Gladys Esquivel v. Michael J. Astrue, No. 5:2010cv00864 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter is remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Gladys Esquivel v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 GLADYS ESQUIVEL, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-00864-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly Dockets.Justia.com 1 2 complied with the order of the Appeal Council; and 2. Whether there is a DOT inconsistency in the ALJ s holding 3 that Plaintiff can perform the jobs of kitchen helper, 4 packager and cleaner. 5 (JS at 3.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. 9 concludes 10 that for the After reviewing the matter, the Court reasons set forth, the decision of the Commissioner must be reversed. 11 12 I 13 THE ISSUE OF WHETHER THE ALJ COMPLIED WITH THE ORDER OF REMAND OF 14 THE APPEALS COUNCIL IS NOT WITHIN THE JURISDICTION OF THIS COURT. 15 ALTERNATIVELY, THE ALJ DID NOT FAIL TO DEVELOP THE RECORD. 16 Plaintiff contends in her first issue that the ALJ did not 17 properly comply with the Order of the Appeals Council remanding the 18 case to the Administrative Law Judge. (JS at 3, et seq., citing AR 19 105-106.) 20 Following issuance of a decision by the ALJ on August 18, 2008, 21 the Appeals Council issued an Order remanding the case to the ALJ for 22 further hearing. 23 Administrative Law Judge will, among other things, do the following: 24 Obtain The Appeals Council ordered that upon remand, the additional evidence concerning the 25 [Plaintiff s] mood disorder/depression in order to complete 26 the administrative record in accordance with the regulatory 27 standards regarding consultative examinations and existing 28 medical evidence (20 CFR 404.1512-1513). 2 The additional 1 evidence should include updated treatment records from Dr. 2 Nakai and Patricia Jennings, the treating marriage and 3 family therapist, and updated records from Dr. Pham. 4 additional evidence may include, if warranted and available, 5 a consultative mental status examination with psychological 6 testing 7 [Plaintiff] can still do despite the impairments. 8 and medical source statements about what The the (AR 105-106.) 9 10 Plaintiff specifically complains that the ALJ failed to obtain 11 additional updated treatment records from Dr. Nakai and Patricia 12 Jennings, the treating marriage and family therapist, and updated 13 records from Dr. Pham. 14 In his decision following the remand directive from the Appeals 15 Council (AR 8-17), the ALJ cited and relied upon a report that had 16 been obtained following the Appeals Council Order by Dr. Bagner, on 17 September 13, 2009. (AR 580-583.) Dr. Bagner had performed a complete 18 psychiatric evaluation on that date at the request of the Department 19 of 20 generally consistent with the residual functional capacity found 21 herein. (AR 14.) 22 Social Services. Following this The ALJ decision, adopted Plaintiff Dr. Bagner s requested findings review by as the 23 Appeals Council (AR 4), which on April 22, 2010 denied review (AR 1- 24 3.) 25 As framed, Plaintiff s issue is not justiciable by this Court. 26 When the Appeals Council denied Plaintiff s request for review of the 27 ALJ s decision, that decision became the final decision of the 28 Commissioner, subject to judicial review. 3 See 42 U.S.C. § 405(g). 1 Federal courts have jurisdiction only to review final decisions of 2 administrative agencies. Thus, when the Appeals Council denied review 3 of the ALJ s second decision, and made that decision final, by doing 4 so it declined to find that the ALJ had not complied with its remand 5 instructions. See Tyler v. Astrue, 3005 Fed.Appx. 331 (9th Cir. 2008); 6 Thompson v. Astrue, 2010 WL 2991488 (C.D. Cal. 2010). 7 If Plaintiff s claim is construed as an argument that the ALJ 8 failed to develop the record, it still fails. As noted, the ALJ did 9 obtain evaluation 10 remand. 11 regarding Plaintiff s mental impairment. 12 a complete consultative psychiatric following Consequently, there was no failure to develop evidence Plaintiff s first issue is therefore deemed without merit. 13 14 II 15 THIS CASE MUST BE REMANDED FOR FURTHER HEARING 16 TO ADDRESS AN INCONSISTENCY BETWEEN THE JOBS IDENTIFIED 17 AT STEP FIVE OF THE SEQUENTIAL EVALUATION PROCESS 18 AND PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 19 A vocational expert ( VE ) testified at the second hearing, which 20 occurred on 21 hypothetical question to the VE which incorporated certain functional 22 limitations assessed by Dr. To, who performed an independent internal 23 medicine evaluation at the request of the Department of Social 24 Services on August 15, 2009. (AR 574-579.) 25 restrictions, which the ALJ incorporated in the hypothetical question, 26 contained 27 machineries. 