United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE.
Plaintiff
Thomas Paul Solomon, Sr. (“Solomon”) seeks review
under 42 U.S.C. § 405(g) of the final decision of the
Acting Commissioner of Social Security
(“Commissioner”), which denied his application
for disability benefits and supplemental security income. For
the following reasons, the Court finds that the
administrative law judge's (“ALJ”) decision
was based on reversible legal error and remands for further
proceedings.
Solomon
is a 66-year-old male who previously worked as a civil
engineer. This is Solomon's second application for
disability benefits. His first application, which alleged a
disability onset date in August 2009, was denied by written
decision on October 19, 2011 (A.R. 105-120) and became the
Commissioner's final decision. In February 2012, Solomon
filed a second application for disability benefits (A.R.
327-338), which gives rise to this case. Solomon alleges he
became disabled in October 2011. The claim was denied
initially on October 9, 2012 (A.R. 121) and again upon
reconsideration on June 25, 2013 (A.R. 134). Solomon then
filed a written request for hearing on July 20, 2013. (A.R.
212- 213.) On February 26, 2014, he appeared and testified at
a hearing at which an impartial vocational expert also
appeared and testified. (A.R. 47-82.) On May 28, 2014, the
ALJ issued a decision concluding that Solomon was not
disabled within the meaning of the Social Security Act. (A.R.
174-193.) Solomon requested the Appeals Council review the
decision, and on February 5, 2015, the Appeals Council
granted his request and remanded the case to the ALJ. (A.R.
194-197.) The ALJ conducted a new hearing on July 7, 2016
(A.R. 83-104) and issued a decision again determining that
Solomon wasn't disabled (A.R. 18-46). Solomon requested
review of the ALJ's decision, but the Appeals Council
denied review on December 4, 2017. (A.R. 1-7.) At that point,
the ALJ's decision became the Commissioner's final
decision.
LEGAL
STANDARD
The
Court addresses only the issues raised by the claimant in the
appeal from the ALJ's decision. Lewis v. Apfel,
236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is
responsible for determining credibility, resolving conflicts
in medical testimony, and resolving ambiguities.”
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001), as amended on reh'g (Aug. 9, 2001). The
Court should uphold the ALJ's decision “unless 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
mere scintilla but less than a preponderance.”
Id. Put another way, “[i]t is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation omitted).
The Court should uphold the ALJ's decision “[w]here
evidence is susceptible to more than one rational
interpretation, ” but the Court “must consider
the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.”
Id. (citations and internal quotation marks
omitted).
“[H]armless
error principles apply in the Social Security Act
context.” Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012). “[A]n ALJ's error is harmless
where it is inconsequential to the ultimate nondisability
determination.” Id. (citations and internal
quotation marks omitted). The Court must “look at the
record as a whole to determine whether the error alters the
outcome of the case.” Id. Importantly,
however, the Court may not uphold an ALJ's decision on a
ground not actually relied on by the ALJ. Id. at
1121.
To
determine whether a claimant is disabled for purposes of the
Social Security Act, 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, and the burden shifts to the
Commissioner at step five. 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.
Id. At step two, the ALJ determines whether the
claimant has a “severe” medically determinable
physical or mental impairment. Id. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. 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. Id. § 404.1520(a)(4)(iii). If so, the
claimant is automatically found to be disabled. Id.
If not, the ALJ proceeds to step four. At step four, the ALJ
assesses the claimant's residual functional capacity
(“RFC”) and determines whether the claimant is
capable of performing past relevant work. Id. §
404.1520(a)(4)(iv). If so, the claimant is not disabled and
the inquiry ends. Id. If not, the ALJ proceeds to
the fifth and final step, which addresses whether the
claimant can perform any other work based on the
claimant's RFC, age, education, and work experience.
Id. § 404.1520(a)(4)(v). If so, the claimant is
not disabled. Id. If not, the claimant is disabled.
BACKGROUND
At step
one, the ALJ determined that Solomon met the insured status
requirements of the Social Security Act through December 31,
2015 and had not engaged in substantial gainful activity
since October 20, 2011. (A.R. 25.) At step two, the ALJ found
that Solomon had the following severe impairments: lumbar and
cervical degenerative disc disease, status post right hip
replacement, and bilateral shoulder degenerative joint
disease with right shoulder surgery. (Id.) The ALJ
acknowledged the record also contained evidence of status
post pulmonary embolism and deep venous thrombosis, status
post hernia repair, status post left knee surgery, possible
irritable bowel syndrome, anxiety, and depression, but found
these were not severe impairments. (A.R 25-27.) At step
three, the ALJ determined that Solomon didn't have an
impairment or combination of impairments that meets or
medically equals the severity of a listed impairment. (A.R.
27-28.) At step four, the ALJ determined that Solomon had the
RFC to perform sedentary work, except that he is limited to
occasionally overhead reaching bilaterally, occasionally
climbing ramps and stairs, and occasionally balancing,
stooping, crouching, kneeling, and crawling. (A.R. 28-35.)
Further, the ALJ determined Solomon can never climb ladders,
ropes, or scaffolds. (Id.) The ALJ found Solomon
wasn't capable of performing his past relevant work, but
that Solomon had obtained skills from his past work that were
transferable to the occupation of project estimator. (A.R.
35-36.) The ALJ concluded Solomon would need to make
“very little, if any, vocational adjustment, ”
such that, at most, he would have a one- to three-month
adjustment period. (Id.)
This
Social Security appeal is unusual in that Solomon doesn't
challenge the ALJ's rejection of his symptom testimony or
the ALJ's decision to assign “little weight”
to the opinion of his treating physician.[1] Instead, he
argues the ALJ erred by (1) improperly concluding that
“very little, if any, vocational adjustment”
would be required for him to perform the job of project
estimator and (2) failing to include his mental limitations
in the RFC or the hypothetical question posed to the
vocational expert. (Doc. 16.)
As
explained below, the Court disagrees with Solomon as to the
first issue but agrees as to the second.
DISCUSSION
I.
Whether The ALJ Committed Reversible Error By Concluding
That “Very Little, If Any, Vocational Adjustment”
Would Be Required
A.
The ...