Alberto Concha v. Michael J. Astrue, No. 2:2009cv03044 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the foregoing reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this Memorandum Opinion and Order. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALBERTO CONCHA, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-3044-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying his application 20 for Disability Insurance benefits ( DIB ). 21 Administrative Law Judge ( ALJ ) erred when he: 1) found that 22 Plaintiff s mental impairment did not meet or equal a Listed 23 Impairment; and 2) found that, though Plaintiff could not do his past 24 relevant work, he could perform other work that existed in the 25 national and local economy. 26 Agency s decision that Plaintiff was not disabled is not supported by 27 substantial evidence, the decision is reversed and the case is 28 remanded for further proceedings. Plaintiff claims that the (Joint Stip. at 3-5, 12-22.) Because the 1 II. SUMMARY OF PROCEEDINGS 2 Plaintiff applied for DIB on June 12, 1998, alleging that he had 3 been unable to work since September 30, 1995, when he fell off a 4 tractor and hit his head on a pipe, causing him to suffer a brain 5 injury which markedly affected his ability to think. 6 Record ( AR ) 674.) 7 reconsideration, Plaintiff requested and was granted a hearing before 8 an ALJ. 9 through an interpreter at the hearing on January 31, 2000. (AR 87-98.) (Administrative After his application was denied initially and on Plaintiff appeared with counsel and testified (AR 524- 10 62.) 11 Plaintiff was disabled and entitled to benefits from July 7, 1996 to 12 March 1, 1998, but not thereafter. 13 the Appeals Council, which issued an order on November 18, 2003, 14 vacating the decision and remanding for further proceedings. 15 02.) 16 On July 21, 2000, the ALJ issued a decision finding that (AR 59-65.) Plaintiff appealed to (AR 400- On December 16, 2004, the same ALJ held a second hearing, at 17 which Plaintiff again appeared with counsel and testified through an 18 interpreter. 19 decision, finding that Plaintiff was not disabled at any time from 20 October 1, 1996 through December 31, 1997, the date he was last 21 insured for disability benefits. 22 request for review, which the Appeals Council denied. 23 then filed an action in this court. 24 (AR 563-602.) On August 8, 2005, the ALJ issued a new (AR 606-17.) Plaintiff filed a (AR 6-11.) He On June 4, 2007, the district court reversed and remanded the 25 case, finding that the ALJ had failed to obtain medical testimony as 26 instructed by the Appeals Council. 27 Appeals Council issued an order, remanding the case to a new ALJ. 28 669-70.) (AR 673-82.) 2 On May 13, 2008, the (AR 1 On November 13, 2008, a third hearing was held, at which 2 Plaintiff again appeared with counsel and again testified through an 3 interpreter. 4 decision denying benefits. 5 commenced the instant action. (AR 708-51.) 6 7 On February 23, 2009, the ALJ issued a (AR 606-17.) Plaintiff thereafter III. DISCUSSION 1. The ALJ Did Not Err In Finding That Plaintiff Did Not Equal Listing 12.05(C) 8 9 In his first claim of error, Plaintiff contends that the ALJ 10 erred at step three of the sequential disability analysis when he 11 found that Plaintiff s mental impairment did not equal Listing 12 12.05(C), mental retardation.1 13 following reasons, the Court concludes that the ALJ did not err. 14 (Joint Stip. at 3-5.) For the A claimant whose impairment or combination of impairments equals 15 one of the Listed impairments is disabled. See Lewis v. Apfel, 236 16 F.3d 503, 512 (9th Cir. 2001) (citing 20 C.F.R. § 404.1520(d)). 17 equal a Listing, the claimant must establish symptoms, signs, and 18 laboratory findings at least equal in severity and duration to the 19 characteristics of a relevant listed impairment, or, if a claimant s 20 impairment is not listed, then to the listed impairment most like 21 the claimant s impairment. 22 1100 (9th Cir. 1999) (quoting 20 C.F.R. § 404.1526) (emphasis in 23 original); see also Sullivan v. Zebley, 493 U.S. 521, 531 (1990) ( For 24 a claimant to qualify for benefits by showing that his . . . 