Daniel Dearagon v. Michael J Astrue, No. 5:2010cv00100 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Daniel DeAragon (DeAragon) filed this action on February 2, 2010. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on March 3 and 4, 2010. (Dkt. Nos. 7, 9.) On October 21, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court re mands this matter to the Commissioner for proceedings consistent with this Opinion. IT IS HEREBY ORDERED that this matter is remanded for further proceedings at step five of the sequential analysis consistent with this opinion. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NO. EDCV 10-100 AGR 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 Daniel DeAragon ( DeAragon ) filed this action on February 2, 2010. DANIEL DEARAGON, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 MEMORANDUM OPINION AND ORDER 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before 20 Magistrate Judge Rosenberg on March 3 and 4, 2010. (Dkt. Nos. 7, 9.) On 21 October 21, 2010, the parties filed a Joint Stipulation ( JS ) that addressed the 22 disputed issues. The Court has taken the matter under submission without oral 23 argument. Having reviewed the entire file, the Court remands this matter to the 24 25 Commissioner for proceedings consistent with this Opinion. 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On November 22, 2006, DeAragon filed applications for disability insurance 4 benefits and supplemental security income benefits. Administrative Record 5 ( AR ) 9. In both applications, DeAragon alleged a disability onset date of April 6 21, 1984. Id. The applications were denied initially and upon reconsideration. 7 AR 9, 154-58, 160-64. DeAragon requested a hearing before an Administrative 8 Law Judge ( ALJ ). AR 165. Four hearings were conducted in this matter. On 9 October 16, 2008, DeAragon appeared at the hearing without a representative. 10 AR 27-43. The ALJ continued the hearing to give DeAragon the opportunity to 11 update his medical records and retain a representative. AR 36-42. DeAragon 12 retained a representative who was present for the three remaining hearings. On 13 November 10, 2008, the ALJ conducted a hearing at which a medical expert, 14 DeAragon, and his mother testified. AR 44-87. The ALJ continued the hearing to 15 allow DeAragon s representative additional time to question DeAragon s mother 16 and to order a neurological consultative evaluation. AR 86. DeAragon received a 17 comprehensive neurological evaluation on December 23, 2008. AR 659-67. On 18 February 24, 2009, the ALJ conducted a second supplemental hearing at which a 19 medical expert, DeAragon, and DeAragon s mother testified. AR 88-120. The 20 ALJ granted DeAragon s request for another continuance in order to obtain 21 testimony from DeAragon s cousin. AR 118. On March 18, 2009, the ALJ 22 conducted a third supplemental hearing at which DeAragon, DeAragon s cousin, 23 and a vocational expert ( VE ) testified. AR 121-48. 24 On August 24, 2009, the ALJ issued a decision denying benefits. AR 6-19. 25 On December 17, 2009, the Appeals Council denied the request for review. AR 26 1-3. This action followed. 27 /// 28 /// 2 1 II. 2 STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to deny benefits. The decision will be disturbed only if it is not supported 5 by substantial evidence, or if it is based upon the application of improper legal 6 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 7 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 8 9 Substantial evidence means more than a mere scintilla but less than a preponderance it is such relevant evidence that a reasonable mind might 10 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 11 determining whether substantial evidence exists to support the Commissioner s 12 decision, the Court examines the administrative record as a whole, considering 13 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 14 evidence is susceptible to more than one rational interpretation, the Court must 15 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 16 III. 17 DISCUSSION 18 A. 19 A person qualifies as disabled, and thereby eligible for such benefits, only 20 if his physical or mental impairment or impairments are of such severity that he is 21 not only unable to do his previous work but cannot, considering his age, 22 education, and work experience, engage in any other kind of substantial gainful 23 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 24 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 25 B. 26 The ALJ found that DeAragon meets the insured status requirements The ALJ s Findings 27 through March 31, 2007. AR 11. 28 /// 3 1 DeAragon has the severe impairments of seizure disorder, affective 2 disorder, personality disorder, and substance abuse disorder. Id. DeAragon has 3 the residual functional capacity ( RFC ) to perform medium work, except he 4 cannot climb ladders, scaffolds or ropes, should avoid working around 5 dangerous and fast moving equipment, at unprotected heights or around pools of 6 water, should not work with the public, and should have only occasional non- 7 intense interaction with supervisors and coworkers. AR 12. 8 The ALJ found DeAragon was unable to perform his past relevant work as 9 a stage hand, box boy, and trainee waiter. AR 18. There are, however, jobs that 10 exist in significant numbers in the national economy that DeAragon can perform, 11 such as hospital cleaner, hand packager, and industrial cleaner. AR 18-19. 