Isabel Cruz v. Michael J Astrue, No. 8:2012cv01143 - Document 19 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge Jean P Rosenbluth. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ISABEL CRUZ, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 12-1143-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 22 § 636(c). This matter is before the Court on the parties Joint 23 Stipulation, filed May 14, 2013, which the Court has taken under 24 submission without oral argument. For the reasons stated below, 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 the Commissioner s decision is reversed and this matter is 2 remanded for further proceedings. 3 II. BACKGROUND 4 Plaintiff was born on March 21, 1962, and has an eighth- 5 grade education. (Administrative Record ( AR ) 55, 203, 224.) 6 She previously worked as a housekeeper in a hotel. (AR 58, 220.) 7 On November 15, 2007, Plaintiff was injured at work when she 8 lifted some blankets and felt something pop in her right 9 shoulder. 10 (AR 57-60.) On August 14, 2009, Plaintiff filed an application for DIB, 11 alleging that she had been unable to work since November 15, 12 2007, because of back, neck, and shoulder pain. 13 04, 219.) (AR 75-76, 203- After her application was denied, Plaintiff requested 14 a hearing before an Administrative Law Judge ( ALJ ). 15 90.) (AR 89- A hearing was held on January 13, 2011, at which Plaintiff, 16 who was represented by counsel, testified, as did a vocational 17 expert ( VE ). (AR 55-73.) In a written decision issued January 18 25, 2011, the ALJ found that Plaintiff was not disabled. 19 23.) (AR 15- On May 23, 2012, the Appeals Council considered additional 20 evidence submitted by Plaintiff but denied her request for 21 review. (AR 1-5.) The Appeals Council ordered that the new 22 evidence be made part of the administrative record. (AR 5.) 23 This action followed. 24 III. STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), a district court may review 26 the Commissioner s decision to deny benefits. The ALJ s findings 27 and decision should be upheld if they are free of legal error and 28 supported by substantial evidence based on the record as a whole. 2 1 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 2 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 3 (9th Cir. 2007). Substantial evidence means such evidence as a 4 reasonable person might accept as adequate to support a 5 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 6 504 F.3d 1028, 1035 (9th Cir. 2007). 7 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 8 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 9 2006)). To determine whether substantial evidence supports a 10 finding, the reviewing court must review the administrative 11 record as a whole, weighing both the evidence that supports and 12 the evidence that detracts from the Commissioner s conclusion. 13 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). Moreover, 14 when the Appeals Council considers new evidence in deciding 15 whether to review a decision of the ALJ, that evidence becomes 16 part of the administrative record, which the district court must 17 consider when reviewing the Commissioner s final decision for 18 substantial evidence. Brewes v. Comm r of Soc. Sec. Admin., 682 19 F.3d 1157, 1163 (9th Cir. 2012); see also Taylor v. Comm r of 20 Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). If the 21 evidence can reasonably support either affirming or reversing, 22 the reviewing court may not substitute its judgment for that of 23 the Commissioner. Reddick, 157 F.3d at 720-21. 24 IV. THE EVALUATION OF DISABILITY 25 People are disabled for purposes of receiving Social 26 Security benefits if they are unable to engage in any substantial 27 gainful activity owing to a physical or mental impairment that is 28 expected to result in death or which has lasted, or is expected 3 1 to last, for a continuous period of at least 12 months. 42 2 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 3 (9th Cir. 1992). 4 A. 5 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 6 assessing whether a claimant is disabled. 