Maria C. Aguilar v. Mihael J. Astrue, No. 5:2008cv01233 - Document 20 (C.D. Cal. 2009)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Oswald Parada: IT IS HEREBYORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (am)

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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 17 MARIA C. AGUILAR, ) Case No. EDCV 08-1233-OP ) Plaintiff, ) ) MEMORANDUM OPINION; ORDER v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ) ) 18 The Court1 now rules as follows with respect to the disputed issue listed in 19 the Joint Stipulation ( JS ).2 20 /// 21 /// 22 23 24 25 26 27 28 1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 9, 10.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record, and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 5 raises as the grounds for reversal and/or remand are as follows: 1. 6 7 perform the work of a hand packer; 2. 8 9 Whether the ALJ properly considered the severity of Plaintiff s mental impairment; and 3. 10 11 Whether the ALJ properly determined that Plaintiff could Whether the ALJ properly considered the consultative examiner s findings. (JS at 3.) 12 II. 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 15 to determine whether the Commissioner s findings are supported by substantial 16 evidence and whether the proper legal standards were applied. DeLorme v. 17 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 18 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 19 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 20 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 21 evidence is such relevant evidence as a reasonable mind might accept as 22 adequate to support a conclusion. Richardson, 402 U.S. at 401 (citation 23 omitted). The Court must review the record as a whole and consider adverse as 24 well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 25 1986). Where evidence is susceptible of more than one rational interpretation, the 26 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 27 1452 (9th Cir. 1984). 28 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings and Residual Functional Capacity ( RFC ) 4 Assessment. 5 The ALJ found that Plaintiff had the following severe impairments: 6 impairment of the musculoskeletal system, from obesity and from diabetes 7 mellitus. (AR at 285.) He found, however that these did not meet or equal a 8 listing. (Id. at 286.) 9 The ALJ found that Plaintiff had the residual functional capacity ( RFC ) 10 to perform a range of medium work as follows: able to lift and carry fifty pounds 11 occasionally and twenty-five pounds frequently; able to stand and walk for six 12 hours, and sit for six hours during an eight-hour workday; can occasionally climb; 13 can frequently balance, stoop, kneel, crouch and crawl; must avoid concentrated 14 exposure to extreme cold and heat; must avoid concentrated exposure to fumes, 15 odors, dusts, gases, poor ventilation, and other respiratory irritants; and can 16 perform unskilled, entry level, object-oriented, non-public work. (Id. at 287 17 (emphasis added).) 18 The ALJ also found that: 19 According to the Dictionary of Occupational Titles, the job of 20 packer is an unskilled (SVP 2) position performed at the medium 21 exertional level (DOT#: 920.587-018) and information provided by the 22 claimant suggests she performed this job consistent with the way it is 23 performed nationally (see Exhibit 5-E, p.2). In comparing the demands 24 of the claimant s past jobs with her residual functional capacity, I 25 conclude she is capable of returning to her past relevant work both as 26 this job is generally performed and as she actually performed it. 27 (Id. at 290.) 28 3 1 B. Plaintiff s Past Relevant Work. 2 1. Background. 3 Plaintiff contends that the ALJ improperly determined that she can perform 4 her past relevant work as a packer. (JS at 3-5, 6.) Specifically, Plaintiff argues 5 that according to the Dictionary of Occupational Titles ( DOT ),3 a Packager, 6 Hand (DOT 920.587-018) requires an employee to be around extreme heat on a 7 frequent basis, i.e., such a condition exists from 1/3 to 2/3 of the time. (Id. at 4); 8 see also DOT No. 920.587-018 (Fourth Ed., Revised 1991), 1991 WL 687916. 9 Because the ALJ found that Plaintiff must avoid concentrated exposure to 10 extreme heat, and the job as generally performed in the national economy requires 11 such exposure, Plaintiff contends she is precluded from performing the duties of a 12 Hand Packager, and the case should be reversed or remanded. 13 2. 14 At step-four of the sequential evaluation process, a claimant must establish Analysis. 