George G Padilla v. Michael J Astrue, No. 2:2012cv01197 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See order for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GEORGE G. PADILLA, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 12-1197 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On February 17, 2012, plaintiff George G. Padilla ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; February 23, 2012 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On December 8, 2007, plaintiff filed an application for Disability Insurance 7 Benefits. (Administrative Record ( AR ) 21, 142). Plaintiff asserted that he 8 became disabled on July 31, 2007, due to cervical disc disease, pain in both feet, 9 and right shoulder rheumatoid arthritis. (AR 169). The Administrative Law Judge 10 ( ALJ ) examined the medical record and heard testimony from plaintiff (who was 11 represented by counsel), a medical expert and a vocational expert on July 15, 12 2010. (AR 41-57). 13 On September 20, 2010, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 21-30). Specifically, the ALJ found: 15 (1) plaintiff suffered from the following severe impairments: degenerative disc 16 disease of the spine, chronic, recurrent neck pain syndrome, and upper extremity 17 radiculopathy (AR 23); (2) plaintiff s impairments, considered singly or in 18 combination, did not meet or medically equal a listed impairment (AR 24-25); 19 (3) plaintiff retained the residual functional capacity to perform light work 20 (20 C.F.R. § 404.1567(b)) with certain additional limitations1 (AR 25); 21 (4) plaintiff could not perform his past relevant work (AR 28-29); (5) there are 22 jobs that exist in significant numbers in the national economy that plaintiff could 23 perform, specifically cashier and assembler of plastic parts (AR 29); and 24 25 26 27 28 1 The ALJ determined that plaintiff: (1) could perform light work; (2) could lift and/or carry and push and pull 20 pounds occasionally and 10 pounds frequently; (3) could stand and walk six hours out of an eight hour workday; (4) could sit for six hours out of an eight hour workday; (5) could occasionally reach overhead, climb, balance, stoop, kneel, and crouch; (6) could never crawl or climb ladders; and (7) needed to avoid extreme cold, vibrating tools, unprotected heights, and hazardous equipment. (AR 25). 2 1 (6) plaintiff s allegations regarding his limitations were not credible to the extent 2 they were inconsistent with the ALJ s residual functional capacity assessment 3 (AR 26). 4 The Appeals Council denied plaintiff s application for review. (AR 1). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 8 unable to engage in any substantial gainful activity by reason of any medically 9 determinable physical or mental impairment which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous period of not 11 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 12 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 13 impairment must render the claimant incapable of performing the work claimant 14 previously performed and incapable of performing any other substantial gainful 15 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 16 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 18 sequential evaluation process: 19 (1) 20 21 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 22 the claimant s ability to work? If not, the claimant is not 23 disabled. If so, proceed to step three. 24 (3) Does the claimant s impairment, or combination of 25 impairments, meet or equal an impairment listed in 20 C.F.R. 26 Part 404, Subpart P, Appendix 1? If so, the claimant is 27 disabled. If not, proceed to step four. 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform claimant s past relevant work? If so, the claimant is 3 not disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow the claimant to adjust to other work that 7 exists in significant numbers in the national economy? If so, 8 the claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 11 1110 (same). 12 The claimant has the burden of proof at steps one through four, and the 13 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 14 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 15 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 16 proving disability). 17 B. 18 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 19 benefits only if it is not supported by substantial evidence or if it is based on legal 20 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 21 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 22 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 23 mind might accept as adequate to support a conclusion. Richardson v. Perales, 24 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 25 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 26 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 27 To determine whether substantial evidence supports a finding, a court must 28 consider the record as a whole, weighing both evidence that supports and 4 1 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 2 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 3 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 4 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 5 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 6 IV. DISCUSSION 7 Plaintiff asserts that the ALJ erred at step five in finding that plaintiff could 8 perform the representative jobs of cashier and assembler of plastic parts based 9 on testimony from the vocational expert which, without explanation, deviated 10 from the Dictionary of Occupational Titles ( DOT ). (Plaintiff s Motion at 4-11). 