Corey Gordon v. Michael J Astrue, No. 2:2012cv02301 - Document 16 (C.D. Cal. 2012)
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)
Download PDF
<![CDATA[
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 COREY GORDON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-2301-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 22, 2012, seeking review of 27 the Commissioner s denial of disability benefits. The parties filed a 28 consent to proceed before a United States Magistrate Judge on 1 April 26, 2012. Plaintiff filed a motion for summary judgment on 2 September 11, 2012.1 3 judgment on October 11, 2012. 4 submission without oral argument. 5 March 23, 2012. Defendant filed a cross-motion for summary The Court has taken the motions under See L.R. 7-15; Order, filed 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff, a former truck driver and limousine driver, asserts 10 disability since December 30, 2002, based on a combination of alleged 11 impairments (Administrative Record ( A.R. ) 59-73, 116-22, 128-40, 12 142, 175). 13 suffers from severe impairments, including degenerative disease of 14 the colon (A.R. 18). 15 residual functional capacity to perform light work that would permit 16 close proximity to the restroom; and the ability to take 10 to 15 17 minute breaks every 2 hours (A.R. 20). 18 these restrictions, Plaintiff cannot perform any of Plaintiff s past 19 relevant work (A.R. 24). The Administrative Law Judge ( ALJ ) found that Plaintiff According to the ALJ, Plaintiff retains the The ALJ found that, with 20 21 In an attempt to determine whether there exist other jobs 22 Plaintiff can perform, the ALJ posed a hypothetical question to a 23 vocational expert (A.R. 74). 24 the worker: 25 /// The hypothetical question assumed that 26 27 28 1 Plaintiff s motion violates paragraph VI of this Court s Order, filed March 23, 2012. Counsel for Plaintiff shall heed the Court s orders in the future. 2 1 [h]as to be near facilities, must be -- let s see, every two 2 hours in connection with the symptoms to be able to take a, 3 what -- five, ten minute break every two hours? 4 consistent with 15 minute break, so nothing in addition to 5 that. That s 6 7 (A.R. 74). The vocational expert responded that: 8 9 [s]uch a hypothetical individual could perform the work of a 10 routing clerk . . . looking at approximately 71,000 such 11 jobs in existence in the national economy, 3,100 in the 12 regional economy. 13 approximately 50,000 such jobs in existence in the national 14 economy, 2,900 in the regional economy. Information clerk . . . looking at 15 16 (A.R. 74-75). 17 18 The ALJ relied on the vocational expert s testimony in finding 19 Plaintiff not disabled (A.R. 25-26). 20 The Appeals Council denied review (A.R. 1-3). 21 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. section 405(g), this Court reviews the 25 Administration s decision to determine if: (1) the Administration s 26 findings are supported by substantial evidence; and (2) the 27 Administration used correct legal standards. 28 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). 3 See Carmickle v. Substantial 1 evidence is such relevant evidence as a reasonable mind might accept 2 as adequate to support a conclusion. 3 389, 401 (1971) (citation and quotations omitted); see Widmark v. 4 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 5 6 DISCUSSION 7 8 9 After a claimant satisfies his initial burden of showing that a physical or mental impairment prevents him from performing his 10 previous work, the burden shifts to the [Administration] to show that 11 the claimant has the capacity to perform other work and that such 12 other work exists in the national economy. 13 F.2d 530, 532 (9th Cir. 1985). 14 exertional impairments significantly limit his or her range of work 15 the grids do not apply, and the testimony of a vocational expert is 16 required to identify specific jobs within the claimant s abilities. 17 Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988); see Tackett v. 18 Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999); Burkhart v. Bowen, 856 19 F.2d 1335, 1340-41 (9th Cir. 1988). Stone v. Heckler, 761 Where, as here, a claimant s non- 20 21 Where a hypothetical question to a vocational expert fails to 22 set out all of the claimant s impairments, the vocational expert s 23 answers to the question cannot constitute substantial evidence to 24 support the ALJ s decision. 