Igor Zavalin v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IGOR ZAVALIN, No. 13-35276

Plaintiff-Appellant,

D.C. No.

v. 3:12-cv-00114-MO

CAROLYN W. COLVIN,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

October 10, 2014—Portland, Oregon

Filed February 20, 2015

Before: Ronald M. Gould, Morgan Christen,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen

2 ZAVALIN V. COLVIN

SUMMARY*

Social Security

The panel reversed the district court’s judgment affirming

the Social Security Commissioner’s denial of Supplemental

Security Income disability benefits, and remanded for further

proceedings.

The administrative law judge (“ALJ”) found that the

claimant retained the residual functional capacity to perform

simple, routine, or repetitive tasks; and concluded that the

claimant was not disabled because he was able to perform

two occupations, cashier and surveillance system monitor,

which required the ability to perform Level 3 Reasoning.

Level 3 Reasoning on the Department of Labor’s General

Education Development scale is defined as the ability to

follow written, oral, or diagrammatic instructions and to deal

with problems involving several variables from a

standardized situation.

The panel held that there was an apparent conflict

between claimant’s limitation to simple, routine, or repetitive

tasks, on the one hand, and the demands of Level 3

Reasoning, on the other hand. The panel further held that

because the ALJ failed to recognize this inconsistency, she

did not ask the vocational expert to explain why a person with

claimant’s limitations could nevertheless meet the demand of

Level 3 Reasoning. The panel concluded that the ALJ erred

in failing to reconcile this apparent conflict, and that the error

was not harmless.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ZAVALIN V. COLVIN 3

COUNSEL

Brandon Williams (argued), Merrill Schneider, Schneider,

Kerr & Gibney Law Offices, Portland, Oregon, for

Plaintiff-Appellant.

Terrye E. Shea (argued), Assistant Regional Counsel, Office

of the General Counsel, and David Morado, Regional Chief

Counsel, Region X, Social Security Administration, Seattle,

Washington; Kelly A. Zusman, Assistant United States

Attorney, and S. Amanda Marshall, United States Attorney,

United States Attorneys’ Office, Portland, Oregon, for

Defendant-Appellee.

OPINION

NGUYEN, Circuit Judge:

Igor Zavalin appeals the district court’s judgment

affirming the Social Security Commissioner’s denial of

Supplemental Security Income disability benefits. The

administrative law judge (“ALJ”) found that Zavalin retains

the residual functional capacity to perform simple, routine, or

repetitive tasks. The ALJ further concluded that Zavalin is

not disabled because he is still able to perform two

occupations, namely, cashier and surveillance system

monitor. Both of these occupations require the ability to

perform Level 3 Reasoning on the Department of Labor’s

General Education Development scale, which is defined as

the ability to follow written, oral, or diagrammatic

instructions and to deal with problems involving several

variables from a standardized situation. We hold that there is

an apparent conflict between Zavalin’s limitation to simple,

4 ZAVALIN V. COLVIN

routine, or repetitive tasks, on the one hand, and the demands

of Level 3 Reasoning, on the other hand. This conflict must

be reconciled by the ALJ. Because the ALJ failed to do so,

we remand for further proceedings.

BACKGROUND

Zavalin, who was born in Russia, has suffered from

severe impairments since childhood. His diagnoses include

cerebral palsy, a learning disorder, and a speech impairment

that causes him to speak in a halting manner. He also has a

history of a fracture in his right knee and atrophy of the right

leg, which causes balance problems.

When Zavalin was 13 years old, he moved with his family

to the United States, and he began receiving Supplemental

Security Income (“SSI”) disability benefits that same year.

Zavalin attended public schools and had an individualized

education program consisting of both special education and

mainstream classes with accommodations for his

impairments, such as extra time so that he could work at his

own pace. He did well, and eventually graduated from high

school with a modified diploma in 2010.

After Zavalin turned 18 in December 2008, the Social

Security Administration (“SSA”) conducted a

redetermination of his eligibility for benefits under the rules

for determining disability for adults. Zavalin requested

review before an ALJ after the SSA administratively

determined that he was no longer disabled. An ALJ held a

hearing on September 17, 2010, at which she received

testimony from witnesses, including a vocational expert who

testified about potential occupations for Zavalin.

