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Rodriguez v. Saul

United States District Court, S.D. California

December 23, 2019

ANDREW M. SAUL, Defendant.


          Hon. Cathy Ann Bencivengo United States District Judge

         Pending before the Court are cross motions for summary judgment. [Doc. Nos. 15 and 16.] For the reasons set forth below, Plaintiff's motion for summary judgment [Doc. No. 15] is GRANTED, Defendant's motion for summary judgment [Doc. No. 16] is DENIED, and the matter is REMANDED to the Social Security Administration for further proceedings.


         Plaintiff appeals the denial of his December 30, 2015 application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the “Act”) (Transcript of Certified Administrative Record (AR) 139, 229-32). The Commissioner denied the application initially and on reconsideration (AR 160-64, 167-71). Plaintiff requested a hearing before an administrative law judge (ALJ), and the ALJ heard Plaintiff's case on February 7, 2018 (AR 70). Plaintiff, his attorney, a medical expert, and a vocational expert appeared, with Plaintiff and experts testifying (AR 70-71). In a March 27, 2018 decision, the ALJ found Plaintiff was not disabled (AR 16-27). On February 27, 2019, the Appeals Council declined further review, and the ALJ's decision became the final of the Commissioner (AR 7-9). Plaintiff seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. section 405(g) and 20 C.F.R. section 404.981.


         The ALJ used the five-step sequential evaluation process to guide the decision. 20 C.F.R. § 416.920. The ALJ found that Plaintiff did not engage in substantial gainful activity since his November 11, 2015 alleged disability onset date. (AR 19.) The ALJ found that Plaintiff has the following severe impairments: blindness in the right eye; loss of central acuity in the left eye; and contraction of the visual field in the left eye. (AR 19.) The ALJ also found that Plaintiff has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following nonexertional limitations: Plaintiff could not drive; must avoid even moderate exposure to hazards such as moving machinery and unprotected heights; was limited to indoor work; lacked depth perception, so he could not engage in such tasks as holding two small objects, one in each hand, and connecting them or inserting one of them into the other; was limited to close-up work (i.e. work that would be two feet in front of him); and he could not read. (AR 22-23.) Finally, relying on vocational-expert testimony, the ALJ found that Plaintiff could perform jobs existing in significant numbers in the national economy and identified the representative positions of silver wrapper, with 28, 000 jobs existing in the national economy (Dictionary of Occupational Titles (DOT) 318.687-018; and garment sorter, with 35, 000 jobs existing in the national economy (DOT 222.687-014 (AR 26-27, 95-96.)


         Under 42 U.S.C. section 405(g), courts review the ALJ's decision to determine whether substantial evidence supports the ALJ's findings and if they are free of legal error. See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir.1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards). Substantial evidence means “ ‘more than a mere scintilla,' but less than a preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir.1996) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks and citation omitted).

         When looking for substantial evidence, courts must review the record as a whole and consider adverse as well as supporting evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. See Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999). “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.' ” Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989)); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007).

         A claimant is “disabled” as defined by the Social Security Act if: (1) “he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, ” and (2) the impairment is “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 1382c(a)(3)(A)-(B) (West 2004); Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.2012).

         To determine whether a claimant is disabled, an ALJ engages in a five-step sequential analysis as required under 20 C.F.R. sections 404.1520(a)(4)(i)-(v). Specifically under step five, which is at issue here, a claimant is disabled unless the Commissioner meets her burden and shows that there exist a significant number of jobs in the national economy that claimant can do. 20 C.F.R. §§ 416.920(a)(4)(v), (g); 416.960(c); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999) (the Commissioner bears the burden of showing the existence of significant jobs). Significant jobs in the “national economy” must exist either “in the region where such individual lives or in several regions in the country.” 42 U.S.C. § 423(d)(2)(A). There is no bright-line rule for determining how many jobs are “significant” under step five in the Ninth Circuit, although “a comparison to other cases is instructive.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir.2012). Moreover, there must be more than a few “scattered”, “isolated” or “very rare” jobs available. Walker v. Mathews, 546 F.2d 814, 820 (9th Cir.1976); see also Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir.2014). Finally, even if there are not sufficient jobs in the regional economy, courts must still look to the availability of those jobs across several regions in the national economy. Gutierrez, 740 F.3d at 528.


