Summary
finding no inconsistency between claimant's RFC and SSR 83-10 because "the job of mail clerk could be done spending only two hours standing or walking"
Summary of this case from Ray B. v. Comm'r Soc. Sec. Admin.Opinion
Case No. ED CV 13-1851-SP
03-31-2015
TAMMARA THOMPSON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
On October 21, 2013, plaintiff Tammara Thompson filed a complaint against the Commissioner of the Social Security Administration ("Commissioner"), seeking a review of a denial of supplemental security income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents one disputed issue for decision, whether the Administrative Law Judge ("ALJ") erred at step five of the sequential evaluation process by failing to identify and explain inconsistencies between the vocational expert's testimony and the Dictionary of Occupational Titles ("DOT"). Memorandum in Support of Complaint ("P. Mem.") at 5-16; Memorandum in Support of Defendant's Answer ("D. Mem.") at 2-8.
Having carefully studied, inter alia, the parties' moving papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ did not err at step five. Consequently, the court affirms the decision of the Commissioner denying benefits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was thirty-seven years old on June 14, 2002, the alleged onset date of disability. AR at 159. She has a high school diploma and past relevant work as a playground monitor, sales person, and laborer - stores. Id. at 33, 49, 218.
The record indicates there are two possible dates for the alleged onset of disability, January 1, 1989 or June 14, 2002. See AR at 159, 168. Although the ALJ relied on the January 1, 1989 date, it appear that the June 4, 2002 date is more accurate because plaintiff stopped working on June 14, 2002. See AR at 172.
On September 10, 2010, plaintiff filed an application for SSI, alleging an onset date of June 14, 2002 due to fibromyalgia, degenerative disc disease, arthritis, asthma, depression. Id. at 159, 172. The Commissioner denied plaintiff's application initially and upon reconsideration, after which she filed a request for a hearing. Id. at 104-15, 117-18.
This was plaintiff's fifth application for SSI and/or disability insurance benefits and a period of disability. See AR at 76. The fourth application was denied after a hearing. See id. at 76-89. Although the ALJ states that plaintiff "has not rebutted the presumption of continuing non-disability" (id. at 23), this appears to be an error as the ALJ did not apply the presumption and clearly found changed circumstances in the instant decision. Compare id. at 23-35 and 76-89.
On June 7, 2012, plaintiff, represented by counsel, appeared and testified before the ALJ. Id. at 45-72. Tony Scott, a vocational expert ("VE"), also provided testimony. Id. at 65-71. On June 29, 2012, the ALJ denied plaintiff's claim for benefits. Id. at 23-35.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since September 10, 2010, the application date. Id. at 25.
At step two, the ALJ found that plaintiff suffered from the following severe impairments: asthma, obesity, degenerative disc disease, and depression. Id.
At step three, the ALJ found that plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings"). Id.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"), and determined she had the RFC to perform a limited range of light work, with the limitations that plaintiff: could lift/carry twenty pounds occasionally and ten pounds frequently; could stand/walk two hours out of an eight-hour workday; could occasionally bend, kneel, stoop, crawl, and crouch; could not perform work requiring hypervigilance or fast-paced work such as a rapid assembly line work; could not work in an area that has more air pollutants than found in an air conditioned work environment; and could not perform complex tasks. Id. at 26-27. The ALJ also found that plaintiff had no restrictions with regard to sitting and would miss work once a month. Id. at 26.
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
The ALJ found, at step four, that plaintiff was unable to perform her past relevant work as a playground monitor, sales person, or laborer - stores. Id. at 33.
At step five, the ALJ determined that given plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that plaintiff could perform, including electronics worker and mail clerk. Id. at 33-34. Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act. Id. at 34.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 1-4. The ALJ's decision stands as the final decision of the Commissioner.
III.
STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
IV.
DISCUSSION
Plaintiff contends that the ALJ erred at step five because he improperly relied on the testimony of the VE, who identified jobs that exceeded plaintiff's RFC. P. Mem. at 5-16. Specifically, plaintiff alleges that the ALJ erred by failing to identify and explain three inconsistencies between the VE's testimony and the DOT. Id.
At step five, the burden shifts to the Commissioner to show that the claimant retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not disabled at step five, the Commissioner must provide evidence demonstrating that other work exists in significant numbers in the national economy that the claimant can perform, given his or her age, education, work experience, and RFC. 20 C.F.R. § 416.912(f).
ALJs routinely rely on the DOT "in evaluating whether the claimant is able to perform other work in the national economy." Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 416.966(d)(1) (DOT is source of reliable job information). The DOT is the rebuttable presumptive authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a VE's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT, and if so, the reasons therefor. Massachi, 486 F.3d at 1152-53 (citing Social Security Ruling ("SSR") 00-4p). But failure to so inquire can be deemed harmless error where there is no apparent conflict or the VE provides sufficient support to justify deviation from the DOT. Id. at 1154 n.19.