20 C.F.R. 7 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 8 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 9 Commissioner must determine whether the claimant is currently 10 engaged in substantial gainful activity; if so, the claimant is 11 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 12 If the claimant is not engaged in substantial gainful activity, 13 the second step requires the Commissioner to determine whether 14 the claimant has a severe impairment or combination of 15 impairments significantly limiting her ability to do basic work 16 activities; if not, the claimant is not disabled and the claim 17 must be denied. § 404.1520(a)(4)(ii). If the claimant has a 18 severe impairment or combination of impairments, the third step 19 requires the Commissioner to determine whether the impairment or 20 combination of impairments meets or equals an impairment in the 21 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 22 404, Subpart P, Appendix 1; if so, disability is conclusively 23 presumed and benefits are awarded. § 404.1520(a)(4)(iii). If 24 the claimant s impairment or combination of impairments does not 25 meet or equal an impairment in the Listing, the fourth step 26 requires the Commissioner to determine whether the claimant has 27 28 4 1 sufficient residual functional capacity ( RFC )2 to perform her 2 past work; if so, the claimant is not disabled and the claim must 3 be denied. § 404.1520(a)(4)(iv). The claimant has the burden of 4 proving that she is unable to perform past relevant work. 5 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 6 prima facie case of disability is established. Id. If that 7 happens or if the claimant has no past relevant work, the 8 Commissioner then bears the burden of establishing that the 9 claimant is not disabled because she can perform other 10 substantial gainful work available in the national economy. 11 § 404.1520(a)(4)(v). That determination comprises the fifth and 12 final step in the sequential analysis. § 404.1520; Lester, 81 13 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 14 B. 15 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 16 any substantial gainful activity since November 15, 2007, the 17 alleged onset date. (AR 17.) At step two, the ALJ concluded 18 that Plaintiff had the severe impairments of disorders of the 19 muscles, ligaments and fascia and an affective mood disorder. 20 (Id.) At step three, the ALJ determined that Plaintiff s 21 impairments did not meet or equal any of the impairments in the 22 Listings. (AR 17-18.) At step four, the ALJ found that 23 Plaintiff retained the RFC to perform less than a full range of 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 light work 3 specifically, she could lift and carry twenty 2 pounds occasionally and ten pounds frequently ; sit, stand and 3 walk six hours of an eight-hour workday ; climb frequently ; and 4 perform simple repetitive tasks ; but she could never climb 5 ropes or scaffolds and must avoid overhead lifting with her 6 upper extremities. (AR 18.) Based on the VE s testimony, the 7 ALJ concluded that Plaintiff was capable of performing jobs that 8 existed in significant numbers in the national economy. (AR 21.) 9 Accordingly, the ALJ determined that Plaintiff was not disabled. 10 (AR 22.) 11 V. DISCUSSION 12 Plaintiff alleges that the ALJ (1) erroneously determined 13 that Plaintiff could perform alternative work and (2) failed to 14 properly consider the opinion of a nonexamining state-agency 15 consultant, Dr. G. Johnson. 16 A. 17 18 (J. Stip. at 4.) The ALJ Did Not Err In Determining that Plaintiff Could Perform Alternative Work Plaintiff contends that the ALJ erroneously found that she 19 could perform alternative work because both of the identified 20 jobs require frequent reaching, which allegedly conflicts with 21 22 3 Light work involves lifting no more than 20 pounds 23 at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). The regulations 24 further specify that [e]ven though the weight lifted may be very 25 little, a job is in this category when it requires a good deal of 26 27 28 walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. § 404.1567(a)-(b). 6 1 her RFC preclusion from performing overhead work. (J. Stip. at 2 4-12, 16-17.) 3 1. 4 Applicable law At step five of the sequential evaluation process, the 5 Commissioner has the burden to demonstrate that the claimant can 6 perform work that exists in significant numbers in the national 7 or regional economy, taking into account the claimant s RFC, age, 8 education, and work experience. Tackett v. Apfel, 180 F.3d 1094, 9 1100 (9th Cir. 1999); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. 10 § 404.1560(c). The Commissioner may satisfy that burden either 11 through VE testimony or by reference to the Medical-Vocational 12 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 13 2. Tackett, 180 F.3d at 1100-01. When a VE provides evidence 14 about the requirements of a job, the ALJ has a responsibility to 15 ask about any possible conflict between that evidence and the 16 Dictionary of Occupational Titles ( DOT ).4 See SSR 00-4p, 2000 17 WL 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152-54 18 (9th Cir. 2007) (holding that application of SSR 00-4p is 19 mandatory). An ALJ s failure to do so is procedural error, 20 although the error is harmless if no actual conflict existed or 21 the VE provided sufficient evidence to support the conclusion. 