         A. DOT and VE Testimony.

         At Step Five, the ALJ determines whether the claimant is able to perform any work other than the claimant's past relevant work, considering the claimant's RFC, age, education and work experience. 20 C.F.R. § 416.920(a)(4)(v). Should the ALJ decide that the claimant is not disabled, “the [SSA] is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that [the claimant] can do, given [the claimant's RFC] and vocational factors.” 20 C.F.R. § 416.960(c)(2).

         Social Security Ruling (“SSR”) 00-4p governs the use of occupational evidence. At Step Five of the sequential evaluation, ALJs rely on the DOT and testimony from vocational experts in making disability determinations. SSR 00-4p, 2000 WL 1898704 at *2 (Dec. 4, 2000). The DOT is a reference guide in the form of a job catalog that contains standardized occupational information about each job. An ALJ is to “rely primarily on the DOT.... for information about the requirements of work in the national economy.” Id. An ALJ may also call upon a VE to provide occupational evidence through testimony at a disability benefits hearing. Id.

         The DOT provides specific information about each job, including General Education Development (“GED”) and Specific Vocational Preparation (“SVP”) scores. The GED score includes a reasoning development level score, which “embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance.” DOT, Appendix C. The scale of reasoning development levels is 1 to 6, with 6 being the most advanced level. DOT, Appendix C. The SVP score refers to “ ‘the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.' ” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1230, n.4 (9th Cir. 2009) (quoting DOT, Appendix C, p.1009 (4th ed. 1991)). “ ‘The DOT lists [an SVP] time for each described occupation. Using the skill level definitions in 20 C.F.R. 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.' ” Bray, 554 F.3d at 1230, n.4 (quoting Policy Interpretation Ruling: Titles II & Xvi: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-4P (S.S.A. Dec. 4, 2000)).

         “When there is [a conflict or an apparent conflict] between the [VE'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.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (citing Massachi, 486 F.3d at 1153-54); SSR 00-4p, 2000 WL 1898704 at *4 (The ALJ has an “affirmative responsibility to ask about any possible conflict between [the VE's testimony about the requirements of a job] and information provided in the DOT.”). The ALJ must first ask the “expert to explain the conflict” and “ ‘then determine whether the vocational expert's explanation for the conflict is reasonable' before relying on the expert's testimony to reach a disability determination.” Zavalin, 778 F.3d at 846 (quoting Massachi, 486 F.3d at 1153-54); SSR 00-4p, 2000 WL 1898704 at *2 (“When there is an apparent unresolved conflict between VE ... evidence and the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the VE ... evidence to support a determination or decision about whether the claimant is disabled.”).

         In order to trigger the ALJ's duty to inquire, the conflict between the VE's testimony and the DOT's job description must be “obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). “This means that the testimony must be at odds with the [DOT's] listing of job requirements that are essential, integral, or expected.” Id.

         Since “the requirement for an ALJ to ask follow up questions is [necessarily] fact-dependent, ” Guiterrez, 844 F.3d at 808, “the more obscure the job, the less likely common experience will dictate the result, ” and the more incumbent it is on the ALJ to inquire. Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017).

         “Where the ALJ fails to obtain an explanation for and resolve an apparent conflict-even where the VE did not identify the conflict-the ALJ errs.” Thompson v. Colvin, No. ED CV 13-1851-SP, 2015 WL 1476001, at *3 (C.D. Cal. Mar. 31, 2015) (citing cases); see also Massachi, 486 F.3d at 1153-54 (reversible error where the ALJ failed to ask the VE “whether her testimony conflicted with the [DOT], and if so, whether there was a reasonable explanation for the conflict.”); Zavalin, 778 F.3d at 847-848 (reversible error where the ALJ “failed to recognize” a conflict between the claimant's limitation to simple, routine tasks and the demands of the Level 3 reasoning jobs); Lamear, 865 F.3d at 1206 (reversible error where the ALJ failed to inquire about the apparent conflict between the claimant's left-hand limitations and the VE's testimony).

         B. Silver Wrapper Position.

         Plaintiff argues that his RFC precludes him from inserting two small objects into the other, which in turn would preclude him from performing the component of the silver wrapper position that entails inserting silverware into plastic bags. [Doc. No. 15-1 at 4-5.] Defendant argues that the vocational expert (“VE”) specifically testified that she accounted for the hypothetical individual's inability to ...

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