Rosalie Carlos Robles v. Carolyn W. Colvin, No. 5:2016cv02089 - Document 22 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Rosalie Carlos Robles v. Carolyn W. Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSALIE CARLOS ROBLES, 12 Plaintiff, v. 13 14 15 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 16 ) No. EDCV 16-2089-AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 17 18 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 19 ORDERED that this matter is remanded 20 for further administrative action consistent with this Opinion. 21 I. 22 PROCEEDINGS 2016, Plaintiff 23 24 On October 3, Rosalie Carlos Robles 25 (“Plaintiff”) filed a Complaint seeking review of the denial of her 26 application for Supplemental Security Income Benefits (SSI). (Docket 27 1 28 Nancy A. Berryhill is substituted for former Commissioner Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). Acting 1 Dockets.Justia.com 1 Entry No 1). 2 with the Administrative Record (“AR”). 3 The 4 Magistrate Judge. 5 the parties filed a Joint Stipulation (“Joint Stip.”) setting forth 6 their 7 Entry No. 21). On February 15, 2017, Defendant filed an Answer along parties have consented to (Docket Entry Nos. 15, 16). proceed before (Docket Entry Nos. 12, 13). respective positions regarding a United States On August 3, 2017, Plaintiff’s claim. (Docket 8 II. 9 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 10 11 Plaintiff, formerly employed as a cashier and a teacher’s aide, 12 (AR 177), filed her SSI application on May 21, 2013, alleging a 13 disabling condition beginning March 15, 2013, (AR 149), as a result 14 of 15 Administrative Law Judge Sharilyn Hopson (“ALJ”) examined the record 16 and 17 vocational expert Allen Ey (“VE”), and Plaintiff, who was represented 18 by counsel. 19 in a written decision on March 31, 2015. stage three heard breast testimony cancer from (AR 27-50). (AR 176). medical On expert February Dr. 12, Robert 2015, Sklaroff, The ALJ then denied Plaintiff’s application (AR 10-21). 20 The 21 ALJ applied the requisite five-step process to evaluate 22 Plaintiff’s case. 23 engaged in substantial gainful activity since the application date of 24 May 21, 2013. 25 had 26 bilateral 27 lymphedema; 28 determined the At step one, the ALJ found that Plaintiff has not (AR 12). following severe mastectomy and that and At step two, the ALJ found that Plaintiff impairments: removal depression. Plaintiff’s breast cancer, of local (Id.). At step did not impairments 2 lymph status post nodes; three, meet or anemia; the ALJ equal a 1 Listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 2 Next, 3 capacity 4 limitations: 5 occasionally; stand, walk, or sit 6 hours out of an 8-hour day; 6 occasionally 7 occasionally balance, stoop, kneel, crouch, and crawl; and limited to 8 simple routine tasks.” the ALJ found (“RFC”)2 that to “lift climb Plaintiff perform and/or light carry stairs, has 10 no the work pounds ladders, residual with the frequently, ropes, or (AR 13). functional following 20 pounds scaffolds; (AR 15). 9 The ALJ then proceeded to steps four and five. 10 At step four, 11 the ALJ determined that Plaintiff was not able to perform her past 12 relevant work as a child care attendant and sales clerk. 13 Relying on the VE’s testimony at step five, the ALJ found Plaintiff, 14 with her age, education, work experience, and RFC, can perform the 15 following representative jobs existing in significant numbers in the 16 national 17 (“DOT”) 211.462-010) and storage-facility rental clerk (DOT 295.367- 18 026). 19 not been disabled since she filed her application on May 21, 2013. 20 (Id.). economy: (AR 20). cashier II (Dictionary of (AR 19). Occupational Titles Accordingly, the ALJ concluded that Plaintiff has 21 22 On April 29, 2015, Plaintiff requested that the Appeals Council 23 review the ALJ’s Decision, and the Appeals Council denied her request 24 on August 4, 2016. (AR 1-10). The ALJ’s Decision thus became the 25 26 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 1 Commissioner’s final decision, allowing this Court to review it. 2 42 U.S.C. §§ 405(g), 1383(c). See 3 4 III. STANDARD OF REVIEW 5 6 This Court reviews the Administration’s decision to determine if 7 it is free of legal error and supported by substantial evidence. 8 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 9 evidence” is more than a mere scintilla, but See “Substantial less than a 10 preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 11 2014). 12 “a court must consider the record as a whole, weighing both evidence 13 that supports and evidence that detracts from the [Commissioner’s] 14 conclusion.” 15 2001) (internal quotation omitted). 16 can support either affirming or reversing the ALJ’s conclusion, [a 17 court] 18 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, may Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. not substitute [its] As a result, “[i]f the evidence judgment for that of the ALJ.” 19 20 IV. PLAINTIFF’S CONTENTIONS 21 22 Plaintiff raises two grounds for relief. First, she argues that 23 the ALJ erred in rejecting the opinion of her treating physician. 