United States District Court, D. Arizona
Marion A. McNeal, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Bernardo P. Velasco United States Magistrate Judge.
Marion A. McNeal has filed the instant action pursuant to 42
U.S.C. § 405(g) seeking review of the final decision of
the Commissioner of Social Security. (Doc. 1). The Magistrate
Judge has jurisdiction over this matter pursuant to the
parties' consent. (Doc. 8). See 28 U.S.C. §
636(c). Pending before the Court are Plaintiff's Opening
Brief (Doc. 12), Defendant's Brief (Doc. 13), and
Plaintiff's Reply Brief (Doc. 15). For the following
reasons, the Court remands this matter for further
2013, Plaintiff protectively filed an application for
disability insurance benefits, alleging that she had been
disabled since February 24, 2013 because of “[b]rain
surgery due to an aneurysm” and hypertension.
(Transcript/Administrative Record (“Tr.”) at 148,
165, 169). Plaintiff's application was denied initially
and upon reconsideration. (Tr. 92-99). Upon Plaintiff's
request for a hearing, Administrative Law Judge
(“ALJ”) Yasmin Elias held a hearing on September
30, 2015, where Plaintiff who was represented by counsel, and
vocational expert (“VE”) Lynda Berkley testified.
(Tr. 37-62, 100). On January 18, 2016, the ALJ issued her
decision denying Plaintiff's request for benefits. (Tr.
at 22-32). Thereafter, the Appeals Council denied
Plaintiff's request for review (Tr. at 1-6), making the
ALJ's decision the Commissioner's final decision for
purposes of judicial review. Plaintiff then initiated the
was born on August 13, 1954 and was 58 years of age on her
alleged onset date. (Tr. at 148, 42). Plaintiff completed
high school and two years of college. (Tr. at 50). Plaintiff
worked in quality control for a defense contractor from 1995
through 2010. (Tr. at 50, 179). Prior to that, she worked as
a warehouse I.D. specialist from March 1982 to May 1995. (Tr.
at 179). Plaintiff stopped working in 2010 because she
retired due to years of service and not because of any
medical condition. (Tr. at 169, 325).
February 2013, Plaintiff was found to have an aneurysmal
subarachnoid hemorrhage. (Tr. at 260, 276-77, 411). Her
symptoms were severe headaches, nausea, and vomiting. (Tr. at
264, 276). On March 8, 2013, neurosurgeon Joseph M.
Zambraski, M.D., performed a right orbital zygomatic clipping
of the aneurysm. (Tr. at 411, 415).
asserts that she has been unable to work since February 24,
2013 due to lack of concentration because she cannot
“stay focused on one thing too long. I just do a
little of this and maybe a little of that. I can't do no
one job and finish it out yet.” (Tr. at 46). She is
unable to comprehend things she reads or follow
conversations. (Tr. 52-53). She is forgetful and gets lost
easily. (Tr. at 53). Plaintiff also experiences frequent mood
changes and becomes overwhelmed “when I get so much
thrown at me . . . .” (Tr. at 55). Plaintiff tires
easily. (Tr. at 176). She also becomes dizzy if she turns her
head too quickly. (Tr. at 176). Additionally, due to a car
accident prior to the hearing, Plaintiff has difficulty
sitting for long periods and experiences pain in her lower
pelvic area when walking. (Tr. at 48).
The ALJ's Decision
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R. § 404.1520.
To establish disability, the claimant must show that: (1) she
has not performed substantial gainful activity since the
alleged disability onset date (“Step One”); (2)
she has a severe impairment(s) (“Step Two”); and
(3) her impairment(s) meets or equals the listed
impairment(s) (“Step Three”). Dominguez v.
Colvin, 808 F.3d 403, 405 (9th Cir. 2016). If the
claimant satisfies Steps One through Three, then she is
disabled and entitled to benefits. Id. If the
claimant has a severe impairment that does not meet or equal
the severity of one of the ailments listed, the ALJ then
proceeds to Step Four, which requires the ALJ to determine
the claimant's residual functioning capacity
(RFC). Id. After developing the RFC, the
ALJ must determine whether the claimant can perform past
relevant work. Id. If the claimant cannot perform
past relevant work, then the analysis proceeds to Step Five
where the government has the burden of showing that the
claimant could perform other work existing in significant
numbers in the national economy given the claimant's RFC,
age, education, and work experience. Id.
The ALJ's Findings in Pertinent Part
determined that Plaintiff “has the following severe
impairments: benign brain neoplasm and organic brain
disorder[.]” (Tr. at 24). The ALJ found that Plaintiff
had the RFC
to perform medium work as defined in 20 CFR 404.1567(c)
except claimant could never climb ladders, ropes or
scaffolds. Claimant should avoid moderate exposure to
workplace hazards such as moving machinery and unprotected
heights. Claimant could perform simple routine and repetitive
tasks in a slow-paced and stable work environment.
