Richard Wilson v. Michael J Astrue, No. 2:2008cv00053 - Document 22 (C.D. Cal. 2008)
Court Description: MEMORANDUM AND DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is not supported by substantial evidence and does not reflect application of the proper legal standards.Accordingly the Commissioner's decision is reversed, and the case is remanded for further adminstrative proceedings consistent with this memorandum of decision. (yb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 RICHARD WILSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. CV 08-00053 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff s application for disability insurance 20 benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ( JS ) setting 21 forth their contentions with respect to each disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural history of this case, which is summarized in the Joint 24 Stipulation. [See JS 2-3]. In an April 2007 written hearing decision that constitutes the final decision of the 25 Commissioner, an administrative law judge ( ALJ ) found that plaintiff had severe impairments consisting 26 of degenerative lumbar disc disease and a medial patella fracture of the right knee, but that he retained the 27 residual functional capacity ( RFC ) to lift 50 pounds occasionally and 10 pounds frequently and to walk 28 or stand for a total of 6 hours in an 8-hour work day. [Administrative Record ( AR ) 20-21]. The ALJ 1 determined that plaintiff s RFC did not preclude performance of his past relevant work as a janitor, and 2 therefore that plaintiff was not disabled. [AR 21-22; JS 2-3]. Standard of Review 3 4 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 5 evidence or is based on legal error. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 6 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 7 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 8 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 9 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 10 required to review the record as a whole and to consider evidence detracting from the decision as well as 11 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 12 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 13 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 14 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 15 Discussion 16 Past relevant work 17 Plaintiff contends that his past relevant work is not within his RFC as delimited by the ALJ, and 18 therefore that the ALJ erred in finding that plaintiff can perform his past relevant work. [See JS 4-22]. 19 A claimant is not disabled if he retains the residual functional capacity to perform the actual 20 functional demands and job duties of a particular past relevant job or the functional demands and job 21 duties of the occupation as generally required by employers throughout the national economy. Pinto v. 22 Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (quoting Social Security Ruling ( SSR ) 82-62); see also 23 Burch, 400 F.3d at 679; Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) ( The claimant has the burden 24 of proving an inability to return to his former type of work and not just to his former job. ). Information 25 from the Dictionary of Occupational Titles ( DOT ), or the testimony of a vocational specialist, may be 26 used to ascertain the demands of an occupation as generally required by employers throughout the national 27 economy. SSR 82-61, 1982 WL 31387, at *2; Villa, 797 F.2d at 798; cf. Maier v. Comm r of the Soc. Sec. 28 Admin., 154 F.3d 913, 915 (9th Cir. 1998) (per curiam) (holding that the ALJ properly relied on expert 2 1 testimony to deviate from the DOT job classification at step five). Regardless of which source of job 2 information is used, the ALJ is required to make specific findings as to the claimant s residual functional 3 capacity, the physical and mental demands of the past relevant work, and the relation of the residual 4 functional capacity to the past work. Pinto, 249 F.3d at 845 (citing SSR 82-62). 5 The ALJ found that plaintiff could lift 50 pounds occasionally and 10 pounds frequently and walk 6 or stand, in combination, for 6 hours during an 8-hour work day. That finding places plaintiff s RFC 7 between medium work and light work.1 Based on information in the DOT, job classification number 8 381.687-018, the ALJ further found that plaintiff could perform the medium[,] unskilled job of janitor as 9 generally performed in the national economy. [AR 21]. 10 Plaintiff argues that he cannot perform the DOT job of janitor because the ALJ found that he can 11 frequently lift no more than 10 pounds. Plaintiff is correct that he cannot meet the strength demands of 12 medium work with the RFC assessed by the ALJ, and that the DOT classifies the job of janitor or industrial 13 cleaner, job number 381.687-018, as medium work. 14 Defendant argues that the label medium work is not controlling because the DOT explains that 15 the job involves [e]xerting 20 to 50 pounds of force occasionally . . . and/or 10 to 25 pounds of force 16 frequently, and that plaintiff s RFC meets the range of strength required by the DOT. That plainly is not 17 so. The DOT says that the job of janitor requires frequently lifting weights as light as 10 pounds and as 18 heavy as 25 pounds. Plaintiff can lift no more than 10 pounds frequently. Therefore, he cannot meet the 19 range of strength demands required to perform the job of janitor as generally required by employers in the 20 national economy according to the DOT. Plaintiff s RFC also precludes him from performing the job of 21 janitor as he actually performed it, because his actual past job involved frequently lifting weights from 20 22 23 24 1 25 26 27 28 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. The full range of light work requires standing or walking, off and on, for a total of approximately six hours of an eight-hour workday. 20 C.F.R. §§ 404.1567(b), 416.967(b). Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. An individual who can perform medium work also can perform sedentary and light work. 20 C.F.R. §§ 404.1567(c), 416.967(c). The DOT definitions are identical. See DOT, Appendix C (4th ed. rev.1991). 3 1 to 50 pounds. [AR 53, 70].2 Accordingly, the ALJ s finding that plaintiff can perform his past relevant work 2 cannot stand. 3 Remedy 4 The choice whether to reverse and remand for further administrative proceedings, or to reverse and 5 simply award benefits, is within the discretion of the court. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th 6 Cir.) (holding that the district court's decision whether to remand for further proceedings or payment of 7 benefits is discretionary and is subject to review for abuse of discretion), cert. denied, 531 U.S. 1038 8 (2000). The Ninth Circuit has observed that the proper course, except in rare circumstances, is to remand 9 to the agency for additional investigation or explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 10 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). The general rule [is] that the 11 decision whether to remand for further proceedings turns upon the likely utility of such proceedings. 12 Harman, 211 F.3d at 1179. 13 The proper remedy in this case is a remand for further administrative proceedings limited to the issue 14 whether plaintiff can perform alternate jobs available in significant numbers in the national economy with 15 the RFC assessed by the ALJ in his April 2007 decision. On remand, the ALJ shall issue a new decision 16 containing appropriate findings. 17 Conclusion 18 For the reasons stated above, the Commissioner's decision is not supported by substantial evidence 19 and does not reflect application of the proper legal standards. Accordingly, the Commissioner's decision 20 is reversed, and the case is remanded for further administrative proceedings consistent with this 21 memorandum of decision. 22 IT IS SO ORDERED. 23 DATED: November 14, 2008 24 _________________________ ANDREW J. WISTRICH United States Magistrate Judge 25 26 27 28 2 The ALJ also found that plaintiff has past relevant work as a construction laborer [AR 17], which plaintiff described as involving heavy work. [AR 57, 70]. Nothing in the record suggests that plaintiff could perform that job with the RFC assigned by the ALJ. 4
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