Opinion
CV-23-00126-TUC-JAS (JR)
08-22-2023
Talen Martin, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate Judge
Plaintiff Talen Martin (“Martin”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”). (Doc. 1.) The matter is ripe for decision. (Doc. 15, 17-18.) This matter is on referral to the undersigned United States Magistrate Judge for Report and Recommendation. (Doc. 13.) As more fully set forth below, the Magistrate Judge recommends that the district court reverse the ALJ's decision and remand the matter for further proceedings.
BACKGROUND
Procedural History
On March 11, 2020, Martin protectively filed an application for supplemental security income alleging a disability onset date of January 12, 2019. (Administrative Record “AR” 19.) Martin's claim was denied initially on May 18, 2020, and on reconsideration on November 9, 2020. (AR 101-115 (initial denial), AR 118-137 (reconsideration denial).) Hearings were held before an Administrative Law Judge (“ALJ”) on September 15, 2021 and January 11, 2022. (AR 43-52 (September 15, 2021 hearing) and AR 32-42 (January 11, 2022 hearing).) In a decision dated February 28, 2022, the ALJ determined Martin was not disabled. (AR 19-27.) On January 12, 2022, the Appeals Council denied review thus making the ALJ's decision final for judicial review. (AR 1-6.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
Relevant Factual Background
Martin, born in 1991, is a younger person in the eyes of the administration. He has a GED and no past relevant work. (AR 25, 249.) Martin alleges disability based on scoliosis, PTSD, and Morgellons syndrome. (AR 248.) X-rays of Mr. Martin's spine showed dextroscoliosis of the thoracolumbar spine of approximately 39 degrees, as well as fusion rods in place along the spine. (AR 369.)
On December 3, 2017, consultative examiner Jeri Hassman, M.D., examined Martin. (AR 362-368.) She noted that Martin underwent a Harrington rod placement and fusion of the thoracic spine in 2002. (AR 362.) Dr. Hassman observed that Mr. Martin had no movement of his trunk while walking due to the fusion, but normal gait from the waist down. (AR 363.) He had pain with hopping. Id. His right shoulder was lower than the left shoulder. Id. Straight leg raising was minimally positive bilaterally and he had “just about complete flattening of the thoracic kyphosis and lumbar lordosis. Id. Dr. Hassman opined that Mr. Martin could perform up to a reduced range of light work and that he would need occasional changes of position. (AR 365-366.)
Martin stated that he suffers limitations as a result of spinal pain and resultant stress when he attempts to work. (AR 36-37, 266.) He cannot sit in one place very long. (AR 270.) He can lift approximately 15 pounds and walk approximately half a mile before resting for 20 minutes. (AR 38, 271.)
The ALJ's Decision
At step one, the ALJ determined that Martin had not engaged in substantial gainful activity since March 11, 2020, the application date. (AR 22.) At step two, the ALJ determined that Martin suffered from the severe impairment of scoliosis. Id. At step three, the ALJ determined Martin did not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 22-23.) After step three but before step four, the ALJ determined Martin's residual functional capacity (“RFC”) as follows:
[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 416.967(b) except claimant can occasionally climb ramps, stairs, ladders, ropes and scaffolds, kneel, crouch, and crawl; and frequently stoop and reach, bilaterally.(AR 23.) At step four, the ALJ determined that Martin had no past relevant work. (AR 25.) At step five, based on vocation expert (VE) testimony, the ALJ found Martin able to perform other work that exists in significant numbers in the national economy such as marker, routing clerk, and cafeteria attendant. (AR 26-27.)
ISSUES ON REVIEW
Martin raises one issue with two parts. (Doc. 15 at 2.) He claims that the ALJ's RFC determination is the product of legal error because the ALJ failed to “fully articulate the persuasiveness” of consultative examiner Dr. Hassman's opinion. Id. at 2. Martin also urges that the RFC is not supported by substantial evidence because the hypothetical posed to the VE by the ALJ failed to account for all of his limitations. Id. at 5-6.
Commissioner defends the ALJ's decision. (Doc. 17.) The Commissioner represents “the definition of the word ‘occasionally' is ambiguous, as it represents a range of time.” Id. at 4. The Commissioner explains that “[o]n one end of the spectrum, it means ‘no more than about 2 hours of an 8 hour workday,' but on the other end of the spectrum, it means only a ‘very little' amount of time during an 8 hour workday.” Id. The Commissioner urges that the ALJ correctly resolved the stated ambiguity when “he interpreted Dr. Hassman's opinion to mean exactly what it said: namely, that [Martin] could perform work requiring standing and walking for six hours in an eight-hour workday due to [his] back pain and need to change position on occasion.” Id. As more fully explained below, the Court agrees with Martin.
