Ball v. Commissioner Social Security Administration, No. 3:2009cv00764 - Document 15 (D. Or. 2010)
Court Description: OPINION AND ORDER: The Commissioner's decision is reversed and the case remanded for further proceedings consistent with this Opinion. Signed on 8/27/10 by Magistrate Judge Dennis J. Hubel. (kb)
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Ball v. Commissioner Social Security Administration Doc. 15 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 ANTHONY BALL, 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-764-HU OPINION & ORDER 18 19 20 Tim Wilborn WILBORN LAW OFFICE, P.C. P.O. Box 2768 Oregon City, Oregon 97045 21 Attorney for Plaintiff 22 25 Dwight C. Holton ACTING UNITED STATES ATTORNEY District of Oregon Adrian Brown ASSISTANT UNITED STATES ATTORNEY 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2092 26 / / / 27 / / / 28 / / / 23 24 1 - OPINION & ORDER Dockets.Justia.com 1 2 3 Kathryn A. Miller SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 901 Seattle, Washington 98104-7075 4 Attorneys for Defendant 5 HUBEL, Magistrate Judge: 6 Plaintiff Anthony Ball brings this action for judicial review 7 of the Commissioner's final decision to deny disability insurance 8 benefits (DIB). This Court has jurisdiction under 42 U.S.C. § 9 405(g). All parties have consented to entry of final judgment by 10 a Magistrate Judge in accordance with Federal Rule of Civil 11 Procedure 73 and 28 U.S.C. § 636(c). I reverse the Commissioner's 12 decision and remand the case for additional proceedings. 13 PROCEDURAL BACKGROUND 14 Plaintiff filed his DIB application on May 11, 2001, alleging 15 an onset date of June 30, 2000, and based on a combination of 16 impairments including post-traumatic stress disorder, degenerative 17 disc disease, and left shoulder degenerative joint disease. Tr. 18 67-70, 155. Following an initial denial which was affirmed on 19 reconsideration, Tr. 31, 32, plaintiff appeared, with counsel, 20 before Administrative Law Judge (ALJ) Schloss for a hearing on 21 November 20, 2002, followed by a supplemental hearing on April 16, 22 2003. Tr. 1266-1320. On October 23, 2003, the ALJ found plaintiff 23 not disabled. Tr. 932-41. 24 In a June 16, 2004 Order, the Appeals Council granted 25 plaintiff's request for review, vacated ALJ Schloss's October 23, 26 2003 decision, and remanded the case back to the ALJ for further 27 proceedings. Tr. 949-50. 28 2 - OPINION & ORDER 1 Upon remand from the Appeals Council, ALJ Tielens held a 2 hearing on February 22, 2006. Tr. 1321-1364. 3 represented by counsel. Id. On May 10, 2006, ALJ Tielens found 4 plaintiff not disabled. Tr. 15-30. 5 plaintiff's review 6 Tielen's May 10, 2006 decision the Commissioner's final decision. 7 Tr. 8-12. 8 judicial review of ALJ Tielens's May 10, 2006 decision. 9 Astrue was given civil docket number CV-07-231-MA and assigned to 10 request for of Plaintiff was again The Appeals Council denied this decision, making ALJ Plaintiff then filed an action in this Court seeking Ball v. Judge Marsh. 11 Following the filing of plaintiff's opening memorandum in 12 support of plaintiff's request that the ALJ's decision be reversed 13 and remanded for a determination of benefits, defendant moved to 14 remand the case back to the agency for further proceedings. 15 this motion, defendant conceded certain errors by the ALJ, but 16 argued that unresolved issues prevented a remand for benefits and 17 instead, a remand for additional proceedings was appropriate. 18 Plaintiff filed a memorandum in reply/opposing defendant's motion. 19 In a February 14, 2008 Opinion & Order, Judge Marsh granted 20 defendant's motion to remand. 21 Order are addressed more fully below. 22 Tr. 1438-45. In The details of his Upon remand, ALJ Say held another hearing, on October 28, 23 2008. 24 February 13, 2009, ALJ Say found plaintiff not disabled. Tr. 1369- 25 84. 26 the ALJ's February 13, 2009 decision. 27 28 Tr. 1523-54. Plaintiff was represented by counsel. Id. On The Appeals Council denied plaintiff's request for review of Tr. 1365-67. STANDARD OF REVIEW & SEQUENTIAL EVALUATION A claimant is disabled if unable to "engage in any substantial 3 - OPINION & ORDER 1 gainful activity by reason of any medically determinable physical 2 or mental impairment which . . . has lasted or can be expected to 3 last for a continuous period of not less than 12 months[.]" 4 U.S.C. § 423(d)(1)(A). 5 to a five-step procedure. 6 (9th 7 disability. 8 1989). 9 engaged in "substantial gainful activity." Cir. 1991). 42 Disability claims are evaluated according The Baxter v. Sullivan, 923 F.2d 1391, 1395 claimant bears the burden of proving Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. First, the Commissioner determines whether a claimant is If so, the claimant is 10 not disabled. 11 C.F.R. §§ 404.1520(b), 416.920(b). 12 determines whether the claimant has a "medically severe impairment 13 or combination of impairments." 14 20 C.F.R. §§ 404.1520(c), 416.920(c). 15 disabled. 16 In step Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 three, the In step two, the Commissioner Yuckert, 482 U.S. at 140-41; see If not, the claimant is not Commissioner determines whether the 17 impairment meets or equals "one of a number of listed impairments 18 that the [Commissioner] acknowledges are so severe as to preclude 19 substantial gainful activity." 20 C.F.R. 21 conclusively presumed disabled; if not, the Commissioner proceeds 22 to step four. 23 §§ 404.1520(d), Yuckert, 482 U.S. at 141; see 20 416.920(d). If so, the claimant is Yuckert, 482 U.S. at 141. In step four the Commissioner determines whether the claimant 24 can still perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 25 416.920(e). 26 perform past relevant work, the burden shifts to the Commissioner. 27 In step five, the Commissioner must establish that the claimant can 28 perform other work. If the claimant can, he is not disabled. 4 - OPINION & ORDER If he cannot Yuckert, 482 U.S. at 141-42; see 20 C.F.R. §§ 1 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets 2 this burden and proves that the claimant is able to perform other 3 work which exists in the national economy, he is not disabled. 4 C.F.R. §§ 404.1566, 416.966. 20 5 The court may set aside the Commissioner's denial of benefits 6 only when the Commissioner's findings are based on legal error or 7 are not supported by substantial evidence in the record as a whole. 8 Baxter, 923 F.2d at 1394. 9 mere scintilla," but "less than a preponderance." evidence Substantial evidence means "more than a 10 such relevant as 11 adequate to support a conclusion. 12 13 a reasonable mind Id. might It means accept as Id. DISCUSSION Plaintiff alleges that ALJ Say made several errors in his 14 February 13, 2009 decision. 15 precluded from raising most of these arguments as a result of Judge 16 Marsh's 2008 decision which defendant contends is the "law of the 17 case." 18 unnecessary 19 preclusion argument first. 