Cole v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KEVIN C., Case No.: 20-cv-463-DEB 12 Plaintiff, ORDER: (1) ON JOINT MOTION; 13 v. (2) REVERSING DENIAL OF BENEFITS; AND (3) REMANDING 14 KILOLO KIJAKAZI, FOR FURTHER PROCEEDINGS 15 Defendant. [DKT. NO. 19] [17] 18 I. INTRODUCTION 19 Plaintiff Kevin C. seeks review of the Commissioner of Social Security’s denial of 20 disability benefits. Dkt. No. 1. The parties filed a Joint Motion for review of the 21 Administrative Law Judge’s (“ALJ”) decision denying Plaintiff benefits. Dkt. No. 19. For 22 the reasons discussed below, the Court reverses the denial of benefits and remands the case 23 for further proceedings. 24 / / 25 / / 26 / / 27 / / 28 / / 1 II. PROCEDURAL BACKGROUND 2 On February 25, 2016, Plaintiff applied for disability benefits, claiming disability 3 beginning January 1, 2014. AR 27, 1043–49.1 The Social Security Administration denied 4 Plaintiff’s claim and denied reconsideration. AR 958, 975. Plaintiff requested a hearing, 5 which an ALJ held. AR 919-45, 994. Following the hearing, the ALJ issued a decision 6 finding Plaintiff not disabled. AR 26–36. The Appeals Counsel denied Plaintiff’s request 7 for review. AR 1–7. Plaintiff then filed this case. Dkt. No. 1. 8 III. SUMMARY OF ALJ’S DECISION 9 The ALJ followed the five-step sequential evaluation process. See 20 C.F.R. 10 § 404.1520. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 11 activity since January 1, 2014. AR 27. 12 At step two, the ALJ found the following severe medically determinable 13 impairments: lumbar degenerative disc disease, cervical degenerative disc disease, 14 myofascial pain syndrome, degenerative joint disease status post bilateral bunionectomies 15 of greater toes, major depressive disorder, anxiety disorder, post-traumatic stress disorder, 16 and history of alcohol dependence. AR 27. 17 At step three, the ALJ found Plaintiff did not have an impairment or combination of 18 impairments that met or medically equaled those in the Commissioner’s Listing of 19 Impairments. AR 28–29. 20 Before proceeding to step four, the ALJ determined Plaintiff had the residual 21 functional capacity (“RFC”) to perform medium work “with frequent postural activities; 22 occasional climbing ladders, ropes, and scaffolds; occasional crawling; occasional 23 overhead reaching; and capable of nonpublic, simple, routine tasks.” AR 29. [25] 1 “AR” refers to the Administrative Record lodged on September 8, 2021. Dkt. No. 14. The [26] Court’s citations to the AR use the page references on the original document rather than 27 the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers affixed [28] 1 At step four, the ALJ concluded Plaintiff could not perform his past relevant work. 2 AR 34. 3 Finally, at step five, the ALJ accepted the Vocational Expert’s (“VE”) testimony that 4 a hypothetical person with Plaintiff’s vocational profile and RFC could perform the 5 requirements of occupations that existed in significant numbers in the national economy. 6 AR 35. The ALJ, therefore, concluded Plaintiff was not disabled. AR 36. 7 IV. STANDARD OF REVIEW 8 The Court reviews the ALJ’s decision to determine whether the ALJ applied the 9 proper legal standards and whether the decision is supported by substantial evidence. [10] 42 U.S.C. § 405 (g); Bayliss v. Barnhart, 427 F.3d 1211 , 1214 n.1 (9th Cir. 2005). 11 Substantial evidence is “such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) 13 (internal quotation omitted). It is “more than a mere scintilla but less than a 14 preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 15 Sullivan, 981 F.2d 1016 , 1018 (9th Cir. 1992)). 16 The Court “must consider the entire record as a whole and may not affirm simply by 17 isolating a specific quantum of supporting evidence.” Ghanim v. Colvin, 763 F.3d 1154 , 18 1160 (9th Cir. 2014) (internal quotation omitted). “[I]f evidence exists to support more than 19 one rational interpretation, [the Court] must defer to the Commissioner’s decision.” Batson 20 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 21 V. DISCUSSION 22 Plaintiff contends the ALJ committed two errors: (1) erroneously determined “the 23 [VE’s] testimony is consistent with the information contained in the [Dictionary of 24 Occupational Titles (“DOT”)]”; and (2) failed to “offer legally sufficient rationale” for 25 rejecting Plaintiff’s testimony. Dkt. No. 19 at 8, 18. The Court addresses each of these 26 claimed errors in turn. 27 / / 28 / / 1 A. VE Testimony and DOT 2 Plaintiff argues the ALJ failed to resolve an apparent or obvious conflict between 3 the jobs identified by the VE and the DOT’s definition of their requirements. Dkt. No. 19 4 at 4–10. Defendant responds that “[n]ot only is there no apparent obvious conflict, there is 5 no conflict whatsoever . . . .” Id. at 11. The Court finds no conflict. 