John Wright v. Michael J Astrue, No. 5:2010cv00400 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this decision. (rp)
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John Wright v. Michael J Astrue Doc. 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN WRIGHT, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-400 SS MEMORANDUM DECISION AND ORDER 17 18 Plaintiff John Wright(“Plaintiff”) brings this action seeking to 19 overturn the decision of the Commissioner of the Social Security 20 Administration (hereinafter the “Commissioner” or the “Agency”) denying 21 his application for Supplemental Security Income (“SSI”) disability 22 benefits. 23 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 24 United States Magistrate Judge. Pursuant to the Court’s Order Regarding 25 Further Proceedings, the parties filed separate memoranda in support of 26 their respective positions. 27 of the Commissioner is REVERSED and REMANDED for further administrative 28 proceedings. Alternatively, he asks for a remand. The parties consented, For the reasons stated below, the decision Dockets.Justia.com 19 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 3 To qualify for disability benefits, a claimant must demonstrate 4 a medically determinable physical or mental impairment that prevents him 5 from engaging in substantial gainful activity1 and that is expected to 6 result in death or to last for a continuous period of at least twelve 7 months. 8 42 U.S.C. § 423(d)(1)(A)). 9 incapable of performing the work he previously performed and incapable 10 of performing any other substantial gainful employment that exists in 11 the national economy. 12 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 13 14 To decide if a claimant is entitled to benefits, an Administrative 15 Law Judge (“ALJ”) conducts a five-step inquiry. 16 416.920. 20 C.F.R. §§ 404.1520, The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 22 claimant is found not disabled. 23 three. 24 (3) 25 severe? If not, the If so, proceed to step Does the claimant’s impairment meet or equal one of list of specific impairments described in 20 C.F.R. Part 404, 26 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 27 2 1 Subpart P, Appendix 1 (the “Listings”)? 2 claimant is found disabled. 3 four. 4 (4) If not, proceed to step Is the claimant capable of performing his past work? 5 so, the claimant is found not disabled. 6 to step five. 7 (5) If so, the If not, proceed Is the claimant able to do any other work? 8 claimant is found disabled. 9 found not disabled. If If not, the If so, the claimant is 10 11 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 12 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098-99); 20 13 C.F.R. §§ 404.1520(b) - 404.1520(g)(1) and 416.920(b) - 416.920(g)(1). 14 15 The claimant has the burden of proof at steps one through four, and 16 the Commissioner has the burden of proof at step five. 17 F.3d at 953-54 (citing Tackett, 180 F.3d at 1098). 18 ALJ has an affirmative duty to assist the claimant in developing the 19 record at every step of the inquiry. 20 claimant meets his burden of establishing an inability to perform past 21 work, the Commissioner must show that the claimant can perform some 22 other work that exists in “significant numbers” in the national economy, 23 taking 24 (“RFC”),2 age, education, and work experience. 25 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), into account the Id. at 954. claimant’s residual Bustamante, 262 Additionally, the If, at step four, the functional capacity Tackett, 180 F.3d at 26 2 Residual functional capacity is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all 28 of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 27 3 1 416.920(g)(1). 2 vocational expert (“VE”) or by reference to the Medical-Vocational 3 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 4 (commonly known as “the Grids”). 5 1162 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1100-01). 6 claimant 7 limitations, the Grids are inapplicable and the ALJ must take the 8 testimony of a vocational expert. 9 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 10 has The Commissioner may do so by the testimony of a both exertional Osenbrock v. Apfel, 240 F.3d 1157, (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 1988)). 