Simon De Anda, Jr. v. Michael J. Astrue, No. 2:2010cv02957 - Document 14 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for further proceedings consistent with this Memorandum Opinion. THIS MEMORANDUM OPINION AND ORDER IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. **See Order for details.** (ch)
Download PDF
<![CDATA[
Simon De Anda, Jr. v. Michael J. Astrue Doc. 14 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 17 SIMON DE ANDA, JR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ________________________________) No. CV 10-2957-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on April 23, 2010, seeking review of the Commissioner’s denial of 22 his applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on May 6, 2010, 24 and May 12, 2010. The parties filed a Joint Stipulation on January 4, 2011, that addresses their 25 positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation 26 under submission without oral argument. 27 / 28 / Dockets.Justia.com 1 II. 2 BACKGROUND 3 Plaintiff was born on July 13, 1958. [Administrative Record (“AR”) at 81, 132.] He has a 4 high school education, has received vocational training in welding, and has past relevant work 5 experience as a welder, machine operator, night dispatcher, and manager. [AR at 35-36, 41-45, 6 140, 144, 168.] 7 On February 25, 2009, plaintiff protectively filed his applications for Disability Insurance 8 Benefits and Supplemental Security Income payments, alleging that he has been unable to work 9 since February 1, 2005, due to lower back problems and anemia. [AR at 14, 81-82, 111-21, 132- 10 34, 138-45.] After plaintiff’s applications were denied initially, he requested a hearing before an 11 Administrative Law Judge (“ALJ”). [AR at 83-89.] A hearing was held on August 4, 2009, at which 12 time plaintiff appeared without counsel and testified on his own behalf. A vocational expert also 13 testified. [AR at 24-80.] On August 27, 2009, the ALJ found plaintiff not disabled. [AR at 11-21.] 14 When the Appeals Council denied plaintiff’s request for review of the hearing decision on February 15 16, 2010, the ALJ’s decision became the final decision of the Commissioner. [AR at 1-4.] This 16 action followed. 17 18 III. 19 STANDARD OF REVIEW 20 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 21 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 22 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 23 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 24 In this context, the term “substantial evidence” means “more than a mere scintilla but less 25 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 26 adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 27 1257. When determining whether substantial evidence exists to support the Commissioner’s 28 decision, the Court examines the administrative record as a whole, considering adverse as well 2 1 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 3 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 4 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 5 6 IV. 7 THE EVALUATION OF DISABILITY 8 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 9 to engage in any substantial gainful activity owing to a physical or mental impairment that is 10 expected to result in death or which has lasted or is expected to last for a continuous period of at 11 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 12 13 A. THE FIVE-STEP EVALUATION PROCESS 14 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 15 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 16 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 17 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 18 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 19 substantial gainful activity, the second step requires the Commissioner to determine whether the 20 claimant has a “severe” impairment or combination of impairments significantly limiting his ability 21 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 22 If the claimant has a “severe” impairment or combination of impairments, the third step requires 23 the Commissioner to determine whether the impairment or combination of impairments meets or 24 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 404, 25 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 26 If the claimant’s impairment or combination of impairments does not meet or equal an impairment 27 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 28 sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disabled 3 1 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 2 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 3 case of disability is established. The Commissioner then bears the burden of establishing that the 4 claimant is not disabled, because he can perform other substantial gainful work available in the 5 national economy. The determination of this issue comprises the fifth and final step in the 6 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 7 at 1257. 