28 hypothetical, the VE identified three jobs which Plaintiff could a February 2, restriction (See also 2010. from AR (AR 20-44.) working 13, 4 note The ALJ posed a One of those functional with 5.) heavy and Considering moving this 1 perform: cook s helper; hand packager; and industrial cleaner. (AR 2 43.) 3 each of these jobs are identified by Dictionary of Occupational Titles 4 ( DOT ) codes which contain job descriptions, and each of these job 5 descriptions involves working with machinery which might be construed 6 as heavy and/or moving machinery. 7 (DOT Code 317.687-010) entails clean[ing], cut[ting]; and grind[ing] 8 meats, poultry and seafood. 9 920.587-018), entails the following: starts, stops, and regulates As Plaintiff points out, and the Commissioner does not dispute, For example, the cook s helper job The second job, hand packager (DOT Code 10 speed of conveyer. Finally, the third job, that of industrial 11 cleaner (DOT Code 381.687-018), might require a worker to clean 12 conveyers, pick up refuse by cutting grass or shoveling snow, operate 13 an industrial truck to transport materials within a plant, start pumps 14 to force cleaning solution through machinery, and start pumps to 15 lubricate machines. 16 Plaintiff cites the Ninth Circuit case of Pinto v. Massanari, 249 17 F.3d 847 (9th Cir. 2001) for its holding that in order for an ALJ rely 18 on job description in the Dictionary of Occupational Titles that fails 19 to 20 definitively explain this deviation. 21 under Ninth Circuit precedent, an ALJ may rely on expert testimony 22 which contradicts the DOT, but only insofar as the record contains 23 persuasive evidence to support the deviation. (JS at 14, citing Light 24 v. Social Security Administration, 119 F.3d 1428, 1435. 25 comport with a claimant s noted limitation, the ALJ must Further, Plaintiff argues that The Commissioner puts forth a two-part argument. First, that 26 there is no deviation between the identified jobs and Plaintiff s 27 residual functional capacity ( RFC ), because the DOT only lists the 28 maximum requirements of jobs as generally performed, not the range of 5 1 requirements of a particular job as performed in specific settings. 2 (JS at 17, citing Social Security Ruling ( SSR ) 00-4p.) 3 Plaintiff argues that the job descriptions contained in the DOT do not 4 entail the use of dangerous equipment, or, specifically, heavy and 5 moving machinery. 6 of these contentions. Second, For the following reasons, the Court rejects both 7 First, as to the issue of deviation from the DOT descriptions, 8 the Ninth Circuit s decision in Massachi v. Astrue, 486 F.3d 1149 (9th 9 Cir. 2007) addressed this issue in the context of interpreting SSR 00- 10 4p. As Massachi makes clear, SSR 00-4p provides unambiguous guidance 11 which 12 responsibility to ask about any possible conflict between VE evidence 13 and information provided in the DOT. (Id. at 1152.) 14 noted, these procedural requirements ensure that the record is clear 15 as 16 particularly in cases where the expert s testimony conflicts with the 17 [DOT]. (Id. at 1153.) 18 identified jobs in this case clearly entail the use of heavy and/or 19 moving machinery, such as conveyer belts, pumps, grinders, and the 20 like. 21 only a maximum requirement of a job as it is generally performed, is 22 a 23 Commissioner does not have the expertise of a vocational expert, and 24 thus cannot provide such evidence. 25 in Massachi. 26 requirements and Plaintiff s RFC, and that must be explained by expert 27 testimony. 28 there was or might be a variance between the identified jobs in the to requires why an the ALJ adjudicator relied on a to discharge vocational an expert s affirmative As Massachi testimony, The DOT descriptions of each of the three The Commissioner s argument that the use of such machinery is question which should have been submitted to the VE. The That is the point of the opinion There is a possible deviation here between the job At the second hearing, the ALJ did not ask the VE whether 6 1 DOT and the functional limitations set forth in the hypothetical 2 question. 3 filled by speculation. 4 Plaintiff s argument is incorrect. 5 is whether she can operate what the Commissioner calls dangerous 6 equipment. Rather, Plaintiff sticks to the RFC as defined by the ALJ 7 which precludes her from operating heavy and moving machinery. 8 questions must be resolved on remand by expert testimony. 9 10 11 This has created a gap in the evidence which cannot be Further, the Commissioner s interpretation of She does not argue that the issue These For the foregoing reasons, this matter is remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 12 13 DATED: February 28, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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