25 impairment . . . is equivalent to a listed impairment, he must To Tackett v. Apfel, 180 F.3d 1094, 1099- 26 27 1 28 Plaintiff concedes that he does not meet the requirements of Listing 12.05(C). (Joint Stip. at 3-4.) 3 1 present medical findings equal in severity to all the criteria for the 2 one most similar impairment. ) (emphasis in original). 3 4 Here, Plaintiff contends that he equals Listing 12.05(C), mental retardation, which provides: 5 Mental retardation refers to significantly subaverage 6 general intellectual functioning with deficits in adaptive 7 functioning initially manifested during the developmental 8 period; i.e., the evidence demonstrates or supports onset of 9 the impairment before age 22. [¶] The required level of 10 severity for this disorder is met when the requirements in 11 A, B, C, or D are satisfied. . . . 12 [¶] . . . 13 C. 14 through 70 and a physical or other mental impairment 15 imposing an additional and significant work-related 16 limitation of function[.] 17 18 A valid verbal, performance, or full scale IQ of 60 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Plaintiff argues that his condition equals the Listing because 19 examining psychologist Dr. Izzi determined that his I.Q. was 65; the 20 ALJ found that he has other severe limitations, namely left-side 21 muscle wasting; and psychiatrist Dr. Kivowitz testified at the 2008 22 hearing that loss of cognitive functioning could be expected from the 23 injury that Plaintiff suffered. 24 disagrees. 25 (Joint Stip. at 4-5.) The Court Listing 12.05(C) requires that the onset of mental retardation be 26 established before the claimant turns 22. Obviously, Plaintiff did 27 not suffer from mental retardation before he was 22. 28 able to earn a college degree. In fact he was According to Plaintiff, his impairment 4 1 was caused by a fall he sustained when he was 40 years old. Thus, he 2 is categorically excluded from Listing 12.05(C) and cannot circumvent 3 the early onset requirement by arguing that he equals the Listing. 4 See, e.g., Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007) ( The 5 requirement of early onset and the reference to the claimant s 6 developmental period in the introductory paragraph of Section 12.05 7 seem intended to limit coverage to an innate condition, rather than a 8 condition resulting from a disease or accident in adulthood. ); see 9 also Foster v. Halter, 279 F.3d 348, 354-55 (6th Cir. 2001) (affirming 10 ALJ s conclusion that claimant did not meet or equal Listing 12.05 11 where the evidence did not demonstrate or support onset of the 12 impairment before age 22); Williams v. Sullivan, 970 F.2d 1178, 1185- 13 86 (3d Cir. 1992) (holding that claimant failed to show that his 14 impairment was equal to Listing 12.05(C) where evidence did not 15 substantiate that his mental retardation existed before age 22) 16 (citing Zebley, 493 U.S. at 531); see also Christner v. Astrue, 498 17 F.3d 790, 793 (8th Cir. 2007) (remanding where some circumstantial 18 evidence, including low-grade dropout and special education 19 classes, supported argument that claimant s mental retardation 20 manifested before age twenty-two, as section 12.05 also requires. ); 21 Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001) (remanding 22 for further proceedings after recognizing rebuttable presumption that 23 IQ s remain fairly constant throughout a claimant s life, absent 24 evidence of sudden trauma that can cause retardation[.] ); Gomez v. 25 Astrue,__ F. Supp.2d __, 2010 WL 546337, at *10, 11 (C.D. Cal. 2010) 26 (remanding for further consideration of whether claimant met or 27 equaled Listing 12.05(C) where records satisfied requirement that 28 plaintiff have manifested deficits in adaptive functioning during the 5 1 developmental period , i.e. before age 22). 2 requirement would be rendered meaningless if a claimant who suffered a 3 mental impairment following his 22nd birthday could skirt the early 4 onset requirement by asserting that he equaled the Listing. 5 reasons, the claim is denied. 