Rogelia Losa Esquivel v. Michael J Astrue, No. 2:2011cv06183 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (am)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROGELIA LOSA ESQUIVIAS, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 11-6183-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On August 2, 2011, plaintiff Rogelia Losa Esquivias filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance 23 Benefits ( DIB ). Both plaintiff and defendant have consented to proceed for all 24 purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c) 25 (2009). The parties briefing is now complete, and the court deems the matter 26 suitable for adjudication without oral argument. Three issues are presented for decision here: (1) whether the Administrative 27 28 Law Judge ( ALJ ) properly evaluated the opinion of plaintiff s treating physician; 1 (2) whether the ALJ properly evaluated plaintiff s credibility and subjective 2 symptoms; and (3) whether the ALJ properly determined, at step four, that plaintiff 3 is capable of performing past relevant work. Pl. s Mem. at 4-6, 7-9, 9-11; Def. s 4 Mem. at 2-5, 5-7, 7-9. 5 Having carefully studied, inter alia, the parties written submissions and the 6 Administrative Record ( AR ), the court finds that, as detailed herein, the ALJ 7 properly rejected both the opinion of plaintiff s treating physician and plaintiff s 8 subjective complaints. But the court also finds the ALJ erred in failing to make 9 specific findings regarding the relation between plaintiff s residual functional 10 capacity and the physical demands of her past relevant work. Therefore, the court 11 remands this matter to the Commissioner in accordance with the principles and 12 instructions enunciated in this Memorandum Opinion and Order. 13 II. 14 FACTUAL AND PROCEDURAL BACKGROUND 15 Plaintiff, who was fifty-three years old on the date of her July 1, 2010 16 administrative hearing, has a third-grade education from Mexico. See AR at 29, 17 147. Her past relevant work includes employment as a quality control inspector. Id. 18 at 38. 19 On January 26, 2009, plaintiff protectively applied for DIB, alleging that she 20 has been disabled since January 15, 2008 due to generalized arthritis, left shoulder 21 pain, lumbar spine pain, cervical spine pain, bilateral foot pain, bilateral hand pain, 22 and back injury. See AR at 136, 141. Plaintiff s application was denied initially 23 and upon reconsideration, after which she filed a request for a hearing. Id. at 44, 45, 24 48-53, 55, 57-62, 65. 25 On July 1, 2010, plaintiff, represented by counsel, appeared and testified at a 26 hearing before the ALJ with the assistance of an interpreter. AR at 29-38. The ALJ 27 also heard testimony from E. Kurata, a vocational expert ( VE ). Id. at 37-42. On 28 August 13, 2010, the ALJ denied plaintiff s request for benefits. Id. at 11-17. 2 1 Applying the well-known five-step sequential evaluation process, the ALJ 2 found, at step one, that plaintiff has not engaged in substantial gainful activity since 3 January 15, 2008, her alleged disability onset date. AR at 13. 4 At step two, the ALJ found that plaintiff suffers from severe medically 5 determinable impairments consisting of: asthma, degenerative disc disease of the 6 lumbosacral spine, and left shoulder pain. AR at 13. 7 At step three, the ALJ determined that the evidence does not demonstrate that 8 plaintiff s impairments, either individually or in combination, meet or medically 9 equal the severity of any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 10 1. AR at 13. The ALJ then assessed plaintiff s residual functional capacity ( RFC )1/ and 11 12 determined that she can perform light work with the following limitations: 13 occasional climbing, bending, kneeling, stooping, crouching and crawling ; 14 occasional reaching overhead with the left upper extremity ; and avoidance of 15 working in hazardous environments where there are concentrated exposure to dust, 16 fumes, and pollutants. AR at 15 (emphasis omitted). 17 The ALJ found, at step four, that plaintiff is capable of performing past 18 relevant work as a quality control inspector. AR at 16. The ALJ therefore 19 concluded that plaintiff was not suffering from a disability as defined by the Social 20 Security Act. Id. at 11, 16-17. 21 Plaintiff filed a timely request for review of the ALJ s decision, which was 22 denied by the Appeals Council. AR at 1-3, 5. The ALJ s decision stands as the 23 24 1/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007) (citation omitted). 3 1 final decision of the Commissioner. 2 III. 3 STANDARD OF REVIEW 4 This court is empowered to review decisions by the Commissioner to deny 5 benefits. 