Julia Mora v. Michael J. Astrue, No. 5:2007cv01527 - Document 19 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. LET JUDGMENT BE ENTERED ACCORDINGLY. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JULIA MORA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. EDCV 07-1527-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on November 27, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of her 20 application for supplemental security income ( SSI ). 21 2008, the parties consented to proceed before the undersigned United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 filed a Joint Stipulation on August 13, 2008, in which: Plaintiff seeks 24 an 25 immediate payment of benefits or, in the alternative, remanding the 26 matter for a new administrative hearing; and Defendant seeks an order 27 affirming the Commissioner s decision. The Court has taken the parties 28 Joint Stipulation under submission without oral argument. order reversing the Commissioner s 1 decision and On January 1, The parties directing the SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 Plaintiff claims to have been disabled since March 1, 1994, because 3 4 of back pain. (Administrative Record ( A.R. ) 23, 67.) 5 relevant work experience as a hotel maid. She has past (A.R. 68.) 6 Plaintiff filed an application for SSI on August 17, 2005. 7 8 58.) 9 reconsideration. (A.R. The Commissioner denied Plaintiff s claim initially and upon (A.R. 37, 44.) On May 2, 2007, Plaintiff, who was 10 represented by counsel, testified at a hearing before Administrative Law 11 Judge Mason D. Harrell ( ALJ ). 12 denied 13 subsequently denied Plaintiff s request for review of that decision. 14 (A.R. 4.) Plaintiff s claim. (A.R. 23.) (A.R. 23-28.) On May 14, 2007, the ALJ The Appeals Council 15 SUMMARY OF ADMINISTRATIVE DECISION 16 17 18 The ALJ found that Plaintiff has the following severe impairments: 19 (1) cervical sprain/strain; (2) lumbosacral sprain/strain; and (3) a 20 history of polymalgia and arthalgia. 21 concluded that such impairments do not meet or medically equal one of 22 the listed impairments in Appendix 1, Subpart P, Regulation No. 4. 23 (Id.) 24 vocational expert ( VE ), the ALJ determined that Plaintiff has the 25 residual functional capacity1 to perform medium work.2 (A.R. 25.) However, the ALJ Based on Plaintiff s medical records and the testimony of a As a result, the 26 27 28 1 The residual functional capacity assessment considers only functional limitations and restictions that result from an individual s medically determinable impairment or combination of impairments, 2 1 ALJ found that Plaintiff can perform her past relevant work as a hotel 2 maid. 3 statements concerning her disability were not entirely credible. 4 Accordingly, the ALJ found that Plaintiff was not disabled within the 5 meaning of the Social Security Act during the time period at issue. 6 (A.R. 28.) (A.R. 27.) Additionally, the ALJ found that Plaintiff s (Id.) 7 STANDARD OF REVIEW 8 9 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 11 decision to determine whether it is free from legal error and supported 12 by substantial evidence in the record as a whole. 13 F.3d 625, 630 (9th Cir. 2007). 14 evidence as a reasonable mind might accept as adequate to support a 15 conclusion. 16 a mere scintilla but not necessarily a preponderance. 17 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 18 record can constitute substantial evidence, only those reasonably 19 drawn from the record will suffice. 20 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 21 22 Although this Court cannot substitute its discretion for that of 23 the Commissioner, the Court nonetheless must review the record as a 24 25 including the impact of any related symptoms. 96-8p. Social Security Ruling 26 2 27 28 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, he or she can also do light work. 20 C.F.R. § 416.967. 3 1 whole, weighing both the evidence that supports and the evidence that 2 detracts from the [Commissioner s] conclusion. 3 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 4 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 5 responsible for determining credibility, resolving conflicts in medical 6 testimony, and for resolving ambiguities. 7 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 8 9 The Court will uphold the Commissioner s decision when the evidence 10 is susceptible to more than one rational interpretation. Burch v. 11 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 12 review only the reasons stated by the ALJ in his decision and may not 13 affirm the ALJ on a ground upon which he did not rely. 14 at 630; see also Connett, 340 F.3d at 874. 15 the Commissioner s decision if it is based on harmless error, which 16 exists only when it is clear from the record that an ALJ s error was 17 inconsequential to the ultimate nondisability determination. Robbins 18 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 19 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 20 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 21 22 DISCUSSION 23 Plaintiff alleges the following issue: 24 whether Plaintiff retains 25 the residual functional capacity to perform either her past relevant 26 work as a hotel maid or identified alternative work. 27 4.) 28 4 (Joint Stip. at 1 I. 2 The ALJ Improperly Relied On The Testimony Of The Vocational Expert. 3 4 At step four of the Social Security disability determination, the 5 claimant has the burden of showing that she can no longer perform her 6 past relevant work. 7 Cir. 2001). 8 actually performed it, or as it is generally performed in the national 9 economy. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th The claimant must be able to perform the job as she Social Security Ruling 82-61; Pinto v. Massanari, 249 F.3d 10 840, 844 (9th Cir. 2001). Although the burden of proof lies with the 11 claimant at step four, the ALJ still has a duty to make the requisite 12 factual findings to support his conclusion. 13 Security Ruling 82-62). Information from the Dictionary of Occupational 14 Titles ( DOT ) or the testimony of a VE may be used to ascertain the 15 demands of an occupation as ordinarily required by employers throughout 16 the national economy. Id. (citing Social Social Security Ruling 82-61. 17 18 According to DOT section 323.687-014, Plaintiff s occupation as a 19 hotel maid requires a Strength Level of light work3 and a Language Level 20 of 1. 21 following skills: Language Level 1 specifically requires that a person have the 22 23 Reading: Recognize meaning of 2,500 (two-or three-syllable 24 words. 25 similarities and differences between words and between series Read at rate of 95-120 words per minute. Compare 26 27 28 3 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 416.967. 5 1 of numbers. 2 3 Writing: Print simple sentences containing subject, verb, and 4 object, and series of numbers, names, and addresses. 5 6 Speaking: Speak simple sentences, using normal word order, and 7 present and past tenses. 8 9 Dictionary of Occupational Titles, 4th ed., Appendix C. 10 11 If the ALJ chooses, as in this case, to rely on the testimony of a 12 VE, the hypothetical posed to the VE must be accurate, detailed, [and] 13 supported by the record. 14 Cir. 1999). 15 reflect all of the claimant s limitations and/or is not supported by 16 evidence in the record, the VE s testimony has no evidentiary value. 17 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); Embrey v. Bowen, 18 849 F.2d 418, 422-23 (9th Cir. 1988); Gallant v. Heckler, 753 F.2d 1450, 19 1456 (9th Cir. 1984). 20 the ALJ should base it upon evidence appearing in the record, whether 21 disputed or not. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th However, if the hypothetical presented to the VE does not To ensure the validity of the VE hypothetical, Id. 22 23 24 In this case, the following exchange took place between the ALJ and the VE: 25 26 Q: Okay. Mr. Scott, let s suppose there s an individual who 27 is illiterate in English and has the following limitations - 28 lifting is limited to - pulling - pushing, pulling, lifting 6 1 and carrying is limited to 50 pounds occasionally and 10 - 25 2 pounds frequently - it s 50 occasionally and 25 frequently. 3 Walking 4 unrestricted. 5 crouching can be done on an occasional basis. 6 uneven terrain, climbing ladders or working at heights can be 7 done on a frequent basis. . . . 8 handed and on the left side . . . as far as manipulative 9 movements and standing go are unrestricted. Sitting is Bending, kneeling, stooping, crawling and - she s limited Walking on [T}he individual is right to above shoulder level 10 activities to occasional on the left, but otherwise has 11 unlimited 12 handling, fingering and feeling both sides. 13 limitations could someone perform the claimant s prior work as 14 a housekeeper in a motel? reaching in the upper extremities. Unlimited With those 15 16 A: Yes, Your Honor. 17 18 . . . . 19 20 Q: Okay. And your testimony is consistent with the Dictionary 21 of Occupational Titles? 22 23 A: Yes, Your Honor. 24 25 (A.R. 242-45.) Basing his decision on the above exchange and on 26 27 28 7 1 Plaintiff s medical reports,4 the ALJ concluded that Plaintiff has the 2 residual functional capacity to perform medium work with limitations,5 3 and therefore, she can perform her past relevant work as a hotel maid. 4 (A.R. 25.) 5 6 Plaintiff, relying primarily on Pinto, supra, contends she does not 7 have the ability to perform her past relevant work, as it is generally 8 performed, because she is illiterate,6 and therefore, she does not meet 9 10 11 12 4 Because Plaintiff offered very few medical records regarding her physical well-being, the ALJ relied on the consultative orthopedic evaluation ordered by the State Agency and performed by Dr. Johnson on October 27, 2005. (A.R. 111-15). Dr. Johnson found that Plaintiff could perform medium work with the following limitations: 13 Pushing, pulling, lifting, and carrying and limited to 50 pounds occasionally and 25 pounds frequently. 14 Walking and standing are unrestricted. 15 16 Postural, i.e., bending, kneeling, stooping, crawling, and crouching can be done on an occasional basis. 17 Walking on uneven terrain, climbing ladders, or working at heights can be done on a frequent basis. 18 Sitting is unrestricted. 19 Assisted ambulatory devices are not required. 20 Manipulative movements; she has limited function above shoulder level to occasionally on the left, otherwise unlimited reaching in the upper extremities . . . handling, fingering, and feeling are all unlimited bilaterally. 21 22 23 (A.R. 114.) 24 5 26 Specifically, the ALJ found that Plaintiff could push, pull, lift, and carry 50 pounds occasionally and 25 pounds frequently; sit, stand, and walk without restriction; bend, kneel, stoop, crawl, and crouch no more than occasionally and no more than occasional work above the shoulder level on left side. (A.R. 25.) 27 6 25 28 Pursuant to 20 C.F.R. § 416.964(b)(1), illiteracy is defined as the inability to read or write. A claimant may be found illiterate or unable to communicate in English if she is either illiterate in 8 1 the Language Level 1 requirement.7 (Joint Stip. at 7.) In Pinto, at the 2 claimant s disability hearing, the ALJ set forth in his hypothetical to 3 the VE that the claimant was illiterate in English and could perform 4 medium 5 hypothetical presented, the VE found that the claimant could perform her 6 past relevant work as a hand packager. 