20 Defendant contends that plaintiff is Because a recitation of the medical and other evidence is if defendant is correct, I address defendant's In the litigation before Judge Marsh, plaintiff contended that 21 ALJ Tielens made nine separate errors: 22 properly 23 (PTSD); 24 Administration disability ratings; (3) the ALJ did not properly 25 consider the lay witness and third party testimony; (4) the ALJ 26 improperly 27 improperly rejected plaintiff's testimony; (6) the ALJ failed to 28 include consider (2) the plaintiff's ALJ rejected his treating residual 5 - OPINION & ORDER failed (1) the ALJ failed to post-traumatic to properly physician functional stress consider opinions; capacity (RFC) (5) disorder Veteran's the finding ALJ in a 1 vocational hypothetical; (7) the ALJ relied on vocational expert 2 testimony which did not consider the ALJ's RFC finding; (8) the 3 ALJ's RFC finding was deficient in that it improperly excluded 4 limitations established by improperly rejected evidence; and (9) 5 the ALJ improperly classified plaintiff's past relevant work. 6 Ball, No. CV-07-231-MA, Pltf's Open. Brief at pp. 7-8 (dkt #11). 7 Plaintiff also generally argued that ALJ Tielens's decision was not 8 supported by substantial evidence and was based on the application 9 of incorrect legal standards. Id. at p. 8. 10 In defendant's memorandum in support of its motion to remand, 11 defendant agreed with some of the arguments plaintiff made in his 12 opening memorandum. Ball, No. CV-07-231-MA, Deft's Mem. in Sup. of 13 Rem. at p. 6 (dkt #17). Defendant agreed that in his May 10, 2006 14 decision, had 15 statement of plaintiff's sister Brenda Bailey, and had made errors 16 in 17 alternative step five finding. 18 assertions of error. 19 regard ALJ to Tielens assessing failed to plaintiff's Id. address prior the work lay and witness in his Defendant denied all other Id. Defendant argued that unresolved issues prevented a remand for 20 a determination of benefits. 21 represented that upon remand, the ALJ would obtain supplemental 22 vocational expert testimony to address plaintiff's ability to 23 perform his past relevant work at step four, and if necessary, his 24 ability to make a vocational adjustment to other work at step five 25 that is within his assessed RFC. 26 clarify any potential inconsistencies between plaintiff's RFC and 27 the requirements of past relevant work or other work identified at 28 steps four and five. 6 - OPINION & ORDER Id. Id. at pp. 7, 9-11. Id. Defendant In addition, the ALJ would Finally, the ALJ would evaluate the lay 1 witness statement of plaintiff's sister. Id. 2 In reply, and in opposition to the motion to remand, plaintiff 3 argued that a remand for further administrative proceedings was 4 unnecessary because the record was fully developed and supportive 5 of 6 Reply/Opposition at p. 1 (dkt #19). 7 argued that when the improperly rejected opinion of Dr. Dobscha was 8 credited as true, plaintiff's impairments met Listed Impairment 9 12.06, establishing plaintiff's disability at step three of the a finding of disability. Ball, No. CV-07-231-MA, Pltf's More specifically, plaintiff 10 sequential evaluation. Id. at p. 2. Additionally, plaintiff 11 argued that crediting Dr. Dobscha's opinion regarding plaintiff's 12 RFC limitations established plaintiff's disability at steps four 13 and five, regardless of other errors. 14 further argued that the ALJ improperly rejected the VA's disability 15 ratings and giving great weight to those ratings established that 16 plaintiff was disabled. Id. at pp. 4-5. Plaintiff Id. 17 Judge Marsh specifically addressed plaintiff's argument that 18 ALJ Tielens had improperly discredited Dr. Dobscha's opinion and 19 had improperly determined that plaintiff did not meet Listed 20 Impairment 12.06 based on his PTSD. Ball, No. CV-07-231-MA, Op. at 21 pp. 3-7. 22 whether Ball's PTSD met or equaled Listed Impairment 12.06, which 23 he noted to require a combination of the A and B criteria, or the 24 A and C criteria, as set forth in that listing." 25 Judge Marsh explained that the "ALJ's step three findings are 26 rooted in his categorical rejection of Ball's credibility." 27 Judge Marsh also discussed the reasons ALJ Tielens rejected Dr. 28 Dobscha's opinion. Judge Marsh stated that "[t]he ALJ thoroughly considered 7 - OPINION & ORDER Id. at p. 6. Id. at p. 4. Id. Following this discussion, Judge 1 Marsh concluded that "[s]ince I find the ALJ's assessment of this 2 anomalous 3 evidence, I decline to credit as true Dr. Dobscha's assessment of 4 Ball's work-related functional limitations." 5 record to be reasonable and based on substantial Id. at p. 7. Judge Marsh then remarked on defendant's concessions and the 6 relief defendant sought in the motion to remand. 7 concurred with defendant that "further proceedings are necessary to 8 obtain supplemental vocational expert testimony, and to address all 9 lay witness testimony." 10 11 12 13 14 15 16 Id. Id. He then He concluded with the following statements: By no means is a finding of disability directed on the present record. As should be clear by now, I do not find any merit to Ball's arguments that the ALJ wrongly rejected his credibility, failed to properly consider the significance of his VA disability rating and receipt of benefits, or failed to provide legally sufficient reasons for rejecting Dr. Dobscha's opinion. Therefore, I affirm the ALJ's evaluation of these issues as based on substantial evidence and legally sufficient reasoning. Id. at pp. 7-8. 17 In the instant case, defendant argues that the "law of the 18 case" precludes reexamination of issues previously decided by Judge 19 Marsh. 20 decision of a higher court on a legal issue must be followed in all 21 subsequent proceedings in the same case. 22 Park Place Assocs., Ltd., 563 F.3d 907, 925 (9th Cir. 2009). 23 doctrine is based on the public policy that litigation must come to 24 an end. Generally, the law of the case doctrine provides that the E.g., United States v. The United States v. Smith, 389 F.3d 944, 948 (9th Cir. 2004). 25 The doctrine applies to district court determinations made in 26 the context of judicial review of administrative agency decisions. 27 E.g., Brachtel v. Apfel, 132 F.3d 417, 419-20 (8th Cir. 1997) (law 28 of the case doctrine applies to administrative agencies on remand 8 - OPINION & ORDER 1 and thus, if district court found that the plaintiff needed to lie 2 down, ALJ is bound by that finding on remand); Wilder v. Apfel, 153 3 F.3d 799, 803 (7th Cir. 1998) (law of the case doctrine "requires 4 the administrative agency, on remand from a court, to conform its 5 further proceedings in the case to the principles set forth in the 6 judicial 7 depart."). 8 9 In decision, a 2005 unless decision, there the is Central a compelling District reason to of California reviewed a social security action for the third time. Ischay v. 10 Barnhart, 383 F. Supp. 2d 1199 (C.D. Cal. 2005). 11 the court reversed and remanded the ALJ's determination at step 12 four and ordered the ALJ to complete the five-step disability 13 evaluation. 14 to a remand for the purpose of obtaining additional vocational 15 expert testimony. Id. at 1203. The first time, The second time, the parties stipulated Id. at 1208. 16 Upon appeal to the district court for the third time, the 17 plaintiff argued that the court's second remand order established 18 the law of the case and precluded the ALJ from revisiting steps one 19 through four of 20 defendant argued that the doctrine was inapplicable because the 21 pending case was a different case than the one remanded. 22 The court rejected the defendant's argument. the sequential process. Id. at 1213. The Id. The court 23 thoroughly discussed the related concepts of the "law of the case" 24 and the "rule of mandate," which it noted was a "specific and more 25 binding variant of the law of the case," and concluded that the 26 "doctrine of the law of the case and the rule of mandate apply to 27 matters remanded to the Agency for further proceedings." 