Zavalin v. Colvin

• Decision Date: 20 February 2015
• Docket Number: No. 13–35276.,13–35276.
• Citation: 778 F.3d 842
• Parties: Igor ZAVALIN, Plaintiff–Appellant, v. Carolyn W. COLVIN, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

778 F.3d 842

Igor ZAVALIN, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Defendant–Appellee.

No. 13–35276.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 10, 2014

Filed Feb. 20, 2015

Reversed and remanded. Brandon Williams (argued), Merrill Schneider, Schneider, Kerr & Gibney Law Offices, Portland, OR, 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, WA; Kelly A. Zusman, Assistant United States Attorney, and S. Amanda Marshall, United States Attorney, United States Attorneys' Office, Portland, OR, for Defendant–Appellee.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:12–cv–00114–MO.

Before: RONALD M. GOULD, MORGAN CHRISTEN, and JACQUELINE H. NGUYEN, Circuit Judges.

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, 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.

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).

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 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 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 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...