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Zavalin v. Colvin

United States Court of Appeals, Ninth Circuit

February 20, 2015

IGOR ZAVALIN, Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Defendant-Appellee

Argued and Submitted: October 10, 2014, Portland, Oregon

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

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.

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.

Before: Ronald M. Gould, Morgan Christen, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen.

OPINION

Page 843

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,

Page 844

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 ...


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