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted).
In order for an ALJ to accept a VE's testimony that contradicts the DOT, the record must contain "'persuasive evidence to support the deviation.'" Id. at 1153 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation may be either specific findings of fact regarding the claimant's residual functionality, or inferences drawn from the context of the expert's testimony. Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted).
Here, the ALJ, as required, asked the VE whether his testimony was consistent with the DOT, to which the VE replied that it was. AR at 68. Although the ALJ fulfilled his initial obligation to inquire whether the VE's testimony conflicted with the DOT, that was not the end of the ALJ's obligations. Even where a VE wrongly testifies that there is no conflict, where "evidence from a VE 'appears to conflict with the DOT,' SSR 00-4p requires further inquiry: an ALJ must obtain 'a reasonable explanation for the apparent conflict.'" Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (quoting SSR 00-4p). Where the ALJ fails to obtain an explanation for and resolve an apparent conflict - even where the VE did not identify the conflict - the ALJ errs. See Hernandez v. Astrue, 2011 WL 223595, at *2-5 (C.D. Cal. Jan. 21, 2011) (where VE incorrectly testified there was no conflict between her testimony and DOT, ALJ erred in relying on VE's testimony and failing to acknowledge or reconcile the conflict); Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 (C.D. Cal. Apr. 27, 2010) ("Because the ALJ incorrectly adopted the VE's conclusion that there was no apparent conflict, . . . the ALJ provided no explanation for the deviation" and "therefore committed legal error warranting remand."). A. The ALJ Did Not Err at Step Five With Respect to Plaintiff's Non-Exertional Limitations
Plaintiff argues the ALJ erred at step five when he concluded that she could perform the jobs of electronics worker and mail clerk. P. Mem. at 10-14. He contends that both of these jobs are inconsistent with plaintiff's RFC.
1. Electronics Worker
In determining plaintiff's RFC, the ALJ found, inter alia, she cannot work in an area that has more air pollutants than found in an air conditioned work environment. AR at 26-27. Plaintiff argues that the job of electronics worker requires her to work with, among other things, solvents, that this is incompatible with her limitation on exposure to air pollutants, and that the ALJ failed to identify and explain the apparent conflict. Id. at 10-11.
Defendant characterizes the conflict between the VE's testimony and the DOT as "purely speculative." D. Mem. at 3. Defendant argues that plaintiff cannot equate the potential for occasional work with chemicals to exposure to air pollutants, which falls under the category of "atmospheric conditions," not "toxic caustic chemicals." Id. The court agrees.
The Selected Characteristics of Occupations defines "atmospheric conditions" as "[e]xposure to conditions such as fumes, noxious odors, dusts, mists, gases, and poor ventilation, that affect the respiratory system, eyes, or the skin," and "exposure to toxic, caustic chemicals" as "[e]xposure to possibly bodily injury from toxic or caustic chemicals." The DOT clearly states that while an electronics worker may have occasional exposure to "toxic, caustic chemicals," "atmospheric conditions" are not present for the job. DOT 726.687-010. Therefore, there was no apparent conflict between the VE's testimony and the DOT, and the ALJ was not required to obtain further testimony from the VE. The VE's testimony constituted substantial evidence to support the VE's finding that plaintiff could perform the job of electronics worker.
The court notes there may be a conflict between the VE's testimony and the DOT with regard to exposure to toxic chemicals. The ALJ determined that plaintiff could not perform work requiring hypervigilence. See AR at 26. Other courts in this district have found that the job of electronics worker, which entails exposure to toxic caustic chemicals, conflicts with the limitation to no work requiring hypervigilence. See, e.g., Norris v. Colvin, 2013 WL 3676661, at *3 (C.D. Cal. Jul. 11, 2013); Oviatt v. Astrue, 2012 WL 680347, at *5 (C. D. Cal. Feb. 29, 2012). But as plaintiff does not raise this argument it is waived. See Greger v. Barhart, 464 F.3d 968, 973 (9th Cir. 2006) (arguments not raised before the District Court are generally waived). And in any event, because as discussed below plaintiff can perform the job of mail clerk, any error in finding she can also perform the job of electronics worker was harmless.
2. Mail Clerk
Plaintiff also complains that the ALJ erred at step five when he concluded that she could perform the job of mail clerk. P. Mem. at 11-14. Specifically, plaintiff argues that the job requires a reasoning level of three, which is incompatible with her preclusion from complex tasks, and the ALJ failed to identify and explain the apparent conflict. Id. As discussed above, the VE stated that his testimony was consistent with the DOT, and the ALJ relied on the VE's testimony. AR at 68. The question is whether the VE incorrectly testified there was no conflict, and the ALJ improperly relied on the testimony in the face of evidence of an apparent conflict.