42 U.S.C. § 405(g) (2010). The findings and decision of the Social 6 Security Administration must be upheld if they are free of legal error and supported 7 by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 8 But if the court determines that the ALJ s findings are based on legal error or are 9 not supported by substantial evidence in the record, the court may reject the findings 10 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 11 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 12 Substantial evidence is more than a mere scintilla, but less than a 13 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 14 evidence which a reasonable person might accept as adequate to support a 15 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ s finding, 17 the reviewing court must review the administrative record as a whole, weighing 18 both the evidence that supports and the evidence that detracts from the ALJ s 19 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 20 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 21 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 22 evidence can reasonably support either affirming or reversing the ALJ s decision, 23 the reviewing court may not substitute its judgment for that of the ALJ. Id. 24 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 25 IV. 26 DISCUSSION 27 A. The ALJ Properly Rejected the Opinion of Plaintiff s Treating Physician 28 Plaintiff contends that the ALJ failed to articulate legally sufficient reasons 4 1 for rejecting the opinion of her treating physician, Dr. Thomas J. Grogan. Pl. s 2 Mem. at 4-6. The court disagrees, for the reasons discussed below. 3 In evaluating medical opinions, Ninth Circuit case law and Social Security 4 regulations distinguish among the opinions of three types of physicians: (1) those 5 who treat the claimant (treating physicians); (2) those who examine but do not treat 6 the claimant (examining physicians); and (3) those who neither examine nor treat 7 the claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th 8 Cir. 1996); see also 20 C.F.R. § 404.1527(c) (2012) (prescribing the respective 9 weight to be given the opinion of treating sources and examining sources). As a 10 general rule, more weight should be given to the opinion of a treating source than to 11 the opinion of doctors who do not treat the claimant. Lester, 81 F.3d at 830 12 (citation omitted); accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 13 (9th Cir. 2003). This is so because a treating physician is employed to cure and 14 has a greater opportunity to know and observe the patient as an individual. 15 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citation omitted). The 16 opinion of an examining physician is, in turn, entitled to greater weight than the 17 opinion of a nonexamining physician. Lester, 81 F.3d at 830 (citations omitted). 18 Where the treating physician s opinion is not contradicted by another doctor, 19 it may be rejected only for clear and convincing reasons. Benton, 331 F.3d at 20 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ( While the 21 ALJ may disregard the opinion of a treating physician, whether or not controverted, 22 the ALJ may reject an uncontroverted opinion of a treating physician only for clear 23 and convincing reasons. (citation omitted)). Even if the treating doctor s opinion 24 is contradicted by another doctor, the [ALJ] may not reject this opinion without 25 providing specific and legitimate reasons supported by substantial evidence in the 26 record for doing so. Lester, 81 F.3d at 830 (internal quotation marks and citation 27 omitted); accord Reddick, 157 F.3d at 725. The ALJ can meet the requisite specific 28 and legitimate standard by setting out a detailed and thorough summary of the facts 5 1 and conflicting clinical evidence, stating his interpretation thereof, and making 2 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal 3 quotation marks and citation omitted). 4 Here, having duly reviewed the record and the parties written submissions, 5 the court finds that ALJ properly rejected Dr. Grogan s opinion. The ALJ set[] out 6 a detailed and thorough summary of the facts and conflicting clinical evidence, 7 stat[ed] his interpretation thereof, and concluded that there is no objective evidence 8 to support Dr. Grogan s extremely limited [RFC] assessment, whereas the medical 9 consultants conclusions are consistent with the objective findings and the 10 evidence of record. See Magallanes, 881 F.2d at 751 (internal quotation marks and 11 citation omitted); AR at 14-15. This is a specific and legitimate reason for rejecting 12 Dr. Grogan s opinion. See Batson v. Comm r, 359 F.3d 1190, 1195 (9th Cir. 2004) 13 (ALJ may discredit treating physician s opinions that are conclusory, brief, and 14 unsupported by the record as a whole, or by objective medical findings); Thomas v. 15 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ( ALJ need not accept the opinion of 16 any physician, including a treating physician, if that opinion is brief, conclusory, 17 and inadequately supported by clinical findings (citation omitted)); Burkhart v. 18 Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (ALJ properly rejected treating 19 physician s opinion, which was unsupported by medical findings, personal 20 observations, or test reports). 