Sonia Y. Amenero v. Michael J. Astrue, No. 2:2010cv05363 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (am)
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Sonia Y. Amenero v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SONIA Y. AMENERO, ) Case No. CV 10-5363-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 7, 13.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUE 3 As reflected in the Joint Stipulation, the disputed issue which Plaintiff raises 4 as the grounds for reversal and/or remand is whether the Administrative Law 5 Judge ( ALJ ) properly determined that Plaintiff can perform her past relevant 6 work as it is generally performed. (JS at 4.) 7 II. 8 STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 10 to determine whether the Commissioner s findings are supported by substantial 11 evidence and whether the proper legal standards were applied. DeLorme v. 12 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 13 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 14 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 15 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 16 evidence is such relevant evidence as a reasonable mind might accept as adequate 17 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 18 Court must review the record as a whole and consider adverse as well as 19 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 20 Where evidence is susceptible of more than one rational interpretation, the 21 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 22 1452 (9th Cir. 1984). 23 III. 24 DISCUSSION 25 A. The ALJ s Findings. 26 The ALJ found that Plaintiff has the following severe combination of 27 impairments: status post-left segmental mastectomy and quadrentectomy in 28 September 2003 with residuals in left upper extremity, mild to moderate 2 1 degenerative changes/spondylosis at C4-C7 of the cervical spine, generalized mild 2 spondylosis of the thoracic spine, degenerative disc disease of the lumbosacral 3 spine, obesity, diabetes mellitus, and hypertension. (AR at 23-24.) 4 The ALJ also found Plaintiff had the residual functional capacity ( RFC ) 5 to perform light work with additional limitations: she is able to lift and/or carry 6 twenty pounds occasionally and ten pounds frequently; stand and/or walk for six 7 hours, and sit for six hours in an eight-hour workday; perform postural activities 8 frequently; perform manipulation and reaching with the left upper extremity 9 frequently; and perform handling and fingering with the left hand frequently. (Id. 10 at 25.) Relying on the testimony of the vocational expert ( VE ), the ALJ found 11 that Plaintiff was capable of performing her past relevant work as a Fast-Foods 12 Worker (Dictionary of Occupational Titles ( DOT ) No. 311.472-010 (JS Ex. 1.) 13 B. Past Relevant Work. 14 Plaintiff contends the ALJ improperly determined that she can perform her 15 past relevant work as a Fast-Foods Worker because she does not possess the 16 requisite literacy ability set forth for that position in the DOT. (JS at 5-6.) She 17 argues there is nothing in the record to indicate that Plaintiff is literate or able to 18 communicate in English sufficient to generally perform the past relevant work as 19 usually performed.3 (Id. at 6.) She notes that the Social Security field office 20 conducted her interview in Spanish, she required the assistance of her daughter to 21 complete the Social Security application forms, her medical examinations were 22 conducted with the assistance of an interpreter, and she received the assistance of 23 an interpreter at the administrative hearing. (JS at 6 (citing AR at 21, 103, 106, 24 108, 221).) Plaintiff has a ninth grade education from her native El Salvador. (Id. 25 (citing AR at 36, 114).) She claims the ALJ s failure to address the impact of her 26 27 3 A claimant may be found illiterate or unable to communicate in 28 English if she is either illiterate in English or unable to communicate in English or both. Silveira v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000). 3 1 literacy is reversible error. (Id. at 9.) 2 At step-four of the sequential evaluation process, a claimant must establish 3 that her severe impairment or impairments prevent her from doing past relevant 4 work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The regulations 5 explain the step-four evaluation: If we cannot make a decision based on your 6 current work activity or on medical facts alone, and you have a severe 7 impairment(s), we then review your residual functional capacity and the physical 8 and mental demands of the work you have done in the past. If you can still do this 9 kind of work, we will find that you are not disabled. 