Tennyson B. v. Kijakazi

Background

Tennyson B. applied for Social Security Disability Insurance benefits under Title II of the Social Security Act, alleging that his disability began on May 1, 2016. The agency initially denied the claim, but at reconsideration it found him disabled beginning January 6, 2020. Tennyson B. requested an administrative hearing only to challenge that later onset date.

After the hearing, Administrative Law Judge Kevin Gill found that Tennyson B. was not disabled at any time from May 1, 2016, through September 30, 2021, his date last insured. The judge found severe impairments involving the spine and shoulder, but concluded that Tennyson B. could perform light work with limits on overhead reaching, climbing, and other postural activities. At step four of the disability analysis, the judge found that he could perform past relevant work as a contract clerk and business representative. The Appeals Council denied review, making the administrative law judge’s decision the final decision of the Commissioner.

Tennyson B. and the defendant filed cross-motions for summary judgment. He argued that the administrative law judge improperly evaluated the opinions of Dr. Anatoliy Fortenko and Dr. Calvin Kuo, failed to resolve a conflict between vocational-expert testimony and the Dictionary of Occupational Titles, and improperly rejected his testimony about pain and other symptoms.

Medical Opinions

The court held that the administrative law judge erred by failing to address Dr. Fortenko’s opinions at all. Dr. Fortenko had treated Tennyson B. numerous times and had twice placed him on modified activity, limiting standing and walking to up to 50 percent of a work shift and bending and twisting to up to 25 percent. The court found those limits inconsistent with the assigned residual functional capacity, which allowed light work and contemplated substantially more standing and walking.

The defendant argued that Dr. Fortenko’s reports did not establish disability for a continuous 12-month period because they covered two periods separated by an eight-month gap. The court rejected that argument because the administrative law judge had not relied on the gap, had not questioned Tennyson B. about it, and the record did not suggest that his condition improved during the gap.

The court rejected Tennyson B.’s separate argument concerning Dr. Kuo. The cited record listed limitations that Tennyson B. reported during a surgical consultation, rather than limitations that Dr. Kuo himself assessed. Because the record did not contain a medical opinion from Dr. Kuo as defined by the applicable regulation, the court found no error in the administrative law judge’s failure to evaluate it as a medical opinion.

Vocational-Expert Testimony

The court also found error at step four. The defendant did not dispute that Tennyson B.’s past relevant work required frequent reaching, while his residual functional capacity limited him to occasional overhead reaching. The vocational expert nevertheless testified that a person with that residual functional capacity could perform the past jobs.

Under Social Security Ruling 00-4p, an administrative law judge must ask whether vocational-expert testimony is consistent with the Dictionary of Occupational Titles and obtain a reasonable explanation for any obvious or apparent conflict. The vocational expert explained only that the Dictionary did not address the direction of reaching and that the expert relied on personal experience. The court found that explanation insufficient. It also found that the administrative law judge improperly attempted to resolve the conflict independently in the written decision by referring to an unnamed source about the jobs’ reaching requirements, rather than obtaining further testimony at the hearing.

Symptom Testimony

The court further found that the administrative law judge’s apparent rejection of Tennyson B.’s symptom testimony did not satisfy the Ninth Circuit’s requirement for specific, clear, and convincing reasons. The decision did not clearly identify which testimony was being rejected or which facts supported the rejection. The judge cited more than 750 pages of medical records generally and relied on conservative treatment, even though the record indicated that medication and acupuncture had not improved the symptoms.

The administrative law judge also appeared to rely on Tennyson B.’s failure to undergo surgery recommended by Dr. Kuo. The court noted that the record did not explain why the surgery did not occur and that the administrative law judge had not asked about the issue during the hearing. The court therefore directed that the symptom testimony be reconsidered on remand.

Disposition

The court granted Tennyson B.’s motion for summary judgment and denied the defendant’s cross-motion for summary judgment. It remanded the case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g), rather than ordering immediate payment of benefits.

On remand, the administrative law judge must reevaluate Dr. Fortenko’s opinions and Tennyson B.’s symptom testimony, reconsider the residual functional capacity and the remaining steps of the disability analysis, hold another hearing to develop the record, and obtain additional vocational-expert testimony. Any remaining conflict between that testimony and the Dictionary of Occupational Titles must be addressed.