21 First, Dr. Grogan s opinion is unsupported by his own objective findings. For 22 instance, although Dr. Grogan (in a December 11, 2008 Physical Capacities 23 Evaluation check-list form) opined that plaintiff can only occasionally lift and carry 24 up to five pounds, Dr. Grogan found on physical examination that same day that 25 plaintiff had a full range of motion of the shoulders, elbows, wrists and hands 26 bilaterally and that Motor examination [wa]s 5/5 [in] all groups tested. See AR 27 at 233, 262-63; see also AR at 14. And despite opining that plaintiff can only sit 28 four hours, stand three hours, and walk two hours in an eight-hour work day (id. at 6 1 233), Dr. Grogan found that: plaintiff s [g]ait [wa]s normal to heel and toe without 2 crutch, cane, or orthoses ; on spine exam, plaintiff had a full range of motion of 3 the cervical spine with pain noted only on the extremes of motion ; and [o]n lower 4 extremity examination[, plaintiff] ha[d] full range of motion of the hips, knees, 5 ankles and subtalar joints bilaterally. Id. at 262-63. 6 Second, Dr. Grogan s RFC assessment is unsupported by the opinions of Dr. 7 Carlos Gonzalez (a consultative examining physician) and Dr. R. May (consultative 8 non-examining physician). Among other things, Dr. Gonzalez found based upon a 9 physical examination on May 3, 2009, plaintiff s medical history, and review of the 10 medical record that [l]ifting and carrying can be performed approximately 50 11 pounds occasionally and 25 pounds frequently and that plaintiff does not have any 12 standing and walking limitations. AR at 267; see Magallanes, 881 F.2d at 751 13 (examining physician s opinion may constitute substantial evidence if the 14 nontreating physician relies on independent clinical findings that differ from the 15 findings of the treating physician (internal quotation marks and citations omitted)). 16 Likewise, Dr. May found plaintiff less limited than Dr. Grogan opined. 17 Specifically, Dr. May found, inter alia, that: plaintiff can occasionally lift twenty 18 pounds and frequently lift ten pounds; plaintiff can stand and walk about six hours 19 in an eight-hour workday; and plaintiff can sit about six hours in an eight-hour 20 workday. AR at 277; see Andrews, 53 F.3d at 1041-42 (non-examining physician s 21 opinion may constitute substantial evidence only when it is supported by other 22 evidence in the record and [is] consistent with it ). The ALJ found these opinions 23 supported by the record. AR at 14-15. 24 Plaintiff also argues that if the ALJ thought that the treating doctor s 25 residual functional capacity assessment was inconsistent with his records[,] the ALJ 26 should have attempted to recontact Dr. Grogan. Pl. s Mem. at 6. But [a]n ALJ is 27 required to recontact a doctor only if the doctor s report is ambiguous or insufficient 28 for the ALJ to make a disability determination. Bayliss v. Barnhart, 427 F.3d 7 1 1211, 1217 (9th Cir. 2005); see Mayes, 276 F.3d at 459-60 (ALJ has a duty to 2 develop the record further only when there is ambiguous evidence or when the 3 record is inadequate to allow for proper evaluation of the evidence (citation 4 omitted)); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ( If the ALJ 5 thought he needed to know the basis of [a doctor s] opinion[] in order to evaluate 6 [it], he had a duty to conduct an appropriate inquiry, for example, by subpoenaing 7 the physician[] or submitting further questions to [him or her]. (citations omitted)). 8 Here, the ALJ, relying on the opinions of Dr. Gonzalez and Dr. May, did not find 9 Dr. Grogan s report ambiguous nor insufficient to make a disability determination. 10 Consequently, the ALJ did not have a duty to re-contact Dr. Grogan. 11 In short, the court finds that the ALJ provided a specific and legitimate reason 12 supported by substantial evidence for rejecting Dr. Grogan s opinion, and that 13 the ALJ did not have a duty to re-contact Dr. Grogan. Accordingly, the ALJ did not 14 err in evaluating Dr. Grogan s opinion. 15 B. The ALJ Properly Discounted Plaintiff s Credibility and Subjective 16 Complaints 17 Plaintiff argues that the ALJ failed to properly assess her credibility. See Pl. s 18 Mem. at 7-9. Specifically, plaintiff contends that the ALJ improperly discounted 19 her credibility based upon not receiving ongoing care, . . . not be[ing] referred to a 20 pain clinic, . . . not us[ing] home remedies such as hot water bottles or hot baths 21 for pain relief, and not seem[ing] too motivated to work. Id. at 8. The court 22 disagrees with plaintiff and, for the reasons discussed below, finds that the ALJ 23 provided clear and convincing reasons for discounting her credibility. 24 A claimant carries the burden of producing objective medical evidence of his 25 or her impairments and showing that the impairments could reasonably be expected 26 to produce some degree of the alleged symptoms. Benton, 331 F.3d at 1040. But 27 once the claimant meets that burden, medical findings are not required to support 28 the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) 8 1 (en banc); see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) 2 ( claimant need not present clinical or diagnostic evidence to support the severity of 3 his pain (citation omitted)). 