United States District Court, W.D. Washington, Tacoma
WENDEI L. P., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER DECLINING TO ADOPT THE REPORT AND
RECOMMENDATION, REVERSING THE COMMISSIONER'S DECISION,
AND REMANDING FOR FURTHER PROCEEDINGS
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable
Michelle Peterson, United States Magistrate Judge, Dkt. 16,
and Plaintiff's objections to the R&R, Dkt. 17.
24, 2019, Judge Peterson issued the R&R recommending that
the Court affirm the Administrative Law Judge's
(“ALJ”) partial denial of Plaintiff's request
for benefits. Dkt. 16. On May 31, 2019, Plaintiff filed
objections. Dkt. 17. On June 10, 2019, the Government
objected. Dkt. 18.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
case, Plaintiff objects to two conclusions in the R&R.
The second objection is dispositive, so the Court will not
address the first one. Plaintiff objects to the R&R's
conclusion regarding the apparent conflict between the
vocational expert's (“VE”) opinion and the
Dictionary of Occupational Titles (“DOT”). Dkt.
17 at 2-3. The ALJ concluded in part that Plaintiff
“can perform low-stress work, which is defined as work
requiring few decisions and few changes throughout the
workday. She can have frequent contact with co-workers and
the public.” Dkt. 8-2 at 24. The VE then concluded that
Plaintiff could work as a Reservation Agent, DOT
#238.367-018. Id. at 36. The DOT, however, provides
in part as follows:
The work performed by reservation and transportation ticket
agents and travel clerks may be repetitive and stressful.
They often work under stringent time constraints. Agents and
clerks must work quickly and accurately to avoid mistakes and
angering customers. Difficult or angry customers also can
create stressful situations as agents usually bear the brunt
of customers' dissatisfaction.
Dkt. 8-4 at 81. Thus, a discrepancy exists between the
ALJ's conclusion that Plaintiff was limited to low-stress
work and the DOT's job description that work as a
reservation agent “may be repetitive and
stressful.” The R&R dismisses the issue by stating
that the ALJ specifically included the low-stress limitation
in his question to the VE and that “Plaintiff cites no
authority requiring the ALJ to inquire further, and the Court
is not aware of any.” Dkt. 16 at 15. The Government
provided the law to the Court in its response to
Plaintiff's objections. Dkt. 18 at 3 (citing
Mickelson-Wurm v. Comm'r Soc. Sec. Admin., 285
Fed.Appx. 482, 486 (9th Cir. 2008)).
the DOT raises a presumption as to the job classification, it
is rebuttable.” Johnson v. Shalala, 60 F.3d
1428, 1435 (9th Cir. 1995). “SSR 00-4p requires an ALJ
to provide a reasonable explanation for any conflicts between
occupational evidence furnished by a vocational expert and
information in the DOT. The ALJ must clarify the discrepancy
in the opinion only where there is an apparent unresolved
conflict that arises between the vocational expert's
testimony and the DOT.” Mickelson-Wurm, 285
Fed.Appx. at 486. “An ALJ may rely on expert testimony
which contradicts the DOT [so long as] as the record contains
persuasive evidence to support the deviation.”
Johnson, 60 F.3d at 1435-36.
case, there is no persuasive evidence to support the VE's
deviation from the DOT. Although the ALJ and the VE discussed
numerous hypotheticals involving handling, walking, and
frequent absences, they did not specifically discuss or probe
the “low-stress” limitation. Dkt. 8-2 at 75-83.
Instead, in the fourth hypothetical, the ALJ altered the
original limitation of “occasional contact with the
public and co-workers” to frequent contact.
Id. at 76, 79. The VE answered that they
“might need to start over, ” but the ALJ said
“no” and pressed the VE for an answer.
Id. at 79. After some time, the VE stated that
Plaintiff could work as a reservation agent. Id. In
Johnson, the court concluded that the DOT
presumption was rebutted because “there was persuasive
testimony of available job categories in the local rather
than the national market, and testimony matching the specific
requirements of a designated occupation with the specific
abilities and limitations of the claimant.”
Johnson, 60 F.3d at 1435. Here, the testimony is not
specific as to the challenged stress limitation. Although the
Government argues that the VE addressed the low-stress
limitation, Dkt. 14 at 15-16, it cites a conclusory statement
at the end of the VE's testimony stating that this
limitation was “talked about, ” Dkt. 8-2 at 82.
The Court rejects the Government's argument because a
conclusory statement that a limitation was discussed at some
point in the VE's testimony is not specific testimony to
overcome the presumption set forth in the DOT. Therefore, the
Court having considered the R&R, Plaintiff's
objections, and the remaining record, does hereby find and
order as follows:
(1) The Court DECLINES to ADOPT the R&R;
(2) The Commissioner's final decision denying Plaintiff
disability benefits is REVERSED;
(3) This case is REMANDED for further
administrative proceedings under sentence four of 42 U.S.C.