ZAVALIN V. COLVIN 5

The ALJ asked the vocational expert an extended

hypothetical question in which she described a person with

Zavalin’s limitations, including the limitation that he “can do

simple jobs,” and then inquired whether there are jobs in the

national economy that such a person can do. The expert

opined that a person with such limitations can perform two

representative occupations defined by the Department of

Labor’s Dictionary of Occupational Titles (the “DOT”):

cashier and surveillance system monitor (an employee who

monitors video surveillance footage). The DOT sets forth job

requirements for both positions, including the necessary

reasoning ability, which the DOT measures on a six-level

scale. Both cashier and surveillance system monitor require

Level 3 Reasoning, which is defined as the ability to deal

with problems involving several concrete variables and apply

commonsense understanding to carry out instructions

furnished in written, oral, or diagrammatic form. However,

the ALJ did not ask the vocational expert to explain how a

person who can only “do simple jobs” because of

impairments, including a learning disorder and cerebral palsy,

could meet Level 3 Reasoning’s requirements.

Following the hearing, the ALJ issued a written decision

on October 28, 2010. The ALJ’s analysis followed the

well-established five-step sequential process for Social

Security and SSI disability determinations. The ALJ skipped

Step One, which asks whether Zavalin is presently working,

because it is not relevant in age-18 disability

redeterminations. At Step Two, the ALJ found that Zavalin

suffers from several severe impairments: cerebral palsy, a

learning disorder, a history of right knee fracture, and atrophy

of the right leg. At Step Three, the ALJ found that Zavalin

does not have an impairment listed in SSA regulations. Step

6 ZAVALIN V. COLVIN

Four, which determines whether Zavalin could return to a

previous occupation, did not apply.

At Step Five—the only step at issue on appeal—the ALJ

analyzed whether Zavalin has the capacity to work

notwithstanding his severe impairments. The ALJ first

assessed Zavalin’s capability in light of his impairments.

Based on medical reports from doctors and health care

professionals who had evaluated Zavalin over the years, as

well as Zavalin’s testimony, the ALJ concluded that his

ability is limited to “simple, routine tasks” and “simple,

repetitive tasks.” The ALJ also found that he can use his

arms with some limitations, has balance problems, cannot

climb ladders or ropes, and has a speech impairment. The

ALJ then determined whether there are jobs in the national

economy that Zavalin can perform in light of his limitations,

age, education, and lack of work experience. To make this

determination, she relied on the vocational expert’s testimony

that a person with Zavalin’s limitations can perform cashier

and surveillance system monitor work, and the DOT’s job

descriptions and requirements for these occupations. The

ALJ concluded that Zavalin is not disabled because he is

capable of both identified occupations. In her decision, the

ALJ did not explain whether Zavalin possessed the reasoning

ability required to perform these occupations, given his

residual functional capacity of only simple, routine, or

repetitive work.

After the SSA Appeals Council denied his request for

review of the ALJ’s decision, Zavalin sought judicial review

in the district court. The district court summarily affirmed.

This appeal followed.

ZAVALIN V. COLVIN 7

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s decision. Molina v. Astrue,

674 F.3d 1104, 1110 (9th Cir. 2012). We review the

Commissioner’s disability decision “to determine if it is

supported by substantial evidence in the record as a whole

and whether it is based on proper legal standards.” Nyman v.

Heckler, 779 F.2d 528, 530 (9th Cir. 1986). Even when an

ALJ commits an error of law, we must affirm if the error is

harmless. Molina, 674 F.3d at 1111.

DISCUSSION

Zavalin argues that at Step Five, the ALJ failed to

reconcile an apparent conflict between his residual functional

capacity and the reasoning requirements of the jobs identified

by the ALJ. We agree.

I

A

We begin with the legal framework for Step Five.1 At

this step, the Commissioner has the burden “to identify

specific jobs existing in substantial numbers in the national

economy that [a] claimant can perform despite [his] identified

1

To determine whether or not a claimant is disabled, an ALJ follows a

five-step evaluation. See 20 C.F.R. § 416.920(a)(4). If the ALJ finds that

a claimant is either disabled or not disabled at any step, the ALJ does not

continue on to the next step. Id.; see also Bustamante v. Massanari,

262 F.3d 949, 953–54 (9th Cir. 2001) (discussing the five-step evaluation

in detail).

8 ZAVALIN V. COLVIN

limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th

Cir. 1995); see also 20 C.F.R. § 416.920(g). The ALJ first

assesses a claimant’s “residual functional capacity,” defined

as the most that a claimant can do despite “physical and

mental limitations” caused by his impairments and related

symptoms. 20 C.F.R. § 416.945(a)(1). The ALJ then

considers potential occupations that the claimant may be able

to perform. See 20 C.F.R. § 416.966. In making this

determination, the ALJ relies on the DOT, which is the SSA’s

“primary source of reliable job information” regarding jobs

that exist in the national economy. Terry v. Sullivan,

903 F.2d 1273, 1276 (9th Cir. 1990); see also 20 C.F.R.

§§ 416.969, 416.966(d)(1). The DOT describes the

requirements for each listed occupation, including the

necessary General Educational Development (“GED”) levels;

that is, “aspects of education (formal and informal) . . .

required of the worker for satisfactory job performance.”