4 Instead, once a claimant has met the burden of producing objective medical 5 evidence, an ALJ can reject the claimant s subjective complaint only upon (1) 6 finding evidence of malingering, or (2) expressing clear and convincing reasons for 7 doing so. Benton, 331 F.3d at 1040. The ALJ may consider the following factors 8 in weighing the claimant s credibility: (1) his or her reputation for truthfulness; (2) 9 inconsistencies either in the claimant s testimony or between the claimant s 10 testimony and his or her conduct; (3) his or her daily activities; (4) his or her work 11 record; and (5) testimony from physicians and third parties concerning the nature, 12 severity, and effect of the symptoms of which she complains. Thomas, 278 F.3d at 13 958-59. Here, the ALJ did not find evidence of malingering. See generally AR at 14 11-17. Thus, in rejecting plaintiff s credibility, the ALJ was required to articulate 15 clear and convincing reasons. See Benton, 331 F.3d at 1040. Having carefully 16 reviewed the record, the court finds that the ALJ provided several clear and 17 convincing reasons for discounting plaintiff s subjective complaints. 18 First, the ALJ found that the objective medical evidence does not support 19 plaintiff s alleged degree of disability. See AR at 15; see also Batson, 359 F.3d at 20 1197 ( the lack of objective medical evidence supporting [a claimant s] claims . . . 21 constitute[s] substantial evidence in support of the ALJ s negative credibility 22 determination ); Thomas, 278 F.3d at 959 (lack of objective medical evidence 23 supporting descriptions of pain and limitations negatively affected the claimant s 24 credibility regarding her inability to work). Although a lack of objective evidence 25 supporting plaintiff s symptoms cannot be the sole reason for rejecting her 26 testimony, it can be one of several factors used in evaluating the credibility of her 27 subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 28 2001). 9 1 Second, the ALJ properly discounted plaintiff s subjective complaints as 2 inconsistent with her conservative treatment. [E]vidence of conservative 3 treatment is sufficient to discount a claimant s testimony regarding severity of an 4 impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted); 5 see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly considered, 6 as part of credibility evaluation, claimant s failure to request medical treatment 7 commensurate with the supposedly excruciating pain alleged, and the minimal, 8 conservative treatment (citation omitted)); Fair v. Bowen, 885 F.2d 597, 604 (9th 9 Cir. 1989) (ALJ permissibly considered discrepancies between the claimant s 10 allegations of persistent and increasingly severe pain and the nature and extent 11 of treatment obtained). 12 The ALJ found that plaintiff d[id] not receive ongoing care and, when 13 treated, she received only conservative treatment, mostly medication management. 14 AR at 15. Specifically, the ALJ found at that time: plaintiff was not participating in 15 physical therapy; plaintiff d[id] not use a TENS unit, and she [w]as not prescribed 16 a cane, walker or wheelchair ; Dr. Gonzalez found no need for any assistive device 17 for walking ; and [plaintiff] ha[d] not been referred to a pain clinic. Id. Indeed, 18 although plaintiff testified that [her] back hurts a lot . . . [and her] left arm hurts, 19 she further testified that the only treatment she was receiving at that time was 20 medicines that [Dr. Grogan] prescribed. Id. at 30, 32; see id. at 177-78 (plaintiff 21 was prescribed Advil 200 mg and Naproxen (also known as Aleve) for pain). Also, 22 plaintiff stated in a February 21, 2009 Pain Questionnaire form that, in addition to 23 pain medications, her treatment consisted of rest, hot bathes, Blue ice gel, [and] 24 other ointments. Id. at 258. 25 Third, the ALJ properly discounted plaintiff s subjective complaints based 26 upon ordinary techniques of trustworthiness determination, such as inconsistent 27 statements regarding her abilities. See AR at 16; see also Thomas, 278 F.3d at 95828 59 (when weighing a claimant s credibility, the ALJ may consider inconsistencies 10 1 between the claimant s testimony); Tonapetyan, 242 F.3d at 1148 (ALJ may engage 2 in ordinary techniques of credibility evaluation, such as considering inconsistencies 3 in a claimant s testimony). In this case, the ALJ found plaintiff s alleged inability 4 to communicate in English inconsistent with: (1) her testimony that she came to the 5 United States at the age of nineteen or twenty (over thirty-three years before the 6 date of her administrative hearing); and (2) her ability to work in semiskilled work, 7 as a quality control worker, for about twelve years. AR at 16; see AR at 140 8 (plaintiff stated in a Disability Report - Adult Form that she can not speak or 9 understand English). That plaintiff had been in the United States for more than 10 three decades does not necessarily mean she could communicate in English. But the 11 ALJ properly pointed to plaintiff s work as inconsistent with her claimed language 12 limitations. Specifically, plaintiff stated in the Disability Report - Adult Form that 13 part of her duties as a quality control worker was to write reports, complete reports, 14 or perform similar duties. Id. at 142. Thus, this was a proper reason for rejecting 15 plaintiff s credibility. 