8 9 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 10 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 11 gainful activity since February 1, 2005, the alleged onset date of disability.1 [AR at 16.] At step 12 two, the ALJ concluded that plaintiff “has the following severe impairments: history of syncope and 13 dizzy spells, otitis media of the left ear, and lower back pain with moderate to severe osteoarthritis 14 at L5-S1.” [Id.] At step three, the ALJ concluded that plaintiff’s impairments do not meet or equal 15 any of the impairments in the Listing. [AR at 17.] The ALJ further found that plaintiff retained the 16 residual functional capacity (“RFC”)2 to perform light work,3 except that plaintiff cannot climb 17 18 1 The ALJ also determined that plaintiff is insured for Disability Insurance Benefits purposes through December 31, 2009. [AR at 16.] 19 2 20 21 22 23 24 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 “Light work” is defined as work that involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b). The Court observes that the ALJ in a later part of his decision seemed to characterize plaintiff’s exertional capacity as sedentary, rather than light. [See AR at 20.] Sedentary work is defined as work that involves “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other (continued...) 4 1 ladders, ropes, or scaffolds; can only occasionally climb ramps or stairs, balance, stoop, kneel, 2 crouch, and crawl; must be able to use a hand-held assistive device for prolonged ambulation; and 3 cannot perform work that involves “concentrated exposure to hazardous machinery, unprotected 4 heights, or other high risk, hazardous or unsafe conditions.” [AR at 17.] At step four, the ALJ 5 concluded, relying on the vocational expert’s testimony, that plaintiff could perform his past work 6 as a dispatcher. [AR at 19.] Alternatively, the ALJ continued his analysis to step five and 7 concluded, relying on the vocational expert’s testimony and the Medical Vocational Rules as a 8 framework,4 that plaintiff was able to perform other work existing in substantial numbers in the 9 national economy requiring only a sedentary level of exertion. [AR at 19-20.] However, the ALJ 10 also found that plaintiff could only perform other work until July 13, 2008, when plaintiff reached 11 his 50th birthday, at which time the Medical Vocational Rules would require a finding that plaintiff 12 was disabled. [AR at 20, citing Medical Vocational Rule § 201.14.] Nonetheless, the ALJ 13 determined that the step-five application of Medical Vocational Rule § 201.14 was “moot,” as the 14 ALJ concluded that plaintiff was capable of performing his past relevant work at step four. [Id.] 15 Accordingly, the ALJ found plaintiff not disabled. [AR at 20-21.] 16 17 V. 18 THE ALJ’S DECISION 19 Plaintiff contends that the ALJ erred in finding plaintiff able to perform his past relevant 20 work. [Joint Stipulation (“JS”) at 4.] As set forth below, the Court agrees with plaintiff and 21 remands the matter for further proceedings. 22 / 23 / 24 3 25 26 27 28 (...continued) sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a). 4 The Medical-Vocational Guidelines, also known as “the grids,” are a table system for determining at step five of the sequential evaluation whether a claimant’s impairments are disabling. See 20 C.F.R., Pt. 404, Subpt. P, App. 2; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 5 1 PAST RELEVANT WORK 2 Plaintiff contends that the ALJ erred at step four of the sequential evaluation in concluding 3 that plaintiff could perform his past relevant work as a dispatcher. [JS at 4-11.] Specifically, 4 plaintiff contends that the ALJ erroneously relied on the vocational expert’s testimony 5 characterizing plaintiff’s past work as that of a “Dispatcher, Motor Vehicle” under Dictionary of 6 Occupational Titles (“DOT”) No. 249.167-014, when plaintiff’s testimony instead established that 7 his past dispatcher work was that of a “Receiver-Dispatcher” under DOT No. 239.367-022, 1991 8 WL 672227. [Id.] Plaintiff further asserts that the difference between these two jobs is “material” 9 as plaintiff’s limitations prevent him from performing the full range of light work required of his past 10 dispatcher job under DOT No. 239.367-022 either as he actually performed the job or as it is 11 generally performed according to the DOT. [JS at 10-11.] Accordingly, plaintiff contends that it 12 is necessary to continue to step five of the sequential evaluation and that he is thus entitled to a 13 finding that he has been disabled since his 50th birthday on July 13, 2008, under Medical 14 Vocational Rule § 201.14. [JS at 10-11, citing AR at 19-20 (the ALJ’s alternative step-five 15 finding).] 