Vivian Elaine Suzuki v. Michael J. Astrue, No. 2:2009cv06317 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the foregoing reasons, the Agencys 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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Vivian Elaine Suzuki v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 VIVIAN SUZUKI, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-6317 PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Before the Court is Plaintiff’s appeal of a decision by Defendant 19 Social Security Administration (“the Agency”), denying her 20 applications for Disability Insurance benefits (“DIB”) and 21 Supplemental Security Income (“SSI”). 22 Administrative Law Judge (“ALJ”) erred in determining her residual 23 functional capacity and identifying her past relevant work. 24 Stip. at 3-7, 10-13.) 25 concludes that the ALJ did err and remands the case to the Agency for 26 further proceedings. Plaintiff claims that the (Joint For the reasons explained below, the Court 27 28 Dockets.Justia.com 1 II. BACKGROUND 2 Plaintiff applied for DIB and SSI on June 26, 2007, alleging that 3 she had been unable to work since June 1, 2005, due to back problems, 4 high blood pressure, and complications from car accidents. 5 (Administrative Record (“AR”) 144-48, 167.) 6 applications initially and on reconsideration. 7 Plaintiff then requested and was granted a hearing before an 8 Administrative Law Judge (“ALJ”). 9 Plaintiff appeared with counsel at the hearing and testified. The Agency denied the (AR 108-10.) 10 83.) 11 benefits. 12 request for review, she commenced this action. (AR 96-107.) On November 5, 2008, (AR 18- On December 15, 2008, the ALJ issued a decision denying (AR 86-95.) After the Appeals Council denied Plaintiff’s 13 (AR 1-7.) III. ANALYSIS 14 A. The ALJ’s Residual Functional Capacity Determination 15 In her first claim of error, Plaintiff contends that the ALJ 16 erred in determining that she was capable of performing light work. 17 (Joint Stip. at 3-7.) 18 that the ALJ erred but that the error was harmless. For the following reasons, the Court concludes 19 Examining orthopedist Dr. Thomas Dorsey opined that Plaintiff was 20 capable of performing work involving a full day of standing and a half 21 day of walking.1 22 C.F.R. § 416.967(b) (“Light work . . . requires a good deal of walking 23 or standing, or when it involves sitting most of the time with some 24 pushing and pulling of arm or leg controls.”) (AR 265.) This equates to light work. See 28 25 26 27 28 1 Dr. Dorsey also made other findings, for example, he determined that Plaintiff could lift 10 pounds frequently and up to 25 pounds occasionally (AR 265), but those other limitations are not at the heart of this dispute. 2 1 Consulting doctor Samuel Landau testified at the hearing that 2 Plaintiff could not stand or walk for more than two hours in an eight- 3 hour workday.2 4 See 28 C.F.R. § 416.967(b); and Social Security Ruling 83-10 (“[T]he 5 full range of light work requires standing or walking, off and on, for 6 a total of approximately 6 hours of an 8-hour workday.”). 7 (AR 27.) These limitations equate to sedentary work. The ALJ determined that Plaintiff was capable of light work. 8 92.) 9 opinion that Plaintiff was limited to sedentary work. (AR However, he never explained why he was rejecting Dr. Landau’s 10 contends this was error. 11 least on the surface, to agree. 12 the [residual functional capacity] was mistranscribed, and failed to 13 list Plaintiff’s standing, walking, and sitting restrictions (AR 92).” 14 (Joint Stip. at 8.) 15 fact, the ALJ actually adopted Dr. Landau’s residual functional 16 capacity finding and, therefore, any error was harmless. 17 at 8-9.) 18 (Joint Stip. at 5-6.) Plaintiff The Agency seems, at It writes, “As Plaintiff indicates, The Agency goes on to argue, however, that, in (Joint Stip. The ALJ clearly erred when he wrote at page four of his decision 19 that Plaintiff could perform light work. 20 of his decision, however, he corrected that error by noting that 21 Plaintiff could only stand and/or walk for two hours in an eight-hour 22 workday. 23 capacity he described for the vocational expert and on which the 24 vocational expert based his opinion. 