJ's decision on this ground is required.
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The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). Here, this is not an instance where no useful purpose would be served by further administrative proceedings or where the record has been fully developed. Rather, this is an instance where additional administrative proceedings could remedy the defects in the ALJ's decision.
In conclusion, the Court finds that the ALJ's adverse credibility determination set forth clear and convincing reasons that were supported by substantial evidence. However, the ALJ erred in her conclusion that plaintiff could perform the alternative work activity because the vocational expert's testimony raised an apparent conflict with the DOT. The expert did not provide an adequate basis for that deviation, and the ALJ's decision did not properly resolve the conflict. IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Order.
JUDGMENT
In accordance with the Order Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings filed concurrently herewith, IT IS ORDERED AND ADJUDGED that the decision of the Commissioner of Social Security is reversed and the matter is remanded to the Commissioner for further proceedings consistent with the Order.