28 1214, 1216 (internal 9 - OPINION & ORDER quotation omitted). In Id. at rejecting the 1 defendant's argument regarding the pending case not being the 2 "same" case for purposes of the law of the case doctrine, the court 3 was "unpersuaded" that the prior district court order operated as 4 a final judgment divesting the district court of jurisdiction. Id. 5 at 1217-18. 6 Court and the Ninth Circuit had both recognized that "an action 7 brought following a reversal and remand for further proceedings in 8 the same litigation is the same case for purposes of application of 9 the law of the case doctrine." The court explained that the United States Supreme Id. The court stated that "[a]ny 10 argument that this Court's December 12, 2001 Order [remanding the 11 case for the second time] could be anything but part of the 'same 12 case'" had to be rejected. 13 597 F. Supp. 2d 691, 696-98 (N.D. Tex. 2009) (fact that court 14 remanded action to ALJ pursuant to sentence four did not preclude 15 application of law of the case; relevant question was whether 16 district court made substantive determinations about the ALJ's 17 findings). Id. at 1218; see also Brown v. Astrue, 18 Some district courts have concluded that a subsequent appeal 19 to the district court of an ALJ decision issued after a sentence 20 four remand by the district court, is not the "same litigation" for 21 purposes of the law of the case doctrine. 22 Supp. 2d 1216, 1223 (D. Kan. 2008) (because a sentence four remand 23 in a social security case is a final judgment which terminates the 24 case and makes judicial review of a decision after remand a 25 separate piece of litigation, court would not apply law of the case 26 doctrine); Hollins v. Apfel, 160 F. Supp. 2d 834, 840 (S.D. Ohio 27 2001) (same), aff'd, No. 01-3535, 49 Fed. Appx. 533, 2002 WL 28 31398968 (6th Cir. Oct. 17, 2002). 10 - OPINION & ORDER Frost v. Astrue, 627 F. In both of those cases, 1 however, the court alternatively considered the doctrine of issue 2 preclusion regarding issues previously decided by the district 3 court before remand to the ALJ. 4 Hollins, 160 F. Supp. 2d at 840. Frost, 627 F. Supp. at 1223; 5 Because the Ninth Circuit offers no guidance, and the relevant 6 district court decisions have reached differing results, compare 7 Ishchay and Brown (suggesting sentence four judgment of remand does 8 not terminate litigation and subsequent proceedings are "same case" 9 for purposes of "law of the case" doctrine), with Frost and Hollins 10 (expressly 11 terminates the case at that point rendering subsequent proceedings 12 new litigation), I consider whether relitigation of any issues 13 decided by Judge Marsh in his February 14, 2008 Opinion, is 14 precluded under the law of the case doctrine, or alternatively, the 15 doctrine of issue preclusion. 16 agree with defendant that some of the issues plaintiff raises in 17 the instant matter have been previously decided and are not subject 18 to further review. 19 For a holding prior that ruling a to sentence four judgment of remand For the reasons explained below, I become law of the case as to a 20 particular issue, that issue "must have been decided explicitly or 21 by necessary implication in the previous disposition." 22 v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (internal 23 quotation marks and alteration omitted). 24 that Judge Marsh explicitly discussed and rejected plaintiff's 25 arguments that the ALJ erred in his credibility finding, erred in 26 his assessment of the VA disability findings, and erred in his 27 rejection of Dr. Dobscha's opinion and assessment of plaintiff's 28 work-related functions. 11 - OPINION & ORDER Herrington Here, it is beyond doubt Thus, in the instant case, I do not 1 consider plaintiff's arguments that the ALJ improperly rejected Dr. 2 Dobscha's opinion and the VA disability ratings and improperly 3 rejected plaintiff's testimony because the law of the case doctrine 4 precludes reexamination of those issues. 5 Moreover, Judge Marsh also expressly held that the ALJ's 6 assessment of the record at step three was "reasonable and based on 7 substantial evidence." 8 (affirming 9 determination ALJ's Ball, No. CV-07-231-MA, Op. at pp. 7-8 evaluation of based substantial as on substantial evidence or based on the correct legal standards. finding consider legally 12 three not and three argument step do evidence step 11 the I to sufficient that Thus, related 10 13 reasoning). issues is not plaintiff's supported There are exceptions to the law of the case doctrine. by "The 14 law of the case doctrine is subject to three exceptions that may 15 arise 16 enforcement 17 controlling authority makes reconsideration appropriate, or (3) 18 substantially 19 trial." 20 567, 573 (9th Cir. 2005) (internal quotation omitted); see also 21 Mendenhall v. National Transp. Safety Bd., 213 F.3d 464, 469 (9th 22 Cir. 2000) (court may depart from the law of the case when (1) the 23 first decision was clearly erroneous; (2) an intervening change in 24 the law has occurred; (3) the evidence on remand is substantially 25 different; (4) other changed circumstances exist; or (5) a manifest 26 injustice would otherwise result). when (1) would the decision work different a is clearly manifest evidence erroneous injustice, was adduced (2) at and its intervening a subsequent Minidoka Irrigation Dist. v. Dep't of Interior, 406 F.3d 27 Plaintiff argues that here, the prior decision is clearly 28 erroneous and a manifest injustice will result if it is enforced. 12 - OPINION & ORDER 1 I reject this argument. I find no validity to plaintiff's argument 2 that Judge Marsh's decision was clearly erroneous. 3 issues he reviewed, Judge Marsh's Opinion shows he considered them 4 thoroughly. 5 warranted here. No manifest injustice will result by enforcing the 6 determinations made by Judge Marsh. As to the An exception to the law of the case doctrine is not 7 If the law of the case doctrine is not appropriately applied 8 here because, according to some courts, proceedings following a 9 sentence four remand constitute a separate cause of action, then 10 the alternative analysis is one of issue preclusion. 11 of issue preclusion provides that "once a court decides an issue of 12 fact or law necessary to its judgment, that decision precludes 13 relitigation of the same issue on a different cause of action 14 between the same parties." 15 n.11 (internal quotation omitted). 16 parties in the instant case are the same as in Judge Marsh's case 17 and that, as discussed above, Judge Marsh decided several issues 18 which were necessary to the remand judgment. 19 plaintiff raises in the instant case regarding the rejection of Dr. 20 Dobscha's 21 plaintiff's credibility, and regarding an unsupportable step three 22 finding, are not subject to relitigation and I do not consider 23 them. opinion and the The doctrine Park Place Assocs., 563 F.3d at 925 VA There is no question that the disability Thus, the errors ratings, regarding 24 Finally, although I conclude that these issues are precluded 25 under the law of the case or issue preclusion doctrine, I reject 26 defendant's 27 preclusion, similarly precludes relitigation of certain issues 28 regarding the lay witness testimony. contention 13 - OPINION & ORDER that the law of the case, or issue Plaintiff contends that the 1 ALJ failed to comply with Judge Marsh's Order by failing to address 2 "all" lay witness testimony. 