Joe Belgara v. Michael J Astrue, No. 2:2012cv02622 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. For the reasons set forth below, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this opinion. (twdb)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 JOE BELGARA, 10 Plaintiff, 11 12 13 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-2622-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Joe Belgara seeks judicial review of the Commissioner s 18 final decision denying his application for Supplemental Security Income 19 ( SSI ) benefits. For the reasons set forth below, the decision of the 20 Commissioner is reversed, and the matter is remanded for further 21 proceedings consistent with this opinion. 22 23 I. Background 24 Plaintiff filed his SSI application on April 6, 2009, alleging 25 disability beginning March 2, 2009, due to schizophrenia, depressive 26 disorder, epilepsy and residual complications from gunshot wounds. (AR 27 at 17, 70.) Plaintiff was born on September 30, 1974 and was 35 years 28 old at the time he filed his application. (Administrative Record ( AR ) 1 2 at 120, 162.) He completed the eleventh grade and has no relevant work experience. (AR at 141, 145.) 3 Plaintiff s application was denied initially on June 23, 2009, and 4 upon reconsideration on January 14, 2010. (AR at 71-75, 79-83.) An 5 administrative 6 Administrative Law Judge ( ALJ ) Sally C. Reason. Plaintiff, who was 7 represented 8 Vocational Expert ( VE ). (AR at 47-65.) hearing by counsel, was held testified on October as did a 15, Medical 2010, Expert before and a 9 On June 2, 2011, the ALJ issued an unfavorable decision. (AR at 17- 10 29.) The ALJ found that pursuant to 20 C.F.R. 416.920(c), the medical 11 evidence established that Plaintiff suffered from the following severe 12 impairments: depressive disorder, schizoaffective disorder, seizure 13 disorder, left hip osteoarthritis and history of left leg surgery with 14 residual antalgic gait. (Id.) However, the ALJ further found that 15 Plaintiff s impairments did not meet, or were not medically equal to, 16 one of the listed impairments in 20 C.F.R., Part 404, Subpart P, 17 Appendix 1. (AR at 22.) The ALJ determined that Plaintiff had the 18 residual functional capacity ( RFC ) to: 19 perform light work as defined in 20 C.F.R. 416.967(b) not 20 involving standing and/or walking in excess of 2-4 hours total 21 per 22 kneeling, performance of any activities involving squatting or 23 climbing of 24 working around 25 performance 26 contact with others. 8-hour 27 ladders, of performance machinery tasks of performance or involving (AR at 23.) 28 workday, // 2 of more any hazardous more than than tasks occasional involving conditions, limited or social 1 The ALJ then found, based upon the testimony of the VE, that there 2 were a significant number of jobs in the national economy that Plaintiff 3 could 4 assembler. (AR at 28.) She concluded that Plaintiff was not disabled 5 within 6 416.920(f). (Id.) perform, the such meaning as of small the products Social assembler Security Act. and See production 20 C.F.R. § 7 On February 11, 2012, the Appeals Council denied review. (AR at 1- 8 3.) Plaintiff then timely commenced this action for judicial review. On 9 September 4, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 10 of 11 determination that Plaintiff could perform the jobs of small products 12 assembler 13 requirements of the jobs as determined by the Dictionary of Occupational 14 Titles ( DOT ). (Joint Stip. at 3.) Plaintiff seeks reversal of the 15 Commissioner s denial of his application and payment of benefits or, in 16 the alternative, remand for a new administrative hearing. (Joint Stip. 17 at 11.) The Commissioner requests that the ALJ s decision be affirmed. 18 (Joint Stip. at 11-12.) disputed facts and and issues. production Plaintiff assembler contends was that inconsistent the ALJ s with the 19 20 21 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 23 decision must be upheld unless the ALJ s findings are based on legal 24 error or are not supported by substantial evidence in the record as a 25 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra 26 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); Batson v. Comm r of Soc. 27 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence 28 means such evidence as a reasonable person might accept as adequate to 3 1 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 2 Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more 3 than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. 4 Admin., 5 substantial evidence supports a finding, the reviewing court must 6 review the administrative record as a whole, weighing both the evidence 7 that supports and the evidence that detracts from the Commissioner s 8 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 9 the evidence can support either affirming or reversing the ALJ s 10 conclusion, the reviewing court may not substitute its judgment for 11 that of the ALJ. Robbins, 466 F.3d at 882. 466 F.3d 880, 882 (9th Cir. 2006). To determine whether 12 13 III. Discussion 14 The ALJ determined that Plaintiff s RFC limited him to performing 15 a range of light work not involving ... performance of any tasks 16 involving 17 administrative 18 question to the VE: working around hearing, machinery the ALJ .... posed the (AR at following 23.) At hypothetical 19 So if we have a hypothetical individual of this man s age, 20 education, and lack of any work history, and let s say he is 21 able to do light work but he is limited in standing and 22 walking only two to four hours in an eight hour day, and he 23 can only kneel occasionally. No squatting or ladders. He also 24 needs to avoid hazards due to the seizure activity, and needs 25 to work in an environment with limited public contact, or 26 interaction with others. Would there be jobs for such an 27 individual? 