(Tr. 26). Based upon the vocational expert's testimony at
the hearing, the ALJ determined that Plaintiff was unable to
perform her past work as a quality-control assembly
technician. (Tr. 30). The ALJ further relied on the VE's
testimony to determine that Plaintiff would be able to
perform other work such as: janitor, Dictionary of
Occupational Titles (“DOT”) No.
381.687-018; laundry worker; DOT No. 361.685- 018;
and housekeeper, DOT No. 323.687-010. (Tr. 31).
Therefore, the ALJ found that Plaintiff was not disabled
under the Social Security Act from February 24, 2013 through
the date of the ALJ's decision. (Id.).
argues that the ALJ failed to comply with Social Security
Ruling(“SSR”) 00-4P with regard to
vocational expert testimony, and that the ALJ failed to
provide legally sufficient reasons for rejecting the opinion
of Plaintiff's treating physician. Defendant requests
affirmance of the ALJ's decision.
Court has the “power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. §405(g). The factual
findings of the Commissioner shall be conclusive so long as
they are based upon substantial evidence and there is no
legal error. 42 U.S.C. §§ 405(g); Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court
may “set aside the Commissioner's denial of
disability insurance benefits when the ALJ's findings are
based on legal error or are not supported by substantial
evidence in the record as a whole.” Tackett v.
Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations
evidence is “‘more than a mere scintilla[, ] but
not necessarily a preponderance.'”
Tommasetti, 533 F.3d at 1038 (quoting Connett v.
Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see
also Tackett, 180 F.3d at 1098. Further, substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Where “the evidence can support either outcome, the
court may not substitute its judgment for that of the
ALJ.” Tackett, 180 F.3d at 1098 (citing
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992)). Moreover, the Commissioner, not the court, is charged
with the duty to weigh the evidence, resolve material
conflicts in the evidence and determine the case accordingly.
Matney, 981 F.2d at 1019. However, “the
Commissioner's decision ‘cannot be affirmed simply
by isolating a specific quantum of supporting
evidence.'” Tackett, 180 F.3d at 1098
(quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
Cir.1998)). Rather, the court must consider the record as a
whole, weighing both evidence that supports and evidence that
detracts from the Commissioner's conclusion, and may not
affirm simply by isolating a specific quantum of supporting
evidence. Id.; Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014). The court shall “review only the
reasons provided by the ALJ in the disability determination
and may not affirm the ALJ on a ground upon which he did not
rely.” Garrison, 759 F.3d at 1010.
The ALJ's reliance on vocational expert
contends that the ALJ's decision as Step Five, which
rests on the three DOT occupations cited by the VE
is not supported by substantial evidence in the record
According to Plaintiff, the VE's testimony conflicted
with the DOT. In cases where the VE's testimony
conflicts with the DOT, the ALJ is required by SSR 00-4P to
obtain a reasonable explanation from the VE for those
conflicts. Plaintiff asserts that the instant ALJ failed to
comply with SSR 00-4P.
VE's “opinion that the applicant is able to work
conflicts with, or seems to conflict with, the requirements
listed in the Dictionary [of Occupational
Titles], then the ALJ must ask the expert to reconcile
the conflict before relying on the expert to decide if the
claimant is disabled.” Gutierrez v. Colvin,
844 F.3d 804, 807 (9th Cir. 2016) (citing SSR 00-4P, 2000 WL
1898704, at *2 (2000)); see also Zavalin v.
Colvin, 778 F.3d 842, 846 (9th Cir. 2015)
(“the ALJ is required to reconcile the
inconsistency.”). “The ALJ's failure to
resolve an apparent inconsistency may leave . . . [the court]
with a gap in the record that precludes . . . [the court]
from determining whether the ALJ's decision is supported
by substantial evidence.” Zavalin, 778 F.3d at
846 (remanding for further proceedings where ALJ failed to
reconcile apparent conflict, leaving the court with a
“mixed record” from which it could not determine
whether substantial evidence supported the ALJ's
step-five finding that claimant could work). The Ninth
Circuit has noted that “tasks that aren't
essential, integral, or expected parts of a job are less
likely to qualify as apparent conflicts that the ALJ must ask
about.” Gutierrez, 844 F.3d at 808. Thus,
“[t]he requirement for an ALJ to ask follow up
questions is fact-dependent.” Id.
the ALJ asked the VE to identify any conflict between her
testimony and the DOT. (Tr. at 56). The VE did not
identify any such conflict during her testimony (Tr. at
56-61), although she did explain that “pace” was
not discussed in the DOT and that her testimony
concerning that issue “is based on my professional
experience having done job analyses on these jobs and
observed how they're performed. And then in addition, the
essence of the type of work and the duties as described in
the DOT.” (Tr. at 59). The ALJ found, “[p]ursuant
to SSR 00-4[P], . . . that ...