Margo Nesbit v. Michael J Astrue, No. 2:2012cv03778 - Document 21 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this memorandum opinion and order. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARGO NESBIT, Plaintiff, 11 12 13 v. 14 CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-3778-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying her applications for Disability 20 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ). 21 She claims that the Administrative Law Judge ( ALJ ) erred in relying 22 on the vocational expert s testimony to conclude that she could 23 perform the jobs of usher, greeter, and storage facility clerk. 24 the following reasons, the Court concludes that the ALJ erred and 25 remands the case to the Agency for further proceedings consistent with 26 this decision. 27 28 For 1 2 II. SUMMARY OF PROCEEDINGS In January 2009, Plaintiff applied for DIB and SSI, alleging that 3 she was disabled due to carpal tunnel syndrome in both wrists, 4 tendonitis in her left shoulder, a bulge in her neck, lower back 5 problems, and depression. 6 After her applications were denied initially, Plaintiff requested and 7 was granted a hearing before an ALJ. 8 18, 2010, she appeared without counsel for the hearing. 9 On January 25, 2011, the ALJ issued a decision denying benefits. (Administrative Record ( AR ) 76-78, 141.) (AR 76-78, 83-96.) On August (AR 34-74.) 10 18-27.) Plaintiff appealed to the Appeals Council, which denied 11 review. (AR 1-6, 11-12.) (AR 12 13 This action followed. III. ANALYSIS Plaintiff contends that the ALJ s determination that she could 14 work as a greeter, usher, and storage facility clerk is not supported 15 by substantial evidence because: (1) the vocational expert testified 16 that Plaintiff could not work as a greeter or an usher based on her 17 limitations; and (2) the reasoning ability necessary to perform the 18 storage facility clerk job exceeds Plaintiff s residual functional 19 capacity. 20 Court agrees. 21 (Joint Stip. at 5-10.) For the following reasons, the Once a disability claimant has established that she can no longer 22 perform her past work, the burden shifts to the Agency to show that 23 she can perform other jobs that exist in substantial numbers in the 24 national economy. 25 2009). 26 expert to testify about the types of jobs that a claimant could 27 perform despite her limitations and the number of such jobs in the 28 economy. Bray v. Astrue, 554 F.3d 1219, 1222-23 (9th Cir. To meet this burden, the Agency can call upon a vocational Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). 2 1 The ALJ determined that Plaintiff had the residual functional 2 capacity to perform simple, repetitive, light work if allowed to, 3 among other things, alternately sit and stand. 4 concluding that Plaintiff s limitations would prevent her from 5 returning to her past work, the ALJ determined--purportedly based on 6 the vocational expert s testimony--that Plaintiff could nevertheless 7 work as a greeter, usher, and storage facility clerk. 8 doing so, the ALJ misinterpreted the vocational expert s testimony, a 9 point the Agency appears to concede in its brief as it does not (AR 21.) (Joint Stip. at 11-19.1) After (AR 25-26.) In The 10 contest Plaintiff s position. 11 vocational expert testified that an individual who was required to 12 have a sit and stand option could not work as either a greeter or an 13 usher. 14 standing jobs, with some walking and not really tailored to sitting. 15 (AR 69.) 16 these jobs was contradicted by the evidence and is reversed. 17 (AR 69.) According to the vocational expert, these are Thus, the ALJ s conclusion that Plaintiff could perform What remains, is the ALJ s conclusion that Plaintiff could 18 perform the job of storage facility clerk. 19 that can be performed with a sit and stand option, Plaintiff argues 20 that she does not have the mental capacity to perform it because she 21 is limited to simple, repetitive tasks and this job requires more 22 advanced reasoning. 23 the ALJ erred here. 24 25 Although this job is one For the following reasons, the Court finds that The ALJ determined that Plaintiff was limited to simple, repetitive work. (AR 21, 24-25.) The vocational expert testified 26 27 1 28 The Court requests that, in the future, the Agency merely state in its brief that it agrees with Plaintiff that the ALJ erred. 