28 (AR at 63.) 4 the 1 In response, the VE testified that Plaintiff could perform the jobs 2 of Assembler, Small Products I (DOT 706.684-022) and Assembler, 3 Production (DOT 706.687-010). (AR at 63-64.) The ALJ relied on the VE s 4 testimony to find that Plaintiff was able to perform those two types of 5 jobs which exist in significant numbers in the economy (step 5). (AR at 6 27-28). 7 Plaintiff asserts that the ALJ s determination is not supported by 8 substantial evidence because both jobs identified by the VE require 9 Plaintiff to work around machinery, which is incompatible with the ALJ s 10 RFC determination that Plaintiff can perform light work not involving 11 ... performance of any tasks involving working around machinery .... 12 (Joint Stip. at 3, citing AR at 23.) 13 As Plaintiff points out, both the jobs of small products assembler 14 and production assembler require working around machinery. For example, 15 a production assembler (DOT 706.687-010) bolts, clips, screws, cements 16 or otherwise fastens parts together by hand, or using handtools or 17 portable power tools. In addition, a production assembler may tend 18 machines, such as arbor presses or riveting machine, to perform force 19 fitting or fastening operations on [an] assembly line. Similarly, a 20 small products assembler bolts, clips, screws, cements or otherwise 21 fastens parts together by hand, or using handtools or portable power 22 tools. A small products assembler (DOT 706.684-022) also loads and 23 unloads previously setup machines, such as arbor presses, drill presses, 24 taps, spot-welding machines, riveting machines, milling machines, or 25 broaches, to perform fastening, force fitting, or light metal-cutting 26 operation on [an] assembly line. Given these descriptions, it is 27 entirely unclear how a person who is precluded from performance of any 28 tasks involving working around machinery could actually perform either 5 1 job. When an ALJ determines that a job may be performed in a manner 2 3 that contradicts 4 evidence to support the deviation. Pinto v. Massanari, 249 F.3d 840, 5 845-46 (9th Cir. 2001) (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 6 (9th Cir. 1995)); Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 7 2008) 8 classification ). Here, in finding Plaintiff able to perform other work 9 at step five, the ALJ relied on the VE s testimony, but never asked the 10 VE to explain the discrepancy between Plaintiff s preclusion from 11 working around machinery1 and the DOT s description of the production 12 assembler and small products assembler jobs. The ALJ also failed to cite 13 any evidence in the decision to support a deviation from the DOT. Under 14 these circumstances, the ALJ s determination that Plaintiff can perform 15 the jobs of production assembler and small products assembler is not 16 supported by substantial evidence. See Pinto, 249 F.3d at 845-47. ( The DOT the [DOT], creates a the record rebuttable must contain presumption as persuasive to the job 17 18 IV. Conclusion 19 The decision whether to remand for further proceedings is within 20 this Court s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 21 Cir. 22 administrative 23 developed, it is appropriate to exercise this discretion to direct an 2000). Where no useful proceedings, or purpose where would the be served record has by further been fully 24 25 26 27 28 1 Although the ALJ included in the hypothetical question to the VE that the Plaintiff need[ed] to avoid hazards, she did not include in the hypothetical the preclusion from any work around machinery. (AR at 63.) As noted by Defendant, neither job requires working in certain hazardous conditions or around moving mechanical parts. (Joint Stip. at 10.) However, both jobs do require working around machinery, a requirement incompatible with the ALJ s RFC determination. 6 1 immediate award of benefits. Id. at 1179 ( the decision of whether to 2 remand for further proceedings turns upon the likely utility of such 3 proceedings ); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 4 However, where there are outstanding issues that must be resolved before 5 a determination of disability can be made, and it is not clear from the 6 record that the ALJ would be required to find the claimant disabled if 7 all 8 Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003); see also 9 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)(remanding case 10 the evidence were properly evaluated, remand is appropriate. for reconsideration of credibility determination). 11 Here, although Plaintiff s RFC as determined by the ALJ precludes 12 Plaintiff from performing the jobs identified by the VE, there may be 13 other jobs within the national economy which Plaintiff could perform. 14 However, 15 Accordingly, the case is remanded for further evaluation in accordance 16 with the five-step sequential process. that is not a determination that this Court can make. 17 18 DATED: September 7, 2012 19 20 21 ______________________________ Marc L. Goldman United States Magistrate Judge 22 23 24 25 26 27 28 7
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