United States District Court, C.D. California
STEVEN R. NAGATA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING DECISION OF COMMISSIONER
ROBERT N. BLOCK, Magistrate Judge.
The sole disputed issue listed in the Joint Stipulation ("Jt Stip") is whether the Administrative Law Judge ("ALJ") properly determined at step five of the Commissioner's sequential evaluation process that plaintiff could perform work existing in significant numbers in the national economy. (See Jt Stip at 4.) The Court now rules as follows with respect to that issue.
At step five of the Commissioner's sequential evaluation process, "the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can engage in work that exists in significant numbers in the national economy." Hill v. Astrue , 698 F.3d 1153, 1161 (9th Cir. 2012); see also 20 C.F.R. §§ 404.1520(a)(1)(v), 416.920(a)(1)(v). The Dictionary of Occupational Titles ("DOT") is the Commissioner's "primary source of reliable job information" and creates a rebuttal presumption as to a job classification. See Johnson v. Shalala , 60 F.3d 1428, 1434 n.6, 1435 (9th Cir. 1995); see also Tommasetti v. Astrue , 533 F.3d 1035, 1042 (9th Cir. 2008). Where, as here, the testimony of a vocational expert ("VE") is used at step five, the VE must identify a specific job or jobs in the national economy having requirements that the claimant's physical and mental abilities and vocational qualifications would satisfy. See Osenbrock v. Apfel , 240 F.3d 1157, 1162-63 (9th Cir. 2001); Burkhart v. Bowen , 856 F.2d 1335, 1340 n.3 (9th Cir. 1988); 20 C.F.R. §§ 404.1566(b), 416.966(b). However, an ALJ may not rely on a VE's testimony regarding the requirements of particular jobs that the claimant might be able to perform without first inquiring of the VE whether his testimony conflicts with the DOT and without obtaining a reasonable explanation for any apparent conflict(s). See Massachi v. Astrue , 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing Social Security Ruling ("SSR") 00-4p). An ALJ may rely on VE testimony that contradicts the DOT only insofar as the record contains persuasive evidence to support the deviation. See Johnson , 60 F.3d at 1435; see also Tommasetti , 533 F.3d at 1042; Light v. Social Sec. Admin. , 119 F.3d 789, 793 (9th Cir. 1997).
Here, the ALJ determined that plaintiff had a residual functional capacity ("RFC") to perform a range of sedentary work with the following additional limitations (see AR 16) (emphases added)):
"His left upper extremity is unable to perform any activity above the shoulder. He can occasionally perform postural activities, such as balance, stoop, kneel, crouch, and crawl, but he cannot climb ladders, ropes and scaffolds. He cannot work at protected heights. He is limited to simple repetitive tasks and to frequent public contact."
After taking the testimony of a VE, the ALJ determined that plaintiff could perform other work in the national economy, specifically the jobs of "assembly work" and "general office document preparer." (See AR 19; see also AR 289.) The ALJ also found that the VE's testimony was consistent with information contained in the Dictionary of Occupational Titles ("DOT"). (See AR 19.)
As a threshold matter, despite the ALJ's ultimate finding that the VE's testimony was consistent with the DOT, the parties agree that the ALJ erred by failing to ask the VE directly whether there was such a consistency. (See Jt Stip at 6, 11-12, 17.) The Ninth Circuit has held that an ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT. See Massachi , 486 F.3d at 1152. However, as discussed below, the Court finds that the error was harmless as to the "assembly work" job.
1. General Office Document Preparer (DOT No. 249.587-018)
With respect to the job of general office document preparer, plaintiff contends that the VE's testimony contradicted the DOT because this job's reasoning level conflicts with plaintiff's limitation to simple, repetitive tasks. (See Jt Stip at 8-9.) The Court agrees.
The job of general office document preparer requires Reasoning Level 3. There is a split among some Circuit courts over the issue of whether a job requirement of Reasoning Level 3 conflicts with a limitation to simple, repetitive tasks. Compare Hackett v. Barnhart , 395 F.3d 1168, 1176 (10th Cir. 2005) (finding apparent conflict between job requiring Reasoning Level 3 and claimant's limitation to simple and routine work tasks); with Terry v. Astrue , 580 F.3d 471, 478 (7th Cir. 2009) (finding no conflict between job requiring reasoning level of three and claimant's limitation to simple work), and Renfrow v. Astrue , 496 F.3d 918, 921 (8th Cir. 2007) (finding no apparent conflict between job requiring reasoning level three and claimant's inability to do complex technical work).
Although the Ninth Circuit has not yet addressed the issue, the weight of authority in this Circuit appears to be consistent with Hackett rather than Terry and Renfrow. See, e.g., Espinoza v. Astrue , 2013 WL 327889, at *3 (C.D. Cal. Jan. 29, 2013); Adams v. Astrue , 2011 WL 1833015, at *4 and n.4 (N.D. Cal. May 13, 2011) (listing several courts in Ninth Circuit that have held there is an apparent conflict when an ALJ determines that a person limited to simple, repetitive tasks can perform a job with Reasoning Level 3); Grimes v. Astrue , 2011 WL 164537, at *4 (C.D. Cal. Jan. 18, 2011); Torrez v. Astrue , 2010 WL 2555847, at *8-*9 (E.D. Cal. June 21, 2010). Accordingly, the Court concurs with plaintiff that there was an apparent conflict between the VE's testimony that a person with plaintiff's limitations could perform the job of general office document preparer and the DOT's requirement of Reasoning Level 3. Moreover, the record does not contain any evidence, much less persuasive evidence, to support the deviation.
The Commissioner argues that there was no apparent conflict because the general office document preparer job can be performed by a worker with plaintiff's educational and job history (i.e., a four-year degree in engineering and past jobs as a consulting engineer and design engineer). (See Jt Stip at 15.) The Court disagrees because the Commissioner fails to account for more recent evidence of plaintiff's deterioration from depression, evidence which the ALJ accepted and found limited plaintiff to simple, repetitive tasks with only frequent public exposure. (See AR 17.)
The Commissioner also argues that the general office document preparer job can be performed by a worker with plaintiff's limitation to simple, repetitive tasks because the job has a specific vocational preparation ("SVP") level of "two, " an indication of unskilled work. (See Jt Stip at 14.) The Court again disagrees. An occupation's SVP level, which measures the amount of time it takes for a worker to learn a job's duties, is not a proper measurement for whether sustained performance of the job entails the performance of simple, repetitive tasks. See Meissl v. Barnhart , 403 F.Supp.2d 981, 983 (C.D. Cal. 2005) ("[C]ontrary to ...