Raymond Smiddy v. Michael J. Astrue, No. 5:2010cv01453 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the action is remanded to the Agency for further consideration consistent with this Memorandum Opinion and Order. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RAYMOND SMIDDY, Plaintiff, 11 12 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. Case No. ED CV 10-1453 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by 19 Defendant Social Security Administration ( the Agency ), denying his 20 application for Supplemental Security Income ( SSI ). 21 the Administrative Law Judge ( ALJ ) erred when he tacitly rejected 22 the examining psychologist s opinion and concluded that Plaintiff 23 could perform his prior work. 24 agrees and remands the case to the Agency for further proceedings 25 consistent with this opinion. He claims that For the following reasons, the Court 26 II. BACKGROUND 27 Plaintiff applied for SSI in March 2006, alleging that he had 28 been unable to work since January 2006, due to osteoarthritis, plantar 1 fasciitis, a bone spur on the spine, and bursitis of the shoulders. 2 (Administrative Record ( AR ) 95-100, 125.) 3 application initially and again on reconsideration. 4 75.) Plaintiff then requested and was granted a hearing before an 5 ALJ. (AR 60.) 6 the hearing and testified. 7 issued a decision, denying benefits. 8 Council denied Plaintiff s request for review (AR 6-9), he commenced 9 this action. The Agency denied the (AR 63-67, 71- On July 23, 2008, Plaintiff appeared with counsel at 10 (AR 26-42.) III. On August 29, 2008, the ALJ (AR 15-25.) After the Appeals ANALYSIS 11 Though broken down into four claims, the gist of Plaintiff s 12 challenge to the ALJ s decision is that he ignored the opinion of 13 examining psychologist Mark Pierce. 14 In Plaintiff s view, Dr. Pierce s limitations precluded Plaintiff from 15 performing his prior jobs. 16 the ALJ adopted Dr. Pierce s opinion in reaching his conclusion that 17 Plaintiff could work. 18 Plaintiff. 19 (Joint Stip. 3-7, 9-13, 15-18.) The Agency disagrees. It contends that For the following reasons, the Court sides with Dr. Pierce performed consultative psychological examinations of 20 Plaintiff in May 2006 and May 2007. (AR 267-73, 346-52.) In both, he 21 found that Plaintiff suffered from depressive disorder, not otherwise 22 specified, that caused him to be limited in his ability to function in 23 the workplace. 24 to simple, repetitive work involving simple one[-] and two[-]part 25 instructions. 26 into simple, repetitive tasks. 27 ALJ s failure to also include a limitation for simple one- and two- 28 part instructions amounted to a tacit rejection of Dr. Pierce s Critical to the Court s analysis here is a limitation (AR 272, 352.) The ALJ translated this limitation (AR 18.) 2 Plaintiff argues that the 1 opinion. 2 simple, repetitive tasks took into account this limitation. 3 The Agency contends that the ALJ s use of the phrase The answer lies in the Dictionary of Occupational Titles ( DOT ). 4 It categorizes reasoning that is limited to following one- and two- 5 part instructions as Reasoning Level 1, i.e.: 6 Apply commonsense understanding to carry out simple one- or 7 two-step instructions. 8 occasional or no variables in or from these situations 9 encountered on the job. Deal with standardized situations with 10 See DOT, Appendix C, Components of the Definition Trailer, 1991 WL 11 688702 (4th ed. rev. 1991). 12 Reasoning Level 2, on the other hand, applies to people who can: 13 Apply commonsense understanding to carry out detailed but 14 uninvolved written or oral instructions. 15 problems involving a few concrete variables in or from 16 standardized situations. Deal with 17 See DOT No. 787.685-010; DOT, Appendix C, Components of the Definition 18 Trailer, 1991 WL 688702 (4th ed. rev. 1991). 19 Thus, an individual who is limited to performing jobs involving 20 one- and two-part instructions is limited to jobs requiring Reasoning 21 Level 1. 22 ALJ in concluding that Plaintiff could work -i.e., fast-food worker 23 (DOT No. 311.472-010) and sales attendant (DOT No. 299.677-010)-- 24 require Reasoning Level 2 and 3, respectively. 25 beyond Plaintiff s capacity. 26 4387142, at *2 (C.D. Cal. Sept. 21, 2011) (concluding that Dr. 27 Pierce s restriction to work involving one- and two-part instructions 28 precluded work involving Level 2 reasoning); Reaza v. Astrue, 2011 WL The jobs cited by the vocational expert and relied on by the Thus, they are well See Boltinhouse v. Astrue, 2011 WL 3 1 999181, at *3-4 (C.D. Cal. Mar. 21, 2011) (same); Murphy v. Astrue, 2 2011 WL 124723, at *7 (C.D. Cal. Jan. 13, 2011) (same); Watson v. 3 Astrue, 2010 WL 4269545, at *4 n.4 (C.D. Cal. Oct. 22, 2010) (same); 4 Grisby v. Astrue, 2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010) 5 ( Level 2 reasoning jobs may be simple, but they are not limited to 6 one- or two-step instructions. 7 more than two-step instructions is what distinguishes Level 1 8 reasoning from Level 2 reasoning. ); see also Garcia v. Astrue, 2011 9 WL 2173806, at *2 (C.D. Cal. June 1, 2011) (concluding that Dr. The restriction to jobs involving no 10 Pierce s restriction to work involving one- and two-part instructions 11 was consistent with Level 1 reasoning). 12 The Agency argues that this case is controlled by Stubbs- 13 Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). 14 concluded that the claimant was limited to slow pace in both 15 thinking and acting and was moderately limited in her ability to 16 perform at a consistent pace, which the ALJ translated into simple, 17 routine, repetitive sedentary work. 18 was approved by the circuit, id. at 1173-74, and the Agency argues the 19 ALJ s similar translation in the case at bar should be approved here. 20 The Court does not see this case as controlling. 21 Stubbs-Danielson had limited the claimant to three-part instructions, 22 not one- and two-part instructions as here. 23 claimant was less limited than Plaintiff, justifying a residual 24 functional capacity for simple, routine, repetitive sedentary work. 25 And the Agency s argument, even if accepted regarding the job of fast- 26 food worker, does not explain how someone who is limited to one- and 27 two-part instructions could perform the job of sales attendant, a 28 Level 3 reasoning job. 4 Id. at 1173. There, a doctor This translation The doctor in Id. at 1171. Thus, the 1 Further, even if the Court were to side with the Agency on this 2 issue, remand would still be warranted because the ALJ never addressed 3 Dr. Pierce s other limitations, i.e., that Plaintiff would be able to 4 adapt to only minimal changes in the work environment and would have 5 moderate difficulty working effectively with others. 6 Presumably, these limitations would have some impact on both of 7 Plaintiff s former jobs. 8 duties include providing customer service and aiding customers. 9 No. 299.677-010. (AR 352.) According to the DOT, a sales attendant s DOT And fast-food workers are required to have 10 considerable contact with customers, too. 11 as the Agency argues, the ALJ accepted Dr. Pierce s opinion, he was 12 required to address these limitations in reaching his conclusion that 13 Plaintiff could perform these jobs. 14 DOT No. 311.472-010. If, The ALJ also erred when he failed to explain the apparent 15 contradiction between his finding that Plaintiff was limited to 16 frequent reaching and handling, defined as from one-third to two- 17 thirds of the time, and his finding that Plaintiff could perform the 18 fast-food worker job, which requires constant reaching, meaning two- 19 thirds or more of the time. 20 311.472-010. 21 (AR 18, 24-25); see SSR 83-10; DOT No. Finally, the Court cannot say that these errors were harmless 22 because it appears they impacted the ALJ s determination that 23 Plaintiff was not disabled. 24 1162 (holding relevant inquiry is whether ALJ s error was 25 inconsequential to the ultimate nondisability determination).1 See Carmickle v. Comm r, 533 F.3d 1155, 26 27 28 1 Plaintiff asks the Court to remand the case for an award of benefits. The Court recognizes it has the authority to do so, see McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989), but 5 1 IV. CONCLUSION 2 For these reasons, the Agency s decision is reversed and the 3 action is remanded to the Agency for further consideration consistent 4 with this Memorandum Opinion and Order. 5 IT IS SO ORDERED. 6 DATED: September 29, 2011. 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 S:\PJW\Cases-Soc Sec\SMIDDY, R 1453\Memo_Opinion.wpd 20 21 22 23 24 25 26 27 28 concludes that such relief is not warranted here. It is not clear to from the record that Plaintiff is, in fact, disabled. Contrary to the Agency s arguments in the brief, it appears to the Court, reading between the lines, that the ALJ intended to discount Dr. Pierce s findings and simply failed to articulate that fact in his decision. (AR 22 ( I give the greatest weight to the opinion of the State Agency [psychiatrist]. ).) If Dr. Pierce s findings were eliminated from the equation, Plaintiff would be hard pressed to establish that he is disabled. For these reasons, further proceedings are necessary to resolve the outstanding issues in this case. See Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (holding remand for further proceedings was appropriate where the record contained additional unanswered questions regarding the applicant s eligibility for benefits). 6

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