22 23 24 25 26 27 28 4 In making disability determinations, the Commissioner takes administrative notice of reliable job information from the DOT, 20 C.F.R. § 404.1566(d), which is usually the best source for how a job is generally performed, Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001). See also Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) ( In making disability determinations, the Social Security Administration relies primarily on the [DOT] for information about the requirements of work in the national economy. (internal quotation marks and citation omitted)). 7 1 Massachi, 486 F.3d at 1154 n.19. 2 The Court must consider the ALJ s decision in the context of 3 the entire record as a whole ; if the evidence is susceptible 4 to more than one rational interpretation, the ALJ s decision 5 should be upheld. Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 6 1198 (9th Cir. 2008) (internal quotation marks omitted). 7 8 2. Relevant facts During the hearing, the ALJ posed the following hypothetical 9 to the VE: 10 Number 11 individual with the claimant s education, training, and 12 work experience, who is limited to occasionally lifting 13 and carrying 20 pounds, frequently lifting and carrying 14 10, standing and walking with normal breaks for a total 15 of six of an eight-hour day, sit with normal breaks for 16 a 17 limitations would be occasional for crawling, frequent 18 for 19 kneeling, crouching; never climbing ladders, ropes, or 20 scaffolds; 21 bilaterally no overhead work. 22 (AR 68.) one, total of I want six climbing and of you an ramps, no to assume eight-hour stairs; overhead a hypothetical day. balancing, work with Postural stooping, either arm The VE responded that Plaintiff could perform the jobs 23 of small products assembler I, which carried the DOT number 24 706.684-022, and electronics worker, which carried the DOT 25 number 726.687-010. (AR 69.) The ALJ then posed a second 26 hypothetical that was almost identical to the first hypothetical 27 but included a limitation to simple tasks with simple work28 related decisions. (Id.) The VE responded that Plaintiff could 8 1 still perform the previously named jobs. (Id.) At the close of 2 the VE s testimony, the ALJ asked whether her testimony had been 3 consistent with the Dictionary of Occupational Titles and its 4 companion publications. (AR 72.) The VE responded that it had. 5 (Id.) 6 In his written decision, the ALJ found that Plaintiff 7 retained the RFC to perform light work with several additional 8 limitations, including that she avoid overhead lifting with her 9 upper extremities. (AR 18.) Based on the VE s testimony, the 10 ALJ found that Plaintiff could perform the assembler and 11 electronics-worker jobs and thus was not disabled.5 12 13 3. (AR 22.) Discussion The DOT states that the assembler and electronics-worker 14 jobs both require [f]requent[] reaching, which is defined as 15 [e]xist[ing] from 1/3 to 2/3 of the time. DOT 706.684-022, 16 1991 WL 679050; DOT 726.687-010, 1991 WL 679633. A DOT companion 17 publication and a Social Security policy statement define 18 reaching as [e]xtending hand(s) and arm(s) in any direction. 19 U.S. Dep t of Labor, Selected Characteristics of Occupations 20 Defined in the Revised Dictionary of Occupational Titles App. C 21 (1993) ( SCO ); SSR 85 15, 1985 WL 56857, at *7; see also SSR 22 00-4p, 2000 WL 1898704, at *2 (ALJ must resolve any apparent 23 unresolved conflict between VE testimony and DOT, which includes 24 its companion publication the SCO). Plaintiff argues that the 25 reaching requirements of those jobs conflict with the ALJ s 26 27 28 5 The ALJ referred to the two jobs as small parts assembler and telecom worker but provided the same DOT numbers as those given by the VE. (AR 22.) 9 1 finding that she was precluded from performing overhead work 2 because they both require[] frequent reaching in all directions, 3 including overhead. 4 (J. Stip. at 7.) As an initial matter, the ALJ fulfilled his affirmative 5 responsibility to ask about any possible conflict between [the 6 VE] evidence and information provided in the DOT, SSR 00-4P, 7 2000 WL 1898704 at *4, by eliciting the VE s affirmation that her 8 testimony was consistent with the DOT (see AR 72). In any event, 9 Plaintiff s argument fails because the ALJ did not preclude 10 Plaintiff from performing overhead reaching instead, he 11 precluded her from performing overhead lifting and overhead 12 work. 6 (AR 18, 68 (emphasis added).) Viewed in the context of 13 the evidence as a whole, see Ryan, 528 F.3d at 1198, the ALJ most 14 reasonably intended to preclude Plaintiff from doing jobs that 15 regularly required lifting items or performing maneuvers above 16 her head, not from ever reaching in an upward direction. Had the 17 ALJ intended to say that Plaintiff could perform no overhead 18 reaching, he likely would have simply inserted that limitation 19 into the list of prohibited activities. Indeed, the undersigned 20 has read dozens of Social Security decisions, and ALJs regularly 21 prescribe limitations on various kinds on reaching or overhead 22 reaching. See, e.g., Hill v. Astrue, 698 F.3d 1153, 1158 (9th 23 Cir. 2012) (noting that ALJ s RFC placed limit on overhead 24 reach[ing] ); Mondragon v. Astrue, 364 F. App x 346, 348 (9th 25 Cir. 2010) (same). Overhead work can reasonably be interpreted 26 to mean jobs performed almost constantly overhead, such as a 27 6 Plaintiff has not challenged the ALJ s RFC 28 determination. 