15 that her severe impairment or impairments prevent her from doing past relevant 16 work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The regulations 17 explain the step-four evaluation: If we cannot make a decision based on your 18 current work activity or on medical facts alone, and you have a severe 19 impairment(s), we then review your residual functional capacity and the physical 20 21 22 23 24 25 26 27 28 3 The DOT, along with its supplementary Selected Characteristics of Occupations Defined in the DOT, contains relevant information concerning various types of work as well as detailed descriptions of the skills, tasks, and conditions involved in most jobs in the economy. Madrigal v. Sullivan, 917 F.2d 1307 (9th Cir. 1990). The Secretary routinely relies on these publications in determining the skill level of a claimant s past work, and in evaluating whether the claimant is able to perform other work in the national economy. See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986 ( The Secretary may rely on the general job categories of the [DOT], with its supplementary Selected Characteristics, as presumptively applicable to a claimant s prior work. ) 4 1 and mental demands of the work you have done in the past. If you can still do 2 this kind of work, we will find that you are not disabled. 20 C.F.R. §§ 3 404.1520(e); 416.920(e). The claimant has the burden of showing that she can no 4 longer perform her past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e); 5 Clem v. Sullivan, 894 F.2d 328, 331-32 (9th Cir. 1990). Although the burden of 6 proof lies with the claimant, the ALJ still has a duty to make the requisite factual 7 findings to support his conclusion. Pinto, 249 F.3d at 844-45; see also Henrie v. 8 U.S. Dept. of Health & Human Serv., 13 F.3d 359 (10th Cir. 1993) (recognizing 9 the tension created between the mandate of SSR 82-62 and the claimant s burden 10 of proof, and finding that the ALJ s duty is one of inquiry and factual 11 development while the claimant continues to bear the ultimate burden of proving 12 disability). 13 In order to determine whether a claimant has the residual functional 14 capacity to perform her past relevant work, the ALJ must evaluate the work 15 demands of the past relevant work and compare them to the claimant s present 16 capacity. Villa, 797 F.2d at 797. Social Security Ruling ( SSR )4 82-62 states 17 that a determination that a claimant has the capacity to perform a past relevant job 18 must contain among the findings the following specific findings of fact: (1) a 19 finding of fact as to the claimant s residual functional capacity; (2) a finding of 20 fact as to the physical and mental demands of the past job or occupation; and (3) a 21 finding of fact that the claimant s residual functional capacity permits her to 22 return to the past job or occupation. See SSR 82-62; see also Pinto, 249 F.3d at 23 24 25 26 27 28 4 Social Security Rulings are issued by the Commissioner to clarify the Commissioner s regulations and policies. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). Although they do not have the force of law, they are nevertheless given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 5 1 2 844-45. A finding that a claimant is able to return to her past relevant work must be 3 based on adequate documentation and a careful appraisal. Dealmeida v. Bowen, 4 699 F. Supp. 806, 807 (N.D. Cal. 1988) ( Without the proper foundation as to 5 what plaintiff s past relevant work entailed, the ALJ s subsequent determination 6 that plaintiff retained the residual functional capacity to perform that job is not 7 supported by substantial evidence. ). This determination requires a careful 8 appraisal of the claimant s statements, the medical evidence, and, in some cases, 9 corroborative information such as the DOT. SSR 82-62. Adequate 10 documentation must be obtained to support the decision, including factual 11 information about those work demands which have a bearing on the medically 12 established limitations. Id. Thus, [d]etailed information about . . . mental 13 demands and other job requirements must be obtained as appropriate. Id.; see 14 Sivilay v. Apfel, 143 F.3d 1298, 1299 (9th Cir. 1998) (remanding to ALJ to 15 investigate fully the demands of the applicant s past work and compare them to 16 the applicant s residual mental and physical capabilities ). Any determination 17 regarding a claimant s ability to perform past work must be developed and 18 explained fully in the disability decision and every effort must be made to 19 secure evidence that resolves the issue as clearly and explicitly as circumstances 20 permit. SSR 82-62. 21 In this case, the ALJ satisfied the first requirement above in that he made 22 sufficiently specific findings of fact regarding Plaintiff s RFC. The ALJ, 23 however, failed to make the requisite findings of fact regarding (1) the physical 24 demands of Plaintiff s past work as a hand packager; and (2) whether Plaintiff s 25 RFC actually permits her to return to her past job as a hand packager as she 26 performed it or as it is performed generally, given his RFC finding that she avoid 27 concentrated exposure to extreme heat. See SSR 82-62. 28 6 1 In support of his conclusion that Plaintiff is capable of performing her past 2 relevant work as a hand packer, the ALJ noted only that information provided by 3 Plaintiff suggests that she performed the job consistent with the way it is 4 performed nationally as described in DOT 920.587-018. (AR at 290 (citing to 5 AR Ex. 5-E at 2.) In reaching this determination, he relied on a Work History 6 Report prepared by the person in the Administration who initially interviewed 7 Plaintiff regarding her claims. (See AR at 102-03.) Plaintiff reported to the 8 interviewer that her job description included (I) packing perfumes and soaps into 9 boxes for shipping via an assembly belt process; (ii) assembling the boxes used 10 for shipping; (iii) carrying the filled boxes to a pallet; and (iv) putting nozzles into 11 sprinklers. (Id. at 102.) In response to a series of questions, she indicated that 12 each day she walked for eight hours, stood for eight hours, did not sit, climb, 13 kneel, crawl, or handle big objects, stooped for eight hours, crouched for eight 14 hours, reached for eight hours, and handled small objects for eight hours. (Id. at 15 103.) She noted that she sometimes lifted boxes up to forty pounds, frequently 16 lifted boxes up to twenty pounds, and had to lift and carry the boxes 17 approximately six feet from the work area to the pallet. (Id.) There was no 18 question asked regarding the environmental conditions of Plaintiff s job. (Id. at 19 102-03.) 20 The Court searched in the record for any description regarding the level of 21 environmental heat or cold to which Plaintiff was exposed in her past relevant 22 work as a packager. As noted, the report relied on by the ALJ included 23 information about various demands of Plaintiff s work as a hand packer, but there 24 was no reference regarding prolonged exposure to heat on the job. (Id. at 102- 25 03.) Plaintiff also testified at the hearing and did not mention heat or cold as a 26 factor in her past work. (AR at 592-93, 601.) In fact, there was no discussion at 27 the hearing about Plaintiff s past relevant work. (See AR at 579-606.) The ALJ 28 7 1 was required to develop an adequate record on Plaintiff s past relevant work and 2 the demands of her past relevant work regarding exposure to heat and failed to do 3 so. See Villa, 797 F.2d at 797. 4 Because the ALJ relied on the DOT s definition of hand packager to 5 determine that Plaintiff was able to perform that job as it was generally performed 6 and as she performed it, yet failed to develop the record regarding the 7 environmental conditions of Plaintiff s past work as she performed it, or to 8 reconcile the environmental limitation with the job as generally performed, there 9 is an ambiguity in the record makes it difficult for this Court to review and affirm 10 his decision. Thus, the Court finds that there is a gap in [the ALJ s reasoning 11 that must be filled on remand. See Villa, 797 F.2d at 799 (internal quotation 12 marks omitted). 13 Accordingly, this Court finds the case should be remanded to the 14 Commissioner for further clarification on this issue. 15 C. The ALJ Properly Considered the Severity of Plaintiff s Mental 16 Impairment. 17 Plaintiff contends the ALJ failed to properly consider the 2004 opinion of 18 consultative examining psychiatrist, Linda M. Smith, M.D., that Plaintiff is 19 mildly impaired in many of her mental abilities. (JS at 7.) She contends that the 20 many mild limitations recognized by Dr. Smith resulted in a more than minimal 21 effect on Plaintiff s ability to do basic work activities. (Id. at 8.) This Court does 22 not agree. 23 Although in a prior decision the ALJ found Plaintiff s mental impairment 24 severe, he changed his finding from his earlier decision after reviewing the 25 relevant evidence. (AR at 285-86; see also id. at 16-17, 299.) Here, he found that 26 Plaintiff s functional limitations were no more than slight. (Id. at 285.) He 27 cited treating, examining, and non-examining medical source evidence in support 28 8 1 of this finding, including a 2007 report by consulting psychiatrist, Dr. Smith. 