6 When a VE . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative [7] responsibility to ask about any possible conflict between that VE 8 . . . evidence and information provided in the DOT. In these situations, the adjudicator will: [9] 10 Ask the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT; and [11] If the VE’s . . . evidence appears to conflict with the DOT, [12] the adjudicator will obtain a reasonable explanation for the 13 apparent conflict. 14 SSR 00-4p, 2000 WL 1898704 , at *4. “For a difference between an expert’s testimony and 15 the [DOT’s] listings to be fairly characterized as a conflict, it must be obvious or apparent” 16 that is, “the testimony must be at odds with the [DOT’s] listing of job requirements that 17 are essential, integral, or expected.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). 18 At the hearing, the ALJ posed the following hypothetical to the VE: “our 19 hypothetical individual is limited to no more than medium work, with frequent postural, 20 activities; occasional ladders, ropes, or scaffolds; occasional crawling; occasional 21 overhead reaching; nonpublic, simple, routine tasks.” AR 941 (emphasis added). The VE 22 identified packers and checkers/weighers as examples of work available for Plaintiff. 23 AR 941. The ALJ asked the VE whether his testimony was consistent with the DOT, and 24 the VE responded in the affirmative. AR 943. 25 DOT 579.685-03 describes a packer’s duties as: 26 Tends machine that compresses stack of mineral wool insulation 27 batts and inserts them into bag cover: Starts machine and compressing mechanism. Opens and slides bag cover form for [28] 1 filling. Pulls lever to operate discharge mechanism and force stack into bag. Slides package onto table for stapling. [2] 3 AR 1226. 4 DOT 369.687-01 describes a checker’s duties as: 5 Verifies number and type of laundered or dry cleaned articles by checking against customers’ lists: Inspects articles for [6] cleanliness and neatness of finish. Returns incomplete laundry 7 bundles to bin. Folds curtains lengthwise and drapes curtains over hangers. Hangs dry cleaned garments on hangers, covering [8] articles with paper or bags. May fill customers’ orders for clean 9 linens, such as sheets, towels, aprons, and uniforms. May wrap and load bundles onto trucks for delivery to customers. May [10] count linen supplies returned by . . . to verify quantities shown 11 on return list . . . . 12 AR 1228. 13 Plaintiff argues both job descriptions “requir[e] frequent use of both upper 14 extremities to reach overhead” and cites to cases finding a conflict between occasional and 15 frequent reaching, necessitating the ALJ to resolve the conflict on remand. Dkt. No. 19 at 16 6, 10 (citing Jordan v. Astrue, No. 9-cv-1559-MMA-WMC, 2010 WL 2816234 , at *5 (S.D. 17 Cal. May 4, 2010), report and recommendation adopted, 2010 WL 2816233 (July 16, 18 2010); and Richardson v. Astrue, No. 11-cv-1332-LHK, 2012 WL 5904733 , at *6 (N.D. 19 Cal. Nov. 26, 2012)). In both Jordan and Richardson, however, the DOT descriptions 20 expressly required frequent reaching. Jordan, 2010 WL 2816234 , at *5 (“[T]he Court notes 21 the reaching requirements [for assembler, production inspector, and garment folder] are 22 listed as frequent . . . . Clearly, these reaching designations conflict with a limitation of 23 occasional reaching.”); Richardson, 2012 WL 5904733 , at *6 (“[T]he DOT describes 24 [cashier, office helper, merchandise marker, and pari-mutuel ticket seller] as requiring 25 ‘frequent’ reaching. . . . Many Courts have held that there is a potential inconsistency 26 between: (1) VE testimony that a job could be performed by someone who can only 27 occasionally reach up; and (2) a DOT job description that requires frequent reaching.”). [28] 1 Here, neither the checker nor packer descriptions mention the frequency or direction 2 of reaching. Although “[p]ull[ing] lever[s] to operate discharge mechanism” as a packer 3 may involve reaching, it would most likely be a forward and down movement, not overhead 4 reaching. And placing “dry cleaned garments on hangers” also does not necessarily require 5 overhead reaching. The DOT is silent on the frequency of both requirements. See Dewey 6 v. Colvin, 650 F. App’x 512, 514 (9th Cir. 2016) (“Here, the DOT is silent on whether the 7 jobs in question allow for a sit/stand option. There is no conflict.”) (internal citation 8 omitted); Doty v. Colvin, No. 15-cv-00507-AS, 2016 WL 1089171 , at *5 (C.D. Cal. Mar. 9 18, 2016) (collecting cases and “agree[ing] with the decisions from other circuits and 10 district courts that have found no conflict when the DOT is silent about a particular mental 11 or physical requirement.”). 