10 1 window washer, tree trimmer, or wall washer. See, e.g., DOT 2 389.687-014, 1991 WL 673282 (window-washer job requires 3 [c]lean[ing] windows, glass partitions, mirrors, and other glass 4 surfaces of building interior or exterior, set[ting] and 5 climb[ing] ladder to reach second or third story, and 6 stand[ing] to reach first floor or inside windows ); DOT 7 408.664-010, 1991 WL 673358 (tree-trimmer job requires 8 [c]limb[ing] trees to reach branches interfering with wires and 9 transmission towers ; [p]run[ing] treetops, using saws or 10 pruning shears ; and [r]emov[ing] broken limbs from wires, using 11 hooked extension pole ); DOT 381.687-026, 1991 WL 673260 (wall12 cleaner job requires [c]lean[ing] walls and ceilings by hand ). 13 The medical record, moreover, does not support a finding 14 that Plaintiff was totally prohibited from performing any 15 overhead reaching. Although Plaintiff frequently complained of 16 shoulder and neck pain, her diagnostic studies revealed at most 17 only mild abnormalities. Plaintiff s shoulder x-rays were normal 18 (AR 465-66, 816); a September 2009 cervical-spine MRI showed only 19 [m]inimal 1-2 mm disc bulges and annulus irregularities at C4-5 20 and C5-6 with [n]o focal disc herniation or canal stenosis (AR 21 600-01); a September 2009 right-shoulder MRI showed only a small 22 amount of fluid and mild degenerative changes with no full23 thickness tear (AR 590); and a May 2010 left-shoulder MRI 24 revealed only a [s]mall tear involving the supraspinatus tendon 25 (AR 714).7 Dr. Jeffrey Frank Sodl at Kaiser noted that 26 27 28 7 After the ALJ rendered his opinion, Plaintiff submitted to the Appeals Council a December 2011 left-shoulder MRI showing findings that were very suspicious for a subtotal partial tear 11 1 Plaintiff s right-shoulder MRI was normal (AR 583) and that her 2 left-shoulder MRI was clean (AR 705). He observed at around 3 the same time, in June 2010, that she had full overhead motion. 4 (AR 704.) Indeed, several of Plaintiff s doctors noted that 5 Plaintiff complained of shoulder pain but had good range of 6 motion and strength. (See, e.g., AR 439-40 (Aug. 2009, Dr. Ahn 7 Quan Quoc Nguyen s note that Plaintiff had some pain above 90 8 degrees when moving right shoulder but [f]unctional range of 9 motion of both arms); AR 582-83 (Oct. 2009, Dr. Sodl s finding 10 that Plaintiff had full shoulder motion, good cuff strength, and 11 no stiffness and noting very benign shoulder exam today 12 (bilaterally) ); AR 756 (Jan. 2010, Dr. Divinia Gracia Lomo 13 Oropilla s finding that Plaintiff had intact sensation and normal 14 strength throughout); AR 718 (Mar. 2010, Dr. Oropilla s finding 15 that Plaintiff [m]ove[d] all extremities well with good strength 16 and coordination ); AR 710 (May 2010, Dr. Sodl s finding that 17 Plaintiff had positive impingement signs but full shoulder 18 motion, no stiffness, no cuff weakness, and normal neurologic 19 exam); AR 704-05 (June 2010, Dr. Sodl s finding that Plaintiff 20 21 or a small full-thickness tear that was larger compared to the (AR 2526.) That MRI, however, took place nearly a year after the ALJ issued his decision, on January 25, 2011, and nothing indicates that it reflects Plaintiff s condition on or before that date. As such, it cannot render the ALJ s decision unsupported by substantial evidence. See 20 C.F.R. § 404.970(b) ( [T]he Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. ); compare Taylor, 659 F.3d at 1232 (treating doctor s assessment postdated expiration of disability insurance and ALJ decision but encompassed the period from the date of disability onset . . . until the date of his evaluation ). 22 2010 study. 