Gilbert Gonzales v. Carolyn W Colvin, No. 5:2013cv00663 - Document 25 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this matter is remanded for further administrative action consistent with this Opinion. (See Order for complete details) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 GILBERT GONZALES, Plaintiff, 13 14 15 16 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 17 Defendant. 18 ) NO. ED CV 13-663-AS ) ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 19 20 PROCEEDINGS 21 22 On April 11, 2013, Plaintiff filed a Complaint seeking review 23 of the Commissioner's denial of Plaintiff s application for 24 disability benefits. (Docket Entry No. 1). On September 30, 2013, 25 the matter was transferred and referred to the current Magistrate 26 Judge. (Docket Entry No. 13). On November 1, 2013, Defendant 27 filed an Answer and the Administrative Record ( A.R. ). 28 Entry Nos. 19, 20). (Docket The parties have consented to proceed before 1 1 a United States Magistrate Judge. (Docket Entry Nos. 12, 18). On 2 February 6, 2014, the parties filed a Joint Stipulation ( Joint 3 Stip. ) setting forth their respective positions regarding 4 Plaintiff's claim. (Docket Entry No. 24). The Court has taken this 5 matter under submission without oral argument. See C.D. Cal. R. 76 15; Case Management Order, filed April 22, 2013 (Docket Entry No. 7 4). 8 9 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 10 Plaintiff, a former aircraft mechanic (A.R. 30), asserts 11 12 disability beginning June 23, 2007, based on alleged physical and 13 mental impairments. (Id. 21, 141-49). The Administrative Law 14 Judge, Tamara Turner-Jones ( ALJ ), examined the record, and heard 16 Minkus, on November 8, 2011. 15 testimony from Plaintiff and vocational expert ( VE ), Roxane L. 17 18 19 20 21 22 23 24 25 26 27 28 (Id. 37-69). On December 16, 2011, the ALJ issued a decision denying Plaintiff's application for disability benefits. (Id. 21-31). The ALJ found impairments that Plaintiff's post traumatic medically head determinable syndrome, severe headaches, and depression do not significantly limit his ability to perform basic work activities. (Id. 23). The ALJ determined that, notwithstanding these impairments, Plaintiff retains the residual functional capacity ( RFC ) to perform medium work and can lift and carry fifty pounds occasionally and twenty-five pounds frequently; can frequently 2 1 kneel, stoop, crawl, crouch, and occasionally climb ramps and 2 stairs; should avoid climbing ladders, ropes, and scaffolds; has no 3 limits on the use of his hands for fine and gross finger 4 manipulation; needs to avoid all exposure to unprotected heights 5 and dangerous moving machinery; can interact adequately with 6 coworkers and supervisors, but can have no contact with the general 7 public and no repeated requests for information from co-workers; 8 can maintain concentration, attention, persistence, and pace in at 9 least two hour blocks of time; and, most relevant to the issue 10 presented in this case, would be able to carry out simple 11 instructions. (Id. 25). Relying on the testimony of the VE, the 12 ALJ determined that Plaintiff was able to perform such work as hand 13 packager (Dictionary of Occupational Titles ( DOT ) No. 920.58714 018); and industrial cleaner (DOT No. 381.687-018). 15 16 17 18 Accordingly, the ALJ found that Plaintiff was not disabled at any time from the alleged disability onset date through the date of the ALJ's decision. 19 21 23 Plaintiff contends that the ALJ failed to properly consider Plaintiff s mental limitations. 24 26 28 (Joint Stip. 5). STANDARD OF REVIEW 25 27 (Id.). PLAINTIFF S CONTENTIONS 20 22 (A.R. 31). This Court reviews the Commissioner s decision to determine if: (1) the Commissioner s findings are supported by substantial 3 1 evidence; and (2) the Commissioner used proper legal standards. 42 2 U.S.C. § 405(g); see Carmickle v. Comm r, 533 F.3d 1155, 1159 (9th 3 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 4 Substantial evidence is more than a scintilla, but less than a 5 preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 6 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 7 1997). It is relevant evidence which a reasonable person might 8 accept as adequate to support a conclusion. Hoopai, 499 F.3d at 9 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). To 10 determine whether substantial evidence supports a finding, a court 11 must consider the record as a whole, weighing both evidence that 12 supports and evidence that detracts from the [Commissioner s] 13 conclusion. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 14 1997) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 16 can constitute substantial evidence). 15 1066 (9th Cir. 2006) (inferences reasonably drawn from the record 17 18 19 20 21 22 23 24 25 26 27 28 This Court may not affirm [the Commissioner s] decision simply by isolating a specific quantum of supporting evidence, but must also consider evidence that detracts from [the Commissioner s] conclusion. Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) (citation and internal quotation marks omitted); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (same). However, the Court cannot disturb findings supported by substantial evidence, even though there may exist other evidence supporting Plaintiff s claim. If See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973). the reversing evidence the can reasonably [Commissioner s] support conclusion, 4 either [a] affirming court may or not 1 substitute its judgment for that of the [Commissioner]. Reddick, 2 157 F.3d at 720-21 (citation omitted). 3 4 5 6 APPLICABLE LAW The Social Security Act defines disability as the inability 7 to engage in any substantial gainful activity by reason of any 8 medically determinable physical or mental impairment which can be 9 expected to result in death or which has lasted or can be expected 10 to last for a continuous period of not less than 12 months. Webb 11 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. 12 § 423 (d)(1)(A)). The ALJ follows a five-step, sequential analysis 13 to determine whether a claimant has established disability. 20 14 C.F.R. § 404.1520. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At step one, the ALJ determines whether the claimant is engaged in substantial 404.1520(a)(4)(i). gainful employment activity. Id. § Substantial gainful activity is defined as work that . . . [i]nvolves doing significant and productive physical or mental duties[] and . . . [i]s done (or intended) for pay or profit. Id. §§ 404.1510, 404.1572. If the ALJ determines that the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two which requires the ALJ to determine whether the claimant has a medically severe impairment or combination of impairments that significantly limits his ability to do basic work activities. Webb, 433 F.3d at 686. See id. § 404.1520(a)(4)(ii); see also The ability to do basic work activities is defined as the abilities and aptitudes necessary to do most 5 1 jobs. 20 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. An 2 impairment is not severe if it is merely a slight abnormality (or 3 combination of slight abnormalities) that has no more than a 4 minimal effect on the ability to do basic work activities. Webb, 5 433 F.3d at 686. 6 If the ALJ concludes that a claimant lacks a medically severe 7 8 impairment, the ALJ must find the claimant not disabled. Id.; 20 9 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th 10 Cir. 2005) (ALJ need not consider subsequent steps if there is a 11 finding of disabled or not disabled at any step). 12 However, if the ALJ finds that a claimant s impairment is 13 14 severe, then step three requires the ALJ to evaluate whether the 15 claimant s impairment satisfies certain statutory requirements 16 entitling him to a disability finding. 18 entitling the claimant to a disability finding, the ALJ must the 19 determine the claimant s RFC, that is, the ability to do physical 21 22 23 24 25 26 27 28 does not satisfy the statutory If 17 20 impairment Webb, 433 F.3d at 686. requirements and mental work activities on a sustained basis despite limitations from all his impairments. 20 C.F.R. § 416.920(e). Once the RFC is determined, the ALJ proceeds to step four to assess whether the claimant is able to do any work that he or she has done in the past, defined as work performed in the last fifteen years prior to the disability onset date. If the ALJ finds that the claimant is not able to do the type of work that he or she has done in the past or does not have any past relevant work, the ALJ 6 1 proceeds to step five to determine whether - taking into account 2 the claimant s age, education, work experience and RFC - there is 3 any other work that the claimant can do and if so, whether there 4 are a significant number of such jobs in the national economy. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 6 404.1520(a)(4)(iii)-(v). The claimant has the burden of proof at 7 steps one through four, and the Commissioner has the burden of 8 proof at step five. Tackett, 180 F.3d at 1098. 9 10 DISCUSSION 11 12 After consideration of the record as a whole, the Court finds 13 that the Commissioner s findings are not supported by substantial 14 evidence or free from material legal error.1 For the reasons 15 discussed below, the case is remanded under sentence four of 42 16 U.S.C. Section 405(g). 17 18 A. The ALJ Erred in Evaluating Plaintiff s Mental Limitations 20 Consultative psychological examiner Mark D. Pierce, PhD, 19 21 completed a psychological evaluation of Plaintiff, and issued a 22 report on June 2, 2010. (A.R. 415-20). Dr. Pierce concluded as 23 follows: 24 25 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ s decision will not be reversed for errors that are harmless). 7 1 1 2 3 4 5 6 7 8 By today s [Plaintiff] may retain the capacity to complete simple and repetitive vocational skills and to adapt to minimal changes in a work environment. Reasoning capacities are judged potentially capable to this lower level, to the extent the claimant reports reduced abilities with selective ADLs, but that these are not completely precluded. 9 10 performance, The claimant would have mild to greater difficulty working effectively with others, due to presented 11 dysthymic adjustment. He can remember and comply with 12 simple part 13 concentrate just adequately for a regular work schedule 14 for a full workweek. 15 16 (Id. 420). one and two instructions. He could Dr. Pierce found that Plaintiff was able to complete 17 the patient history form in his own hand and in good detail, a fact 18 inconsistent with his significant challenges with administered 19 testing. (A.R. 27, 415). Dr. Pierce further noted surprising 20 testing results, given the fact that Plaintiff was able to 21 understand all test questions, comprehended all aspects of the 22 evaluation, had average verbal response time, and organized if 23 somewhat underproductive thoughts. (Id. 27, 417). He further 24 stated that although Plaintiff s vocabulary is well preserved, 26 capacity with the similarities test was remarkably challenged. 25 giving 27 (Id. 27, 418). 28 no indication of word finding challenges, Plaintiff s Dr. Pierce also noted motivational challenges 8 1 with respect to the testing, possibly due to depressive impacts.2 2 (Id. 27, 419). 3 4 The ALJ reviewed the record relating to Plaintiff s mental 5 impairments and gave significant weight to the opinions of Dr. 6 Pierce and the state agency reviewing medical consultant, D.R. 7 Conte, M.D.: 8 9 10 The consultative examiner, Dr. Mark Pierce, noted inconsistencies in the claimant s performance level on 11 the battery of psychological tests, thought to be due in 13 observations and reporting of the psychologist that the 15 form in his own hand, and in good detail, despite the 17 testing. 12 part 14 claimant had been able to complete the patient history 16 claimant s demonstrated significant challenges on formal 18 to motivation factors. This is despite the 19 . . . . 21 . . . Dr. Pierce concluded the claimant still 20 22 retained the capacity to complete simple and repetitive 24 work environment . . . and that he was able to remember 23 vocational skills and to adapt to minimal changes in the 25 and comply with simple one and two part instructions . . 26 The ALJ noted that these inconsistencies diminished the 27 persuasiveness of Plaintiff s subjective complaints and alleged 28 limitations relating to his cognitive limitations. (A.R. 27). 2 9 1 2 3 4 The reviewing medical consultant with the state agency assessed the claimant with the capability to sustain simple repetitive tasks . . . . 5 . . . . 7 In terms of the claimant s mental functioning, the 6 8 9 10 undersigned has given significant weight to the opinions of Dr. Pierce and the reviewing medical consultant with the state agency. These opinions are generally 11 consistent in that they assess the claimant with the 13 concentration to persist for a workday and work week 15 the workplace. 12 capability 14 albeit with some difficulties in relating with others in 16 17 to carry out simple tasks with adequate . . . The claimant complains of mood changes and 18 cognitive difficulties, but the evidence shows no 20 of the mental health records, including the reporting of 22 limited to work entailing simple instructions . . . . 