12 In sum, there is no conflict between the DOT and the VE’s testimony. The ALJ, 13 therefore, did not err. See Olivia M. v. Berryhill, No. 17-cv-6872-AGR, 2018 WL 6179489 , 14 at *4 (C.D. Cal. Nov. 27, 2018) (“Nothing in the assembler’s job description appears to 15 require overhead reaching such that the ALJ would have been required to ask additional 16 questions.”); Woods v. Comm’r Soc. Sec. Admin., No. 14-cv-01761-MA, 2016 WL 223707 , 17 at *11 (D. Or. Jan. 19, 2016) (“Plaintiff's argument would require this court to read into 18 each of the above DOT job descriptions a requirement of more-than-occasional overhead 19 reaching, a requirement not currently present. Therefore, I conclude that plaintiff has failed 20 to identify an apparent conflict between the VE’s testimony and the DOT.”). 21 B. Plaintiff’s testimony 22 Plaintiff argues the ALJ failed to provide “sufficient articulated rationale” for 23 rejecting Plaintiff’s testimony and failed to “connect any of [Plaintiff’s] testimony to the 24 ALJ’s analysis.” Dkt. No. 19 at 18–19. The Court agrees the ALJ’s opinion does not meet 25 the applicable legal standards. 26 In evaluating a claimant’s subjective symptom testimony, an ALJ must engage in a 27 two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ 28 must determine whether the claimant has presented objective medical evidence of an 1 underlying impairment which could reasonably be expected to produce the pain or other 2 symptoms alleged.” Id. (internal quotation omitted). Second, “[i]f the claimant meets the 3 first test and there is no evidence of malingering, the ALJ can only reject the claimant’s 4 testimony about the severity of the symptoms if she gives specific, clear and convincing 5 reasons for the rejection.” Id. (internal quotation omitted); see also Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of 7 malingering based on affirmative evidence thereof, he or she may only find an applicant 8 not credible by making specific findings as to credibility and stating clear and convincing 9 reasons for each.”). 10 In his March 11, 2016 Function Report, Plaintiff testified that chronic pain; the 11 inability to sit, stand, bend, read, bend his neck, and lift; and migraines limit his ability to 12 work. AR 1115. Further, Plaintiff stated he “can’t sleep all night ever”; needs daily 13 reminders to take his medicine; doesn’t “get along with people[;] [is] hurting all the time”; 14 and “isolate[s].” AR 1116–21. 15 At the July 23, 2018 hearing, Plaintiff testified: 16 • “My back would go out, and . . . it would take a week, maybe two weeks for it to come back. This time it didn’t come back when it went out.” [17] 18 • “[I]njections help for a couple weeks; pain medication helps; anti-inflammatories help. The problem is, though, now they’re taking my medication away.” [19] 20 • On a scale of one to ten, my average pain level is an “[e]ight” located “[a]ll over my lower back, my upper back, and my neck.” [21] • “Just grabbing, lifting anything, bending over – lifting anything, getting in and [22] out of bed, it – yeah, it’s just – I’ve got nerves that are being pinched, so anytime 23 I move, something’s going to get whacked.” 24 • I can only lift “a pound . . . [o]ver my head” with either arm. [25] • I can only be on my feet, standing, or walking “15/20 minutes at a time” and then 26 “I have to sit down” for “15/20 minutes.” [27] • “I don’t think I could work any [hours].” [28] 1 • My typical day is: “4:00 a.m. I get up and make my wife coffee. . . . Then I go back to bed and watch documentaries and wait for her to get home. . . . I spend [2] the day in bed.” [3] • I need help taking care of myself. “My wife’s been showering with me because I [4] can’t reach down and get my lower extremities. . . . I can’t take baths anymore. I 5 can get in, and then I can’t get out.” 6 • I need help with going to the rest room. [7] • I cannot take out the trash or load groceries into the car. [8] • I do not drive at all. [9] • I take “Percocets and fentanyl” for the pain, but “I get sleepy” and “[d]izzy [10] sometimes” as side effects. [11] • “I don’t sleep.” [12] 13 • I wake up because of “[t]he pain.” 14 • My sciatica is “like walking on a spike.” 