3 Judge Marsh's case, plaintiff argued that ALJ Tielens had erred by 4 failing to discuss lay testimony of plaintiff's sister and his 5 supervisor, and had improperly rejected testimony of plaintiff's 6 wife. In its motion to remand, defendant conceded that ALJ Tielens 7 had erred by failing to address the lay testimony of plaintiff's 8 sister. 9 other errors by ALJ Tielens regarding lay witness testimony. In his opening memorandum filed in Defendant expressly stated that it did not concede any In 10 his Opinion and Order, Judge Marsh noted defendant's concessions 11 that mistakes were made at step four and in the alternative step 12 five finding, but Judge Marsh engaged in no substantive discussion 13 of any of the lay witness testimony. 14 Marsh stated that further proceedings were necessary to address 15 "all lay witness testimony." Then, in concluding, Judge Id. at p. 7. 16 Based on this language, plaintiff contends that upon remand, 17 the ALJ was required to re-address all lay witness testimony to 18 fully comply with Judge Marsh's Order. 19 Without any discussion of the merits of the ALJ's treatment of the 20 lay witness testimony, neither the law of the case doctrine nor the 21 doctrine of issue preclusion precludes relitigation of the lay 22 witness issues. 23 concession made by defendant regarding lay testimony, it is perhaps 24 possible to interpret Judge Marsh's reference to "all" as an 25 acknowledgment that ALJ Tielens failed to discuss "all" of the lay 26 witness testimony because he omitted any reference to plaintiff's 27 sister's statements, the Order is unclear. It plainly says "all" 28 lay witness testimony was to be addressed and it is undisputed that I agree with plaintiff. Although, when examined in the context of the 14 - OPINION & ORDER 1 upon remand, ALJ Say did not discuss all of the lay witness 2 testimony. 3 testimony below. 4 I address the alleged errors in regard to lay witness In addition to the lay witness testimony, plaintiff raises 5 other arguments that require discussion. 6 the ALJ erred in regard to Dr. Cowan's and Dr. Barrett's opinions; 7 (2) whether the ALJ erred in regard to his findings regarding 8 transferrable 9 testimony conflicts with the Dictionary of Occupational Titles.1 10 I. skills; and (3) whether They are: the (1) whether vocational expert Lay Testimony 11 Based on Judge Marsh's Order, ALJ Say considered the third 12 party lay witness statements of plaintiff's sister Brenda Bailey. 13 Bailey's first statement, dated November 7, 2002, reveals that 14 Bailey lives in Georgia and that she had seen plaintiff once in the 15 last year or two. 16 every two years when he visited the family. 17 plaintiff as markedly impaired in his functionality and activities 18 of daily living. 19 many 20 mowing, raking, 21 vacuuming. 22 needed help while fishing for halibut because of back and shoulder 23 pain. 24 Tr. 313. Id. limitations, She also stated that she saw him once Bailey rated She reported that plaintiff had told her of including cleaning Tr. 314. Id. an inability bathtub/shower, to perform cleaning weeding, floors, and Plaintiff also reported to Bailey that he Id. Bailey noted that plaintiff had told her that he had fought 25 26 27 28 1 In his list of alleged errors noted in his Opening Memorandum, plaintiff contends that the ALJ failed to consider plaintiff's combined impairments. Pltf's Op. Mem. at p. 10. However, plaintiff fails to mention this contention again in his argument, and I do not consider it. 15 - OPINION & ORDER 1 with people, including a shouting match with his supervisor in 2 1999. 3 functioning and that every other month when she calls, he seems 4 severely depressed. Tr. 315-16. In a subsequent submission, dated 5 June 3, 2006, Bailey reported that plaintiff was at a certain army 6 checkpoint in Korea on the date of the "Axe-Murder Incident." 7 1194.2 8 plaintiff. 9 burning and shooting pain in his back and legs since a 1997 car Id. She indicated that he was markedly impaired in social Tr. She noted that since that time, something had "happened" to Id. 10 accident. 11 for a family funeral in 2004, plaintiff mostly laid down and 12 complained of pain. 13 is lying on the couch due to either depression, or severe pain from 14 his stomach, shoulder or back. 15 16 17 18 19 20 21 Id. She remarked that plaintiff had complained about Bailey noted that after plaintiff flew to Alabama Tr. 1195. When Bailey speaks to plaintiff, he Id. ALJ Say considered both of Bailey's statements and explained that [t]here is no reason to change the [RFC] because of third party lay witness statements, inclusive of Ms. Bailey's statements. While the undersigned finds the lay witness testimony and statements are essentially credible, much of the information, particularly from Brenda Bailey, who lives in Georgia and only sees the claimant every two years or so, is not entirely credible in terms of her observations because she has not observed him for any prolonged period of time. 22 Tr. 1382. The ALJ also noted that at the most recent hearing, 23 plaintiff testified that Bailey was a credible witness. 24 ALJ explained that the statement was of questionable validity and Id. The 25 26 27 28 2 As Judge Marsh explained in his Opinion & Order, the "Axe-Murder Incident" occurred in August 1976 along the NorthSouth Korean border when a workforce stationed there was ambushed and one member of the workforce was killed with a hatchet. Ball, No. CV-01-231-MA, Op. at p. 5. 16 - OPINION & ORDER 1 value because 2 lacking. plaintiff's credibility, not his sister's, was Id. 3 Plaintiff argues that the ALJ erred by, on the one hand, 4 finding Bailey's statements "essentially credible," and on the 5 other, rejecting her observations because Bailey had not observed 6 plaintiff for any "prolonged period of time." 7 argues that the ALJ erred by not specifically mentioning Bailey's 8 statements about plaintiff's presence at the Axe-Murder Incident or 9 her assessment that plaintiff has certain marked limitations. Plaintiff also 10 The ALJ may reject lay witness testimony for reasons that are 11 germane to the witness. Carmichael v. Commissioner, 533 F.3d 1155, 12 1163-64 13 statements because they were not based on her personal observation 14 over a period of time. 15 sufficient. 16 Cir. 1995) (indicating that sufficient contact by the lay witness 17 with the claimant is required to render lay witness competent to 18 testify regarding claimant's limitations). Additionally, there was 19 no 20 checkbox limitation assessments since these were part of, and based 21 on, Bailey's narrative descriptions which ALJ Say legitimately 22 rejected. Finally, Judge Marsh had already affirmed ALJ Tielens's 23 negative credibility 24 specifically 25 regarding his participation in the Korea "Axe-Murder Incident." 26 Ball, No. CV-07-231-MA, Op. at pp. 5-7. 27 ALJ in failing to specifically address Bailey's statements in this 28 regard. (9th need for Cir. 2008). Here, the ALJ rejected Bailey's This reason is germane to Bailey and is See, e.g., Crane v. Shalala, 76 F.3d 251, 254 (9th ALJ Say to determination discussed, 17 - OPINION & ORDER separately and mention Bailey's regarding rejected, "marked" plaintiff plaintiff's and assertions There was no error by the 1 The ALJ also discussed statements by plaintiff's wife, 2 specifically citing to three written statements she submitted 3 before Judge Marsh's Remand Order, and to one she submitted post- 4 remand. 