Mark J Thun v. Michael J Astrue, No. 2:2011cv02329 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 MARK J. THUN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ) ___________________________________) NO. CV 11-2329-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on March 18, 2011, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on April 4, 2011. 1 Plaintiff filed a motion for summary judgment on September 14, 2011. 2 Defendant filed a motion for summary judgment on November 10, 2011. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; Order, filed March 22, 2011. 5 6 BACKGROUND 7 8 9 Plaintiff, a former general contractor and concrete mason, asserted disability based on, inter alia, arthritis in all of his 10 joints, shoulder problems, a skin condition, and pain (Administrative 11 Record ( A.R. ) 137-39, 146-48). 12 found that Plaintiff suffered from severe psoriasis, degenerative 13 arthritis in his left shoulder, depression (not otherwise specified), 14 discogenic disease of the lumbosacral spine and psoriatic arthritis 15 (A.R. 18-19). 16 not disabling (A.R. 20-32). An Administrative Law Judge ( ALJ ) However, the ALJ also found that these impairments were 17 18 19 The ALJ determined that Plaintiff retained the residual functional capacity for medium work with the following limits: 20 21 [Plaintiff] can stand or walk no more than 5 hours in an 8 22 hour day; he can sit no more than 6 hours in an 8 hour day; 23 he can lift no more than 20 pounds frequently and 40 pounds 24 occasionally; he can do only occasional overhead reaching 25 with the left, non-dominant arm; his fine fingering and 26 gross handling abilities are limited to frequent, not 27 constant; he must avoid unprotected heights and dangerous 28 machinery; and he can handle simple and complex 2 1 instructions. 2 3 (A.R. 24, 26 (emphasis added); see also A.R. 86-88 (Plaintiff 4 testifying that he could lift and carry 20 to 40 pounds, stand and 5 walk probably five hours in an eight-hour workday, and sit without 6 limitation)).1 7 concluded that a person retaining this capacity could perform 8 Plaintiff s past relevant work as a masonry contractor (A.R. 30-31 9 (adopting vocational expert testimony at A.R. 91-92)). Relying on vocational expert testimony, the ALJ The Appeals 10 Council considered additional medical records submitted by Plaintiff, 11 but denied review (A.R. 1-4, 271-369). 12 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. section 405(g), this Court reviews the 16 Administration s decision to determine if: (1) the Administration s 17 findings are supported by substantial evidence; and (2) the 18 Administration used correct legal standards. 19 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 20 499 F.3d 1071, 1074 (9th Cir. 2007). 21 relevant evidence as a reasonable mind might accept as adequate to 22 support a conclusion. See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 23 1 24 25 26 27 28 SSR 83-10 instructs that a full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. See SSR 83-10; see also 20 C.F.R. § 404.1567(c) (defining medium work as requiring frequent lifting or carrying of objects weighing up to 25 pounds ). Social Security rulings are binding on the Administration. Terry v. Sullivan, 903 F.2d 1273, 1275 n. 1 (9th Cir. 1990). 3 1 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 2 454 F.3d 1063, 1067 (9th Cir. 2006). 3 4 Where, as here, the Appeals Council considered additional 5 evidence but denied review, the additional evidence becomes part of 6 the Administrative Record for purposes of the Court s analysis. 7 Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.), cert. denied, 531 8 U.S. 1038 (2000) (in remanding administrative decision, the Ninth 9 Circuit relied on treatment records submitted for the first time to 10 the Appeals Council, which had considered the records in the context 11 of denying review); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 12 1993) ( [A]lthough the Appeals Council declined to review the decision 13 of the ALJ, it reached this ruling after considering the case on the 14 merits; examining the entire record, including the additional 15 material; and concluding that the ALJ s decision was proper and that 16 the additional material failed to provide a basis for changing the 17 hearing decision. 18 ALJ s decision and the additional material submitted to the Appeals 19 Council ) (citations and quotations omitted); Penny v. Sullivan, 2 20 F.3d 953, 957 n.7 (9th Cir. 1993) ( the Appeals Council considered 21 this information [a doctor s opinion] and it became part of the record 22 we are required to review as a whole ); accord Lingenfelter v. Astrue, 23 504 F.3d 1028, 1030 n.2 (9th Cir. 2007); Healy v. Astrue, 379 Fed. 24 App x 643, 646 (9th Cir. May 18, 2010); see generally 20 C.F.R. §§ 25 404.970(b), 416.1470(b). 26 /// 27 /// 28 /// See For these reasons, we consider on appeal both the 4 1 DISCUSSION 2 3 Plaintiff contends, inter alia, that the ALJ erred by failing to 4 include in the hypothetical questioning of the vocational expert all 5 of the limitations the ALJ found to exist. 6 9-10. 7 based at least in part on Plaintiff s testimony concerning his 8 limitations. 9 capacity) with A.R. 26 (ALJ s description of Plaintiff s similar See Plaintiff s Motion at The ALJ appears to have adopted a residual functional capacity Compare A.R. 24 (Plaintiff s residual functional 10 testimony) and A.R. 86-88 (Plaintiff s testimony). In finding that 11 Plaintiff could perform his past relevant work notwithstanding these 12 limitations, the ALJ relied on the opinion of a vocational expert who 13 was present during Plaintiff s testimony (A.R. 31). 14 expert opined that a person having the limitations and work 15 restrictions. . . [Plaintiff] alleges he has and has had since the 16 time . . . he stop[ped] work could perform Plaintiff s past relevant 17 work as a masonry contractor, provided that the person could nap 18 during breaks or at lunch (A.R. 91-92; see also A.R. 87 (Plaintiff 19 testifying that he naps at noon time)). 