23 24 25 26 27 28 12 1 had a painful arc, impingement signs, and numbness and tingling 2 in left arm but full overhead motion and [n]o shoulder 3 stiffness ); AR 788 (Nov. 2010, Dr. Oropilla s finding that 4 Plaintiff [m]ove[d] all extremities well with good strength and 5 coordination ); AR 767-68 (Nov. 2010, Dr. Nguyen s finding that 6 Plaintiff had some shoulder pain with overhead movement but was 7 still functional ); but see AR 1037 (Mar. 2009, Dr. Kerrigan s 8 finding that Plaintiff had decreased range of motion and 9 tenderness in right shoulder).) Such findings are inconsistent 10 with a condition that precluded Plaintiff from ever reaching 11 above her head with either arm. 12 Indeed, none of Plaintiff s doctors ever opined that she was 13 totally precluded from overhead reaching, and those who rendered 14 opinions regarding Plaintiff s functional limitations merely 15 found that she was limited in her ability to perform overhead or 16 above-shoulder work. As the ALJ noted (AR 19), Dr. Soheil M. 17 Aval, an orthopedic surgeon who evaluated Plaintiff as part of 18 her worker s compensation case, examined Plaintiff and reviewed 19 her medical records before concluding that she should avoid 20 activities involving heavy lifting, heavy or repetitive pushing 21 or pulling, as well as repetitive work at or above-shoulder 22 level (AR 1119 (emphasis added)). Dr. R. Jacobs, a nonexamining 23 state-agency physician, reviewed Plaintiff s medical records and 24 completed a physical-RFC assessment stating, among other things, 25 that Plaintiff could never perform overhead work with either 26 arm. (AR 504-05 (emphasis added).) Interpreting work to mean 27 job is consistent with Dr. Jacobs s indication on the RFC 28 assessment and a case-analysis form that Plaintiff s ability to 13 1 reach overhead was merely limited. (AR 505, 510.) In March 2 2010, nonexamining state-agency physicians Drs. R.E. Brooks and 3 Vaghaiwalla affirmed Dr. Jacobs s RFC assessment. 4 (AR 668.) Moreover, according to the DOT descriptions, neither of the 5 jobs the ALJ found that Plaintiff could perform appear to be 6 overhead work. The assembler job requires a person to perform 7 any combination of listed tasks on an assembly line, such as 8 [p]ositioning parts in specified relationship to each other, 9 fasten[ing] parts together by hand or using handtools or 10 portable powered tools, [f]requently work[ing] at bench as 11 member of assembly group assembling one or two specific parts and 12 passing unit to another worker, and [l]oad[ing] and unload[ing] 13 previously setup machines. DOT 706.684-022, 1991 WL 679050. 14 The electronics-worker job requires a person to perform any 15 combination of listed tasks to clean, trim, or prepare 16 components or parts for assembly by other workers, such as 17 cleaning and deglossing parts; [t]rim[ing] flash from molded or 18 cast parts, using cutting tool or file ; [a]ppl[ying] primers, 19 plastics, adhesives, and other coatings to designated surfaces ; 20 preparing wires for assembly; positioning and fastening parts; 21 moving parts and finished components to designated areas of the 22 plant; and loading and unloading parts from ovens, baskets, 23 pallets, and racks. DOT 726.687-010, 1991 WL 679633. The DOT 24 descriptions for other jobs, by contrast, often indicate that 25 they require overhead work. See, e.g., DOT 520.686 022, 1991 WL 26 674044 (describing flour-blender-helper job as requiring 27 turn[ing] hand screws or moves levers to adjust gate openings of 28 overhead storage bins to release specified amounts of flour into 14 1 blender hopper ); DOT 525.687 034, 1991 WL 674446 (describing 2 gambreler-helper job as requiring [p]lac[ing] trolley. . . onto 3 overhead conveyor rail so that carcasses can be hung ); DOT 4 381.687-018, 1991 WL 673258 (describing industrial-cleaner job as 5 requiring [c]lean[ing] lint, dust, oil, and grease from 6 machines, overhead pipes, and conveyors ); DOT 553.686-018, 1991 7 WL 675263 (describing curing-press-operator job as requiring 8 [l]ift[ing] tires from inflating unit at end of cooling cycle 9 and load[ing] them onto overhead conveyor ). 10 Thus, interpreting the ALJ s findings in the manner most 11 consistent with the medical evidence, no conflict existed among 12 the ALJ s RFC, the VE s testimony, and the DOT. Reversal is 13 therefore not warranted on this basis. 14 15 16 B. The ALJ Erred by Failing to Discuss Dr. Johnson s Opinion Plaintiff argues that the ALJ improperly ignore[d] the 17 opinion of nonexamining physician Johnson, who specifically 18 described [Plaintiff] as suffering from mental limitations which 19 preclude all work activity. (J. Stip. at 18.) For the reasons 20 discussed below, the Court agrees that the ALJ erred by failing 21 to discuss Dr. Johnson s findings. 22 23 1. Relevant facts On November 18, 2008, licensed clinical psychologist Nelson 24 J. Flores examined Plaintiff, reviewed her medical records, and 25 completed a report as part of her worker s compensation case. 26 (AR 324-48.) Dr. Flores diagnosed Plaintiff with depressive 27 disorder, anxiety disorder, pain disorder, sleep disorder, female 28 hypoactive sexual desire disorder, and psychological factors 15 1 affecting medical condition, and he assigned a global-assessment2 of-functioning ( GAF ) score of 61, indicating mild symptoms.8 3 (AR 338-39.) He opined that Plaintiff s current global level of 4 psychiatric disability is slight. 