United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION NOTING DATE: JANUARY 12,
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE
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
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”).
AND PROCEDURAL HISTORY
August 22, 2013, Plaintiff filed an application for SSI,
alleging disability as of October 27, 2009. 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.
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.
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
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
Whether the ALJ properly reconciled a conflict between the
DOT and the VE's testimony.
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
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.
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 ...