DOT, App. C, 1991 WL 688702 (4th ed. 1991). The GED

levels includes the reasoning ability required to perform the

job, ranging from Level 1 (which requires the least reasoning

ability) to Level 6 (which requires the most). See id.

In addition to the DOT, the ALJ relies on the testimony of

vocational experts who testify about specific occupations that

a claimant can perform in light of his residual functional

capacity. 20 C.F.R. § 416.966(e); Valentine v. Comm’r Soc.

Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Finally, to

conclude the Step Five analysis, the ALJ determines

“whether, given the claimant’s [residual functional capacity],

age, education, and work experience, he actually can find

some work in the national economy.” Valentine, 574 F.3d at

689; see also 20 C.F.R. § 416.920(g).

ZAVALIN V. COLVIN 9

When there is an apparent conflict between the vocational

expert’s testimony and the DOT—for example, expert

testimony that a claimant can perform an occupation

involving DOT requirements that appear more than the

claimant can handle—the ALJ is required to reconcile the

inconsistency. Massachi v. Astrue, 486 F.3d 1149, 1153–54

(9th Cir. 2007). The ALJ must ask the expert to explain the

conflict and “then determine whether the vocational expert’s

explanation for the conflict is reasonable” before relying on

the expert’s testimony to reach a disability determination.

Id.; see also Social Security Ruling 00-4P, 2000 WL

1898704, at *2 (Dec. 4, 2000). The ALJ’s failure to resolve

an apparent inconsistency may leave us with a gap in the

record that precludes us from determining whether the ALJ’s

decision is supported by substantial evidence. See Massachi,

486 F.3d at 1154 (stating that “we cannot determine whether

the ALJ properly relied on [the vocational expert’s]

testimony” due to unresolved occupational evidence).

B

We now turn to Zavalin’s claim that the ALJ erred at Step

Five. Zavalin does not contest the ALJ’s finding that his

residual functional capacity limits him to simple, routine, or

repetitive work. He argues, however, that there is an inherent

inconsistency between his limitation to simple, routine tasks,

and the requirements of Level 3 Reasoning.

We have not in our circuit addressed this question, and it

is one on which our sister circuits are split. For example, in

Hackett v. Barnhart, the Tenth Circuit held that a claimant’s

limitation to “simple and routine work tasks” is “inconsistent

with the demands of level-three reasoning” because the

plaintiff’s residual functional capacity was more consistent

10 ZAVALIN V. COLVIN

with Level 2 than Level 3 Reasoning. 395 F.3d 1168, 1176

(10th Cir. 2005). In contrast, with little analysis, the Seventh

and Eighth Circuits rejected the claim that a conflict exists.

See Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009);

Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007).

District courts in our circuit that have confronted this issue

are also divided. See, e.g., Adams v. Astrue, No. C 10-2008

DMR, 2011 WL 1833015, at *4 (N.D. Cal. May 13, 2011)

(stating that “there appears to be a conflict between” a

limitation to “simple, repetitive tasks” and Level 3

Reasoning); Wentz v. Astrue, CIV. No. 08-661-PK, 2009 WL

3734104, at *13–15 (D. Or. Nov. 4, 2009) (finding “no

apparent conflict” between a limitation to “simple, routine,

repetitive work” and Level 3).

Today, we join the Tenth Circuit and hold that there is an

apparent conflict between the residual functional capacity to

perform simple, repetitive tasks, and the demands of Level 3

Reasoning. We find the conflict to be plain when we

consider, side-by-side, the definitions of Level 2 and Level 3

Reasoning:

LEVEL 2

Apply commonsense understanding to carry

out detailed but uninvolved written or oral

instructions. Deal with problems involving a

few concrete variables in or from standardized

situations.

LEVEL 3

Apply commonsense understanding to carry

out instructions furnished in written, oral, or

ZAVALIN V. COLVIN 11

diagrammatic form. Deal with problems

involving several concrete variables in or

from standardized situations.

DOT, App. C, 1991 WL 688702. Level 2

Reasoning—applying common sense to carry out detailed but

uncomplicated instructions and dealing with problems

involving a few variables—seems at least as consistent with

Zavalin’s limitation as Level 3 Reasoning, if not more so.

See Hackett, 395 F.3d at 1176 (noting that Level 2 “appears

more consistent” than Level 3 for a claimant limited to

simple, routine tasks). Further, Zavalin’s limitation to

simple, routine tasks is at odds with Level 3’s requirements

because “it may be difficult for a person limited to simple,

repetitive tasks to follow instructions in ‘diagrammatic form’

as such instructions can be abstract.” Adams, 2011 WL

1833015, at *4.