3 1 that, despite this limitation, Plaintiff could work as a storage 2 facility clerk. 3 level 3. 4 Reasoning level 3 requires a worker to apply commonsense under- 5 standing to carry out instructions furnished in written, oral, or 6 diagrammatic form. 7 variables in or from standardized situations. 8 The ALJ, however, failed to ask the vocational expert whether her 9 testimony was consistent with the DOT, which she was required to do. (AR 67.) This job requires an ability to reason at Dictionary of Occupational Titles ( DOT ) No. 295.367-026. Deal with problems involving several concrete DOT No. 295.367-026. 10 Social Security Ruling 00-4p ( When a [vocational expert] ... provides 11 evidence about the requirements of a job or occupation, the 12 adjudicator has an affirmative responsibility to ask about any 13 possible conflict between that [vocational expert] ... evidence and 14 information provided in the [Dictionary of Occupational Titles ]. ). 15 This failure mandates reversal. 16 1149, 1152 (9th Cir. 2007) (holding ALJ s failure to ask vocational 17 expert if testimony was consistent with DOT mandates reversal because 18 court cannot determine if decision is supported by substantial 19 evidence). 20 a claimant limited to simple and repetitive tasks can perform level 3 21 work. 22 Cal. Oct. 25, 2011) ( [T]he weight of authority in this Circuit holds 23 that a limitation to simple, repetitive tasks is incompatible with a 24 reasoning level of three. ) (italics and footnote omitted); Grimes v. 25 Astrue, 2011 WL 164537, at *4 (C.D. Cal. Jan. 18, 2011) ( The weight 26 of authority is firmly of the view that Reasoning Level 3 jobs are 27 inconsistent with limitations to simple repetitive tasks. ); c.f., 28 Dahl v. Astrue, 2011 WL 2837660 (C.D. Cal. July 18, 2011). See Massachi v. Astrue, 486 F.3d This is particularly true here where the issue is whether See, e.g., Signavong v. Astrue, 2011 WL 5075609, at *7 (C.D. 4 1 The Agency disagrees. It contends that there is no need to send 2 the case back to the ALJ because, in its view, a claimant with the 3 ability to perform simple, repetitive tasks can perform the job of 4 storage facility clerk because the Specific Vocational Preparation 5 ( SVP ) rating for this job is 2. 6 is tantamount to simple, repetitive work. 7 argument is rejected. 8 vocational considerations. 9 takes a typical worker to learn a particular job. The Agency argues that an SVP of 2 (Joint Stip. at 14.) This The Agency s argument conflates two different The SVP rating sets forth how long it Meissl v. Barnhart, 10 403 F.Supp.2d 981, 983 (C.D. Cal. 2005). 11 other hand quantifies the level of cognition required to perform the 12 job once learned. 13 (C.D. Cal. Dec. 6, 2010) ( A job s simplicity level is more squarely 14 addressed by . . . reasoning level ratings. ). 15 obviously some overlap in the two, they are not so similar as to be 16 interchangeable. 17 The reasoning level on the See also Carney v. Astrue, 2010 WL 5060488, at *4 Though there is The Agency argues that the record as a whole demonstrates that 18 Plaintiff is able to perform reasoning level 3 work. It points out, 19 for example, that Plaintiff graduated from high school and performed 20 semi-skilled and skilled work in the past. 21 that these were valid reasons for concluding that Plaintiff could 22 perform this work, the Court would not be allowed to rely on them 23 because the ALJ did not purport to rely on them in concluding that 24 Plaintiff could work as a clerk. 25 standing principles of administrative law require us to review the 26 ALJ s decision based on the reasoning and factual findings offered by 27 the ALJ--not post hoc rationalizations that attempt to intuit what the 28 adjudicator may have been thinking. ). (AR 17-18.) Even assuming See Bray, 554 F.3d at 1225 ( Long- 5 1 2 IV. CONCLUSION For these reasons, the Agency s decision is reversed and the case 3 is remanded for further proceedings consistent with this memorandum 4 opinion and order.2 5 IT IS SO ORDERED. 6 DATED: May 6, 2013 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 S:\PJW\Cases-Soc Sec\NESBIT, 3778\memo opinion and order.wpd 25 26 27 28 2 The Court has considered Plaintiff s request that the case be remanded for an award of benefits. This request is denied because it is not clear from this record whether Plaintiff is disabled and, therefore, entitled to benefits. 6
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