Each DOT job description includes general educational development ("GED") scales for reasoning, language, and mathematics, which are "aspects of education (formal and informal) which are required of the worker for satisfactory job performance." DOT, Appendix C, Section III. To determine a job's simplicity and the reasoning level required, one should look to the GED reasoning level ratings for the job listed in the DOT. Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005). A job's reasoning level "gauges the minimal ability a worker needs to complete the job's tasks themselves." Id.
A review of the reasoning level associated with the job of mail clerk supports the conclusion that there is an apparent conflict in this case. Plaintiff's RFC precluded her from complex tasks. AR at 27. For lack of any clearer articulation of her RFC, the court presumes that plaintiff is limited to simple tasks. The DOT classifies the job of mail clerk as having reasoning level three. DOT 209.687-026. Level three reasoning assumes a person can "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and] [d]eal with problems involving several concrete variables in or from standardized situations." See id.; DOT, App. C. The Ninth Circuit recently held that "there is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning." Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015).
Although Zavalin was not issued until after the ALJ's decision, case law prior to it also suggests there was an apparent conflict. There is a split among the circuit courts as to whether the limitation to simple tasks is compatible with a reasoning level of three. Compare Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009) (a claimant limited to "simple" work could perform a reasoning level three job); Renfrow v. Astrue, 496 F.3d 918, 920-21 (8th Cir. 2007) (a claimant with an inability to do "complex technical work" was not precluded from unskilled jobs with a reasoning level of three), and Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (limitation to simple and routine tasks is inconsistent with level-three reasoning). But among the Ninth Circuit's district courts that addressed this issue prior to Zavalin, they consistently held that a limitation to simple, routine tasks is consistent with reasoning level two jobs but incompatible with reasoning level three jobs. See, e.g., Salas v. Astrue, 2011 WL 2620370, at *7 (E.D. Cal. June 29, 2011); Bagshaw v. Astrue, 2010 WL 256544, at *5 (C.D. Cal. Jan. 20, 2010); Vasquez v. Astrue, 2009 WL 3672519, at *3-*4 (C.D. Cal. Oct. 30. 2009) (agreeing that reasoning level three "might conflict"with a limitation to simple, routine tasks).
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Here, the VE testified that there was no conflict. AR at 68. Had the ALJ simply accepted the VE's testimony, there would have been error because, on its face, reasoning level three is inconsistent with an individual limited to simple tasks. Upon further inquiry, however, the VE explained that the job of mail clerk involved simple, repetitive, non-complex tasks, primarily consisting of sorting incoming mail and delivering it within the office. AR at 69, 72. In other words, despite the DOT classification of the job as having reasoning level three, the VE's testimony constituted substantial evidence that the job actually only entails simple tasks. Therefore, there was no error.
Accordingly, the jobs of electronics worker and mail clerk, as identified and described by the VE, did not exceed plaintiff's non-exertional limitations. B. The ALJ Did Not Err at Step Five With Respect to Plaintiff's Exertional Limitations
Plaintiff contends that the ALJ erred at step five because he failed to identify and explain the conflict between the VE's testimony and the DOT with respect to plaintiff's standing and walking limitation. P. Mem. at 14-15. Specifically, plaintiff argues that because the jobs of mail clerk and electronics worker are classified as light work, they require the ability to stand and walk for six hours in an eight-hour work day, which exceeded her RFC of standing and walking no more than two hours in an eight-hour workday. Id. Here, plaintiff misconstrues the regulations. Light work is defined as work that:
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.20 C.F.R. § 416.967(b); see DOT, App. C. Pursuant to SSR 83-10, "the full range of light work requires standing or walking, off and on, for a total of approximately [six] hours of an [eight]-hour workday." Contrary to plaintiff's assertion, the only requirement for light work is the ability to lift/carry twenty pounds occasionally and ten pounds frequently. Jobs classified as light work do not require that a person stand/walk six hours. Indeed, the definitions reflect that some jobs that involve mostly sitting may constitute light work.
Moreover, the VE here specifically testified that the job of electronics worker could fall into the sedentary range, and that the job of mail clerk could be done spending only two hours standing or walking. AR at 67-68. Therefore, from an exertional standpoint, there was no inconsistency between the DOT and the VE's testimony that plaintiff could perform the jobs of electronics worker and mail clerk.
Accordingly, the ALJ did not err at step five. The ALJ properly relied on the VE's testimony, and thus substantial evidence supports the ALJ's step five finding. There was no conflict between the VE's testimony and the DOT with regard to the environmental and standing/walking limitations. As for the preclusion from complex tasks, the VE explained the deviation.
V.
CONCLUSION
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. DATED: March 31, 2015
/s/_________
SHERI PYM
United States Magistrate Judge