BAYLSON, District Judge:
Appellant Heather Rounds appeals from the district court's affirmance of the decision of a Social Security Administration Administrative Law Judge (ALJ) denying her application for Supplemental Security Income (SSI). Although we find no error in the ALJ's rulings on several issues, we vacate in part and remand because the ALJ failed to reconcile an apparent conflict between a vocational expert's (VE) testimony and the Dictionary of Occupational Titles.
At the time of her SSI application, Rounds was 22 years old, a high school graduate, and the mother of a five-year-old daughter. She was living with her daughter, a roommate/boyfriend named Gavin Lipscomb, and her two cats. In the function report accompanying her application, Rounds described difficulties with social interactions, leaving the house, sleeping, remembering to eat and care for herself, and remembering instructions. Nevertheless, she stated that she was able to care for her daughter and her cats, prepare simple meals, share house work with her roommate, shop for groceries, and pay bills. Lipscomb submitted a third-party function report that described Rounds in similar terms, although he also noted that she "sees no reason to want to work." During her oral testimony in August 2010, Rounds described similar daily activities but also testified to experiencing intermittent severe pain in her shoulders, neck, and back.
Rounds' work history is limited to two short-lived jobs as a cashier at a gas station and at a fast food restaurant. She described such work as "hard and exhausting" due to not fitting in with her co-workers and struggling to interact with customers.
For purposes of this appeal, we focus on whether Rounds was disabled between March 10, 2009, the date of her application, and September 3, 2010, the date of the ALJ's decision.
In March and April 2009, Rounds attended five mental health diagnostic and counseling sessions at the Multnomah County Health Department.
Rounds' medical records were reviewed in May 2009 by Dr. Joshua Boyd and Dr. Richard Alley, whose opinions were used in the initial decision to deny her SSI claim. Her records were reviewed again in July 2009 by Dr. Robert Henry and Dr. Martin Kehrli, whose opinions were used in the denial of Rounds' request for reconsideration.
From August 2009 through at least August 2010, Rounds met with a counselor from Lifeworks NW, Nicole Warren. Warren diagnosed Rounds with generalized anxiety disorder and dysthymic disorder, and treated her for depression and anxiety. During these sessions, Rounds twice admitted that one reason for seeking therapy was to have documentation for her disability claim. However, Warren also noted that Rounds "under reports her problems" to medical providers and "can never think of what to say at the doctor's." Rounds described to Warren physical and lifestyle problems including severe shoulder pain, difficulty interacting with other people, a possible psychotic break while living in Virginia, and her inability to pay to heat her apartment.
In February 2010, Rounds learned about the symptoms of fibromyalgia.
Rounds applied for SSI in March 2009, with a protective filing date of March 10, 2009. She alleged that she had been disabled since June 1, 2005, and listed her disabilities as depression, schizophrenia, social phobias, learning disabilities, cognitive problems, and recurring headaches. Rounds' claim was denied on initial review and again after reconsideration. While awaiting a hearing before an ALJ, Rounds submitted an update alleging that in February and March 2010 she was diagnosed with chronic fibromyalgia syndrome.
In August 2010, an ALJ conducted a hearing and, in September 2010, the ALJ issued his decision denying Rounds' claim. The ALJ followed the five-step evaluation process set out at 20 C.F.R. § 416.920. At Step One, the ALJ found that Rounds had not engaged in substantial gainful activity since March 10, 2009. At Step Two, the ALJ determined that Rounds had severe impairments consisting of major depressive disorder, social phobia, pervasive developmental disorder NOS and cognitive disorder NOS. The ALJ concluded that the record was insufficient to support a finding that fibromyalgia was a medically determinable impairment.
At Step Three, the ALJ determined that Rounds had mild restrictions in activities of daily living, marked difficulties in social functioning, moderate difficulties with concentration, persistence or pace, and no episodes of decompensation. As a result, Rounds' impairments did not meet or equal one of the impairments listed in the Social Security Regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ determined that Rounds had the residual functional capacity (RFC) to "perform a full range of work at all exertional levels but with the following nonexertional limitations: she can perform one to two step tasks with no public contact, no teamwork and limited coworker contact." At Step Four, the ALJ determined that Rounds had no past relevant work. Finally, at Step Five, the ALJ relied on a vocational expert's testimony that someone with Rounds' RFC could perform jobs that exist in the national and local economy, including kitchen helper, hand packager, and recycler/reclaimer. As a result, the ALJ found Rounds was not disabled.
The Social Security Administration Appeals Council denied Rounds' appeal, making the ALJ's decision the final decision of the Commissioner. Rounds appealed to the District Court, which considered the five issues presented for review in this appeal and affirmed the ALJ's decision.
The District Court had jurisdiction under 42 U.S.C. § 405(g). This Court has jurisdiction under 28 U.S.C. § 1291.
