Jamma v. Berryhill, No. 3:2017cv01520 - Document 25 (S.D. Cal. 2018)
Court Description: ORDER granting 17 Plaintiff's Motion for Summary Judgment; and denying 18 Defendant's Cross=Motion for Summary Judgment. Judgment is entered reversing the decision of the Commissioner. The matter is remanded for further administrative proceedings pursuant to sentence four of 42 USC 405(g). Signed by Judge Janis L. Sammartino on 9/21/2018. (jpp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NUBIA ELENA JAMMA, Case No.: 3:17-cv-1520-JLS (RNB) Plaintiff, 12 13 v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 ORDER: (1) GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT Defendant. 17 (ECF Nos. 17, 18) 18 19 Presently before the Court and ready for decision are the parties’ cross-motions for 20 summary judgment. (ECF Nos. 17, 18.) For the reasons set forth herein, Plaintiff’s 21 motion for summary judgment is GRANTED and the Commissioner’s cross-motion for 22 summary judgment is DENIED. 23 PROCEDURAL BACKGROUND 24 On July 26, 2017, Plaintiff Nubia Elena Jamma filed a Complaint pursuant to 25 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 26 Security denying her application for Supplemental Security Income (“SSI”). (ECF No. 27 1.) On February 6, 2013, Plaintiff filed an application for SSI under Title XVI of the 28 Social Security Act, alleging disability beginning January 1, 2013. (Certified 1 17-cv-1520-JLS (RNB) 1 Administrative Record [“AR”] 184-91.) After her application was denied initially and 2 upon reconsideration (AR 126-31, 135-40), Plaintiff requested an administrative hearing 3 before an administrative law judge (“ALJ”). (AR 141-44.) An administrative hearing 4 was held on July 7, 2015. Plaintiff appeared at the hearing with counsel, and testimony 5 was taken from her, as well as telephonically from a medical expert (“ME”) and a 6 vocational expert (“VE”). (AR 50-74.) 7 As reflected in his December 9, 2015 hearing decision (AR 32-44), the ALJ found 8 that Plaintiff had not been under a disability, as defined in the Social Security Act, since 9 the date her application was filed. The ALJ’s decision became the final decision of the 10 Commissioner on May 26, 2017, when the Appeals Council denied Plaintiff’s request for 11 review. (AR 1-7.) This timely civil action followed. 12 SUMMARY OF THE ALJ’S FINDINGS 13 In rendering his decision, the ALJ followed the Commissioner’s five-step 14 sequential evaluation process. See 20 C.F.R. § 416.920. At step one, the ALJ found that 15 Plaintiff had not engaged in substantial gainful activity since February 11, 2013, the 16 application date. (AR 37.) 17 18 At step two, the ALJ found that that Plaintiff had the following severe impairments: depressive disorder and cognitive disorder. (AR 37.) 19 At step three, the ALJ found that Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled the severity of one of the 21 impairments listed in the Commissioner’s Listing of Impairments. (AR 37.) 22 Next, the ALJ determined that Plaintiff had the residual functional capacity 23 (“RFC”) “to perform a full range of work at all exertional levels but with the following 24 nonexertional limitations: she is limited to performing simple, repetitive tasks, low stress 25 level work, and no work-related deadlines.” (AR 40.) 26 For purposes of his step four determination, the ALJ found that Plaintiff’s work 27 experience as a companion satisfied the regulatory requirements to constitute past 28 relevant work. The ALJ proceeded to accept the VE’s testimony that a hypothetical 2 17-cv-1520-JLS (RNB) 1 person with Plaintiff’s vocational profile and RFC would be able to perform the 2 requirements of Plaintiff’s past relevant work as a companion as she performed it and as 3 customarily performed. (AR 43-44.) Accordingly, the ALJ found that Plaintiff was not 4 disabled at step four of the sequential evaluation process. (Id.) 5 PLAINTIFF’S CLAIMS OF ERROR 6 7 As reflected in Plaintiff’s summary judgment motion, Plaintiff is claiming the ALJ erred in the following respects: 8 9 1. The ALJ failed to include Plaintiff’s social functioning limitation in his RFC assessment and hypothetical to the VE. 10 2. In determining that Plaintiff could perform her past relevant work as a 11 companion, the ALJ failed to reconcile the apparent conflict between the VE’s testimony 12 and the reasoning level requirement of the companion job according to the Dictionary of 13 Occupational Titles (“DOT”). 14 STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 16 determine whether the Commissioner’s findings are supported by substantial evidence 17 and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 18 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less 19 than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. 