16 At step four, the ALJ must determine whether plaintiff’s RFC allows him to return to his past 17 relevant work. Lester, 81 F.3d at 828, n.5; 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 18 Plaintiff has the burden of establishing that he is incapable of performing his past relevant work. 19 20 C.F.R. §§ 404.1512, 416.912; Barnhart v. Thomas, 540 U.S. 20, 25, 124 S.Ct. 376, 157 20 L.Ed.2d 333 (2003). However, the ALJ must make findings of fact regarding plaintiff’s RFC, the 21 physical and mental demands and job duties required of plaintiff’s past work, and whether plaintiff 22 can return to his past relevant work “either as actually performed or as generally performed in the 23 national economy,” given plaintiff’s limitations. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 24 2002); see Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). A claimant is typically the 25 primary source for determining what past jobs the claimant has performed, as well as how those 26 / 27 / 28 / 6 1 jobs were actually performed. See Social Security Ruling5 82-62 (“The claimant is the primary 2 source for vocational documentation, and statements by the claimant regarding past work are 3 generally sufficient for determining the skill level[,] exertional demands and nonexertional demands 4 of such work.”). A claimant’s statements concerning his past work can come from a Vocational 5 Report (SSA-3369 form)6 properly completed by the claimant, or from the claimant’s testimony at 6 an administrative hearing. 7 determining how a claimant’s past job is generally performed, the ALJ can rely on the descriptions 8 given by the Dictionary of Occupational Titles (“DOT”) or a vocational expert. Johnson v. Shalala, 9 60 F.3d 1428, 1435 (9th Cir. 1995). See Pinto, 249 F.3d at 845; SSR 82-42; SSR 82-61. When 10 A claimant is entitled to challenge an ALJ’s classification of his past relevant work under 11 the DOT. See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986); see also, e.g., Goodenow- 12 Boatsman v. Apfel, 2001 WL 253200, at *7 (N.D. Cal. Feb. 27, 2001) (“plaintiff may challenge the 13 ALJ’s classification of [his] past relevant work according to the DOT”). As the Administration’s 14 rulings recognize, “[a] particular job may or may not be identifiable in authoritative reference 15 materials. The claimant is in the best position to describe just what he or she did in [past relevant 16 work], how it was done, what exertion was involved, what skilled or semiskilled work activities were 17 involved, etc. Neither an occupational title by itself nor a skeleton description is sufficient.” SSR 18 82-41. If the ALJ “incorrectly categorize[s] [a claimant’s] occupation under [a DOT] job title ..., 19 then ‘the description applicable to that category is irrelevant to the determination of the exertional 20 capacities required in [his] former occupation.’” Villa, 797 F.2d at 798 (quoting Tingle v. Heckler, 21 627 F.Supp. 544, 545 (S.D. Miss. 1986)). 22 Plaintiff testified at the hearing concerning his past work experience as a welder and 23 “dispatcher at a tow yard.” [AR at 41-45.] In describing his dispatcher work, plaintiff explained that 24 5 25 26 Social Security Rulings (“SSR”) do not have the force of law. Nevertheless, they “constitute Social Security Administration interpretations of the statute it administers and of its own regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 27 6 28 The SSA-3369 (i.e., Work History Report) form is available on the Administration’s website at http://www.socialsecurity.gov/online/. 7 1 he worked in a “dispatch center,” where he would “mostly answer phones and just send out the 2 drivers to where the calls come in .... We work for AAA. ... Calls come in, and we send ... the 3 guys out, and make sure they get there and stuff like that.” [AR at 43.] Plaintiff explained that he 4 would use telephones, rather than computers, and described his work as “really hectic” and “real 5 stressful” due to “the volume that comes in of the calls.” [AR at 42-43.] He also explained that he 6 was required to “sit[] constantly” at his job to answer the phones [AR at 42, 44], and that he was 7 unable to continue his dispatcher work because his back problem makes it difficult for him to sit 8 for prolonged periods of time. [AR at 42, 71-72.] Plaintiff did not complete a Vocational Report 9 (SSA-3369 form) to describe in detail the duties of his past work.7 10 At the hearing, the vocational expert classified plaintiff’s past dispatcher work under DOT 11 No. 249.167-014. [AR at 67.] In response to a hypothetical question, in which the ALJ described 12 a person with the same limitations outlined in the RFC determination described above, but with 13 the additional limitation of being limited to a total of two hours of standing and/or walking in an 14 eight-hour day, the vocational expert asserted that plaintiff could perform his past work as a 15 dispatcher as he actually performed it or as it is generally performed according the DOT.8 Notably, 16 although the vocational expert correctly stated that DOT No. 249.167-014 is a sedentary job [AR 17 at 67], she did not specifically state at what exertional level plaintiff actually performed his 18 dispatcher job. [See AR at 67-69.] The vocational expert further testified that under the same 19 hypothetical, plaintiff could perform a number of sedentary jobs existing in substantial numbers 20 in the national economy. [AR at 70.] The vocational expert also clarified that a “two-hour standing 21 and walking restriction” made the hypothetical limitations described by the ALJ “more sedentary 22 23 24 25 26 27 28 7 The record contains a “Claimant’s Work Background” form, apparently completed by plaintiff, in which plaintiff listed his past jobs and provided very brief descriptions concerning the duties he performed (i.e., “night dispatcher night manager,” “welder,” and “machine operator”). [AR at 168.] The record also contains a “Disability Report - Adult Form SSA-3368,” which provides a more detailed description concerning plaintiff’s work as a welder, but does not include any information about his work as a dispatcher. [See AR at 140-41.] 8 The vocational expert classified plaintiff’s past welding work as a “combination welder” under DOT No. 819.384-010, and stated that plaintiff could not perform his past welder work given the hypothetical limitations described by the ALJ. [See AR at 66, 69.] 8 1 than light.” [AR at 69-70.] In the decision, the ALJ relied on the vocational expert’s testimony that 2 plaintiff’s past work as a dispatcher was properly defined by DOT No. 249.167-014 and that 3 plaintiff could perform that job, despite his limitations, both as he actually performed it and as it 4 is generally performed in the national economy. [See AR at 19.] 5 The Court agrees with plaintiff’s contentions that the vocational expert improperly 6 characterized his past dispatcher work under DOT No. 249.167-014, and that the ALJ erred in 7 relying on the vocational expert’s testimony in finding plaintiff able to perform his past relevant 8 work. The DOT provides the following definition for DOT No. 249.167-014, “Dispatcher, Motor 9 Vehicle”: 10 17 Assigns motor vehicles and drivers for conveyance of freight or passengers: Compiles list of available vehicles. Assigns vehicles according to factors, such as length and purpose of trip, freight or passenger requirements, and preference of user. Issues keys, record sheets, and credentials to drivers. Records time of departure, destination, cargo, and expected time of return. Investigates overdue vehicles. Directs activities of drivers, using two-way radio. May confer with customers to expedite or locate missing, misrouted, delayed, or damaged merchandise. May maintain record of mileage, fuel used, repairs made, and other expenses. May establish service or delivery routes. May issue equipment to drivers, such as handtrucks, dollies, and blankets. May assign helpers to drivers. May be designated according to type of motor vehicle dispatched as Dispatcher, Automobile Rental (automotive ser.); Dispatcher, Tow Truck (automotive ser.). 18 DOT No. 249.167-014. This job is classified as sedentary work under the DOT. Id. The DOT also 19 provides the following definition for DOT No. 239.367-022, “Receiver-Dispatcher”: 20 24 Receives and records requests for emergency road service from automobile club members, and dispatches tow truck or service truck to stranded vehicle: Answers telephone and obtains and records on road service card such information as name of club member, location of disabled vehicle, and nature of vehicle malfunction. Routes card to dispatch station, or relays information to service station or tow truck in motorist’s vicinity, using telephone or two-way radio. May locate site of stranded vehicle, using maps. May maintain file of road service cards. 25 DOT No. 239.367-022. This job is classified as light work under the DOT. Id. Plaintiff’s 26 description of his work for AAA (i.e., the American Automobile Association, an automobile club that 27 offers roadside assistance services), that he would answer telephone calls in a dispatch center, 28 send tow truck drivers to customers, and make sure that the drivers arrived, closely mirrors the 11 12 13 14 15 16 21 22 23 9 1 Receiver-Dispatcher job described at DOT No. 239.367-022. The definition provided at DOT No. 2 239.367-022 is also much closure to how plaintiff described his job duties than DOT No. 249.167- 3 014. Specifically, plaintiff did not state that he assigned vehicles and drivers for the conveyance 4 of freight or passengers according to factors such as length and purpose of trip, freight or 5 passenger requirements, and preferences of users; that he conferred with customers to expedite 6 or locate missing, misrouted, delayed or damaged merchandise; that he maintained records 7 concerning mileage, fuel used, repairs made, or other expenses; or that he assigned to drivers 8 helpers or equipment such as handtrucks, dollies, and blankets, which are all duties required in 9 DOT No. 249.167-014. Accordingly, the vocational expert and the ALJ incorrectly characterized 10 plaintiff’s past dispatcher work, and thus the DOT description relied on by the vocational expert 11 and the ALJ in determining the job