5 original).) (AR 341 (emphasis in More specifically, Dr. Flores opined that Plaintiff 6 had a [v]ery [s]light impairment of her ability to comprehend 7 and follow instructions and perform simple and repetitive tasks 8 and a [s]light impairment of her ability to maintain a work 9 pace appropriate to a given workload, perform complex or varied 10 tasks, influence people, and make generalizations, evaluations, 11 and decisions without immediate supervision. (AR 346-48.) 12 Plaintiff had a [s]light to [s]light to [m]oderate limitation 13 in her ability to relate to other people beyond giving and 14 receiving instructions and to accept and carry out responsibility 15 for direction, control, and planning. 16 (Id.) Dr. Flores opined that Plaintiff should not work at high 17 altitudes, in any position where she might be at risk of being 18 involved in an industrial accident if she becomes anxious and/or 19 distracted, or in any position that requires handling stress 20 and/or conflicts on a regular basis while interacting with the 21 public and/or coworkers. 22 (AR 344.) On October 21, 2009, Dr. Johnson, a state-agency consulting 23 8 A GAF score represents a rating of overall 24 psychological functioning on a scale of 0 to 100. See Am. 25 Psychiatric Ass n, Diagnostic and Statistical Manual of 26 27 28 Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the range of 61 to 70 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. 16 1 physician, reviewed Plaintiff s medical records and completed a 2 psychiatric-review-technique ( PRT ) form and a mental-RFC 3 assessment. (AR 511-24.) On the PRT form, Dr. Johnson opined 4 that Plaintiff suffered from a depressive disorder that resulted 5 in mild restriction of activities of daily living; mild 6 difficulties in social functioning; mild difficulty in 7 maintaining concentration, persistence, or pace; and no episodes 8 of decompensation. 9 (AR 514, 519.) In section I of the mental-RFC assessment, which was titled 10 summary conclusions and had boxes for indicating whether a 11 claimant was [n]ot [s]ignificantly [l]imited, [m]oderately 12 [l]imited, or [m]arkedly [l]imited in each of several listed 13 functions, Dr. Johnson checked that Plaintiff was [n]ot 14 [s]ignificantly [l]imited in her ability to (1) remember 15 locations and worklike procedures; (2) understand, remember, and 16 carry out very short and simple instructions; (3) perform 17 activities within a schedule, maintain regular attendance, and be 18 punctual; (4) work in coordination with or proximity to others 19 without being distracted by them; (5) interact appropriately with 20 the general public; (6) ask simple questions or request 21 assistance; (7) accept instructions and respond appropriately to 22 criticism from supervisors; (8) get along with coworkers or peers 23 without distracting them or exhibiting behavioral extremes; (9) 24 maintain socially appropriate behavior and adhere to basic 25 standards of neatness and cleanliness; (10) respond appropriately 26 to changes in the work setting; (11) be aware of normal hazards 27 and take appropriate precautions; (12) travel in unfamiliar 28 places or use public transportation; and (13) set realistic goals 17 1 or make plans independently of others. (AR 522-23.) Dr. Johnson 2 checked that Plaintiff was [m]oderately [l]imited in her 3 ability to (1) understand, remember, and carry out detailed 4 instructions; (2) maintain attention and concentration for 5 extended periods; (3) sustain an ordinary routine without special 6 supervision; (4) make simple work-related decisions; and (5) 7 complete a normal workday and workweek without interruptions from 8 psychologically based symptoms and perform at a consistent pace 9 without an unreasonable number and length of rest periods. (Id.) 10 In section III of the assessment, which was titled functional 11 capacity assessment and was designated for elaborations on the 12 preceding capacities and explanation of the summary 13 conclusions, Dr. Johnson wrote that Plaintiff was not capable 14 of complex, detailed tasks, however [Plaintiff was] able to 15 remember, perform and sustain simple tasks, could accept 16 direction from supervisor and work alongside coworkers and 17 public, and could adapt to normal work stresses inherent to 18 workplace. 19 (AR 524.) As discussed in part V.A.2, during the January 13, 2011 20 hearing, the ALJ asked the VE whether jobs existed for someone 21 with Plaintiff s education, training, work experience, and RFC, 22 including a limitation to simple tasks with simple work-related 23 decisions. (AR 68-69.) 