20 Sec’y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 21 evidence is “such relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion.” Richardson, 402 U.S. at 401. This Court must review the record 23 as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 24 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 25 rational interpretation, the Commissioner’s decision must be upheld. Gallant v. Heckler, 26 753 F.2d 1450, 1452 (9th Cir. 1984). 27 /// 28 /// 3 17-cv-1520-JLS (RNB) 1 2 ANALYSIS I. Residual Functional Capacity Assessment 3 As part of his determination at step three of the sequential evaluation process, the 4 ALJ was required to consider whether the “paragraph B” criteria for the relevant listings 5 were satisfied. The ALJ needed to determine whether Plaintiff’s mental impairments 6 resulted in at least two of the following: marked restriction of activities of daily living; 7 marked difficulties in maintaining social functioning; marked difficulties in maintaining 8 concentration, persistence, or pace; or repeated episodes of decompensation, each of 9 extended duration. (See AR 38.) Based on the testimony of the medical experts of record, 10 the ALJ found inter alia that Plaintiff had only moderate difficulties in social functioning. 11 (See AR 39.) Plaintiff contends that the ALJ erred by not including this limitation in his 12 RFC assessment, and that the omission of this limitation from the hypothetical to the VE 13 was not harmless error because the occupation of companion requires significant 14 interaction with people. 15 The Court finds that the ALJ did not err in failing to include the moderate limitation 16 in social functioning in his RFC assessment or hypothetical to the VE. Social Security 17 Ruling1 (“SSR”) 96-8p provides that “the limitations identified in the ‘paragraph B’ and 18 ‘paragraph C’ criteria are not an RFC assessment but are used to rate the severity of 19 mental impairment(s) at steps 2 and 3 of the sequential evaluation process.” In Rogers v. 20 Commissioner of Social Security Administration, 490 F. App’x 15, 17-18 (9th Cir. 2012), 21 the Ninth Circuit addressed this very issue, concluding that the ALJ’s RFC assessment 22 adequately captured all of the claimant’s limitations, despite the ALJ’s finding of 23 moderate difficulties in social functioning, because the claimant did not have significant 24 limitations in any concrete work-related abilities that would prevent her from performing 25 26 27 28 1 Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 17-cv-1520-JLS (RNB) 1 simple routine tasks involved in unskilled jobs. The Rogers court noted that moderate 2 impairments assessed in broad functional areas used at steps 2 and 3 of the sequential 3 process did not equate to concrete work-related limitations for purposes of determining a 4 claimant’s RFC. Id.; see also Soto v. Colvin, 2013 WL 3071263, at *2 (C.D. Cal. June 5 17, 2013) (ALJ not required to include the moderate limitations in activities of daily 6 living and social functioning in the RFC assessment because they do not equate to 7 concrete work-related limitations). 8 Further, the Court concurs with the Commissioner that this case is controlled by 9 the Ninth Circuit’s decision in Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). 10 There, two doctors assessed the claimant with moderate limitations in mental functioning. 11 See id. at 1173. An examining physician (Dr. McCollum) found that the claimant was 12 “moderately limited” in her ability “to perform at a consistent pace without an 13 unreasonable number and length of rest periods” but did not assess whether she could 14 perform unskilled work on a sustained basis. Id. A state-agency reviewing psychologist 15 (Dr. Eather) identified the claimant’s limitation in pace, as well as moderate limitations 16 in several other areas of mental functioning but also found the claimant capable of 17 carrying out “simple tasks.” Id. Based on this medical opinion evidence, the ALJ 18 assessed the claimant as having the RFC for simple, routine, repetitive work and he did 19 not include any moderate limitations in pace or other mental areas of functioning in his 20 hypothetical to the VE. See id. at 1171, 1173-74. In doing so, the ALJ did not reject the 21 two doctors’ findings of moderate limitations in pace and other areas of mental 22 functioning. 23 “including the pace and mental limitations, into the only concrete restrictions available 24 to him — [the state-agency reviewing psychologist’s] recommended restriction to 25 ‘simple tasks.’” Id. The Ninth Circuit held that the ALJ’s limitation to “simple, routine, 26 repetitive” work sufficiently accommodated the medical-opinion evidence that the 27 claimant had a “moderate” limitation in pace and “other mental limitations regarding 28 attention, concentration, and adaption.” See id. at 1173-74. Here, as in Stubbs-Danielson, Id. at 1174. Rather, the ALJ “translated” the claimant’s condition, 5 17-cv-1520-JLS (RNB) 1 the ALJ “translated” Plaintiff’s condition, including the moderate limitation in social 2 functioning, into the only concrete restrictions available to him, i.e., the ME’s testimony 3 at the evidentiary hearing that Plaintiff was limited to simple, repetitive tasks, and work 4 involving low stress and no deadlines. (See AR 64.) 5 II. Step Four Determination 6 The Court, however, is unable to affirm the ALJ’s step four determination because 7 the Court concurs with Plaintiff that the ALJ erred when he failed to reconcile the 8 apparent conflict between the VE’s testimony and the reasoning level requirement of the 9 companion job. 10 In making disability determinations, the ALJ relies primarily on the DOT for 11 “information about the requirements of work in the national economy.” Massachi v. 12 Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). “The DOT describes the requirements for 13 each listed occupation, including the necessary General Education Development (‘GED’) 14 levels; that is, ‘aspects of education (formal and informal) . . . required of the worker for 15 satisfactory job performance.’” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) 16 (quoting DOT, App. C, 1991 WL 688702 (4th ed. 1991)). “The GED levels [include] the 17 reasoning ability required to perform the job, ranging from Level 1 (which requires the 18 least reasoning ability) to Level 6 (which requires the most).” Id. (citing DOT, App. C, 19 1991 WL 688702). 20 In addition to the DOT, the ALJ “uses testimony from vocational experts to obtain 21 occupational evidence.” Massachi, 486 F.3d at 1153; see also Zavalin, 778 F.3d at 846. 22 Generally, the VE’s testimony should be consistent with the DOT. See SSR 00-4p; 23 Massachi, 486 F.3d at 1153. But when conflicts occur, neither the DOT nor the VE’s 24 evidence automatically trumps. Massachi, 486 F.3d at 1153. “Thus, the ALJ must first 25 determine whether a conflict exists.” Id. 26 “When there is an apparent conflict between the vocational expert’s testimony and 27 the DOT—for example, expert testimony that a claimant can perform an occupation 28 involving DOT requirements that appear more than the claimant can handle—the ALJ is 6 17-cv-1520-JLS (RNB) 1 required to reconcile the inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi, 486 2 F.3d at 1153-54). The ALJ must ask the VE whether his or her testimony conflicts with 3 the DOT. Massachi, 486 F.3d at 1153-54. If it does conflict, “the ALJ must then 4 determine whether the vocational expert’s explanation for the conflict is reasonable and 5 whether a basis exists for relying on the expert rather than the [DOT].” Id. at 1153. 6 Here, in response to a hypothetical that matched the ALJ’s RFC assessment and 7 Plaintiff’s vocational profile, the VE initially stated that Plaintiff could not perform her 8 past relevant work as a companion because it was semi-skilled work; but then after 9 clarifying that Plaintiff was not limited to only one to two-step tasks, but rather to 10 “simple, repetitive tasks,” the VE testified that Plaintiff could “return to being a 11 companion.” (See AR 68.) The ALJ did not ask the VE if his testimony conflicted with 12 the DOT. 13 According to the DOT, the companion occupation requires Level 3 Reasoning, 14 which the DOT defines as the ability to “[a]pply commonsense understanding to carry 15 out instructions furnished in written, oral, or diagrammatic form” and to “[d]eal with 16 problems involving several concrete variables in or from standardized situations.” See 17 DOT 309.677-010, 1991 WL 672667. In Zavalin, 778 F.3d at 847, the Ninth Circuit held 18 that there is an apparent conflict between a claimant’s RFC to perform simple, repetitive 19 tasks and the demands of Level 3 Reasoning. The Court notes that the Zavalin decision 20 was published in February 2015, ten months before the ALJ issued his decision here. 21 In her cross-motion for summary judgment, the Commissioner does not address 22 the apparent conflict between the VE’s testimony and the reasoning level requirement of 23 the companion job, or the ALJ’s failure to ask the VE if his testimony conflicted with the 24 DOT. Instead, the Commissioner argues that (a) the ALJ properly relied on the VE’s 25 testimony, and (b) Plaintiff waived this issue by failing to raise it with the VE at the 26 administrative hearing. The former argument is belied by the authorities cited above, as 27 well as others. See e.g. Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (If the 28 VE’s opinion “conflicts with, or seems to conflict with, the requirements listed in the 7 17-cv-1520-JLS (RNB) 1 [DOT], then the ALJ must ask the expert to reconcile the conflict before relying on the 2 expert to decide if the claimant is disabled”). The latter argument was expressly rejected 3 by the Ninth Circuit in Lamear v. Berryhill, 865 F.3d 1201 (9th Cir. 2017), where the 4 Commissioner likewise was arguing that the claimant’s counsel should have asked the 5 VE during cross-examination to reconcile the DOT with his conclusion and that counsel’s 6 failure required affirmance: 7 8 9 10 11 12 13 “[O]ur law is clear that a counsel’s failure does not relieve the ALJ of his express duty to reconcile apparent conflicts through questioning: ‘When there is an apparent conflict between the vocational expert’s testimony and the DOT—for example, expert testimony that a claimant can perform an occupation involving DOT requirements that appear more than the claimant can handle—the ALJ is required to reconcile the inconsistency.’ . . . That inquiry did not happen here, and so we must remand the case to permit the ALJ to follow up with the VE.” Id. at 1206-07 (footnote and internal citation omitted). 14 The Court is unable to affirm the ALJ’s step four determination for another reason 15 as well. In his decision, the ALJ stated, “the undersigned gives great weight to the 16 opinions from the State agency medical consultants, which find that the claimant can 17 perform simple tasks.” (AR 42, citing AR 75-88, 89-107, and 109-22.) In fact, contrary 18 to the ALJ’s characterization, one of the State agency medical consultants (Dr. Cherry) 19 opined that Plaintiff “would be unable to maintain a normal workday/workweek due to 20 cognitive limitations” and was disabled (and thus not capable of performing any work let 21 alone her past relevant work). (See AR 86-87.) The second State agency medical 22 consultant (Dr. Funkenstein) expressly opined that Plaintiff did not have the RFC to 23 perform her past relevant work due to her limitation to simple routine tasks. (See AR 24 105-06.) The third State agency medical consultant (Dr. Salib) did not believe Plaintiff’s 25 past work as a caregiver qualified as past relevant work. (See AR 120-21.) In any event, 26 though, he opined that Plaintiff was limited to unskilled work because of her impairment 27 (see AR 121), which ruled out the semi-skilled companion job that the ALJ found 28 Plaintiff capable of returning to. 8 17-cv-1520-JLS (RNB) 1 Thus, the ALJ’s step four determination that Plaintiff was capable of returning to 2 her past relevant work was contrary to the opinions of all three State agency medical 3 consultants. Those opinions, if assessed and deemed credible by the ALJ, conceivably 4 could have changed the ALJ’s step four determination. It thus was incumbent on the ALJ 5 to state explicitly his reasons for rejecting those State agency medical consultant 6 opinions, rather than ignoring them. See, e.g., Gribben v. Colvin, 2016 WL 5842188, at 7 *2 (C.D. Cal. Oct. 4, 2016); Boswell v. Colvin, 2016 WL 806203, at *3-4 (C.D. Cal. Mar. 8 1, 2016); see also SSR 96-6p (“Findings . . . made by State agency medical and 9 psychological consultants . . . regarding the nature and severity of an individual’s 10 impairment(s) must be treated as expert opinion evidence of nonexamining sources,” and 11 ALJs “may not ignore these opinions and must explain the weight given to these opinions 12 in their decisions.”). 13 CONCLUSION 14 The law is well established that the decision whether to remand for further 15 proceedings or simply to award benefits is within the discretion of the Court. See, e.g., 16 Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 17 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand 18 is warranted where additional administrative proceedings could remedy defects in the 19 decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d 20 at 635. Remand for the payment of benefits is appropriate where no useful purpose would 21 be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 22 (9th Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 23 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of 24 benefits to which the disabled plaintiff is entitled, Bilby v. Schweiker, 762 F.2d 716, 719 25 (9th Cir. 1985). 26 Here, the Court has concluded that this is not an instance where no useful purpose 27 would be served by further administrative proceedings. Rather, remand is warranted to 28 permit the ALJ to reevaluate whether Plaintiff is capable of performing her past relevant 9 17-cv-1520-JLS (RNB) 1 work as a companion and if not, to proceed to step five of the sequential evaluation 2 process to determine whether Plaintiff can perform other work existing in significant 3 numbers in the national economy. 4 For the foregoing reasons, Plaintiff’s motion for summary judgment is 5 GRANTED, the Commissioner’s cross-motion for summary judgment is DENIED, and 6 it is hereby ORDERED that Judgment be entered reversing the decision of the 7 Commissioner and remanding this matter for further administrative proceedings pursuant 8 to sentence four of 42 U.S.C. § 405(g). 9 10 IT IS SO ORDERED. Dated: September 21, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 17-cv-1520-JLS (RNB)
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