Kathy S. Shade v. Michael J. Astrue, No. 2:2009cv01153 - Document 15 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KATHY S. SHADE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 09-1153-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on February 24, 2009, seeking review 26 of the Commissioner s denial of benefits. Plaintiff and Defendant 27 consented to proceed before a United States Magistrate Judge. 28 Plaintiff filed a motion for summary judgment on June 29, 2009 ( Pl. s 1 Mot. ). Defendant filed a cross-motion for summary judgment on 2 July 23, 2009 ( Def. s Mot. ). 3 submission without oral argument. 4 February 27, 2009. The Court has taken both motions under See L.R. 7-15; Order, filed 5 6 BACKGROUND 7 8 9 Plaintiff filed an application for supplemental security income on or about July 23, 2007, alleging disability beginning December 30, 10 2002 (Administrative Record ( A.R. ) 7, 98, 118-19). Plaintiff 11 asserts disability based on several alleged impairments, including 12 lack of oxygen/numbness of left side of body and very poor vision 13 specially [sic] on the right eye, depression and mental condition 14 (A.R. 119; see also Pl. s Mot., p. 2 (adding chronic headaches)). 15 ALJ examined the medical record and heard testimony from Plaintiff and 16 from a vocational expert (A.R. 7-373). An 17 18 The ALJ found Plaintiff suffers from severe impairments (i.e., 19 chronic headaches, neck pain and vision problems ), but retains the 20 residual functional capacity to perform a limited range of medium 21 work1 (A.R. 9-11). Specifically, the ALJ found Plaintiff could: 22 23 24 25 1 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, the Administration deems such claimant able to do sedentary and light work. See 20 C.F.R. § 416.967(c). SSR 83-10 instructs: 26 27 28 A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8hour workday in order to meet the requirements of (continued...) 2 1 . . . lift and carry 50 pounds occasionally and 25 pounds 2 frequently. She can sit and stand for 6 hours out of an 3 8 hour day. She can occasionally walk on uneven terrain, 4 climb ladders and work around heights. 5 visual problems restricting her near acuity. The claimant has 6 7 (A.R. 11). 8 9 The ALJ stated Plaintiff has past relevant work as a home 10 attendant, retail sales clerk, telemarketer, and security guard (A.R. 11 12). 12 telemarketing job as it was actually and generally performed (A.R. 13 12-13 (purportedly adopting vocational expert testimony at A.R. 56- 14 58)).2 The ALJ found that Plaintiff retains the capacity to perform the The Appeals Council denied review (A.R. 1-3). 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 20 21 22 23 24 1 (...continued) frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time. Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms. 25 See SSR 83-10. 26 2 27 28 The Administration properly may deny disability benefits when the claimant can perform the claimant s past relevant work as actually performed or as usually or generally performed. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). 3 1 Administration s decision to determine if: (1) the Administration s 2 findings are supported by substantial evidence; and (2) the 3 Administration used proper legal standards. 4 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 5 499 F.3d 1071, 1074 (9th Cir. 2007). 6 relevant evidence as a reasonable mind might accept as adequate to 7 support a conclusion. 8 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 9 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 10 11 DISCUSSION 12 13 For the reasons discussed below, both parties motions for 14 summary judgment are denied and this matter is remanded for further 15 administrative proceedings pursuant to sentence four of 42 U.S.C. 16 section 405(g). 17 18 19 In finding that Plaintiff could perform her past relevant work as a telemarketer, the ALJ stated: 20 21 The vocational expert testified that because of her 22 restricted vision, the claimant cannot perform her past jobs 23 as a home attendant, retail sales clerk, or security guard, 24 but the vocational expert testified that she can perform her 25 past work as a telemarketer. 26 27 (A.R. 12). 28 This statement mischaracterizes the vocational expert s testimony. 4 1 The vocational expert did not testify that Plaintiff can perform 2 her past work as a telemarketer. The vocational expert testified that 3 a person with the limitations the ALJ posed could work as a 4 telemarketer per the Dictionary of Occupational Titles ( DOT ) (A.R. 5 55-56). 6 definition of telemarketing was 20 years old, implying that the DOT 7 definition may no longer accurately describe the job as generally 8 performed (A.R. 56). 9 with Plaintiff that the telemarketing job as Plaintiff performed the 10 job required Plaintiff to stare at a computer screen all day long, 11 the vocational expert testified that Plaintiff could not perform her 12 job as a telemarketer (A.R. 57). 13 does not support the ALJ s determination that Plaintiff could perform 14 her past telemarketing job as actually performed. 15 record, substantial evidence also fails to support the ALJ s 16 alternative determination that Plaintiff could perform the job as 17 generally performed. 18 and possibly outmoded nature of the DOT s telemarketing definition 19 precludes affirmance on the basis of this alternative determination. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// However, the vocational expert also testified that the DOT s When the ALJ clarified the record by confirming Accordingly, substantial evidence On the present The vocational expert s reference to the dated 5 1 The ALJ s error in mischaracterizing the vocational expert s 2 testimony concerning the telemarketing job was not harmless.3 3 vocational expert testified that a person with the limitations the ALJ 4 posed could work as a home attendant (DOT 354.377-014) (A.R. 57). 5 However, the ALJ did not find that Plaintiff can work as a home 6 attendant (A.R. 57-58).4 7 insufficient evidence in the record to establish that Plaintiff s 8 prior work as a home attendant amounted to past relevant work. The Moreover, as discussed below, there is 9 10 Plaintiff reportedly worked as a home attendant for IHSS In Home 11 Support Services from May 1997 through October 1997 (A.R. 120). 12 Plaintiff s reported earnings from IHSS Recipients in 1997 totaled 13 $1,766.51 (A.R. 103). Assuming Plaintiff worked for IHSS for six 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The ALJ committed a separate error with respect to the vocational expert s testimony, but this separate error may well have been harmless. The ALJ s hypothetical question to the vocational expert assumed a person capable of performing heavy work (i.e., lifting and carrying 100 pounds occasionally and 50 pounds frequently) (A.R. 56). As noted above, the ALJ found that Plaintiff retained the residual functional capacity to perform only medium work. See A.R. 11. Accordingly, the hypothetical question posed to the vocational expert erroneously failed to include all of Plaintiff s exertional restrictions. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (hypothetical questioning of a vocational expert must set out all of the claimant s impairments ). 4 The ALJ stated, inaccurately, that the vocational expert testified Plaintiff cannot perform her past job[] as a home attendant . . . (A.R. 12). 6 1 months in 1997 as reported,5 her monthly income from the home 2 attendant work was $294.42 ($1,766.51 divided by six). 3 4 Earnings levels are relevant to the question of whether 5 particular employment does or does not constitute substantial gainful 6 activity that could qualify as past relevant work. 7 960(b)(1) (defining past relevant work as work that was substantial 8 gainful activity ); 20 C.F.R. § 416.974 (guidelines for determining if 9 work is substantial gainful activity ); Lewis v. Apfel, 236 F.3d 503, 10 515 (9th Cir. 2001); Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 11 1990); see also Bray v. Commissioner of Social Security Admin., 554 12 F.3d 1219, 1221 n.1 (9th Cir. 2009) (noting that claimant s 13 unsuccessful work attempt cannot be considered past relevant work 14 under the regulations). 15 substantial gainful activity, the work cannot qualify as past 16 relevant work. 17 F.3d 1044, 1051 (9th Cir. 2001). See 20 C.F.R. § Unless a claimant s prior work constituted See 20 C.F.R. § 416.965(a); Vertigan v. Halter, 260 18 19 For the years from January 1990 through June 1999 a period 20 encompassing the time when Plaintiff worked as a home attendant the 21 regulations provided that monthly earnings must average more than $500 22 to show that a person was engaged in substantial gainful activity. 23 See 20 C.F.R. § 416.974(b)(2)(I). 24 levels triggering a presumption of substantial gainful activity, as When earnings are less than the 25 26 27 28 5 When the ALJ inquired into this position at the hearing, Plaintiff testified that she worked as a home attendant for two summers, for two years and affirmed that would be like three months each time (A.R. 24). However, there is no record of earnings for IHSS in 1998 (A.R. 103). 7 1 here, the ALJ should consider and discuss other evidence bearing on 2 the issue of whether the prior work was substantial gainful activity. 3 See 20 C.F.R. § 416.974(b)(3); Lewis v. Apfel, 236 F.3d at 515. 4 evidence can include the nature of the claimant s work, how well the 5 claimant performed the work, whether the work was done under special 6 conditions, whether the claimant was self-employed, and the amount of 7 time the claimant spent at the work. 8 515-16; 20 C.F.R. §§ 416.973, 416.974(b)(3). 9 presumably because the ALJ made no finding regarding Plaintiff s Such Id. Lewis v. Apfel, 236 F.3d at In the present case, 10 current ability to perform the home attendant job, the ALJ failed to 11 discuss any of the factors pertinent to an analysis of whether 12 Plaintiff s prior work as a home attendant constituted substantial 13 gainful activity. 14 15 When a court reverses an administrative determination, the 16 proper course, except in rare circumstances, is to remand to the 17 agency for additional investigation or explanation. 18 537 U.S. 12, 16 (2002) (citations and quotations omitted). 19 proper where, as here, additional administrative proceedings could 20 remedy the defects in the decision. 21 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 22 1496, 1497 (9th Cir. 1984). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 8 INS v. Ventura, Remand is McAllister v. Sullivan, 888 F.2d 1 CONCLUSION 2 3 For all of the foregoing reasons,6 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: August 18, 2009. 10 11 _______________/S/_____________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 9
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