12 C. Examining Physician s Opinion 13 DeAragon alleges the ALJ did not properly consider the opinion of the 14 consultative examiner, Dr. Pierce. Specifically, DeAragon contends the ALJ s 15 failure to adopt Dr. Pierce s opinion that [DeAragon] has the cognitive ability to 16 perform one and two part instructions, without providing specific and legitimate 17 reasons, was error. JS-7 18 An examining physician's opinion constitutes substantial evidence when it 19 is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 631 (9th 20 Cir. 2007). When an examining physician's opinion is contradicted, it may be 21 rejected for specific and legitimate reasons that are supported by substantial 22 evidence in the record. Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 23 1155, 1164 (9th Cir. 2008) (citation omitted). 24 Dr. Pierce stated, in pertinent part: By today s performance, he retains 25 the cognitive capacity to complete simple and repetitive to potentially higher- 26 /// 27 /// 28 /// 4 1 demand vocational skills. 1 AR 462. He can remember and comply with simple 2 one and two part instructions. Id. 3 The ALJ considered and summarized these portions of Dr. Pierce s 4 opinion. AR 18. The RFC, however, does not contain these limitations. AR 12. 5 The ALJ relied upon Dr. Pierce s conclusion that DeAragon s limitations would not 6 preclude the performance of substantial gainful activity in discounting the treating 7 physician s opinion. AR 16. 8 9 The Commissioner argues any error is harmless because the ALJ s finding that DeAragon could perform the representative occupations of hospital cleaner, 10 hand packager and industrial cleaner at step five of the sequential analysis is 11 consistent with Dr. Pierce s opinion. According to the Dictionary of Occupational 12 Titles (DOT), all three jobs require reasoning level 2. DOT, hospital cleaner, 13 323.687-010; hand packager, 920.587-018; industrial cleaner, 381.687-018. 14 Reasoning level two requires the worker to [a]pply commonsense understanding 15 to carry out detailed but uninvolved written or oral instructions [and] [d]eal with 16 problems involving a few concrete variables in or from standardized situations. 17 Id. Reasoning level two is compatible with an RFC restricted to simple, repetitive 18 tasks. See, e.g., Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) 19 (concluding that level two reasoning is compatible with RFC limited to performing 20 simple, repetitive tasks); Hackett v. Burnett, 395 F.3d 1168, 1176 (10th Cir. 2005) 21 (level two reasoning appears consistent with a RFC limited to simple and routine 22 work tasks ); Flaherty v. Halter, 182 F. Supp. 2d 824, 850-51 (D. Minn. 2001) 23 (level two reasoning did not conflict with limitation to work involving simple, 24 routine, repetitive, concrete and tangible tasks). 25 However, DeAragon argues that Dr. Pierce s statement that he can 26 remember and comply with simple one and two part instructions (AR 462) would 27 28 1 As the Commissioner notes, Dr. Pierce found DeAragon failed a malingering-sensitive memory test. AR 459-60. 5 1 limit him to reasoning level one. Level one reasoning requires the worker to 2 [a]pply commonsense understanding to carry out simple one- or two-step 3 instructions [and] [d]eal with standardized situations with occasional or no 4 variables in or from these situations encountered on the job. JS-19. See 5 Grigsby v. Astrue, 2010 U.S. Dist. LEXIS 5465, *6 (C.D. Cal. 2010) ( The 6 restriction to jobs involving no more than two-step instructions is what 7 distinguishes Level 1 reasoning from Level 2 reasoning. There is no legal or 8 factual basis for . . . elliding the difference between the DOT s definitions of Level 9 1 reasoning and Level 2 reasoning. ). Although the Commissioner argues (perhaps correctly) that there are Level 10 11 1 jobs that DeAragon may perform, the record does not contain sufficient 12 information for this court to ascertain the answer to that question. Accordingly, 13 this matter must be remanded at step five of the sequential analysis for the ALJ to 14 clarify whether DeAragon is limited to reasoning level one and, if so, whether 15 there are jobs that exist in significant numbers in the national economy that 16 DeAragon can perform. 17 D. Remaining Claims 18 All of DeAragon s remaining claims relate to the ALJ s failure to properly 19 consider Dr. Pierce s opinion limiting DeAragon to one and two part instructions. 20 JS 3-5, 7-8, 14-16, 17-20. Specifically, DeAragon claims that the ALJ failed to 21 properly assess his RFC because he omitted the one and two step instruction 22 limitation from the RFC; the ALJ posed an incomplete hypothetical question to the 23 VE because he did not mention that DeAragon is limited to remembering and 24 complying with simple one and two part instructions; and the ALJ erred in finding 25 him capable of performing the jobs of hospital cleaner, hand packager, and 26 industrial cleaner because those jobs require a reasoning scale of Level 2, which 27 is higher than his Level 1 reasoning. JS 3-5, 7-8, 14-16, 17-20. 28 /// 6 1 2 This court need not address the remaining claims because this matter is remanded for further proceedings at step five of the sequential analysis. 3 IV. 4 ORDER 5 IT IS HEREBY ORDERED that this matter is remanded for further 6 proceedings at step five of the sequential analysis consistent with this opinion. 7 8 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 9 10 DATED: August 4, 2011 11 ALICIA G. ROSENBERG United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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