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Corbin v. Berryhill

United States District Court, C.D. California

November 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          KAREN E. SCOTT United States Magistrate Judge.

         Plaintiff Demitri Corbin (“Plaintiff”) appeals the final decision of the Social Security Commissioner denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). For the reasons discussed below, the Commissioner's decision is AFFIRMED.



         Plaintiff graduated from college with bachelor's degree in acting and directing. Administrative Record (“AR”) 59. For more than twenty years, he worked in the catering industry as a waiter, bartender, and banquet captain while also pursuing his interest in the performing arts. AR 60. In May 11, 2012, he injured his back in an industrial accident while helping coworkers push a heavy pallet of bar products up a ramp.[1] AR 62, 1026. Pushing pallets was “out of [his] job description, ” but he was trying to help a short-staffed loading crew. Id. A November 2012 MRI revealed lumbar spine disc injuries, and he underwent reparative surgery in August 2013. AR 65, 726. As early as May 2013, he sought authorization through his employer's workers' compensation insurer to obtain a cervical MRI, but he did not obtain one until July 2014.[2] AR 66, 761. Based on those MRI results, in January 2016, he had multi-level cervical spine fusion surgery. AR 67.

         Plaintiff filed his relevant benefits application in May and June of 2015, alleging a disability onset date of May 12, 2012. AR 252-57. An Administrative Law Judge (“ALJ”) conducted a hearing on June 4, 2016, at which Plaintiff, who was represented by an attorney, appeared and testified. AR 55-99. The ALJ issued an unfavorable decision on August 16, 2016. AR 33-54.

         The ALJ found that Plaintiff does not suffer from any severe mental impairment. AR 39. The ALJ, however, found that Plaintiff suffers from the severe physical impairments of lumbar and cervical degenerative disc disease (status post two surgeries) and left middle trigger finger. AR 39. Despite these impairments, the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform light exertional work[3] with additional limitations on certain postural and manipulative activities. AR 41. Due to his cervical spinal fusion surgery, the ALJ precluded Plaintiff from work that requires “turning his head from side to side.” AR 42.

         Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff could perform his past relevant work as a waiter, bartender, theater arts teacher, teacher's aide, or banquet captain (as generally performed, not as actually performed). AR 48. Based on these findings, the ALJ concluded that Plaintiff was not disabled. Id.



         Issue One: Whether the ALJ satisfied his obligations under Social Security Ruling (“SSR”) 00-4p which requires ALJs to “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs … and information in the Dictionary of Occupational Titles (DOT) … and [e]xplain in the determination or decision how any conflict that has been identified was resolved.” Dkt. 17, Joint Stipulation (“JS”) at 3.

         The DOT is silent concerning the head-turning requirements of listed jobs. Plaintiff argues that whenever a VE testifies about a job requirement not in the DOT, the ALJ must obtain an explanation of the VE's opinion. Plaintiff further argues that the explanation the VE gave in this case was not legally sufficient. JS at 9.

         Issue Two: Whether the ALJ erred in discounting Plaintiff's testimony concerning the limiting effects of his impairments. JS at 3.

         Issue Three: Whether the ALJ's assessment of the medical evidence is supported by substantial evidence. Id.

         For ease of discussion, the Court divided Issue Three into the following three sub-issues:

         Issue Three A: Whether the case should be remanded to permit the ALJ to consider Plaintiff's new evidence.

         Issue Three B: Whether the ALJ erred in finding that Plaintiff does not suffer from a severe mental impairment.

         Issue Three C: Whether the ALJ's RFC determination is supported by substantial evidence.



         A. Issue One: Alleged Conflict between the DOT and the VE's Testimony.

         1. Relevant Administrative Proceedings.

         At the hearing, the ALJ asked the VE if a hypothetical person with all the restrictions in Plaintiff's RFC - except the restriction against turning his head from side to side - could do Plaintiff's past relevant jobs. AR 94. The VE testified that the hypothetical person could work as a waiter, bartender, theater arts teacher, or teacher's aide. Id. The VE also explained that the hypothetical person could work as a banquet captain as that job is described in the DOT (i.e., light work) but not as Plaintiff performed it (i.e., medium work). AR 93-94.

         The ALJ next asked the VE to consider the same hypothetical person, but add a restriction that he could not turn his head side to side. AR 97. The VE testified that the additional restriction did not change her opinions, saying, “I don't know why you could not turn your body.” Id. The VE subsequently affirmed that her testimony was consistent with the DOT and “supplemented by continuing education, other vocational resources, and experience.” AR 98.

         The ALJ relied on the VE's testimony to find that Plaintiff could perform his past relevant work. AR 48.

         2. Analysis.

         An ALJ may not rely on a VE's testimony regarding the requirements of a job without first inquiring whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p). If there is a conflict between the VE's testimony and the DOT, an ALJ must determine whether there is a reasonable explanation for the deviation. Id. Reasonable explanations for deviating from the DOT include that the DOT “does not provide information about all occupations, information about a particular job not listed in the [DOT] may be available elsewhere, and the general descriptions in the [DOT] may not apply to specific situations.” Id. at 1153, n.17 (citing SSR 00-4p). “The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony ….” Id. at 1153.