15 AR 922–935. 16 The ALJ found Plaintiff’s “medically determinable impairments could reasonably 17 be expected to cause the alleged symptoms.” AR 32; accord Vasquez, 572 F.3d at 591 18 (finding ALJ “satisfied the first prong of the ALJ’s inquiry regarding the credibility of 19 [plaintiff’s] complaints” where the “ALJ acknowledged that [plaintiff’s] injuries could 20 reasonably be expected to produce some of the pain and other symptoms alleged”) (internal 21 quotation marks omitted). 22 The ALJ found Plaintiff’s statements not fully credible; however, because his 23 “statements concerning the intensity, persistence and limiting effects of these symptoms 24 are not entirely consistent with the medical evidence and other evidence in the record for 25 the reasons explained in this decision.” AR 32. 26 The ALJ’s opinion, however, does not provide “specific, clear and convincing 27 reasons for the rejection” of Plaintiff’s testimony. Vasquez, 572 F.3d at 591 . Instead, the 28 ALJ’s ruling is analogous to what the Ninth Circuit found insufficient in Brown-Hunter v. 1 Colvin, 806 F.3d 487, 494 (9th Cir. 2015): the ALJ “simply stated [a] non-credibility 2 conclusion and then summarized the medical evidence supporting her RFC determination.” 3 This is “legal error” because the decision does “not link [the specific testimony the ALJ 4 found not credible] to the particular parts of the record supporting [the ALJ’s] non5 credibility determination.” Id.; see also Holohan v. Massanari, 246 F.3d 1195 , 1208 6 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to 7 be credible and must explain what evidence undermines the testimony.”). 8 Although Defendant contends the ALJ properly found inconsistencies and 9 contradictions between Plaintiff’s testimony and the “objective record,” Dkt. No. 19 at 27– 10 28, the ALJ did not link that evidence to Plaintiff’s testimony.2 The ALJ’s analysis, 11 therefore, does not comport with the legal requirements. See Brown-Hunter, 806 F.3d at 12 494 (“[The ALJ] did not link that testimony to the particular parts of the record supporting 13 her non-credibility determination. . . . [T]he error could not be corrected by the district 14 court’s statement of links between claimant testimony and certain medical evidence.”) 15 (citation omitted); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (ALJ’s citation 16 to daily activities failed to meet the required specificity standard because “the ALJ did not 17 elaborate on which daily activities conflicted with which part of Claimant’s testimony.”). 18 VI. REMAND 19 “The decision whether to remand a case for additional evidence, or simply to award 20 benefits is within the discretion of the court.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th 21 Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). Because there [23] 2 Defendant also argues the record supports the ALJ’s credibility determination because [24] Plaintiff’s conditions improved, which is inconsistent with his alleged limitations. Dkt. 25 No. 19 at 28–29. The ALJ, however, did not rely on this as a reason to discount Plaintiff’s credibility, and the Court is “constrained to review the reasons the ALJ asserts.” Connett [26] v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Burrell v. Colvin, 775 F.3d 1133, 1139 (9th 27 Cir. 2014) (declining to infer ALJ rejected a claimant’s testimony based on medical findings because the ALJ “never stated that he rested his adverse credibility determinations [28] 1 arguably inconsistencies between the medical evidence and Plaintiff's testimony, it is 2 ||not clear the ALJ was required to find Plaintiff disabled. See Bunnell v. Barnhart, 336 F.3d 3 1112, 1116 (9th Cir. 2003) (remanding for further administrative proceedings where 4 || several “outstanding issues” remained to be resolved, it was “not clear from the record that 5 [ALJ] would be required to find the claimant disabled and award disability benefits’’). 6 || Further administrative proceedings are, therefore, appropriate. 7 VII. CONCLUSION 8 For the foregoing reasons, the Court reverses the denial of benefits and remands this 9 || matter for further administrative proceedings. The Clerk of the Court shall enter judgment 10 || accordingly and terminate the case. 1] IT IS SO ORDERED. 12 || Dated: July 13, 2022 — 3 Dando oa 14 Honorable Daniel E. Butcher United States Magistrate Judge