25 expert to assume Plaintiff had the same physical restrictions as (AR 93.) (AR 92.) On the next page This was consistent with the residual functional (AR 62 (instructing vocational 26 27 2 28 Dr. Landau offered limitations for other functions, too, but they are not in question here. 3 1 described by Dr. Landau).) The vocational expert testified that 2 Plaintiff, or someone like her, could not perform Plaintiff’s previous 3 work as it was actually performed, but could perform the work as it is 4 generally performed, i.e., at a sedentary level.3 5 Adopting this testimony, the ALJ concluded that Plaintiff’s functional 6 limitations would not prevent her from performing her past relevant 7 work as a “credit clerk/charge account clerk.” 8 ALJ clearly based his conclusions at step four on the exertional 9 limitations opined by Dr. Landau, it is apparent that he did not (AR 63-64.) (AR 95.) Because the 10 actually reject that doctor’s opinion. 11 that Plaintiff could do light-level work was harmless. 12 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (holding 13 error that is inconsequential to the ultimate nondisability 14 determination is harmless). 15 require remand or reversal. Thus, any error in stating See Stout v. For these reasons, this claim does not 16 B. 17 In her second claim of error, Plaintiff contends that the ALJ Plaintiff’s Past Relevant Work 18 erred at step four in determining that she could perform her past 19 relevant work as it is generally performed in the economy. 20 Stip. at 10-13.) (Joint For the following reasons, the Court agrees. 21 Prior to the administrative hearing, the vocational expert 22 submitted a “work summary” report in which he identified Plaintiff’s 23 prior job as a “credit clerk” and described it as sedentary work. 24 241.) (AR This position is found in the Dictionary of Occupational Titles 25 26 27 3 28 As discussed below, however, the vocational expert’s testimony was problematic in other ways. 4 1 (“DOT”) at section 205.367-022, where the duties are described as 2 follows: 3 Processes applications of individuals applying for loans and 4 credit: Interviews applicant to obtain personal and 5 financial data and fills out application. 6 to credit bureaus, employers, and personal references to 7 check credit and personal references. 8 limit, considering such factors as applicant's assets, 9 credit experience, and personal references, based on Calls or writes Establishes credit 10 predetermined standards. 11 telephone, or in person of acceptance or rejection of 12 application. 13 transactions, deposits, and payments, and sends letters or 14 confers with customers having delinquent accounts to make 15 payment [COLLECTION CLERK (clerical) 241.357-010]. 16 form letters and brochures to solicit business from 17 prospective customers. 18 and grant extensions of credit on overdue accounts. 19 accept payment on accounts. 20 for loans and credit, using computer. 21 and payments, using calculator. 22 information or rating on request to retail stores, credit 23 agencies, or banks. 24 collateral, such as securities, held as security for loan. 25 May advise customer by phone or in writing about loan or 26 credit information. 27 or credit application. 28 Notifies customer by mail, May keep record or file of credit May send May adjust incorrect credit charges May May keep record of applications May compute interest May provide customer credit May check value of customer's May assist customer in filling out loan (DOT No. 205.367-022.) 5 1 Plaintiff testified at the hearing that her job involved 2 “promoting . . . credit cards to people in different stores” such as 3 Target or Wal-Mart. 4 customers as they entered the store and entice them to sign up for 5 credit cards by, for example, offering them gifts. 6 Thereafter, she would take the credit card applications to the store’s 7 customer service department, where employees there would verify the 8 applicant’s credit and, if warranted, approve the line of credit. 9 55-56.) 10 11 (AR 55.) She explained that she would approach (AR 55.) (AR Plaintiff testified that she was required to stand “all day” to perform this job. (AR 55.) Hearing this, the vocational expert determined that Plaintiff had 12 performed this job as light work and described the position as “a 13 composite job, promoter sales clerk,” but with the same DOT 14 classification (No. 205.367-022) he had identified in his work summary 15 report. 16 hypothetical person with Plaintiff’s restrictions--i.e., limited to no 17 more than two hours of walking and standing--could not perform the 18 work of a credit clerk as Plaintiff actually performed the job because 19 it required too much standing. 20 explained that that there was “no specific DOT code for the job that 21 [Plaintiff] performed,” and the one that was close, “promoter,” did 22 not capture what Plaintiff actually did. 23 vocational expert testified that a hypothetical person with 24 Plaintiff’s limitations could do the job “as it’s customarily 25 performed, but no[t] as actually performed,” adding that, “because the 26 DOT is rather outdated[,] a specific job title for her, what she 27 performed, does not exist in the DOT.” (AR 61, 241.) The vocational expert testified that a (AR 62-64.) 28 6 The vocational expert (AR 63.) Even so, the (AR 64, 65.) 1 Thereafter, Plaintiff testified that her work did not require her 2 to check the credit rating of applicants, but simply to verify that 3 the applicant had filled out the application form and that someone 4 else did the credit check. 5 his description of Plaintiff’s past work, again, this time identifying 6 it as “charge account clerk” or “credit card interviewer,” under DOT 7 No. 205.367-014, work which is generally performed at a sedentary, 8 unskilled level, but which was actually performed at a light level by 9 Plaintiff. (AR 65-66.) (AR 65-66, 73-75.) The vocational expert changed The vocational expert testified that a 10 hypothetical person with Plaintiff’s limitations could perform this 11 job as generally performed in the economy. 12 (AR 75.) Plaintiff then testified that her job did not involve talking to 13 customers about the different credit plans offered, reviewing 14 applications received by mail, or filing credit applications after the 15 credit department approved or disapproved credit, all duties performed 16 by a “charge-account clerk” under DOT No. 205.367-014. 17 In response, the vocational expert clarified that Plaintiff’s job 18 could not be found in the DOT and that, although he was familiar with 19 people who performed the job, there was no typical manner in which it 20 was performed in the national economy. 21 expert then testified, contrary to his previous testimony, that the 22 job as described by Plaintiff was “typically” performed standing up, 23 and that a person who was limited to standing or walking only two 24 hours a day could not perform it. 25 (AR 79-80.) (AR 76-77.) The vocational (AR 80-81.) After the ALJ asked the vocational expert whether he was now 26 changing his previous testimony that Plaintiff could perform the job 27 as typically performed in the economy, the vocational expert 28 testified: 7 1 For clarity sake, this is the best that I could find in 2 terms of job title that comes close to what she actually 3 performed given her additional testimony provided. 4 I began originally by saying that it was a composite job. 5 The promoting duties required the standing the greater part 6 of the day. 7 actually did. 8 would be the best –- the closest I could come to describing 9 what she actually did. 10 11 12 I think There’s no specific DOT that matches what she So my testimony wouldn’t change. This job I offered responses to how I’ve observed the job performed. (AR 81.) The vocational expert then reiterated that in his view Plaintiff 13 could perform the job as it is generally performed in the economy. 14 (AR 81.) The ALJ did not permit further questioning on the issue. 15 (AR 82.) Ultimately, he determined that Plaintiff could perform the 16 job of “charge-account clerk” as that job is generally performed in 17 the economy. 18 Plaintiff now argues that the ALJ failed to accurately identify 19 her past relevant work and that this error caused him to erroneously 20 conclude that she could perform the job of charge-account clerk as 21 generally performed in the economy. 22 Court agrees. 23 For the following reasons, the The vocational expert offered several different job titles that 24 he believed approximated Plaintiff’s job of promoting credit 25 applications before settling on “charge-account clerk.” 26 After he arrived at this determination, Plaintiff testified, and the 27 vocational expert agreed, that she did not perform three of the four 28 duties that are described for that job in the DOT. 8 (AR 74.) (AR 76-79.) 1 Because it is undisputed that Plaintiff’s job duties were at odds with 2 the DOT, the ALJ could not rely on the vocational expert’s testimony 3 unless the record contained “persuasive evidence” to support the 4 deviation. 5 The Court is not satisfied that the record contains such persuasive 6 evidence. 7 Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). The duties described in the DOT for “charge-account clerk” do not 8 resemble the duties that Plaintiff performed in her job. 9 are altogether different. The two jobs In fact, it seems that the vocational 10 expert never resolved the issue that he himself identified, namely, 11 that Plaintiff’s work was a “composite” position, requiring both 12 promotion and customer assistance, and that the position did not exist 13 in the DOT. 14 vocational expert’s testimony regarding the “typical” requirements of 15 a job that the vocational expert conceded was not performed in a 16 typical fashion throughout the country. 17 F.2d 1082, 1086-87 (9th Cir. 1985) (rejecting administrative decision 18 that claimant could perform past relevant work based on the exertional 19 level of only one task that the work involved). 20 reliance on the vocational expert’s testimony to support his step-four 21 conclusion that Plaintiff could perform her past relevant work as it 22 is typically performed was erroneous. 23 Nor was it reasonable for the ALJ to rely on the See Valencia v. Heckler, 751 Thus, the ALJ’s Further, to the extent that the ALJ’s decision can be read to 24 imply that, even if one were to conclude that the charge-account clerk 25 job was a different job but that Plaintiff could perform it because it 26 would require “minimal on-the-job training or instruction,” (AR 95), 27 this was also error. 28 four is limited to determining whether a claimant can perform her The ALJ resolved this case at step four. 9 Step 1 prior work, not other work. 2 Admin., 533 F.3d 1155, 1166-67 (9th Cir. 2008). 3 liberty at step four to determine that Plaintiff was not disabled 4 because she had transferable skills that could be used in another job. 5 Id. 6 See Carmickle v. Comm’r, Soc. Sec. The ALJ was not at Any attempt to do so was error. The ALJ also erred in relying on the vocational expert’s 7 testimony that Plaintiff could perform her past work because the 8 expert did not appear to take into account her mental limitations. 9 posing the hypothetical question, the ALJ instructed the vocational In 10 expert to consider Plaintiff’s mental restrictions identified by the 11 medical expert, Dr. David Glassmire. 12 testified that Plaintiff was limited to moderate-level tasks, five or 13 six-step instructions, and to no more than occasional, non-intense 14 contact with co-workers, supervisors, and the public. 15 vocational expert did not explain how he reconciled these findings 16 with the demands of a charge-account clerk, which requires a 17 “significant” level of work and constant contact with the public. 18 No. 205.367-014. (AR 62.) Dr. Glassmire (AR 48.) The DOT 19 On remand, the vocational expert should specifically identify 20 Plaintiff’s past relevant work and the applicable DOT job title or 21 titles her work fits under, if practicable. 22 should then explain how Plaintiff can perform this job or these jobs 23 despite her physical and mental limitations. The vocational expert 24 C. Remand is Appropriate 25 Plaintiff requests that the Court order that the case be remanded 26 for the payment of benefits. The determination whether to remand for 27 further proceedings or for payment of benefits lies within the 28 discretion of the Court. McAllister v. Sullivan, 888 F.2d 599, 603 10 1 (9th Cir. 1989). In most circumstances in Social Security disability 2 cases, remand is the proper course. 3 882, 886-87 (9th Cir. 2004). 4 here, remand may be productive in that additional testimony can 5 resolve the issues raised by the Court. 6 332 F.3d 1177, 1184 (9th Cir. 2003). 7 whether, once Plaintiff’s past relevant work is properly classified, 8 the vocational expert will determine that she is capable of performing 9 it. See Moisa v. Barnhart, 367 F.3d This is particularly true where, as See, e.g., Celaya v. Halter, It is not clear to the Court Thus, the case will be remanded for further proceedings. See 10 Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000); see also 11 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). 12 13 IV. CONCLUSION For the foregoing reasons, the Agency’s decision is reversed and 14 the case is remanded for further proceedings consistent with this 15 Memorandum Opinion and Order. 16 IT IS SO ORDERED. 17 DATED: November 3, 2010. 18 19 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\Suzuki\Memo_Opinion.wpd 11
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