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Hughey v. Colvin

United States District Court, D. Arizona

January 30, 2017

Levern Hughey, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          Douglas L. Rayes United States District Judge

         Plaintiff Lavern Hughey applied for disability insurance benefits in November 2011, claiming to be disabled since October 1, 2010. (AR 162-63.) The application was denied. (AR 70-110.) A hearing before an Administrative Law Judge (ALJ) was held on August 12, 2014, at which Plaintiff and a vocational expert (VE) testified. (AR at 41-61.)

         The ALJ issued a written decision on November 24, 2014, finding Plaintiff not disabled within the meaning of the Social Security Act. (AR 15-35.) This decision became Defendant's final decision when the Appeals Council denied review. (AR 1-13.)

         Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1.) After receipt of the administrative record, (Doc. 8), Plaintiff filed an opening brief and Defendant filed a response, (Docs. 9, 10). For reasons stated below, Defendant's decision is reversed and the case remanded for further proceedings.

         STANDARD OF REVIEW

         The district court reviews only those issues raised by the party challenging the Commissioner's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the decision only where it is based on legal error or not supported by substantial evidence. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla but less than a preponderance, and such relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the court must consider the entire record and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. Where, however, “the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         DISCUSSION

         Whether a claimant is disabled is determined using a five-step evaluation process. To establish disability, the claimant must show (1) he is not currently working, (2) he has a severe impairment, and (3) his impairment meets or equals a listed impairment or (4) his residual functional capacity (RFC) precludes him from performing past work. If the claimant meets his burden, the Commissioner must show at step five that the claimant is able to perform other work. 20 C.F.R. § 404.1520(a)(4)(i)-(v).

         Plaintiff has met his burden at steps one and two: he has not worked since the alleged date of disability and has severe depression, anxiety, learning disorder, and post-status lumbar fusion surgery. (AR 19-20.) The ALJ found at step three that Plaintiff has no impairment that meets or equals a listed impairment. (AR at 20-24.) The ALJ then determined that Plaintiff has the RFC to perform a limited range of light work and is able to understand, remember, and carry out simple instructions and non-detailed tasks. (AR at 24-31.) Based on this RFC and the testimony of the VE, the ALJ determined at step four that Plaintiff is not disabled because he can perform his past job as a gate guard. (AR 31-32.) It is this step four determination that Plaintiff challenges. (Doc. 9 at 1.)

         Plaintiff contends that the RFC finding conflicts with the description of the gate guard position in the Dictionary of Occupational Titles (DOT). The conflict, according to Plaintiff, is that the DOT description lists a General Educational Development (GED) reasoning level of three, which requires more reasoning ability than his RFC allows - that is, the ability to carry out only simple instructions and non-detailed tasks. (Id. at 7-8.) Plaintiff argues that the ALJ erred in relying on the testimony of the VE regarding the gate guard position without inquiring about the conflict with the DOT as required by Social Security Ruling 00-4p. (Id. at 1, 9-10.) Defendant counters that this argument is flawed because vocational factors such as education are not relevant at step four, and the ALJ therefore did not err in accepting the VE's testimony without further explanation and his decision otherwise is supported by substantial evidence. (Doc. 10 at 2-5.)

         The Court agrees with Plaintiff that the ALJ erred in relying on the VE's testimony without inquiring about, and seeking explanation of, the conflict between the testimony and the DOT.

         I. The VE's Testimony and Plaintiff's RFC Conflict with the DOT.

         There is no dispute that the VE's testimony and Plaintiff's RFC, as found by the ALJ, conflict with the DOT. The ALJ posed a hypothetical to the VE involving a claimant who, like Plaintiff, is “able to understand, remember, and carry out at least simple instructions and non-detailed tasks.” (AR 57.) When asked whether a person with those restrictions could return to any past work, the VE responded: “The gate guard ...


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