ANALYSIS
Consultative Examiner Opinion
Under 20 C.F.R. pt. 404.1520c, the Commissioner “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” 20 C.F.R. pt. 404.1520c(a). Section 404.1520c further provides that when a medical source provides one or more medical opinions, the Commissioner will consider those medical opinions from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section. Id. Those factors include: (1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, purpose and extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) any other factors that “tend to support or contradict a medical opinion or prior administrative medical finding.” Id. at pt. 404.1520c(c).
When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. 20 C.F.R. pt. 404.1520c(a). With respect to “supportability,” the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. at pt. 404.1520c(c)(1). With respect to “consistency,” the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at pt. 404.1520c(c)(2).
The ALJ must articulate her consideration of the medical opinion evidence, including how persuasive she finds the medical opinions in the case record. Id. at pt. 404.1520c(b). The ALJ must explain how she considered the “supportability” and “consistency” factors for a medical source's opinion. Id. at pt. 404.1520c(b)(2). Under the new regulations, “[t]he agency must ‘articulate . . . how persuasive' it finds ‘all of the medical opinions' from each doctor or other source [. . .] and ‘explain how [it] considered the supportability and consistency factors' in reaching these findings [. . .].” See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022.
Dr. Hassman opined, inter alia, that Martin would need occasional changes of position and that if given the ability do so he could perform a reduced range of light work. (AR 363, 365-366.) The ALJ found Dr. Hassman's opinion persuasive reasoning:
A historical opinion by consultative examiner Dr Hassman dated December 2017 noted that claimant could perform light work, occasionally climb ramps, stairs, ladders, ropes or scaffolds, kneel, crouch, and crawl, frequently stoop and reach. (Ex. C3F) The undersigned is persuaded by this opinion, as it is supported by the examination conducted. Further it is consistent with the longitudinal evidence, which noted pain with range of motion of the spine, as well as the objective imagining. (Ex. C4F; C8F pg. 1-8)(AR 25.)
Despite finding Dr. Hassman's opinion persuasive, in formulating Martin's RFC ALJ failed to explain his rejection of the portion of Dr. Hassman's opinion that Martin required occasional changes in position. (AR 25, 40-41.) The ALJ's failure to account for Dr. Hassman's opinion that Martin required occasional changes in position without explanation is erroneous. See, e.g., Burson v. Berryhill, Case No. 15-cv-04991-DMR, 2017 WL 1065140, at *4 (N.D. Cal. Mar. 20, 2017) (holding “[t]o the extent that the ALJ accepted the opinion that [the p]laintiff is limited to one- and two-step instruction works, the ALJ's RFC assessment does not account for that limitation . . . To the extent that the ALJ rejected that portion of Dr. Bailey's opinion, he erred by failing to provide any reasons for doing so.”); Carroll v. Comm'r of Soc. Sec. Admin., No. CV-22-0009-JCH-DTF, 2023 WL 2394012, at *6 (D. Ariz. Feb. 2, 2023), report and recommendation adopted, 2023 WL 2180727 (D. Ariz. Feb. 23, 2023) (holding that “[b]ecause the Court cannot determine from the ALJ's decision why he disagreed with portions of the persuasive opinion, the Court finds he erred”); DePorter v. Comm'r of Soc. Sec. Admin., No. CV-22-00567-JAS (LAB), 2022 WL 677328, at *8 (D. Ariz. Jan. 11, 2022), report and recommendation adopted, 2022 WL 672671 (D. Ariz. Mar. 7, 2011) (recognizing that “the ALJ is not required to accept every part of a medical opinion [and that] [s]he can pick and choose what parts she wants to adopt and what parts she wants to reject, but she must give reasons explaining her decision”).
The Commissioner argues that the ALJ reasonably resolved an ambiguity created by the use of the word “occasionally.” (Doc. 17 at 5.) It is true, as the Commissioner urges, that the ALJ resolves ambiguities in the evidence. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). It is also true, however, that the ALJ must make some effort to set forth reasoning that indicates that the ALJ attempted to resolve the ambiguity. This Court cannot conclude that the ALJ tried to set forth his reasoning in resolving the ambiguity because the ALJ made no reference to Dr. Hassman's opinion that Martin needed to change positions occasionally. (AR 23-25.)
Vocational Expert Testimony
A question posed to a VE must “consider all of the claimant's limitations” for a VE's testimony to constitute substantial evidence. See Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir.1995). “If a vocational expert's hypothetical does not reflect all the claimant's limitations, then the ‘expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.'” Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (quoting Delorme v. Sullivan, 924 F.2d 841, 850 (9th Cir.1991)).
Here, the VE testified:
Q All right, Mr. Komar, I'm going to give you a hypothetical based on the consultative examination at ¶ 3F, and ask you to assume a hypothetical individual of, Mr. Martin's, age and education, with no past relevant work history. Further assume that this hypothetical individual retains the residual functional capacity to perform a range of up to light work as that term is defined. With the occasional climbing of ramps and stairs, occasional ladders, ropes, or scaffolds.
Frequent stooping, occasional kneeling, crouching, and crawling. Frequent reaching bilaterally. And that is the extent of, Dr. Haskins (sic) opinion. Could you give me some representative jobs that a hypothetical
individual with that residual functional capacity could perform?
A Yes, Your Honor. The first would be that of a marker, the DOT number is 209.587-034, the SVP is 2, physical exertion level is light and in the national economy there are 124,699 of these jobs. Additionally the position of a routing clerk, DOT number 222.687-022, the SVP is 2, the physical exertion level is light, and there are 97,733 of these jobs in the national economy.
For a third occupation, that of a cafeteria attendant, DOT number 311.677-010, the SVP is 2, physical exertion level light, and there are 28,226 of these jobs in the national economy.(AR 41.)
(Dictionary of Occupational Title)
Based on the foregoing testimony, this Court finds that the hypothetical posed to the VE did not account for Martin's limitation to occasional changes of position as Dr. Hassman opined. The ALJ stated that he was giving the VE a hypothetical “based on the consultative examination” yet the hypothetical omits Dr. Hassman's opinion that Martin requires occasional changes of position. The ALJ's hypothetical also stated Dr. Hassman's opinion as being that Martin could perform “a range of up to light work.” (AR 42.) However, Dr. Hassman's opinion is more appropriately characterized as being that Martin can perform “up to a reduced range of light work.” See AR 365-366 (opining that Martin has limitations in lifting, carrying, sitting, standing and walking as a result of “chronic mid back pain and low back pain secondary to thoracic spine fusion performed for scoliosis [and that] [c]laimant needs occasional change of position”).
The ALJ's failure to include the foregoing limitations opined by Dr. Hassman-an opinion that he found persuasive without qualification-in the hypothetical posed to the VE renders the VE's testimony lacking in evidentiary value. See Matthews, 10 F.3d at 681 (”If a vocational expert's hypothetical does not reflect all the claimant's limitations, then the ‘expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.' ” (quoting Delorme, 924 F.2d at 850)).
Reliability of the DOT
Assuming that the VE's testimony has evidentiary value-and the Court finds that it does not have evidentiary value for the reasons explained above-the Court also finds the that the ALJ erred in failing to address Martin's objection to the VE's reliance on the DOT. As mentioned above, the VE testified that there are three positions available in the national economy-marker, routing clerk and cafeteria attendant-that the hypothetical individual could perform. (AR 41.) At the second administrative hearing, the ALJ asked Martin if he had any questions for the VE and Martin replied:
CLMNT: Yeah, I do. I just don't get your statistics for the national statistics - I live in Arizona, where [I] live in a small town you know, and so those statistics of the whole country, so that doesn't really show anything. That's all I have to say.(AR 42.) Neither the VE nor the ALJ addressed Martin's objection. Id.
As recently recognized by the Ninth Circuit Court of Appeals, “VEs may use a wide range of data sources and methodologies to generate job-number estimates.” White v. Kijakazi, 44 F.4th 828, 834-35 (9th Cir. 2022) (citing Biestek v. Berryhill, 139 S.Ct. 1148, 1152-53 (2019) (describing different types of data sources VEs may use); Goode v. Comm'r of Soc. Sec., 966 F.3d 1277, 1284 (11th Cir. 2020) (describing several methods of job-numbers estimation VEs use)). “ALJs must inquire about, and VEs must explain, any inconsistencies between their testimony and the DOT, a principal source of occupational information for SSA.” White, 44 F.4th at 834 (citing Soc. Sec. Rul., SSR 00-4p, 65 Fed.Reg. 75759, 75760 (Dec. 4, 2000)). See also, Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007); Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir. 1989) (requiring ALJs to reject VE testimony that is inconsistent with the Medical-Vocational Guidelines).