19 longitudinal treatment for a mental impairment. 21 Dr. Pierce, the undersigned finds that the claimant is 23 In view 24 (Id. 27-29 (emphasis added) (citations omitted)).3 26 Elsewhere in her decision, the ALJ also noted that medical records from the P.O.S.T. Rehabilitation Clinic in 2008 reflect that Plaintiff can recall history and follow 1, 2, and 3 step commands. (A.R. 24 (citing id. 298-303, 299)). 10 25 27 28 3 1 Plaintiff asserts that although the ALJ gave significant 2 weight to the uncontradicted opinion of Dr. Pierce, the ALJ erred 3 when she failed to include Dr. Pierce s limitation to simple one 4 and two part instructions in her RFC determination and in her 5 hypothetical to the VE, and never explained why she left it out. 6 (Joint Stip. 5-6, 7). 7 agrees. For the reasons stated below, the Court 8 9 Because instructions may be simple, yet consist of more than 10 two parts, the Court does not find that the ALJ s limitation to 11 simple instructions, is necessarily equivalent to Dr. Pierce s 12 asserted limitation that Plaintiff can remember and comply with 13 simple one and two part instructions. Although the ALJ states 14 that she gave significant weight to Dr. Pierce's evaluation (A.R. 15 29), nothing in the ALJ's decision explains her omission of Dr. 16 Pierce's finding that Plaintiff can remember and comply with 17 simple one and two part instructions (id. 420 (emphasis added)). 18 The Court finds that the ALJ was required to either include simple 19 one and two part instructions in her assessment of Plaintiff's 20 RFC, as it was relevant to Plaintiff's mental limitations (see 20 21 C.F.R. § 416.945(a)(1)), or, in the alternative, to give clear and 22 convincing reasons for rejecting Dr. Pierce's uncontradicted 4 23 opinion. 24 4 See, e.g., Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, A treating physician's opinion is generally entitled to 25 more weight than the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is 26 generally entitled to more weight than that of a nonexamining F.3d 821, 830 (9th Cir.1995); see 27 physician. Lester v. Chater, 81418, 422 (9th Cir.1988) (treating also Embrey v. Bowen, 849 F.2d 28 11 (continued...) 1 1199; Reddick, 157 F.3d at 725; Lester, 81 F.3d at 830. 2 did neither. The ALJ 3 4 Accordingly, the omission of simple one and two part 5 instructions from the RFC determination amounts to the omission of 6 a limitation. See, e.g., Calderon v. Astrue, No. ED CV 11-1180- 7 PLA, 2012 WL 2806266, at *4 (C.D. Cal. July 6, 2012) (where the ALJ 8 gave great weight to Dr. Pierce s opinion, the omission from the 9 RFC of the limitation to simple one and two step instructions was 10 error); Smiddy v. Astrue, No. ED CV 10-1453 PJW, 2011 WL 4529473, 11 at *1-2 (C.D. Cal. Sept. 29, 2011) (ALJ erred in failing to address 12 Dr. Pierce s assessed limitations); Boltinhouse v. Astrue, No. ED 13 CV 10-1412 PJW, 2011 WL 4387142, at *1 (C.D. Cal. Sept. 21, 2011) 14 (characterizing Dr. Pierce's assessment that plaintiff could 15 remember and comply with simple one and two part instructions as a 16 limitation). [An] RFC that fails 17 claimant's limitations is defective. to take into account a Valentine v. Comm'r, 574 18 F.3d 685, 690 (9th Cir. 2009); see also C.F.R. § 416.945(a)(4). 19 20 Based on the foregoing, the Court finds the ALJ erred in 21 failing to properly credit or discredit Dr. Pierce s limitation to 22 simple one and two part instructions. 23 24 25 (...continued) 4 26 physician's conclusions must be given substantial weight ). The reject a treating 27 ALJ may only medical opinion based or examining physician's uncontradicted on clear and convincing 28 reasons. Lester, 81 F.3d at 830 31. 12 1 B. 2 3 The ALJ s Error Was Not Harmless Plaintiff notes that the DOT defines jobs consisting of 4 reasoning level 2 tasks, such as those of hand packager and 5 industrial cleaner, to apply commonsense understanding to carry 6 out detailed but uninvolved written or oral instructions (Joint 7 Stip. 8 (emphasis added) (quoting DOT App. C)), while jobs 8 involving reasoning level 1 require commonsense understanding to 9 carry out simple one- or two-step instructions (id. (emphasis 10 added) (quoting DOT App. C)). He argues that because the VE did 11 not get to consider Dr. Pierce s limitation to one- and two-part 12 instructions, the hypothetical question to the VE was incomplete 13 and, had it been included, the limitation . . . would eliminate 14 the [reasoning level 2] work identified by the [VE]. (Id. at 9). 