16 Notwithstanding the aforementioned legitimate credibility findings, the ALJ s 17 other purported reason for his adverse credibility finding that plaintiff s daily 18 activities are also inconsistent with her allegations is not a valid reason for 19 discounting plaintiff s credibility. See AR at 16. Although the ALJ noted that 20 [plaintiff] reported that she ran errands, shopped, cooked and did light household 21 chores, the ALJ failed to demonstrate how plaintiff s ability to perform these daily 22 activities is inconsistent with her alleged limitations. See Reddick, 157 F.3d at 722 23 (only if a plaintiff s level of activity is inconsistent with her alleged limitations will 24 these activities have any bearing on claimant s credibility); see also Vertigan v. 25 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ( the mere fact that a plaintiff has 26 carried on certain daily activities, such as grocery shopping, driving a car, or limited 27 walking for exercise, does not in any way detract from her credibility as to her 28 overall disability ). 11 1 Nevertheless, the ALJ s misplaced reliance on plaintiff s daily activities to 2 discount her credibility was harmless. See Batson, 359 F.3d at 1195-97 (ALJ erred 3 in relying on one of several reasons in support of an adverse credibility 4 determination, but such error was harmless because the ALJ s remaining reasons 5 and ultimate credibility determination were adequately supported by substantial 6 evidence in the record). The ALJ s error does not negate the validity of his 7 ultimate credibility finding, and the ALJ s decision remains legally valid, despite 8 such error. See Carmickle v. Comm r, 533 F.3d 1155, 1162 (9th Cir. 2008) 9 (internal quotation marks and citation omitted). 10 C. The ALJ Erred, at Step Four, in Finding Plaintiff Capable of Performing 11 Past Relevant Work 12 Plaintiff contends the ALJ improperly determined her capable of performing 13 her past relevant work (quality control inspector) as actually and generally 14 performed. Pl. s Mem. at 9-11. Plaintiff specifically asserts that: (1) the job was 15 actually performed at a medium exertional level, and she was found incapable of 16 performing work at that level; and (2) she is incapable of performing her past 17 relevant work as generally performed because she does not possess the requisite 18 language requirements to perform this job. Id. at 9. Defendant concedes that the 19 ALJ erred in finding plaintiff capable of performing her past relevant work as 20 actually performed. Def. s Mem. at 8. But defendant contends that the ALJ did 21 properly find that Plaintiff could perform her past work as she generally performed 22 it, and therefore was not disabled at Step Four. Id. For the reasons discussed 23 below, the court disagrees with defendant and finds the ALJ erred at step four. 24 At step four of the sequential analysis, the claimant has the burden to prove 25 that he cannot perform his prior relevant work either as actually performed or as 26 generally performed in the national economy. Carmickle, 533 F.3d at 1166 27 (citation omitted). Although the burden of proof lies with the claimant at step four, 28 the ALJ still has a duty to make the requisite factual findings to support his 12 1 conclusion. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citations 2 omitted). The ALJ must make specific findings as to: (1) the claimant s residual 3 functional capacity ; (2) the physical and mental demands of the past relevant 4 work ; and (3) the relation of the residual functional capacity to the past work. 5 Id. at 845 (citing Social Security Ruling ( SSR ) 82-62).2/ But the ALJ is not 6 required to make explicit findings at step four regarding a claimant s past relevant 7 work both as generally performed and as actually performed. Pinto, 249 F.3d at 8 845. 9 The court disagrees with plaintiff that the ALJ . . . erred in finding that 10 [plaintiff] could perform her past work as it is generally performed because she does 11 not possess the requisite language requirements to perform this job. Pl. s Mem. at 12 9. In assessing whether or not a claimant can perform past relevant work, the 13 claimant s assessed RFC is compared with the physical and mental demands of the 14 claimant s past relevant work. 20 C.F.R. § 404.1560(b) (2012). Education will not 15 normally be considered until step five of the evaluation process. See 20 C.F.R. 16 § 404.1560(c) (2012); but cf. Pinto, 249 F.3d at 847 n.5 ( We decline to reach the 17 question of whether illiteracy may properly be considered at step four of a disability 18 determination. ). If the ALJ finds, as part of a claimant s assessed RFC, that 19 illiteracy is a limitation, then the DOT s job description must comport with this 20 limitation too in order for the ALJ to rely on the DOT. Pinto, 249 F.3d at 847. 