In White, the Ninth Circuit Court of Appeals recognized that “[s]ome courts, particularly the Seventh Circuit, have criticized the SSA for continuing to rely on the DOT for estimates of available jobs in the national economy.” White, 44 F.4th at 835. “The Seventh Circuit recently observed that the DOT ‘was last revised thirty years ago, leaving many of its job descriptions outdated.' ” White, 44 F.4th at 835 (quoting Ruenger v. Kijakazi, 23 F.4th 760, 761-62 (7th Cir. 2022)). White also recognized that “the Eleventh Circuit recently noted, ‘[a]side from being three decades old, the DOT presents other difficulties.' ” White, 44 F.4th at 835 (quoting Goode, 966 F.3d at 1281). “Namely, the DOT does not provide statistical information for its job codes; instead, VEs must imperfectly cross-reference the codes with other occupational data sources.” White, 44 F.4th at 835 (citing Goode, 966 F.3d at 1281). See also, Ruenger, 23 F.4th at 762; Chavez v. Berryhill, 895 F.3d 962, 965 (7th Cir. 2018).
In White, the court of appeals explained that while VE testimony has been characterized as “inherently reliable” and “ordinarily sufficient by itself to support an ALJ's step-five finding[,]” a VE may “offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.” White, 44 F.4th at 835 (quoting Biestek, 139 S.Ct. at 1155-56). White held that under Biestek, “[t]he substantial evidence inquiry for VE testimony must proceed on a case-by-case basis, taking ‘into account all features of vocational expert's testimony, as well as the rest of the administrative record.' ” White, 44 F.4th at 835 (quoting Biestek, 139 S.Ct. at 1157).
Martin was unrepresented at the hearing. An ALJ has a “special duty to fully and fairly develop the record to assure that a claimant's interests are considered” particularly when a claimant is unrepresented. See e.g., Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). In light of White's recognition of the recent criticism of the reliability of the DOT for estimates of available jobs in the national economy and Martin's objection at the second administrative hearing that the numbers reflected in the DOT do not accurately reflect the availability jobs in his geographic area (to which neither the ALJ nor the VE responded), this Court finds that the Commissioner's burden at step five has not been met. This finding is in addition to this Court's finding that the hypothetical posed by the ALJ to the VE did not include all of Martin's opined limitations.
This Court is mindful that the issue of the accuracy of the available jobs as set out in the DOT was not raised in Martin's brief. However, the district court has the authority to consider an issue that is not raised in a claimant's brief sua sponte. See, e.g, Farley v. Colvin, 231 F.Supp.3d 335, 341 (N.D. Cal. 2017) (in considering an issue not raised in a claimant's brief, the district court recognized that the Ninth Circuit “will review an issue not present in an opening brief” for good cause shown, to prevent a manifest injustice, or where failure to raise the issue hasn't prejudiced the opposing party); AMP v. U.S. Comm'r Soc. Sec. Admin., No. 12-CV-0916, 2013 WL 3779203, at *3 (W.D. La. July 17, 2013) (holding “[t]he undersigned recognizes that this issue was not raised by Plaintiff, so the Commissioner did not get an opportunity to brief it, and there could be other material in the record that affects this view of the evidence. The Commissioner will have an opportunity to file objections to this report and recommendation and point to any such evidence. As it stands, it appears that the ALJ's decision is not supported by substantial evidence and must be reversed.”).
Remand is Appropriate
Upon finding the ALJ committed reversible error, the district court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). “Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). Martin seeks remand for further proceedings. (Doc. 15 at 6.)
This Court determines that remand to the Commissioner is appropriate. On remand, the ALJ should be directed to formulate an RFC that is consistent with Dr. Hassman's opinion-an opinion that the ALJ found persuasive. At a further administrative hearing, the VE must offer testimony based on a hypothetical that includes all of Dr. Hassman's opined limitations that the ALJ finds supported and persuasive. It is further recommended that the ALJ should be directed to address Martin's objection that the DOT statistics as testified to by the VE do not accurately reflect the number of jobs available.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court REVERSE the decision of the and remand the matter to the Commissioner for further administrative proceedings. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:23-cv-126-JAS.