This Court "review[s] the district court's order affirming the ALJ's denial of
Rounds contends that the ALJ erred by discrediting her fibromyalgia diagnosis, ignoring opinions from two psychologists, discounting her testimony, discounting other lay witness testimony, and wrongly concluding at Step Five that she could perform jobs that exceed her RFC. We begin by discussing the ALJ's Step Five findings because we hold that they require remand to the ALJ.
At Step Five, "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 limitations.'" Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995)). Based on a VE's testimony, the ALJ concluded that Rounds was capable of performing at least three jobs: kitchen helper, hand packager, and recycler/reclaimer. According to the Dictionary of Occupational Titles (DOT), these jobs require a GED Reasoning Level of Two. DOT (4th ed.1991) § 318.687-010, 1991 WL 672755 (kitchen helper); id. § 920.587-018, 1991 WL 687916 (hand packager); id. § 929.687-022, 1991 WL 688172 (salvage laborer).
There are six GED Reasoning Levels that range from Level One (simplest) to Level Six (most complex). Id., App. C, § III, 1991 WL 688702. The lowest two levels are:
Id. Rounds argues that the ALJ erred because her RFC limitation to "one to two step tasks" exactly matches the Level One standard of carrying out "simple one- or two-step instructions" and is exceeded by the Level Two standard of carrying out "detailed but uninvolved written or oral instructions."
This Court's recent Zavalin opinion held that "[w]hen there is an apparent conflict between the vocational expert's testimony
In Zavalin, this Court remanded to the ALJ because "there [was] an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning," which the ALJ had not recognized and reconciled before relying on the VE's testimony. Id. at 846-48. We conclude that Zavalin — this Court's most recent holding regarding the review of a VE's testimony — controls the analogous facts of this case.
Here, the ALJ stated at the outset of the VE's testimony that "unless you tell me otherwise, I'll assume that your testimony is based on your knowledge, education, training, and experience consistent with the DOT, does that work for you, sir?", to which the VE replied "Yes, sir." Based on that exchange, the ALJ concluded that the VE's testimony was consistent with the DOT. As a result, although the VE's testimony was ostensibly consistent with the DOT, he never directly addressed whether Rounds' limitation to one- to two-step tasks was consistent with jobs requiring Level Two reasoning and, if so, why.
Under these circumstances, Zavalin is controlling. There was an apparent conflict between Rounds' RFC, which limits her to performing one- and two-step tasks, and the demands of Level Two reasoning, which requires a person to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions." The conflict between Rounds' RFC and Level Two reasoning is brought into relief by the close similarity between Rounds' RFC and Level One reasoning. Level One reasoning requires a person to apply "commonsense understanding to carry out simple one- or two-step instructions." The Commissioner resists the obvious similarity between Rounds' RFC and Level One reasoning, and the concomitant contrast between Rounds' RFC and Level Two reasoning, by stressing that "task" and "instruction" are different terms. In the Commissioner's view, Rounds' inability to complete multi-step tasks does not necessarily contradict the VE's opinion that she has the ability to follow detailed instructions, as required in Level Two jobs. Based on the record, we disagree. Only tasks with more than one or two steps would require "detailed" instructions. And these are precisely the kinds of tasks Rounds' RFC indicates she cannot perform.
Because the ALJ did not recognize the apparent conflict between Rounds' RFC and the demands of Level Two reasoning, the VE did not address whether the conflict could be resolved. As a result, we "cannot determine whether substantial evidence supports the ALJ's step-five finding." Id. at 848 (quoting Massachi, 486 F.3d at 1154). On remand, the ALJ must determine whether there is a reasonable explanation to justify relying on the VE's testimony.
The ALJ's failure to reconcile this apparent conflict was not harmless. In his RFC assessment, the ALJ did not merely restrict Rounds to "simple" or "repetitive" tasks.
Rounds argues that the ALJ erred by (a) failing to develop the record of her fibromyalgia diagnosis, (b) relying on the opinions of medical experts who reviewed her records before the fibromyalgia diagnosis or who question the existence of fibromyalgia, and (c) substituting the ALJ's own assessment of the fibromyalgia diagnostic criteria for that of her treating physician. However, we need not reach these arguments.
After the ALJ's decision in this case, the Commissioner adopted SSR 12-2p, which designates two separate sets of diagnostic criteria that can establish fibromyalgia as a medically determinable impairment. SSR 12-2p, 2012 WL 3104869, at *2-3 (Jul. 25, 2012). These criteria, published by the American College of Rheumatology in 1990 and 2010, were both available at the time of Rounds' August 2010 hearing and the
Rounds argues that the ALJ erred by ignoring Dr. Boyd's opinion (also adopted by Dr. Rullman) that Rounds has moderate limitations in her ability to accept instructions and respond appropriately to criticism from supervisors. This "opinion" was a checkbox in Dr. Boyd's "Summary Conclusions" and was not repeated in his narrative "Functional Capacity Assessment." Although it was unpublished, we find persuasive the opinion of a panel of this Court that rejected a similar argument and commented that interpreting such a checkbox to be an "opinion" "is strained." Israel v. Astrue, 494 Fed.Appx. 794, 797 & n. 1 (9th Cir.2012) (unpublished) (noting that the agency describes the "Summary Conclusions" as "merely a worksheet ... and does not constitute the RFC assessment"). In any event, the ALJ explicitly noted that Dr. Boyd had checked this box and gave Dr. Boyd's opinions "great weight" in crafting Rounds' RFC.