2 (Id.) Dr. Smith s more recent examination found less impairment than her prior 3 examination and report, and noted Plaintiff s lack of treatment since 2003. (Id. at 4 285, 453.) Based on the foregoing, the Court finds that the ALJ s finding was 5 supported by substantial evidence. 6 D. 7 The Consultative Examiner s Opinion. Plaintiff contends that the ALJ failed to properly consider the opinion of 8 Dr. Kimberly R. Clements, who conducted a June 28, 2006, internal medicine 9 evaluation of Plaintiff. (AR at 262.) Dr. Clements found only mild limitations 10 and opined that Plaintiff may have some communicative limitations because of 11 her memory problems and work place limitations relating to those limitations. 12 (Id.) 13 With respect to Dr. Clement s evaluation, the ALJ stated: 14 I have also given weight to the opinion of Kimberly R. Clements, 15 M.D., board certified in internal medicine, who evaluated the claimant 16 on June 28, 2006 at the request of the Department of Social Services. 17 The claimant told Dr. Clements she had been diagnosed with diabetes 18 and hypertension and had also been increasingly forgetful. She also 19 related having asthma, poor vision, and difficulty controlling her 20 bladder. 21 well-developed, well-nourished, and in no acute distress. She showed 22 no ataxia or dyspnea and was able to get on and off the examination 23 table without difficulty. The claimant s vision was 20/25 in both eyes 24 without glasses and she was visually able to move about the office 25 without any help. Her breath sounds were symmetric, there were no 26 rhonchi or rales, and her expiratory phase was within normal limits. 27 Examination of her abdomen was positive for bowel sounds, it was soft, On examination, the claimant was observed to be 28 9 1 non-tender, without hepatosplenomegaly or masses, and with no 2 evidence of rebound or guarding. 3 discomfort in her lower back and tenderness in the paraspinal areas in 4 the lumbar region bilaterally, but maintained full range of motion. 5 Examination of her extremities and joints revealed no abnormalities and 6 full range of motion. Her pulses were 2+ bilaterally. Neurologically, 7 the claimant s motor tone was good bilaterally with good active motion 8 and 5/5 strength in all extremities. Her sensation was intact to light 9 touch, pinprick, vibration, and position. Her reflexes were normal and 10 her gait was normal. Dr. Clements concluded the claimant had several 11 chronic conditions, but was able to follow instructions and was 12 physically capable of performing work within the limitations set forth 13 above (Exhibit 8-F). 14 well-supported by objective findings and generally consistent with the 15 medical evidence of record. 16 The claimant did have some I give weight to her assessment as it is (AR at 287.) 17 Plaintiff contends that although the ALJ extensively discussed Dr. 18 Clement s findings and afforded them considerable weight, he failed to mention 19 Dr. Clements opinion regarding Plaintiff s mild difficulty communicating 20 because of her memory and work place limitations that may be related to that 21 difficulty. (JS at 11.) 22 Because the ALJ s error in failing to make the requisite factual findings 23 regarding Plaintiff s past relevant work constitutes sufficient reason to remand the 24 case, depending on the outcome of the remand proceedings, the ALJ will have an 25 opportunity to address this again and should consider this issue when determining 26 the merits of Plaintiff s case on remand. 27 E. This Case Should Be Remanded for Further Administrative 28 10 1 Proceedings. 2 The law is well established that remand for further proceedings is 3 appropriate where additional proceedings could remedy defects in the 4 Commissioner s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 5 Remand for payment of benefits is appropriate where no useful purpose would be 6 served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 7 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 8 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 9 unnecessarily delay the receipt of benefits. Bilby v. Schweiker, 762 F.2d 716, 10 719 (9th Cir. 1985). Here, the Court concludes that further administrative 11 proceedings would serve a useful purpose and remedy the administrative defects 12 discussed herein. 13 IV. 14 ORDER 15 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 16 ORDERED THAT Judgment be entered reversing the decision of the 17 Commissioner of Social Security and remanding this matter for further 18 administrative proceedings consistent with this Memorandum Opinion. 19 20 21 Dated: September 29, 2009 ______________________________ HONORABLE OSWALD PARADA United States Magistrate Judge 22 23 24 25 26 27 28 11

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