11 THE ALJ’S DECISION 12 13 14 The ALJ applied the five-step sequential evaluation process. 15 the first step of the evaluation process, the ALJ found that Plaintiff 16 had not engaged in substantial gainful activity since his application 17 date. 18 that Plaintiff’s lumbar sprain/strain, lumbar degenerative disc disease, 19 cervical sprain/strain and affective disorder were severe impairments. 20 (Id.). 21 or in combination, did not meet or equal any of the Listings. 22 After considering Plaintiff’s symptoms and the medical opinions, the ALJ 23 concluded that Plaintiff had the RFC “to perform light work” as defined 24 in 20 C.F.R. § 416.967(b) with certain limitations. 25 ALJ found that Plaintiff could stand or walk only two hours out of an 26 eight-hour day, fifteen to thirty minutes at a time, using a cane as 27 needed. 28 hour day, with normal breaks every two hours and the allowance to stand (Administrative Record (“AR”) 12). At At step two, the ALJ found At step three, the ALJ found that the impairments, individually (AR 13). (Id.). (AR 13-16). The Plaintiff could sit for six hours out of an eight- 4 1 and stretch for three minutes every hour. 2 occasionally stoop and bend, but could not climb ladders, work at 3 heights, or balance. 4 motion, with his head in a comfortable position most of the time, but 5 was precluded from extremes of motion and could only occasionally 6 maintain a fixed head position for fifteen to thirty minutes at a time. 7 (Id.). 8 with no production rate pace work. 9 that Plaintiff was incapable of performing any past relevant work. (Id.). (Id.). Plaintiff could Plaintiff could engage in occasional neck Plaintiff was limited to simple, repetitive goal-oriented work (Id.). At step four, the ALJ found (AR 10 16). At step five, the ALJ found that Plaintiff could perform other 11 work as a charge account clerk (Dictionary of Occupational Titles 12 (“DOT”) 205.367-014) and was therefore not disabled within the meaning 13 of the Social Security Act. (AR 17). 14 STANDARD OF REVIEW 15 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner’s decision to deny benefits. The court may set aside the 19 Commissioner’s decision when the ALJ’s findings are based on legal error 20 or are not supported by substantial evidence in the record as a whole. 21 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 22 Tackett, 180 F.3d at 1097); Smolen v. 23 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Chater, 80 F.3d 1273, 1279 (9th 24 25 “Substantial evidence is more than a scintilla, but less than a 26 preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 27 112 F.3d 1064, 1066 (9th Cir. 1997)). 28 a reasonable person might accept as adequate to support a conclusion.” 5 It is “relevant evidence which 1 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 2 determine whether substantial evidence supports a finding, the court 3 must “‘consider the record as a whole, weighing both evidence that 4 supports 5 conclusion.’” 6 F.3d 953, 956 (9th Cir. 1993)). 7 either affirming or reversing that conclusion, the court may not 8 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 9 at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and evidence that detracts from the To [Commissioner’s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 If the evidence can reasonably support 10 DISCUSSION 11 12 13 Plaintiff contends that the ALJ erred for three reasons: (1) the 14 ALJ’s reliance on the VE’s testimony that Plaintiff was capable of 15 performing other work as a charge account clerk was improper because the 16 VE’s opinion deviated from the DOT and the VE did not explain the 17 deviation; (2) the ALJ did not properly consider the treating doctors’ 18 findings; and (3) the ALJ did not properly consider the consultative 19 examiner’s opinion. (Memorandum in Support of Plaintiff’s Complaint at 20 2-10). 21 deviation between the VE’s testimony and the DOT description of the 22 requirements of a charge account clerk created an unresolved potential 23 inconsistency in the evidence and remands this action on that basis. 