15 As discussed below, this is not necessarily true. 16 Defendant 17 contends 18 Plaintiff could 20 or not that generally although complete Dr. Pierce simple opined and that repetitive 19 vocational work, Dr. Pierce did not state whether Plaintiff could could perform tasks involving more than two-part 21 instructions. (Id. 10). Therefore, defendant claims that the ALJ 22 appropriately interpreted Dr. Pierce s opinion in limiting 23 Plaintiff to being able to carry out simple instructions. 24 25 26 27 28 10). (Id. The Court is not persuaded by this argument and finds that the ALJ s error was not harmless. A job s reasoning level gauges the minimal ability a worker needs to complete the job s tasks themselves. Meissl v. Barnhart, 13 1 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005). Reasoning development 2 is one of three divisions comprising the General Educational 3 Development ( GED ) Scale.5 DOT App. C. The DOT indicates that 4 there are six levels of reasoning development. Id. Level 2 5 provides that the claimant will be able to [a]pply commonsense 6 understanding to carry out detailed but uninvolved written or oral 7 instructions. Deal with problems involving a few concrete variables 8 in or from standardized situations. See, e.g., DOT Nos. No. 9 920.587-018 (hand packager), 381.687-018 (industrial cleaner). 10 11 As explained by the court in Meissl, the Social Security 12 Regulations contain only two categories of abilities in regard to 13 understanding and remembering things: short and 14 instructions and detailed or complex instructions. 15 403 F. Supp. 2d at 984. simple Meissl, The DOT has many more gradations for 16 measuring this ability, six altogether. Id. The court explained: 17 18 To equate the Social Security regulations use of the term 20 that all jobs with a reasoning level of two or higher are 22 detail. 19 simple with its use in the DOT would necessarily mean 21 encapsulated within the regulations use of the word 23 keeping with the finely calibrated nature in which the 24 5 Such a blunderbuss approach is not in The GED scale embraces those aspects of education (formal 25 and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not 26 have a recognized, fairly specific occupational objective. such education is in elementary school, high 27 Ordinarily, college. However, obtainedbe obtained from experience school, or it may 28 and self-study. DOT App. C. 14 1 2 DOT measures a job s simplicity. 3 Id. 4 5 Another district court has held that a limitation either to 6 simple, routine instructions, or to one-to-two step 7 instructions in an RFC can be consistent with reasoning level 2, 8 and does not preclude a claimant as a matter of law from performing 9 jobs classified at that level. Hann v. Colvin, No. 12-cv-06234- 10 JCS, 2014 WL 1382063, at *16, 18 (N.D. Cal. Mar. 28, 2014) (citing 11 Meissl, 403 F. Supp. 2d at 982 (claimant limited to simple tasks 12 performed at a routine or repetitive pace not precluded from 13 performing unskilled past job with a reasoning level of 2), Eckard 14 v. Astrue, No. 1:11cv0516 DLB, 2012 WL 669895, at *7 (E.D. Cal. 15 Feb. 29, 2012) (no conflict between the DOT and the VE s testimony 16 where claimant limited to jobs involving simple one or two step 17 job instructions and jobs requiring reasoning level 2), Kellerman 18 v. Astrue, No. C 11-4727 PJH, 2012 WL 3070781, at *5 (N.D. Cal. 19 July 27, 2012) (finding no conflict between level 2 reasoning and 20 a limitation to simple one or two step instructions)). Conversely, 21 such a limitation does not necessarily mean that as a matter of law 22 a claimant can perform all jobs requiring reasoning level 2. Id. 23 (citing Dugas, No. 1:07-CV-605, 2009 WL 1780121, at *6 (E.D. Tex. 24 June 22, 2009)); see also Munoz v. Astrue, ED CV 11-2042-E, 2012 WL 26 considering this issue are not consistent). 25 27 28 2974669, at *3 (C.D. Cal. July 20, 2012) (noting that decisions The Court finds the recent case of Munoz, 2012 WL 2974669 at 15 1 *3, a case with similar facts to the instant case, instructive. In 2 Munoz, the plaintiff asserted disability based on alleged mental 3 impairments. Id. at *1. The consultative physician diagnosed a 4 depressive disorder, and opined that Munoz was able to understand, 5 remember, and carry out simple one or two-step job instructions, 6 and is able to do detailed and complex instructions. Id. The 7 state agency physician opined that Munoz could perform at least 8 simple 1-2 step tasks, but also opined that Munoz is moderately 9 limited in his ability to carry out detailed instructions. Id. 10 (citations omitted). The ALJ s RFC found that Plaintiff can 11 perform only one-to two step instruction jobs, and the VE 12 testified that Munoz could perform his past relevant work as a 13 warehouse worker, work that requires reasoning level 2. 14 (citations omitted). Id. The ALJ failed to ask the VE whether his 15 testimony was consistent with the information in the DOT, and the 16 VE did not independently clarify. Id. at *2. Noting the failure 17 to inquire on the record as to whether the VE s testimony was 18 consistent with the information in the DOT, the Court stated that 19 [w]hether this error was material depends on whether there existed 20 an apparent unresolved conflict between the [VE s] testimony and 21 the DOT. 22 23 Id. The Munoz Court noted that several district courts have 24 discerned material error in administrative decisions in which ALJs 26 instruction jobs could perform jobs requiring Level 2 reasoning, 25 have found that claimants who were limited to one-to-two step 27 while 28 at repeatedly least has one district refused to court, discern 16 the any Eastern material District, error in 1 administrative decisions in which ALJs have found that claimants 2 who were limited to one-to-two step instruction jobs could 3 perform jobs requiring Level 2 reasoning. Id. at *3 (citations 4 omitted). Noting that these decisions were neither consistent nor 5 binding, the Munoz Court found that the decisive question before it 6 was the intendment of the ALJ s residual functional capacity 7 finding (as incorporated into the hypothetical posed to the 8 vocational expert), specifically: Did this ALJ find that this 9 severe mental impairment limited this Plaintiff to jobs requiring 10 only Level 1 reasoning? Id. (citing Gonzales v. Astrue, 2012 WL 11 14002, at *12 (E.D. Cal. Jan. 4, 2012) (suggesting that the 12 difference in courts conclusions whether an RFC limitation for 13 simple, one-to-two step instructions is compatible with the DOT 14 reasoning level 2 appears to be predicated on the particular facts 15 of each case, and what the ALJ s or the physician s words of 16 limitation meant in the context of the medical evidence in the 17 record). 18 In making its determination, the Munoz Court considered three 19 20 nonexclusive factors: (1) in defining the claimant s RFC, did the 21 ALJ choose language closely paralleling the language of the DOT s 22 definition of level 1; (2) did the physician(s) whose opinions the 23 ALJ cited with approval also use language nearly identical to the 24 language of level 1 ( simple one-two step tasks ); and (3) does the 26 impairments have reduced his functioning below level 2 reasoning. 25 record 27 Id. 28 contain some evidence that the plaintiff s mental Finding the ALJ s intendment unclear, the Court concluded that remand for clarification was appropriate. 17 The same result is 1 appropriate here. 2 3 1. 5 In determining Plaintiff s RFC to include a limitation to The ALJ s Language 4 6 simple instructions, the ALJ chose language more closely 7 resembling the DOT definition of reasoning level 1, which requires 8 the ability to carry out simple one- or two-step instructions. 9 Although as previously noted there are numerous cases in this and 10 other districts that find that such a limitation is not necessarily 11 exclusive of level 1 jobs, without clarification from the ALJ as to 12 her intendment, such an inference under the circumstances of this 13 case would be merely speculative. 14 15 2. 17 Dr. Pierce and the reviewing examiner, Dr. Conte, both used 16 The Physicians Language 18 language that was nearly identical to the language of reasoning 19 level 1, requiring the ability to carry out simple one- or two20 step instructions. 21 22 For instance, Dr. Pierce stated that Plaintiff could perform 24 comply with one and two part instructions (A.R. 420 (emphasis 23 simple and repetitive vocational skills, and could remember and 25 added)). 27 vocational skills, but also stated that Plaintiff s [r]easoning 26 28 may Additionally, Dr. Pierce not only stated that Plaintiff retain the capacity to complete simple and repetitive capacities are judged potentially capable to this lower level . . 