20 C.F.R. §§ 404.1520(e); 10 416.920(e). The claimant has the burden of showing that she can no longer 11 perform her past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e); Clem v. 12 Sullivan, 894 F.2d 328, 331-32 (9th Cir. 1990). Although the burden of proof lies 13 with the claimant, the ALJ still has a duty to make the requisite factual findings to 14 support his conclusion. Pinto, 249 F.3d at 844-45; see also Henrie v. U.S. Dep t 15 of Health & Human Serv., 13 F.3d 359 (10th Cir. 1993) (recognizing the tension 16 created between the mandate of Social Security Ruling ( SSR ) 82-624 and the 17 claimant s burden of proof, and finding that the ALJ s duty is one of inquiry and 18 factual development while the claimant continues to bear the ultimate burden of 19 proving disability). 20 Social Security Ruling 82-61 provides that there are three possible tests for 21 determining whether or not a claimant retains the capacity to perform her past 22 23 24 25 4 Social Security Rulings are issued by the Commissioner to clarify the Commissioner s regulations and policies. Bunnell v. Sullivan, 947 F.2d 341, 346 27 n.3 (9th Cir. 1991). Although they do not have the force of law, they are 28 nevertheless 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). 26 4 1 relevant work.5 One test is [w]hether the claimant retains the capacity to perform 2 the functional demands and job duties of the job as ordinarily required by 3 employers throughout the national economy. (The . . . DOT descriptions can be 4 relied upon-for jobs that are listed in the DOT-to define the job as it is usually 5 performed in the national economy). SSR 82-61. 6 According to DOT section 311.472-010, Plaintiff s past relevant work as a 7 Fast-Foods Worker requires a Language Level of 2 as usually performed. (JS Ex. 8 1 at 2.) Language Level 2 requires, among other things, that a person have a 9 passive vocabulary of 5,000-6,000 words, read at the rate of 190-215 words per 10 minute, write compound and complex sentences, and speak clearly with correct 11 pronunciation and word tense. (Id.) Plaintiff asserts that she does not meet these 12 language requirements and cannot perform the work as it is generally performed. 13 (JS at 9.) Noting that Plaintiff was able to work as a cashier for almost ten years 14 (id. at 18), the Commissioner counters that educational factors, such as language, 15 are not relevant at step four of the sequential evaluation process; that Plaintiff s 16 reliance on Pinto is misplaced as in this case the ALJ made no finding about 17 Plaintiff s English language skills, and did not include an illiteracy limitation in 18 his hypothetical to the VE; and that Plaintiff failed to meet her burden of proving 19 that her language abilities prevent her from performing her past relevant work as 20 she never asserted that her limited English affected her ability to work. (JS at 1621 18.) 22 The Ninth Circuit has declined to decide whether an ALJ is required to 23 consider a claimant s language skills, including literacy, at step four of the 24 sequential evaluation. Pinto, 249 F.3d at 847 n.5. However, in Pinto, the Ninth 25 Circuit explained: 26 27 5 Social Security Rulings are interpretations by the Social Security 28 Administration of the Act. While they do not have the force of law, they are entitled to deference unless they are clearly erroneous or inconsistent with the law. 5 1 The ability to communicate is an important skill to be considered 2 when determining what jobs are available to a claimant. Illiteracy 3 seriously impacts an individual s ability to perform work-related 4 functions such as understanding and following instructions, 5 communicating in the workplace, and responding appropriately to 6 supervision. These are all factors that Social Security Ruling No. 96-8P 7 requires an ALJ to consider when determining whether a claimant has 8 the residual functional capacity to perform past relevant work. Here the 9 ALJ, although noting Pinto s limitation in both his findings of fact and 10 hypothetical to the vocational expert, failed to explain how this 11 limitation related to his finding that Pinto could perform her past 12 relevant work as generally performed. 13 Id. at 846-847. 14 In this case, the ALJ noted in his decision that the claimant has a limited 15 ability to communicate in English, [and] she testified at times with the assistance 16 of a Spanish language interpreter. (AR at 21.) He also remarked that during 17 Plaintiff s face-to-face interview with the claims representative, the representative 18 did not observe anything unusual about the claimant or that the cla[i]mant had 19 any difficulties other than the limited ability to speak English. (Id. at 27.) He 20 also noted that Plaintiff reported she was capable of following instructions well 21 as long as the instructions are in Spanish. (Id.) During the hearing, Plaintiff was 22 provided the services of an interpreter, although counsel indicated that she does 23 speak some English and is willing to try to do it in English. (Id. at 33.) 