5 statements. 6 only to the ALJ's discussion of pre-remand statements submitted by 7 plaintiff's wife). 8 The Plaintiff's objections are limited to the pre-remand See Pltf's Op. Mem. at pp. 13-15 (raising objections ALJ rejected the several statements submitted by 9 plaintiff's wife because he found that plaintiff admitted to 10 greater activities than reported by his wife, her statements were 11 eroded by the plaintiff's own lack of credibility and propensity to 12 exaggerate his symptoms and limitations, and her testimony and 13 statements were not supported by the medical records as a whole. 14 Tr. 1381. 15 statements from plaintiff's wife were "generally credible" as a 16 report of her observations of behavior demonstrated by plaintiff, 17 she was not knowledgeable in the medical or vocational fields and 18 was 19 physical impairments affected his overall abilities to perform 20 basic work activities at various exertion levels. unable Additionally, the ALJ noted that while the written to render appropriate opinions on how claimant's Id. 21 Plaintiff argues that the ALJ erred because plaintiff's own 22 lack of credibility is independent of his wife's third party 23 observations that do no rely on his credibility or reporting. 24 Plaintiff also argues that the ALJ's statement about plaintiff's 25 wife's lack of knowledge in the medical or vocational fields has no 26 bearing on her credibility as a lay witness. 27 contends that the ALJ erred by finding that plaintiff's wife's 28 statements were not supported by the medical records as a whole 18 - OPINION & ORDER Finally, plaintiff 1 because the medical records, according to plaintiff, overwhelmingly 2 establish that plaintiff is disabled. 3 The ALJ's rejection of the plaintiff's wife's statements is 4 supported by the record and is based on reasons germane to her 5 testimony. First, given plaintiff's lack of credibility, a finding 6 not subject to reexamination, it was not error for the ALJ to 7 suggest 8 plaintiff's 9 inherently unreliable. that plaintiff's activities, wife's while reported generally observations credible, are of still To the extent her observations were based 10 on plaintiff's statements to her or observing his activity level, 11 given the determination of plaintiff's own negative credibility, it 12 is possible his complaints and behaviors were not credible. 13 if 14 plaintiff's wife's lack of knowledge in the medical or vocational 15 fields is a valid basis for rejecting her functional limitation 16 assessments, such as "marked," e.g., Tr. 317-20, because such 17 assessments are distinct from reports of observations of daily 18 activities 19 vocational guidelines and vernacular which plaintiff's wife does 20 not have. 21 opinion, 22 statements, ALJ Tielens's rejection of Dr. Dobscha's opinion was 23 expressly affirmed by Judge Marsh, is not subject to relitigation, 24 and thus cannot be a basis for arguing that the lay witness 25 statement finds support in the record. 26 rejecting plaintiff's wife's statements. 27 28 the ALJ erred and in they that require regard, some his statement familiarity Even regarding with medical/ Finally, while plaintiff contends that Dr. Dobscha's and others, actually supports plaintiff's wife's The ALJ did not err in As to the statement by fellow servicemember Mike Bilbo, although ALJ Say did not discuss it, there is no error. 19 - OPINION & ORDER Bilbo's 1 statements, which appear to have been part of the record before 2 Judge Marsh, address plaintiff's presence in Korea during the Axe- 3 Murder Incident. 4 precluded by Judge Marsh's express discussion of the issue and his 5 finding that ALJ Tielens's rejection of plaintiff's credibility was 6 not error. 7 witness testimony. Tr. 353, 367-68. Relitigation of this issue is ALJ Say did not err in failing to discuss this lay 8 Finally, there is no mention by ALJ Say of a June 2000 9 statement by plaintiff's former supervisor Robert Hathaway which 10 noted, shortly before plaintiff's alleged onset date, plaintiff's 11 difficulties in carrying heavy luggage or boxes, and standing or 12 sitting in place for long periods of time. 13 of the requirement by Judge Marsh that the ALJ on remand address 14 all lay witness testimony, and because disregard of lay witness 15 testimony is error, Stout v. Commissioner, 454 F.3d 1050, 1056 (9th 16 Cir. 2006), the ALJ erred in this regard. 17 II. 18 Tr. 266, 420. Because Opinions of Dr. Cowan and Dr. Barrett Plaintiff contends that the ALJ improperly rejected the 19 opinions of plaintiff's treating chiropractor, Dr. Lee Cowan, D.C., 20 and a treating psychiatrist, Dr. Thomas Barrett, M.D. I agree with 21 plaintiff that the ALJ erred; however, the error is not an improper 22 rejection, but a failure to address these practitioners' opinions 23 at all. 24 Plaintiff correctly notes that Judge Marsh's Opinion contained 25 no express discussion of ALJ Tielens's rejection of Dr. Cowan's 26 opinions. 27 Tielens's step three finding. 28 opinions have any relevance to a step three determination, Judge However, as noted above, Judge Marsh did affirm ALJ 20 - OPINION & ORDER Thus, to the extent Dr. Cowan's 1 Marsh's Order precludes reexamination of Dr. Cowan's opinions under 2 the doctrines of law of the case or issue preclusion. Nonetheless, 3 Dr. Cowan's opinions have relevance to the determinations at step 4 four and step five, issues which were expressly remanded by Judge 5 Marsh to the agency for further consideration. 6 to even discuss Dr. Cowan's opinions in regard to his step four and 7 five determinations, and in particular, plaintiff's RFC, was error. 8 Similarly, his failure to discuss Dr. Barrett's May 2008 9 report was also error. ALJ Say's failure Although defendant argues that ALJ Say 10 rejected Dr. Barrett's report because it related to a period of 11 time after 12 eligibility for DIB expired, defendant has misread ALJ Say's 13 decision which makes no mention of Dr. Barrett's report and which 14 cites the time period after December 31, 2005, as the basis for 15 rejecting a sleep study report. December 31, 2005, the date on which plaintiff's 16 However, as with Dr. Cowan, given the preclusive effect of 17 Judge Marsh's Opinion on the step three finding, the ALJ did not 18 err in failing to discuss Dr. Barrett's report as part of a step 19 three analysis. 20 relevant to any determinations made at steps four and five, and to 21 the ALJ's RFC determination. 22 Barrett's 23 determinations was error. Still, as with Dr. Cowan, Dr. Barrett's report is opinions in The ALJ's failure to discuss Dr. regard to the step four and five 24 Plaintiff argues that because Dr. Cowan's and Dr. Barrett's 25 opinions conclusively establish disability, there is no reason to 26 return this case to the agency for further proceedings, especially 27 given the long period of time in which the case has been pending 28 and the numerous errors made by various ALJs during the litigation. 21 - OPINION & ORDER 1 Although I recognize that continued administrative hearings pose a 2 burden, I do not believe remand for benefits is appropriate here. 3 First, as discussed in more detail below, errors at step five 4 require a remand for further proceedings. 5 crediting as true rule may be applicable when an ALJ has improperly 6 rejected testimony, I find its application inappropriate in this 7 case when the ALJ has simply failed to discuss the medical opinion 8 testimony. 9 should be the ALJ's province to address the evidence in the first 10 instance. Additionally, as plaintiff notes, as to Dr. Cowan, after 11 ALJ Tielens issued his decision in May 2006, defendant issued 12 Social Security Ruling (SSR) 06-3p which addresses the method for 13 evaluating opinions from "other sources," who are not "acceptable 14 medical sources," including chiropractors like Dr. Cowan. The ALJ, 15 as the factfinder, should perform the initial assessment of Dr. 16 Cowan's opinions under this SSR. 17 III. 18 Second, while the Because the ALJ, not this Court, is the factfinder, it Transferability of Skills Vocational Expert (VE) Jenipher Gaffney testified at the 19 October 28, 2008 hearing before ALJ Say. 20 her testimony, the VE testified that plaintiff's work as an equal 21 opportunity 22 position, but that his prior position as a civil rights specialist 23 had no equivalent match in the Dictionary of Occupational Titles 24 (DOT). 25 specialist position 26 positions: contract clerk and training specialist. 27 classifies the training specialist job as a light, semi-skilled 28 occupation, and classified the contract clerk job as a sedentary, officer Tr. 1439-40. 22 - OPINION & ORDER was classified as Tr. 1536-54. a As part of sedentary, skilled The VE explained that the civil rights most closely matched two recognized Id. DOT The DOT 1 skilled occupation. Id. 2 The ALJ presented a hypothetical to the VE which included a 3 limitation of simple, routine, repetitive work with occasional 4 complex tasks, and not requiring frequent or repetitive interaction 5 with co-workers or the general public. 6 responded that such an individual would be unable to perform any of 7 plaintiff's past work. 8 9 10 11 12 13 14 Next, the ALJ Tr. 1543-44. The VE Tr. 1544. asked if such an individual would have transferable skills within the limitations the ALJ had described. Id. The VE said yes. Tr. 1544-45. She explained that occupations that would be feasible in light of transferrable skills would be an occupation known as a general office clerk. As the title would imply, that individual performs a variety of office and clerical tasks of a very general nature. That is classified in the DOT as a light semi-skilled job. I think it fits the restrictions for simple, routine and repetitive, even though the SVP is semi-skilled. It is a 3 on the SVP. 15 Tr. 1545. The VE also identified a similar administrative clerk 16 position which was also a light, semi-skilled job. Id. As part of 17 her testimony, the VE testified that plaintiff's transferable 18 skills were "processing of information, the clerical processes 19 procedures, the computer skills, filling [sic] skills, copying, 20 using routine office equipment, telephones, computers, faxes, 21 printers, etcetera." Tr. 1545. 22 In his decision, ALJ Say stated that the VE testified that 23 plaintiff's past relevant work as a civil rights and equal 24 employment opportunities claim specialist was skilled with a 25 specific vocational preparation code of 6-7 and information and with the 26 transferable skills of processing performing 27 clerical duties such as filing and operating office equipment. Tr. 28 23 - OPINION & ORDER 1 1383. 2 and RFC, ALJ Say found that plaintiff had work skills acquired from 3 his past relevant work that were transferable to other occupations 4 with jobs existing in significant numbers in the national economy. 5 Id. identified the jobs 6 administrative clerk. Id. Thus, he found that plaintiff was not 7 disabled. 8 9 10 11 12 13 14 15 Then, based on plaintiff's age, education, work experience, He as general office clerk and Id. Under the applicable regulation, defendant considers a claimant to have skills that can be used in other jobs, when the skilled or semi-skilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs. 20 C.F.R. § 404.1568(d)(1). The regulation further provides that [t]ransferability is most probable and meaningful among jobs in which- 16 (i) The same or a lesser degree of skill is required; (ii) The same or similar tools and machines are used; and (iii) The same or similar raw materials, products, processes, or services are involved. 17 18 19 20 20 C.F.R. § 404.1568(d)(2). 21 that "[t]here are degrees of transferability of skills ranging from 22 very close similarities to remote and incidental similarities among 23 jobs. 24 for transferability." 25 Moreover, the regulation recognizes A complete similarity of all three factors is not necessary Social Security 20 C.F.R. § 404.1568(d)(3). Ruling 82-41 further provides that 26 transferability is most probable and meaningful among jobs in which 27 the same or lesser degree of skill is required because "people are 28 not expected to do more complex jobs than they have actually 24 - OPINION & ORDER 1 performed (i.e., from a skilled to a semiskilled or another skilled 2 job, or from one semiskilled to another semiskilled job)[.]" 3 82-41, available at 1982 WL 31389, at *5. 4 defined as 5 SSR Additionally, a skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level[;] [i]t is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner. 6 7 8 9 Id. at *2. 10 "Usually the higher the skill level, the more the potential 11 for transferring skills increases." Id. at *4. SSR 82-41 12 acknowledges that a "particular job may or may not be identifiable 13 in authoritative reference materials." Id. A vocational expert 14 may be necessary to ascertain whether there are transferable skills 15 from a claimant's past relevant work. Id. Additionally, 16 occupational titles and "skeleton descriptions," while relevant, 17 may be insufficient sources of information about a claimant's past 18 relevant work with the claimant himself being in the best position 19 to describe his duties. Id. As an example of transferable skills, 20 SSR 82-41 expressly notes that 21 22 23 24 25 a semiskilled general office clerk (administrative clerk), doing light work, ordinarily is equally proficient in, and spends considerable time doing, typing, filing, tabulating and posting data in record books, preparing invoices and statements, operating adding and calculating machines, etc. These clerical skills may be readily transferable to such semiskilled sedentary occupations as typist, clerk-typist and insurance auditing control clerk. 26 Id. at *3. 27 When transferability of skills is an issue, the "'ALJ is 28 25 - OPINION & ORDER 1 required to make certain findings of fact and include them in the 2 written decision.'" Bray v. Commissioner, 554 F.3d 1219, 1232 (9th 3 Cir. 2009) (quoting SSR 82-41, 1982 WL 31389, at *7). 4 acquired work skills must be identified, and specific occupations 5 to which the acquired work skills are transferable must be cited in 6 the ALJ's decision.'" 