Evangelina Gutierrez v. Michael J. Astrue, No. 2:2010cv05399 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 EVANGELINA GUTIERREZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-05399-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in 1 failing to apply Grid Rule 202.09; and 2 2. Whether the ALJ provided specific and legitimate reasons to 3 reject the reaching limitations assessed by the treating 4 physicians. 5 (JS at 4; 11.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. 9 concludes 10 that for the After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 11 12 I 13 THE ALJ DID NOT ERR IN FAILING TO APPLY THE GRID RULES 14 Following a hearing before the ALJ, held on October 26, 2009, at 15 which Plaintiff was represented by an attorney and assisted by an 16 interpreter, and a vocational expert ( VE ) testified (AR 21-42), an 17 unfavorable decision was issued. (AR 11-20.) 18 first issue, the ALJ found that Plaintiff could perform her past 19 relevant work ( PRW ) as a housekeeper, thus completing the analytical 20 framework at Step Four of the sequential evaluation process. (20 21 C.F.R. §404.1520(a).) Plaintiff asserts, however, that the ALJ should 22 have applied the so-called Grid Rules found at 20 C.F.R., Part 404, 23 subpart P, appendix 2, and in particular, Grid Rule 202.09, which 24 would result in a finding of disabled. As pertinent to the 25 26 A. 27 Once Plaintiff has established that she is unable to return to 28 her PRW Applicable Law. (or that she has no PRW), 2 the burden shifts to the 1 Commissioner to establish the existence of other jobs which exist in 2 significant numbers which Plaintiff can perform considering her age, 3 education, residual functional capacity, and vocational profile. 4 Commissioner can meet this burden either by utilizing the Medical 5 Vocational guidelines ( Grids ) in Appendix 2, Subpart P, 20 C.F.R. 6 Part 404 or by calling upon the services of a vocational expert. 7 Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The 8 9 B. Analysis. 10 Plaintiff does not contest the Commissioner s legal contention 11 that the Grid Rules are inapplicable if a finding of non-disability is 12 made at Step Four. 13 would appear to argue that the job of housekeeper was not part of 14 Plaintiff s PRW, because she performed it only part of the year 1999. 15 (JS at 10.) 16 however, and thus it is relevant to clarify the definition of PRW, in 17 order to determine whether, indeed, Plaintiff s PRW included work as 18 a housekeeper. Instead, and primarily in her Reply, Plaintiff This argument is not developed anywhere in the brief, 19 20 C.F.R. §§404.1520(e), (f) identifies the expression past 20 relevant work as an operative concept at the fourth step of the 21 sequential evaluation process. 22 §404.1560(b)(1), as, ... work that you have done within the past 15 23 years, ... Further assistance is provided in Social Security Rulings 24 ( SSR ) 82-61 and 82-62. 25 the force and effect of law, they are relevant to construe the Social 26 Security Administration s interpretation of its own regulations and 27 the statutes which it is empowered to administer. 28 three possible alternative tests are set forth for determining whether The definition of PRW is set forth in While Social Security Rulings do not carry 3 Under SSR 82-61, 1 or not a claimant retains the capacity to perform his or her PRW. 2 The first is described as, 3 Whether the claimant retains the capacity to perform 4 a past relevant job based on a broad generic, occupational 5 classification of that job, e.g., delivery job, packaging 6 job, etc. 7 A second alternative definition is, 8 Whether the claimant retains the capacity to perform 9 the particular functional demands and job duties peculiar to 10 an individual job as he or she actually performed it. 11 Finally, a third alternative is described as, 12 Whether the claimant retains the capacity to perform 13 the functional demands and job duties of the job as 14 ordinarily required by employers throughout the national 15 economy. 16 17 In the Ninth Circuit, PRW is defined as not just encompassing a 18 claimant s former job, but her former type of work. 19 Heckler, 797 F.2d 794, 798 (9th Cir. 1986). 20 21 See Villa v. Additional assistance is provided by reference to SSR 82-62, which provides in pertinent part that, 22 The term work experience means skills and abilities 23 acquired through work previously performed by the individual 24 which indicates the type of work the individual may be 25 expected to perform. 26 demonstrated a capability is the best indicator of the kind 27 of work that the individual can be expected to do. 28 Based on this legal framework, the Court has no basis to conclude Work for which the individual has 4 1 that Plaintiff s PRW does not include work as a housekeeper. 2 at from that viewpoint, the issue of whether or not Plaintiff is 3 literate in English does not impact the analysis, because Plaintiff 4 actually performed this work. 5 Looked Even if the Grid Rules were applicable, however, they would not 6 preclude Plaintiff from doing this PRW. 7 As noted in 20 C.F.R. Part 404, subpart B, in section 2202.00(g), 8 While illiteracy or the inability to communicate in 9 English may significantly limit the individual s vocational 10 scope, the primary work functions in the bulk of unskilled 11 work relate to working with things (rather than with data or 12 people) and in these work functions at the unskilled level, 13 literacy or ability to communicate in English has the least 14 significance. 15 16 Based on the foregoing, the Court finds no error in the ALJ s 17 failure to rely upon the Grid Rule, noting, however, that Plaintiff s 18 ability to do this PRW may be impacted on remand when the ALJ will 19 reevaluate the exertional limitations assessed by Plaintiff s treating 20 doctors. (See, Section II, infra.) 21 22 II 23 THE ALJ FAILED TO PROVIDE SPECIFIC AND LEGITIMATE REASONS 24 TO REJECT REACHING LIMITATIONS ASSESSED BY HER TREATING PHYSICIANS 25 In Plaintiff s second issue, she contends the ALJ failed to 26 articulate 27 limitations assessed by her treating and non-treating physicians. 28 specific and legitimate reasons to reject reaching The RFC as assessed by the ALJ allows Plaintiff to perform the 5 1 full range of light work as defined in 20 C.F.R. §404.1567(b). (AR 2 14.) 3 physicians, including Dr. Sobol, who is correctly identified as 4 Plaintiff s treating physician, although the decision attributes to 5 him an assessment that Plaintiff is precluded from use of her right 6 arm at shoulder level or above in repetitive pushing and pulling 7 activities, when this in fact was assessed by Dr. Nagelberg, also a 8 treating physician. (AR 348.) 9 and gave it great weight as it is generally consistent with the In the decision, the ALJ reviews the opinions of various 10 entire 11 specifically discussed (other than acknowledging them), and certainly 12 are 13 exertional limitations were accepted, they should have been included 14 in the hypothetical questions posed to the VE, but they were not. 15 While the Commissioner attempts to rescue the deficiencies in the 16 opinion by asserting that the ALJ reasonably synthesized the medical 17 evidence and opinions, and they supported his RFC finding (JS at 13), 18 in fact this is not the case. 19 by indicating that the ALJ did not specifically reject any of this 20 evidence. (Id.) 21 properly 22 evaluation. This error is significant and merits remand so that a new 23 hearing may be held, and the opinions of the physicians who examined 24 Plaintiff, 25 evaluated and then accepted or rejected based on articulated reasons. 26 // 27 // 28 // not record as a While the ALJ considered that opinion rejected. whole, As Plaintiff reaching correctly limitations points out, are if not such The Commissioner tacitly admits as much If that is the case, then the evidence was not synthesized, and the the but various simply left restrictions 6 unaddressed they in assessed, the can RFC be 1 2 3 For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 4 5 6 DATED: June 7, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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