United States District Court, D. Arizona
ORDER
Douglas L. Rayes, United States District Judge
Plaintiff
Kimberly Lyons applied for a period of disability and
disability insurance benefits, alleging disability beginning
April 1, 2012. After state agency denials, Lyons appeared for
a hearing before an administrative law judge
(“ALJ”). A vocational expert (“VE”)
also was present and testified. Following the hearing, the
ALJ issued a written decision finding that Lyons was not
disabled within the meaning of the Social Security Act
(“SSA”). The ALJ's decision became the
agency's final decision after the Social Security
Administration Appeals Council denied Lyons' request for
review. Lyons now seeks judicial review of that decision. For
the following reasons, the decision of the Commissioner of
Social Security Administration is reversed and this matter
remanded for further proceedings.
I.
Background
To
determine whether a claimant is disabled for purposes of the
SSA, the ALJ follows a five-step process. 20 C.F.R. §
404.1520(a). The claimant bears the burden of proof on the
first four steps, but at step five, the burden shifts to the
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999). At the first step, the ALJ determines
whether the claimant is engaging in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the
claimant is not disabled and the inquiry ends. At step two,
the ALJ determines whether the claimant has a
“severe” medically determinable physical or
mental impairment. § 404.1520(a)(4)(ii). If not, the
claimant is not disabled and the inquiry ends. At step three,
the ALJ considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.
404. § 404.1520(a)(4)(iii). If so, the claimant is
automatically found to be disabled. If not, the ALJ goes to
step four. At step four, the ALJ assesses the claimant's
residual functional capacity (“RFC”) and
determines whether the claimant is still capable of
performing past relevant work. § 404.1520(a)(4)(iv). If
so, the claimant is not disabled and the inquiry ends. If
not, the ALJ goes to the fifth and final step, when she
determines whether the claimant can perform any other work
based on the claimant's RFC, age, education, and work
experience. § 404.1520(a)(4)(v). If so, the claimant is
not disabled. If not, the claimant is disabled.
At step
one, the ALJ determined that Lyons meets the insured status
requirements of the SSA through March 31, 2018, and has not
engaged in substantial gainful activity since her alleged
disability onset date. (A.R. 43.) The ALJ found at step two
that Lyons' seizure disorder, anxiety disorder,
posttraumatic stress disorder,
attention-deficit/hyperactivity disorder, and major
depressive disorder are severe impairments, but concluded at
step three that they do not meet or medically equal the
severity of an impairment listed in Appendix 1 to Subpart P
of 20 C.F.R. Pt. 404. (Id. at 43-44.) At step four,
the ALJ found that Lyons has the RFC to perform
a full range of work at all exertional levels but with the
following nonexertional limitations: she must avoid moderate
exposure to hazards including unprotected heights and moving
machinery. She is unable to perform jobs that primarily
consist of driving. She can understand, remember, and carry
out simple instructions and perform simple, routine, and
repetitive tasks. She can tolerate occasional changes in the
work setting. Socially, she can tolerate occasional
superficial interaction with coworkers, occasional direct and
concrete supervision, occasional indirect public contact, and
no contact with crowds.
(Id. at 45.) Based on this RFC, the ALJ found that
Lyons is unable to perform her past relevant work as a public
relations representative and marketing director.
(Id. at 49.) At step five, however, after
considering Lyons' age, education, work experience, and
RFC, the ALJ concluded that there are jobs that exist in
significant numbers in the national economy that Lyons can
perform. (Id. at 49-50.) Thus, the ALJ found that
Lyons is not disabled within the meaning of the SSA.
(Id. at 50.)
II.
Standard of Review
It is
not the district court's role to review the ALJ's
decision de novo or otherwise determine whether the claimant
is disabled. Rather, the court is limited to reviewing the
ALJ's decision to determine whether it “contains
legal error or is not supported by substantial
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007). Substantial evidence is more than a
scintilla, less than a preponderance, and relevant evidence
that a reasonable person might accept as adequate to support
a conclusion considering the record as a whole. Id.
As a general rule, “[w]here 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). The court, however, “must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn, 495 F.3d at 630 (internal
quotations and citation omitted). Nor may the court
“affirm the ALJ on a ground upon which he did not
rely.” Id.
III.
Discussion
Lyons
challenges only step five of the ALJ's determination,
arguing that the ALJ committed reversible error by finding
(1) 50, 789 Used Car Lot Porter (“UCLP”) jobs
nationwide despite the VE's testimony that 15, 789 jobs
are available and (2) Lyons is capable of working as a
Microfilm Document Preparer (“MDP”) even though
the demands of that job conflict with her RFC. The
Commissioner concedes both errors, but argues that the errors
are harmless because they were “inconsequential to the
ultimate nondisability determination.” (Doc. 13 at 3.)
As to
the first error, the Commissioner argues that the discrepancy
between the ALJ's decision and the VE's testimony is
likely a typographical error, but in any event is harmless
because 15, 789 is a significant number of jobs. The
Commissioner bears the burden at step five of proving that
there are “significant numbers” of alternative
jobs available for the claimant in light of her residual
functional capacity. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§ 404.1512(b)(3). Here, the evidence shows that 15, 789
UCLP jobs exist in the national economy, but the ALJ made no
finding as to whether 15, 789 is a significant number. The
ALJ's inaccurate reference to 50, 789 jobs possibly is a
typographical error, but the Court cannot be certain on a
paper record and, critically, this step in the sequential
evaluation process is one at which the Commissioner bears the
burden of proof. Nor is the Court confident, without an
express finding by the ALJ, that 15, 789 nationwide jobs are
“significant” as a matter of law. Although the
Ninth Circuit has found that 25, 000 jobs nationally
constitute a significant number, see Gutierrez v.
Comm'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir.
2014), nearly 10, 000 fewer jobs are at issue
here.[1] Under the circumstances, the Court
concludes that the wiser course of action is to permit the
ALJ in the first instance to weigh in on whether 15, 789 is a
significant number of jobs.
As to
the second error, Defendant concedes that the MDP occupation,
which requires a GED reasoning level of 3, see
Dictionary of Occupational Titles Code 249.587-018, is
inconsistent with Lyons' RFC limitation to simple,
routine, and repetitive tasks. The ALJ therefore had a duty
to address this inconsistency before relying on the VE's
testimony. Massachi v. Astrue, 486 F.3d 1149,
1153-54 (9th Cir. 2007). Although the ALJ asked the VE if his
testimony was “consistent with the [DOT], ” the
ALJ's duty does not end there. (A.R. 102.) The ALJ
instead must “elicit a reasonable explanation for [a]
conflict” and resolve it by “determining if the
explanation . . . provides a basis for relying on the [VE]
testimony rather than on the DOT information.” SSR
00-4p, 2000 WL 1898704, at *2-4. The ALJ did not do so here.
The
Commissioner argues that this error is harmless because the
availability of a significant number of UCLP jobs provides a
sufficient basis for affirming the ALJ's decision. But,
as previously noted, the Court finds that the ALJ's error
in assessing the number of UCLP jobs available is not
harmless. Accordingly, on remand the ALJ should also take
appropriate steps to resolve the conflict between the
VE's testimony and the DOT's definition of the MDP
position. Indeed, the record shows that 45, 236 MDP positions
exist across the country. (A.R. 50.) A proper resolution of
the ...