The Commissioner argues that the DOT’s reasoning

levels correspond only to a person’s level of education and,

therefore, Zavalin is presumptively capable of Level 3

Reasoning because he completed high school. We are

unpersuaded. Contrary to the Commissioner’s claim, the

DOT specifically defines GED reasoning levels to include

“informal” as well as “formal” education that is required for

“satisfactory job performance.” DOT, App. C, 1991 WL

688702. Thus, there is no rigid correlation between reasoning

levels and the amount of education that a claimant has

completed. While Zavalin’s educational background is

relevant, the DOT’s reasoning levels clearly correspond to the

claimant’s ability because they assess whether a person can

“apply” increasingly difficult principles of rational thought

and “deal” with increasingly complicated problems. Id. For

example, Level 1 requires the ability to “carry out simple

12 ZAVALIN V. COLVIN

one- or two-step instructions,” whereas Level 6 requires the

application of “principles of logical or scientific thinking to

a wide range of intellectual and practical problems.” Id.

Moreover, the Commissioner’s reliance on Zavalin’s

completion of high school ignores the fact that he was in

special education classes, and succeeded in regular classes

only with special accommodations that allowed him to work

at his own pace. Further, while he graduated, Zavalin

received a modified diploma, which is conferred on “students

who have demonstrated the inability to meet the full set of

academic content standards for a high school diploma even

with reasonable modifications and accommodations.” Or.

Admin. R. 581-022-1134(2).

In sum, because the ALJ failed to recognize an

inconsistency, she did not ask the expert to explain why a

person with Zavalin’s limitation could nevertheless meet the

demands of Level 3 Reasoning. We conclude that the ALJ

erred in failing to reconcile this apparent conflict.

II

Lastly, we address whether the ALJ’s error is harmless.

See Molina, 674 F.3d at 1111 (stating that “we may not

reverse an ALJ’s decision on account of an error that is

harmless”). In making this determination, we are

“constrained to review the reasons the ALJ asserts” and

“cannot affirm the decision of an agency on a ground that the

agency did not invoke in making its decision.” Stout v.

Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.

2006) (citations and internal quotation marks omitted). The

parties dispute whether Zavalin’s abilities, such as his success

in school, demonstrate that he is capable of working as a

cashier and surveillance system monitor, such that the ALJ’s

ZAVALIN V. COLVIN 13

error in failing to reconcile any inconsistency would be

harmless.

We first consider the DOT’s descriptions of these jobs.

A surveillance system monitor is a security employee

responsible for monitoring security cameras in public

transportation terminals. The employee must be able to

“detect crimes or disturbances,” “notify authorities” when

required, while continuing to “maintain surveillance of [the]

location where [the] incident is developing.” DOT

379.367-010, 1991 WL 673244. A cashier must be able to

compute bills, itemized lists, and tickets showing the amount

due, reconcile the cash register’s tape against cash on hand,

and give cash refunds and issue credit memorandums to

customers for returned merchandise. DOT 211.462-010,

1991 WL 671840.

The Commissioner relies heavily on Zavalin’s success in

math, which was one of his strengths while in school, and his

use of computers and video games, to argue that he is capable

of performing the identified jobs. However, while the record

shows that Zavalin did well in math, it was in the context of

a special education program. As for his use of the computer

and video games, the ALJ did not rely on this evidence, and

we cannot do so now to find the error harmless. Stout,

454 F.3d at 1054. Even if we were to consider this evidence,

we are not persuaded that it shows Zavalin possesses the

requisite reasoning ability because there is no indication of

the extent or manner of his computer use, or the complexity

of the video games.

Certainly, Zavalin’s educational successes are not

irrelevant and we agree that he appears capable of performing

some of the duties required in these occupations. However,

14 ZAVALIN V. COLVIN

other tasks seem neither simple nor routine. As a cashier,

reconciling the cash on hand against the cash register’s tape

and issuing credit memorandums to customers could contain

situational variables that may not be simple or repetitive.

Similarly, a surveillance system monitor may be called upon

to use discretion and judgment in rapidly evolving scenarios,

including deciding when a situation requires the authorities to

be notified, all while continuing to maintain surveillance.

On this mixed record, “we cannot determine whether

substantial evidence supports the ALJ’s step-five finding that

[Zavalin] could perform [the] work.” Massachi, 486 F.3d at

1154. We therefore conclude that the ALJ’s failure to

reconcile the apparent conflict is not harmless.

CONCLUSION

We reverse and remand to the district court so that it may

remand to the SSA for further proceedings consistent with

this opinion. See Moisa v. Barnhart, 367 F.3d 882, 886 (9th

Cir. 2004). We do not reach the parties’ remaining

arguments.

REVERSED AND REMANDED.