7 *7) 8 9 "'[T]he Id. (quoting SSR 82-41, 1982 WL 31389, at (ellipsis omitted). Plaintiff argues that the VE's testimony regarding transferable skills, and the ALJ's findings regarding transferable 10 skills, are not supported by substantial evidence. Plaintiff 11 contends that there is no evidence that plaintiff performed such 12 tasks in his past relevant work and that the two occupations 13 identified by the VE require different tools, different work 14 processes, different work settings, and different industries from 15 those of plaintiff's past relevant work. 16 I find no error in the ALJ's finding that plaintiff possessed 17 certain general office skills obtained in his past relevant work 18 which were transferrable to the positions of general office clerk 19 or administrative clerk. Both past relevant work positions and the 20 two 21 satisfying the requirement that skills should be transferred from 22 one skill level to an equal or lesser skill level. positions identified by the VE were all semi-skilled, 23 The VE testified that she had studied the vocational materials 24 in the record and she also requested clarification of the job tasks 25 and duties in plaintiff's most recent position as a civil rights 26 specialist. 27 that the civil rights specialist was most properly matched to a 28 training specialist and a contract clerk. Tr. 1536-37. 26 - OPINION & ORDER Based on his testimony, she concluded Tr. 1539. 1 The VE then explained that plaintiff's past relevant work 2 provided him with certain skills she specifically identified and 3 which she testified would be transferable to the general office 4 clerk and administrative clerk positions. 5 did not cite every skill identified by the VE, but did rely on the 6 skills of processing information and performing clerical duties 7 such 8 transferable skills. as filing and operating office Tr. 1545-46. equipment as The ALJ relevant Tr. 1383. 9 The VE's testimony provided the ALJ with substantial evidence 10 of the skill level required in plaintiff's past relevant work and 11 the 12 activities. Although plaintiff complains that there is no evidence 13 that he performed such tasks in his past relevant work, as SSR 82- 14 41 itself acknowledges, semi-skilled office positions inherently 15 carry with them proficiency in certain office-related skills such 16 as typing, filing, working with data, and operating machinery. SSR 17 82-41, 1982 WL 31389, at *3. 18 job skills have "universal applicability across industry lines" 19 such that "transferability of skills to industries differing from 20 past work experience can usually be accomplished with very little, 21 if any, vocational adjustments[.]" 22 *6. 23 particular The ALJ skills did acquired not err by his past relevant work The rule also recognizes that some in SSR 82-41, 1982 WL 31389, at his 24 IV. regarding plaintiff's transferability of skills. 25 determinations Vocational Expert Testimony & DOT 26 In questioning 27 hypothetical: 28 school the VE, the ALJ posed the following an individual, fifty-four years old, with a high education and 27 - OPINION & ORDER a bachelor's degree in sociology, with 1 plaintiff's work history who is limited to medium exertion 2 activities such that he can lift and carry up to fifty pounds 3 occasionally, twenty-five pounds frequently, sit up to six hours 4 out of an eight-hour work day, stand and walk up to six hours out 5 of an eight-hour work day, and occasionally use his left arm and 6 left upper extremity to reach, handle, finger, and feel. Tr. 1543. 7 The ALJ also included limitations because of mental impairments, 8 including a limitation to "simple routine repetitive work including 9 occasional complex tasks, not requiring frequent or repetitive 10 interaction with co-workers or the general public." Tr. 1543-44. 11 In response to a question by the VE to clarify the limitation 12 regarding interaction with co-workers or the public, the ALJ 13 indicated that superficial interaction would be all right for work- 14 related purposes, such as giving and receiving information or 15 instructions. 16 In Tr. 1544. response, the VE identified the previously mentioned 17 positions of general office clerk and administrative clerk. Tr. 18 1545. 19 a light, semi-skilled job that fit the restrictions for simple, 20 routine, and repetitive work, even though it was an SVP 3 position. 21 Id. 22 administrative clerk position as being very similar in terms of job 23 tasks and duties, but people performing the job would more likely 24 be 25 individuals rather than performing generally in an office. 26 The job was also classified as light and semi-skilled, with DOT 27 number 219.362-010. 28 administrative clerk position is 4. For the general office clerk, the VE testified that it was The DOT number is 209.562-010. assigned to assist 28 - OPINION & ORDER Id. one Id. individual The VE described the or a small group of Id. The VE stated that the SVP for the Tr. 1546. She testified that 1 both jobs were consistent with the DOT. Id. 2 Plaintiff contends that the VE's testimony departs from the 3 DOT and that the ALJ failed to obtain the VE's explanation for that 4 departure. As a result, plaintiff contends that the VE's testimony 5 does not provide substantial evidence at step five. 6 Plaintiff cites three errors in the VE's testimony. First, as 7 plaintiff notes, the DOT classifies both the general office clerk 8 and administrative clerk as requiring the ability to reach, handle, 9 and finger "frequently." Dictionary of Occupational Titles (4th 10 ed. 1991) (1991 WL 671792, 1991 WL 671953). 11 that positions with this requirement conflict with the limitation 12 by the ALJ to only an occasional use of the left upper extremity 13 for reaching, handling, fingering, and feeling. Defendant responds 14 that plaintiff overlooks the fact that the ALJ found no limitations 15 in plaintiff's dominant right extremity and furthermore, that there 16 is no evidence that the identified jobs require bilateral reaching, 17 handling, or fingering. 18 conflict between the VE testimony and the DOT. 19 Plaintiff contends Thus, defendant contends, there is no I agree with defendant because, as defendant notes, there are 20 no limitations on plaintiff's use of his right arm and hand. 21 defendant is correct that there is no evidence that the identified 22 jobs require bilateral reaching, handling, or fingering. 23 Next, plaintiff notes that the DOT description And, of the 24 administrative clerk position suggests that "dealing with people" 25 is 26 conflict with the DOT regarding this position. 27 clerk job description in the DOT includes "[g]ives information to 28 and a requirement interviews of the position, customers, 29 - OPINION & ORDER making claimants, the VE's testimony The administrative employees, and sales 1 personnel" as well as "[m]ay greet and assist visitors." 2 671953. It further indicates that the position requires "[d]ealing 3 with people[.]" 4 position in the DOT appears to conflict with the ALJ's limitation 5 of 6 interaction with co-workers or the general public. plaintiff Id. to 1991 WL The description of the administrative clerk jobs not requiring frequent or repetitive 7 The ALJ may rely on VE testimony that conflicts with or 8 deviates from the DOT "but only insofar as the record contains 9 persuasive evidence to support the deviation." Johnson v. Shalala, 10 60 F.3d 1428, 1435 (9th Cir. 1995). 11 properly relied on VE testimony which conflicted with the DOT 12 because 13 categories in the local rather than the national market, and 14 testimony 15 occupation with the specific abilities and limitations of the 16 claimant." the VE gave matching "persuasive the specific Thus, in Johnson, the ALJ testimony of requirements of available a job designated Id. 17 SSR 00-4p, available at 2000 WL 1898704, makes clear that 18 "[n]either the DOT nor the VE [] evidence automatically 'trumps' 19 when there is a conflict." 