Laurie Jean Gribben v. Carolyn W Colvin, No. 8:2015cv01602 - Document 21 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott, For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion. LET JUDGMENT BE ENTERED ACCORDINGLY. (see document for details). (dro)
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Laurie Jean Gribben v. Carolyn W Colvin Doc. 21 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LAURIE JEAN GRIBBEN, 12 Plaintiff, 13 vs. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 ) Case No. SACV 15-01602 -KES ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) 18 19 Plaintiff Laurie Jean Gribben (“Plaintiff”) appeals the final decision of 20 the Administrative Law Judge (“ALJ”) denying her application for Social 21 Security Disability Insurance benefits (“DIB”) and supplemental security 22 income (“SSI”). For the reasons discussed below, the Court concludes: (1) the 23 ALJ erred by failing to discuss the medical opinions of Dr. Johnson, a State 24 agency consultant; and (2) the ALJ failed to account for conflicts between the 25 testimony of a vocational expert (“VE”) and the Dictionary of Occupational 26 Titles (“DOT”). 27 I. 28 BACKGROUND Dockets.Justia.com 1 Plaintiff applied for DIB on February 1, 2012 and SSI on February 27, 2 2012, alleging the onset of disability on May 8, 2010. Administrative Record 3 (“AR”) 192-200. An ALJ conducted hearings on September 11, 2013 and 4 March 17, 2014, at which Plaintiff, who was represented by an attorney, 5 appeared and testified. AR 46-69. 6 On April 4, 2014, the ALJ issued a written decision denying Plaintiff’s 7 request for benefits. AR 28-40. The ALJ found that Plaintiff had the severe 8 impairments of degenerative disc disease of the cervical spine and left shoulder 9 derangement. AR 33. Notwithstanding her impairments, the ALJ concluded 10 that Plaintiff had the residual functional capacity (“RFC”) to perform 11 sedentary work with the following additional limitations: lift no more than 10 12 pounds occasionally and less than 10 pounds frequently; sit for 6 hours but 13 stand and walk 2-3 hours; occasionally climb ramps and stairs, and 14 occasionally balance, stoop, kneel, crouch, and crawl; cannot climb ladders, 15 ropes, or scaffolds; cannot be exposed to unprotected heights and fast moving 16 machinery; and cannot engage in any overhead lifting bilaterally. AR 35. 17 Based on this RFC and the testimony of a VE, the ALJ found that Plaintiff 18 could still perform her past relevant work as a receptionist, and that she is 19 therefore not disabled. AR 40. 20 II. 21 ISSUES PRESENTED 22 Issue No. 1: Whether the ALJ properly assessed probative medical 23 24 25 26 27 28 source opinions; Issue No. 2: Whether the ALJ correctly found Plaintiff capable of performing her past relevant work as receptionist; and Issue No. 3: Whether the ALJ provided clear and convincing reasons for rejecting Plaintiff’s testimony. Joint Stipulation (“JS”) 4. 2 1 2 3 III. 4 DISCUSSION 5 A. The ALJ erred by failing to assess the medical source opinion of State 6 agency consultant, Dr. Johnson.1 7 The ALJ’s discussion of Plaintiff’s mental impairments was limited to 8 dismissing the opinion of examining doctor, Dr. Fahmy Ibrahim. AR 39. Dr. 9 Ibrahim opined that the Plaintiff had an adjustment disorder with mental 10 functioning limitations that were mildly to moderately impaired and a Global 11 Assessment Score of 60. AR 39, citing 408-412. The ALJ gave little weight to 12 this opinion, as “there is no evidence of a mental health impairment in the 13 treatment record and no evidence the claimant has undergone mental health 14 treatment.” Id. 15 Plaintiff contends that the ALJ improperly failed to discuss the opinion 16 of Dr. Johnson, a State Agency psychological consultant. JS 7. Dr. Johnson 17 relied on the medical opinion of Dr. Ibrahim to assess Plaintiff with an 18 affective disorder and opined that she was moderately limited in her ability to: 19 (1) remember locations and work-like procedures; (2) understand and 20 remember detailed instructions; (3) carry out detailed instructions; (4) maintain 21 22 23 24 25 26 27 28 1 Plaintiff also argues that the ALJ improperly assessed the medical opinions of treating physician, Perry Secor, M.D., and examining physician, Harlan Bleecker, M.D. JS 8-10. The essence of Plaintiff’s complaint concerns whether the ALJ’s residual functional capacity determination precluding “overhead activity bilaterally” sufficiently addresses the medical opinions of Dr.’s Secor and Bleecker, who limited Plaintiff to occasional or no “reaching at or above shoulder level.” Id. Because this Court finds other deficiencies requiring remand, the Court does not reach these contentions. On remand, the ALJ may wish to consider these additional claims of error. 3 1 attention and concentration for extended periods; (5) complete a normal 2 workday and workweek without interruptions from psychologically based 3 symptoms and to perform at a consistent pace with an unreasonable number of 4 length or rest periods; and (6) respond appropriately to changes in the work 5 setting. AR 75-78. Dr. Johnson’s report found Plaintiff unable to return to her 6 past relevant work as a receptionist. AR 79. Plaintiff argues that the ALJ erred 7 by failing to address this opinion, particularly because it directly conflicts with 8 the ALJ’s finding that Plaintiff could return to her past relevant work as a 9 receptionist. This Court agrees. 10 The ALJ must “explain the weight given to the opinions” of state agency 11 physicians and psychologists. 20 C.F.R. § 404.1527(e)(2)(ii). The relevant 12 regulations state as follows: 13 Administrative Law Judges are not bound by any findings 14 made by State agency medical or psychological consultants, or other 15 program physicians or psychologists. However, State agency 16 medical and psychological consultants and other program 17 physicians and psychologists are highly qualified physicians and 18 psychologists who are also experts in Social Security disability 19 evaluation. Therefore, administrative law judges must consider 20 findings of State agency medical and psychological consultants or 21 other program physicians or psychologists as opinion evidence, 22 except for the ultimate determination about whether you are 23 disabled. 24 20 C.F.R. §§ 404.1527(e)(2)(i); 417.927(e)(2)(i). That treatment, consideration, 25 and need for explanation includes assessment of residual function capacity. 26 Social Security Ruling 96-6p. 27 28 The ALJ committed plain error when he failed to state any reason for rejecting the opinions of Dr. Johnson. The Commissioner argues that by giving 4 1 reasons for rejecting Dr. Ibrahim’s opinion, the ALJ also explained his 2 rejection of Dr. Johnson’s opinions, because Dr. Johnson relied on Dr. 3 Ibrahim. JS 11. The Court disagrees. Dr. Johnson’s report included opinions 4 that went beyond those of Dr. Ibrahim’s, including Plaintiff’s limitation to 5 simple repetitive tasks and limitations in dealing with work stress. AR 77-79. 6 Dr. Johnson’s report also opined that these mental limitations would preclude 7 Plaintiff from returning to her past work as a receptionist. AR 79. This 8 opinion, if assessed and deemed credible by the ALJ, could change the ALJ’s 9 Step Four determination of Plaintiff’s ability to return to her past work as a 10 receptionist. The ALJ, therefore, must explicitly state his reasons for rejecting 11 Dr. Johnson’s opinions. 12 B. The ALJ failed to account for conflicts between the DOT and the 13 VE’s testimony. 14 Plaintiff contends that the ALJ erred in finding her able to perform her 15 past relevant work as a receptionist. She alleges that the ALJ did not properly 16 address a discrepancy between the DOT’s description of that occupation and 17 the VE’s testimony. The Court agrees. 18 At Step Four of the Commissioner’s sequential evaluation process, a 19 claimant has the burden of showing that he can no longer perform her past 20 relevant work. See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001); 20 21 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ still has a duty at Step Four to 22 make specific findings as to the claimant’s RFC, the physical and mental 23 demands of the past relevant work, and the relation of the RFC to the past 24 work. See id. at 845. The ALJ may take the testimony of a VE to find that a 25 claimant can or cannot continue his past relevant work. See id. However, the 26 DOT is the Commissioner’s “primary source of reliable job information” and 27 creates a rebuttable presumption as to job classification. See Johnson v. 28 Shalala, 60 F.3d 1428, 1434 n.6, 1435 (9th Cir.1995); see also Tommasetti v. 5 1 Astrue, 535 F.3d 1035, 1042. An ALJ may not rely on a VE’s testimony 2 regarding the requirements of a particular job without first inquiring whether 3 that testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 4 1152 (9th Cir. 2007) (citing Social Security Ruling 00-4p). At Step Four, “[i]n 5 order for an ALJ to accept vocational expert testimony that contradicts the 6 Dictionary of Occupational Titles, the record must contain ‘persuasive 7 evidence to support the deviation.’” See Pinto, 249 F.3d at 846 (quoting 8 Johnson, 60 F.3d at 1435); see also Tommasetti, 533 F.3d at 1042 (same). 9 Here, the ALJ determined that Plaintiff had an RFC for sedentary work 10 with the addition limitation of no “overhead activity bilaterally.” AR 35. After 11 taking the testimony of a VE, the ALJ determined that Plaintiff could perform 12 her past relevant work as a receptionist (DOT 237.367-038, 1991 WL 672192). 