24 As the Court determines that remand is required on this basis alone, the 25 Court declines to address Plaintiff’s alternative arguments. This Court agrees that the ALJ’s failure to explain the 26 27 28 6 1 The ALJ Erred By Failing Explain The Deviation Between The 2 VE’s Testimony And The DOT Description Of Charge Account 3 Clerk In Determining That Plaintiff Could Perform Other Work 4 5 Plaintiff contends that the ALJ improperly relied on the VE’s 6 opinion that he was capable of performing other work as a charge account 7 clerk. 8 Specifically, Plaintiff argues that the reasoning skills required of a 9 charge account clerk as defined in the DOT exceed the ALJ’s RFC (Memorandum in Support of Plaintiff’s Complaint at 2). 10 assessment limiting Plaintiff to simple, repetitive tasks. (Id. at 2). 11 Plaintiff concludes that because neither the ALJ nor the VE explained 12 this deviation from the DOT, reversal or remand is appropriate. 13 at 5). (Id. The Court agrees and remands. 14 15 Social Security regulations provide that DOT classifications are 16 rebuttable by recognizing “vocational experts and several published 17 sources other than the DOT as authoritative.” 18 F.3d 19 §§ 20 particularly important where “the issue in determining whether you are 21 disabled is whether your work skills can be used in other work and the 22 specific occupations in which they can be used, or there is a similarly 23 complex issue”). 24 expected to be consistent with the DOT, “[n]either the DOT nor the VE 25 evidence automatically ‘trumps’ when there is a conflict.” 1428, 1435-36 404.1566(d)(2)-(5), (9th Cir. (e) (the 1995); use of Johnson v. Shalala, 60 see also vocational 20 C.F.R. experts is Although evidence provided by a VE is generally 26 27 28 7 Social 1 Security Ruling (“SSR”) 00-4p;3 Massachi v. Astrue, 486 F.3d 1149, 1153 2 (9th Cir. 2007). 3 the DOT if the record contains persuasive evidence to support the 4 deviation. 5 2008). 6 Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001). 7 sufficient to permit deviation may be “either specific findings of fact 8 regarding claimant’s residual functionality, or inferences drawn from 9 the context of the expert’s testimony.” 10 The ALJ may rely on expert testimony that contradicts See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. Furthermore, the ALJ must definitively explain the deviation. Evidence Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (internal citations omitted). 11 12 At the hearing, the ALJ posed a hypothetical to the VE that 13 included the assumption that the person would be limited to simple, 14 repetitive tasks. 15 Plaintiff was not capable of performing any past relevant work and that 16 the only other work Plaintiff could perform was as a charge account 17 clerk, DOT 205.367-014. 18 testimony complied with the DOT. 19 representation and did not question the VE about any apparent deviations 20 between his testimony and the DOT. (AR 107). In response, the VE testified that (AR 108). The VE further affirmed that his (AR 109). The ALJ relied on the VE’s (Id.). 21 22 23 According to the DOT, the position of charge account clerk requires level three reasoning skills on the scale of General Education 24 25 3 Social Security Rulings do not have the force of law. Nevertheless, they “constitute Social Security Administration 26 interpretations of the statute it administers and of its own 27 regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 28 1453, 1457 (9th Cir. 1989). 8 1 Development (“GED”). 2 level three reasoning skills as the ability to “[a]pply commonsense 3 understanding to carry out instructions furnished in written, oral, or 4 diagrammatic 5 variables in or from standardized situations.” 6 III, 1991 WL 688702. The weight of authority in the Ninth Circuit holds 7 that level three reasoning skills as defined in the DOT are incompatible 8 with a limitation to simple, repetitive tasks. 9 v. Astrue, 2010 WL 2555847 (E.D. Cal. June 21, 2010) noted: form. DOT 205.367-014, 1991 WL 671715. Deal with problems involving The DOT defines several concrete DOT Appendix C, Section As the court in Torrez 10 11 Several district court cases in this circuit question whether 12 a claimant limited to simple, repetitive tasks, is capable of 13 performing jobs requiring level three reasoning under the DOT. 14 In McGensy v. Astrue, 2010 WL 1875810 (C.D. Cal. May 11, 15 2010), the Court noted that while case law has held that “a 16 limitation to ‘simple, repetitive tasks’ is consistent with 17 level two reasoning,” this restriction is “inconsistent” with 18 the requirements for level three reasoning, in particular the 19 job of mail clerk. 