20 the face of a conflict, the "adjudicator must elicit a reasonable 21 explanation for the conflict before relying on the VE [] evidence 22 to support a determination or decision about whether the claimant 23 is disabled." 24 determining if the explanation given by the VE [] is reasonable and 25 provides a basis for relying on the VE or VS testimony rather than 26 on the DOT information." 27 28 Here, Id. while SSR 00-4p, 2000 WL 1898704, at *2. In "The adjudicator must resolve the conflict by ALJ Id. Say asked the VE if her testimony consistent with the DOT, the VE answered in the affirmative. 30 - OPINION & ORDER was As a 1 result, there is no explanation in the record for any conflict 2 between 3 unresolved issue at step five. 4 her testimony Finally, and plaintiff's DOT. primary including occasional complex tasks. 8 general office clerk and administrative clerk positions identified 9 by the VE carry reasoning levels of three and four, respectively. simple, routine, to VE's 7 than relates the an limitation more DOT about is 6 no the complaint there testimony to with Therefore, 5 10 conflicting the plaintiff's repetitive work Plaintiff notes that the 1991 WL 671792, 1991 WL 671953. 11 Reasoning level three is defined as the ability to "[a]pply 12 commonsense understanding to carry out instructions furnished in 13 written, oral, or diagrammatic form[, and to] [d]eal with problems 14 involving 15 situations." DOT, App. C, 1991 WL 688702. 16 defined as the ability to "[a]pply principles of rational systems 17 to solve practical problems and deal with a variety of concrete 18 variables in situations where only limited standardization exists[, 19 and to] [i]ntepret a variety of instructions furnished in written, 20 oral, diagrammatic, or schedule form." 21 several Plaintiff concrete contends variables that these in or from standardized Reasoning level four is Id. reasoning requirements are 22 incompatible with the limitations given by the ALJ to simple, 23 routine, repetitive work with occasional complex tasks. 24 appropriate positions, according to plaintiff, are those which 25 carry a reasoning level of one, defined as the ability to "[a]pply 26 commonsense understanding to carry out simple one- or two-step 27 instructions[, 28 occasional or no variables in or from these situations encountered and] 31 - OPINION & ORDER [d]eal with standardized The only situations with 1 on the job." 2 Id. In response, defendant contends that the DOT's reasoning scale 3 reflects an individual's 4 achievements 5 reflection of the duties or tasks an individual would be required 6 to perform on a particular job. 7 educational achievement includes a college degree in sociology and 8 transferable skills from his past relevant work. in reasoning, formal math, or and informal language, educational and is not a Defendant argues that plaintiff's 9 While defendant makes a valid point about plaintiff's college 10 degree and his transferable skills, the DOT's own explanation of 11 the reasoning scale suggests that the reasoning level assigned to 12 a job classification does in fact reflect the reasoning skills 13 required for the worker to satisfactorily perform that particular 14 job. 15 The DOT explains that the General Educational Development 16 (GED) section of its job classifications has three divisions: 17 reasoning 18 development. 19 education (formal and informal) which are required of the worker 20 for satisfactory job performance." development, Id. mathematical development, and language The GED section "embraces those aspects of Id. 21 In Meissl v. Barnhart, 403 F. Supp. 2d 981 (C.D. Cal. 2005), 22 the court explained that a "job's reasoning level . . . gauges the 23 minimal 24 themselves." 25 SVP level). 26 . . . squarely addressed by the GED reasoning level ratings." 27 (internal quotation and brackets omitted). Thus, in Meissl, "[t]he 28 one vocational consideration directly on point with the limitation ability a worker needs to complete the job's tasks Id. at 983 (distinguishing reasoning levels from the "[T]he issue of a job's simplicity . . . appears to be 32 - OPINION & ORDER Id. 1 [to simple tasks performed at a routine pace] contained in the RFC 2 is a job's reasoning level score." 3 reasoning scale may generally embrace an individual's educational 4 achievements, 5 particular reasoning level corresponds directly to the reasoning 6 skills required for the worker to satisfactorily perform that 7 particular job. the DOT indicates Id. that Accordingly, while the a job classification's 8 Several courts have found level two reasoning to be consistent 9 with the ability to do simple, routine and/or repetitive work 10 tasks. See, e.g., Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th 11 Cir. 2005) (Level 2 reasoning more consistent with limitation to 12 simple, routine work tasks); Meissl, 403 F. Supp. 2d at 983-85 13 (limitation 14 reasoning); Flaherty v. Halter, 182 F. Supp. 2d 824, 850-51 (D. 15 Minn. 2001). 16 limitation to simple, routine, repetitive work consistent with a 17 level three or four reasoning level. 18 plaintiff that while the RFC in this case allows for the occasional 19 complex task, the DOT classifications indicate that the requisite 20 reasoning level applies to the particular job as it is regularly 21 performed. to simple, repetitive tasks closer to level 2 Defendant, however, cites to no cases finding a Furthermore, I agree with 22 The problem here is the failure of the VE to explain how 23 plaintiff, with the limitations given by the ALJ, can perform the 24 jobs cited by the VE given the reasoning levels assigned to those 25 jobs by the DOT. 26 the VE testimony and the DOT. 27 the ALJ may credit the VE testimony, but only when the record shows 28 that the ALJ has obtained a "reasonable explanation" for the On the present record, there is a conflict with 33 - OPINION & ORDER As explained above, in such cases 1 conflict and then explains a basis for relying on the VE rather 2 than on the DOT. 3 such an explanation, in this case the ALJ failed to obtain one. 4 Thus, the ALJ's step five determination is, at this point, without 5 support in the record. Although the VE may have been able to provide 6 In social security cases, the district court is not the 7 factfinder and thus, I am not in a position to adjudicate the facts 8 contained in this record. 9 statement that "[b]y no means is a finding of disability directed But, I echo Judge Marsh's previous 10 on the present record." 11 a decision to be final, at the administrative or district court 12 level, it is essential that the ALJ on remand carefully review all 13 regulations, dot every "i," cross every "t," and proofread his or 14 her proposed disposition for internal consistency. The Court urges 15 the ALJ to do this to avoid this case having to be returned by the 16 Court to the ALJ for a third time. 17 18 19 20 Tr. 7. It is relatively apparent that for CONCLUSION The Commissioner's decision is reversed and the case remanded for further proceedings consistent with this Opinion. IT IS SO ORDERED. 21 Dated this 27th day of August , 2010. 22 23 /s/ Dennis J. Hubel 24 Dennis James Hubel United States Magistrate Judge 25 26 27 28 34 - OPINION & ORDER
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