duties and exertional capacities required of plaintiff’s dispatcher 12 work is inapplicable. See Villa, 797 F.2d at 798. As such, the ALJ’s conclusion that plaintiff could 13 perform his past dispatcher work -- which the ALJ reached by relying on a job that requires 14 different duties than those described by plaintiff and that requires only sedentary work (as is 15 required by the Dispatcher, Motor Vehicle job (DOT No. 249.167-014)), rather than light work (as 16 is required by the Receiver-Dispatcher job (DOT No. 239.367-022)) -- is not supported by 17 substantial evidence. See Pinto, 249 F.3d at 844 (although the claimant has the burden of proof 18 at step four, “the ALJ still has a duty to make the requisite factual findings to support his 19 conclusion” as to whether the claimant can perform his past relevant work); see 20 C.F.R. §§ 20 404.1520, 416.920. See also, e.g., Prieto v. Astrue, 2008 WL 4196640, at *6 (C.D. Cal. Sept. 3, 21 2008) (reversing and remanding the ALJ’s step four finding that plaintiff could perform past 22 relevant work, where the ALJ relied on a job defined in the DOT that involved a lighter exertional 23 level and different job duties than plaintiff’s description of his past work); Rawlings v. Astrue, 318 24 Fed.Appx. 593, 595 (9th Cir. 2009) (reversing and remanding ALJ’s decision that plaintiff could 25 perform his past work, where the ALJ erred in relying on the vocational expert’s testimony that 26 incorrectly characterized plaintiff’s past work under the DOT) (citable for its persuasive value 27 pursuant to Ninth Circuit Rule 36-3). 28 / 10 1 2 At the same time, however, the Court cannot conclude, as plaintiff urges [JS at 11], that a reversal of the ALJ’s decision for an award of benefits is called for here. 3 6 “[W]hen the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose,” it is appropriate for a court to reverse an ALJ’s decision and order the payment of benefits. By contrast, “[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard,” a case should be remanded to the Commissioner for the further development of the evidence. 7 Hartnett v. Apfel, 21 F.Supp.2d 217, 221 (E.D.N.Y. 1998) (quoting Parker v. Harris, 626 F.2d 225, 8 235 (2d Cir. 1980)). Here, the ALJ erred in relying on the vocational expert’s testimony that 9 plaintiff could perform his past dispatcher work because the vocational expert relied on a DOT job 10 description that did not adequately describe plaintiff’s past work. That error, however, does not 11 preclude the possibility that the ALJ could have properly found plaintiff able to perform his past 12 work if the ALJ and the vocational expert had relied on a DOT job description that accurately 13 describes plaintiff’s dispatcher work -- i.e., DOT No. 239.367-022.9 Accordingly, the Court finds 14 remand and further development of the evidence necessary on this issue. See Pfitzner v. Apfel, 15 169 F.3d 566, 569 (8th Cir. 1999) (remanding the ALJ’s decision for failing to properly identify a 16 DOT job that represented plaintiff’s past work, but noting that “the ALJ’s decision may not change 17 after properly considering” plaintiff’s ability to perform his past relevant work); Tingle, 627 F.Supp. 18 at 545 (remanding for a factual determination as to whether plaintiff’s job duties fit the job title 19 relied on by the ALJ, and instructing that “[i]f it is found that Plaintiff’s work included duties not 20 included in the [job] description ... [relied on by the ALJ], then the Secretary should further 21 determine whether Plaintiff’s former work was in fact sedentary in nature and thus within his 22 residual functional capacity.”). 23 / 24 / 4 5 25 26 27 28 9 Plaintiff contends that the manner in which he actually performed his job was consistent with a light (rather than a sedentary) level of exertion, “as a result of the constant stress and strain of maintaining a production rate pace handling requests for emergency road service.” [JS at 10.] The Court does not decide the exertional level of plaintiff’s past work, as such a factual finding should be resolved by the ALJ with, if necessary, the assistance of a vocational expert. 11 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 As a general rule, remand is warranted where additional administrative proceedings could 4 remedy defects in the Commissioner’s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 5 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 6 In this case, remand is appropriate in order for the ALJ to reconsider whether plaintiff is able to 7 perform his past relevant work. The ALJ is instructed to take whatever further action is deemed 8 appropriate and consistent with this decision. 9 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; 10 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 11 for further proceedings consistent with this Memorandum Opinion. 12 13 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 14 15 DATED: January 24, 2011 16 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
