Opinion
Case No. 3:15-cv-02115-SU
03-28-2017
HAROLD GOODWIN, Plaintiff, v. COMMISSIONER, Social Security Administration, Defendant.
FINDINGS AND RECOMMENDATION
:
Plaintiff Harold Goodwin brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner found Plaintiff not disabled within the meaning of Act, id. § 1614(a)(3)(A), and denied his application for Supplemental Security Income, see id. § 1381 et seq. The Commissioner opposes Plaintiff's Complaint. (Docket No. 19). For the following reasons, the Court AFFIRMS the Commissioner's decision.
Following an extension (Docket No. 21), plaintiff's optional reply brief was due February 22, 2017. Plaintiff did not submit one. Accordingly, this matter went under advisement as of March 1, 2017. (Id.)
FACTUAL BACKGROUND
Plaintiff is forty-six years old. Tr. 20, 58. Plaintiff suffers from degenerative disc disease, peripheral neuropathy, sciatica, obesity, and a cognitive disorder; he also has a history of hypertension, hyperlipidemia, Bell's palsy, depressive disorder, dysthymic disorder, adjustment disorder with depressed mood, and alcohol abuse. Tr. 12, 230, 263, 265, 275, 278, 286, 317-21, 352, 360, 371. Plaintiff has a high school diploma, and was in special education classes from kindergarten through high school. Tr. 17, 223. Plaintiff's last employment was as a janitor. Tr. 17, 32. Plaintiff has a history of homelessness. Tr. 13, 59.
Citations "Tr." refer to indicated pages in the official transcript of the Administrative Record filed with the Commissioner's Answer on September 2, 2016. (Docket Nos. 6 & 7).
PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for Supplemental Security Income on March 1, 2012, alleging a disability beginning March 31, 2008 (later amended to March 1, 2012). Tr. 10, 58-59. The claim was denied initially on May 18, 2012, and upon reconsideration on February 11, 2013. Tr. 10, 65-66, 79-80. Plaintiff filed a written request for hearing on March 28, 2013. Tr. 10, 99-101. A hearing was held August 21, 2014, in Portland, Oregon, before ALJ S. Andrew Grace. Tr. 10, 27-54 (hearing transcript). Plaintiff appeared and testified at the hearing. Id. A vocational expert ("VE"), Paul K. Morrison, also appeared and testified. Id. A non-attorney representative represented plaintiff at the hearing. Id. The ALJ issued his decision on September 18, 2014, determining that because plaintiff could perform jobs that exist in significant numbers in the national economy, he was not disabled. Tr. 20-21. The Appeals Council refused plaintiff's request for review, and the decision became final on September 9, 2015. Tr. 1-4. Plaintiff then sought review before this Court. Compl. (Docket No. 1).
STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (quotation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) ("[The court] must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation." (quotation omitted)).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41 & n.5; 20 C.F.R. § 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id.; 20 C.F.R. § 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner determines whether the claimant can still perform "past relevant work." Id.; 20 C.F.R. § 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. Id. § 416.966. The determinations at steps four and five are based on the claimant's "residual functional capacity" ("RFC"), that is, "is what a claimant can still do despite [his] limitations." Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996); 20 C.F.R. § 404.1545(a).
THE ALJ'S FINDINGS
At step one, the ALJ found had plaintiff had not engaged in any substantial gainful activity since March 1, 2012, the application date. Tr. 12. At step two, the ALJ found that plaintiff had the following severe impairments: degenerative disc disease, peripheral neuropathy, sciatica, obesity, and a cognitive disorder. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or medically equaled those listed. Tr. 13.
The ALJ found that plaintiff had the RFC to perform light work subject to certain restrictions; relevant here, the ALJ determined that plaintiff "should be limited to the performance of simple, routine, and repetitive tasks consistent with unskilled work." Tr. 14. At step four, the ALJ found that plaintiff was unable to perform any past relevant work. Tr. 19.
At step five, the ALJ consulted with the VE. The VE testified that, considering plaintiff's age, education, work experience, and RFC, plaintiff could perform representative occupations such as laundry folder (DOT code 369.687-018; light; unskilled, SVP 2) and price marker (DOT code 209.587-034; light; unskilled, SVP 2). Tr. 20. The ALJ thus determined that plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy, and so was not disabled. Tr. 21.
"'SVP' refers to the 'specific vocational preparation' level which is defined in the DOT as 'the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.' Dictionary of Occupational Titles, App. C, page 1009 (4th ed. 1991). SVP 2 means "anything beyond a short demonstration up to and including 1 month." Bray v. Comm'r, 554 F.3d 1219, 1230 (9th Cir. 2009). "[U]nskilled work corresponds to an SVP of 1-2." Id. (quoting SSR 00-4p, available at 2000 WL 1898704, at *3).
DISCUSSION
Plaintiff argues that the ALJ erred in not resolving a conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). See Pl.'s Br. at 6-7 (Docket No. 18).
When there is an "apparent conflict" between the VE'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 that inconsistency. Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015). "The ALJ must ask the expert to explain the conflict and then determine whether the [VE's] explanation for the conflict is reasonable before relying on the expert's testimony to reach a disability determination." Id. (quotation omitted); see also Social Security Ruling 00-4P, available at 2000 WL 1898704. For a difference between a VE's testimony and the DOT's listings to constitute a conflict that requires this resolution, the conflict "must be obvious or apparent." Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016).
Plaintiff argues that there is a conflict between the RFC that the ALJ found plaintiff to have and the VE's testimony that plaintiff can perform the representative occupations of laundry folder and price marker. Plaintiff observes that both laundry folder and price marker have General Educational Development ("GED") Reasoning Levels of 2. Level 2 Reasoning occupations require the worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions," and "[d]eal with problems involving a few concrete variables in or from standardized situations." DOT, App. C, available at 1991 WL 688702. Plaintiff argues that the RFC's limitation of plaintiff to simple, routine tasks is inconsistent with Level 2 Reasoning's specification of "detailed but involved" instructions.
The DOT describes the requirements for each listed occupation, including the required GED levels, that is, "'aspects of education (formal and informal) . . . required of the worker for satisfactory job performance.'" Zavalin, 778 F.3d at 846 (quoting DOT, App. C, available at 1991 WL 688702 (4th ed. 1991)). "The GED levels includes the reasoning ability required to perform the job, ranging from Level 1 (which requires the least reasoning ability) to Level 6 (which requires the most)." Id. --------
The Ninth Circuit has foreclosed this argument. In Zavalin, the plaintiff was limited to "simple, routine tasks" and "simple, repetitive tasks." 778 F.3d at 845. The court held that "Level 2 Reasoning—applying common sense to carry out detailed but uncomplicated instructions and dealing with problems involving a few variables—seems at least as consistent with [this] limitation as Level 3 Reasoning, if not more so," and that Level 3 Reasoning's requirement of "carry[ing] out instructions furnished in written, oral, or diagrammatic form" was "at odds with" those limitations. Id. at 847. Cf. Rounds v. Comm'r, 807 F.3d 996, 1003 (9th Cir. 2015) (holding that limitation to "one- and two-step tasks" was inconsistent with Level 2, but consistent with Level 1, Reasoning). An unpublished Ninth Circuit case is more explicit: "someone able to perform simple, repetitive tasks is capable of doing work requiring more rigor and sophistication [than Level 1 jobs]—in other words, Reasoning Level 2 jobs." Lara v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008). Thus, plaintiff's limitation to simple tasks is consistent with Level 2's "detailed but uncomplicated instructions" language, and there is no conflict.
Moreover, district courts in this District have repeatedly held that Reasoning Level 2 is consistent with (and not merely "seem[ing] at least as consistent" with) a limitation to simple tasks. See, e.g., Watkins v. Comm'r, No. 6:15-cv-01539-MA, 2016 WL 4445467, at *6-7 (D. Or. Aug. 22, 2016) (rejecting argument that limitation to "simple work tasks" was inconsistent with Level 2 Reasoning occupations, and observing that "[t]he District of Oregon repeatedly has held that the limitation to perform simple and routine tasks is not inconsistent with Reasoning Level 2 jobs"); Barnes v. Colvin, No. 6:14-cv-01906-HZ, 2015 WL 8160669, at *3-4 (D. Or. Dec. 7, 2015) (holding that limitation to "simple, routine, tasks" with "simple, short instructions" was consistent with Reasoning Level 2); Diller v. Comm'r, No. 6:14-cv-01414-MA, 2015 WL 5308233, at *12 (D. Or. Sept. 10, 2015) ("[A] limitation to simple routine work or simple repetitive tasks is consistent with jobs with a level two reasoning . . . ."); Dschaak v. Colvin, No. 3:13-cv-02127-MA, 2015 WL 181803, at *6 (D. Or. Jan. 14, 2015) ("[T]here is no inconsistency between Reasoning Level 2 jobs and the limitation to simple, routine work."); Gilbert v. Colvin, No. 6:14-cv-00394-AA, 2015 WL 1478441, at *6 (D. Or. Mar. 31, 2015) ("This court has held repeatedly that the limitation to perform simple and routine tasks is not inconsistent with Reasoning Level 2 jobs."); Owens v. Colvin, No. 3:14-cv-01299-BR, 2015 WL 4112375, at *7 (D. Or. July 7, 2015) ("[T]he limitation to 'simple, repetitive task work, not complex or detailed' in the ALJ's assessment of Plaintiff's RFC is consistent with Reasoning Level Two . . . .").
There is no inconsistency between the VE's testimony and the DOT. See Gutierrez, 844 F.3d at 808. With no need to reconcile, the ALJ committed no error.
RECOMMENDATION
For the above-stated reasons, there was no conflict between the VE's testimony and the DOT. The Commissioner's decision should be AFFIRMED.
SCHEDULING ORDER
The above Findings and Recommendation will be referred to a United States District Court Judge for review. Objections, if any, are due within fourteen (14) days. If objections are filed, a response to the objections is due fourteen (14) days after the date the objections are filed and the review of the Findings and Recommendation will go under advisement on that date.
IT IS SO ORDERED.
DATED this 28th day of March, 2017.
/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge