Rowland v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JOSHUA R.,1

Plaintiff, Civ. No. 6:23-cv-01469-MK

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

KASUBHAI, United States Magistrate Judge:

Plaintiff Joshua R. seeks judicial review of the final decision of the Commissioner of the

Social Security Administration (“Commissioner”) denying his application for supplemental

security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). This Court has

jurisdiction to review the Commissioner’s decision under 42 U.S.C. § 405(g). All parties have

consented to allowing a Magistrate Judge to enter final orders and judgment per the Federal Rule

of Civil Procedure 73 and 28 U.S.C. § 636(c). See ECF No. 2. For the following reasons, the

Commissioner’s final decision is REVERSED and REMANDED for further proceedings.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party.

PROCEDURAL BACKGROUND

Plaintiff filed an application for SSI on December 15, 2020, alleging an onset date of

January 1, 2018. Tr.2 51. His application was denied initially and upon reconsideration. Tr. 57,

73. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”), and a

hearing was held on February 15, 2023. Tr. 33–49. On March 6, 2023, the ALJ issued a decision

finding Plaintiff not disabled within the meaning of Act. Tr. 18–28. The Appeals Council denied

Plaintiff’s request for review on September 12, 2023. Tr. 1–6. This appeal followed.

FACTUAL BACKGROUND

Born in 1974, Plaintiff was 43 years old on his alleged disability onset date. Tr. 51. He

has a high school education and is unable to perform his past relevant work as a plant trimmer.

Tr. 26–27.

LEGAL STANDARD

The court must affirm the Commissioner's decision if it is based on proper legal standards

and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879

F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh

“both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez

v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v.

2 “Tr” refers to the Transcript of Social Security Administrative Record provided by the

Commissioner.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400

F.3d 676, 680–81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where

the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must

consider the entire record as a whole and may not affirm simply by isolating a specific quantum

of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected ... to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

The Commissioner has established a five-step process for determining whether a person

is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First,

the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if

so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).

At step two, the Commissioner determines whether the claimant has a “medically severe

impairment or combination of impairments.” Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§

404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's]

physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If

not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner

determines whether the impairments meet or equal “one of a number of listed impairments that

the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the analysis proceeds. Yuckert, 482 U.S. at 141.

At this point, the Commissioner must evaluate medical and other relevant evidence to

determine the claimant's “residual functional capacity” (“RFC”), which is an assessment of

work-related activities that the claimant may still perform on a regular and continuing basis,

despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)–(c),

416.920(e), 416.945(b)–(c). At the fourth step, the Commissioner determines whether the

claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141, 107 S.Ct. 2287; 20 C.F.R.

§§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform

past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step

five, the Commissioner must establish that the claimant can perform other work that exists in

significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)–(f),

416.920(e)–(f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§

404.1566, 416.966.

THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since his application date of December 15, 2020. Tr. 20. At step two, the ALJ found that Plaintiff

had the following severe impairments: depression and anxiety. Id. At step three, the ALJ found

that Plaintiff did not have an impairment or combination of impairments that met or equaled a

listed impairment. Tr. 21. The ALJ then assessed Plaintiff’s RFC and found Plaintiff was capable

of performing a full range of work at all exertional levels with the following limitations:

He can understand, remember, and carry out simple instructions. He can

deal with occasional changes in a routine work setting. He can use judgment to

make simple work-related decisions. He cannot perform work requiring a specific

production rate (such as assembly line work). He is able to tolerate frequent

contact with supervisors, occasional contact with co-workers, and the general

public.

Tr. 22–23.

At step four, the ALJ found that the Plaintiff was unable to perform his past relevant

work as a plant trimmer. Tr. 26. At step five, the ALJ found that, in light of Plaintiff’s age,

education, work experience, and RFC, there were jobs that existed in significant numbers in the

national economy that Plaintiff could perform despite his impairments, including hand packager,

industrial cleaner, cleaner II, router, cleaner, housekeeping, and mail clerk. Tr. 27–28. Thus, the

ALJ concluded that the Plaintiff was not disabled within the meaning of the Act. Tr. 28.

DISCUSSION

Plaintiff argues that the ALJ (1) failed to properly incorporate the social interaction

limitations contained in the medical opinions of State agency psychologists Sergiy Barsukov, Psy.D.,

and Susan Daugherty, Ph.D., and (2) failed incorporate a limitation to repetitive work into Plaintiff’s

RFC, despite finding persuasive the medical opinion by Robin Jewett, PA. Pl.’s Br. 2–20 (ECF 10).

I. Social Interaction Limitations in the RFC

Plaintiff argues that the ALJ erred in rejecting the social interaction limitations assessed

in the medical opinions provided by state agency doctors Sergiy Barsukov, Psy.D., and Susan

Daugherty, Ph.D., despite finding their opinions persuasive Pl.’s Br. at 10–17. As relevant to the case

at hand, Drs. Barsukov and Daugherty reviewed Plaintiff’s records and opined that he was

moderately limited in his ability to get along with coworkers or peers without distracting them or

exhibiting behavioral extremes, and in his ability to maintain socially appropriate behavior and to

adhere to basic standards of neatness and cleanliness. Tr. 55, 70. They further opined that Plaintiff

was not significantly limited in his ability to interact appropriately with the general public, to ask

simple questions or request assistance, and to accept instructions and respond appropriately to

criticism from supervisors. Tr. 55, 69–70. As a result of their findings, they believed Plaintiff should

be limited to brief, indirect public/coworker contact. Tr. 55, 70.

The ALJ partially credited these opinions, noting that both physicians found Plaintiff could

perform simple tasks with additional social interaction restrictions. Tr. 26. However, the ALJ found

the social interaction limitations “unpersuasive for several reasons.” Id. Consequently, the ALJ

formulated an RFC limiting Plaintiff to being able to “understand, remember, and carry out simple

instructions,” as well as “able to tolerate frequent contact with supervisors, occasional contact with

co-workers, and the general public.” Tr. 23. Plaintiff argues that the ALJ committed harmful error by

ignoring the social interaction limitations set by the state agency physicians. Pl.’s Br. at 10–17.

The Commissioner argues that the ALJ’s interpretation of Drs. Barsukov and Daugherty was

not error, citing Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) for the proposition that a

reviewing court must “look[] to all the pages of the ALJ’s decision” when determining whether

substantial evidence supports that decision. The Commissioner then cites to Andy v. Kijakazi, 2023

WL 6620299, at *2 (9th Cir. 2023) (unpublished) for the proposition that even if “the ALJ’s analysis

of the supportability and consistency of [the doctor’s] opinion is summarized in one sentence,” that

analysis is valid if “at other points throughout his decision the ALJ clearly articulated why [the

Plaintiff’s] complaints . . . were not supported by the record.” Finally, the Commissioner argues that

the ALJ identified several instances in the record that contradict the social interaction limitations

assessed by the state agency physicians. Def.’s Br. 10–12 (ECF 12). The Court agrees with the

Commissioner’s contention.

Here, the ALJ found that Plaintiff only had a mild limitation in his ability to interact with

others. Tr. 22. As support, the ALJ noted that Plaintiff shops in stores for food and clothing

approximately once a week for 20-30 minutes, that he interacts with a few friends, that he plays disc

golf with friends, that he helps those friends weekly, that he gets along “ok” with authority figures,

and that he has never been fired from a job because of problems with social interaction. Tr. 22, citing

Tr. 186–188, 269. Despite Plaintiff stating that he sometimes has trouble getting along with others

because he gets “irritated easily”, and that he does not like to be around or meet new people, his

medical records show that his mood and affect were normal, and that he was generally pleasant and

bright. Tr. 40, 43; Tr. 25, citing Tr. 270, 289, 297, 308, 322. Lastly, the ALJ found the state agency

doctors’ opinions unsupported by the findings of Robin Jewett, the psychological consultative

examiner, who opined that Plaintiff’s ability to relate to others, including fellow workers and

supervisors, was intact, noting that he “is quite pleasant.” Tr. 26, citing Tr. 273.

Plaintiff argues that the ALJ did not properly take his testimony into account, including that

Plaintiff stated he cancels doctors’ appointments because he does not like to be around or meet new

people, that this was corroborated by a lay witness. Pl.’s Br. at 12–15. However, what Plaintiff asks

for is a reweighing of the evidence, and “where the evidence is susceptible to more than one rational

interpretation,” this Court “must uphold the ALJ’s decision.” Burch v. Barnhart, 400 F.3d 676, 680–

81 (9th Cir. 2005). As such, the ALJ did not err by not incorporating greater social interaction

limitations into Plaintiff’s RFC.

II. The RFC

The RFC is the most a person can do in light of their physical or mental impairments. 20

C.F.R. §§ 404.1545, 416.945. An ALJ is responsible for determining a claimant's RFC. 20 C.F.R.

§§ 404.1546(c), 416.946(c). In formulating an RFC, the ALJ must consider all medically

determinable impairments, including those that are not “severe,” and evaluate “all of the relevant

medical and other evidence.” Id.; SSR 96-8p, available at 1996 WL 374184. The RFC is used at

step four of the sequential analysis to determine if a claimant can perform past relevant work and

at step five to determine if a claimant can adjust to other work that exists in significant numbers

in the national economy. 20 C.F.R. §§ 404.1520(a), 416.920(a).

An ALJ may rely on the testimony of a vocational expert (“VE”) to determine whether a

claimant can perform past relevant work at step four or other work in the national or regional

economy at step five. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Limitations

supported by substantial evidence must be incorporated into the RFC and, by extension, the

dispositive hypothetical question posed to the VE. Osenbrock, 240 F.3d at 1163–65. The Court

should uphold step four and five determinations “if the ALJ applied the proper legal standard and

his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th

Cir. 2005). At issue in this case is the ALJ’s translation of Plaintiff’s limitations into concrete

restrictions within the RFC. The ALJ found Plaintiff has a moderate limitation in understanding,

remembering, or applying information, as well as in his ability to concentrate, persist, and

maintain pace. Tr. 22. The ALJ, adopting the findings of the state agency psychologists, as well

as the psychological consultative examiner, assessed that Plaintiff is capable of understanding,

remembering, and carrying out simple instructions, and using his judgment to make simple

work-related decisions. Tr. 22–23, 55, 67–68, 273.

a. Limitation to Repetitive Tasks

An ALJ’s hypothetical to a vocational expert must accurately set forth all of a claimant’s

credited limitations. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

2009) (“If an ALJ’s hypothetical does not reflect all of the claimmant’s limitations, then ‘the

expert’s testimony has no evidentiary value to support ta finding that the claimant can perform

jobs in the national economy.’” (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir.

1991)). However, the Court may affirm if the ALJ’s failure to include all of the claimant’s

limitations was harmless. See, e.g., Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)

(reviewing for harmless error). “An error is harmless only if it is ‘inconsequential to the ultimate

nondisability determination.’” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (quoting

Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)).

Plaintiff alleges error because RFC restrictions to “simple instructions” do not address his

limitation to “repetitive tasks.” Tr. 273; Pl.’s Br. at 4–8. Plaintiff argues that a limitation to

“repetitive” tasks would further restrict what jobs would be available to him, that the jobs

contemplated by the VE all include multiple tasks, and therefore, a limitation to repetitive tasks

was incorrectly omitted from his RFC. Pl.’s Br. at 7–8. Plaintiff thus contends that this omission

resulted in an erroneous RFC and hypothetical to the VE.

The Court agrees that omitting the limitation to “repetitive tasks” without explanation

amounts to legal error. The Commissioner argues there is no error because Jewett did not state

Plaintiff was limited to repetitive tasks, but that his ability to carry out simple, repetitive tasks

was simply intact, meaning that the RFC was more restrictive because having an intact ability is

not the same as being limited in that ability. Def.’s Br. at 5. While that is a unique interpretation,

it is one lacking in support, begging the question: If Jewett had not meant to limit Plaintiff to this

specific level of functioning, why assess him in this way? Notably, the Commissioner provides

neither caselaw nor legal theory to support this interpretation, nor do they even attempt to

provide any level of explanation. Furthermore, the agency physicians support the consultative

examiner’s opinion, with each of them noting that Plaintiff is capable of simple work-like tasks,

though none of them indicate whether the tasks need be repetitive. Tr. 55, 68, 71.3

Plaintiff points to a recent Ninth Circuit decision in Leach v. Kijakazi, 70 F.4th 1251 (9th

Cir. 2023) to further bolster his argument. Pl.’s Br. at 6. In Leach, the ALJ omitted the word

“short” from the limitation of “short, simple instructions” in the hypothetical to the VE. Based on

3 State agency psychologist Susan Daugherty opined that Plaintiff is capable of “simple, routine”

tasks, but it is not entirely apparent whether “routine” and “repetitive” are interchangeable.

the hypothetical, the VE offered three jobs, all with a reasoning level of two. Jobs with reasoning

level one only require an ability to “apply commonsense understanding to carry out simple one-

or-two-step instructions,” whereas jobs with reasoning level two require an ability to “apply

commonsense understanding to carry out detailed but uninvolved written or oral instructions.”

Leach, 70 F.4th at 1256. In that case, the Court could not conclude whether someone with

limitations to short, simple instructions could perform the three jobs provided, and the case was

remanded for further proceedings.

Unlike Leach, this is not a case concerning Plaintiff’s reasoning level, and neither the

Commissioner nor Plaintiff can provide any caselaw in support of their positions as it pertains to

“repetitive tasks.” Like Leach, however, in the same way that some jobs can have “longer-than-

short, simple instructions,” there must be jobs that can have multiple tasks while still being

repetitive, and jobs with few tasks that are also not repetitive. Leach, 70 F.4th at 1256. That,

however, is a question not before this Court. Consequently, because the VE was not presented

with a hypothetical contemplating all of Plaintiff’s limitations, and it is unclear whether the

proffered jobs could be considered repetitive, the ALJ has erred in such a way that it is not

inconsequential to the ultimate non-disability determination. Lambert, 980 F.3d at 1278.

IV. Remand

When a court determines the Commissioner erred in denying benefits, the court may

affirm, modify, or reverse the Commissioner’s decision “with or without remanding the cause for

a rehearing.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)

(quoting 42 U.S.C. § 405(g)). In determining whether to remand for further proceedings of the

immediate payment of benefits, the Ninth Circuit employs the following “credit-as-true”

standard when the following requisites are met: (1) the ALJ has failed to provide legally

sufficient reasons for rejecting evidence; (2) the record has been fully developed and further

proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were

credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison v.

Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If all three requisites are met, the court may remand

for benefits. Id. However, even if all of the requisites are met, the court may still remand for

further proceedings “when the record as a whole creates serious doubt as to whether the claimant

is, in fact, disabled. Id. at 1021.

Here, the first requisite is met because the ALJ erroneously rejected Plaintiff’s limitation

to “repetitive tasks” by failing to incorporate it into the resulting RFC and hypotheticals posed to

the VE. Further proceedings would be useful for the ALJ to adequately consider whether the jobs

proffered by the VE would still be valid if the limitation to “repetitive tasks” were included in

the hypothetical. On remand, the ALJ must incorporate a limitation to “repetitive tasks” into the

Plaintiff’s RFC, or provide reasoning with substantial evidence for its exclusion, reformulate the

Plaintiff’s RFC, and obtain further VE testimony.

CONCLUSION

Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the Court

REVERSES and REMANDS for further proceedings.

IT IS SO ORDERED.

DATED this 20th day of August 2024.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge