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Wyatt v. Berryhill

United States District Court, W.D. Washington, Tacoma

December 22, 2017

CECILIA WYATT, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION NOTING DATE: JANUARY 12, 2018

          DAVID W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE

         The District Court has referred this action, filed pursuant to 42 U.S.C. § 405(g), to United States Magistrate Judge David W. Christel. Plaintiff Cecilia Wyatt filed this matter seeking judicial review of Defendant's denial of her application for supplemental security income (“SSI”).

         After considering the record, the undersigned concludes the Administrative Law Judge (“ALJ”) erred by relying on testimony from a vocational expert (“VE”) despite a conflict between the VE's testimony and the Dictionary of Occupational Titles (“DOT”). The ALJ also erred by asking the VE a hypothetical question that did not reflect all of Plaintiff's limitations and relying on the VE's subsequent testimony. The ALJ's errors are therefore not harmless, and the undersigned recommends this matter be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”).

         FACTUAL AND PROCEDURAL HISTORY

         On August 22, 2013, Plaintiff filed an application for SSI, alleging disability as of October 27, 2009.[1] See Dkt. 9, Administrative Record (“AR”) 13. The application was denied upon initial administrative review and on reconsideration. AR 13. ALJ Cynthia D. Rosa held a hearing on December 12, 2014. AR 39-66. In a decision dated April 11, 2015, the ALJ determined Plaintiff to be not disabled. AR 13-32. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. AR 1-5; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred in how she questioned the VE with respect to (1) Plaintiff's limitation to simple, routine tasks; and (2) Plaintiff's limitation that she should have the option to alternate between sitting and standing every 20 minutes. Dkt. 11, pp. 1, 3-12.

         On October 20, 2017, the Court ordered supplemental briefing, directing the parties to address recent case law relevant to DOT and VE conflicts, as well as an issue related to harmless error. Dkt. 16. Plaintiff and Defendant timely provided supplemental briefing. See Dkt. 17, 18. The matter became ready for the Court's consideration on November 27, 2017.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ properly reconciled a conflict between the DOT and the VE's testimony.

         Plaintiff argues the ALJ erred when she found there was no conflict between the VE's testimony that Plaintiff could perform the occupation of document preparer and Plaintiff's residual functional capacity (“RFC”) limitation to simple, routine tasks. Dkt. 11, pp. 7-12 (citing Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015)). Specifically, Plaintiff contends that because her RFC limits her to simple, routine tasks, she cannot perform work as a document preparer, which the DOT assigns a General Education Development (“GED”) score of Level 3 Reasoning. Id.

         In determining whether a claimant is disabled, an ALJ may consult various sources, including the DOT and a VE. Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017). “Presumably, the opinion of the VE would comport with the DOT's guidance.” Id. If, however, the VE's opinion that the claimant can work “conflicts with, or seems to conflict with, the requirements listed in the [DOT], ” the ALJ has an obligation to ask the VE to reconcile the conflict before relying on the VE's testimony. Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (citing Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704, at *2 (2000)); see also Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). The ALJ's obligation to reconcile a conflict is triggered only where the conflict is “obvious or apparent.” Gutierrez, 844 F.3d at 808. To be an obvious or apparent conflict, the VE's testimony “must be at odds with the [DOT's] listing of job requirements that are essential, integral, or expected.” Id.

         Thus, the Court's inquiry in a case with an alleged DOT and VE conflict has two-steps: First, was there a conflict between the VE's testimony and the DOT that the ALJ was obligated to reconcile? See Id. Second, if there was a conflict, did the ALJ properly reconcile that ...


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