11 The Court agrees. As the Court cannot find that the ALJ s error was harmless, a 12 remand is warranted. 13 A. 14 If, at step four, the claimant meets his burden of establishing an inability to Pertinent Law 15 perform past work, the Commissioner must show, at step five, that the claimant 16 can perform some other work that exists in significant numbers in the national 17 economy (whether in the region where such individual lives or in several regions 18 of the country), taking into account the claimant s residual functional capacity, 19 age, education, and work experience. Tackett, 180 F.3d at 1100 (citing 20 C.F.R. 20 § 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). The Commissioner may satisfy this 21 burden, depending upon the circumstances, by the testimony of a vocational expert 22 or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 23 404, Subpart P, Appendix 2 (commonly known as the Grids ). Osenbrock v. 24 Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). Where, as here, a 25 claimant suffers from both exertional and nonexertional limitations, the Grids do 26 not mandate a finding of disability based solely on the claimant s exertional 27 limitations, and the claimant s non-exertional limitations are at a sufficient level of 28 severity such that the Grids are inapplicable to the particular case, the 5 1 Commissioner must consult a vocational expert.2 Hoopai v. Astrue, 499 F.3d 2 1071, 1076 (9th Cir. 2007); see Lounsburry v. Barnhart, 468 F.3d 1111, 1116 (9th 3 Cir.), as amended (2006); Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 4 1989). 5 The vocational expert s testimony may constitute substantial evidence of a 6 claimant s ability to perform work which exists in significant numbers in the 7 national economy when the ALJ poses a hypothetical question that accurately 8 describes all of the limitations and restrictions of the claimant that are supported 9 by the record. See Tackett, 180 F.3d at 1101; see also Robbins, 466 F.3d at 886 10 (finding material error where the ALJ posed an incomplete hypothetical question 11 to the vocational expert which ignored improperly-disregarded testimony 12 suggesting greater limitations); Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) 13 ( If the record does not support the assumptions in the hypothetical, the vocational 14 expert s opinion has no evidentiary value. ). 15 ALJs routinely rely on the DOT in determining the skill level of a 16 claimant s past work, and in evaluating whether the claimant is able to perform 17 other work in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th 18 Cir. 1990) (citations omitted); see also 20 C.F.R. § 404.1566(d)(1) (DOT is source 19 of reliable job information). The DOT is the presumptive authority on job 20 classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). An ALJ 21 may not rely on a vocational expert s testimony regarding the requirements of a 22 particular job without first inquiring whether the testimony conflicts with the 23 DOT, and if so, the reasons therefor. Massachi v. Astrue, 486 F.3d 1149, 1152-53 24 (9th Cir. 2007) (citing Social Security Ruling 00-4p). In order for an ALJ to 25 accept vocational expert testimony that contradicts the DOT, the record must 26 27 28 2 The severity of limitations at step five that would require use of a vocational expert must be greater than the severity of impairments determined at step two. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). 6 1 contain persuasive evidence to support the deviation. Pinto v. Massanari, 249 2 F.3d 840, 846 (9th Cir. 2001) (quoting Johnson, 60 F.3d at 1435). Evidence 3 sufficient to permit such a deviation may be either specific findings of fact 4 regarding the claimant s residual functionality, or inferences drawn from the 5 context of the expert s testimony. Light v. Social Security Administration, 119 6 F.3d 789, 793 (9th Cir.), as amended (1997) (citations omitted). 7 B. 8 At the hearing before the ALJ, the medical expert testified at length about Pertinent Facts 9 plaintiff s medical treatment, related objective medical testing, and persistent 10 complaints of chronic neck upper extremity pain (which, the medical expert 11 pointed out, did not improve with extensive treatments . . . over a period of 12 time ). (AR 49-52). The medical expert also opined that, among other 13 limitations, plaintiff s reaching in all directions, including overhead, [was] 14 limited to occasional overhead reaching. (AR 53) (emphasis added). 15 Thereafter, the ALJ sought testimony from a vocational expert to determine 16 whether there were jobs in the national economy that plaintiff could perform. (AR 17 54-56). The hypothetical question the ALJ posed to the vocational expert 18 consisted of a single sentence, specifically [w]ould there be other work with what 19 the doctor just said? (AR 54). 20 C. 21 The Court cannot conclude on the current record that the ALJ s findings at Analysis 22 step five of the sequential evaluation process are supported by substantial 23 evidence. 