24 (Joint Stip. at 2-6). 25 found that she could perform the jobs of cashier II and facility 26 rental 27 between the VE’s testimony and the DOT’s description of these jobs. 28 (Id. at 10-15). clerk, despite Second, she contends that the ALJ improperly the ALJ’s failure 4 to reconcile a conflict 1 V. DISCUSSION 2 3 After reviewing the record, the Court finds that Plaintiff’s 4 second claim warrants remand for further consideration. 5 The Court declines to address Plaintiff’s other claim. 6 7 A. 8 The ALJ Materially Erred In Concluding That Plaintiff Could Perform The Jobs Of Cashier II And Rental Facility Clerk 9 10 Plaintiff contends that the ALJ erred in finding that she could 11 perform the occupations of cashier II (DOT 211.462-010) and storage- 12 facility rental clerk (DOT 295.367-026) because these jobs require a 13 level of reasoning that conflicts with Plaintiff’s RFC limitation to 14 “simple 15 conflict. routine tasks,” and the ALJ failed to reconcile that claimant could (Joint Stip. at 10-15). 16 In 17 considering potential occupations that a 18 perform, the ALJ relies on the DOT and VE testimony. 19 416.966(e); Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015). 20 “When there is an apparent conflict between the [VE’s] testimony and 21 the DOT — for example, expert testimony that a claimant can perform 22 an occupation involving DOT requirements that appear to be more than 23 the 24 inconsistency.” 25 486 F.3d 1149, 1153–54 (9th Cir. 2007). An ALJ's failure to inquire 26 into where 27 conflict between the RFC and the DOT. claimant an can handle — the ALJ is required to 20 C.F.R. § reconcile the Zavalin, 778 F.3d at 846 (citing Massachi v. Astrue, apparent conflict is harmless 28 5 there is no actual Ranstrom v. Colvin, 622 F. 1 App'x 687, 689 (9th Cir. 2015) (citing Massachi, 486 F.3d at 1154 n. 2 19). 3 Here, 4 the of VE testified (DOT could 211.462-010) and perform the occupations 6 rental clerk (DOT 295.367-026), (AR 47-48), and the ALJ adopted that 7 testimony, finding it “consistent with the information contained in 8 the [DOT],” (AR 20). 9 require 3 II Plaintiff 5 Level cashier that storage-facility According to the DOT, both of these jobs reasoning, commonsense which is understanding defined to as carry the out ability to 10 “[a]pply instructions 11 furnished in written, oral, or diagrammatic form,” as well as the 12 ability to “[d]eal with problems involving several concrete variables 13 in or from standardized situations.” 14 010; Storage-Facility Rental Clerk, DOT 295.367-026. 15 ALJ limited Plaintiff to “simple routine tasks.” See Cashier II, DOT 211.462As noted, the (AR 15, 47). 16 17 An apparent conflict exists as a matter of law between the ALJ’s 18 finding that Plaintiff is limited to “simple routine tasks” and the 19 VE’s 20 perform DOT jobs requiring Level 3 reasoning. 21 at 846-47 (finding an apparent conflict between the ALJ's finding 22 that the claimant retained the RFC to perform simple, routine, or 23 repetitive 24 cashier and surveillance system monitor jobs that the ALJ found the 25 claimant capable of performing). 26 apparent conflict was legal error. testimony that work, and a person the with Level 3 Plaintiff’s reasoning limitations could See Zavalin, 778 F.3d requirements of the The ALJ’s failure to resolve that See id. at 847. 27 28 6 1 Defendant contends that any error here was harmless, noting that 2 the Ninth Circuit in Zavalin “engaged in a thorough harmless error 3 analysis before determining that the ALJ’s failure to address the DOT 4 conflict between a[n] RFC for simple and repetitive work and a Level 5 Three Reasoning job was reversible error.” 6 Zavalin, 7 considering the DOT’s descriptions of the jobs at issue – cashier and 8 surveillance system monitor – in relation to the evidence that the 9 ALJ relied on to assess the claimant’s abilities. at the 848. court The assessed whether Commissioner error Zavalin was In harmless by See Zavalin, 778 10 F.3d 11 harmless because the claimant’s success in math classes and his use 12 of computer and video games demonstrated that he was capable of 13 performing the jobs. 14 the court noted that the claimant’s math classes were part of a 15 special education program. 16 high school only with “a modified diploma” conferred on students who 17 were unable to satisfy the standard educational requirements. 18 847. 19 of video game and computer use because the ALJ had not relied on it. 20 Id. at 848 (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 21 1054 (9th Cir. 2006)). Id. in the (Joint Stip. at 17). argued the The Ninth Circuit disagreed. Id. error Id. was First, Indeed, the claimant had graduated Id. at Second, the Court determined that it could not rely on evidence 22 Defendant 23 attempts to distinguish this case from Zavalin by 24 pointing out that Plaintiff competed high school. (Joint Stip. at 25 17). 26 clearly 27 require Level 3 reasoning. 28 is no rigid correlation between reasoning levels and the amount of But while this fact may be relevant to the inquiry, it is insufficient to show whether she can perform jobs that The Court in Zavalin stated that “there 7 1 education that a claimant has completed.” 