24 person could perform. The VE identified two jobs that such a (Id.) Later in the hearing, Plaintiff s 25 attorney asked the VE whether work would be available for a 26 person with the same physical limitations identified in the ALJ s 27 hypothetical but with the added mental limitations identified by 28 Dr. Johnson, that is, moderate limitations in her ability to 18 1 understand and remember detailed instructions, carry out 2 detailed instructions, maintain attention and concentration for 3 extended periods, sustain an ordinary routine without special 4 supervision, make simple work-related decisions, complete a 5 normal workday and workweek without interruptions from 6 psychologically based symptoms, and perform at a consistent 7 pace without an unreasonable number and length of rest periods. 8 (AR 70-71 (citing Dr. Johnson s mental-RFC assessment.) The VE 9 testified that no work would be available for such a person. 10 (Id.) 11 In a written decision issued January 25, 2011, the ALJ 12 summarized Dr. Flores s opinion (AR 20) and concluded that 13 [f]rom a mental standpoint, Plaintiff retained the RFC to 14 perform simple repetitive tasks (AR 18). Based on the VE s 15 testimony that such a person could perform the two identified 16 jobs, the ALJ concluded that Plaintiff was not disabled. (AR 17 22.) 18 19 2. Discussion Although an ALJ is not required to discuss every piece of 20 evidence, see Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 21 1012 (9th Cir. 2003), he nevertheless must explain why 22 significant probative evidence has been rejected, Vincent ex 23 rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) 24 (citation and internal quotation marks omitted); accord Howard, 25 341 F.3d at 1012 (noting that ALJ is not required to discuss 26 evidence that is neither significant nor probative ); Houghton v. 27 Comm r Soc. Sec. Admin., 493 F. App x 843, 845 (9th Cir. 2012). 28 Here, the ALJ erred by failing to discuss Dr. Johnson s opinion 19 1 because it constituted significant, probative evidence of 2 Plaintiff s mental limitations and their effect on her ability to 3 work, and some substantial evidence in the record the VE s 4 testimony, upon which the ALJ expressly relied indicated that 5 someone with those mental limitations could not work. 6 The VE testified that an individual with Plaintiff s 7 physical limitations and the mental limitations identified by Dr. 8 Johnson would be unable to work at any job. (AR 70-71.) 9 opinion was well within the VE s area of expertise. That See Tackett, 10 180 F.3d at 1101 (VE translates hypotheticals into realistic 11 job market probabilities by testifying . . . to what kinds of 12 jobs the claimant still can perform and whether there is a 13 sufficient number of those jobs available to support finding of 14 not disabled (citations and internal quotation marks omitted)); 15 Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986) ( A [VE] is 16 able to compare all the unique requirements of a specified job 17 with the particular ailments a claimant suffers in order to reach 18 a reasoned conclusion whether the claimant can perform the 19 specific job. ). The ALJ nevertheless failed to mention Dr. 20 Johnson s opinion or that portion of the VE s testimony anywhere 21 in the decision. (See AR 15-23.) Because Dr. Johnson s findings 22 combined with the VE s testimony indicate that Plaintiff is 23 unemployable, the ALJ erred by failing to explain why he 24 apparently rejected them. See Vincent, 739 F.2d at 1394-95; see 25 also SSR 96 6p, 1996 WL 374180, at *2 (ALJ may not ignore the 26 opinions of state-agency medical consultants and must explain 27 the weight given to the opinions in their decisions ). 28 Contrary to the Commissioner s argument (J. Stip. at 20-21), 20 1 the ALJ s finding that Plaintiff was limited to simple 2 repetitive tasks (AR 18) did not accommodate Dr. Johnson s 3 findings of moderate limitations on her ability to concentrate 4 for extended periods, complete a normal workday or workweek 5 without interruption, sustain an ordinary routine, make simple 6 decisions, and perform at a consistent pace. See Lubin v. Comm r 7 of Soc. Sec. Admin., 507 F. App x 709, 712 (9th Cir. 2013) (ALJ 8 erred by limiting claimant to one to three step tasks and 9 omitting moderate difficulties in maintaining concentration, 10 persistence, and pace because work described by the [VE] may 11 still require the speed and concentration [claimant] lacks ); 12 Brink v. Comm r Soc. Sec. Admin., 343 F. App x 211, 212 (9th Cir. 13 2009) (ALJ erred when hypothetical to VE referenced only 14 simple, repetitive work, without including limitations on 9 15 concentration, persistence or pace ). Indeed, the VE testified 16 17 18 19 20 21 22 23 24 25 26 27 28 9 In Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008), the Ninth Circuit held that an ALJ s assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony. Here, however, the ALJ s finding that Plaintiff could perform simple repetitive tasks without any other limitation conflicted with Dr. Johnson s findings of moderate limitations in several functional areas, including concentration, pace, the ability to complete a normal workday or workweek, and the ability to make simple decisions. Indeed, that conflict is particularly clear given the VE s testimony that a person limited to simple repetitive tasks would be employable but a person with the moderate limitations identified by Dr. Johnson would not. (See AR 68-71.) The ALJ, moreover, failed to give any reason for rejecting Dr. Johnson s opinion or the VE s testimony. Compare Stubbs-Danielson, 539 F.3d at 1173-74 (noting that ALJ rejected VE s testimony that person with anything more than a mild limitation with respect to pace would be precluded from employment except in a sheltered workshop because it did not address [plaintiff s] RFC and did not appear to be based on her 21 1 that a person with Plaintiff s physical RFC who was limited to 2 simple tasks could perform jobs in the national economy, but 3 such a person with the moderate limitations identified by Dr. 4 Johnson would be unemployable. 5 (AR 68-71.) Thus, the ALJ erred by failing to expressly consider Dr. 6 Johnson s opinion and the VE s testimony concerning it or explain 7 any basis for rejecting them. That error was not harmless 8 because Dr. Johnson s opinion and the VE s testimony were 9 directly relevant to the ultimate issue of whether Plaintiff can 10 perform work in the national economy. See Molina v. Astrue, 674 11 F.3d 1104, 1115 (9th Cir. 2012) (ALJ s error is harmless when 12 inconsequential to the ultimate nondisability determination 13 (citation and internal quotation marks omitted)); see also Sawyer 14 individual record as a whole ). Stubbs-Danielson is therefore 15 inapplicable here. See Betts v. Colvin, No. 11 17522, __ F. App x __, 2013 WL 3157434, at *1 n.1 (9th Cir. June 24, 2013) 16 (distinguishing Stubbs Danielson because there, ALJ s RFC 17 assessment was consistent with the allegedly disregarded medical opinion and ALJ had explained the omission from the RFC 18 assessment of the aspects of that opinion that had allegedly been ignored ). Moreover, given the VE s testimony, the Court cannot 19 conclude that Dr. Johnson s finding that Plaintiff could perform simple tasks (AR 524) rendered any error harmless because a VE 20 is better suited than a medical doctor to assess what jobs 21 someone with particular limitations can perform, compare 20 CFR § 404.1527(a)(2) (physicians medical opinions reflect judgments 22 about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do 23 despite impairment(s), and your physical or mental restrictions ), with Tackett, 180 F.3d at 1101 (in response to 24 hypothetical that set[s] out all of the claimant s impairments, 25 VE testifies as to what kinds of jobs the claimant still can 26 27 28 perform and whether there is a sufficient number of those jobs available ); see also Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995) (noting that it is for a [VE] to take into account medical limitations, including opinions as to work time limits, and offer an opinion on the ultimate question whether a claimant is capable of gainful employment ). 22 1 v. Astrue, 303 F. App x 453, 455 (9th Cir. 2008) (ALJ s failure 2 to consider opinions of state-agency consultants not harmless 3 when evidence was directly relevant to the ultimate issue: 4 whether [plaintiff] can perform light work ). 5 Plaintiff is entitled to remand on this ground. 6 VI. CONCLUSION 7 When error exists in an administrative determination, the 8 proper course, except in rare circumstances, is to remand to the 9 agency for additional investigation or explanation. INS v. 10 Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 11 (2002) (citations and quotation marks omitted); Moisa v. 12 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly, 13 remand, not an award of benefits, is the proper course in this 14 case. See Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 15 1136 (9th Cir. 2011) (remand for automatic payment of benefits 16 inappropriate unless evidence unequivocally establishes 17 disability). ORDER 18 19 Accordingly, IT IS HEREBY ORDERED that (1) the decision of 20 the Commissioner is REVERSED; (2) Plaintiff s request for remand 21 is GRANTED; and (3) this action is REMANDED for further 22 proceedings consistent with this Memorandum Opinion. 23 IT IS FURTHER ORDERED that the Clerk of the Court serve 24 copies of this Order and the Judgment herein on all parties or 25 their counsel. 26 27 DATED: August 13, 2013 28 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 23

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