6 7 8 9 2. The early onset For these The ALJ s Finding That Plaintiff Could Perform Other Work Is Not Supported by Substantial Evidence In his second claim of error, Plaintiff contends that the ALJ erred in concluding that he could perform several jobs identified by 10 the vocational expert. 11 him from performing these jobs as they are described in the Dictionary 12 of Occupational Titles ( DOT ). 13 following reasons, the Court agrees. 14 Plaintiff argues that his limitations preclude (Joint Stip. at 12-22.) For the The ALJ concluded that Plaintiff was illiterate and could not 15 communicate in English. 16 include these limitations in the hypothetical question to the 17 vocational expert. 18 vocational expert concluded that Plaintiff could no longer perform his 19 old job but could perform the jobs of photocopying machine operator, 20 marker, and toll collector. 21 (AR 616.) (AR 737-40.) The ALJ neglected, however, to Based on the hypothetical, the (AR 740-41.) Plaintiff contends that the ALJ erred because these jobs require 22 an ability to read and to communicate in English. The Agency concedes 23 that the ALJ erred in finding that Plaintiff could work as a toll 24 collector, but argues that he did not err as to the other two jobs. 25 (Joint Stip. at 22-26.) 26 consider the context in which the ALJ determined that Plaintiff was 27 illiterate and could not communicate in English, focusing on The Agency argues that the Court should 28 6 1 Plaintiff s testimony that only sometimes he did not understand it. 2 (AR 23.) 3 The Agency s attempt to recast the ALJ s finding that Plaintiff 4 was illiterate and could not communicate in English is rejected. 5 ALJ s ruling on this issue was not ambiguous. 6 empowered to reinterpret his ruling at this stage. 7 that the ALJ said what he meant to say when he found that Plaintiff 8 was illiterate and could not communicate in English. 9 The And the Agency is not The Court presumes That being said, this issue, obviously, mandates remand. 10 According to the DOT, both jobs require the ability to recognize 2,500 11 words, read at the rate of 95-120 words per minute, print simple 12 sentences, and speak simple sentences, using normal word order, and 13 present and past tenses. 14 (Photocopying Machine Operator), DOT 209.587-034, 1991 WL 671802 15 (Marker). 16 communicate in English is not capable of performing these jobs. 17 ALJ s conclusion that Plaintiff could was in error. 18 limitations should be included in the hypothetical to the vocational 19 expert. 20 (9th Cir. 2006) (holding that hypothetical question that does not 21 include all of a claimant s restrictions is legally inadequate); see 22 also Embrey v. Bowen, 849 F.2d 418, 423-24 (9th Cir. 1988) (holding 23 that, if vocational expert testimony does not take into consideration 24 all of claimant s limitations, the testimony has no evidentiary value 25 and cannot support ALJ s decision). 26 27 See DOT 207.685.014, 1991 WL 671745 By definition then, an illiterate person who cannot The On remand, these See, e.g., Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 Plaintiff also claims that the ALJ s finding that he was limited to simple, routine, repetitive tasks precludes him from performing 28 7 1 work requiring an SVP level of two. 2 disagrees. 3 (Joint Stip. at 17.) The Court An SVP of two denotes essentially unskilled work, i.e. work 4 which needs little or no judgment to do simple duties that can be 5 learned on the job in a short period of time, usually within 30 days, 6 and requiring little specific vocational preparation and judgment, 7 20 C.F.R. § 404.1568(a); see Terry v. Sullivan, 903 F.2d 1273, 1276-77 8 (9th Cir. 1990) (holding that SVP of two corresponds precisely to the 9 definition of unskilled work in regulations). Nevertheless, the SVP 10 level in a DOT listing indicating unskilled work does not address 11 whether a job entails only simple, repetitive tasks[,] because a 12 job s SVP is focused on the amount of lapsed time it takes for a 13 typical worker to learn the job s duties[,] not the reasoning level 14 required to perform that job. 15 981, 983 (C.D. Cal. 2005) (holding that a job s reasoning level score 16 is directly on point with limitation to simple repetitive work). 17 Here, both jobs require a reasoning level of two, (see DOT 18 207.685.014, 1991 WL 671745 (Photocopying Machine Operator); DOT 19 209.587-034, 1991 WL 671802 (Marker)), which is not inconsistent with 20 a limitation to simple, repetitive tasks. 21 Burnett, 395 F.3d 1168, 1176 (10th Cir. 2005) (noting that level-two 22 reasoning appears more consistent with simple and routine work 23 tasks ); Meissl, 403 F. Supp. 2d at 983-984 (holding that vocational 24 expert s testimony that claimant restricted to simple and repetitive 25 tasks could perform job requiring level-two reasoning was not 26 inconsistent with DOT). 27 repetitive or routine tasks is not necessarily precluded from work 28 requiring an SVP of two, the ALJ was entitled to rely on the Meissl v. Barnhart, 403 F. Supp. 2d See, e.g., Hackett v. Because an individual limited to simple and 8 1 vocational expert s testimony that he could do such work. 2 reasons, Plaintiff s argument here is rejected. 3 For these Plaintiff also claims that the ALJ erred when he concluded that 4 Plaintiff could perform these jobs despite his limited use of his left 5 arm and left hand. 6 and unrestricted use of both arms and both hands. 7 In Plaintiff s view, these jobs require frequent Though there is not a lot of law on this subject, what little 8 there is suggests that the ALJ s decision is right, i.e., the 9 requirement of frequent use of hands and arms does not necessarily 10 mean both hands and both arms. See, e.g., Carey v. Apfel, 230 F.3d 11 131, 146 (5th Cir. 2000) (holding that vocational expert testimony 12 that claimant, whose left arm had been amputated, could perform work 13 as cashier or ticket seller was not inconsistent with DOT requirement 14 of occasional or frequent handling and fingering where DOT did not 15 require bilateral ability). 16 be helpful to the Court, should the case be back before the Court in 17 the future. 18 address this specific issue and explain whether, under the DOT, a 19 person with limited use of one arm and one hand can perform a job that 20 requires frequent use of the hands and arms. Further development of this issue would It is requested, therefore, that the vocational expert 21 3. Remand Is Appropriate 22 Plaintiff requests that the Court order that the case be remanded 23 for the payment of benefits in this now 12-year-old case. 24 determination whether to remand for further proceedings or for payment 25 of benefits lies within the discretion of the Court. 26 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 27 Social Security disability cases, remand is the proper course. 28 Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir. 2004). 9 The McAllister v. In most circumstances in See This is 1 particularly true where remand may be productive, as where additional 2 proceedings can remedy defects in the administrative proceedings. 3 See, e.g., Celaya v. Halter, 332 F.3d 1177, 1184 (9th Cir. 2003). 4 In this case, it is not clear whether Plaintiff is capable of 5 working or not. This uncertainty is due in part to the fact that some 6 of the doctors who examined and tested Plaintiff believed that he was 7 not trying, i.e., that he was pretending to be more impaired than he 8 actually was. 9 situation and recognizes that he has waited a long time to have these Though the Court is sympathetic to Plaintiff s 10 issues finally decided, it is not prepared to order an award of 11 benefits based on the record now before the Court. 12 will be remanded for further proceedings. 13 F.3d 1172, 1180-81 (9th Cir. 2000); see also Connett v. Barnhart, 340 14 F.3d 871, 876 (9th Cir. 2003). 15 16 Thus, the case See Harman v. Apfel, 211 IV. CONCLUSION For the foregoing reasons, the Agency s decision is reversed and 17 the case is remanded for further proceedings consistent with this 18 Memorandum Opinion and Order. 19 IT IS SO ORDERED. 20 DATED: June 21, 2010. 21 22 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\Concha\Memo_Opinion.wpd 10
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