18 1 . but that these are not completely precluded. (Id. 420 (emphasis 2 added)). Although Dr. Pierce s opinion is somewhat inartfully 3 worded and therefore, ambiguous, it can be inferred that by 4 specifically referring to Plaintiff s reasoning capacities, and 5 then referring to this lower level, Dr. Pierce was referring to 6 Plaintiff s capacity to complete simple and repetitive vocational 7 skills, and that it was his intent to limit Plaintiff to 8 occupations with lower level 1 reasoning. Dr. Pierce s statement 9 that Plaintiff could concentrate just adequately to be able to 10 complete a regular work schedule and work week (id. (emphasis 11 added)), also may imply that Dr. Pierce finds Plaintiff s reasoning 12 capacities more severely limited than might be acceptable for a 13 reasoning level 2 position. 14 Dr. Conte s opinion, which the ALJ also gave significant 15 16 weight to, specifically noted that Plaintiff was moderately 17 limited in his ability to understand, remember, and carry out 18 detailed instructions. (Id. 437). He stated that Plaintiff was 19 not significantly limited in his ability to understand, remember, 20 and carry out very short and simple instructions. (Id.). He 21 concluded that Plaintiff could sustain simple, repetitive tasks 22 with adequate persistence and pace. 23 24 (Id. 439). Dr. Conte s limitation to short and simple instructions is 25 consistent with the wording of reasoning level 1 and his opinion 27 understand, remember, and carry out detailed instructions, appears 26 28 that Plaintiff was moderately limited in his ability to to be inconsistent with reasoning level 2 s requirement of being 19 1 able to carry out detailed but uninvolved . . . instructions. 2 See also, Munoz, 2012 WL 2974669, at *4 (reviewing examiner s 3 opinion that plaintiff moderately limited in his ability to carry 4 out detailed instructions constitutes some evidence that 5 plaintiff s mental impairments have reduced his functioning below 6 level 2 reasoning). Thus, it can be inferred that Dr. Conte 7 intended to limit Plaintiff to occupations at level 1 reasoning. 8 9 3. Other Record Evidence 10 11 The third factor in Munoz is whether some evidence supports 12 the finding that Plaintiff s functioning is reduced below reasoning 13 level 2. The record reflects a lack of longitudinal evidence with 14 regard to Plaintiff s mental impairments. (See A.R. 29). This may 15 weigh against a finding that Plaintiff s mental impairments have 16 reduced his functioning below reasoning level 2. 17 18 However, as in Munoz, the ALJ s failure to include (or reject 19 with a clear and convincing reason) Dr. Pierce s limitation to one 20 and two part instructions, or to let her intendment be clear with 21 respect to Plaintiff s reasoning level limitations, if any, was 22 compounded by her failure to ask the VE whether her testimony was 23 consistent with the information in the DOT, and the VE did not 24 volunteer this information.6 (Id. 58-68). Nevertheless, the ALJ's 26 vocational expert's testimony is consistent with the information 25 27 28 decision states that the undersigned has determined that the 6 parties. The Court notes that this issue was not raised by the 20 1 contained in the [DOT]. 2 3 (Id. 16). The ALJ has an affirmative responsibility to ask whether a 4 conflict exists between the testimony of a VE and the DOT. Soc. 5 Sec. Ruling ( SSR ) 00-4p, 2000 WL 1898704, at *4; Massachi v. 6 Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). If there is a 7 conflict between the DOT and testimony from the VE, an ALJ may 8 accept testimony from a VE that contradicts the DOT, but the 9 record must contain persuasive evidence to support the 10 deviation. Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001) 11 (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). 12 The ALJ must resolve any conflict by determining whether the VE s 13 explanation is reasonable and provides sufficient support to 14 justify deviating from the DOT. SSR 00-4p, 2000 WL 1898704, at *4; 15 Massachi, 486 F.3d at 1153. An ALJ s failure to do so can be 16 harmless error when there is no conflict or when the VE provides a 17 basis for relying on her testimony rather than on the DOT. 18 Massachi, 486 F.3d at 1154 n.19. Reasonable explanations for 19 deviating from the DOT may include that the DOT does not provide 20 information about all occupations, information about a particular 21 job not listed in the [DOT] may be available elsewhere, and the 22 general descriptions in the [DOT] may not apply to specific 23 situations. Id. at 1153, n.17 (citing SSR 00-4p, 2000 WL 1898704, 24 25 26 27 28 at *2-3). In this case, the ALJ did not question the VE as to whether her opinion deviated from the DOT. In fact, there is absolutely no discussion of the apparent conflict between the limitation to 21 1 simple instructions, and the VE s determination that Plaintiff 2 could perform the requirements of positions requiring level 2 3 reasoning. Without the required testimony by the VE on this issue, 4 the record lacks substantial evidence that a person limited to 5 simple instructions, based on the ALJ s unstated intendment 6 behind that term, can perform the work of hand packager and 7 industrial cleaner positions requiring level 2 reasoning skills. 8 The ALJ s perfunctory statement that she determined the VE s 9 testimony was consistent with the information contained in the DOT 10 (A.R. 31) is not sufficient to properly supply the vocational 11 evidence necessary to depart from the DOT. Munoz, 2012 WL 12 2974669, at *5 (citing Light v. Soc. Sec. Admin., 119 F.3d 789, 794 13 (9th Cir. 1997) (an explanation and persuasive supporting 14 evidence must accompany any administrative deviation from the DOT), 15 Burkhart v. Bowen, 845 F.2d 1335, 1341 (9th Cir. 1988) 16 (administration may not speculate concerning the requirements of 17 particular jobs)). Under the circumstances of this case, the ALJ s 18 failure to question the VE as to whether her opinion deviated from 19 the DOT, was not harmless error. 20 21 Additionally, the lack of longitudinal treatment evidence in 22 the record for Plaintiff s mental impairments makes it even more 23 critical for the ALJ to clarify whether reasoning level 2 work was 24 intended and to obtain testimony from a VE as to any inconsistency 26 work at reasoning level 2. 25 with the DOT, in order to determine whether Plaintiff could perform 27 28 22 1 C. 2 3 Remand Is Appropriate Given the lack of evidence of longitudinal treatment for a 4 mental impairment (A.R. 29), and the weight given by the ALJ to 5 the uncontradicted opinions of Dr. Pierce and Dr. Conte and the 6 resulting ambiguities in the ALJ s assessment of Plaintiff s RFC, 7 the Court cannot confidently conclude that the ALJ s error in 8 failing to include Dr. Pierce s limitation to one and two part 9 instructions, or that her failure to determine whether the VE s 10 testimony was consistent with the DOT, is harmless. Stout v. 11 Comm r, 454 F.3d 1050, 1056 (9th Cir. 2006); see also Calderon, 12 2012 WL 2806266, at *4. 13 The decision whether to remand for further proceedings or 14 15 order an immediate award of benefits is within the district court s 16 discretion. 17 2000). Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. Where no useful purpose would be served by further 18 administrative proceedings, or where the record has been fully 19 developed, it is appropriate to exercise this discretion to direct 20 an immediate award of benefits. Id. at 1179 ( [T]he decision of 21 whether to remand for further proceedings turns upon the likely 22 utility of such proceedings. ). However, where, as here, the 23 circumstances of the case suggest that further administrative 24 review could remedy the ALJ s errors, remand is appropriate. 26 81. 25 27 28 McLeod, 640 F.3d at 888 (9th Cir. 2011); Harman, 211 F.3d at 1179- On remand the ALJ should (1) clarify the weight she gives to 23 1 the opinions of Dr. Pierce and Dr. Conte and, either include Dr. 2 Pierce s limitation to simple one and two step instructions in 3 Plaintiff's RFC, or, in the alternative, give clear and 4 convincing reasons for rejecting Dr. Pierce's uncontradicted 5 opinion regarding this limitation; (2) seek clarification from the 6 VE regarding jobs that exist in significant numbers in the local or 7 national economy, in light of the hypothetical(s) provided and any 8 intended limitations with respect to reasoning level; (3) determine 9 whether the VE s testimony is consistent with the DOT, including 10 with respect to reasoning level; and (4) seek an explanation from 11 the VE of any apparent inconsistency between the VE s testimony and 12 the DOT s description of the representative occupations. 13 14 15 16 CONCLUSION For all of the foregoing reasons, this matter is remanded for 17 further administrative action consistent with this Opinion. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 DATED: 20 August 28, 2014. /s/ 22 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 24

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