2 This is because the reasoning levels do not correspond only to a 3 claimant’s 4 claimant's ability because they assess whether a person can ‘apply’ 5 increasingly difficult principles of rational thought and ‘deal’ with 6 increasingly complicated problems.” education level; rather, Zavalin, 778 F.3d at 847. they “correspond to the Id. 7 Defendant contends that the medical evidence, too, demonstrates 8 9 Plaintiff’s ability to perform jobs with Level 3 reasoning. (Joint 10 Stip. at 17-18). For support, Defendant asserts that the limitation 11 to “simple routine tasks” was based solely on Plaintiff’s subjective 12 complaints, 13 opined that Plaintiff did not have a severe mental impairment. 14 at 18). while the two state agency psychological consultants3 (Id. 15 Notwithstanding Defendant’s view of the record, however, the ALJ 16 17 specifically 18 consistent with the full medical evidence of record,” and thus gave 19 them “less weight.” 20 was 21 attention, concentration and memory,” the ALJ determined that “the 22 common 23 effects of her depression limit the complexity of the activities 24 [Plaintiff] would be able to sustain on a regular and continuous 25 basis.” 26 “simple routine tasks.” “little” side found the (AR 17). objective effects (AR 16). psychological of opinions “not And while the ALJ acknowledged there medical the consultants’ evidence chemotherapy to when show “deficits combined with in the For that reason, the ALJ limited Plaintiff to (Id.). 27 3 28 Defendant refers to the sources as “physicians” but presumably means the two psychological consultants Heather Barrons, Psy.D. and Peggy Elam, Ph.D. 8 1 Based on the DOT, both jobs at issue involve some tasks that do 2 not seem simple or routine. 3 change, compute bills, and verify cash on hand against totals on the 4 register tape, among other things. 5 They 6 memorandums.” 7 reconciling the cash on hand against the cash register’s tape and 8 issuing credit memorandums to customers could contain situational 9 variables may also need to A cashier, for instance, must make “give Cashier II, DOT 211.462-010. cash refunds or issue credit Id.; see Zavalin, 778 F.3d at 848 (“As a cashier, that may not be simple or repetitive.”). A storage- 10 facility rental clerk must, among other things, compute rental fees; 11 help customers select appropriate storage units; keep track of rental 12 statuses, expirations, and waiting lists; and monitor security and 13 surveillance 14 Storage-Facility Rental Clerk, DOT 295.367-026. cameras to ensure that they are working correctly. 15 16 Since the ALJ’s decision gives no indication that Plaintiff is 17 capable of performing work that requires Level 3 reasoning despite 18 the limitation to “simple routine tasks,” there is no basis for the 19 Court to conclude that the ALJ’s failure to reconcile the conflict 20 amounts to harmless error. 21 22 B. Remand Is Warranted 23 The decision whether to remand for further proceedings or order 24 25 an immediate award of benefits is within the district court’s 26 discretion. 27 The Ninth Circuit has stated that a remand for benefits is warranted 28 “only in ‘rare circumstances.’” Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Treichler v. Comm'r of Soc. Sec. 9 1 Admin., 2 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004)). 3 present only where the following elements are satisfied: (1) “the ALJ 4 has 5 evidence, whether claimant testimony or medical opinion”; (2) “the 6 record has been fully developed, [and] there are [no] outstanding 7 issues that must be resolved before a determination of disability can 8 be made”; and (3) the record as a whole, with the relevant testimony 9 or evidence credited as a matter of law, “leaves not the slightest 775 failed F.3d to 1090, provide 1100 (9th legally Cir. 2014) sufficient (quoting Moisa v. Such circumstances are reasons for 10 uncertainty as to the outcome of [the] proceeding.” 11 rejecting Id. at 1100–01 (9th Cir. 2014) (internal quotations and citations omitted). 12 Here, 13 the ALJ materially erred by failing to reconcile the 14 apparent conflict between the VE’s testimony and the DOT, so it 15 remains unclear whether Plaintiff is able to perform the jobs opined 16 by the VE and, if not, whether other work exists for her. 17 Court remands for further proceedings to resolve this issue, as well 18 as to address and resolve any other issues, as necessary.4 Thus, the 19 20 // 21 // 22 // 23 // 24 // 25 // 26 27 28 4 The Court has not reached any issues other than those addressed here, except as needed to conclude that further administrative proceedings are warranted. 10 1 VI. CONCLUSION 2 3 For the foregoing reasons, the decision of the Administrative 4 Law Judge is VACATED, and the matter is REMANDED, without benefits, 5 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 Dated: September 27, 2017. 10 11 12 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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