Rounds also argues that the ALJ improperly rejected some of Dr. McKenna's "Treatment Recommendations" that Rounds should (a) avoid math or use a calculator, (b) write information down and use various memory aids, (c) request that instructions be repeated and provided both verbally and in writing, and (d) limit customer or public contact. However, Dr. McKenna's formal conclusions were set out in a separate section of her report subtitled "Clinical Formulation/Prognosis" and Rounds does not contend that the ALJ ignored those conclusions. An ALJ may rationally rely on specific imperatives regarding a claimant's limitations, rather than recommendations. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.2008). In addition, the ALJ is responsible for translating and incorporating
We hold that the ALJ's RFC determination — which limited Rounds to "one to two step tasks with no public contact, no teamwork and limited coworker contact" — adequately incorporated the opinions of Dr. McKenna and Dr. Boyd.
Rounds argues that the ALJ improperly rejected her testimony. Having determined that Rounds' medically determinable impairments could reasonably be expected to cause her alleged symptoms, "the ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so." Smolen, 80 F.3d at 1284. "The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Id. To assess a claimant's credibility, the ALJ may consider, among other factors, "ordinary techniques of credibility evaluation," "inadequately explained failure to seek treatment or to follow a prescribed course of treatment," and "the claimant's daily activities." Id. The ALJ must also consider factors including the "observations of treating and examining physicians and other third parties regarding ... the claimant's symptom[s]; ... functional restrictions caused by the symptoms; and the claimant's daily activities." Id.
Here, the ALJ considered Rounds' written and oral testimony and concluded that Rounds' "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." The ALJ explicitly did "not discount the claimant's consistent report of significant difficulties, particularly with interpersonal relationships." In support of these conclusions, the ALJ reviewed and summarized the lay and expert testimony in the record. To justify discounting Rounds' testimony about the severity of her symptoms, the ALJ concluded that her medical records show a higher level of functionality, that she has been uncooperative regarding use of medications and engaging in therapy, and that she appears to access support resources only when she has secondary motivations.
Taken in context, the ALJ's determination of Rounds' RFC was based on the totality of Rounds' and her roommate's testimony about her daily activities and the opinions of Dr. McKenna and Dr. Boyd regarding her functional capabilities. This evidence provides clear and convincing reasons for discounting Rounds' testimony regarding the severity of her symptoms. See Molina, 674 F.3d at 1112-14 (affirming ALJ's decision to discount claimant's testimony based on inconsistencies with her daily activities and the medical evidence, and her failure to seek or follow prescribed treatment); Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir.1992) (affirming ALJ's decision to discount claimant's pain testimony based on his doctor's report, his daily activities, and his secondary motive to seek disability benefits). We discern no error in the ALJ's consideration of Rounds' testimony.
Rounds argues that the ALJ improperly rejected lay witness testimony from Rounds' roommate, Lipscomb, who stated that Rounds needs instructions repeated and has trouble focusing on and finishing tasks. She also argues that the ALJ ignored a lay witness statement from an Oregon state employee, Gary Davidson,
With respect to Lipscomb, the ALJ described his statement as generally consistent with Rounds' testimony and statements, accepted it "as descriptive of his perceptions," but concluded that "it does not provide sufficient support to alter the RFC arrived at herein." The ALJ also noted that Lipscomb's statement indicated that Rounds sees no reason to want to work, suggesting a secondary motive for applying for SSI. It is not clear that the ALJ rejected Lipscomb's statement at all. The ALJ limited her RFC to one- to two-step tasks, which addressed her memory and focus problems. Even if the ALJ discounted his statement, Lipscomb's admission that Rounds has a secondary motive for seeking SSI was a germane reason for doing so.
As for Davidson, even assuming that he was a "competent lay witness," the ALJ's failure to consider his comments was harmless. Davidson was Rounds' appointed representative for filing her SSI claim. As her advocate, he was not a typical lay witness. Even if he qualified as a lay witness, most of his comments were in the form of conclusions that Rounds is disabled and unable to work outside of a sheltered work environment. These are ultimate determinations reserved to the ALJ. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.2001) (noting that even a treating physician's opinion is not binding on the ultimate determination of disability). Davidson's non-conclusory comments refer to "memory problems" and were addressed in the RFC by limiting Rounds to one- to two-step tasks. Accordingly, to the extent the ALJ may have failed to consider Davidson's lay witness evidence, the error was harmless because it was "inconsequential to the ultimate nondisability determination." Molina, 674 F.3d at 1115.
We affirm in part, vacate in part, and remand to the District Court so that it may remand to the agency for further proceedings consistent with this opinion.