24 Plaintiff testified that she was able to speak, read, and write a little English. (Id. 25 at 35.) During the hearing, there is no indication of whether and when the 26 interpreter actually assisted, but at one point when Plaintiff was having difficulty 27 expressing herself, the ALJ stated, When you re having trouble just speak in 28 Spanish and [the interpreter] will interpret it for me. (Id. at 38.) Thus, the record 6 1 provides some evidence that the Level 2 requirements may exceed Plaintiff s 2 English language abilities. 3 Despite this, in his hypothetical to the VE, the ALJ asked the VE to assume 4 a person of the same age, education and background as Plaintiff. (Id. at 46.) He 5 did not mention anything about Plaintiff s language skills or limited English 6 abilities. The VE testified that an individual with the hypothetical limitations 7 could perform her past relevant work as a Fast-Foods Worker as identified in the 8 DOT at the light level. (Id. at 45, 46.) Plaintiff argues that despite the VE s 9 assurance that his testimony was in conformance with the DOT, the VE s 10 testimony was inconsistent with the DOT because the job of Fast-Foods Worker as 11 defined in the DOT requires a language level of 2, which is beyond Plaintiff s 12 capabilities. 13 Indeed, the ALJ must determine whether the positions cited by the VE are 14 consistent with the DOT. The ALJ must then determine whether the VE s 15 explanation for the conflict is reasonable and whether there exists a basis for 16 accepting the VE s testimony over the information contained in the DOT. 17 Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (citing SSR 00-4p). 18 Where a claimant is illiterate, the ALJ must definitively explain the deviation. 19 See Pinto, 249 F.3d at 847. 20 In this case, although he commented on Plaintiff s limited English skills at 21 the hearing and in his decision, the ALJ did not ask the VE to explain the effect of 22 Plaintiff s limited language or English communication skills on her ability to 23 perform her past relevant work. As a result, the VE also failed to account for any 24 deviation from the Language Level 2 requirement in the DOT for Fast-Foods 25 Worker.6 26 27 6 The Court notes that although the DOT does not specify that the claimant 28 must be able to perform the job functions in English, the Ninth Circuit has (continued...) 7 1 The Commissioner argues that because the ALJ did not specifically make a 2 finding of illiteracy, this case is distinguishable from Pinto. (See JS at 17.) The 3 Court disagrees. The body of the ALJ s decision herein expressly references 4 Plaintiff s limited ability to communicate in English, suggesting that the ALJ 5 recognized Plaintiff had English language limitations. Unfortunately, the decision 6 lacks a specific finding or further discussion of Plaintiff s limited ability, and 7 any attempt to assess its impact on her ability to perform her past work as 8 generally performed. This failure makes it difficult for the Court to review the 9 ALJ s analysis and his related finding that Plaintiff had the ability to perform her 10 past relevant work as generally performed, since her language abilities may 11 deviate from that required by the DOT for the position. For these reasons, the 12 Court finds that the ALJ s decision is unsupported and that he erred at step four of 13 the sequential evaluation. 14 Based on the foregoing, because the DOT indicates that the job of Fast- 15 Foods Worker as generally performed requires a Language Level of 2, remand is 16 warranted for the ALJ to consider the impact, if any, of Plaintiff s limited English 17 language ability on her ability to perform her past relevant work, and to 18 sufficiently explain any deviation from the DOT. If necessary, the ALJ shall 19 proceed to step five of the sequential evaluation. 20 21 22 23 24 25 26 27 6 (...continued) 28 indicated that such a requirement is the most persuasive reading of the DOT. Pinto, 249 F.3d at 844 n.2. 8 1 IV. 2 ORDER 3 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 4 ORDERED THAT Judgment be entered reversing the decision of the 5 Commissioner of Social Security and remanding this matter for further 6 administrative proceedings consistent with this Memorandum Opinion. 7 8 Dated: March 17, 2011 9 HONORABLE OSWALD PARADA United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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