when an ALJ fails to ask a VE about conflicts with the DOT it may be harmless if there is no conflict or if the vocational 19 evidence justifies the conflict.
How later courts described this case
- when an ALJ fails to ask a VE about conflicts with the DOT it may be harmless if there is no conflict or if the vocational 19 evidence justifies the conflict.
- holding 1 that, where the record does not reflect whether the vocational expert or ALJ even recognized a possible conflict between the ALJ’s hypothetical 2 and the DOT listing, the case should be remanded for further proceedings
- residual functional capacity reflects current “physical and mental capabilities”
- approving rejection of a third-party family member’s testimony, which was similar to 8 the claimant’s, for the same reasons given for rejection of the claimant’s complaints
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 KATHRYN DIANE TORRES, No. 2:18-CV-2908-DMC
12 Plaintiff,
13 v. MEMORANDUM OPINION AND ORDER
14 COMMISSIONER OF SOCIAL
SECURITY,
15
Defendant.
16
17
18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial
19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).
20 Pursuant to the written consent of all parties, see ECF Nos. 8 and 9, this case is before the
21 undersigned as the presiding judge for all purposes, including entry of final judgment, see 28
22 U.S.C. § 636(c). Pending before the court are the parties’ briefs on the merits. See ECF Nos. 20
23 and 24.
24 The Court reviews the Commissioner’s final decision to determine whether it is:
25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a
26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support
1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must
3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s
5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the
8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of
10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th
13 Cir. 1988).
14 For the reasons discussed below, the Commissioner’s final decision is affirmed.
15
16 I. THE DISABILITY EVALUATION PROCESS
17 To achieve uniformity of decisions, the Commissioner employs a five-step
18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.
19 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:
20 Step 1 Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
21 not disabled and the claim is denied;
22 Step 2 If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
23 impairment; if not, the claimant is presumed not disabled
and the claim is denied;
24
Step 3 If the claimant has one or more severe impairments,
25 determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
26 if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;
27
28 ///
1 Step 4 If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
2 claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
3 is presumed not disabled and the claim is denied;
4 Step 5 If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
5 residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
6 national economy; if so, the claimant is not disabled and
the claim is denied.
7
See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).
8
9 To qualify for benefits, the claimant must establish the inability to engage in
10 substantial gainful activity due to a medically determinable physical or mental impairment which
11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42
12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental
13 impairment of such severity the claimant is unable to engage in previous work and cannot,
14 considering the claimant’s age, education, and work experience, engage in any other kind of
15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,
16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence
17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
18 The claimant establishes a prima facie case by showing that a physical or mental
19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753
20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant
21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant
22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d
23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock
24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).
25 ///
26 ///
27 ///
28 ///
1 II. THE COMMISSIONER’S FINDINGS
2 Plaintiff applied for social security benefits on January 11, 2012. See CAR 24.1
3 In the application, plaintiff claims her disability began on June 10, 2011. See id. Plaintiff’s claim
4 was initially denied. Following denial of reconsideration, plaintiff requested an administrative
5 hearing, which was held on April 26, 2013, before Administrative Law Judge (ALJ) L. Kalei
6 Fong. Id. Plaintiff’s claim was denied and she appealed the decision to the federal court, which
7 remanded the case to the agency for rehearing. See CAR 643.
8 Plaintiff had a rehearing before ALJ Carol Buck on April 17, 2018. In an August
9 9, 2018, decision, the ALJ concluded plaintiff was not disabled until August 13, 2014, based on
10 the following relevant findings:
11 1. Since the alleged onset date of disability, June 10, 2011, the
claimant has the following severe impairment(s): lumbar
12 degenerative disc disease, irritable bowel syndrome, and obesity;
13 2. Since the alleged onset date of disability, June 10, 2011, the
claimant has not had an impairment or combination of impairments
14 that meets or medically equals the severity of the one of the listed
impairments in the regulations;
15
3. Since June 10, 2011, the claimant has the residual functional
16 capacity to perform sedentary work except she can lift 11 to 20
pounds occasionally and 10 pounds frequently. She can carry no
17 more than 20 pounds occasionally and 10 pounds frequently but no
more than 4 hours per day. She requires a cane or walker for
18 distances of more than 1 block and can less than occasionally
ambulate on uneven surfaces. She can stand/walk 1 hour at a time
19 and a total of 4 hours in an 8-hour day. She can sit up to 6 hours in
an 8-hour day in 2-hour increments. She can reach overhead
20 bilaterally with the upper extremities and occasionally operate foot
controls. She can occasionally climb ramps and stairs, stoop, and
21 kneel. She cannot crawl or crouch. She must avoid hazards, heavy
industrial vibrations, and extreme heat and cold. She requires a
22 restroom within 200 feet of her work area and 1 extra bathroom
break lasting up to 5 minutes in addition to her regular breaks;
23
4. Prior to August 13, 2014, the date the claimant’s age category
24 changed, considering the claimant’s age, education, work
experience, residual functional capacity, and vocational expert
25 testimony, there were jobs that existed in significant numbers in
the national economy that the claimant could have performed.
26
27
1 Citations are the to the Certified Administrative Record (CAR) lodged on June 19,
28
1 5. Beginning on August 13, 2014, the date the claimant’s age
category changed, considering claimants age, education, work
2 experience, residual functional capacity, vocational expert
testimony, and the Medical-Vocational Guidelines, there are no
3 jobs that exist in the national economy that claimant could
perform.
4
6. The claimant was not disabled prior to August 13, 2014, but
5 became disabled on that date and has continued to be disabled
through the date of this decision.
6
See id. at 643-656.
7
8 After the Appeals Council declined review on December 28, 2015, this appeal followed.
9
10 III. DISCUSSION
11 In her motion for summary judgment, plaintiff argues: (1) the ALJ did not provide
12 clear and convincing reasons to discredit plaintiff’s testimony about the severity of her diarrhea
13 symptoms; (2) the ALJ did not give proper weight to the testimony of plaintiff’s home support
14 aide; (3) the ALJ did not properly account for plaintiff’s frequent and unscheduled bathroom
15 breaks when assessing plaintiff’s residual functional capacity; and (4) the vocational expert’s
16 testimony regarding the availability of jobs is flawed because it is predicated on a faulty residual
17 functional capacity assessment and the ALJ failed to ask if the vocational expert’s testimony was
18 consistent with the Dictionary of Occupational Titles.2
19 A. Credibility Assessment
20 At Step 4, the ALJ assessed the credibility of plaintiff’s testimony regarding her
21 diarrhea symptoms while evaluating plaintiff’s residual functional capacity. See CAR 648. The
22 Commissioner determines whether a disability applicant is credible, and the court defers to the
23 Commissioner’s discretion if the Commissioner used the proper process and provided proper
24 reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit credibility finding
25
2 Plaintiff does not challenge the ALJ’s evaluation of the various medical opinions
26 of record. In this regard, the hearing decision reflects that the ALJ gave “partial weight” opinions
offered by Drs. Eskander and Saphir, agency reviewing physician, “partial weight” to the
27 opinions offered by Dr. Orillosa, the agency consultative examining physician, and “great
weight” to the opinions offered by Dr. Thomson, a medical expert who testified at the second
28
1 must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th
2 Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
3 1995). Rather, the Commissioner must identify what testimony is not credible and what evidence
4 undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of
5 malingering, the Commissioner’s reasons for rejecting testimony as not credible must be “clear
6 and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir.
7 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart,
8 464 F.3d 968, 972 (9th Cir. 2006)).
9 If there is objective medical evidence of an underlying impairment, the
10 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely
11 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d
12 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:
13 The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
14 objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
15 the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
16 be a reasonable inference, not a medically proven phenomenon.
17 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).
18
19 The Commissioner may, however, consider the nature of the symptoms alleged,
20 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,
21 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the
22 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent
23 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a
24 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)
25 physician and third-party testimony about the nature, severity, and effect of symptoms. See
26 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the
27 claimant cooperated during physical examinations or provided conflicting statements concerning
28 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the
1 claimant testifies as to symptoms greater than would normally be produced by a given
2 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
3 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
4 The ALJ summarized plaintiff’s subjective statements and testimony as follows:
5 The claimant alleged disability due to stomach pain, irritable bowel
syndrome, and sacroiliac-hip joint dysfunction. She reported she had
6 diarrhea 3 to 4 times a week and needed to be close to a bathroom. Her
abdomen, back, hips, and groin hurt all the time and she needed to lie
7 down to be comfortable. She had difficulty standing or walking in order
to cook meals or walk to the bathroom. Walking caused her to feel tired
8 and increased her pain. She estimated she could lift and carry a gallon of
milk. She had difficulty shopping due to pain and had difficulty driving
9 more than short distances due to pain and diarrhea. She did no household
chores. She estimated she slept 4 hours a night and 1 hour[] in the
10 afternoon. She used a cane and walker for balance. She spent 5 out of 7
days lying in bed due to pain. She needed assistance to dress, bathe, and
11 shave her legs. She needed reminders for personal grooming and
medications. She had in-home support services for grooming, cleaning,
12 shopping, and other daily activities. She could not squat or bend and had
difficulty reaching, kneeling, and climbing stairs. She estimated she could
13 sit 5 to 10 minutes and walk 25 to 35 feet. She had used electric carts in
stores (citations omitted).
14
CAR 649-50.
15
16 As to plaintiff’s credibility, the ALJ stated: “These allegations are inconsistent
17 with the clinical indications showing the claimant’s impairments were adequately controlled with
18 treatment.” CAR 650. Regarding plaintiff’s irritable bowel syndrome complaints, the ALJ
19 stated:
20 Although she alleges debilitating abdominal pain with frequent diarrhea,
repeated imaging of the abdomen revealed only “mild nonspecific
21 thickening of the sigmoid colon and rectum.” There was no evidence of a
lesion requiring surgical intervention and no evidence of any acute
22 inflammatory process (citations omitted). Indeed, extensive workup,
including colonoscopy, upper endoscopy, stool studies, blood tests, and
23 exploratory laparoscopy, were negative for any abnormality other than
“Mild” duodenitis and “minor” diverticula without evidence of
24 inflammatory bowel disease (citations omitted). While she has
complained of frequent diarrhea, the record reveals that her weight has
25 been stable and generally ranged between 236 to 240 pounds (citations
omitted).
26
* * *
27
28 ///
1 Examinations of the abdomen revealed no rebound tenderness, abdominal
masses, or other significant abnormalities such as increased or absent
2 bowel sounds (citations omitted). Gastroenterology evaluation conducted
at UC Davis Medical Center in March 2012 noted that multiple diagnostic
3 studies were “negative for etiology.” Examination was also normal. She
was advised merely to take a fiber supplement, a probiotic, and an
4 antidiarrheal such as Imodium (citations omitted). Thereafter, the
claimant sought little, if any, workup or new treatment for gastrointestinal
5 symptoms prior to attainment of age 50 and had no dietary restrictions,
other than to stop smoking (citations omitted) and primary care clinic
6 notes document few, if any, abdominal or pelvic complaints or related
symptoms (citations omitted).
7
CAR 650-51.
8
9 Next, the ALJ addressed plaintiff’s pain complaints:
10 In terms of her pain complaints, imagery of the lumbar spine revealed
severe lumbar disc disease at L5-S1 with bilateral pars defects and grade I
11 listhesis (citations omitted). However, physical therapy note[s]
documented that her “complaints do not match symptoms” (citations
12 omitted). She underwent epidural injections at L5-S1 and the sacroiliac
joints in October and November 2012 (citation omitted). Examinations of
13 the spine revealed some limited motion but no pain with flexion of the hip
against resistance and negative straight leg raises. Sensation, reflexes, and
14 motor strength are generally intact (citations omitted). Although she
presented with four-wheel walker at the consultative examination
15 conducted in February 2014, examination revealed that her gain was
neither ataxic nor antalgic. She was able to stand and walk on her heels
16 and toes and Romberg test was normal. Range of motion of her spine,
hips, and other joints was within normal limits and there were no
17 neurological deficits (citation omitted). Although she complained of pain
to her spine with even light fingertip pressure, examiner Susan Orillosa,
18 MD noted that there was no pain response with distraction and there were
other Waddell’s signs. She was able to squat and hop. Straight leg raise
19 tests were negative in both legs supine and seated and motor strength and
reflexes were intact despite some reported decreased sensation to the
20 “whole right side of her face, arms, leg, and body” and it was “the first
time that she has noticed the right hemi-body sensory deficit.” Dr.
21 Orillosa noted that the sensory deficit “does not correlate with any other
exam findings or findings on imaging” (citation omitted).
22
The record demonstrates that the claimant was mainly seen for medication
23 refills (citations omitted). Prior to attainment of age 50, she did not
require surgeries, frequent changes in medications, ongoing specialty
24 treatment or follow up, repeated injections, chiropractic adjustments,
acupuncture, or use of a TENS unit to control her alleged pain. Social
25 Security Ruling 16-3p states that had the claimant genuinely felt
debilitating symptoms, it would have been more likely that she would
26 have sought and maintained more aggressive treatment “such as increasing
dosages and changing medications, trying a variety of treatments, referrals
27 to specialists, or changing treatment sources.”
28 CAR 651.
1 Finally, the ALJ concluded plaintiff’s subjective complaints and testimony are
2 inconsistent with the medical opinion evidence, which the ALJ also discussed in detail. See CAR
3 651-53.
4 Plaintiff argues that the ALJ did not provide clear and convincing reasons to
5 discredit her testimony regarding the frequency of her bathroom breaks and her inability to
6 schedule around her bathroom breaks.3 According to plaintiff:
7 . . .ALJ Buck’s first reason “allegations are inconsistent with
objective findings” fails the clear and convincing test because “objective
8 findings” is nonspecific. AR 650. The ALJ did not find malingering, did
not provide clear and convincing reasons for rejecting her testimony, and
9 did not specify which statements made by Ms. Torres as to the severity of
her diarrhea symptoms cannot be credited. Brown-Hunter v. Colvin, 806
10 F.3d 487, 492-93 (9th Cir. 2015).
ALJ Buck’s second reason as to diarrhea “adequately controlled
11 with treatment” fares no better for failing the clear and convincing test
because Dr. Starkes authorized In Home Support (IHSS) for Ms. Torres
12 since 2012. AR 235-242, 589, 650. Yet further, ALJ Buck failed to denote
specific statements of Ms. Torres, supra, that were contradicted by any
13 treating source of record. Considering the “adequately controlled” reason
further developed by the ALJ’s finding there were no reported symptoms
14 of chronic diarrhea after March 2012, this also fails. AR 652.
First, the record does not document no instances Ms. Torres
15 needing to take bathroom breaks, suggesting that her bathroom break at
the Hearing on 1/29/2014 as well as at the 4/17/2018 hearing. AR 90, 705.
16 It is clear Ms. Torres continued to need unscheduled bathroom breaks
granted by ALJ Buck well after March 2012. But further this reason also
17 fails on specificity as Ms. Torres requested benefits from June 10, 2011 to
August 13, 2014. AR 656. See also colonoscopy medical records for her
18 diarrhea on March 3, 2014. AR 344.
Here, the ALJ failed to cite exhibits of Ms. Torres’ medications or
19 other treatment for her diarrhea symptoms nor did the ALJ cite to findings
that Ms. Torres' diarrhea symptoms were well-controlled by medication.
20 Further, the record reveals that Plaintiff continued to request unscheduled
bathroom breaks which ALJ Buck granted. In light of these medical
21 records, substantial evidence does not support the ALJ's finding that
Plaintiff's diarrhea symptoms were adequately controlled with treatment.
22 See Stansfield v. Colvin, No. 12-10090, 2013 WL 6482780, at *6 (C.D.
Cal. Dec. 10, 2013)(“[T]he ALJ's finding that plaintiff's pain was
23 adequately controlled with medication is not supported by substantial
evidence and, thus, is not a clear and convincing reason for rejecting her
24 subjective pain allegations.”); Garcia v. Astrue, No. 12-00992, 2013 WL
1797029, at *14 (S.D. Cal. Mar. 13, 2013)(“[W]hile there is evidence
25 supporting a statement that medication temporarily helped [one of the
impairments that the ALJ determined was severe], there is not substantial
26 evidence supporting the ALJ's [ultimate] conclusion that [the claimant's]
medication controlled her symptoms”).
27
3 Plaintiff raises no argument concerning the ALJ’s evaluation of her subjective pain
28
1 Her “no significant findings” of chronic diarrhea belie the evidence
of a colonoscopy procedure in March 2014. Thus, this reason is also
2 neither clear nor convincing.
3 ECF No. 20, pgs. 12-13.
4 At the outset, the Court is unpersuaded that the “clear and convincing” standard
5 applies in this case. The “clear and convincing” standard applies only when there is no evidence
6 of malingering in the record. Here, the record contains evidence of malingering. Specifically, as
7 the ALJ noted in her hearing decision, physical therapy notes reflect that plaintiff’s “complaints
8 do not match symptoms,” and Dr. Orillosa noted that plaintiff’s reported sensory deficit “does not
9 correlate with any other exam findings or findings on imaging.” CAR 651.
10 Plaintiff next argues that the ALJ’s citation to inconsistency between the severity
11 of complaints and objective findings is “nonspecific” because the ALJ “did not specify which
12 statements made by Ms. Torres as to the severity of her diarrhea symptoms cannot be credited.”
13 ECF No. 20, pg. 12. This argument is unpersuasive. First, contrary to plaintiff’s contention, the
14 ALJ specified the portion of plaintiff’s testimony found not credible – her complaints of totally
15 disabling symptoms related to diarrhea. Second, the ALJ carefully detailed the objective findings
16 undermining plaintiff’s credibility in this regard, specifically normal abdominal imaging, stool
17 studies, blood work, and examinations.
18 Finally, plaintiff contends the ALJ’s finding that plaintiff’s diarrhea symptoms
19 were “adequately controlled with treatment” is unsupported. The Court disagrees. As the ALJ
20 noted, although plaintiff complained of frequent diarrhea, after she was advised to take a fiber
21 supplement, a probiotic, and an antidiarrheal medication, plaintiff reported few, if any, new
22 complaints and sought little by way of further treatment. See CAR 650-51.
23 B. Evaluation of Lay Witness Evidence
24 At Step 4, the ALJ assessed lay witness evidence while evaluating plaintiff’s
25 residual functional capacity. In determining whether a claimant is disabled, an ALJ generally
26 must consider lay witness testimony concerning a claimant's ability to work. See Dodrill v.
27 Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) &
28 (e). Indeed, “lay testimony as to a claimant's symptoms or how an impairment affects ability to
1 work is competent evidence . . . and therefore cannot be disregarded without comment.” See
2 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Consequently, “[i]f the ALJ wishes to
3 discount the testimony of lay witnesses, he must give reasons that are germane to each witness.”
4 Dodrill, 12 F.3d at 919. When rejecting third party statements which are similar in nature to the
5 statements of plaintiff, the ALJ may cite the same reasons used by the ALJ in rejecting the
6 plaintiff’s statement. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 694 (9th
7 Cir. 2009) (approving rejection of a third-party family member’s testimony, which was similar to
8 the claimant’s, for the same reasons given for rejection of the claimant’s complaints).
9 As to testimony offered by third parties, the ALJ stated:
10 Third party statements were provided by friends Clara Calloway (Ex. 9E),
Veronica Velasquez, (Ex. 16E), and Manuel Jurado (Ex. 17E), Martha
11 Santillan, the claimant’s niece (Ex. 14E), the claimant’s partner, Miguel
Plasencia (Ex. 15E), Catheryn Hammons, the claimant’s IHSS provider
12 (Ex. 20E), and by the claimant’s sons Adam and Miguel Plasencia (Ex.
18E, 19E). These statements are generally consistent with and supportive
13 of claimant’s allegations that she is primarily limited by pain and intestinal
complaints with difficulty sitting, standing, walking, squatting, lifting,
14 bending, kneeling, climbing stairs, and caring for herself.
15 * * *
16 . . . While there were a couple of occasions of abnormal clinical findings,
the record does not reveal any significant signs that persisted throughout
17 the relevant period. The weight of evidence shows that while she
experienced some pain, diarrhea, and difficulty concentrating, they were
18 controlled such that she could have performed a wide range of sedentary
exertional work.
19
Thus, the claimant’s allegations, and the allegations of her third party, are
20 not entirely supported prior to attainment of age 50.
21 CAR 650.
22 Plaintiff argues that the ALJ erred by failing to provide sufficient weight to
23 Catheryn Hammons’s statements regarding plaintiff’s diarrhea. Plaintiff states:
24 On January 27, 2014, Ms. Torres IHSS worker Ms. Hammons
wrote “Kathy needs help just to go to the bathroom. Kathy has diarrhea a
25 lot and needs help to clean up. Making it to the bathroom on time is hard
for her. Especially with pain, it is hard for her to get up and get her pants
26 off. Kathy has trouble eating a lot of foods because they go right through
her and she will immediately need to go to the bathroom. It seems to be
27 getting worse.” AR 329.
28 ///
1 The ALJ found third party statements were provided by Catheryn
Hammons, the claimant’s IHSS provider (Ex. 20E) and statements were
2 generally consistent with and supportive of the claimant’s allegations that
she is primarily limited by pain and intestinal complaints with difficulty
3 caring for herself. AR 650. Such finding contradicts the ALJ’s findings of
Ms. Torres needing only one unscheduled break prior to August 2014.
4 Indeed, ALJ Buck failed to discuss in any way Ms. Hammons statements.
Thus, Ms. Hammons statements must be credited as true and Ms. Torres
5 action be remanded for payment of benefits.
6 ECF No. 20, pg. 14.
7 Plaintiff’s argument is unpersuasive. Plaintiff appears to contend that the ALJ’s
8 statement that Hammons’s testimony was “consistent with and supportive of claimant’s
9 allegations” meant that the ALJ credited Hammons’ testimony. See CAR 650. Plaintiff therefore
10 argues that the ALJ should have given greater weight to Hammons’ testimony in her analysis.
11 The ALJ’s claim that Ms. Hammons’s statement was “consistent with and supportive of
12 claimant’s allegations” only suggests that Ms. Hammons’s testimony aligned with plaintiff’s
13 testimony. See CAR 650. The statement did not conclusively determine that Ms. Hammons’s
14 statement was accurate and should be afforded great weight in the ALJ’s determination.
15 The ALJ rejected plaintiff’s statements, and those which supported them, because
16 medical evidence directly contradicted the alleged severity of plaintiff’s symptoms. See CAR
17 654. As discussed above, plaintiff’s numerous evaluations, examinations, and medical tests only
18 showed a minor gastrointestinal issue. See CAR 650-654. Plaintiff’s failure to seek treatment
19 following her 2012 appointment at UC Davis Medical Center supports the ALJ’s conclusion that
20 plaintiff’s symptoms were adequately controlled. See CAR 653. Because plaintiff’s statements
21 and testimony were similar to the evidence offered by Ms. Hammons, the ALJ properly rejected
22 Ms. Hammons’ evidence for the same reasons cited for rejecting plaintiff’s statements and
23 testimony.
24 C. Residual Functional Capacity
25 At Step 4, the ALJ determined plaintiff’s residual functional capacity. Residual
26 functional capacity is what a person “can still do despite [the individual’s] limitations.” 20 C.F.R.
27 §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir.
28 1985) (residual functional capacity reflects current “physical and mental capabilities”). Thus,
1 residual functional capacity describes a person’s exertional capabilities in light of his or her
2 limitations.
3 As to plaintiff’s residual functional capacity due to her irritable bowel syndrome,
4 the ALJ stated that:
5 Accordingly, the undersigned finds that her gastrointestinal complaints did
not result in additional exertional or non-exertional limitations beyond
6 those set forth by Dr. Thompson. The record does document weight loss
due to chronic diarrhea, reports of having to use pads or diapers or to
7 change clothes. There are no reports to medical providers that she had
sudden bowel movements and there is no opinion evidence to support the
8 need to use the restroom frequently during the day Ex. 1F-22F. Therefore,
the longitudinal evidence supports a determination that she requires a
9 restroom within 200 feet of her work area and 1 extra bathroom break
lasting up to 5 minutes in addition to regular breaks with no other
10 limitations due to her gastrointestinal complaints.
11 CAR 653.
12 Plaintiff argues that the ALJ failed to properly account for claimant’s bathroom
13 breaks in the residual functional capacity analysis. Plaintiff states:
14 Her [plaintiff] testimony is also recorded by Dr. Starkes and others.
She [plaintiff] stated she needed about 10 bathroom breaks a day. AR 117.
15 She stated she would have frequent diarrhea. AR 102, 650. She stated she
would need to take 12 bathroom breaks a day. AR 333, 385, 519.
16 Despite this evidence and testimony, the ALJ failed to account for
Claimant’s potential need to take such frequent and unscheduled breaks in
17 formulating the RFC or to further develop Claimant’s testimony to number
of unscheduled bathroom breaks needed……The VE testified that if an
18 individual required unscheduled bathroom breaks at the frequency that
Claimant testified to, employment would be precluded, as such
19 circumstances would “exceed employer tolerances for routine rest and
break periods.” AR. The issue of the frequency, duration, and
20 unscheduledness of Claimant’s bathroom breaks, therefore, is highly
relevant to the denial of benefits. See Durr-Irving v. Colvin, 600
21 Fed.Appx. 998, 1003 (7th Cir. 2015) (finding evidence of urinary
incontinence “highly relevant” where a VE testified that a person who
22 must use the restroom more than once an hour would be unable to perform
the few jobs that met the ALJ’s assessment of an applicant’s RFC); Seals
23 v. Berryhill, No. 16 CV 01975, 2017 WL 2416293, at *5 (S.D. Ind. June 5,
2017). See also Manker v. Berryhill, No. 16 C 10704, 2017 WL 6569719,
24 at *3-4 (N.D.Ill. 2017).
Given the importance of this issue in determining whether
25 Claimant truly is able to perform any work in the national economy, the
ALJ’s failure to determine the frequency, duration, and unscheduledness
26 of Claimant’s required bathroom breaks and the practical workday
limitations resulting therefrom is an error requiring remand. See, e.g.,
27 Rasmussen v. Astrue, No. 10 C 2344, 2011 WL 1807019, at *11 (N.D. Ill.
May 6, 2011) (ALJ failed to determine the frequency or length of time the
28 plaintiff would have to spend in the bathroom, and therefore failed to
1 develop an RFC that was “expressed in terms of work-related functions”);
Sikorski v. Berryhill, 690 Fed.Appx. 429, 433 (7th Cir. 2017) (remanding
2 because the ALJ “made no finding regarding the required length of [the
plaintiff’s] bathroom breaks,” and therefore the VE was not provided with
3 a “complete picture” of the plaintiff’s RFC); Shewmake, 2016 WL
6948380, at *11-12; Spaulding v. Astrue, 702 F. Supp. 2d 983, 995-996
4 (N.D. Ill. 2010).
5 ECF No. 20, pgs. 14-16.
6 Plaintiff’s arguments are again unpersuasive. The ALJ addressed the issues arising
7 from plaintiff’s irritable bowel syndrome by allotting for unscheduled bathroom breaks and
8 finding that plaintiff needed to be within 200 feet of a restroom. See CAR 653. Insofar as
9 plaintiff alleges that the ALJ did not properly address the issues that plaintiff raised in her
10 personal statement, that contention relates to plaintiff’s credibility, which the Court finds the ALJ
11 properly discounted. See CAR 650.
12 D. Vocational Findings
13 The Medical-Vocational Guidelines (Grids) provide a uniform conclusion about
14 disability for various combinations of age, education, previous work experience, and residual
15 functional capacity. The Commissioner may apply the Grids in lieu of taking the testimony of a
16 vocational expert only when the Grids accurately and completely describe the claimant’s abilities
17 and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v.
18 Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the
19 Grids if a claimant suffers from non-exertional limitations because the Grids are based on
20 exertional strength factors only. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). “If
21 a claimant has an impairment that limits his or her ability to work without directly affecting his or
22 her strength, the claimant is said to have non-exertional . . . limitations that are not covered by the
23 Grids.” Penny v. Sulliacvan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, Subpart
24 P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids even when
25 a claimant has combined exertional and non-exertional limitations, if non-exertional limitations
26 do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d 1059, 1063
27 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).
28 ///
1 In cases where the Grids are not fully applicable, the ALJ may meet this burden
2 under step five of the sequential analysis by propounding to a vocational expert hypothetical
3 questions based on medical assumptions, supported by substantial evidence, that reflect all the
4 plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically,
5 where the Medical-Vocational Guidelines are inapplicable because the plaintiff has sufficient
6 non-exertional limitations, the ALJ is required to obtain vocational expert testimony. See
7 Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988).
8 Hypothetical questions posed to a vocational expert must set out all the substantial,
9 supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881
10 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s limitations, the
11 expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary
12 value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to
13 the expert a range of hypothetical questions based on alternate interpretations of the evidence, the
14 hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by
15 substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th
16 Cir. 1988).
17 At Step 5, the ALJ stated that:
18 Prior to August 13, 2014, if the claimant had the residual functional
capacity to perform the full range of sedentary work, a finding of “not
19 disabled” would be directed by Medical-Vocational Rule 201.21.
However, the claimant’s ability to perform all or substantially all of the
20 requirements of this level of work was impeded by additional limitations.
To determine the extent to which these limitations eroded the unskilled
21 sedentary occupational base, the Administrative Law Judge asked the
vocational expert whether jobs exist in the national economy for an
22 individual with the claimant’s age, education, work experience, and
residual functional capacity. The vocational expert testified that given all
23 of these factors the individual would have been able to perform the
requirements of representative occupations such as Information Clerk
24 #237.367-046, sedentary, SVP 2, with approximately 49,000 positions
nationally, Junior Office Clerk, #249.587-018, sedentary, SVP 2, with
25 approximately 212,000 positions nationally, and Interviewer or Charge
Account Clerk #205.367-014, sedentary, SVP 2, with approximately
26 33,000 positions nationally.
27 Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
28 in the Dictionary of Occupational Titles.
1 Based on the testimony of the vocational expert, the undersigned
concludes that, prior to the established onset date of disability, considering
2 the claimant’s age, education, work experience, and residual functional
capacity, the claimant was capable of making a successful adjustment to
3 other work that existed in significant numbers in the national economy.
Prior to August 13, 2014, a finding of “not disabled” is therefore
4 appropriate under the framework of the above-cited rule in the Medical-
Vocational Guidelines.
5
CAR 655-56.
6
7 Plaintiff argues that the ALJ erred in finding available jobs for plaintiff because
8 the ALJ’s analysis was predicated on an erroneous residual functional capacity evaluation.
9 Plaintiff also argues that the vocational expert’s testimony was inconsistent with the Dictionary of
10 Occupational Titles. Plaintiff states:
11 As an initial matter, the Step 5 determination fails because (as
discussed throughout) the RFC found by the ALJ does not include Ms.
12 Torres’ limitation of unscheduled breaks in excess of one per day. Where
the hypothetical does not reflect all the claimant’s limitations, the expert’s
13 testimony has no evidentiary value to support a finding that the claimant
can perform jobs in the national economy. DeLorme v. Sullivan, 924 F.2d
14 841, 850 (9th Cir. 1991); Embrey v. Brown, 849 F.2d 418, 423 (9th Cir.
1988); Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984). Remand,
15 accordingly, is required.
ALJ Buck also erred by failing to ask the VE both the number of
16 scheduled and unscheduled breaks allowed. AR … That is ALJ Buck
failed to ask the VE if his statements conflicted with the DOT as to the
17 number of scheduled breaks. AR 699-712. Because he failed to comply
with SSR 00-4p, she erred. SSR 00-4p; Massachi v. Astrue, 486 F.3d
18 1149, 1154 (9th Cir. 2007) (when an ALJ fails to ask a VE about conflicts
with the DOT it may be harmless if there is no conflict or if the vocational
19 evidence justifies the conflict.).
The DOT descriptions at issue, however, do not substantiate the
20 VE’s assertion of compliance with the ALJ’s hypothetical nor the
inference that these jobs are categorized as sedentary based on Ms. Torres
21 need for cane or walker, a restroom within 200 feet, and one extra
bathroom break requirements. AR 655. Next, the ALJ failed to ask the VE
22 if his statements conflicted with the DOT. Because he has failed to comply
with SSR 00-4p; Massachi v. Astrue, 486 F. 3d 1149, 1154 n.19 (9th Cir.
23 2007) (when an ALJ fails to ask a VE about conflicts with the DOT it may
be harmless if there is no conflict or if the vocational evidence justifies the
24 conflict.).
25 * * *
26 Here, the ALJ did not request that the vocational expert advise her
as to any conflict with her testimony and the information in the DOT. AR
27 699-712. The ALJ has a duty to confirm that the vocational expert’s
testimony does not conflict with the information provided in the DOT.
28 Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014) (holding
1 that, where the record does not reflect whether the vocational expert or
ALJ even recognized a possible conflict between the ALJ’s hypothetical
2 and the DOT listing, the case should be remanded for further
proceedings). Here, the ALJ states that “the undersigned has determined
3 that the vocational expert’s testimony is consistent with the information
contained in the [DOT],” but, this is not the case.
4 The error is not harmless because the DOT for each of these jobs is
silent on whether they can be done when using standard unknown breaks
5 for each job. The ALJ denied Ms. Torres disability on a conclusion that
the VE’s jobs could be done with scheduled bathroom breaks normal to
6 each job. Because it is unknown how many scheduled breaks are normal
for each of the VE’s jobs, remand for rehearing in the alternative is
7 required.
8 ECF No. 20, pgs. 16-18.
9 Plaintiff’s arguments are unpersuasive. Plaintiff correctly points out that the ALJ
10 did not ask the vocational expert whether any of his statements conflicted with the Dictionary of
11 Occupational Titles. See Social Security Ruling (SSR) 00-4p. The ALJ, however, was not
12 required to. Plaintiff argues that the vocational expert’s testimony did not align with the
13 Dictionary of Occupational Titles for information about the frequency of bathroom breaks or the
14 distance between plaintiff’s workspace and the bathroom. See ECF No. 20, pg. 17. However, the
15 Dictionary of Occupational Titles does not present any information on the frequency of bathroom
16 breaks or the distance to the bathroom for these job titles. Because the Dictionary of Occupational
17 Titles is silent on this issue, it cannot be said that the vocational expert’s testimony was in
18 conflict. For this reason, the duty to inquire about conflicts was not triggered.
19 Insofar as plaintiff alleges that the vocational expert’s testimony is invalid because
20 it is predicated an inaccurate residual functional capacity, plaintiff is mistaken. As discussed
21 above, the ALJ’s conclusion regarding plaintiff’s residual functional capacity was accurate.
22 Notably, plaintiff does not challenge the ALJ’s reliance on the medical expert’s opinions.
23 Therefore, the vocational expert’s reliance on the ALJ’s residual functional capacity
24 determination was also sound.
25 ///
26 ///
27 ///
28 ///
6. LO UV YUOT MINIS VSI IR ee AY AU VI LO
1 IV. CONCLUSION
2 Based on the foregoing, the court concludes that the Commissioner’s final decision
3 | is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY
4 | ORDERED that:
5 1. Plaintiff's motion for summary judgment, ECF No. 20, is denied;
6 2. Defendant’s motion for summary judgment, (ECF No. 24, is granted;
7 3. The Commissioner’s final decision is affirmed; and
8 4. The Clerk of the Court is directed to enter judgment and close this file.
9
10
11 | Dated: September 25, 2020 Ssvcqo_
DENNIS M. COTA
13 UNITED STATES MAGISTRATE JUDGE
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