         The Ninth Circuit has not addressed in a published decision the question of whether an apparent conflict with the DOT arises when the DOT is silent as to a particular mental or physical requirement. Unpublished decisions go each way. Compare Dewey v. Colvin, 650 Fed.Appx. 512, 514 (9th Cir. 2016) (finding no conflict between sit/stand option and DOT because “the DOT is silent on whether the jobs in question allow for a sit/stand option”), with Buckner-Larkin v. Astrue, 450 Fed.Appx. 626, 628-29 (9th Cir. 2011) (finding “conflict” between at-will sit/stand option and DOT was adequately addressed by VE based on VE's own research and experience). This Court declines to find that a conflict always exists when the DOT is silent and instead adopts a case-by-case approach. See Wester v. Colvin, 2015 WL 4608139, *5 (C.D. Cal. July 31, 2015) (“[W]hen a VE relies on a functional limitation about which the DOT is silent or unclear, a conflict may exist depending upon the circumstances of the case.”). For example, in Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016), the Ninth Circuit found no “obvious or apparent” conflict that triggered the ALJ's duty to inquire further where the VE opined that a claimant precluded from overhead reaching with her right arm could work as a cashier, where the DOT description required frequent reaching but did not specify in what direction. The Ninth Circuit reasoned that it was “unlikely and unforeseeable” that a cashier would need to reach overhead, and even more rare for one to need to reach overhead with both arms. Id. at 808-09 and 809 n.2. In contrast, the Ninth Circuit found a conflict in Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017), because the court could not “say that, based on common experience, it is likely and foreseeable that an office helper, mail clerk, or parking lot cashier with limitations on his ability to ‘handle, finger and feel with the left hand' could perform his duties.”

         Here, the VE opined that Plaintiff could perform teaching jobs (i.e., teacher's aide and theater arts teacher) and food service jobs (i.e., bartender, waiter, and banquet captain) despite his inability to turn his head side to side. AR 97. As Plaintiff points out, the likely and foreseeable way these jobs are performed includes the need to look at many people, and thus to look in different directions. JS at 5-6. This potential inconsistency triggered the ALJ's duty to inquire under SSR 00-4p.

         The ALJ here had no need to inquire because the VE spontaneously explained her testimony. The VE explained that someone performing those jobs could meet the need to look in different directions by turning his body rather than turning his neck. AR 97.

         Plaintiff argues that this is not a “reasonable explanation” as required by SSR 00-4p. Plaintiff claims that the VE's testimony that a worker who must look in different directions can do so by turning his body is nothing more than “a personalized hunch.” JS at 9.

         “A VE's recognized expertise provides the necessary foundation for his or her testimony.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Claimants, especially when represented by counsel, cannot argue that a VE's testimony lacks foundation when they fail to question the VE at the hearing about the challenged testimony. Lang v. Comm'r of SSA, 2014 WL 1383247, at *5 (E.D. Cal. Apr. 8, 2014) (“Plaintiff chose not to inquire as to the VE's methodology at the hearing and now attempts to prove that the numbers were made up due to the absence of evidence that the numbers were not made up - a void in the record that Plaintiff chose not to fill.”)

         A VE's testimony is substantial evidence if “a reasonable mind might accept [it] as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A reasonable mind might accept that a person who cannot turn his head side to side could nevertheless perform Plaintiff's past relevant work by turning his body when he needs to look in different directions. Indeed, Plaintiff testified that he can still drive, an activity that constantly requires looking in different directions, despite being unable to turn his head side to side. AR 88. The ALJ did not err in relying on the VE's adequately explained testimony.

         B. Issue Two: Plaintiff's Pain Testimony.

         1. Rules for Evaluating Claimants' Subjective Testimony.

         An ALJ's assessment of symptom severity and claimant credibility is entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted).

         If the ALJ finds testimony as to the severity of a claimant's pain and impairments is unreliable, “the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In doing so, the ALJ may consider testimony from physicians “concerning the nature, severity, and effect of the symptoms of which [the claimant] complains.” Id. at 959 (citation omitted). If the ALJ's credibility finding is supported by substantial evidence in the record, courts may not engage in second-guessing. Id.

         In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Id. at 1036 (citation omitted). If so, the ALJ may not reject a claimant's testimony “simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         Second, if the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide “clear and convincing” reasons for rejecting the claimant's testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). The ALJ must consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant's limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities. Smolen, 80 F.3d at 1283-84 & n.8. “Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

         There are two ways for an ALJ to “use daily activities to form the basis of an adverse credibility determination: if the claimant's activity contradicts his testimony or if the claimant's activity meets the threshold for transferable work skills.” Phillips v. Colvin, 61 F.Supp.3d 925, 944 (N.D. Cal. 2014). The first way is satisfied if a claimant gives contradictory testimony about his activities or if there are “contradictions between [the claimant's] reported activities and his asserted limitations.” Morgan v. Comm'r of the SSA, 169 F.3d 595, 600 (9th Cir. 1999). The second way is satisfied “[i]f a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting ….” Id.

         2. The ALJ's Evaluation of Plaintiff's Testimony.

         Plaintiff completed an Adult Function Report. AR 305-13. The ALJ gave this report's description of Plaintiff's activities “significant probative weight” because it was consistent with other evidence concerning Plaintiff's activities (i.e., a third-party report completed by his friend, Patricia Lawson, and Plaintiff's medical progress notes). AR 47.

         At the hearing, Plaintiff testified that he could not lift more than ten pounds because his doctor had restricted him from doing so. AR 71. He also testified that if he uses his hands to write or type for more than fifteen or twenty minutes, then he experiences “numbness and tingling” and must stop. AR 71-72. He estimated that he could continuously stand for one hour, sit for two hours, and walk for one and a half hours. AR 74-76. After a one-hour therapy walk in the morning, he can do additional walking later to run errands. AR 77. Even if he mixes up standing and walking, he cannot sustain those activities for five or six hours per day. AR 75. He lies down between thirty and sixty minutes each day. AR 82.

         Regarding his mental impairments, Plaintiff reported that his anxiety prevents him from going to crowded places alone. AR 308. On a checklist with nineteen functional abilities potentially affected by his condition, Plaintiff checked all nineteen, including hearing, seeing, memory, ...

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