7 definition of a hand packager in the DOT requires a Language Level 1. 8 Id. at 844-45. 9 explain how claimant s illiteracy limitation related to his finding that 10 the claimant could perform her past relevant work as generally performed 11 constituted reversible error. Id. at 847. The Ninth Circuit recognized 12 that a person s ability to communicate in English must be considered 13 when evaluating what work a claimant can perform in the national 14 economy. work with limitations. 249 F.3d at 843. Based Id. at 844. on the However, the The Ninth Circuit found that the ALJ s failure to Id. at 846; see also 20 C.F.R. § 416.964(b)(5). 15 16 Although it is appropriate for an ALJ to rely on a VE s testimony 17 that contradicts the requirements in the DOT, the ALJ can do so only in 18 instances where the record contains persuasive evidence to support the 19 20 English or unable to communicate in English or both. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000). Silveira v. 21 7 22 23 24 25 26 27 28 Additionally, Plaintiff claims she cannot perform her prior work as she performed it, because she would need to be capable of lifting more than 50 pounds. (Joint Stip. at 7.) As described by Plaintiff in her application for disability benefits, her past relevant work as a hotel maid required her to lift up to 70 pounds. (Id. at 6; A.R. 68.) Thus, Plaintiff contends that her past relevant work was performed at the heavy level of exertion, and therefore, she cannot perform her past relevant work as she performed it, because she cannot lift greater than 50 pounds. Although Plaintiff asserts she cannot perform her work as she previously performed it, she can perform such work as it is generally performed at a light level of exertion. Since Plaintiff does not dispute that she can do medium level work, she can necessarily perform her past relevant work as a maid, because it is generally performed at a light level of exertion. 9 1 deviation. 2 When there is a conflict between the testimony of the VE and the DOT, 3 the ALJ must elicit a reasonable explanation for the conflict before 4 relying on the VE s testimony to support a decision about whether the 5 claimant is disabled. 6 Admin., 7 discrepancies between findings on residual functional capacity and the 8 DOT were not explained by the ALJ of the VE). 119 See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). F.3d Social Security Ruling 00-4p; Light v. Soc. Sec. 789, 793-94 (9th Cir. 1997)(remanding where 9 Here, as in Pinto, the ALJ included in his hypothetical posed to 10 11 the VE the fact that Plaintiff was illiterate. (A.R. 242.) However, 12 the VE failed to explain the impact Plaintiff s illiteracy has on her 13 ability to perform her prior work and failed to account for the 14 deviation from the Language Level 1 requirement set forth in the DOT for 15 the job of a hotel maid. 16 asserts that plaintiff s ability to perform almost the same job despite 17 illiteracy reasonably shows that she would be able to perform this very 18 similar light level job, despite illiteracy. 19 conclusory statement is not persuasive evidence to support a deviation 20 from a DOT requirement. 21 he or she is illiterate, the ALJ must definitively explain why he or 22 she deviates from the DOT s language requirements when finding that 23 claimant can perform her past relevant work. 24 847. 25 demonstrate that Plaintiff is capable of performing her past relevant 26 work as a hotel maid, despite the ALJ s determination that she is 27 illiterate. In the Joint Stipulation, the Commissioner (J.S. 12.) Such a Although a claimant is not per se disabled if See Pinto, 249 F.3d at Accordingly, the VE failed to provide persuasive evidence to 28 10 1 II. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 6 useful purpose would be served by further administrative proceedings, or 7 where the record has been fully developed, it is appropriate to exercise 8 this discretion to direct an immediate award of benefits. 9 ( the decision of whether to remand for further proceedings turns upon Where no Id. at 1179 10 the likely utility of such proceedings ). However, where there are 11 outstanding issues that must be resolved before a determination of 12 disability can be made, and it is not clear from the record that the ALJ 13 would be required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. Id. 15 16 Here, remand is the appropriate remedy to allow the ALJ the 17 opportunity to remedy the above-mentioned deficiencies and errors. See, 18 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 19 further proceedings is appropriate if enhancement of the record would be 20 useful); 21 1989)(remand 22 Specifically, in the hypothetical to the VE, the ALJ must ask why the VE 23 has deviated from the DOT when finding that Plaintiff can perform her 24 past relevant work as a hotel maid. McAllister v. appropriate Sullivan, to 888 remedy F.2d 599, defects in 603 the (9th Cir. record). 25 26 CONCLUSION 27 28 Accordingly, for the reasons stated above, IT IS ORDERED that the 11 1 decision of the Commissioner is REVERSED, and this case is REMANDED for 2 further proceedings consistent with this Memorandum Opinion and Order. 3 4 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 5 copies of this Memorandum Opinion and Order and the Judgment on counsel 6 for Plaintiff and for Defendant. 7 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 10 11 12 DATED: December 1, 2008 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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