Kulcsar v. Colvin, No. 2:2015cv00119 - Document 20 (E.D. Wash. 2016)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR JUDGMENT, INTER ALIA. Granting 16 Plaintiff's Motion for Summary Judgment; denying 18 Defendant's Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (SK, Case Administrator)

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Kulcsar v. Colvin Doc. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) ROBERT KULCSAR, No. 2:15-CV-119-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 16) and the Defendant's Motion For Summary Judgment (ECF No. 18). JURISDICTION Robert Kulcsar, Plaintiff, applied for Title II Disability Insurance benefits (DIB) and Title XVI Supplemental Security Income benefits (SSI) in February 2006, alleging disability starting in March 2005. These applications were denied initially and on reconsideration. Administrative Law Judge (ALJ) R.J. Payne held an administrative hearing and subsequently issued a decision on May 14, 2010, finding Plaintiff not disabled. Plaintiff requested review of this decision and the Appeals Council remanded for further proceedings. Following a second administrative hearing in 2012, the ALJ again found Plaintiff not disabled. Plaintiff requested review and the Appeals Council again remanded for further proceedings. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 On January 23, 2014, an administrative hearing was held by ALJ Caroline 2 Siderius. Plaintiff, represented by a non-attorney representative, testified at this 3 hearing, as did two medical experts and a vocational expert (VE), K. Diane Kramer. 4 Following this hearing, Plaintiff’s non-attorney representative pointed out that VE 5 Kramer’s hearing testimony conflicted with the Dictionary of Occupational Titles 6 (DOT). In an effort to reconcile the same, the ALJ submitted written interrogatories 7 to VE Kramer. Following receipt of answers to these interrogatories, ALJ Siderius 8 rendered an unfavorable decision on April 21, 2014, which was appealed to the 9 Appeals Council. The Appeals Council denied a request for review and the ALJ's 10 decision became the final decision of the Commissioner. This decision is appealable 11 to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 12 STANDARD OF REVIEW 13 14 "The [Commissioner's] determination that a claimant is not disabled will be 15 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 16 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 17 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 18 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 19 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 20 1988). "It means such relevant evidence as a reasonable mind might accept as 21 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 22 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 23 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 24 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 25 On review, the court considers the record as a whole, not just the evidence supporting 26 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 27 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 28 /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 2 Richardson, 402 U.S. at 400. 3 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 4 F.2d 577, 579 (9th Cir. 1984). If evidence supports more than one rational 5 A decision supported by substantial evidence will still be set aside if the proper 6 legal standards were not applied in weighing the evidence and making the decision. 7 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 8 1987). 9 10 11 12 ISSUE Plaintiff argues the ALJ erred because she failed to resolve an inconsistency between the VE’s testimony and the DOT. 13 14 15 DISCUSSION SEQUENTIAL EVALUATION PROCESS 16 The Social Security Act defines "disability" as the "inability to engage in any 17 substantial gainful activity by reason of any medically determinable physical or 18 mental impairment which can be expected to result in death or which has lasted or can 19 be expected to last for a continuous period of not less than twelve months." 42 20 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). The Act also provides that a claimant 21 shall be determined to be under a disability only if her impairments are of such 22 severity that the claimant is not only unable to do her previous work but cannot, 23 considering her age, education and work experiences, engage in any other substantial 24 gainful work which exists in the national economy. Id. 25 The Commissioner has established a five-step sequential evaluation process for 26 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 27 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 28 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the decision-maker 2 proceeds to step two, which determines whether the claimant has a medically severe 3 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 4 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 5 of impairments, the disability claim is denied. If the impairment is severe, the 6 evaluation proceeds to the third step, which compares the claimant's impairment with 7 a number of listed impairments acknowledged by the Commissioner to be so severe 8 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 9 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 10 equals one of the listed impairments, the claimant is conclusively presumed to be 11 disabled. If the impairment is not one conclusively presumed to be disabling, the 12 evaluation proceeds to the fourth step which determines whether the impairment 13 prevents the claimant from performing work she has performed in the past. If the 14 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 15 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 16 the fifth and final step in the process determines whether she is able to perform other 17 work in the national economy in view of her age, education and work experience. 