24 First, since the ALJ s hypothetical question essentially did no more than 25 incorporate by reference the medical expert s entire hearing testimony, the Court 26 cannot with sufficient precision determine which limitations found by the medical 27 expert formed the basis of the vocational expert s opinion that there were jobs in 28 the national economy that plaintiff could perform. Specifically, the Court cannot 7 1 determine how the vocational expert interpreted/accounted for the medical 2 expert s ambiguous limitation on plaintiff s ability to reach (i.e., was plaintiff 3 limited to occasional reaching in all directions or just occasional overhead 4 reaching). The ALJ s use of such a short-hand hypothetical question was 5 erroneous in this case, particularly since some of the testimony to which the ALJ 6 referred was itself ambiguous. See, e.g., Lane v. Astrue, 2012 WL 94567, *5 7 (C.D. Cal. Jan. 11, 2012) (remand warranted where medical expert s testimony 8 was unclear and ALJ s findings and hypothetical question based thereon [were] 9 also ambiguous and/or conclusory ); see also Tackett, 180 F.3d at 1101 (ALJ s 10 hypothetical question [must] set out all of the claimant s impairments for the 11 vocational expert s consideration ) (citation omitted). 12 Second, the Court cannot conclude on the current record that the 13 requirements of the jobs of cashier II and assembler for plastic hospital parts are 14 consistent with plaintiff s residual functional capacity. For example, as noted 15 above the medical expert testified that plaintiff was limited to only occasional 16 reaching either in all directions or overhead. (AR 53). The vocational expert 17 testified that, in spite of such limitation, plaintiff (or a hypothetical person with 18 plaintiff s characteristics) could perform the jobs of cashier II and assembler for 19 plastic hospital parts. (AR 54-55). According to the DOT, however, such jobs 20 require frequent[] reaching. (DOT §§ 211.462-010 [cashier II], 712.687-010 21 [assembler for plastic hospital parts ]). Therefore, it appears that even an 22 individual who is only limited to occasional overhead reaching (as opposed to 23 all bilateral reaching) would be precluded from such jobs. See, e.g., Lane, 2012 24 WL 94567, *3 (jobs of cashier II and office helper which require frequent 25 reaching appeared to exceed plaintiff s abilities which precluded all overhead 26 reaching bilaterally ). 27 Third, since the vocational expert did not acknowledge that there was a 28 conflict between her testimony and the DOT, and the ALJ never asked if there was 8 1 such a conflict, neither the vocational expert nor the ALJ attempted to explain or 2 justify the foregoing deviation in any manner. (AR 14-15, 43-46). The ALJ s 3 conclusory assertion that [p]ursuant to SSR 00-4p, the vocational expert s 4 testimony is consistent with the information contained in the [DOT] (AR 29) is 5 insufficient. See Massachi, 486 F.3d at 1152-53. 6 Fourth, since the Court cannot conclude that the ALJ posed a hypothetical 7 question to the vocational expert which accounted for all of plaintiff s limitations, 8 and the ALJ s decision does not explain the apparent inconsistency between 9 plaintiff s reaching limitations and the requirements of the jobs of cashier II and 10 assembler for plastic hospital parts, the vocational expert s testimony, which the 11 ALJ adopted, could not serve as substantial evidence supporting the ALJ s 12 determination at step five that there were jobs in the national economy that 13 plaintiff could perform. Pinto, 249 F.3d at 846; Tackett, 180 F.3d at 1101. 14 Finally, the Court cannot find such errors harmless as defendant points to no 15 other persuasive evidence in the record which could support the ALJ s 16 determination at step five that plaintiff was not disabled. See, e.g., Pinto, 249 F.3d 17 at 846 (remand warranted where ALJ found claimant not disabled at step four 18 based largely on vocational expert s testimony that conflicted with DOT, neither 19 ALJ nor vocational expert addressed the deviation, and ALJ otherwise made very 20 few findings ); cf. Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) 21 (ALJ erred in finding that claimant could return to past relevant work based on 22 vocational expert s testimony that deviated from DOT because ALJ did not 23 identify what aspect of the [vocational expert s] experience warranted deviation 24 from the DOT, and did not point to any evidence in the record other than the 25 [vocational expert s] sparse testimony to support the deviation, but error was 26 harmless in light of ALJ s alternative finding at step five, which was supported by 27 substantial evidence, that claimant could still perform other work in the national 28 and local economies that existed in significant numbers ). 9 1 V. CONCLUSION3 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: September 21, 2012 7 8 ____________/s/_____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 3 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s 22 decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. On remand, however, the ALJ may the wish to reconsider 23 whether the decision adequately accounted for the lay witness statement plaintiff supplied for the 24 record. 25 26 27 28 4 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 10

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