20 2151361 at *7 (C.D. Cal. July 14, 2009) (“The Court finds that 21 the DOT’s Reasoning Level three requirement conflicts with the 22 ALJ’s prescribed limitation that Plaintiff could perform only 23 simple, repetitive 24 4161443 at 25 reasoning 26 individuals 27 tasks”; 28 Plaintiff’s limitation to ‘simple, repetitive tasks’ and the *11 work.”); (S.D. appears limited remand Id. at *3 (citing Pak v. Astrue, 2009 WL to to to ALJ Cal. be Tudino Sept. the 5, 2008) only “address 9 Barnhart, breaking performing to v. the 2008 WL (“[l]evel-two point simple for those repetitive conflict between 1 level-three reasoning”); Squier v. Astrue, 2008 WL 2537129 at 2 *5 3 “inconsistent with a limitation to simple repetitive work”)). 4 In addition, in Bagshaw v. Astrue, 2010 WL 256544 at *5 (C.D. 5 Cal. January 20, 2010), the court expressly cited Hackett [v. 6 Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)] in concluding 7 that a mail clerk job, which requires level three reasoning 8 under 9 intellectual functional capacity limitation to simple, routine (C.D. the Cal. DOT, June was 24, 2008) (reasoning “inconsistent with level [the three is plaintiff’s] work.”4 10 11 12 Id. at *8 (concluding that “the DOT precludes a person restricted to 13 simple, repetitive tasks, from performing work . . . that requires level 14 three reasoning”); see also Lara v. Astrue, 305 Fed. Appx. 324, 325 (9th 15 Cir. 2008) (finding that reasoning levels one and two are commensurate 16 with a limitation to simple, repetitive tasks). 17 18 The VE’s determination that Plaintiff is capable of working as a 19 charge account clerk, which according to the DOT requires level three 20 reasoning ability, therefore conflicts with decisions that find that 21 level three reasoning skills are generally beyond the capacity of 22 persons limited to simple, repetitive tasks. 23 conflict between the testimony of the VE and the definitions contained 24 in the DOT, the ALJ must ask the VE to explain the deviation. Massachi, 25 486 F.3d at 1153 (citing Social Security When there is an apparent Ruling 00-4p). Here, 26 4 In Hackett, the Tenth Circuit stated that a restriction to “simple and routine work tasks . . . seems inconsistent with the demands 28 of level-three reasoning.” Hackett, 395 F.3d at 1176. 27 10 1 notwithstanding 2 explanation from the VE. Consequently, the ALJ’s written determination 3 provides no explanation as to how to resolve the conflict created by the 4 vocational expert’s identification of a potential occupation which the 5 DOT indicates requires reasoning abilities beyond the capacity of a 6 person limited to simple, repetitive tasks. 7 cannot accept the ALJ’s determination, which relies on the vocational 8 expert’s testimony, that there are positions in the national economy 9 available to Plaintiff. 10 the apparent conflict, the ALJ did not seek an As a result, the Court Without more, the Court cannot determine whether substantial evidence supports the ALJ’s decision. 11 12 Remand for further proceedings is appropriate where additional 13 proceedings could remedy defects in the Commissioner’s decision. 14 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). 15 ALJ must either address the conflict between the VE’s determination that 16 Plaintiff is capable of working as a charge account clerk and the DOT’s 17 description of that position as requiring level three reasoning skills, 18 which are normally beyond the capabilities of a person restricted to 19 simple, repetitive tasks, or obtain further VE testimony regarding 20 alternative occupations that Plaintiff could perform. 21 22 // 23 // 24 // 25 // 26 // 27 // 28 // 11 See Upon remand, the 1 CONCLUSION 2 3 4 Accordingly, IT IS HEREBY ORDERED that the decision of the 5 Commissioner is REVERSED and REMANDED for further proceedings consistent 6 with this decision. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: November 3, 2010 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
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