20 18 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 19 The initial burden of proof rests upon the claimant to establish a prima facie 20 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 21 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 22 mental impairment prevents her from engaging in her previous occupation. The 23 burden then shifts to the Commissioner to show (1) that the claimant can perform 24 other substantial gainful activity and (2) that a "significant number of jobs exist in the 25 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 26 1498 (9th Cir. 1984). 27 /// 28 /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 ALJ'S FINDINGS 2 The ALJ found Plaintiff has severe medical impairments, but that he does not 3 have an impairment or combination of impairments that meets or equals any of the 4 impairments listed in 20 C.F.R. § 404 Subpart P, App. 1. 5 The ALJ found Plaintiff has the residual functional capacity (RFC) to perform 6 light work as defined in 20 C.F.R. §§404.1567(b) and 416.967(b), that “[h]e can lift 7 20 pounds occasionally and 10 pounds frequently,” that “[h]e can sit up to 6 hours in 8 an 8-hour day and stand/walk up to 2 hours in an 8-hour day.” (Tr. at p. 32). The 9 ALJ found Plaintiff also has certain non-exertional limitations: He cannot kneel, crouch, or crawl. He should avoid extreme temperatures, wetness, humidity, and vibration. He is capable of frequent, but not constant, use of both hands. He is capable of simple, routine tasks that do not require more than superficial contact with the general public or more than occasional, brief contact with co-workers and supervisors. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id.). The ALJ found this RFC allowed Plaintiff to perform past relevant work as a car wash attendant, automatic cleaner, office/housekeeper, and sales clerk. Furthermore, it allowed Plaintiff to perform other jobs existing in significant numbers in the national economy, including office cleaner, electrical assembler, and mail clerk. Accordingly, the ALJ concluded the Plaintiff is not disabled. VE TESTIMONY AND INTERROGATORY ANSWERS At the administrative hearing, the ALJ first presented the VE with a hypothetical that included all of the limitations set forth in the RFC the ALJ ultimately included in her decision, with the exception of “[no] more than superficial contact with the general public or more than occasional, brief contact with co-workers and supervisors.” (Tr. at p. 700). The VE opined that based on that RFC, she did not believe Plaintiff could perform any of his past relevant work which she identified as including car wash attendant, construction worker, janitor and automobile detailer. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 (Tr. at pp. 699-700). The VE opined there were, however, other jobs in the national 2 economy which the Plaintiff could perform, including sorter and production 3 assembler. (Tr. at pp. 700-701). In her second hypothetical to the VE, the ALJ asked 4 the VE to also consider that the individual could only have “superficial contact with 5 the general public” and “occasional brief contact with coworkers and supervisors.” 6 (Tr. at p. 701). The ALJ opined that even with these additional limitations, Plaintiff 7 could still perform the jobs of sorter and production assembler. (Id.). In her final 8 hypothetical to the VE, the ALJ asked the VE to assume the individual could only 9 have superficial contact with both the general public and coworkers. (Id.). The ALJ 10 opined that Plaintiff could still perform the jobs of sorter and production assembler. 11 (Id.). 12 Plaintiff’s representative submitted a post-hearing brief to the ALJ which 13 asserted the VE’s testimony conflicted with the DOT and that per the DOT 14 descriptions of sorter and production assembler, Plaintiff could not perform those 15 jobs based on the hypotheticals presented to the VE. (Tr. at p. 589). More 16 specifically, the representative asserted: The VE testified the claimant would be able to perform other work as: Sorter (DOT 529.687-186) and Production Assembler (DOT 706.687-010). Both Sorter and Production Assembler are listed as Light, SVP 2. Light work requires standing and walking for up to 6 hrs. a day and sitting up to 2 hrs. in an 8 hr. day. Both jobs indicate significant standing, walking, pushing, and/or pulling. However, the hypothetical limits standing/walking to 2 hrs. in an 8 hr. day. The Sorter job demands constant handling. However, the hypothetical limits manipulative use of the hands to frequent, not constant. The Production Assembler job demands occasional crouching. However, the hypothetical eliminates crouching. 17 18 19 20 21 22 23 24 25 26 27 28 (Id.). This post-hearing brief prompted the ALJ to send written interrogatories to the VE. In response to those interrogatories, the VE indicated Plaintiff could perform some of his past relevant work based on the limitations presented by the ALJ at the hearing, including “[s]uperficial contact with general public” and “occasional, brief ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 1 contact with coworkers and supervisors.” (Tr. at p. 611). The past relevant work 2 included Car Wash Attendant, Cleaner (Office/Housekeeping), and Sales Clerk (Tr. 3 at p. 607), the latter of which had not been mentioned by the VE during the hearing. 4 5 In further response to the interrogatories, the VE indicated there were also 6 other jobs in the national economy that Plaintiff could perform, including Office 7 Cleaner 1, Assembler Electrical, and Mail Clerk. (Tr. at pp. 607 and 612). Sorter and 8 Production Assembler were not included. 9 The Plaintiff’s representative filed a written response to the VE’s interrogatory 10 responses. (Tr. at pp. 617-18). The representative asserted that all of the jobs 11 identified by the VE are listed in the DOT as “light,” requiring an individual to stand 12 or walk for approximately 6 hours of an 8 hour workday and therefore, incompatible 13 with being limited to 2 hours of standing or walking in an 8 hour day. (Tr. at p. 617). 14 The representative also noted that with regard to Plaintiff’s past jobs which the VE 15 now opined the Plaintiff could perform, certain requirements of those jobs as set forth 16 in the DOT were incompatible with certain limitations set forth in the ALJ’s 17 hypothetical (and what ultimately turned out to be her RFC determination). (Tr. at 18 p. 618). 