21 Otherwise, the ALJ must definitively explain this deviation. Id. In this case, 22 because the ALJ s RFC assessment of plaintiff did not include illiteracy, the ALJ 23 24 25 26 27 28 2/ The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 13 1 was not required to consider illiteracy at step four of the disability determination. 2 See id. 3 Although the ALJ did not err with respect to plaintiff s alleged language 4 limitations, the ALJ did err in failing to make specific findings as to the relation of 5 plaintiff s other assessed limitations to her past work as described in the DOT. 6 Despite finding, inter alia, that plaintiff is limited to occasional[ly] reaching 7 overhead with the left upper extremity, the ALJ inexplicably concluded that 8 plaintiff is able to perform [her past relevant work] as . . . generally performed. 9 See AR at 15, 16. Particularly problematic here is that, according to the DOT, 10 quality control inspector work requires frequently reaching with both extremities. 11 See DOT No. 725.687-026, 1991 WL 679565. [I]n order for an ALJ to rely on a 12 job description in the [DOT] that fails to comport with a claimant s noted 13 limitations, the ALJ must definitively explain this deviation. Pinto, 249 F.3d at 14 847; see also Carmickle, 533 F.3d at 1167 ( the ALJ always has a duty to make the 15 requisite factual findings to support his conclusion at step four (internal quotation 16 marks and citation omitted)). The ALJ here failed to include any findings or 17 explanation for how he determined that a plaintiff he found limited to 18 occasional[ly] reaching overhead with the left upper extremity was nonetheless 19 capable of frequently reaching with both extremities. 20 To the extent the ALJ relied on the VE s testimony regarding the 21 requirements of the quality control inspector job, such reliance is misplaced because 22 the VE s testimony contradicted the DOT and the record lacks persuasive evidence 23 to support the deviation. See AR at 39; Pinto, 249 F.3d at 846 (for an ALJ to accept 24 vocational expert testimony that contradicts the DOT, the record must contain 25 persuasive evidence to support the deviation (internal quotation marks and 26 citation omitted)). Accordingly, the ALJ erred in finding plaintiff capable of 27 performing her past relevant work as generally performed, as well as having erred in 28 finding plaintiff capable of performing the work as actually performed. 14 1 V. 2 REMAND IS APPROPRIATE 3 The decision whether to remand for further proceedings or reverse and award 4 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 5 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further 6 proceedings, or where the record has been fully developed, it is appropriate to 7 exercise this discretion to direct an immediate award of benefits. See Benecke v. 8 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 9 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings turns 10 upon their likely utility). But where there are outstanding issues that must be 11 resolved before a determination can be made, and it is not clear from the record that 12 the ALJ would be required to find plaintiff disabled if all the evidence were 13 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 14 Harman, 211 F.3d at 1179-80. 15 Here, as set out above, remand is required because the ALJ erred in failing to 16 make specific findings as to the relation of plaintiff s RFC to her past work as both 17 actually and generally performed. Particularly with respect to the relation between 18 plaintiff s RFC and her past work as generally performed, the record has not been 19 fully developed. On remand, the ALJ shall reevaluate the physical and mental 20 demands of plaintiff s past work as generally performed, as actually performed, or 21 both and either find them consistent or inconsistent with plaintiff s RFC. In either 22 case, the ALJ shall provide an explanation for this finding with references to the 23 usual sources of evidence as to the physical and mental demands of plaintiff s past 24 work. And, if necessary, the ALJ shall proceed to step five to determine what work, 25 if any, plaintiff is capable of performing. 26 / / / 27 / / / 28 / / / 15 1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING 4 the decision of the Commissioner denying benefits, and REMANDING the matter 5 to the Commissioner for further administrative action consistent with this decision. 6 7 Dated: June 26, 2012 8 ____________________________________ 9 SHERI PYM UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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