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Barbee v. Berryhill

United States District Court, S.D. California

August 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. [1]



         Plaintiff Alan Eugene Barbee filed this action seeking judicial review of the Commissioner of Social Security's denial of his application for Supplemental Security Income benefits. Plaintiff and Defendant each filed motions for summary judgment. (ECF Nos. 14, 15). The Honorable Louisa S. Porter issued a thoughtful and thorough Report and Recommendation recommending that this Court grant Plaintiff's motion for summary judgment, deny Defendant's motion for summary judgment, and remand the case to the Administrative Law Judge (“ALJ”) for further proceedings. (ECF No. 18). Defendant filed timely objections to the Report and Recommendation (ECF No. 19), to which Plaintiff replied (ECF No. 20).

         Where a party files a timely objection to a report and recommendation, the Court reviews de novo those portions of the report or specific proposed findings or recommendations to which an objection is filed. 28 U.S.C. § 636(b)(1). Upon review of the Report and Recommendation, Plaintiff's Objections, the relevant portions of the record, and the law, the Court adopts the Report and Recommendation in full.


         The procedural history of this matter and a summary of the administrative record (“AR”) has been laid out in the thorough Report and Recommendation issued by the Magistrate Judge. As this history is well-known to the parties, this Court adopts the Magistrate Judge's description of the administrative record and procedural history. A short summary of relevant events is laid out below.

         Plaintiff applied for Supplemental Security Income benefits on April 30, 2012, claiming the onset of disability on June 1, 2006. Plaintiff alleges his disability is due to seizures, mental illness, back problems, and a head injury. On August 28, 2014, after holding a hearing, the ALJ concluded that Plaintiff was not entitled to benefits and denied his application. The Appeals Council denied review of the ALJ's decision, rendering the ALJ's decision final.

         Plaintiff sought judicial review of that decision. (Compl., ECF No. 1). Plaintiff challenges the ALJ's decision at step five of the disability determination, in which the ALJ must consider whether the claimant is capable of doing any work available in the national economy. At the administrative hearing, a vocational expert (“VE”) testified that Plaintiff could perform three jobs, and the ALJ adopted those findings. Plaintiff believes the requirements of those jobs, as outlined in the Dictionary of Occupational Titles (“DOT”), are not consistent with the limitations in his residual functional capacity (“RFC”) assessment. Plaintiff contends the ALJ committed reversible error by failing to reconcile apparent conflicts between the VE's testimony and how those jobs are described in the DOT.

         In response, Defendant argues that by failing to cross-examine the VE on any potential conflict with the DOT at the hearing, Plaintiff waived the issue on appeal. Defendant further argues that the ALJ met his burden of resolving any apparent conflict between the VE's testimony and the DOT by simply asking the VE whether his testimony conforms to the DOT and receiving an unchallenged affirmative response. Finally, Defendant contends that a residual functional capacity limiting a claimant to “simple job instructions” is consistent with a “Reasoning Level 2”[2] and thus the ALJ's RFC finding and the jobs identified by the VE and adopted by the ALJ were appropriate.

         The Report and Recommendation first concluded that Plaintiff has not waived the argument regarding the potential inconsistency between the VE and DOT because he raises a pure question of law, not new evidence. Judge Porter found that the Commissioner would not be unfairly prejudiced by Plaintiff's failure to raise the issue earlier as she has had an opportunity to address the issue. Judge Porter rejected Defendant's argument that the ALJ satisfied his duty to resolve apparent conflicts between the VE's testimony and the DOT by simply asking the VE whether there is a conflict and relying on the VE's response that there is none.

         In considering Plaintiff's argument on the merits, Judge Porter agreed with Defendant that there is no apparent conflict that the ALJ failed to address regarding the VE's testimony that Plaintiff can perform Reasoning Level 2 work and the DOT. However, she identified two conflicts between the VE's testimony and the DOT that the ALJ should have identified and reconciled before relying on the VE's testimony in the disability determination. See Lamear v. Berryhill, __ F.3d__, 2017 WL 3254930, at *2 (9th Cir. Aug. 1, 2017) (“[I]f the [vocational] expert's opinion that an applicant is able to work conflicts with, or seems to conflict with, the requirements listed in the [DOT], then the ALJ must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant is disabled. . . . To avoid unnecessary appeals, an ALJ should ordinarily ask the VE to explain in some detail why there is no conflict between the DOT and the applicant's RFC.”).

         First, Judge Porter found that the ALJ failed to address an apparent conflict between the VE's testimony that Plaintiff can perform the job of a mail clerk and the DOT's reasoning level requirements for a mail clerk. A mail clerk requires a claimant to have a Reasoning Level 3 capacity, but Judge Porter found that a Reasoning Level 3 requirement is inconsistent with the ALJ's RFC assessment that Plaintiff is limited to “carry[ing] out simple job instructions.” (AR 46). Second, Judge Porter found an unresolved, apparent conflict between the RFC assessment that Plaintiff can have “no direct interaction with the general public, ” and the VE's testimony that Plaintiff can perform the work of a cafeteria attendant, which the DOT describes as involving interaction with the public.

         Judge Porter thus concluded that the ALJ committed legal error by failing to resolve apparent conflicts between the DOT and two of the three jobs that the VE testified Plaintiff can perform. If the legal error is harmless, however, the district court must affirm the ALJ's decision. Zavalin, 778 F.3d at 845. Here, Judge Porter explained that she was “reluctant to find harmless error because the ALJ failed to explain at step five why he disregarded the VE's testimony that no jobs exist in the national economy for a person who would be absent more than four times per month, ” which was a limitation placed on Plaintiff's ability to work by his treating physician. (R&R at 32-33). Accordingly, Judge Porter recommended remand to the ALJ for further proceedings.


         An applicant may seek judicial review of a final agency decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). An ALJ's decision will be reversed by the reviewing court only if “it is based upon legal error or is not supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The Court must consider the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews, 53 F.3d at 1039. Where ...

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