19 The ALJ adopted the VE’s opinion that Plaintiff could perform his past 20 relevant work as a car wash attendant, cleaner and sales clerk. According to the ALJ: 21 22 23 24 25 26 27 28 /// In comparing the claimant’s residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant is able to perform these jobs, as /// /// /// /// /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 generally performed. Pursuant to SSR 00-4p1, the vocational expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles (DOT) except to the extent to which she considered the significance of the jobs that would provide for the reduced stand/walk. This information was obviously based upon her professional expertise and experiences in conducting labor market surveys. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (Tr. at p. 36). In other words, the ALJ concluded that because of the VE’s expertise and experience, as opposed to the information set forth in the DOT, the VE was aware that the jobs of car wash attendant, cleaner and sales clerk, as “generally performed,” allowed for the “reduced stand/walk,” that being standing or walking 2 hours in an 8 hour workday. As an alternative finding, and for the same reasons, the ALJ adopted the VE’s opinion that Plaintiff could perform the other jobs the VE identified in her answers to the interrogatories. (Tr. at pp. 37-38). “When there is an apparent conflict between the vocational expert’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 v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007). The ALJ must ask the expert to explain the conflict and “then determine 20 1 21 22 23 24 25 26 27 SSR 00-4p provides: When vocational evidence provided by a VE or VS is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE or the VS evidence to support a determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 whether the vocational expert’s explanation for the conflict is reasonable” before 2 relying on the expert’s testimony to reach a determination. Id., quoting Massachi, 3 486 F.3d at 1153-54. 4 In her summary judgment motion, the Commissioner concedes the ALJ erred 5 in her Step Four finding that Plaintiff could perform past relevant work. (ECF No. 6 18 at p. 2, n. 1). The court concludes the ALJ’s Step Five finding also cannot stand. 7 The VE’s answers to the interrogatories offer no explanation why Plaintiff would be 8 capable of performing the other jobs identified by her considering the hypothetical 9 limitations posed by the ALJ and ultimately adopted as her RFC determination. The 10 absence of any explanation prompted the ALJ to simply assume the VE relied on her 11 expertise and experience in concluding that the jobs identified by her, as “generally 12 performed,” allowed for standing or walking 2 hours in an 8 hour workday. There is 13 no support in the record for this assumption. 14 The Commissioner correctly points out that “light work” requires “a good deal 15 of walking or standing, or when it involves sitting most of the time with some 16 pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(a) and 17 416.967(a). (Emphasis added). The VE, however, gave no indication that the jobs 18 identified by her in her interrogatory answers were compatible with the limitations 19 identified by the ALJ because they involved sitting most of the time with some 20 pushing and pulling of arm or leg controls, as opposed to requiring a good deal of 21 walking and standing. And in her decision, the ALJ gave no indication that this was 22 a reason she chose to adopt the VE’s opinion that Plaintiff could perform these jobs. 23 It is indeed conceivable, as acknowledged by Plaintiff, that a job classified as “light” 24 may not involve standing or walking for more than two hours in a workday, but such 25 a conclusion must be based on evidence in the record, not assumptions. 26 In her answers to interrogatories, the VE did not list sorter and production 27 assembler as other jobs the Plaintiff was capable of performing, in contrast with the 28 testimony she gave at the administrative hearing. It is unclear whether this was an ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 1 attempt to avoid resolving the apparent inconsistency between her testimony and the 2 DOT. But in summarily identifying in interrogatory answers new jobs the Plaintiff 3 was purportedly capable of performing, the VE left questions about the compatibility 4 of those jobs with Plaintiffs’ limitations which are not resolved by the current state 5 of the record, as evidenced by the assumptions made by the ALJ in her decision. 6 There is a “gap in the record” which precludes a determination whether the ALJ’s 7 Step Five finding is supported by substantial evidence. Zavalin, 778 F.3d at 846. As 8 in Massachi, 486 F.3d at 1154, because of unresolved occupational evidence, it 9 cannot be determined whether the ALJ properly relied on the VE’s answers to the 10 interrogatories. Significantly contributing to the court’s concern whether the ALJ 11 properly relied on the VE’s interrogatory answers is the fact those answers indicated 12 Plaintiff was capable of performing past relevant work including that of car wash 13 attendant, which she previously testified the Plaintiff could not perform, and that of 14 sales clerk which she did not identify at the hearing as past relevant work. 15 CONCLUSION 16 Plaintiff’s Motion For Summary Judgment (ECF No. 16) is GRANTED 17 18 and Defendant’s Motion For Summary Judgment (ECF No. 18) is DENIED. 19 Pursuant to Sentence Four of 42 U.S.C. §405(g), this matter is REMANDED for 20 further administrative proceedings including the following: 1) the holding of a de 21 novo hearing; 2) the consideration of any new evidence submitted by Plaintiff; 3) 22 taking of testimony from a vocational expert about Plaintiff’s ability to perform his 23 past relevant work and other work that comports with the requirements of Social 24 Security Ruling 00-4p; and 4) the making of new findings at Step Four and Step Five 25 based on the updated record. 26 /// 27 /// 28 /// ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 2 3 IT IS SO ORDERED. The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 25th of January, 2016. 4 5 6 7 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11

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