20 vocational expert precisely delineated those functional limitations 21 the vocational expert assumed in offering such opinion (A.R. 91-92). The vocational Neither the ALJ nor the 22 23 The vocational expert described Plaintiff s past relevant work as 24 a masonry contractor as performed at the light level and agreed with 25 the ALJ that Plaintiff could do light work (A.R. 91-92; see also A.R. 26 187 (expert s past relevant work analysis)). 27 of Occupational Titles ( DOT ) listing for masonry contractor (DOT 28 182.167-010), lists the job as light work. 5 The relevant Dictionary See DOT 182.167-010; see 1 also A.R. 187 (identifying DOT section and noting an occupationally 2 significant characteristic of extensive standing and walking ) 3 (emphasis added). 4 full range of light work requires standing or walking, off and on, for 5 a total of approximately 6 hours of an 8-hour workday. 6 occur intermittently during the remaining time. 7 (emphasis added). 8 (and the ALJ found) that Plaintiff could stand for only five hours in 9 an eight-hour day (A.R. 24, 87). Social Security Ruling 83-10 instructs that the Sitting may See SSR 83-10 In the present case, however, Plaintiff testified 10 11 Where a hypothetical question fails to set out all of the 12 claimant s impairments, the vocational expert s answers to the 13 question cannot constitute substantial evidence to support the ALJ s 14 decision. 15 Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 16 Assuming, arguendo, the hypothetical question set out (through 17 incorporation by reference) all of Plaintiff s limitations the ALJ 18 found to exist, including the limitation of no more than five hours of 19 standing, the vocational expert s opinion appears to have been in 20 conflict with the DOT. 21 at *4 (W.D. Wash. Nov. 3, 2009) (vocational expert s testimony that 22 plaintiff, who was limited to standing for four hours, could perform 23 job requiring standing for six hours was at odds with the DOT). 24 Social Security Ruling 00-4p provides: See, e.g., Gamer v. Secretary, 815 F.2d 1275, 1280 (9th See, e.g., Pearce v. Astrue, 2009 WL 3698514, 25 26 Occupational evidence provided by a [vocational expert] 27 generally should be consistent with the occupational 28 information supplied by the DOT. 6 When there is an apparent 1 unresolved conflict between [vocational expert] evidence and 2 the DOT, the adjudicator must elicit a reasonable 3 explanation for the conflict before relying on the 4 [vocational expert] evidence to support a determination or 5 decision about whether the claimant is disabled. 6 hearings level, as part of the adjudicator s duty to fully 7 develop the record, the adjudicator will inquire on the 8 record, as to whether or not there is such consistency. At the 9 10 Neither the DOT nor the [vocational expert] evidence 11 automatically trumps when there is a conflict. 12 adjudicator must resolve the conflict by determining if the 13 explanation given by the [vocational expert] is reasonable 14 and provides a basis for relying on the [vocational expert] 15 testimony rather than on the DOT information. The 16 17 In Plaintiff s case, the ALJ did not inquire of the vocational 18 expert whether the expert s testimony was consistent with the 19 information in the DOT. 20 explanation for preferring the vocational expert s testimony over the 21 conflicting information in the DOT. See A.R. 91-93.2 Nor did the ALJ seek an This was error. See SSR 00-4p; 22 2 23 24 25 26 27 28 A second hypothetical posed to the expert questioned whether a person who, inter alia, could stand and/or walk six hours out of an eight-hour day with other limitations could perform Plaintiff s past relevant work (A.R. 92-93). In response to that question, the vocational expert testified that the person could perform the work as a masonry contractor consistent with how the job is performed in the national economy per the Dictionary of Occupational Titles (A.R. 93). This testimony cannot support the ALJ s decision because the second hypothetical question manifestly failed to set out at least one of Plaintiff s limitations, i.e., the limitation to no more than five hours of standing. 7 1 Light v. Social Security Administration, 119 F.3d 789, 794 (9th Cir. 2 1997) (error that [n]either the ALJ nor the vocational expert 3 explained the reason for departing from the DOT ); Johnson v. Shalala, 4 60 F.3d 1428, 1435 (9th Cir. 1995) ( an ALJ may rely on expert 5 testimony which contradicts the DOT, but only insofar as the record 6 contains persuasive evidence to support the deviation ); Thompson v. 7 Astrue, 2011 WL 643109, at *12 (W.D. Wash. Jan. 28, 2011), adopted, 8 2011 WL 686757 (W.D. Wash. Feb. 18, 2011) (finding that ALJ erred by: 9 (1) failing to inquire of the vocational expert whether the expert s 10 testimony was consistent with the DOT, where the claimant was able to 11 stand and/or walk for only two hours in an eight-hour day and the DOT 12 described the relevant jobs identified by the expert as light ; and 13 (2) failing to elicit from the expert a reasonable explanation for 14 conflict with the DOT). 15 16 The ALJ s errors with respect to the vocational expert testimony 17 may have been material. The vocational expert did not explain how a 18 limited ability to stand and/or walk would impact Plaintiff s past 19 relevant work as a masonry contractor, and did not offer an opinion 20 concerning whether there were any other jobs that a person with 21 Plaintiff s limitations could perform. 22 the case suggest that further administrative review is needed to 23 determine whether Plaintiff has been prejudiced by the ALJ s failure 24 properly to question the vocational expert, remand is appropriate. 25 See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see generally 26 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 27 administrative determination, the proper course is remand for 28 additional agency investigation or explanation, except in rare 8 Because the circumstances of 1 circumstances). 2 3 CONCLUSION 4 5 For all of the foregoing reasons,3 Plaintiff s and Defendant s 6 motions for summary judgment are denied and this matter is remanded 7 for further administrative action consistent with this Opinion. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: November 14, 2011. 12 13 14 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 3 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 9

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