25 841, 850 (9th Cir. 1991); Gamer v. Secretary, 815 F.2d 1275, 1280 (9th 26 Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 27 Unfortunately, it is unclear in the present case whether the 28 vocational expert understood the ALJ s question as having set out See, e.g., DeLorme v. Sullivan, 924 F.2d 4 1 the ability to take 10 to 15 minute breaks every 2 hours. The ALJ s 2 question referenced an ability to take a, what -- five, ten minute 3 break every two hours . . . and then appeared to posit a consistency 4 between five, ten and 15. 2 5 the vocational expert s answer from constituting substantial evidence 6 to support the ALJ s decision. 7 850 ( the failure to clarify DeLorme s limitations left the vocational 8 expert s testimony couched in somewhat ambiguous terms ); Castro v. 9 Astrue, 2011 WL 3500995, at *12 (E.D. Cal. Aug. 9, 2011) ( to avoid The ambiguity in the question prevents See DeLorme v. Sullivan, 924 F.2d at 10 this ambiguity, the hypothetical should have been posed to the VE 11 [vocational expert] in the same way as the ALJ phrased the limitation 12 in the RFC [residual functional capacity] assessment ). 13 14 The Court is unable to conclude that the error was harmless. 15 [A]n ALJ s error is harmless where it is inconsequential to the 16 ultimate non-disability determination. 17 1104, 1115 (9th Cir. 2012) (citations and quotations omitted). 18 must analyze harmlessness in light of the circumstances of the case. 19 Id. at 1121 (citations and quotations omitted). Molina v. Astrue, 674 F.3d [W]e 20 21 [D]espite the burden to show prejudice being on the party 22 claiming error by the administrative agency, the reviewing 23 court can determine from the circumstances of the case that 24 further administrative review is needed to determine whether 25 26 27 28 2 Perhaps the ALJ intended to indicate only that a 15 minute break necessarily would subsume a five or ten minute break, but it remained unclear from the question what length of break the vocational expert should presume that the hypothetical worker would require. 5 1 there was prejudice from the error. Mere probability is not 2 enough. 3 substantial likelihood of prejudice, remand is appropriate 4 so that the agency can decide whether re-consideration is 5 necessary. 6 a borderline question, remand for reconsideration is not 7 appropriate. But where the circumstances of the case show a By contrast, where harmlessness is clear and not 8 9 McCleod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) ( McCleod ). 10 11 Significant uncertainty sometimes attends the application of this 12 harmless error standard. Where, as here, the circumstances of the 13 case do not appear to render harmlessness clear but also do not 14 appear to render the likelihood of prejudice substantial, the 15 result of applying the standard seems particularly uncertain. 16 may be that the vocational expert understood the ambiguous question as 17 including a limitation involving 15 minute breaks. 18 be that, even if the vocational expert s testimony identified and 19 quantified jobs that would accommodate only five to ten minute breaks, 20 the expert also would testify that similarly substantial numbers of 21 the same jobs would accommodate 15 minute breaks. 22 does not permit such speculation regarding vocational matters. 23 Burkhart v. Bowen, 856 F.2d at 1341. 24 the burden is on the Administration to show the existence of jobs 25 Plaintiff can perform. 26 regard the harmlessness of the error in the present case as a 27 borderline question, within the meaning of McCleod. 28 /// It well It also well may Even so, the law See And, as previously indicated, Accordingly, the Court believes it should 6 Therefore, 1 remand for Administrative reconsideration is appropriate.3 2 3 CONCLUSION 4 5 For all of the foregoing reasons,4 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: October 16, 2012. 12 13 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 3 23 24 25 A reversal with a directive for the payment of immediate benefits would not be appropriate under the circumstances of the present case. See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances). 26 4 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 immediate payment of benefits would not be appropriate. 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