13 The hypothetical testimony of the VE proceeded as follows: 14 ALJ: Assume for hypothetical number one, that the hypothetical 15 claimant can lift no more than 10 pounds, and that only 16 occasionally; and less, less than 10 pounds frequently. She can sit 17 for six hours, stand for no more than two to three hours. All the 18 posturals are occasional; but no ladders, ropes, or scaffolding; no 19 heights; no fast moving machinery. In addition to that, she’s 20 precluded from any overhead activity bilaterally. Can she do any of 21 her past work? 22 VE: No overhead activity bilaterally? 23 ALJ: Right. 24 VE: I would say could do receptionist. 25 AR 51-52. The ALJ did not inquire into any conflict potentially raised by this 26 testimony and the DOT. Id. 27 28 Plaintiff contends that the VE’s testimony raised an apparent, unresolved conflict between the “reaching” requirements of the receptionist clerk job and 6 1 2 Plaintiff’s RFC precluding “overhead activity bilaterally.” JS 16. The Court agrees. The DOT describes the receptionist job as an 3 occupation that requires frequent reaching. DOT 237.367-038, 1991 WL 4 672192. “Frequent” means occurring from one-third to two-thirds of the time. 5 Reaching is defined as “extending hand(s) and arm(s) in any direction.” See 6 Social Security Ruling 85-15, at *7; Riad v. Colvin, 2014 WL 2938512, at *5 7 (C.D. Cal. Jun. 30, 2014) (“[T]he weight of authority in the Ninth Circuit 8 supports the proposition that ‘reaching’ as used here in the DOT encompasses 9 overhead or above-the-shoulder reaching.”) (collecting cases). An apparent 10 conflict exists when, without explanation, an ALJ finds that someone who is 11 limited to no overhead reaching nonetheless can perform DOT jobs that 12 require frequent reaching. Nelson v. Colvin, 2016 WL 1532226, at *4 (C.D. 13 Cal. Apr. 14, 2016) (finding an apparent conflict in ALJ’s determination that 14 someone limited to occasional overhead reaching can perform DOT jobs that 15 require frequent reaching). 16 The Commissioner argues that no apparent conflict exists, claiming that 17 “just because the term ‘reaching’ includes extending the arms in ‘any’ direction 18 — such as up, down, out, right, and left — that does not mean that a job that 19 involves reaching necessarily requires extending the arms in all of those 20 directions.” JS 21 (citing Ballesteros v. Colvin, 2016 WL 3381280 (C.D. Cal. 21 June 13, 2016)).2 She also points out that the ALJ clearly presented the 22 limitation against overhead activity to the VE. JS 22. Neither of these points is 23 relevant to the question of whether the ALJ properly inquired into the 24 consistency of the VE’s testimony with the DOT, as required by Ninth Circuit 25 26 27 28 2 Ballesteros is distinguishable from the present case. The ALJ in Ballesteros fulfilled his requirement under SSR 00-4p by advising the VE to explain any deviations from the DOT in her testimony. The ALJ also made explicit findings explaining his resolution of any conflict. Id. at *14. 7 1 precedent. See Massachi, 486 F.3d at 1552; SSR 00-4p. 2 C. Remand for Further Proceedings Is Appropriate. 3 When an ALJ errs in denying benefits, the Court generally has discretion 4 to remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175- 5 78 (9th Cir. 2000) (as amended). Here, remand for further proceedings is 6 appropriate, because the ALJ neither addressed the medical opinions of Dr. 7 Johnson, nor resolved the apparent conflict between the DOT and the VE’s 8 testimony. On remand, the ALJ must discuss Dr. Johnson’s opinions and 9 determine their credibility in assessing whether Plaintiff’s RFC should include 10 limitations due to her mental impairments. The ALJ must also elicit further 11 testimony from the VE concerning the apparent inconsistency between the 12 VE’s testimony and the DOT. For clarity, when describing the reaching 13 requirements of receptionist work, the VE may need to distinguish between 14 overhead reaching versus reaching at or above the shoulder, but still below the 15 head. The Court does not reach Plaintiff’s other claims of error. Upon remand, 16 the ALJ may wish to consider them. 17 IV. 18 CONCLUSION 19 For the reasons stated above, the decision of the Social Security 20 Commissioner is REVERSED and the matter is REMANDED for further 21 proceedings consistent with this opinion. 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 24 25 Dated: October 04, 2016 _____________________________ KAREN E. SCOTT United States Magistrate Judge 26 27 28 8
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